Commentary for Kiddushin 37:23

The different forms of betrothal can be different from one another—in one case the father betroths her to someone else, and in another the master betroths her without the father’s participation. But why should there be different forms of marriage? Marriage is simply the coming together of the couple (intercourse).

R. Nahman b. Yitzchak says that R. Yose b. R. Yehudah holds that the original sale money counts as kiddushin money. Should the master designate her, he need not give more kiddushin money. But then we have a problem—the father essentially betrothed her when he sold her? How can he sell her again?
The answer is that this baraita agrees with R. Eliezer who had said that a father may sell his daughter for servitude after marriage.

The Talmud states the parameters of the question. Lurking behind this question is a bigger question—can a minor son ever be married?

The baraita seems to teach that a minor boy can never be married. But if a master can designate the slave woman to his son, then a minor could be married. Should a man commit adultery with this woman, why does it not count as adultery?

But we could actually read the baraita in an opposite way. If a minor can never marry, why exclude the minor’s wife from the punishment of adultery—there would be no such thing as a minor’s wife? Thus there must be a case where a minor can marry, and we can assume it is designation.

Rav Ashi provides an entirely different context to the baraita. The minor here is a minor yavam (brother-in-law) who is nine years old. This is the age from which the rabbis believe that a minor could have intercourse (younger than that is considered just “playing doctor”). In normal cases a minor cannot marry a woman because he cannot betroth her—betrothal requires “awareness” which he is considered to lack. But this yavam need not “acquire” his wife—she is connected to him by Torah law because the Torah mandates she be married to the brother-in-law. When he has intercourse with her, he now becomes a “minor” husband. We might have thought that his wife is subject to the laws of adultery, therefore the baraita needs to teach us that she is not. But we now do not need to posit that a master can designate a slave woman to his minor son.

Rav Ashi provides an entirely different context to the baraita. The minor here is a minor yavam (brother-in-law) who is nine years old. This is the age from which the rabbis believe that a minor could have intercourse (younger than that is considered just “playing doctor”). In normal cases a minor cannot marry a woman because he cannot betroth her—betrothal requires “awareness” which he is considered to lack. But this yavam need not “acquire” his wife—she is connected to him by Torah law because the Torah mandates she be married to the brother-in-law. When he has intercourse with her, he now becomes a “minor” husband. We might have thought that his wife is subject to the laws of adultery, therefore the baraita needs to teach us that she is not. But we now do not need to posit that a master can designate a slave woman to his minor son.

R. Yannai rules quite clearly that the son must be of age in order for his father to designate the slave girl to him for marriage. The son must consent to the marriage.

Abaye son of R. Abbahu teaches that she too must consent to the designation.

Abaye also explains this baraita. If the original sale money was not given as kiddushin, then there still needs to be an act of kiddushin. This kiddushin happens when the master designates her to himself or her son. Like all regular acts of betrothal, this needs to be done with her consent.

R. Nahman b. Yitzchak says that even if the original sales money counts as kiddushin, we can still say that designation requires her consent. The Torah uses the word “ye’adah” in order to let us know that her consent is required. [Below we will see that R. Nahman b. Yitzchak himself holds that the original sales money does not count as kiddushin].

The Talmud has mentioned R. Yose son of R. Yehudah’s opinion several times. It now explains what that opinion is. The Torah says that if the master does not designate her, then she can be redeemed. Redeeming means paying back the value of the time she has not yet served. By implication, he cannot designate her unless there is time left in her service for her to work the value of a perutah. R. Yose son of R. Yehudah reads the Torah as if it says that the master betroths (designates) her with the value of the work she has left to perform. Forgiving her from having to do the work is the kiddushin money. Hence, he must in general posit that when the master buys the slave, this does not count as kiddushin money.

The Talmud has mentioned R. Yose son of R. Yehudah’s opinion several times. It now explains what that opinion is. The Torah says that if the master does not designate her, then she can be redeemed. Redeeming means paying back the value of the time she has not yet served. By implication, he cannot designate her unless there is time left in her service for her to work the value of a perutah. R. Yose son of R. Yehudah reads the Torah as if it says that the master betroths (designates) her with the value of the work she has left to perform. Forgiving her from having to do the work is the kiddushin money. Hence, he must in general posit that when the master buys the slave, this does not count as kiddushin money.

R. Nahman b. Yitzchak says that R. Yose son of R. Yehudah could even hold that the original sales money counts as kiddushin money, but still in order for her to be designated there must be time in the day for her to work. This is simply what the verse teaches.
Just to go over the structure here. R. Yose son of R. Yehudah did not saying anything about whether the original sales money counts as kiddushin money. He only ruled that there must be time left in the last day of her service for her to work in order for the master to designate her. The “stam,” the anonymous voice in the Talmud and R. Nahman b. Yitzchak argued over whether this implies that he holds that the sale money counts as kiddushin money. The “stam” holds that it does not, and R. Nahman b. Yitzchak holds that it does. This is why earlier we saw two opinions attributed to R. Yose son of R. Yehudah.

A father has the legal right to betroth his minor daughter, but a minor does not have the legal ability to act as an agent for an adult. So how can a father send off his own minor daughter to accept her own kiddushin? To accomplish this Rava draws an analogy to the girl sold as a slave who then becomes designated as a wife to either the master or his son. R. Yose bar R. Yehudah said that the original sale was not the money for kiddushin. When the master designates her, he must give her kiddushin money or forgive her a perutah’s worth of work. Thus the father has essentially appointed the daughter to be the agent to accept her own kiddushin. So too this can happen in a non-slave case.

Rava derives another halakhah from the ruling of R. Yose son of R. Yehudah. When the father sells her to the master, it is like a loan. The master gives money and the daughter owes the master a certain amount of work. She herself is the collateral, held by the master until she completes the work. And then when he betroths her, he forgives her at least a perutah’s worth of work. So he is essentially forgiving a loan and returning the collateral. So too a man can betroth a woman through a loan she owes him and by returning to her the collateral that he holds.