פירוש על קידושין 87:22

Above we said that for a na’arah, only her father can betroth her since kiddushin takes her out of his domain. But this mishnah says that when it comes to “ma’amar” betrothal for a girl awaiting levirate marriage, either she or her father can accept it, despite the fact that this also takes her out of her father’s domain. This is a difficulty on R. Yohanan.

The Talmud now rewrites R. Yose son of R. Hanina’s explanation of R. Yohanan. Since betrothal requires a woman’s consent, and she is too young to give it, only her father can accept it. But when it comes to divorce, which does not require her consent, it does not really matter who accepts the document. Even she can accept it.

This is the same difficulty as above. A na’arah (12-12.5 year old girl) can accept ma’amar (levirate betrothal), even though it requires her consent. Thus, a na’arah can accept something even if she is not legally able to consent.
The Talmud resolves that this opinion accords with Rabbi who said that unlike betrothal, ma’amar can be performed against a girl’s consent. [The main effect of ma’amar is that she will not be able to have yibbum, levirate marriage, with any of the other brothers]. However, the other sages hold that like kiddushin, ma’amar requires consent.

If a yavam has sex with his yevamah against her will, the act of yibbum is considered to be performed (I want to emphasize that this is not saying that he is allowed to rape her, just that if he does, the act has legal validity). According to Rabbi, the same is true when it comes to ma’amar—it is valid even if it is done against her will.

The other rabbis, who hold that ma’amar cannot be performed against a woman’s will, compare it with regular kiddushin, which also cannot be performed against a woman’s will.

Rabbi and the other rabbis disagree about what to compare ma’amar with—other laws related to the yevamah or other laws related to kiddushin.

R. Yohanan holds that when it comes to betrothal of a na’arah, only her father can accept the betrothal. This is directly supported by the second clause of the baraita we learned last week—when it comes to divorce, both the daughter and her father can accept the get. But when it comes to betrothal, only her father can.
Moreover, this baraita now seems to be a difficulty on Resh Lakish who said that a na’arah can also accept her own betrothal.

Resh Lakish tries to ascribe that baraita to R. Judah, who holds that we can never have a case of two people having the right to accept the same document or legally binding object.

R. Judah was referring to divorce, not kiddushin. So why does the baraita say “which is not so in the case of kiddushin”!

The Talmud admits that the baraita really should have stated “which is not so in the case of divorce” but since the topic was ma’amar, kiddushin for a woman awaiting levirate marriage, the baraita taught “which is not so in the case of kiddushin.”
Thus the Talmud has defended Resh Lakish, who holds that according to the rabbis both the na’arah and her father can accept her kiddushin.

R. Judah holds that the rules governing ma’amar are different from divorce--she can accept the former but not the latter. This is because she is already tied to the yavam as soon as her husband dies.
The Talmud now notes that this logic can also be used to explain why R. Yohanan holds that either she or her father can accept ma’amar but in ordinary betrothal only the father can. In the former case she is already tied to the yavam, and therefore the acceptance is less consequential.

The mishnah implies that when the girl is a na’arah her father or his agent can marry her off, but she cannot accept her own kiddushin. Thus it contradicts Resh Lakish.

The problem with ascribing the first clause of our mishnah to R. Judah is that the second clause is ascribed to R. Shimon. In this clause, a man says to a woman “be betrothed to me with this date and be betrothed to me with this date.” She is betrothed only if one of the dates is worth a perutah, the minimum measure for kiddushin. Had he said “be betrothed” only once, we could have added up the value of all the dates. Rabbah identifies this position with R. Shimon who holds that when one takes a false oath to multiple people he is liable for each false oath only if he reiterates the word “oath.”

The problem with ascribing the first clause of our mishnah to R. Judah is that the second clause is ascribed to R. Shimon. In this clause, a man says to a woman “be betrothed to me with this date and be betrothed to me with this date.” She is betrothed only if one of the dates is worth a perutah, the minimum measure for kiddushin. Had he said “be betrothed” only once, we could have added up the value of all the dates. Rabbah identifies this position with R. Shimon who holds that when one takes a false oath to multiple people he is liable for each false oath only if he reiterates the word “oath.”

Again, Resh Lakish can deflect difficulties by ascribing them to R. Judah, who holds that only one person, the father, can accept her divorce and by extension, her kiddushin.

Perhaps R. Judah agrees with R. Shimon about the issue of detailed enumeration—whether one must enumerate each issue for it to have legal significance. However, R. Judah does not require him to say “oath” to each person. We can see easily that R. Judah actually disagrees with R. Shimon on this very issue. So our whole mishnah cannot be R. Judah, and if the second half is not R. Judah, the first half cannot be his opinion.

Perhaps R. Judah agrees with R. Shimon about the issue of detailed enumeration—whether one must enumerate each issue for it to have legal significance. However, R. Judah does not require him to say “oath” to each person. We can see easily that R. Judah actually disagrees with R. Shimon on this very issue. So our whole mishnah cannot be R. Judah, and if the second half is not R. Judah, the first half cannot be his opinion.

The whole mishnah could, however, be R. Shimon. R. Judah would not agree with the second clause, but R. Shimon could agree with the first clause—only the father may accept the kiddushin. But other rabbis (except R. Shimon) could hold like Resh Lakish, that both she and the father can accept kiddushin.
Now that’s how you solve a difficulty folks!

I always love it when we get a description of rabbis playing hooky from the Bet Midrash and having FOMO over what they missed. In this case, they missed Resh Lakish crying out with a prooftext when everyone agreed with R. Yohanan. The prooftext is often brought out to prove that the same rules apply for both divorce and marriage.

R. Assi wonders if R. Abin is reliable—should we believe him that everyone agreed with R. Yohanan. Yup, responds R. Zera. His word is as fresh as a fish pulled straight from the sea and plopped into the frying pan. This is definitely a saying I’m going to try to use more.

R. Assi wonders if R. Abin is reliable—should we believe him that everyone agreed with R. Yohanan. Yup, responds R. Zera. His word is as fresh as a fish pulled straight from the sea and plopped into the frying pan. This is definitely a saying I’m going to try to use more.

The Talmud fleshes out the two possibilities as to whether the na’arah can appoint an agent. We know she can receive her get, but is this because she is like her father’s hand, meaning that she has the exact same powers that he has? Or is this because she is like her father’s courtyard, part of her father’s property? Just as a husband can place the get in her father’s courtyard and thereby divorce her, so too he can give her the get. But a courtyard cannot appoint an agent.