Q&A: Betrothal and Marriage of a Minor Without Her Father's Knowledge
Betrothal and Marriage of a Minor Without Her Father's Knowledge
Question
Have a good week, Rabbi, and happy Jerusalem Day,
The Talmud in Kiddushin 44b says:
It was stated: In the case of a minor girl who was betrothed without her father's knowledge, Shmuel said: She requires a bill of divorce and she requires refusal. Karna said: There is something problematic here. If she requires a bill of divorce, why refusal? And if refusal, why a bill of divorce? They said to him: Master Ukva and his court in Kafri reversed their view. They sent the matter before Rav. He said to them: By God, she requires a bill of divorce and she requires refusal. And may it be a pity on the descendants of Abba bar Abba if he would say such a thing. And what is the reason? Rav Aḥa son of Rav Ika said: She requires a bill of divorce lest the father consented to the betrothal; she requires refusal lest the father did not consent to the betrothal, and people will say that betrothal does not take effect with her sister.
And likewise on 45b:
If she was betrothed with her father's knowledge, and her father went overseas, and she then went and married, Rav said: She may eat terumah until her father comes and protests. Rav Assi said: She may not eat, lest her father come and protest, and it will turn out that a non-priest's daughter was eating terumah retroactively.
It seems that the father's consent to the act of betrothal and marriage takes effect even though at the moment of the transaction the father did not know. But we hold in Bava Metzia 22a that terumah separated without the owner's knowledge is not considered terumah, since at the time it was separated he did not know. If so, why do we not say also regarding betrothal and marriage without the father's knowledge that at the time of the betrothal he did not know?
With blessings,
Answer
For betrothal, from the woman's side, the father's active will is not required, only his consent in the sense that he does not object. For separating terumah, one needs the will of the one separating it or of his agent. For betrothal from the groom's side, of course active will is required, and mere consent is not enough. And indeed, in the chapter “These Found Items” that you cited, in the topic of unconscious despair, there are lengthy discussions about this distinction, because in the simple sense unconscious despair helps only where active will is not required, but only consent.
Discussion on Answer
That is, if the whole problem with terumah separated without knowledge is that it requires will and not mere consent, then also in the son's betrothal the Talmud should have said that even if the son later consented, there is no betrothal here, because on the son's side active will is required and not just consent.
If the father betroths a woman for him, perhaps consent is enough. And even at the stage before the question about agency, we are dealing with the rule of acquisition on someone's behalf, which is a kind of agency. If I act for you by virtue of that rule, it seems that your consent is enough for the matter to take effect.
There is a Talmud in Kiddushin 7a: “Here is a maneh, and become betrothed to so-and-so” — she is betrothed. Rashi explained there:
He says, “Here is a maneh, and become betrothed to so-and-so” — and he is that man's agent, except that he betroths her with his own money.
According to what you are saying, one can betroth a woman to so-and-so even where he is not his agent, but rather by the rule of acquisition on someone's behalf. Unlike Rashi here. Did I understand correctly?
Not necessarily. First, regarding that case under the law of a guarantor, there is a dispute among the medieval authorities as to whether he must be his agent (Ritva, if I remember correctly). Second, his father knows what suits him, and therefore the betrothal can work by the rule of acquisition on someone's behalf. Another person does not necessarily know what he wants, and therefore that rule would not apply here.
Even if another person does not know what he wants, what downside is there in betrothing a woman to someone? If he is not interested in her, he can divorce her after the betrothal.
I don't think that is called a benefit. Divorce is a procedure, and it also costs money (a scribe and parchment), and a divorced man's market value goes down.
It is still difficult, because later in the Talmudic discussion about “lest the son consented,” Rashi says this:
“But perhaps he had appeased him” — the son, before his father, and revealed to him that he wanted her, and the father became his agent on his own, and one may act to a person's benefit in his absence.
It seems that without the son revealing his intention, the father could not have betrothed the woman for him by the rule of acquisition on someone's behalf.
Even better. That is exactly what I said: that the rule of acquisition on someone's behalf does not apply to just any man who is doing the betrothal, but only to his father, who knows his preferences (and Rashi requires that he explicitly revealed his intention to him).
According to what you said, this is difficult in light of the Talmud in Kiddushin 45a:
It seems from this Talmudic passage that there was a preliminary assumption that the son might retroactively consent to the betrothal to the other man's daughter. The Talmud should have objected here that at the time of the betrothal he did not know, and from there moved on to agency, but it does not mention the issue of betrothal without knowledge—apparently because it understood that there is no problem with that.