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Kidushin, 19

KIDUSHIN 19 (4 Sivan) - Dedicated by Rabbi Kornfeld's father, Mr. David Kornfeld, in memory of the members of his family who perished at the hands of the Nazi murderers in the Holocaust and whose Yahrzeit is observed today: his mother (Mirel bas Yakov Mordechai), brothers (Shraga Feivel, Aryeh Leib and Yisachar Dov, sons of Mordechai), grandfather (Reb Yakov Mordechai ben Reb David [Shpira]) and aunt (Charne bas Yakov Mordechai [wife of Reb Moshe Aryeh Cohen]).


QUESTION: The Gemara presents a Derashah from the word, "Ish" (Vayikra 20:10) that "'Ish' Prat l'Katan," which teaches that a Katan who commits adultery is exempt from punishment. Why does the Gemara need to learn this from a verse? A Katan is never liable to receive punishments!


(a) TOSFOS explains that we might have thought that a Katan who lives with a Gedolah, an adult, should be killed, since the Gedolah is killed because of him. Tosfos in Erchin (3a) explains further that the Gemara in Sanhedrin (55a) says that when a person lives with an animal, the animal is killed because it brought about the death of a person, and its presence causes constant shame to the dead person. The same way, we might have thought that the Katan is killed for causing the death of the Gedolah.

(b) The RA'AVAD (cited by the Rishonim) explains that with regard to transgressions of Arayos, we find that one who transgresses even by being "Mis'asek," through the inadvertent transgression of an Aveirah, is obligated to bring a Korban, because he derived physical benefit from an Aveirah. Therefore, we might have thought that a Katan should also be obligated to bring a Korban, even though he is not held responsible for his actions since they are done without Da'as.

(c) The RAV AVAD (the father-in-law of the RA'AVAD), cited by the Rishonim, answers that the verse is not exempting the Katan, but rather it is exempting the Gedolah who lives with him -- when the Katan is less than nine years old. (This Katan is not the same as the Katan mentioned in the end of the Beraisa when it discusses "Eshes Katan," for there the Beraisa is referring to a child who is more than nine years old.)

QUESTION: Rebbi Yanai teaches that Yi'ud can be performed only with the knowledge of the Amah Ivriyah. This is derived from the verse, "Asher Lo Ye'adah" (Shemos 21:8), in which the word "Ye'adah" is understood to imply "De'ah" (knowledge, or consent).

How is this to be reconciled with the Gemara earlier (5a) that states that the Kesef paid to acquire an Amah Ivriyah accomplishes the Kinyan even against her will?


(a) RASHI is following his own opinion earlier (5a), where he writes that the *sale* of the Amah may be done against her will, but not that the Kidushin (Yi'ud) can be done against her will. Even though the sale is done with the consent of the father, who has the right to sell his daughter, nevertheless since the sale does not require the daughter's consent, it is mentioned there as an example of a Kinyan against a person's will.

(b) TOSFOS (5a, DH sh'Ken), however, explains that since the sale is done with the consent of the father, it is not considered done against someone's will at all. The Gemara there means, rather, that when Kesef effects the *Yi'ud* of the Amah, it is done against the will of both the father and the Amah (according to the opinion that the money given to buy the Amah is not what effects the Kidushin -- "Ma'os ha'Rishonos Lav l'Kidushin Nitnu").

Following this opinion, Tosfos there explains that the Gemara here does not mean that Yi'ud must be done with the consent of the Amah, but rather that it must be done with her *knowledge*; she must be informed that Yi'ud is being done, but her consent is not necessary.

However, various other statements in the Gemara here (19a-19b) seem to contradict the approach of Tosfos. First, Rava learns from the Halachos of Yi'ud that a man may tell his daughter (who is a Ketanah) to go out and accept her own Kidushin in his place. This implies that when doing Yi'ud, the Amah is willingly accepting Kidushin that the master gives her (according to the view that "Ma'os ha'Rishonos Lav l'Kidushin Nitnu"), and it is not being forced upon her.

Second, the Gemara (19b) compares the case of Yi'ud (according to the opinion that "Ma'os ha'Rishonos Lav l'Kidushin Nitnu") to a man who tells a woman, "You are hereby betrothed to me ('Harei At Mekudeshes Li') after thirty days pass" (without saying "Me'achshav" -- "from now"). In order for such a Kidushin to be valid, the woman must consent at the time that the Kidushin is to take effect. (See RASHI 19b, DH l'Rebbi Yosi.) This, too, implies that Yi'ud can only take effect with the Amah's consent.

The answer is that Tosfos explains these Gemaras differently than Rashi explains them. With regard to the proof that a man can tell his daughter to go out and accept Kidushin, Tosfos here (DH Omer) explains that the Gemara is merely proving that the daughter is able to receive (and acquire) the money of the Kidushin herself, but not that she may choose the man from whom she wants to accept Kidushin. Tosfos explains the Gemara later (19b) differently as well (see TOSFOS DH Mashal).


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