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Yevamos, 108

YEVAMOS 108 - generously sponsored by Mr. Morris Smith of Yerushalayim


QUESTION: The Gemara concludes that according to Rebbi Yehudah ben Beseirah (whose opinion is the Halachah), if a Ketanah is married with Kidushin d'Rabanan (even if she was Nesu'ah) and then she accepts Kidushin from another man, that serves as Mi'un and the first Kidushin is annulled. The Gemara questions whether any Tana argues with Rebbi Yehudah ben Beseirah. It cites a Beraisa to prove that the Rabanan of the Beraisa do not agree fully with Rebbi Yehudah ben Beseirah.

However, we find in the Mishnah earlier that there is a Tana who clearly disputes the ruling of Rebbi Yehudah ben Beseirah! The Mishnah (107b) states that if a relative married off the Ketanah without her knowledge or consent ("sh'Lo mi'Da'atah"), the Kidushin does not take effect and she does not have to do Mi'un.

If the Mishnah agrees with the ruling of Rebbi Yehudah ben Beseirah, then how are we to understand this Halachah? If the Ketanah's acceptance of Kidushin from another man constitutes Mi'un and the annulment of her earlier Kidushin, then it makes no difference whether the first Kidushin was done with her consent or not -- as soon as she accepts Kidushin from another man, it is considered as though she did Mi'un and the first Kidushin is annulled! What difference is there between whether she was married off with her consent or without her consent? In either case, if she wants to marry someone else, she may do so and does not need to do Mi''un!


(a) The RAMBAM (Perush ha'Mishnayos) explains the Mishnah there in the most straightforward sense. When the Ketanah's Kidushin d'Rabanan ("Kidushei Mi'un") is not valid, she is allowed to marry someone else l'Chatchilah, without Mi'un.

The YAM SHEL SHLOMO (13:9) explains that the Rambam holds that Rebbi Yehudah ben Beseirah's ruling applies only b'Di'eved -- if the Ketanah accepted Kidushin from someone else, then that annuls her previous marriage. L'Chatchilah, though, she must first do Mi'un and then afterwards she may accept Kidushin from someone else. In the case of the Mishnah earlier, when the Ketanah was married off without her consent, she may marry someone else even l'Chatchilah and she does not need to do Mi'un. (See MAHARSHA.)

(b) The Rashba cites RABEINU CHANANEL who explains that the Mishnah means that if she was married off without her consent, then when she grows up and did not have relations with her husband after she became an adult, she is allowed to leave him without a Get, and she is not considered to be married to him. When Kidushin does take effect, such as when she consents it, then when she becomes an adult she needs a Get if she wants to leave her husband, even though she did not have relations with him when she was an adult.

However, it seems that this point depends on a Machlokes Amora'im later (109b). The Amora'im argue whether Kidushei Mi'un automatically turns into Kidushin d'Oraisa when the girl becomes an adult. Consequently, according to the opinion that it remains a Kidushin d'Rabanan, there should still be no difference between being married with Kidushin d'Rabanan with her consent and being married without her consent; in both cases, she should not need Mi'un, because accepting Kidushin from the second man annuls the first Kidushin.

(c) The RASHBA himself argues and says that even Kidushei Mi'un that was done without her consent also requires Mi'un if she wants to marry someone else. She has the same status as Rebbi Eliezer (in the Seifa of the Mishnah) gives to every Ketanah who is married with Kidushei Mi'un; even though Rebbi Eliezer calls her a "Mefutah," he agrees that she needs Mi'un if she wants to leave him.

When the Mishnah says that it does not need Mi'un, it only means that the woman is considered a Penuyah (and not married) as far as the husband is concerned, such as with regard to his right to inherit her, keep the things that she finds, become Tamei for her and give her Terumah d'Rabanan to eat (if he is a Kohen).


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