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Yevamos, 113

YEVAMOS 113 (Purim in Yerushalayim) and YEVAMOS 114 - have been generously dedicated by Dick and Beverly Horowitz of Los Angeles. May they be blessed with a life of joy and much Nachas from their very special children and grandchildren.


QUESTION: The Gemara says that a Ketanah who is married to a Kohen may eat Terumah, but a Chareshes married to a Kohen may not eat Terumah. (According to some, the Gemara is discussing Terumah d'Rabanan -- see Tosfos 90a DH v'Ocheles and Gitin 55a DH v'Al Ketanah.) The Gemara explains that in the case of a Chareshes, even though there is nothing wrong with a Chareshes eating Terumah (since she is not obligated to observe the Mitzvos), the Rabanan made a Gezeirah prohibiting her from eating Terumah in order to prevent people from mistakenly assuming that in the inverse situation -- where a Cheresh Kohen is married to a Gedolah -- the Gedolah may eat Terumah (which is certainly prohibited mid'Oraisa since the Kidushin is not a true Kidushin d'Oraisa).

Why did the Rabanan not make the same Gezeirah in the case of a Ketanah married to a Kohen? There, too, if we permit the Ketanah to eat Terumah, people might mistakenly assume that when a Kohen who is a Katan marries a Gedolah, the Gedolah may eat Terumah, which is certainly prohibited!


(a) RASHI (DH Gezeirah) answers that there is no such thing as a Katan marrying a Gedolah. The Rabanan did not institute Kidushin at all for a Katan, as the Gemara says on 112b.

This opinion of Rashi's is not accepted by all Rishonim. Others seem to hold that a Katan may marry a Gedolah (and there is Kidushin d'Rabanan, despite what the Gemara on 112b says), as we shall explain.

(b) TOSFOS (DH Shema Ya'achil) argues with Rashi's answer. Tosfos earlier (62b, DH Samuch) points out that the Gemara praises a person who marries off his "children" (i.e. *sons* and daughters) immediately before they reach puberty. This clearly implies that the Rabanan *did* institute Kidushin for a Katan (see also Tosfos 96b, DH Nasa). When the Gemara says that the Rabanan did not institute Nisu'in for a Katan, it means that they did not institute Nisu'in that has the full status of marriage as far as all of the Halachos of marriage are concerned (such as the right of the husband to keep the income of the wife). However, they did institute that a Katan is permitted to marry, and is not considered to be living with an unmarried woman and involved with Z'nus.

Why, then, according to Tosfos, did the Rabanan not make a Gezeirah prohibiting a Ketanah who is married to a Kohen from eating Terumah, lest people assume that a Gedolah married to a Katan who is a Kohen may also eat Terumah?

Tosfos explains that a Katan is usually married off only close to adulthood. Since there is not much time until he reaches adulthood, at which point his Kidushin becomes a Kidushin d'Oraisa, the Rabanan did not deem it necessary to make a Gezeirah lest a Gedolah married to a Katan who is a Kohen eat Terumah in that short amount of time before he reaches adulthood.

(c) RABEINU YITZCHAK BAR'REBBI YEHUDAH, cited by the MAHARIK (Shoresh #32), writes that the father of a Katan may accept Kidushin for his Katan son, and the Kidushin is d'Oraisa, because of the principle of "Zachin l'Adam sh'Lo b'Fanav" -- a person may acquire an asset for somebody else while not in his presence. If the Kidushin of the Katan is d'Oraisa, then perhaps there is no need to make a Gezeirah prohibiting the Ketanah from eating Terumah, because when a Katan is married to a Gedolah, she may eat Terumah because the Kidushin is d'Oraisa!

It is true that when it comes to acquiring property, we find that the Gemara (Bava Metzia 72a, Kidushin 42a) says that one *may* be Mezakeh property to a Katan, and some Rishonim (see RAN in Kidushin ibid., TOSFOS Sanhedrin 68b) say that the Kinyan is even mid'Oraisa. However, we do not find that one can acquire a *wife* for a Katan through Zechiyah (or even for a Gadol, for that matter -- see Kidushin 45a and Rashi). The Acharonim deal at length with the opinion of Rabeinu Yitzchak bar'Rebbi Yehudah. The MAHARIT (Teshuvos, Even ha'Ezer 2:41) cites many proofs against this opinion, including our Gemara (112b) that says that the Rabanan did not institute Nisu'in for a Katan, implying that there certainly is no Kidushin d'Oraisa for a Katan. (See also AVNEI MILUIM 1:1 who addresses some of the Maharit's questions on this opinion.)

The Maharit concludes that even Rabeinu Yitzchak b'Rebbi Yehudah does not mean to say that a Katan could become married, as a minor, with Kidushin d'Oraisa through the father's ability to be "Zocheh she'Lo b'Fanav." Rather, he means that the father may accept the money for the Kidushin while his son is a Katan, in order for the Kidushin to take effect mid'Oraisa *when his son grows up* through the money that was accepted on his behalf when he was a Katan -- if his son expresses interest in the Kidushin at that point. (He compares this to the Gemara in Kesuvos 11a that allows Beis Din to perform Geirus for a Katan, which takes effect if he agrees to the Geirus when he grows up.) Thus, there indeed is no Kidushin d'Oraisa for a Katan.

The RASHBA (109b) writes a very similar logic regarding a Ketanah. He says that when a father accepts Kidushin for a Ketanah, as soon as she reaches adulthood, the Kidushin becomes d'Oraisa, because the money that the father accepted when she was a Ketanah was intended to be Mekadesh the daughter from the moment that she becomes a Gedolah -- if she agrees to the Kidushin at that point.


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