Siman 155

It is a known matter that a minor girl is under the authority of the father, and when he receives her kiddushin, they are kiddushin of the Torah, as it is written: "I gave my daughter to this man." When she has no father, she has no kiddushin until she reaches adulthood; however, the sages enacted marriage for a minor so that people should not treat her with abandon in licentiousness; it is better that she should have a husband and be protected (Yevamot 112b). Therefore, even though the sages were particular regarding a father that he should not betroth his minor daughter ab initio until she reaches adulthood and says, "I want so-and-so" (Kiddushin 42a), nevertheless, regarding an orphan who has no father and no one to protect her, it is better to betroth her as has been written. Furthermore, it is not similar to kiddushin of the Torah which requires a get, and perhaps she will despise him and he will not want to divorce her; this is not the case with kiddushin of the rabbinic sages, which does not require a get and she can leave through mian, as will be explained. The sages were not concerned about this, for in any event, if she despises him, she will perform mian and leave (according to the law of the kingdom, one may not marry off a minor girl).

And sometimes, even if she has a father, she has the legal status of an orphan, such as a ketannah whose father married her off and she was widowed or divorced during her father's lifetime while in her minority; the father no longer has authority over her, and she is called an "orphan during the father's lifetime." For just as reaching maturity removes her from the father's authority, so too does marriage. And so we learned in the Mishnah (Ketubot 43b): Once he has married her off, her father has no authority over her. She has the ability to be betrothed and married through rabbinic marriage and may leave through mi'un. And one should not ask, according to the first reason in the previous section, why the sages instituted marriage for her, given that she has a father who would protect her; for it can be said that since she left his authority, he no longer protects her. Furthermore, since it was necessary to institute marriage for orphans, she is necessarily included as well, since her legal status is like an orphan. And according to the second reason we explained, the matter is simple.

And through whom may the minor be married? It appears from the words of the Shas and the Rishonim that this is specifically when she is married through her mother or her brothers, or through a beit din who saw her benefit and protection in this; but if she married through herself, it is nothing, and she does not even require miun, and it is nothing but mere seduction, and the seduction of a minor is considered rape (Beit Shmuel, subsection 5). However, from the wording of the Rambam, chapter 4 of Ishut, law 7, it is explained that even when she married by herself, it is a marriage and she requires miun. And more will be explained regarding this with the help of Heaven. And in the Yerushalmi Yevamot (chapter 13, halacha 2), it is explicitly implied like the Rambam, as it is stated there: A story occurred with Rabbi Eliezer, who had a minor niece, and he said to her, "Go and be married," and she said to him, "Behold, I am a handmaid to wash the feet of the servants of my lord," and he took her in; see there. Behold, she married by her own accord alone. And even though in the Mishnah there (107b) we learned: "Who is the minor who requires to perform miun? Any whom her mother and her brothers married off with her consent; if they married her off without her consent, she does not require to perform miun," see there—the intention is not that without her mother and brothers she does not require miun, but rather it comes to teach us a novel point: that even if her mother and brothers married her off, she does not require miun if it was without her consent. And in section 9, more will be explained regarding this with the help of Heaven.

And specifically when they married her off with her consent, but without her consent it is nothing, as has been written. And it is found in the Yerushalmi there that it is called "with her consent" when they made for her garments and jewelry and mentioned a husband to her; but if they did not mention a husband to her, it is nothing and is considered "without her consent." And there is a doubt if they mentioned a husband to her but did not make for her garments and jewelry, whether this is "with her consent" or not. And it appears that it is "with her consent," and that which it mentions garments and jewelry is the common way of the matter, for without this she would presumably not have agreed; but when she has agreed, we do not care. And so it is implied from the plain language of the poskim.

In the Shas it is explained that both a betrothed woman and a married woman require miun. And some say that a betrothed woman does not require miun except when she herself received the kiddushin, but if her mother and brothers received the kiddushin, she does not require miun, for there is no agency for a minor (Nimukei Yosef, Yevamot chapter 13, in the name of the Ramban). And some disagree regarding this (Yam Shel Shlomo, ibid.), and so it is implied from the wording of the Rambam and the Tur. And according to this, in the case of an orphan during the lifetime of the father that we have written, if the father received the kiddushin with her consent, she also requires miun, for the father is no worse than her mother and brothers (Beit Shmuel, subsection 1). And even though there is no agency for a minor, nevertheless, just as the rabbis instituted for her marriage and kiddushin, so too they instituted for her agency.

And until when may she perform me'un? Until she grows up, as will be explained. And from when may she perform me'un? The sages taught in the Mishnah (107b): Any ketanah who does not know how to guard her kiddushin does not need to perform me'un. And the halacha was so decided in the Gemara ibid. And what is this measure? The Rambam, of blessed memory, wrote in the fourth chapter of Ishut, law 8, that this is from age six until ten; for then we examine and discern her understanding—if she recognizes and discerns the matters of marriage and kiddushin, she must perform me'un, and if not, she does not need me'un. And at more than ten, even if she is extremely foolish, she must perform me'un; and less than six, even if she is extremely clever, she does not need me'un, see there. And he holds that the measure of the Mishnah is only from six until ten, neither less nor more. And even though the plain meaning of the Mishnah appears to indicate that there is no set measure for the matter in her years, nevertheless, since in Gittin (65a) it is stated that the measure of a ketanah for me'un is like the measure of toddlers whose purchase is a purchase and whose sale is a sale regarding movable property, and regarding the measure of toddlers they said there (59a) that this is from six until ten, therefore he explained that the statement of the Mishnah is also according to this measure.

And there is a question regarding this: did not the Rambam himself rule in the twenty-ninth chapter of Laws of Sale regarding the buying and selling of a minor with respect to movable property that he requires examination from the age of six until he reaches majority, even beyond ten years? And what is the difference here, that beyond ten she requires miun in any case? (Lechem Mishneh). And the answer to this is that certainly the levels of understanding are not similar to one another; for regarding miun she only needs to understand the matter of kiddushin, but regarding buying and selling, the understanding is to know the ways of commerce. And in Gittin there they did not say that after ten one does not require examination, but rather they said there that there are types of minors who have commercial sensibilities from the age of six, and there are those who have no sensibility until ten, and from then on there are those whose sensibility is slight and it is impossible to rely on their buying and selling, and there are those whose sensibility is proper and it is possible to rely on them. And since from ten years old everyone has some sensibility in commerce, it follows that regarding kiddushin and marriage, that sensibility is sufficient regarding the matter of miun. And in truth, there are some of the poskim who hold even there that after ten one does not require examination, as the Tur wrote in Choshen Mishpat siman 235 in the name of the Ramah; see there.

But the Tur in siman 43 has another opinion regarding this, that even if she is less than six years old, if they give her a nut and she takes it, or a pebble and she throws it away, she requires miun; for when she has reached this measure, she knows how to guard her kiddushin. And such is the opinion of Rashi, the Tosafot, and the Rosh there in Gittin according to their version there. And they hold that she does not need to guard the kiddushin except like the guarding of a nut or a date and the like. But the Rambam holds that the guarding is not like the guarding of a nut or a date, but rather like the guarding of kiddushin, that she should know that they are kiddushin. And I wonder at our teachers, the authors of the Shulchan Aruch, who brought only the opinion of the Rambam, of blessed memory, while above in siman 141 they brought the opinion of the Tur. Therefore, it appears that they relied on what was written there. And know that whenever she does not require miun, she goes to her mother's house as if she were never betrothed at all, and she does not need to say anything. And similarly, know that what the Rambam wrote, that from ten years old even if she is extremely foolish she requires miun, the intention is not that she is like an imbecile, for an imbecile, even an adult, they did not institute marriage and kiddushin for her; rather, the intention is that she is not sharp in intellect.

Our teacher, the Rema, wrote in section 2 that there are those who say that all this is when she was married with the knowledge of her brothers and mother, but if she was married without their knowledge, she does not need to perform mian; and there are those who say that if she reached the age of peotot, she needs to perform mian. Thus far his words. The explanation of the matters is that we have already written in section 3 that from the wording of the Shas in the Mishnah in Yevamot and from the wording of the poskim, it is implied that when she was betrothed by herself without the knowledge of her brothers or mother, it is nothing and does not require mian, and this is the view of the first opinion. And there we explained that from the wording of the Rambam it is explicitly implied that she does not need the knowledge of her mother and brothers, and so it is explicitly implied in the Yerushalmi. For this reason, the second opinion holds that both are true: that in the measure of the Mishnah in Yevamot regarding one who knows how to guard her betrothal, which is before the time of peotot—where she guards the betrothal like the guarding of a nut or a date and she is very young—in this, the knowledge of her mother and brothers is required. But in the measure of peotot, which is the measure of the Rambam, she needs to perform mian even without their knowledge (and the measure of Gittin is not the measure of the Mishnah in Yevamot).

What is miun? Any time she says, "I do not want so-and-so my husband," or "I do not want the kiddushin that my mother and brothers performed for me," and she says this before two people, it is sufficient, and she leaves without a get. Furthermore, even if she is sitting in a palanquin and they are carrying her to the chuppah to her husband's house, and she says, "I do not want him, my husband," it is miun, even though she does not go back to her mother's house (as is evident from Rashi 108a). Furthermore, even if she is in her husband's house after the nisuin, and guests come to the husband and she is standing and serving them drinks and says before them, "I do not want so-and-so my husband," this is miun (Gemara). Even though the guests are neither a beit din nor witnesses and will not announce this (Rashi), and she is also still in his house, she leaves him without a get. Furthermore, even if her husband sent her to bring something from the shopkeeper and she said there before two people, "I do not want my husband," it is miun, even though one could say that she says this because of the anger that he troubled her. Furthermore, even if she did not say explicitly, "I do not want him," but rather she rebelled against her husband and the husband followed after her, and they said to her, "See that your husband is following," and she says, "Let the husband be yours," this is also miun. And so too, even if she said nothing but left her husband and accepted kiddushin from another while she was a minor, these are her miunim, even if she was married to him (Gemara). However, by merely leaving her husband without saying, "I do not want him," and without accepting kiddushin from another, this is not miun.

And there is reason to doubt if, after the miun, she remained in his house and he had relations with her, whether the miun is nullified or not. And it appears that it is not nullified, for since she performed miun, she is merely like one who was seduced, and the seduction of a minor is considered rape. And even according to the Rambam, who does not hold that the seduction of a minor is considered rape, nevertheless, there is also no kiddushin here, but rather it is merely like zenut. And certainly it is forbidden to have relations with her after her miun, for before the miun it is not like zenut since he married her through the enactment of the sages, but after the miun it is like mere zenut.

A woman may refuse whether from erusin or from nisuin. And before how many does she refuse? Even though we learned at the beginning of Sanhedrin that refusals are before three, nevertheless we hold in Yevamot (107b) that two are sufficient. That is to say, the essence of the miun is sufficient even with one, but there must be two witnesses who testify to the miun (Beit Shmuel, subsection 8). And she may refuse even not in the presence of the husband and not in the presence of a beit din. There is one who says that this is post facto, but ab initio we require three like the Mishnah there (Tosafot in the name of Rabbeinu Chananel). And if she married another or was betrothed in her childhood in public, three are not required; however, if it was in private, three are required ab initio (Beit Shmuel, subsection 9). For the reason that three are required ab initio is not so that there will be a beit din, but rather so that there will be publicity, and publicity is only in the presence of three, as is proven in the Gemara regarding a protest (Bava Batra 39b). And know that the Sefer Mitzvot Gadol in the laws of miun cited in the name of the Halakhot Gedolot that it must specifically be before three, but before us in the Halakhot Gedolot the version is not so in the laws of miun, see there. However, at the end of the laws of Gittin in the Halakhot Gedolot, it appears like the version of the Sefer Mitzvot Gadol, for he wrote there regarding a deed of miun: "how so-and-so came before us to the beit din," see there. And the poskim did not cite his opinion at all, and it requires further study.

If she refused the husband and married another, she may refuse him as well, and similarly a third and a fourth as long as she is a ketannah. Similarly, if her husband died and she remained bound to a yavam, she may also refuse, and the bond of the yevamin is removed from her, for she refuses her first marriage and uproots it. Nevertheless, in one matter it is not similar to a standard refusal, for one who refuses her husband is permitted even to his father, but when she refused the yavam, even though she uproots her first marriage, she is nevertheless forbidden to his father. The reason is that at the time she fell for yibbum, she appeared as his daughter-in-law because she did not refuse during the husband's lifetime. Similarly, regarding the rival of a forbidden relative, she performs chalitzah and does not undergo yibbum, as will be explained in siman 173, because at the time of falling, the rival appears as the rival of a forbidden relative, as is written there. And specifically to the father of the yavam she is forbidden, but to the rest of the deceased's relatives who are a forbidden relation to her, she is permitted, for since it is only because of the appearance of the eye, this is only relevant regarding the father, where she appears as his daughter-in-law, and not regarding other relatives. And there are those who forbid even regarding his other relatives. And even according to this opinion, she is only forbidden to the relatives of the deceased, and not to the relatives of the yavam whom she refused. And even to the other brothers she is permitted when she refused the yavam, for she only refused this one and not the other brothers. And it appears that this is only when she said, "I do not want this yavam," for even though she automatically uproots the first marriage, nevertheless one can say that she uproots it regarding him and not regarding the other brothers. But when she said, "I do not want my deceased husband," she is forbidden to all the brothers according to the opinion of those who forbid (it appears to me), for even with this language she can refuse (see Rashi, Yevamot 13a, s.v. "ve-tema'en").

Those two before whom she refuses must know clearly that she is still a minor, and they write for her a get of miun, sign it, and give it to her. It is not an obligation to give it to her, but rather so that she will have proof that she refused, for it is not like a get of divorce where the writing and the giving are indispensable. Therefore, it does not require writing for her sake, and it is not necessary to deliver it into her hand at all, nor does it require any of the laws of a get. One does not write it in the form of a get so that it should not appear like a complete get and lead to confusion with a get (Tur). It is nothing more than a standard act of beit din and merely a document of proof, and this is its text:

On such and such a day of the week, on such and such a day of such and such a month, in the year such and such from the creation of the world, so-and-so daughter of so-and-so performed mi'un before us and said: My mother or my brothers misled me and betrothed me (and if she is married they write: and married me off) (and according to the poskim that even if she betrothed herself she requires mi'un, they write: I misled myself and was betrothed or married) to so-and-so son of so-and-so, and I am a minor, and now I have revealed my intention before you that I do not desire him and I will not remain with him. And now so-and-so was examined and it was clarified to us that she is still a minor, and we have written and signed and given this to her as a merit and as proof in her hand. Signed so-and-so and signed so-and-so. And it is good that he should verify the signatures in a beit din, for perhaps they will not recognize the signatures of the witnesses, and when they know that she was married or betrothed to so-and-so, they will not give her permission to marry.

And those before whom she performs meun must recognize her and her husband so that there should not be any deception in the matter, and if not, they should not attend to the meun. Since this is the case, therefore all those who witness the meun may write for her a get meun even though they do not recognize her, because certainly those before whom she performed meun recognized her. And this is specifically ab initio, but ex post facto, even if they do not recognize the husband but only recognize the woman, it is sufficient, for even if this is not her husband, she is able to perform meun not in his presence as I have written. And the primary concern is regarding the recognition of the woman, for perhaps she is another woman and they incited her to say that her name is such (Rashba). And even though there is still reason to fear that perhaps there is truly a minor whose name is the same as this one's name, and she will say that her husband's name is the same as this one's husband's name because some deceiver will entice her to say so, and after she says that she performs meun and receives the shetar meun the deceiver will take the shetar from her and deliver it to the other woman—nevertheless, it is a slight concern and is not so common (and see Beit Yosef and Beit Shmuel subsection 10, and examine carefully):

Our teacher, the Beit Yosef, raised a difficulty in his book Bedek HaBayit: how can other people write a deed of miun based on the premise that those before whom she performed miun recognize her? For it has already been explained that miun is effective even before guests who certainly do not recognize her. Furthermore, is everyone learned in the law to the extent that they would not perform miun before them unless they recognize her? For miun occurs without preparation, as the minor comes and performs miun. And it appears to me that it is certainly so: if the people seeing the miun saw that the miun was done without preparation, it is obvious that they do not write unless they recognize her. And that which the sages, of blessed memory, said (106a) that they write even though they do not recognize her, refers to when the miun was done with preparation, and it is obvious that it was done by expert men who are proficient in the laws of miun. And so it is explicitly implied in the Gemara there, that it refers to it being done by a beit din, see there (and with this, the difficulty of the Beit Shmuel at the end of subsection 11 is also answered, see there and examine it closely):

The sages taught in the Mishnah: One who performs miun against a man, he is permitted to her relatives and she is permitted to his relatives, and she is not disqualified from the priesthood (Yevamot 108a), because it is as if there were never kiddushin at all. However, if he released her with a get, even though the get is only rabbinic, nevertheless he is forbidden to her relatives and she is forbidden to his relatives, and it disqualifies her from the priesthood. And if she married a kohen, it is a matter of doubt whether the children are chalalim by rabbinic law or not. For even though it implies that by rabbinic law they are chalalim, like chalitzah whose prohibition is also rabbinic—and it was explained in siman 7 that she and her children are chalalim by rabbinic law—nevertheless, one could say it is not comparable to chalitzah, which they supported with a verse, whereas the get of a minor is essentially rabbinic and her law is like the secondary degrees of forbidden relations, where it was explained there that the children are not chalalim, see there. And the law requires further study. Similarly, one who performs miun does not need to wait three months after the miun, but one who leaves with a get must wait; and even though a minor cannot conceive, the sages did not differentiate, as was written in siman 13. Similarly, one who performs miun has no ketubah, but one who leaves with a get has a ketubah like all women.

When she performed miun against her husband and married another, and performed miun against him as well, she is permitted to return to the first. But if she left the first with a get, she is forbidden to return to him. And the reason is that there is a concern, since he sent her out with a get, that perhaps after she marries another he will appease her until she performs miun against the second. But when she left through miun, we do not concern ourselves with this, for presumably he already appeased her while she was with him and she was not appeased (Gemara). Therefore, whenever she left the first with a get, even if she left the second through miun, she is forbidden to return to the first; and all the more so if she left the second with a get or he died, for this is explicitly like one who takes back his divorcee after she married another. But when she left the first through miun, even if she left the second with a get or he died, she is permitted to return to the first. And it is a great principle that whenever she is forbidden to return to the first, she is also forbidden to his relatives, such as his father and his brother. And even though regarding them there is no concern of the appeasement that we wrote, nevertheless, we decree concerning them on account of him, for if not for this, that would not stand. And whenever she is permitted to return to him, it is obvious that she is permitted to his relatives, since the kiddushin were nullified from the outset and it is as if she were never betrothed at all.

And the sages further said (ibid.) that even if she left him with a get, if he afterwards returned and married her and she left him through miun, the miun nullifies the previous get; and when she marries another and performs miun or is divorced, she is permitted to return to the first. And similarly the reverse: if the first time she left through miun and the second time through a get, the get nullifies the miun. And so too when she married several men and left them several times through a get and through miun, the one she left through a get last, she is forbidden to return to him, and the one she left through miun last, she is permitted to return to him. And such is the law regarding the kehunah, as I wrote above in siman 6; and see there that the opinion of the Tur is that regarding kehunah, even the miun of another nullifies his own get.

A woman who performs me'un has no ketubah, but she does have the tosefet, for the ketubah is a rabbinic enactment and they did not enact it for when she leaves of her own will via me'un. However, the tosefet he gave to her because of his affection for her, and behold, he knew that she was able to leave through me'un. While she is under him, he is obligated to provide her sustenance and to ransom her, and he consumes her fruit. But if he went to a province overseas and she borrowed and consumed or ransomed herself and stood and performed me'un, he is not obligated to pay even though he consumed her fruit. Not only this, but even if the fruit is still in existence, such that he gathered it and brought it into his domain and has not yet consumed it, he is not obligated to return it, for such was the enactment. Regarding her properties of tzon barzel and of melog, if they are in existence she takes them, and if they were lost, for tzon barzel he pays and for melog he does not need to pay. Thus ruled our teacher, the Beit Yosef, in section 10. His words are astonishing, for in Ketubot (101a) it is stated explicitly that when they are lost he does not need to pay, and so ruled the Rambam in chapter 24 of Ishut. The reason is that perhaps if she had not performed me'un she would have died first and he would have inherited her. If they were lost through his negligence, some say that he is also exempt (Tosafot), and some say that regarding melog, if he spent it unlawfully he is obligated to pay (Ran ibid.). The great later authorities have already challenged him (Beit Shmuel subsection 13 and the Gra subsection 28, and in the Tur there is a scribal error).

Until when may a daughter perform me'un? Until she grows up and becomes twelve years and one day old and afterwards brings two hairs. And if she brought hairs prior to this, they are nothing and are merely a mole. And even if she brought the hairs during the twelfth year—where regarding vows her law is then like an adult if she knows in whose name she vowed, as is written in Yoreh Deah siman 233, and it is called in the language of the Shas (Niddah 45b) "within the time," meaning within the time in which she becomes an adult at the completion of the year—the halacha was decided in the Gemara (ibid. 46a) that regarding two hairs, within the time is like before the time, and they are nothing but a mole, and she must bring others after twelve years. It is further stated in the Gemara (ibid.): Rava said, a minor who has reached her years does not require examination; there is a presumption that she brought signs. And the Shas explains that this presumption is specifically for me'un and not for chalitzah; meaning, this presumption is only for stringency and not for leniency. Therefore, she may not perform me'un once she has reached twelve years and one day, even though we do not know that she brought signs. However, for chalitzah, where we require her to be an adult, she may not perform chalitzah unless we know clearly that she brought signs, and we do not rely on this presumption; and it will be explained in siman 169.

And that which we said, that hairs within the time period are nothing, is specifically when it is known that they were within the time period, as the Rambam wrote in the second chapter of Ishut, law 19. This is his wording: In what case does this apply? When they were examined within the time period and it was known that they were a mole; but if they were not examined until after the time period and two hairs were found there, they are under the presumption of being signs, and we do not say perhaps they grew before the time period so that they would be a mole. Thus far his words. And even for a leniency, such as for chalitzah, we follow this. And it is not similar to when we did not see signs at all, where we do not say it is a presumption that she brought signs, as I have written; for there we do not see that she is an adult, as adulthood is only through two things: years and signs. And since we do not see signs, we do not remove her from the presumption of her minority except for a stringency and not for a leniency. But when we see signs, she is an adult before us, and why should we concern ourselves that she had these signs during her minority?

It is further stated there in the Gemara (48b) that all minors who are examined are examined based on the testimony of women, and they said there that Rabbi Eliezer entrusted the examination to his wife and Rabbi Ishmael entrusted it to his mother. This is the wording of the Rambam there: When they examine a daughter, whether within the period, which is the entire twelfth year, or before this time, or after the time, they examine based on the testimony of kosher and faithful women; and even one woman may examine and we listen to her, whether she brought [signs] or did not bring [signs]. Thus far his words. It is clear from his words that women are believed whether to be stringent or to be lenient. And in truth, there is no reliance upon them here for leniency, for before the time, even if they say they found hairs, they are nothing, as I wrote; and after the time, when they say they found them, we indeed have the chazaka of Rava. And so wrote the Rif in Yevamot at the end of chapter 13, and this is his wording: Therefore, all who are examined are examined based on the testimony of women; it is a halacha, whether for chalitza or for mi'un, for we rely on the chazaka of Rava. Thus far his words. And so wrote the Rosh in Niddah there, and it is also clear from the wording of the Tur and the Shulchan Aruch, section 15, see there. (And even though it is stated in Niddah there that she is believed to be stringent and not to be lenient, this is according to Rabbi Yehuda and Rabbi Shimon and regarding "within the period," see there; but for us, we indeed hold that "within the time" is like "before the time," and they hold that "within the time" and "within the period" are the same thing, see there).

And even though sometimes a leniency will emerge from their examination, such as if they examined within the time and said they found two hairs, and afterward they examined after the time and also said that they did not find more than these two hairs, and it turns out that we maintain her status as a minor and she may perform mi'un—for it can be said that there is still no concern of a Torah prohibition here. For whichever way you look at it: if he had relations with her after she grew up, she may not perform mi'un, as will be explained before us, for we concern ourselves that perhaps the signs fell off; and if he did not have relations with her after she grew up, there is still no Torah sanctification here. And even if we say that there is a doubt of Torah sanctification even without having had relations after she grew up (see Beit Shmuel, subsection 32), this is all when she was established as a certain adult, but here she has not yet been established. (And the objection of the Ramakh brought by the Kesef Mishneh in Halakhah 20 is not understood at all, and the Lechem Mishneh already objected to him; however, even that which the Lechem Mishneh labored over in the words of the Rambam I do not know, and the explanation of his words is like the words of the Rif as I have written, and look closely into it).

However, there is a position of the Rishonim that on the final day of the twelfth year for a female and the thirteenth year for a male, there is a dispute in the Gemara whether it is considered as after the time or as before the time, and we hold that it is considered as after the time (and this is "within the period" according to the position of Rabbeinu Tam in Tosafot and the Rosh there, and the halakha follows Ri). In this matter, we hold that the woman is believed to be stringent but not to be lenient; that is to say, she is believed to say that she produced hairs so that she may not perform mi'un, or that she did not produce them so that she may not perform chalitzah, but she is not believed to say she produced them so that she may perform chalitzah, or that she did not produce them so that she may perform mi'un. This is the "there are those who say" that our teacher, the Rema, wrote in section 14, and his intention is if this was clarified by men, and he is not dealing there with the matter of the credibility of women. Furthermore, in section 15, where he deals with the examination by women, he did not mention this because regardless of this, there is no practical difference in their credibility, for according to the position of the Rif and the Rambam and several of the Rishonim, the hairs are of no effect at all on this day, and regardless of this, it is considered as before the time (for they interpret that "within the period" is within the time, and the Rema only cited these "there are those who say" to be concerned for stringency according to the opinion of Rabbeinu Tam; and one must further study the Beit Shmuel, subsection 20, who raised a difficulty against the Tur and the Rema, and it is clear as I have written, and examine it well).

Our teacher, the Beit Yosef, wrote in section 14 that there are those who say that if hairs appeared on her before twelve years and they are still upon her after twelve years, even though she did not produce other hairs after twelve years, she is considered an adult regarding mian; nevertheless, she is considered a minor regarding chalitzah. Thus far his words. Certainly regarding the examination by women, there are some of our teachers who hold this way (Rashi and Tosafot 48b, s.v. "Bishlama") and not like the opinion of the Rambam that we explained in section 25. For these teachers of ours hold that whenever there is a leniency resulting from their examination, they are not believed. However, regarding the examination by men, there is no reason to say this, and so wrote the Acharonim (Beit Shmuel subsection 21 and the Gra subsection 56). Our teacher, the Beit Yosef, is also of this opinion, and he relied on what he wrote afterward that the examination is performed by women, and he did not need to explain that regarding the examination by men it is not so, because it is not the way of men to examine and it is unseemly. Furthermore, in terms of the law, there is no practical difference in this at all, because he wrote at the end of this siman that nowadays one must be stringent that she may not perform mian after twelve years even if no hairs were found on her at all, see there, and all the more so when she had hairs from before that time. It is clear that this was his intention, and the great Acharonim wondered about him in vain.

Our teacher, the Rema, wrote (ibid.): If there is a doubt whether she has reached twelve years or not, we follow the stringent view. Thus far his words. And it is obvious, for this is a doubt regarding a Torah law. And even when there is a double doubt, such as when there is also a doubt whether the signs fell off or not—which is a double doubt: a doubt if she reached her years, and if you say she reached them, perhaps there were no signs—nevertheless, the Rashba in a responsum (cited in the Orhot Hayyim) is inclined to be stringent. He did not explain the reason, but it seems simple from his perspective that this is a double doubt of a single category, for it is one doubt: a doubt whether she is a minor or an adult (Beit Shmuel, subsection 22). Nevertheless, it appears that this is specifically when there is a concern of a Torah law, such as if he had relations with her from the time of the doubt, or even if he did not have relations with her but the kiddushin took place at the time of the doubt. But without this, even if she is now an adult, there are no Torah kiddushin here, unless we say that even when she becomes an adult and he did not have relations with her, it becomes a Torah kiddushin; however, from the words of our teacher, the Beit Yosef, in section 21, it does not imply so. This will be further explained, with the help of Heaven, in section 32; see there.

And that which has been explained, that she can perform mi'un after twelve years when men examined her and two hairs were not found on her—in what case are these words said? When he did not have relations with her after she grew up, for then, even if we suspect perhaps the hairs fell out, there is no Torah betrothal here. But if he had relations with her after she grew up—for then, if she had hairs and they fell out, she is a married woman by Torah law, since with the relations he had with her after she grew up they intend for the sake of betrothal and do not rely on the first betrothal which was only a rabbinic betrothal—she cannot perform mi'un even if they examined thoroughly and did not find signs on her, for we suspect perhaps the signs fell out.

If another man betrothed her after he [the first] had relations with her in her adulthood and she had two hairs then, she does not require a get from the second. And it appears that even if only women examined her and said she has hairs, she does not require a get from the second, since she also has the chazakah of Rava. And if it is not known for certain if she had hairs, out of doubt she requires a get from the second. And if she performed mi'un against him after she grew up and had relations and was examined and did not have hairs, and she was betrothed to another, she requires a get from both of them and is forbidden to return to the first, so that they should not say he took her back after she was married to another after being divorced. And if she married the other, she must leave this one and that one, and the offspring is a safek mamzer from both of them; for from the second he is a mamzer because perhaps she was an adult while with the first, and from the first he is also a mamzer because perhaps she became an adult while under the second. And if at the time he had relations with her in her adulthood he said explicitly that he is having relations based on the first betrothal, it is as if he did not have relations (Beit Shmuel, subsection 31), and there are those who hesitate regarding this (see Maggid Mishneh and Kesef Mishneh chapter 4 of Ishut, halakhah 7, and the responsa of the Radakh, house 24, and also from the wording of the Rambam there it does not imply so, and so it implies from Yevamot 109b; see there and examine carefully).

The Tur and the Shulchan Aruch wrote in section 21: If she brought two hairs after twelve years and he did not cohabit afterward, it is a case of doubtful kiddushin, and if he wishes to send her away, she requires a get by rabbinic decree. And if he did not divorce her and she went and became betrothed to another, she requires a get from both of them. And if they wish, the first divorces and the second marries. But if the second divorced, the first may not maintain the marriage, lest they say he took back his divorcee after she was betrothed. And if the second cohabited with her before the first divorced, she must leave this one and that one, and the offspring from the second is not a mamzer. And if the first cohabited with her before the divorce of the second, the offspring is a mamzer. Thus far the words of the Shulchan Aruch (see Beit Shmuel subsection 32 who wondered at the Bach, and there is no wonder here, for this is the opinion of the Rif, and delve into this).

It is clear from their words that as long as he did not have relations with her after she grew up, there is no concern of Torah kiddushin. This is also implied in Niddah (46a), that specifically when he had relations after a period of time there is a doubt of a Torah prohibition, but when he did not have relations there is no doubt of a Torah prohibition; see there. However, in Yevamot (109b) there is an inquiry in the Gemara whether the kiddushin of a minor girl are suspended until she grows up, and the kiddushin grow with her and are completed even though he did not have relations; see there. The Rif wrote there that the inquiry was not resolved. However, from the words of the Rif himself there, it is clear that the inquiry was only regarding rabbinic kiddushin; see there. Yet from the Shas it is explicitly proven that the doubt is regarding Torah kiddushin, and the Baal HaMaor, of blessed memory, already wondered at the words of the Rif. In Sefer HaZechut, the Ramban, of blessed memory, wrote at length to uphold the words of the Rif, of blessed memory; see there. It is clear there from his words that there are some of the Geonim who held this to be a Torah prohibition; see there and it requires further study (and perhaps because this entire sugya is according to Rabban Gamaliel, and we rule like Rabbi Eliezer that we instruct the minor girl to perform mi'un against him, as is found in the first chapter of Niddah 8a; see there and examine carefully).

The Tur wrote: Even if he did not have relations after she grew up and was betrothed, such that she requires a get from the second and is forbidden to return to the first; if another seized her by way of force and betrothed her through relations, she does not require a get from the second and is permitted to return to the first. Thus far his words. And it is true that it is so in the Gemara there (110a), and they said there that the sages penalized him because he acted improperly, they expropriated the betrothal from him. And it is not only if he betrothed with money, but even if he betrothed through relations, they rendered his relations as relations of zenut. And that which the Tur wrote, "and betrothed her through relations," he says this as a greater novelty: even if he betrothed through relations, and all the more so with money. However, the Rif, the Rambam, and the Rosh omitted this, and perhaps they hold that only the sages of the Shas had this power (see the Beit Yosef who wrote that they do not hold like this interpretation, and it requires further study, see there and examine it closely).

And regarding that which has been explained, that if the first came upon her before the divorce of the second the offspring is a mamzer, the Tur wrote in the name of the Ra'avad, of blessed memory, that even if the second came upon her before the divorce of the first, she is permitted, because there is no severe prohibition in this, and we do not decree regarding her because of the case of a woman whose husband went to the provinces of the sea, for there is neither a prohibition of ervah nor a negative prohibition from the Torah here. And so wrote the Rosh, of blessed memory, and added to say that even though the sages taught regarding rabbinic disqualifications as well that she must leave this one and that one, this applies to the formula that the sages established for gittin, and they were stringent for anyone who deviates from their formula; but regarding a general prohibition where the sages have no established enactment in this matter, we cannot decree decrees of our own accord.

Our Sages, of blessed memory, said (Niddah 52a) that the two hairs must have follicles at their base, as this is a sign that the hairs draw nourishment from the body, but without follicles it is nothing. However, a follicle is not required for every hair, for even if two hairs draw nourishment from one follicle it is sufficient. And even though on the head it is impossible for two hairs to draw nourishment from one follicle, on the body it is possible (ibid.), for on the head the Holy One, Blessed be He, created only one hair for every follicle, for if two were to draw nourishment from one follicle his eyes would become blind, but on the body we have no concern for this (ibid.). Furthermore, our Sages, of blessed memory, said that even follicles without hairs are a sign of majority, and why did the Sages say "two hairs" everywhere? Because one follicle is sufficient, as has been written (ibid.).

And know that from the words of Rashi, of blessed memory, (Beitzah 28b, s.v. "shipud") it is explicitly explained that this matter of follicles is a sign, not because follicles are effective without hairs, but because it is impossible for there to be a follicle without a hair, and certainly hairs were there and fell out; see there. And according to this, if there is a hair in the follicle and it is not as long as the measure that will be explained, it is not a sign, for regarding a partial hair it appears that it is not relevant to say that it fell out. And like the words of Rashi, of blessed memory, it is also explained in the Rambam and Shulchan Aruch, section 16; see there (and see Noda BiYehudah, siman 93, and I do not know why he exerted himself in this).

What is the measure of the length of the two hairs? The sages taught in the Mishnah there: Rabbi Ishmael says, enough to bend their head to their root; Rabbi Eliezer says, enough to be nipped by a fingernail, meaning to grasp a little; Rabbi Akiva says, enough to be removed by a pair of scissors. And they ruled in the Gemara: the halakha is according to the words of all of them to be stringent, and she does not perform mi'un until they can be nipped by a fingernail, and she does not perform chalitzah until they are enough to bend their head to their root (Ran, end of chapter 13 of Yevamot). And the Rambam holds that to be removed by scissors is the smallest measure. And in siman 169 in the explanation of the order of chalitzah, it will be explained that we require the length to be like the width of a finger, and this is not by the letter of the law, but rather because in all the measures one must know the years, and if there is a pit and it is the width of a finger, nothing else is needed (Beit Shmuel, subsection 28).

And in which location the two hairs must be is also a matter of dispute in the Gemara there, and the Rambam, of blessed memory, ruled that they must be in the place of the pubic area, and the entire pubic area is a location for signs, whether above, whether below, or whether on the reproductive organs themselves, and they must be in one place. Thus far his words. Meaning, both of them above, or both of them below, or both of them on the reproductive organs. And know that our teacher, the Beit Yosef, wondered from where he derived this, and therefore omitted this in section 17. However, it is not so, for so the Rambam explained that which was stated in the Gemara "both of them in one place"—the intention is the place of the pubic area. And so it is implied from the Rif, and so wrote the great Acharonim (the Gra, subsection 62).

But there are some of our teachers who hold that one should be stringent regarding the matter of mi'un like the one who holds in the Gemara there that even one on her back and one on her stomach—and literally the back and literally the stomach even far from the place of the ervah—and likewise even one on the joints of her fingers and one on the joints of her toes, as the Tur wrote, see there. And regarding the matter of halizah, she should not perform halizah until both of them are in one place literally and in the place of the ervah, like the opinion of the Rambam. And the Rosh wrote similarly, that one should be stringent according to all the opinions, and because this examination is difficult to examine over the entire body, and also perhaps there are pits.

Therefore, the Tur and the Shulchan Aruch wrote in section 22 that in this time, she does not perform mi'un after she has reached twelve years, even if he did not have relations, and even if we saw that she has neither hairs nor follicles, because we are not experts in discerning that there are no follicles. And who can examine the entire body and ascertain the truth of this matter? And even though if he did not have relations it is only a rabbinic doubt, nevertheless, a doubt of a lack of knowledge does not enter into the category of doubt. And even though a lack of knowledge for the entire world is considered a doubt, as is written in Yoreh Deah in the rules of sfeik sfeika, siman 110, however, here in truth this is not a lack of knowledge for the entire world, but it is impossible to hand this matter over to the public, and of necessity one must be stringent (and see Be'er Sheva subsection 34, and according to what I have written it is well-settled).

Our sages, of blessed memory, said (Yevamot 12b): Children are like simanim. From the words of the Rambam, chapter 2 of Ishut, law 9, and chapter 19, law 14, it is explained according to its plain meaning that they are exactly like simanim; if she gave birth after twelve years, it is a siman of adulthood even if she did not produce two hairs, and if she gave birth beforehand, this is not a siman of adulthood and she is still a minor, just like simanim before the time. However, from the words of the other poskim it is explained that children at any time are like simanim after the time, and even when she gave birth beforehand she is an adult. Rather, there is one who holds that children are evidence of simanim, and even if they were not found, we concern ourselves that perhaps they fell off. And some say further that even from the time she conceived she may not perform mi'un, for conception is also like simanim or is evidence of simanim, and we concern ourselves that perhaps they fell off (see Tosafot ibid. 13a, and Beit Shmuel subsection 17, and the Gra subsection 47). According to this, it is a doubt of Torah law.

Two hairs are called the lower sign, and there are eight upper signs in a woman, and the Rambam enumerated them there in chapter 2. This is his wording: There are signs in a daughter from above, and these are what are called the upper sign, and these are they: from when she places her hands behind her and a wrinkle forms in the place of the breasts; and from when the tip of the breast becomes dark; and from when a person places his hand on the point of the breast and it sinks and lingers before returning; and from when the tip of the nipple of the breast divides and a small ball forms at its head—and my teachers explained: from when the nipple itself divides; and likewise from when the breasts incline; and from when the breasts jingle; and from when the atarah—which is the place of the swollen flesh above the pudenda toward the belly—surrounds; and from when this flesh is crushed and is no longer hard. Thus far his words.

And he wrote further: All these eight signs—if one of all these or all of them appeared in a girl, and she is twelve years old or less, we do not pay heed to it, and she is a ketanah. If she became twelve years and one day old and the lower sign appeared in her, we do not pay heed to any of these. And if the lower one did not appear, but one of all these appeared in her, she is a doubt between a naarah and a ketanah, and we judge her stringently. And if all of them appeared and the lower sign did not appear, she is a certain gedolah, for it is impossible that all of them would come unless the lower sign had already come and fallen off. Thus far his words. And know that among these signs that we have enumerated, there are signs of bagrut among them, as is explained in the Gemara (Niddah 47a). And according to the explanation of Rashi there, all of them are signs of bagrut and not signs of naarut. And from the words of the Rambam it was explained that it is impossible for all the upper signs to come before the lower sign, but it is possible for one sign of them to come before. And the rest of our teachers explained that even one of them cannot come before the lower sign. And so we learned there at the beginning of the sixth chapter, that it is impossible for the upper to come until the lower has come, which implies that it refers to one; but the Rambam explains that it refers to all of them.

The Rambam wrote (ibid.): If she reached twelve years and one day and did not bring two hairs, even though signs of an aylonit appeared in her, she is still a minor until twenty years. And when she brings two hairs, even in the twentieth year, she shall be a naarah for six months, and afterwards she is called a bogerot. If she was twenty years old less thirty days and did not bring two hairs, and signs of an aylonit appeared in her, she is an aylonit. And if signs of an aylonit did not appear in her, she is still a minor until she brings two hairs or until she is thirty-five years and one day old. If she reached this time and did not bring two hairs, she is called an aylonit even though no sign of the signs of an aylonit appeared in her. You find yourself learning that an aylonit has no days of naarut, but rather from her minority she goes out to bagrut. And these are the signs of an aylonit: anyone who has no breasts, and has difficulty during tashmish, and does not have a lower abdomen like women, and her voice is deep and she is not distinguishable between a man and a woman. And the naarah, the bogerot, and the aylonit—each of these three is called a gedolah. Thus far his words.

And regarding that which he wrote, that if she was twenty years old minus thirty days and she brought signs of an aylonit, she is an aylonit—all the Rishonim wondered about him, for what kind of calculation is this, and where have we found such an example? On the contrary, we hold that thirty days in a year are considered a year; if so, when she is nineteen years and thirty days old and she brought signs of an aylonit, she should be an aylonit. And to the Tur it was so obvious that he wrote that it is a scribal error in the books of the Rambam. However, it is impossible to say so, for also in the Commentary on the Mishnah in Niddah at the end of the fifth chapter, he wrote this explicitly; thus he holds so (Tosafot Yom Tov). And they further raised a difficulty against this, for behold, in the Mishnah there it is taught that a twenty-year-old who has signs of an aylonit is an aylonit, and it says in the Gemara there: a twentieth year from which thirty days have passed is like the twentieth year for all its matters, see there. And according to the Rambam, he should have said that eleven months had passed from it, and the explanation is that only thirty days passed from the year (see Beit Yosef).

And it appears to me that, on the contrary, the Rambam derived it from this wording; for according to their interpretation, it should have said "the twentieth year into which she only entered thirty days," meaning that the woman only entered thirty days into the year, as it refers to the woman. Furthermore, do we say regarding everything that thirty days in a year are considered a year? Behold, they only said this regarding the matter of orlah (Rosh Hashanah 10b). On the contrary, regarding the years of women, they said explicitly (Niddah 44b, 45b) that we do not say so, and the one who holds so, we do not rule like him; see there. Furthermore, regarding orlah itself there is a dispute in this matter, and there is one who holds that one day in a year is considered a year, and it is only that we rule that thirty days are considered a year, and this is not a fixed halakhah in all places. Furthermore, where have we found such an example, where in the Mishnah we learned "twenty years" and we should interpret that she only began thirty days of the twentieth year? And it is clear to me that for this reason the Rambam interpreted it so, for this is what it means: behold, regarding all the years of maturity for males and females, we require the years in their fullness, as we learned in the Mishnah: "a daughter of three years and one day," "a son of nine years and one day," "a daughter of twelve years and one day," "a son of thirteen years and one day." But here it did not teach "a daughter of twenty years and one day," which proves that we do not require the year in its fullness. And for this the Gemara interprets that even if the year is not yet in its fullness, such that thirty days are missing from the year—and this is the wording "that left it," meaning that thirty days left it which the woman has not yet entered—and therefore it did not say "nineteen years and eleven months," for this is not the way of the Tanna; since it is almost the entire year, he includes it in the years. And the reason is simple, for behold, the count of the year is by months, as is stated in Rosh Hashanah ibid., and therefore, since it is proven from the Mishnah that we do not require the year in its entirety, we subtract from it one of its counts, which is a month.

And know that from the wording of the Rambam it is implied that the law of bringing signs and the signs of an aylonit are equal; just as with the bringing of signs she becomes an adult then and not before, so too with the signs of an aylonit at twenty years (and so wrote the Yam Shel Shlomo, Yevamot chapter 8, siman 31). However, the Tur and the Shulchan Aruch in Choshen Mishpat siman 235 wrote that a male of twenty and a female of twenty, when they have brought the signs of a saris and an aylonit, become adults retroactively from thirteen years and one day and from twelve years and one day, for the signs of a saris and an aylonit are a sign of adulthood in their times, only these signs are delayed in coming. And it is a dispute in the Gemara (ibid. 80a) where Rav holds that he becomes a saris retroactively and Shmuel said he was a minor at that time, and the halacha is like Rav in matters of prohibition. And not only that, but even if they brought hairs after this, it is nothing, since they previously brought the signs of a saris and an aylonit (ibid.). And so wrote our teacher, the Rema, in section 12.

And according to this, there is a question regarding this: if so, how can she perform mi'un after twelve years and one day when she has not brought two hairs? We should be concerned lest signs of an ailonit be found in her and she will be an adult retroactively. And even though we do not concern ourselves in every place with the minority of an ailonit, that is when we see no deficiency; but this one who did not bring two hairs, and certainly if some of the signs of an ailonit are seen in her, why should she perform mi'un? (Beit Shmuel, subsection 19). However, if he did not cohabit with her after twelve years, there is no concern here of Torah betrothal. And even if he did cohabit with her, it can be said that in any case: if she is an ailonit, it is a mistaken betrothal and she does not require a get, and if she is not an ailonit, she is a minor (ibid.). And even though the Rambam, of blessed memory, holds in the fourth chapter of Ishut that an ailonit is completely betrothed from the Torah, as I wrote in siman 44, yet he holds that she does not become an adult retroactively, as he wrote (and I wonder at the Beit Shmuel who pressed himself regarding the opinion of the Rambam, of blessed memory).

Our teacher, the Rema, wrote in his book Darchei Moshe at the end of this siman: Maharam of Merseburg wrote not to perform miun in this time at all, even if she is not twelve years old; first, so that it is not confused with a general married woman, and furthermore, so that she does not come to perform miun before three commoners. And so it is in the Responsa of Maharam Padua, siman 13, in the name of Mahari Mintz, and he elaborated much further to show grounds to be stringent in this time. However, Mahari Pollack performed an act in his days and permitted a woman who performed miun in his days, and all the greats of Ashkenaz disagreed with him, and the matter emerged as permitted, and she married another man without a get. Thus far his words. And based on this, he wrote in the Shulchan Aruch at the end of this siman, and this is his wording: And according to everyone, if she is less than twelve years old, she may perform miun even in this time; and so Mahari Pollack performed an act in his days, and not like those who are stringent and said that a daughter does not perform miun in this time at all. Thus far his words. And it requires further study that he was lenient in this, for the Maharshal, of blessed memory, wrote in Yam Shel Shlomo, chapter 13 of Yevamot, siman 17, and this is his wording: It has been the custom in the recent days before us not to perform miun, and this spread from the sage, our teacher Rabbi Menachem Meil Tzedek, etc., and all the recent sages, the greats of the generation who were before us, agreed to this, and specifically the great and pious Mahari Margolios, and Maharp of Prague, and Mahari Mintz, etc. And one great man in his generation who was before me conducted himself and established the law in practice, and convened a beit din, and an orphan performed miun against her husband, and they disagreed with him, etc., and that woman was married to another man based on the miun, but I heard that their union did not turn out well; therefore, I agree with the decree of the earlier ones not to perform miun, and even if she performed miun, not to heed the miun and to forbid her until she receives a get, but if she married, etc. Thus far his words. And also our teacher, the Rema, himself in section 1 wrote that ab initio a beit din should be careful not to marry off a minor orphan in a place where it appears to them that it will lead to miun, and a judge has only what his eyes see. Thus far his words. Meaning, that if it appears she will not come to miun, he may marry her off. And explicitly the Sages, of blessed memory, said in Yevamot (109a): A person should always cling to three things and distance himself from three things; he should cling to chalitzah, and to bringing peace between a man and his fellow, and to the annulment of vows; and he should distance himself from deposits, and from guarantees, and from miunim. And the reason is explained: lest she grow up and regret it, see there. And the Tosafot wrote there: Rabbeinu Chananel explained in the name of a Gaon that one should not betroth an orphan until they bring proof that she is an adult, in order to distance oneself from miunim; and as for that which the Rabbis ordained marriage for her, it must be said according to the words of the Gaon that this is specifically where there is a concern that they will treat her with abandon. Thus far his words. Behold, even our teachers the authors of the Tosafot and the Geonim were concerned not to perform miun. And also in the days of my youth, I heard that in the generation before us there was some miun and the sages of the generation set the world in an uproar, and I do not know what became of it. And now in our time, this matter is not seen or heard at all, for besides this, we do not betroth minors, and also according to the law of the kingdom, so it is. The laws of miun are completed with the help of Heaven.