Siman 43

A minor who performed kiddushin or married a woman, it is nothing, and she does not require a get from him; and if he died, she does not require chalitzah, for the act of a minor is nothing. And even though the sages instituted marriage for a minor girl, this was so that people would not treat her as ownerless; however, for a minor boy, the sages did not institute marriage for him. On the contrary, it is forbidden to marry him off while he is still a minor. Therefore, regarding a minor girl, when she was betrothed with kiddushin of rabbinic origin because she was an orphan and she grew up—the kiddushin grew with her by rabbinic law, as I wrote in siman 155. But regarding a minor boy, even after he grew up, the kiddushin do not grow with him at all unless he had intercourse or they secluded themselves after he grew up. Therefore, if the minor performed kiddushin, they shall wait until he grows up and he shall betroth her anew. However, if she was already married—it is not necessary to divorce her and she is permitted to remain until he grows up, for regarding this matter the sages of blessed memory instituted that his intercourse should not be intercourse of zenut [Mordechai, Yevamot chapter 6]; since it is by way of kiddushin and marriage for him, this is not intercourse of zenut even if she is an adult [the Rosh]. And that which the sages of blessed memory instituted marriage for a deaf-mute, which will be explained in siman 44, this is because he will never come to the category of marriage; but the minor will indeed come to the category of marriage when he grows up. And see what I wrote in siman 1, section 11.

Even though the minor sent gifts after he reached majority, and even in a place where we are concerned for gifts as explained in siman 45, nevertheless it is nothing and we are not concerned that perhaps he sent them for the sake of kiddushin, for certainly he sent them based on the initial kiddushin. And that which we said, that regarding one who cohabited after reaching majority it is kiddushin, the reason is that it enters his mind that perhaps the kiddushin of minority is nothing, and he resolves and cohabits for the sake of kiddushin so that it should not be a cohabitation of zenut; but regarding gifts, why should he be concerned? And also regarding cohabitation or seclusion, specifically when there are witnesses of seclusion who saw them seclude themselves after he reached majority [the Rosh, HaMadir, end of siman 11], and if he lived with her after reaching majority in the manner of a man and his wife, there is no need for witnesses of seclusion, for since it is known to all, it is as if there are witnesses, as explained in siman 149, and see what I wrote at the beginning of siman 26.

If he maintained her when he reached majority—her first ketubah remains valid and there is no need to write another ketubah for her. Even though a ketubah document given during his minority is nothing, nevertheless, since the ketubah is an enactment of the sages, his document is effective even though it was written during his minority. Therefore, she has specifically only a maneh or two hundred according to the law—a maneh if she was a non-virgin and two hundred for a virgin. However, the additional ketubah (tosefet ketubah) that he wrote for her during his minority is nothing, for his obligation is not an obligation at all. All this applies when he wrote a ketubah for her during his minority; but if he did not write it for her during his minority, when he reaches majority he writes for her only a maneh, for at that time she is not a virgin. And there are those who disagree on this [Chelkat Mechokek], and logic dictates so, for in truth the ketubah he wrote for her during his minority is nothing except for the fact that it is an enactment of the sages, and if so, what does it matter to me if he wrote it or did not write it? And this is certainly true: if upon reaching majority he says to her before he secluded himself with her, "I will not give you a ketubah except for a maneh," and she consented—it is certainly effective; but in an ordinary case, he must give her like all virgins [ibid.]. And the reason for the first opinion, it can be said, is that it is well and good when he wrote for her during his minority that the sages uphold his ketubah, but when he did not write for her, from where would the obligation reach her? The sages did not enact it during his minority and he also did not write it for her, and his obligation only begins from when he reaches majority, and behold, she is a non-virgin now [and even though the proof of the Beit Shmuel, subsection 4, from Tosafot can be rejected, and see Avnei Miluim, nevertheless the first logic has a basis in the halacha, and the proofs of the Chelkat Mechokek are not decisive, and on the contrary, from the Tur it is implied otherwise, and that which he wrote "she does not collect from the ketubah document etc." means from the ketubah document alone, see there and examine closely].

There is one who is uncertain regarding a minor who betrothed and said, "Behold you are betrothed to me after I grow up," or an adult who said to a minor girl, "Behold you are betrothed to me after you grow up," whether we say that since at the time of the kiddushin they are minors it is not effective and is like a thing that has not yet come into the world, such as "after you are manumitted" in siman 40; or perhaps it is not comparable, for that which lacks only time is not like a thing that has not yet come into the world [Mishneh LaMelech chapter 4], as time comes of its own accord. And we found one of the Rishonim who wrote explicitly that it is a thing that has not yet come into the world [Mordechai, first chapter of Bava Metzia], and certainly it appears so, for since it is not in his power to betroth now, how could he have the power to betroth her after a time? Furthermore, the core of this reasoning that lacking time is not like a thing that has not yet come into the world is not agreed upon. Moreover, in this case there is not a lack of time alone, for there is a lack of an act, as they must bring two hairs. And behold, even though it appears clear so, nevertheless regarding the law, since several great authorities are uncertain about this, it is a case of doubtful kiddushin. And all the more so if he betrothed on the day of the completion of thirteen years, where at night he will be a full thirteen years old, that it is a case of doubtful kiddushin, for regarding kodashim we hold that there is no "lacking of time" for that very day [Zevachim 12a]. However, even this is not agreed upon, for some say even regarding kodashim that there is a "lacking of time" for that very day [Tosafot Menachot 5a]. Furthermore, that is only regarding what will be fit on that same day and not on the next day. Nevertheless, in this case it is simple that it is a case of doubtful kiddushin, and it is possible to be even certain kiddushin if we say that on that day when they brought two hairs it is effective [see Tosafot Niddah 49a]. And even though it implies in the Shas [Yevamot 34a] that kiddushin is effective in such a case when he betrothes for after they grow up, it can be said that it deals with such a case where he betrothed on the preceding day [Rashi ibid.]. Furthermore, the sugya there follows the one who holds that a person can transfer ownership of a thing that has not yet come into the world, and we do not hold accordingly [for there they say "the school of Rav," and he is Rav Huna as written at the end of the first chapter of Sanhedrin, and Rav Huna holds a person can transfer ownership of a thing that has not yet come into the world in Yevamot 93a].

There is one who asked why a katan does not have the power to betroth a woman, for do we not maintain that when the mind of another transfers it to him, he has power, and here, is the woman not transferring herself to him? The answer to this is, firstly—that it is a decree of the verse, "When a man (ish) takes a woman," and everywhere that "ish" is stated, we exclude a katan. Furthermore—if it were within the power of the woman to transfer herself to the man such that she would say to him, "Behold, I am betrothed to you," it would be well; but we maintain that this is not effective, and he must acquire her, as it is written "When a man takes a woman" and not that she should take herself to the man. Rather, since she agrees to the kiddushin of that man, she nullifies her mind and her will and makes herself hefker to the husband, and the husband brings her into his domain [Ran Nedarim 30a]. According to this, it is not a case of the mind of another transferring, but rather like one who acquires from the hefker.

One of the Rishonim wrote: A minor eleven years of age whose father betrothed a woman for him—she requires a get, for one may acquire a benefit for a person in his absence. Our teacher, the Beit Yosef, rejected this from the halacha and wrote that these are astonishing words, and certainly it is so, for what benefit is it? Behold, he becomes obligated in her sustenance; furthermore, he becomes forbidden to her relatives; and furthermore, behold it is forbidden to betroth a woman until he sees her, lest he find something in her that makes her repulsive to him, and all the more so regarding a minor who lacks da'at, for certainly there is a concern that in his adulthood she will not be pleasing in his eyes, and what benefit is it? And behold, regarding a woman, for whom any [husband] is satisfactory, the Sages, of blessed memory, said that it is forbidden to betroth his minor daughter until she grows up and says "I want so-and-so," and all the more so regarding a man. And in several places in the Shas it is explicitly explained that there is no kiddushin for a minor, and this matter was not mentioned in any of the early poskim.

And it appears that whoever wrote this did not intend it to be Torah kiddushin, and also did not intend that in his minority, if he does not want her, she requires a get, for the Yerushalmi in Ketubot explicitly asks: Is there divorce for a minor? Rather, the case there deals with one who remained with her for half a year after he reached majority, and it appears that he did not sequester with her in his majority but merely did not explicitly protest. Nevertheless, several great authorities wanted to annul the kiddushin and he was stringent to require her a get, and this is what he meant by saying that one may act in a person's interest in his absence; meaning, certainly from the Torah they are nothing and even the Rabbis did not institute marriage for a minor, but since we find in every place that every minor is pleased with his father's actions and his will is to do his father's will—for which reason regarding a fire on Shabbat, a minor who comes to extinguish it, we do not allow him because he acts according to his father's mind, as he knows that the extinguishing is pleasing to his father and he acts for his sake; and regarding a found object we also say that at the time he finds it, he is pleased with his father, and when he lifts it, he lifts it for his father's need, for the son is bound to his father and the daughter to her mother, and anything that brings satisfaction to his father brings satisfaction also to him—therefore, in such a case, when he reached majority and did not protest immediately upon reaching majority, it can be said that it is considered a merit for him and the kiddushin are established. And this can be inferred precisely from the Mishnah in Ketubot where it is taught: A minor whose father married him off, her ketubah is established, for it was on this condition that he maintained it [once he reached majority]. And for what purpose was it taught "whose father married him off"? Rather, because otherwise there is a prohibition to marry off a minor to a woman, but his father who married him off, there is no prohibition here, for he is pleased with what his father does. Therefore, when he reached majority even one day and did not protest, the kiddushin were established. And that which we wrote in section 2, that we do not concern ourselves with the kiddushin even if he sent sivlonot after reaching majority, that is when he betrothed her himself and not through his father. And in this also they disagreed with him. Thus far his words; see there and examine it closely.

There are some among the great authorities who said that a katan whose father married him to a woman a year prior to his gadlut has nesuim by rabbinic decree. And that which is said, that there are no nesuim for a katan until his actual gadlut—this is without his father's consent; however, with his father's consent and a year prior to his maturity, there are nesuim by rabbinic decree [Bach, siman 1], for without his father it would be like mere zenut, but when his father marries him off, he teaches him not to act for the sake of zenut and guides him on a straight path [ibid.]. There is support for this from that which the sages, of blessed memory, praised one who marries off his sons close to their maturity, as there are some of our teachers who explained that this is a year prior to gadlut. And against this also, many disagree and hold that the rabbis did not institute nesuim for any katan, and so it is implied from the Rambam, chapter 21 of Issurei Biah; and "close to their maturity" means after they become gedolim. And even according to the commentators who say it is before they become gedolim, it is not in the sense that there should be nesuim by rabbinic decree, but rather that their intercourse is not intercourse of zenut, but the kiddushin and the nesuim are nothing in their katnut [Chelkat Mechokek and Beit Shmuel, siman 1, subsection 4]. And so wrote the Mordechai in the sixth chapter of Yevamot, that the rabbis did not institute nesuim for a katan even close to his maturity, for behold, the sages, of blessed memory, said: A deaf-mute, an imbecile, or a katan who married women and died—their wives are exempt from chalitzah and from yibbum [ibid. 69b], and the same law applies that she does not require a get. And that which they said to marry them off close to their maturity, this is in the sense that their intercourse is not intercourse of zenut and not to require her a get. Thus far his words. And already for more than a hundred years, due to the greatness of the upheavals, they married off katanim and ketanot by the hundreds, and according to the great authorities of the generation, headed by the Gra, all were permitted without a get; and even though there were then some among the great authorities who hesitated regarding this, nevertheless, the majority of the great authorities in the generation permitted them without a get.

But for a female minor, the sages instituted kiddushin when she has no father, that she may be married by the word of her mother and her brothers or by her own word. They also instituted that if she desires to leave him, she does not require a get, so that the choice remains in her hand, and she performs me'un and goes her way. How the me'un is performed and until when she may perform me'un will be explained in siman 155. Similarly, a female minor who has already left her father's authority, such as if her father married her off and she was divorced, may be married with kiddushin d'rabbanan. Likewise, the beit din may rule to marry off the female minor just as her mother and brothers have the authority, and they may stipulate that if she performs me'un, she shall lose all that is hers; but they do not have the authority to marry off a male minor. And if he performed kiddushin and there is a doubt whether he is an adult or a minor, it is a case of doubtful kiddushin, and similarly with a female minor. And even though one could say we should establish them on their previous chazakah and they are minors, nevertheless, since they must necessarily leave their chazakah as time comes of its own accord and the majority of adults bring two hairs, the chazakah of the permitted status does not apply [it appears to me].