MISHNAH. BETH SHAMMAI RULED: ONLY THOSE1 WHO ARE BETROTHED2 MAY EXERCISE THE RIGHT OF REFUSAL;3 BUT BETH HILLEL RULED: BOTH THOSE WHO ARE BETROTHED AND THOSE WHO ARE MARRIED. BETH SHAMMAI RULED: [A DECLARATION OF REFUSAL3 MAY BE MADE] AGAINST A HUSBAND BUT NOT AGAINST A LEVIR;4 BUT BETH HILLEL RULED: EITHER AGAINST A HUSBAND OR AGAINST A LEVIR. BETH SHAMMAI RULED: [THE DECLARATION]5 MUST BE MADE IN HIS PRESENCE, BUT BETH HILLEL RULED: EITHER IN HIS PRESENCE OR NOT IN HIS PRESENCE. BETH SHAMMAI RULED: [THE DECLARATION5 MUST BE MADE] BEFORE BETH DIN, BUT BETH HILLEL RULED: EITHER BEFORE BETH DIN OR NOT BEFORE BETH DIN.
BETH HILLEL SAID TO BETH SHAMMAI: [A GIRL] MAY EXERCISE THE RIGHT OF REFUSAL WHILE SHE IS A MINOR EVEN FOUR OR FIVE TIMES.6 BETH SHAMMAI, HOWEVER, ANSWERED THEM: THE DAUGHTERS OF ISRAEL ARE NOT OWNERLESS PROPERTY,7 BUT, [IF ONE] MAKES A DECLARATION OF REFUSAL, SHE MUST WAIT TILL SHE IS OF AGE, AND DECLARE HER REFUSAL8 AND MARRY AGAIN.
GEMARA. Rab Judah stated in the name of Samuel: What is Beth Shammai's reason?9 Because no stipulation is attachable to a marriage;10 and were a married minor to be allowed to exercise the right of refusal, it would come to be assumed11 that a stipulation is attachable to a marriage.12 What reason, however, could be advanced13 where she only entered the bridal chamber14 and no cohabitation had taken place?15 Because no condition is attachable to an entry into the bridal chamber.16 What reason, however, could be advanced13 where the father17 entrusted her to the representatives of the husband?18 — The Rabbis made no distinction.19 And Beth Hillel?20 — It is well known that the marriage of a minor is only Rabbinically valid.21
Both Rabbah and R. Joseph declared: The reason of Beth Shammai22 is that no man wishes to treat his cohabitation as mere fornication.23 What, however, can be the reason22 where she only entered the bridal chamber and no cohabitation took place?24 No man would like his bridal chamber to be [an introduction to] a forbidden act.25 What reason,22 then, could be advanced where the father26 had entrusted her to the representatives of the husband?27 — The Rabbis made no distinction.28 And Beth Hillel?29 — Since [a minor's marriage] involves30 betrothal and kethubah no one would suggest that her husband's cohabitation was an act of fornication.
R. Papa explained: Beth Shammai's reason31 is because of the usufruct,32 and Beth Hillel's reason also is because of the usufruct.32 'Beth Shammai's reason is because of the usufruct', for should you say that a married minor may exercise the right of refusal, [her husband]33 might [indiscriminately] pluck [the fruit] and consume it, [knowing as he does] that she might leave him at any moment.34 Beth Hillel, however, [say]: On the contrary; since it is laid down that she may exercise the right of refusal, [her husband] would make every effort to improve her property, fearing that if [he should] not [do this], her relatives might give her their advice [against him] and thus take her away from him.
Raba stated: The real reason31 of Beth Shammai is because no man would take the trouble to prepare a meal35 and then spoil it.36 And Beth Hillel?37 — Both are pleased [to be married to each other]38 in order that they may be known as married people.39
BETH SHAMMAI RULED … AGAINST A HUSBAND etc. R. Oshaia stated: She may40 make a declaration of refusal in respect of his ma'amar41 but she has no right to make a declaration of refusal in respect of his levirate bond.42
Said R. Hisda: What is R. Oshaia's reason? — She has the power to annul a ma'amar which is effected with her consent; she has no power, however, to sever the levirate bond since it is binding on her against her will.43 But, surely, [levirate marriage by] cohabitation may be effected against her will44
Original footnotes renumbered.
- Young girls who are minors and whose fathers are dead. v. infra n. 2.
- With the permission of their mother or brothers into whose charge they pass after the death of their fathers.
- Mi'un (v. Glos.) and no divorce is required.
- The levirate bond with whom can he severed by halizah only. BaH deletes 'but not … levir'.
- Cf. supra n. 3.
- And may marry again after each refusal.
- To be taken up by man after man without receiving proper divorce from the one before being betrothed or married to the other
- This is explained in the Gemara infra.
- For ruling that ONLY BETROTHED WOMEN MAY EXERCISE THE RIGHT OF REFUSAL and that consequently a married minor may not exercise the right.
- And the validity of the marriage is not in any way impaired even if the condition that was attached to it was not fulfilled. The law assumes that the man tacitly renounces, on cohabitation, the condition.
- The invalidity of her marriage being assumed to be due, not to her minority, but to some unfulfilled stipulation that was attached to her marriage.
- Even in the case of one who is of age. Hence Beth Shammai's ruling in our Mishnah. Cf. supra note 1.
- For the prohibition of mi'un. V. Glos.
- Huppah, v. Glos.
- In such a case, since consummation of marriage has not taken place, there is, surely, no need to provide against the erroneous assumption of the validity of a stipulation in consummated marriage!
- If a minor at such a stage in her marriage were allowed mi'un it might be assumed that the reason why her union was severed without a divorce was not because of her minority but owing to an unfulfilled condition that was attached to her entry into the bridal chamber, and so it would be concluded erroneously that even in the case of one who is of age a condition attached is valid.
- I.e., his successors in authority over the minor, after his death, viz., his wife and sons. (Cf. supra p. 738, n. 2). Where a father is alive the law of mi'un (with the exception of the case mentioned supra p. 2, n. 6) does not apply, since he has the right to give her away in perfect and proper marriage while she is a minor.
- An act which, though regarded as marriage, is a stage preceding that of entry into the bridal chamber, where a condition is valid, even in the case of a bride who is of age.
- Between a marriage fully consummated and one in its earlier stage. Since both are cases of marriage, permissibility of mi'un in the latter might lead to an erroneous conclusion concerning the former.
- Why do they not provide against the possibility of erroneous conclusions.
- No one would draw comparisons between a marriage the validity of which is only Rabbinical and one which is Pentateuchally binding.
- V. Supra p. 739, n. 1.
- Which would be the case were a married minor to be allowed to leave her husband by mi'un only without a proper divorce. Mi'un was, therefore, forbidden in order to encourage the marriage of orphan minors who, if they remain unmarried, are subject to the dangers of immorality and prostitution. Cf. infra 112b.
- In which case the reason given is inapplicable.
- Retrospective prostitution.
- V. Supra p. 739, n. 9.
- Though such an act on the part of the minor's mother or brothers constitutes marriage in accordance with Rabbinic law, as does such an act on the part of the father even in the case of one who is of age (cf. Keth. 48b), nevertheless the question of fornication does not in such a case arise. Why, then, do Beth Shammai forbid mi'un even at this stage of marriage?
- Cf. supra p. 739, n. 11.
- How, in view of the reason advanced, could they allow mi'un even in marriage!
- Lit., 'there is'.
- V. supra p. 739, n. 1.
- Of the minor's melog (v. Glos.) property.
- Who after marriage is entitled to the usufruct of his wife's melog property.
- Lit., 'for in the end she stands to go out'.
- The wedding feast.
- Had mi'un been allowed after a marriage no one would, for this reason, ever marry a minor; and this might lead to immoral consequences. Cf. supra p. 740, n. 2.
- v. p. 740, n. 8.
- Despite the objections pointed out by Beth Shammai.
- The possible loss does not, therefore, prevent a man from marrying a minor.
- According to Beth Hillel who allow the right of refusal even against a levir.
- If the levir made a ma'amar, she can annul it by mi'un, and no divorce is required.
- Only halizah can sever the levirate bond. In ordinary cases where the levir addressed to the yebamah a ma'amar, she requires for her freedom both a divorce to annul the effect of the ma'amar, and halizah to sever the levirate bond.
- Because it is due to her marriage with the deceased brother, which, since she did not exercise her right of refusal against him, remained valid.
- Cf. supra 53b, 54a.
and yet she may annul it! — [This,] however, [is really the reason]: She may annul [a kinyan by] cohabitation or by a ma'amar, because it is the levir who effects it; she cannot, however, annul the levirate bond which the All Merciful has imposed upon her.
'Ulla said: She may exercise her right of refusal even in respect of his levirate bond. What is the reason?1 [By her refusal] she annuls the marriage of her first husband.2
Raba raised an objection against 'Ulla: The rival of anyone, entitled to make a declaration of refusal,3 who did not exercise her right, must perform the ceremony of halizah4 [if her husband died childless] but may not contract levirate marriage.5 But why? Let her exercise her right of refusal now and thereby annul the marriage of her first husband, and then let her rival6 contract the levirate marriage!7 — The rival of a forbidden relative is different.8 For Rami b. Ezekiel learnt: If a minor made a declaration of refusal against her husband she is permitted to marry his father,9 but if against the levir10 she is forbidden to marry his father. It is thus evident11 that at the time she became subject to the levirate marriage she is looked upon as his12 daughter-in-law;13 similarly here also14 [marriage of the rival is forbidden because] at the time of her subjection to the levirate marriage she is looked upon as his daughter's rival.15
Rab stated: If she16 made a declaration of refusal against one17 [of the levirs] she is forbidden [to marry] the others17 also; her case being analogous to that of the recipient of a letter of divorce.18 As19 the recipient of a letter of divorce is forbidden to all [the brothers] as soon as she is forbidden to one20 so is there no difference here also.21
Samuel, however, stated: If she16 exercised her right of refusal against one20 [of the levirs] she is permitted [to marry] the others;17 her case being unlike that of the recipient of a letter of divorce.18 For with the recipient of a letter of divorce18 it is he20 who took the initiative against her;22 but here it is she who took the initiative against him, declaring, 'I do not like you and I do not want you; it is you whom I dislike but I do like your fellow'.
R. Assi ruled: If she16 made a declaration of refusal against one [levir] she is permitted [to marry] even him. May it be assumed that he is of the same opinion as R. Oshaia who maintains that a minor has no right to make a declaration of refusal in respect of his levirate bond?23 — In respect of one levir she may well be entitled to annul [the levirate bond]; here, however, we are dealing with two levirs [the reason24 being] that no declaration of refusal is valid against half a levirate bond.25
When Rabin came26 he reported in the name of R. Johanan: If she16 exercised her right of refusal against one17 [of the levirs] she is permitted to marry the other brothers. [They], however did not agree with him. Who [are they who] did not agree with him? … Abaye said: Rab;27 Raba said: R. Oshaia;28 and others said: [Even] R. Assi.29
BETH SHAMMAI RULED … IN HIS PRESENCE etc. It was taught: Beth Hillel said to Beth Shammai, 'Did not the wife of Pishon the camel driver make her declaration of refusal in his absence?' 'Pishon the camel driver', answered Beth Shammai to Beth Hillel, 'used a reversible measure;30 they, therefore, used against him also a reversible measure'.31 Since, however, he was eating the usufruct32 it is obvious that [the minor] was married to him;33 but [if this was the case] did not Beth Shammai rule [it may be asked] that a married minor may not exercise the right of refusal!34 They bound him with two bonds.35
BETH SHAMMAI RULED: … BEFORE BETH DIN etc. Elsewhere we learned: Halizah and declarations of mi'un [must be witnessed by] three men.36 Who is the Tanna?37 — Rabbah replied: This [ruling is that of] Beth Shammai.38 Abaye said: You may even say [that it is the ruling of] Beth Hillel. All that39 Beth Hillel really stated was that no experts40 are required; three men, however, are indeed required. As it was, in fact, taught: Beth Shammai ruled [that mi'un must he declared] before Beth din,41 and Beth Hillel ruled: Either before a Beth din or not before a Beth din. Both, however, agree that a quorum of three is required.42 R. Jose son of R.43 Judah and R. Eleazar son of R. Simeon44 ruled: [Mi'un is] valid [even if It was declared] before two.45 R. Joseph b. Manyumi reported in the name of R. Nahman that the halachah is in agreement with this pair.46
BETH SHAMMAI, HOWEVER, ANSWERED … AND SHE DECLARES HER REFUSAL etc. But, surely, she has already made a declaration of refusal!47 — Samuel replied: [The meaning is] TILL SHE IS OF AGE and states, 'I am willing to abide by the first declaration of refusal'.48 'Ulla replied: Two [different statements] are here made: Either she declares her refusal 'and is betrothed after she is of age,49 or she declares her refusal, and is married forthwith.50
According to 'Ulla one can well understand why the expression, TILL SHE IS OF AGE OR DECLARES HER REFUSAL51 AND MARRIES AGAIN, was used. According to Samuel, however, it should have been stated 'TILL SHE IS OF AGE and states'.52 — This is a difficulty.
MISHNAH. WHICH MINOR MUST MAKE THE DECLARATION OF REFUSAL?53 ANY WHOSE MOTHER OR BROTHERS HAVE GIVEN HER IN MARRIAGE WITH HER CONSENT. IF, HOWEVER, THEY GAVE HER IN MARRIAGE WITHOUT HER CONSENT SHE NEED NOT MAKE ANY DECLARATION OF REFUSAL.54
R. HANINA B. ANTIGONUS RULED: ANY CHILD WHO IS UNABLE TO TAKE CARE OF HER TOKEN OF BETROTHAL55 NEED NOT MAKE ANY DECLARATION OF REFUSAL.54
R. ELIEZER56 RULED: THE ACT OF A MINOR HAS NO VALIDITY AT ALL, BUT [SHE57 IS TO BE REGARDED] AS ONE SEDUCED. IF, THEREFORE, SHE IS THE DAUGHTER OF AN ISRAELITE [AND WAS MARRIED] TO A PRIEST SHE MAY NOT EAT TERUMAH,58 AND IF SHE IS THE DAUGHTER OF A PRIEST [AND WAS MARRIED] TO AN ISRAELITE SHE MAY EAT TERUMAH.59
R. ELIEZER B. JACOB RULED: IN THE CASE OF ANY HINDRANCE [IN REMARRYING]60 THAT WAS DUE TO THE HUSBAND, [THE MINOR] IS DEEMED TO HAVE BEEN61 HIS WIFE; BUT IN THE CASE OF ANY HINDRANCE [IN REMARRYING] THAT WAS NOT DUE TO THE HUSBAND SHE IS NOT DEEMED TO HAVE BEEN62 HIS WIFE.
GEMARA. Rab Judah stated, and others say that it was taught In a Baraitha: Originally, a certificate of mi'un was drafted [as follows]: 'I do not like him and I do not want him and I do not desire to be married to him'. When, however, it was observed that the formula was too long and it was feared that
Original footnotes renumbered.
- How could she annul a bond which the 'All Merciful has imposed upon her'?
- The deceased; so that the levirate bond ceases to exist retrospectively as if it had never been in existence.
- I.e., a girl who married while she was a minor and whose father did not receive the token of her betrothal. This may occur even during the lifetime of her father if she marries a second time after she had been divorced by her first husband to whom she had been given in marriage by her father. After a divorce the father's right to give his 'minor' daughter in marriage ceases.
- With the levir, though he is the father or any other forbidden relative of the minor. It is only the rival of a woman whose marriage is Pentateuchally valid who is exempt from both levirate marriage and halizah with the forbidden relative of that woman. The marriage of a minor, who could exercise her right of refusal at any moment, is only Rabbinically valid.
- Supra 2b. Since after all the minor did not exercise her right of refusal her marriage is valid enough to forbid her rival's levirate marriage, as is the case with a Pentateuchally valid marriage.
- Who, by the declaration of refusal of the minor, ceases to be her rival.
- With the minor's forbidden relative.
- From a minor who becomes subject to halizah. While the minor may, by annulling her marriage retrospectively by the exercise of the right of mi'un, procure exemption from the halizah, her rival cannot, through the minor's exercise of this right, obtain the freedom to marry the minor's forbidden relative.
- Who, owing to her retrospective annulling by mi'un of her marriage with his son, is to him now a mere stranger.
- To whom she has become bound by the levirate obligation when her husband, against whom she did not exercise her right of mi'un, died childless.
- Since she is forbidden to marry the levir's father.
- The levir's father's.
- A status which she retains despite the mi'un.
- Though her mi'un which annulled her marriage retrospectively exempted her from halizah.
- Her subsequent estrangement, effected by the minor's mi'un, cannot remove her known status of forbidden relative's rival. Cf. supra note 10.
- A minor.
- Lit., 'this'.
- From one of the levirs.
- Lit., 'not?'
- The levir who gave her the letter of divorce.
- The mi'un which causes her to be forbidden to marry one of the brothers causes her, as in the case of divorce, to be equally forbidden to all the other brothers.
- And he is presumed to have acted on behalf of all his brothers.
- And if she did exercise It she still remains permitted to the levir, v. supra p. 741, n. 8.
- For the invalidity of the mi'un.
- She is equally bound to the two levirs, and her refusal was declared against one of them only.
- From Palestine to Babylon.
- Who stated supra that if a minor made a declaration of refusal against one of the brothers she is forbidden to all.
- R. Johanan permitted her to marry the brothers only where there were several of them (the reason being the same as that of R. Assi that a part of a levirate bond cannot be severed); where, however, there was only one brother R. Johanan forbids him to marry the minor who made a declaration of refusal against him. This ruling is contrary to that of R. Oshaia who in all cases regards mi'un against a levirate bond as invalid.
- Much more so R. Oshaia (v. supra n. 13). Even R. Assi who, unlike R. Oshaia agrees with R. Johanan in permitting the marriage of a minor, after her mi'un, only where the number of levirs is more than one, differs, nevertheless, from him in allowing the minor to marry the very levir against whom her declaration of refusal was made.
- [H] (rt. [H] 'to bend' [H], a measure of capacity having a deep receptacle at one end and a shallow one at the other, to defraud thereby sellers and buyers; 'a false measure'. This is a metaphor expressing Pishon's double dealing with his wife in pretending merely to eat the fruit of her melog property, to which he was in fact entitled, while in reality he was encroaching upon the property itself which belonged to her.
- He was paid 'measure for measure', 'tit for tat'. In other cases, however, mi'un must be declared before Beth din only.
- Of the minor's melog property.
- Not merely betrothed. Before marriage, even if betrothal had taken place, a husband is not entitled to the usufruct of his wife's melog property.
- How then could she here at all make such a declaration!
- Metaph. He was subjected to two penalties. [H] sing. [H] (Heb. [H]) 'knot', 'bond'.
- Supra 101b, Sanh. 2a.
- Whose ruling this statement represents.
- Who require the presence of a Beth din (v. our Mishnah) which consists of three men.
- Lit., 'until here'.
- Mumhin, plur. of mumhe, v. Glos.
- 'Of experts'. This is the reading supra 101b.
- Which confirms Abaye's opinion.
- Cur. edd., [H] (= 'son'), is apparently a misprint for [H] (= 'son of R.'), which is the reading supra, loc. cit.
- Cf. loc. cit. where the reading is 'Jose'.
- Sanh. 2a, supra loc. cit.
- Who require a quorum of two only, v. supra loc. cit.
- When she was a minor. Why then does our Mishnah speak of a second declaration of refusal after she has become of age?
- By the second refusal (cf. supra n. 8) only the confirmation of the first was intended. Without such confirmation it might be possible to assume that she had changed her opinion and withdrawn her first declaration.
- When she may no more exercise the right of mi'un even after a betrothal only.
- While still a minor. Since, according to Beth Shammai, mi'un after a marriage is invalid she would not be able, once she was married, to exercise that right again. The word [H] translated AND DECLARES etc. should be rendered OR DECLARES etc.
- 'OR … REFUSAL is wanting in cur. edd., but is to be added (cf. our Mishnah).
- That she abides by her declaration.
- If she desires to leave her husband.
- She may leave her husband without any legal formality, and may marry any other man.
- The money or object whereby the kinyan of betrothal is effected. Cf. Kid. 2af.
- Cf. BaH, Bomb. ed. and separate edd. of the Mishnah; Cur. edd., 'Eleazar'.
- If she was given away in marriage.
- Her marriage being invalid, she remains in her father's control, and, like any other daughter of an Israelite who never married a priest, is forbidden to eat terumah.
- As the daughter of a priest who never married an Israelite. Cf. supra n. 6.
- Lit., 'retention (in the house of her husband)'.
- Lit., 'as if she was'.
- Lit., 'as if she was not'.