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Kiddushin 19

Consent at any age.

Earlier this week, we arrived at the second mishnah of this chapter, which shifts the focus of discussion from how a woman is acquired in kiddushin to how a Hebrew slave is acquired.

The methods of kinyan (acquisition) differ somewhat, but today the Gemara brings things together and explores the possibility of a man marrying a woman he has acquired as a maidservant.

By way of background: A father may sell his daughter into servitude when she is a minor. The term of her servitude is six years or until she reaches majority; during this time, the Torah permits the master or his son to marry her in a marriage known as yiud. Yiud ends the girl’s term of servitude and she becomes the full wife of the master or his son. Unlike kiddushin with a free woman, which is usually enacted through money, the betrothal of a maidservant in the case of yiud does not involve money changing hands. 

Let’s recall that for kiddushin to take effect both parties must have the intent to marry. Since children are considered too young to have this intention, a betrothal between a boy and a girl does not take effect; however, the fathers of these children can act on their behalf and enact a betrothal. But in the case of yiud, the father of the underage maidservant is not part of the equation. So how can she become betrothed without being of age or having a father to consent?

The Gemara’s exploration of a beraita (early rabbinic teaching) cited at the top of our daf provides an answer:

Rav Avyu said in the name of Rabbi Yannai: Yiud can only involve an adult; yiud can only be performed with intent.

The Gemara ponders the meaning of this second statement:

Are there really two separate laws? No. In the second clause, the beraita is stating the reason for the first clause: What is the reason why yiud can only involve an adult? Because yiud can only be performed with intent.

The logic makes sense, but if this explanation is in fact true, then it would appear that yiud could never happen — because the very situation that creates the possibility of yiud (namely, a girl being a maidservant in another man’s home) can only involve a minor! The Gemara doesn’t seem to like this answer, perhaps because of the problem it presents to us, and it immediately gives us a second one: 

Or if you prefer, say: What does the beraita mean by “with intent”? It means with her intent.

Now this is interesting. The “her” in question is a minor child. And because a minor cannot legally have intent, how can the Gemara claim that the words “with intent” mean “with her intent”? What is going on here?

The Gemara brings statements from two Amoraim (later rabbis) who each use a little exegetical word play to teach us that yiud must be treated differently from an ordinary marriage, and that its special circumstances create a situation in which a minor can and must consent to the betrothal: 

As Abaye, son of Rabbi Abbahu, taught: The verse “who did not designate her [ye’adah]” (Exodus 21:8), teaches that he is required to inform her [ya’adah] … This is referring to betrothal through designation … 

Rav Nahman bar Yitzhak said: The Merciful One states “designate her [ye’adah].” This unusual expression alludes to the halakhah that this act must be performed with her consent.

With this, the Gemara has done something amazing: It has ignored a halakhic principle in order to create a layer of protection for the maidservant who could easily be taken advantage of in her master’s home. In an ordinary situation, a minor girl’s father must consent to betrothal. But a young girl sold into servitude no longer has her father by her side to consent to her betrothal. Instead, she is subject to the whims of her master, which may or may not be in her best interests. Following the halakhah in this case would allow a man to marry his maidservant without anyone consenting to the marriage — which could be disastrous for the young girl.

In teaching that a yiud marriage cannot take effect without the knowledge and consent of the (minor) girl — who under most circumstances is considered unable to give legal consent — the Gemara implicitly reiterates an idea we encountered often in Tractate Gittin: Strict adherence to halakhah cannot come at the expense of a healthy and just social order. As we’ve said before, while studying these tractates remind us of the many ways that halakhah has subjugated women, it is also critical to recognize those moments where our sages drew the line. Once again, for the sake of tikkun olam, sometimes we have to bend the rules.

Read all of Kiddushin 19 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 1st, 2023. If you are interested in receiving the newsletter, sign up here.

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