Volume 19 Number 76
Produced: Tue May 30 22:35:45 1995
Subjects Discussed In This Issue:
Betrothal of minors
[Andrew Marc Greene]
Marriage of a Minor Daughter
[Seth Ness]
Marrying a Minor Daughter
[Seth Ness]
Marrying off one's daughter (6)
[Issie Scarowsky, Ari Shapiro, Avi Feldblum, Israel Botnick,
Mervyn Doobov, Mechael Kanovsky]
minor marriages
[Eliyahu Teitz]
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From: <Andrew_Marc_Greene@...> (Andrew Marc Greene)
Date: Tue, 30 May 1995 11:06 -0400
Subject: Re: Betrothal of minors
A few thoughts from someone who knows little...
1. NYS law sets a minimum age for marriage at 14 (with parental
consent). So by dina d'malkhutah dina, this sort of thing should be
prohibited (but not, I surmise, invalid). This doesn't really solve the
problem, but it is worth mentioning that our moral outrage aside, this
action is against halacha!
2. Why does the Torah provide for a father to marry off his minor
daughter? Thousands of years ago, this was sometimes a desirable thing
(for example, when she would be marrying into the household of someone
who could provide for her needs better than her father could); from my
understanding of masechet kiddushin, this was primarily associated with
selling her as a maidservant.
The reason I bring this up is that he is, in effect, acting as her agent
without her knowlege in this case. And we have a principle that we allow
someone to act as another's agent without knowlege in cases where a
benefit would accrue to the individual, and he (or she) would presumably
not object.
But this is a case where the individual would presumably object. Today's
society is different from that of two thousand years ago. Is it perhaps
the case that when the Torah describes when a father betroths his
daughter to a man, that it is not only establishing that this is valid,
but that it also comes to teach the circumstances under which it is
valid....
So perhaps a father in today's circumstances does not have the authority
to betroth his minor daughter without her consent, and such a betrothal
is invalid?
My guess is that there is a flaw in my argument. But I offer it up in
the hope that with all of us contributing our crazy ideas, and
"brainstorming", this group will be able to help spark ideas in the
minds of those rabbis who do have the wisdom and influence to solve this
problem. And obviously any halachic solution -- either to free the girls
who have already been subject to this, or to invalidate future betrothal
of ktanot -- would need to be universally accepted by all rabbis and
communities.
- Andrew Greene
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From: Seth Ness <ness@...>
Date: Mon, 29 May 1995 10:55:42 -0400 (EDT)
Subject: Marriage of a Minor Daughter
I would propose an approach to a solution also involving the witnesses,
but different from akiva's. The new york times article said the
witnesses are anonymous (as well as the husband.) If this is so, can't a
bet din decree that there was no marriage? if the wife brings her
husband to a bet din and says 'i don't believe you married off our
daughter, let the witnesses come and testify that you really did' and
then the husband says "sorry, the witnesses are anonymous" then whats
left of the marriage. if there are no witnesses, then isn't there no
marriage?
[The problem is that the Gemarah explicitly states that a father has a
ne'emanus to say that he has married off his daughter, and is not
required to produce witnesses to that effect. The question that may need
to be addressed relates to the reason for such ne'emanus and whether it
applies here. Given the severity of aishet eish (status of being a
married woman) it is likely to be difficult to overcome this current
status of ne'emanus. Mod.]
Seth L. Ness Ness Gadol Hayah Sham
<ness@...>
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From: Seth Ness <ness@...>
Date: Mon, 29 May 1995 12:23:46 -0400 (EDT)
Subject: Marrying a Minor Daughter
well, from what has been posted it looks like my initial thoughts were
incorrect. It seems a solution would have to focus on the ne'emanut of
the father. Are the qualifications for a father to be believed in this
situation the same as for a witness? It seems obvious that the father
isn't actually a witness, since relatives can't be witnesses. So what
exactly is the father, and can the fact that he's doing this to help
avoid giving a get (when he should give one), and that he's known to be
someone who refuses to provide evidence (in that he's not naming the
husband or witnesses) undermine his believability.
Seth L. Ness Ness Gadol Hayah Sham
<ness@...>
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From: Issie Scarowsky <Issie_Scarowsky@...>
Date: 29 May 95 13:34:31
Subject: Re: Marrying off one's daughter
There may be a simple solution to the problem of certain men marrying
off their young daughters and not revealing to whom. The Rabbanim, in
past, have outlawed activities which were at one time permissible but
because of fears that the original intent would not be met these
activities have been banned. For example, men are no longer allowed to
marry more than one woman at one time, nor are men allowed to perform
Yebum. In the latter case, I recall that the rationale was that there is
the fear that men would perform Yebum not for the purpose of continuing
their childless brother's name, but for the purposes of having marital
relations with their sister-in-law. Clearly while it is permissible for
a husband to marry a daughter, this should only be allowed when it is
done for the benefit of the daughter. If it is used as a means of
extortion, it should and must be prohibited.
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From: <m-as4153@...> (Ari Shapiro)
Date: Mon, 29 May 95 13:38:55 EDT
Subject: Re: Marrying off one's daughter
<I was always taught that the torah was not given for a specific
<generation but for every generation. How do we then reconcile this with
<akiva's staement about this atrocity. (which i happen to agree with) i
<mean the torah permits it, and all it's ways are ways of peace.
Actually the Gemara in Kiddsuhin(41a) says it is a mitzvah drabanon(or an
issur drabanon TO do this) not to marry off your daughter as a minor.
The gemara says that a father should not marry off his minor daughter until
she grows up and can say this is who I want to marry. This is quoted by
the Shulchan Aruch in Even Haezer Siman 37 sif 8. The Rama there quotes
Tosafos that nowadays(in Tosafos's times) they would marry off minors
because the galus(exile) was getting worse and if a man had a chance to
marry off his daughter he should take it. I don't think this reason
applies nowaday's and the din(law) in the gemara would be in force.
Ari Shapiro
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From: Avi Feldblum <feldblum>
Date: Mon, 29 May 1995 16:06:09 -0400
Subject: Re: Marrying off one's daughter
Issie Scarowsky writes:
> There may be a simple solution to the problem of certain men marrying
> off their young daughters and not revealing to whom. The Rabbanim, in
> past, have outlawed activities which were at one time permissible but
> because of fears that the original intent would not be met these
> activities have been banned.
> ...
> Clearly while it is permissible for
> a husband to marry a daughter, this should only be allowed when it is
> done for the benefit of the daughter. If it is used as a means of
> extortion, it should and must be prohibited.
The point revolves around what you mean by "prohibited". If the Rabbis
were to enact a new prohibition against marrying off ones minor
daughter, it is unclear to me that they would have the power to nullify
the Torah level kedushin that have taken place. Thus all that would
happen is that the father would be basically in "contempt of Beit Din",
but the daughter would still be stuck.
Avi Feldblum
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From: <icb@...> (Israel Botnick)
Date: Tue, 30 May 95 11:02:49 EDT
Subject: Marrying off one's daughter
Akiva Millers suggestion about invalidating the witnesses who witness
the father marrying off his daughter has some flaws.
The Rambam and Shulchan Aruch in Hilchos eidus (laws of witnesses) clearly
defines 2 categories of aveira (sin) which can disqualify a witness
1) an aveira that carries the penalty of malkos (lashes).
2) an aveira of chamas (stealing or theft related aveira).
The 1st type is invalid because of a gzeiras hakasuv (biblical mandate)
that a rasha (wicked person, which is defined as one who commits an aveira
which warrants lashes) cannot be a witness. The 2nd type is invalid because
because anyone who commits a theft related aveira cannot be trusted to
testify honestly. (this is the classical explanation of the 2 categories
of the Rambam as explained by the minchas chinuch and many others).
For this reason, many aveiros do not disqualify one from being a witness,
such as Lo Sachmod (coveting anothers property), or lifnei iver Lo siten
michshol (intentionally misleading someone) since these aveirot do not
carry the penalty of lashes and are not theft related.
In the case at hand, the witnesses are commiting an objectively abhorrable
crime. However It is not one that carries the penalty of lashes (whatever
specific aveira it is, it certainly is a *Lav She-ain Bo Maaseh*),
and it is not directly theft related.
As a side point, what Zvi Weiss wrote, that only a Rasha D'Chamas
(evil associated with Robbery), can disqualify a witness, I don't think
that this is correct. There is such an opinion in the gemara, but the Rambam
and Shulcah Aruch clearly dont follow this opinion and rule that any aveira
which has a penalty of lashes, and even if done le-hachis (spitefully and
not to derive pleasure) can disqualify someone.
Israel Botnick
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From: Mervyn Doobov <mdoobov@...>
Date: Tue, 30 May 1995 21:19:32
Subject: Re: Marrying off one's daughter
Akiva Miller suggests, as a solution to this abomination:
> ...... that the act of being a witness automatically renders
> these witnesses invalid. No matter how observant they might be
> in other parts of their life, sinning was an inherent part of
> their winessing..... The act of being witness to this outrage
> is so sinful that their very presence at this "wedding"
> disqualifies them. Thus there simply were no *valid* witnesses
I cannot comment on the halachic aspects of this solution but it seems
to me that there is a logical problem with it. If such marriages are
allowed by Torah, and if two witnesses are required for a marriage, then
how can their witnessing be a sin ?
Mervyn Doobov
Canberra, Australia
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From: <KANOVSKY@...> (Mechael Kanovsky)
Date: Tue, 30 May 1995 13:06:39 -0500 (EST)
Subject: Re: Marrying off one's daughter
The only way around the problem of the father betrothing the daughter, is
to use the power that the beit-din has in annuling a wedding. The concept is
called "kol de'mekadesh a'da'ata de'rabanan mekadesh" roughly meaning that
when we have kidushin at a wedding we say " harei at mekudeshet li kedat
mosheh ve'yisrael" you are betrothed to me by the guidelines set forth by
mosheh and Israel (beit-din). The beit-din has the power to retro-actively
anull a wedding and to make it non-existent. The Ramban discusses this
method in treating any case of mamzerut (bastards) by anulling the first
marriage. This way the extramarital affair that produced the mamzer would
be between an unmarried woman and a man. The problem with this solution
is that you need a beit-din with enough dare to go through with this.
mechael kanovsky
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From: <EDTeitz@...> (Eliyahu Teitz)
Date: Tue, 30 May 1995 16:53:08 -0400
Subject: Re: minor marriages
Akiva Miller suggested that witnesses to minor marriages were performing
a sin which invalidates them as witnesses and therefore renders te
marriage void.
The problem with this line of thought is that they are performing no
sin. They are witnessing a Torah permitted event, a father marrying off
his daughter. While the motives of the father are abhorrent, the act of
testimony on the part of the witnesses is not against Torah law. We
have to try another approach.
Not having sources handy I can not look up some important halachot. For
example, if a woman is married only rabbinically can she then have
d'oraita marriage on top of it.
Specifically, a father is given permission by the Torah to marry off his
daughter. If the father should happen to die, the girl's mother and
brothers may marry her off. This marriage is only rabbinic in nature.
Also, the daughter, when coming of age, hasa right to reject the
marriage ( miy'un )and she is considered retroactively never married.
What if a mother married her daughter off while the girl's father was
still alive. Would the marriage be valid. What if the father
subsequently married her to a different man. Would the father's Torah
marriage supersede the rabbinic one ( possibly not since marriages are
according to the law of Moshe v'Yisrael, it could be that the chachamim
blocked the Torah marriage from taking hold ).
If a mother's marrying off her daughter during the father's lifetime is
valid, and it blocks the father's marriage from taking hold, then maybe
mothers can marry off their daughters, publicize this event widely ao
that everyone knows who the daughter's husband is, and then when the
girl reaches the age of miy'un, she can reject the marriage and
retroactively be never married and permitted to a kohen.
While this is a great stretch, if it worked it would take the daughters
out of the divorce arena as a bargaining chip. This is a difficult
suggestion to advocate because it could escalate the whole matter, with
fathers now rushing off to marry their daughters before their wives do
it. While this is only an issue in a small minority of cases, even one
such situation is intolerable.
A suggestion was made by a rebbi of mine, that we take the father who
did this and in the manner of a husband who does not want to divorce his
wife, 'convince' the man that it is in his best interests to divulge the
name of the unknown husband. Of course this solution is as difficult to
implement in these situations as it is in cases of adult agunot, but the
public I think would be more supportive in this case, considering the
innocence of the injured party.
I eagerly await responses.
Eliyahu Teitz
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End of Volume 19 Issue 76
