QUESTION: The final case of the Gemara (45b) is that of a Ketanah who accepted Kidushin without the knowledge of her father and then performed Nisu'in without his knowledge. Rav Huna rules that her marriage is valid. Rav Yirmeyah bar Aba rules that her marriage is not valid. Ula rules in accordance with Rav Yirmeyah bar Aba based on logical reasoning.

Rava explains that Rav Huna's reason for ruling that the marriage is valid is that "she acted like a Yesomah (orphan) in the lifetime of her father." RASHI explains that since the daughter acted rashly as though she were an orphan without a father, her father should have protested when he found out about the Kidushin or Nisu'in. Rashi writes in his first explanation that the father's lack of protest indicates that he willingly relinquished ("Hifkir") the right to marry her off. Rashi writes in his second explanation that the father's silence is a sign that he consents to the marriage ("Shetikah k'Hoda'ah").

Rashi's second explanation is logical. Since the father remained silent, he presumably consented and, consequently, the Kidushin takes effect retroactively through "Zechiyah" (the daughter serves as the Shali'ach of the father to accept her Kidushin).

Rashi's first explanation, however, is difficult to understand. Rashi writes that the marriage is valid because the father relinquished his right to marry her off. Accordingly, the father had no role in the Kidushin whatsoever; he forfeited his rights altogether. This means that the Ketanah acted entirely on her own volition. Why, then, is she married? A Ketanah cannot perform an act of Kidushin on her own since the Kinyan of a Katan or Ketanah is not valid.

ANSWER: The SEFER HA'MIKNAH and the PNEI YEHOSHUA write that according to this explanation of Rashi, the Kidushin is valid only mid'Rabanan. With regard to all d'Oraisa laws (such as the husband's right to become Tamei for her if he is a Kohen) she is not considered married to him. They refer to TOSFOS earlier (45b, DH b'Feirush) who cites the view of RABEINU TAM that a Ketanah whose father has traveled abroad has the same status as a Yesomah who, mid'Rabanan, is able to accept Kidushin even when she is a Ketanah. The same principle applies to the explanation of Rashi here. If the father has forfeited his rights, the daughter is viewed as "orphaned" and she therefore may accept Kidushin on her own.

QUESTION: Rav teaches that a Ketanah who accepts Kidushin without the knowledge of her father may change her mind and terminate the relationship (without a Get).

Earlier (44b), Rav says that when a Ketanah accepts her own Kidushin, there is concern that the father may have consented to the marriage. If there is a concern that the father may have consented, why does Rav here teach that the Ketanah may change her mind? If the father wants the Kidushin to take effect, the daughter should have no say in the matter (as is the case in every situation of a Ketanah whose father has the right to marry her off without her consent).

(a) TOSFOS (DH Bein Hi) explains that since the Ketanah's acceptance of Kidushin on her own functions through the mechanism of "Zechiyah," when the father sees that his daughter has decided to terminate the marriage, he presumably is no longer interested in the marriage and there is no concern that he will consent to it. Her act, therefore, is not considered an act of "Zechiyah" for her father.

(b) RASHI apparently addresses this question. Rashi writes that the Ketanah may change her mind only before her father finds out about and consents to the Kidushin. Once her father consents to the Kidushin, the Kidushin takes effect and she cannot change her mind. She may change her mind only when it is known beyond a doubt that her father did not consent.

Even if she may change her mind only before her father finds out about the Kidushin, why should her will affect the validity of the Kidushin? After all, only her father has the right to accept Kidushin for her.

The MAHARAM explains that since the act was done by her, she has the right to retract her act. Although she acted only as a Shali'ach for her father, she still may nullify the act through her retraction since her retraction is done before the Kidushin takes effect (i.e. before her father consents). The Maharam implies that this is a rule in every case of Shelichus: a Shali'ach may retract his act as long as the act did not yet take effect.

QUESTION: Rav and Rav Asi disagree about whether a Ketanah who accepts Kidushin without her father's consent may change her mind. The Gemara challenges the opinion of Rav Asi that only the father, and not the daughter, may retract the Kidushin. The verse teaches that a man who persuades ("Mefateh") a girl to live with him must take her as his wife, but "if her father refuses (Im Ma'en Yema'en Aviha) to give her to him" (Shemos 22:16) he must pay a penalty instead. The extra wording of "Ma'en Yema'en" teaches that the daughter also is entitled to refuse the marriage. The verse, which allows a girl to refuse the marriage after the man seduced her and persuaded her to accept Kidushin ("Pituy l'Shem Kidushin"), contradicts the view of Rav Asi who says that the girl may not refuse the marriage once she has accepted Kidushin on her own.

The Gemara answers that the verse refers to a man who seduces a girl but does not persuade her to accept Kidushin from him ("Pituy she'Lo l'Shem Kidushin"). Rav Yosef adduces support for the Gemara's answer from the verse (Shemos 22:15) which requires that the man be Mekadesh the girl after the seduction. If his act of seduction included persuading her to accept Kidushin, he should not have to be Mekadesh her again! Abaye refutes Rav Yosef's proof by pointing out that the purpose of the second Kidushin is to have an act of Kidushin with the father's consent (since the first act of Kidushin was done without his consent).

According to the opinion that the seduction of the girl included persuading her to accept Kidushin, whose consent (Da'as) validates the Kidushin? Since the girl is a Ketanah, it cannot be her Da'as which validates the Kidushin, because a Ketanah does not have Da'as to make a Kinyan. Rather, it must be the father's Da'as which validates the Kidushin. Why, then, does Abaye maintain that a second act of Kidushin is necessary so that the act of Kidushin will have the father's consent? If he did not consent in the first place, the "Pituy" was an ineffective act of Kidushin. If he did consent to the Kidushin at the time of the "Pituy," there should be no need for a second act of Kidushin!

ANSWER: The RITVA explains that although there is a concern that the father may have consented at the time of the "Pituy" (and thus Rav follows his own view in this regard, as he expresses earlier), there still is no certainty that the father did not consent. A Get is required out of doubt. The girl does not have a definite status of Mekudeshes unless the father gives his explicit consent to the Kidushin. Accordingly, the Gemara does not mean that the Torah actually requires a new act of Kidushin, but rather that when the father shows his consent, it is considered as though a proper Kidushin has been performed.

The RASHBA suggests that the Gemara here provides further proof for the view of the RIF (see Insights to Kidushin 43:3 and 44:1) who maintains that the consent of the father does not work retroactively to make the Kidushin (which the Ketanah accepted on her own) take effect. The Rashba explains that this is exactly what Abaye means to say: since the consent of the father does not work to validate the Ketanah's Kidushin, there is no proof that the verse refers to "Pituy she'Lo l'Shem Kidushin."

QUESTION: Rav and Shmuel disagree about how to view the money given for Kidushin when the Kidushin cannot take effect (such as when a man gives money to his sister in order to be Mekadesh her). Rav rules that the money is considered a Pikadon, a deposit, and if it is lost or consumed it becomes a Halva'ah, a loan, which the woman must pay back. Shmuel rules that the money remains a gift from the man to the woman.

The Gemara applies this dispute to the case of the Mishnah (46a) in which a man is Mekadesh a woman by giving her three dates and saying, "Be Mekudeshes unto me with this, and with this, and with this (b'Zu uv'Zu uv'Zu)." The Mishnah says that the Kidushin does not take effect immediately but only after all of the dates have been given. In the interim, before all of the dates have been given, the first two dates have the status of a Kidushin that has not taken effect, and thus the status of each date depends on the status of money given for Kidushin when the Kidushin cannot take effect.

Before the Gemara introduces the dispute between Rav and Shmuel, it proves that Rebbi Ami maintains that money given for Kidushin which cannot take effect is not considered a gift but rather a deposit which becomes a loan after it is spent (as Rav rules). For this reason, Rebbi Ami rules that the Kidushin does not take effect unless the last date has the value of a Perutah.

The Gemara implies that if the money of Kidushin which does not take effect would have the status of a gift, the Kidushin in this case would take effect after the entire act of Kidushin is completed (i.e. after all of the dates have been given). Why should the Kidushin take effect? The dates in the interim period (before the last one is given) are all considered gifts, which were not given for the purpose of Kidushin. They have already become the property of the woman like any ordinary gift. How can they be used to create Kidushin?

ANSWER: The RASHASH explains that the comparison between one who attempts to marry his sister and the case of the Mishnah is a limited comparison. In the case of one who attempts to marry his sister, the Kidushin can never take effect, but in the case of the Mishnah the Kidushin will take effect later and only in the interim period it does not take effect. The intent of the Mekadesh in the case of the Mishnah is to create a valid Kidushin and not to give a deposit or a gift. Although the Kidushin does not take effect right away, the Mekadesh does nothing to impede the Kidushin from eventually taking effect. His intention depends on the dispute between Rav and Shmuel.

If the Halachah follows the view of Rav and the money of Kidushin is considered a deposit, the giving of that money does not hinder the Kidushin from taking effect later. Since the money (or other object) still belongs to the Mekadesh it can be converted into Kesef Kidushin at his will. The reason why, in the case of the Mishnah, the first two dates cannot be used for Kidushin is not because of the intent of the Mekadesh, but rather because of the woman: by consuming the dates she turned the deposit into a loan which can no longer be used for Kidushin. As far as the Mekadesh is concerned, giving a deposit should not interfere with the Kidushin.

If, however, the Halachah follows the view of Shmuel and the money given for a Kidushin which does not take effect is considered a gift, the case of the Mishnah is not comparable to an ordinary case of Kidushin which does not take effect. In the case of the Mishnah, the man has absolutely no intention to give the woman a gift. Since his intention clearly is to give the dates for the sake of Kidushin (which will take effect after he gives the last date), he does not act in this case as a man acts in an ordinary case of Kidushin which does not take effect. Rather, he gives the dates with full intent that they be used for the sake of creating Kidushin. (See also RITVA.)