Kiddushin - Daf 44
- Machlokes about מאמר without the yevamah’s consent
It was taught in a Baraisa: העושה מאמר ביבמתו שלא מדעתה – One who does “maamar” (Rabbinical marriage for a yevamah) with his yevamah without her consent, Rebbe says he acquires her, and the Chachomim say he does not. Rebbe derives the laws of maamar from those of relations for yibum: מה ביאה דיבמה בעל כרחה – just as relations of a yevamah are effective as yibum even when performed against her will, אף הכא נמי בע"כ – so too, here, [maamar] is effective even against her will. The Chachomim derive maamar’s laws from ordinary kiddushin: מה קידושין דמדעתה – just as kiddushin must be with her consent to be effective, אף ה"נ דמדעתה – so too here, [maamar] must be with her consent to be effective. The Gemara explains further that Rebbe considers it logical to derive one law of acquiring a yevamah from another, whereas the Chachomim consider it logical to derive one form of kiddushin from another.
- A naarah cannot appoint a shaliach to accept her get
Rava asked Rav Nachman: נערה מהו שתעשה שליח לקבל גיטה מיד בעלה – Can a naarah appoint a shaliach to accept her get from her husband? The Gemara initially explains that the question is whether a naarah’s ability to accept her get is because she is כיד אביה דמיא – considered like her father’s hand, and just as her father can appoint a shaliach, she can as well, or she is כחצר אביה דמיא – considered like her father’s chatzeir, and the get only takes effect when it reaches her (and not a shaliach). However, this explanation is rejected, because Rava says that a person who is awake cannot function as someone’s chatzeir, because it is משתמרת שלא לדעתו – guarded by someone other than [the owner].
Instead, the Gemara explains that she is definitely considered like her father’s hand, and the question is: מי אלימא כיד אביה לשויה איהי שליח או לא – is she as strong as her father’s hand such that she can also appoint a shaliach, or not? Rav Nachman answered that she cannot appoint a shaliach.
- Does a קטנה who accepted kiddushin on her own, require a get and miun before she can remarry?
The Gemara says: קטנה שנתקדשה שלא לדעת אביה – A minor who accepted kiddushin without her father’s knowledge, Shmuel says: צריכה גט וצריכה מיאון – she requires a get before she can remarry, and also requires “miun” (refusal to remain married, ordinarily for an orphaned קטנה to reject Rabbinically instituted kiddushin). Karna commented: דברים בגו – There is something difficult in this: whichever method of marriage termination is called for, why would the other be needed?! The Gemara explains that she requires a get, שמא נתרצה האב בקידושין – perhaps the father agreed to the kiddushin when he heard about it, rendering it effective. She also requires miun, because the father may not have agreed to the kiddushin, and it was invalid. People who see her receive a get may assume her marriage was legitimate and conclude that her former husband is unable to marry her sister, and if he was mekadesh the sister, which would not be valid, they will allow the sister to remarry without a divorce. To avoid this, she performs miun to demonstrate that the marriage was questionable. Rav Nachman said that she only requires a get and miun where the marriage was previously arranged between the two parties; otherwise, there is no concern that the father would agree.
