Kiddushin, Daf Yod Tet, Part 1
Introduction
Can a master designate a female slave for his minor son, one too young to marry her himself?
בעי ריש לקיש מהו שמייעד אדם לבנו קטן בנו אמר רחמנא בנו כל דהו או דילמא בנו דומיא דידיה מה הוא גדול אף בנו גדול
Resh Lakish asked: Can a man designate [his female slave] for his minor son? His son the Torah said, his son, whatever his state; or perhaps, his son must be similar to himself: just as he is an adult, so must his son be an adult?
The Talmud states the parameters of the question. Lurking behind this question is a bigger question can a minor son ever be married?
אמר רבי זירא תא שמע (ויקרא כ, י) איש פרט לקטן אשר ינאף את אשת איש פרט לאשת קטן ואי אמרת מייעד אם כן מצינו אישות לקטן
R. Zera said: Come and hear: [ And a man that commits adultery with another man’s wife ]: a man excludes a minor; that commits adultery with another man’s wife excludes the wife of a minor.
But if you say that he can designate, if so, we find marriage in the case of a minor.
The baraita seems to teach that a minor boy can never be married. But if a master can designate the slave woman to his son, then a minor could be married. Should a man commit adultery with this woman, why does it not count as adultery?
ואלא מאי אינו מייעד אמאי קא ממעט ליה קרא תיפשוט מינה דמייעד
Then what? He cannot designate [her to his minor son]? Why then does Scripture exclude it? Learn then from this that he can designate!
But we could actually read the baraita in an opposite way. If a minor can never marry, why exclude the minor s wife from the punishment of adultery there would be no such thing as a minor s wife? Thus there must be a case where a minor can marry, and we can assume it is designation.
אמר רב אשי הכא ביבם בן תשע שנים ויום אחד הבא על יבמתו עסקינן דמדאורייתא חזיא ליה מהו דתימא כיון דמדאורייתא חזיא ליה וביאתו ביאה הבא עליה מתחייב באשת איש קמ"ל
R. Ashi said: Here we are dealing with a yavam, aged nine years and a day, who had intercourse with his yevamah, who is connected to him by biblical law. What might you have said? Since she is tied to him by biblical law and his intercourse is intercourse, another man who has intercourse with her incurs the penalty for [adultery with] a married woman: thus it teaches us that he is not.
Rav Ashi provides an entirely different context to the baraita. The minor here is a minor yavam (brother-in-law) who is nine years old. This is the age from which the rabbis believe that a minor could have intercourse (younger than that is considered just playing doctor ). In normal cases a minor cannot marry a woman because he cannot betroth her betrothal requires awareness which he is considered to lack. But this yavam need not acquire his wife she is connected to him by Torah law because the Torah mandates she be married to the brother-in-law. When he has intercourse with her, he now becomes a minor husband. We might have thought that his wife is subject to the laws of adultery, therefore the baraita needs to teach us that she is not. But we now do not need to posit that a master can designate a slave woman to his minor son.