Kiddushin, Daf Yod Tet, Part 6

 

Introduction

Today s sugya deals with a father who wants to sell his daughter but not allow her to be designated. Can he make such a deal? And what about a case where he sells her to a master to whom she is prohibited in marriage?

 

תניא אידך המוכר את בתו ופסק על מנת שלא לייעד נתקיים התנאי דברי ר"מ

וחכ"א אם רצה לייעד מייעד מפני שהתנה על מה שכתוב בתורה וכל המתנה על מה שכתוב בתורה תנאו בטל

 

Another baraita teaches: If a man sells his daughter and stipulates on condition that he [her master] shall not designate [her], the condition is valid, the words of R. Meir. But the sages say: If he [the master] wishes to designate her, he can do so, because he [her father] has made a stipulation against that which is written in the Torah, and anyone who makes a stipulation against that which is written in the Torah, his stipulation is void.

 

The Torah gives the master the right to designate the slave either to him or to his son. According to R. Meir, the father can prevent this from happening by making a stipulation at the time of the sale. According to the other sages, one cannot make a stipulation to avoid the Torah s laws.

 

ולר"מ תנאו קיים והתניא האומר לאשה הרי את מקודשת לי ע"מ שאין לך עלי שאר כסות ועונה ה"ז מקודשת ותנאו בטל דברי ר"מ

רבי יהודה אומר בדבר שבממון תנאו קיים

 

Does then R. Meir hold that this stipulation is valid? But was it not taught: If a man says to a woman, Behold, you are betrothed to me on condition that you have no claims on me for sustenance, clothing, or conjugal rights, she is betrothed, but the condition is void, the words of R. Meir. R. Yehudah said: In respect of financial matters, his condition is valid.

 

The Talmud raises what seems to be a contradiction in the opinions of R. Meir. Above he implies that one can make a stipulation against that which is written in the Torah. But in the case of a husband who tries to stipulate with a woman that he will betroth her but not take on the responsibilities mandated by the Torah he rules that the stipulation is invalid. This seems clearly to be a contradiction.

 

אמר חזקיה שאני הכא דאמר קרא (שמות כא, ז) לאמה פעמים שאינו מוכרה אלא לאמה בלבד

 

Hizkiyah said: This case is different, because the verse says, [And if a man sells his daughter] to be a slave sometimes he can sell her only to be a slave.

 

Hizkiyah explains that the case of the slave is different because the Torah explicitly says that the father can sell her just to be a slave. In general, though, R. Meir would agree that one cannot make a stipulation that contradicts the Torah.

 

ורבנן האי לאמה מאי עבדי ליה האי מיבעי להו לכדתניא לאמה מלמד שמוכרה לפסולים והלא דין הוא אם מקדשה לפסולים לא ימכרנה לפסולים מה למקדשה לפסולים שכן אדם מקדש את בתו כשהיא נערה ימכרנה לפסולים שאין אדם מוכר את בתו כשהיא נערה ת"ל לאמה מלמד שמוכרה לפסולין

 

And the rabbis? What do they do with this word to be a slave ? They use it for that which was taught: To be a slave : this teaches that he can sell her to those unfit [for marriage with her]. But is this not logical: if he can betroth her to those unfit to her, should he not be allowed to sell her to those unfit to her? As for betrothing her to those unfit to her, that may be because a man can betroth his daughter as a na’arah: shall he then sell her to those unfit to her, seeing that a man cannot sell his daughter as a na’arah? Therefore Scripture states: to be a slave , teaching that he can sell her to those unfit to her.

 

The rabbis do not need a special midrash on the word to be a slave because they already hold that one cannot make a stipulation to contravene Torah law. So what do they do with this word? They use it to teach that he can sell her to those unfit to marry her, but with whom betrothal is valid. This category would primarily include a mamzer.

The baraita argues that we should not need this word, that it is logical that he should be able to sell her to those unfit to her. After all, a father can betroth his daughter to those unfit to her (he should not do so, but he has the legal ability). And if something is logical, then we do not need a verse to teach it.

To counter this, the baraita argues that a father has rights with regards to betrothing his daughter that he does not have with regard to selling her. He can betroth her when she is a na arah, a young girl, but he can only sell her when she is a minor. Thus we might have thought that he can betroth her to a mamzer, but not sell her to one. Hence we need the verse to teach that he can.

 

ר’ אליעזר אומר אם ללמד שמוכרה לפסולין הרי כבר נאמר (שמות כא, ח) אם רעה בעיני אדוניה שרעה בנישואיה מה ת"ל לאמה מלמד שמוכרה לקרובים והלא דין הוא אם מוכרה לפסולין לא ימכרנה לקרובים מה למוכרה לפסולין שאם רצה לייעד מייעד ימכרנה לקרובים שאם רצה לייעד אינו מייעד אמר קרא לאמה מלמד שמוכרה לקרובים

 

R. Eliezer said: If it is to teach that he can sell her to those unfit for her, behold, it was already said: if she is found not pleasing to her master [so that he has not designated her] (Exodus 21:8) which means, she was displeasing in respect of marriage.

What then is meant by, to be a slave ? It teaches that he may sell her to relatives.

But is this not logical: If he can sell her to those unfit for her, shall he not sell her to relatives?

As for selling her to those unfit for her, that may be because if he wishes to designate her he can do so, shall he then sell her to relatives, seeing that if he wishes to designate her, he cannot? Therefore the verse says, to be a slave, teaching that he can sell her to relatives.

 

R. Eliezer reads another verse as allowing her to be sold to those unfit for her. So then what does he do with the word to be a slave ? He claims that it teaches that he can sell her to relatives, even though these relatives cannot marry her because that would be incest.

Again, the baraita claims that this is obvious if he can sell her to those unfit for her, clearly he can sell her to relatives. But this argument is easily debunked. He can sell her to those unfit for her, because even though designation would be prohibited, it would still be possible. But we might have thought that he cannot sell her to relatives because these relatives could not designate her. Therefore, the verse teaches us that he can even sell her to a relative, one who could not designate her because marriage with this relative is prohibited.

 

ור"מ לפסולין נפקא ליה מהיכא דנפקא ליה לר"א בקרובים סבר לה כרבנן דאמרי אין מוכרה לקרובים

 

And R. Meir? [From where does he derive that she can be sold] to those unfit for her? He deduces it from the same verse from which R. Eliezer deduces it; and in the matter of relatives he agrees with the rabbis, who maintain: he may not sell her to relatives.

 

Having used the word for a slave to teach that a father may not stipulate that his daughter not be designated, R. Meir needs a source for allowing the father to designate her to those unfit for her. This is a halakhah agreed to by all. To do this, R. Meir can use the verse that R. Eliezer used, if she is found not pleasing to her master [so that he has not designated her]. And when it comes to relatives, he can agree with the sages that the father may not sell her to relatives.