Talmud - Kiddushin 44b קידושין מ״ד ב׳

According to the Rabbis, who hold that a young woman can accept her own bill of divorce, what is the halakha with regard to the ability of a young woman to appoint an agent to receive her bill of divorce from the hand of her husband? The Gemara explains the two sides of this question: Since a young woman is under her father’s jurisdiction, is she, with regard to acquisitions, considered like an extension of her father’s hand, or is she considered like her father’s courtyard? The Gemara clarifies: She might be considered like her father’s hand, and just as her father can appoint an agent, so too she can appoint an agent. Or perhaps she is considered like her father’s courtyard, and therefore she is not divorced until the bill of divorce actually reaches her possession, as a courtyard cannot appoint an agent, but it can receive a bill of divorce, in the sense that a bill of divorce thrown in his courtyard is considered to be in his possession.

The Gemara asks: And is Rava uncertain about this matter? But doesn’t Rava say: If one wrote a bill of divorce and placed it in the hand of his wife’s slave, who is sleeping, but she is guarding him, then it is a valid bill of divorce. If the slave was awake, then it is not a valid bill of divorce. Why is it not a valid bill of divorce if he is awake? It is because the slave is for her a courtyard that is not consciously secured by her, i.e., when the slave is awake, he is not fully controlled by her. And if it enters your mind that a young woman is considered like her father’s courtyard, then even when the bill of divorce reaches her possession she should not be divorced, since she is like a courtyard that is not consciously secured by her father.

Rather, it is actually obvious to Rava that a young woman is considered like her father’s hand and not like his courtyard, and this is what he was asking: Is she just as strong as her father’s hand, to the extent that she can appoint an agent, or not? Rav Naḥman said to him: She cannot appoint an agent.

Rava raised an objection to him from a mishna (Gittin 65a): In the case of a minor girl who said to an agent: Receive my bill of divorce for me, it is not a valid bill of divorce until the bill of divorce reaches her possession, since a minor is not considered halakhically competent and cannot appoint an agent. Rava inferred from this: But in the case of a young woman, it is a bill of divorce, which indicates that a young woman can appoint an agent. The Gemara answers: With what are we dealing here? With a situation where she does not have a father, and she can appoint an agent since she is of age and is under her own authority. But a betrothed young woman whose father is still alive is under his authority and cannot appoint an agent.

The Gemara asks: But from the fact that the latter clause of that same mishna teaches: If her father said to an agent: Go out and receive a bill of divorce for my daughter, then if the husband seeks to retract his decision after he has given the bill of divorce to the agent he cannot retract it, since it is as though the bill of divorce reached her possession, by inference, one can say that in the first clause we are dealing with a case where she has a father. The Gemara answers: The mishna is incomplete and this is what it is teaching: In the case of a minor girl who said: Receive my bill of divorce for me, it is not a bill of divorce until the bill of divorce reaches her possession. But in the case of a young woman, it is a bill of divorce as soon as it reaches her agent’s possession. In what case is this statement said? It is said when she does not have a father. But if she has a father, and her father said to an agent: Go out and receive my daughter’s bill of divorce on her behalf, and the husband seeks to retract his decision, he cannot retract it.

§ It was stated that amora’im disagreed in the case of a minor who became betrothed without her father’s consent. Shmuel says: If her husband seeks to divorce her she requires a bill of divorce to sever the marriage, and she also requires refusal, which annuls a betrothal that is valid by rabbinic law but not by Torah law. Karna says: There are puzzling matters included within this statement, since it is self-contradictory: If she needs a bill of divorce, and the betrothal is evidently treated as a proper betrothal, why does she require refusal? Conversely, if she requires refusal, indicating that her betrothal was of no consequence by Torah law, why does she require a bill of divorce?

The Sages said to him: Now that Mar Ukva and his court are in the town of Kafrei, let us pose the question to them. Furthermore, they reversed the names of the respective opinions of Shmuel and Karna and sent the question before Rav. He said to the messengers in the form of an oath: By God! She requires a bill of divorce and she requires refusal. And God forbid that the seed of Abba bar Abba, i.e., Shmuel, should say such a thing, that she does not require both.

The Gemara asks: And what is the reason that there is a need for both a bill of divorce and refusal? Rav Aḥa, son of Rav Ika, said: She requires a bill of divorce because perhaps the father desired the betrothal, which would mean it would take effect retroactively. She also requires refusal because perhaps the father did not desire the betrothal, and it did not take effect. If she receives only a bill of divorce, and her former husband proceeds to betroth her sister, people will say that the betrothal does not take effect with her sister. The halakha is that betrothal can take effect with the sister of one’s wife or former wife only after the first wife has died. She is therefore required to perform refusal, to indicate that the validity of her betrothal was uncertain. If he later betroths her sister, he would be required to divorce her due to the uncertainty if this second betrothal took effect.

Rav Naḥman said: And this concern that the father of a minor might later state that he desired her betrothal is relevant only when they arranged the match before she betrothed herself, as in that case it is likely that the father desired the betrothal.

The Gemara quotes another opinion. Ulla said: If a minor accepted betrothal without her father’s consent, her betrothal does not take effect, and she does not even require refusal. The Gemara asks: Does Ulla’s statement apply even though they arranged the match? The Gemara answers: He who teaches this does not teach that. The one who cited Ulla’s statement does not hold that Shmuel’s ruling applies only in the case of an arranged match, rather it applies in all cases. According to this opinion, Ulla stated his halakha only in a case where the match was not arranged. There are those who say that Ulla says: If a minor became betrothed without her father’s consent, she does not even require refusal, including a case where the match was arranged.

Rav Kahana raises an objection: The mishna in Yevamot (2a) teaches that if a potential yevama is in one of the fifteen categories of women forbidden to the yavam as a relative, not only is she forbidden to him, but he also may not perform levirate marriage with any of her rival wives. The Sages then clarified this halakha: And if, before the husband had died, any of those forbidden women had died, or had performed refusal; or had been divorced; or had been found to be a sexually underdeveloped woman [ailonit], who is incapable of bearing children, then her rival wives are permitted to the yavam.

Rav Kahana focuses on the case of one who performed refusal: With regard to this refusal that she performed, what type of betrothal did it follow? When she was betrothed by whom? If we say that her father betrothed her to the brother who died, is refusal alone enough for her to dissolve the marriage? Doesn’t she require a proper bill of divorce? Rather, is it not referring to a case where she betrothed herself when she was a minor, and the mishna nevertheless teaches that she requires refusal. This presents a difficulty for Ulla, who holds that she does not need even refusal.

The Gemara comments: Rav Kahana raised the objection and he resolved it: The mishna refers to a case where she became like an orphan in her father’s lifetime, i.e., her father betrothed her to a man, and she was subsequently widowed or divorced while still a minor. In that case, the same halakha as that of an orphan applies to her, in that her father does not have the right to betroth her again, although he is still alive. If she then would betroth herself, her betrothal is not effective by Torah law, because she is still a minor. It does take effect by rabbinic law, and she can annul that marriage by performing refusal. This would not be a question for Ulla, as he stated his ruling in a case where it was the first betrothal of the minor.

Rav Hamnuna raises an objection: It is taught in a baraita with regard to a Hebrew maidservant: A father cannot sell his minor daughter as a Hebrew maidservant to her relatives because the Torah requires that the one who purchases a maidservant be able to marry her. The Sages said in the name of Rabbi Elazar: He can sell her even to her relatives, as sometimes a Hebrew maidservant serves only in that capacity, without marrying the master.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Kidushin 44b explores whether a young woman under her father's authority can appoint an agent to receive her bill of divorce, comparing her legal status to a hand versus a courtyard.