1) Josh, Baruch She-Kivanta! This question is asked by the Noda BiYehuda Even Ha'Ezer Second Edition #54 DH veHineh Kasheh Li. He asks that since according to most Poskim when there is daas acheres makneh a katan can be koneh mideoraisa, why do we not say that if a katan marries an adult woman, she is makneh herself to him, so why can he not acquire her?!

2) Noda BiYehuda answers with the Magid Mishneh on Rambam Hilchos Mechirah 29:1; that daas acheres makneh only applies to a present, not to a sale. This is because the minor cannot transfer the money to the seller. Therefore kidushin cannot work with a katan since he has no way to give the money for kidushin to the adult bride.

A gezunter Winter!

Dovid Bloom

Opinion of Ra'avan:

1) I found that the Avnei Miluim (by the author of Ketzot HaChoshen) 43:2 DH uKaEit cites the Ra'avan (who was a contemporary of Rabeinu Tam) page 299 column 3, who cites a teshuva written by Rabeinu Yitzchak bar Moshe to Rabeinu Natan Hamakiri. The question concerned an 11 year old boy whose father did kidushin for him with a ring and witnesses. Rabeinu Yitzchak answered that we always find the rule (Yevamos 118b) that "Zachin LeAdam She-Lo Befanav"; we can grant a zechut to a person even though he is not present (and a minor is always considered as not being "present") and it is clearly considered a zechut for the boy to marry a worthy woman.

According to Ra'avan it appears that we do indeed say daas acheres makneh for kidushei katan.

2) See also Mishneh LeMelech Hilchot Gerushin 6:3 (at beginning) who cites Ri bar Barzilai (cited by Teshuvat Maharik Root 30) that if a father did kidushin for his minor son the woman requires a get because of zachin LeAdam She-Lo Befanav. This seems to be the same as the Ra'avan.

KOL TUV

Dovid Bloom

According to Rashi, the minor's biah is effective for kidushin:-

1) The Shitah Mekubetzet Kesubos 73b DH Od Katav Rivash (page 130) [cited by Aveni Miluim 43:2 DH uBezeh] writes in the name of the first edition of Rashi that a 9-year old minor can acquire a wife through kidushei biah. If he does biah with the intention of kidushin this works. However he cannot do kidushin through money or shtar until he is 13 because he does not possess a "Yad"; he has no hand with which to effect the kinyan with money or the deed document.

2) It seems to me that according to Rashi we can answer a question that a lot of Mefarshim ask on the Tur. The Tur in Even Ha'Ezer #141, page 49a in the old editions, discusses a youngster who wants to divorce his wife by appointing a Shaliach to give her the get. The Tur writes that if the husband is of tender years, it is good to check that he does in fact have pubic hairs. The Darkei Moshei (by the Rema) #22 asks on the Tur:- why do we need to check if the husband is adult and capable of appointing an agent to hand over the get? If he is indeed still a minor then there is no need anyway for him to give a Get, because a minor cannot marry, so he is not married to her in the first place?!

I want to suggest that according to Rashi, cited by Shitah Mekubetzet Kesubos as above, we can answer the question of the Darkei Moshe. A minor can indeed be married if he did kidushei biah over the age of 9, but he cannot make a shaliach to give a Get until he is 13 which is why it is necessary to check if he is adult physically before he can give the Get.

Dovid Bloom

A fuller treatment of opinion of Noda biYehuda cited above in my first reply:

In my first reply above I only mentioned the beginning of the Noda biYehuda's answer to the question but he asks questions on his own answer and deals with the topic at length.

1) To summarize what I wrote above:- the question of the Noda biYehuda is that the woman is adult and she gives herself to the minor husband so why do we not say her daas acheres is makneh herself to him? Noda biYehuda answered that daas acheres only applies to a gift, not to a sale, and therefore the minor cannot give the money for kidushin to her.

2) The Noda biYehuda challenges his own answer on the basis of the fact that miderabanan the katan can give her the money and if so the kidushin should work mideoraisa. I will explain bs'd. The Mishnah Gitin 59a states that young children can buy and sell movable objects. The Gemara there explains that this is a takana of Chazal because otherwise children without parents helping them would have no livelihood. The Gemara states that the minimum age varies between 6 and 10 years depending on the maturity of the child. At any rate, according to this why could a minor not give money to an adult girl for kidushin and she will be makneh herself to him? And if you will say that the Gemara Gitin only refers to a derabanan transaction; whilst we are trying to effect a kidushin mideoraisa; the Noda biYehuda cites the Beit Shmuel on Shulchan Aruch Even Ha'Ezer 28:3 and 28:35 in the name of the Beit Yosef and the Ran that in a scenario where the husband receives the kidushin money through a takana of Chazal, if he then does kidushin with this money, it is effective mideoraisa because according to the Halacha the money belongs to the chatan and it does not matter whether he received the money by derabanan means or deoraisa means.

Since we have seen that miderabanan the minor can give her the kidushin money, the Noda biYehuda still has no answer why daas acheres cannot make the kidushin work for the katan.

3) Noda biYehuda DH veAmarti answers by providing 2 verses which serve as a gezerat hakatuv to teach that a katan cannot marry:-

(a) Vayikra 20:10 "And if a man commits adultery with the wife of a man ". The Gemara Kidushin 19a learns from here that it is only possible for a woman to be the wife of a man from which we learn that a minor cannot marry.

(b) Devarim 24:1 "When a man takes a woman"; Noda biYehudah writes that we derive from here that a man can take a woman, but a minor cannot take a woman. [See also Rashi Kesubos 73b DH Katan who writes that a katan cannot effect kidushin at all, because the verse states "When a man takes a woman"].

So according to Noda biYehuda there is a gezeras hakosuv that a katan cannot cannot do kidushin but if not for this, daas acheres could have worked.

Dovid Bloom