רש"י ד"ה יתומה אני שהיי'תי קטנה במיתת אבי וכו'.. ולהך סברא לאו בתו של שם היתה וכו'.. ולפי רש"י ז"ל היא היתה קטנה ולכן לא היתה אסורה עליו משום כלתו

3) TAMAR, THE "GIYORES" AND THE "YESOMAH"

QUESTIONS: Tamar assurred Yehudah, who thought that she was a Nochris, that she was permitted to him because she was a Giyores. When he questioned that perhaps her father was Mekadesh her to Er and Onan thus making her Asur to him, she assurred him that she was a Yesomah at the time of her Kidushin.

(a) What did Tamar mean when she said that she was a Giyores? The Torah had not yet been given and there were no Jews and no Gerim!

(b) Also, if she was considered a Giyores, why did she have to say that she was a Yesomah in order to answer Yehudah's other concern? We know that a "Ger sh'Nisgayer k'Katan she'Nolad Dami" -- a Ger who converts is like a newborn child (Yevamos 97b) -- and thus she has no connection to her Nochri father and he could not have married her off!

(c) In addition, why should the Nochri father be able to be Mekadesh her to someone? The Gemara in Sanhedrin (58b) says that a Nochri only has matrilineal relationship (a Nochri is considered to be related only to his or her mother), and thus a Nochri father is allowed to marry his daughter! Since there is no patrilineal relationship, why is the father permitted to be Mekadesh her to someone?

ANSWERS:

(a) RASHI explains that when Tamar said that she was a Giyores, she meant that she did not worship Avodah Zarah, and therefore she was fit to marry Yehudah. RAV YAKOV EMDEN (in Hagahos Ya'avetz) adds that from the times of Avraham Avinu, Avraham and his family were already considered like Bnei Yisrael (see Mishnah l'Melech in beginning of Parshas Derachim). The RA'AVAD in Avodah Zarah (36b) explains that this is the reason why the Beis Din of Shem enacted a prohibition against a Jew or Jewess having relations with a Nochri woman or man (marrying a Nochri or Nochris is Asur mid'Oraisa). The Gemara cites the verse (Bereishis 38) that describes how Yehudah wanted to kill Tamar as a punishment for transgressing this decree. The Ra'avad explains that even though there was no Torah or Jewish nation at the time of Yehudah, nevertheless the family of Avraham Avinu separated themselves from the other nations and made themselves a unique group dedicated to serving Hash-m and rejecting Avodah Zarah. Tamar, the descendant of Shem, was also part of this group.

The BRISKER RAV explains that this is why Yehudah acquitted Tamar of all charges as soon as he realized that he was her suitor. He wanted to kill her as a punishment for having relations with a Nochri, but once he discovered that she had relations with a Jew (himself), he acquitted her because she was guilty of no transgression.

(b) Regarding why the father of a Nochris should still have the rights of Kidushin of his daughter, the SHEVUS YAKOV (1:177), cited by He'oros b'Maseches Sotah, says that the principle of "Ger sh'Nisgayer k'Katan she'Nolad Dami" does not affect all Halachos, and the rights to marry off his daughter is not affected by this principle.

Another explanation might be that Tamar's father had been Megayer earlier (before she was born), and she meant that she was following the path of her father and serving Hash-m. Alternatively, she meant to say that she was Megayer after marrying Er and Onan (and at the time that she married Er and Onan, she was still a Nochris and her father (had he been alive) would have had the rights to be Mekadesh her to them).

(c) Regarding why a Nochri father should have the rights of Kidushin of his daughter if he is not considered related to her, it seems that the rights to marry off a daughter does not stem from familial relationship, but rather from the rights of protectorate that a father has over his daughter. (See Kesuvos 46a, where the Gemara compares the right to marry off one's daughter to the right to sell one's daughter as a maidservant.) Even a Nochri retains such rights of ownership over his minor offspring.