1) A NA'ARAH'S ABILITY TO ACCEPT KIDUSHIN AND A GET
QUESTION: The Gemara (43b) quotes the Mishnah in Gitin (64b) in which the Rabanan state that both a Na'arah Me'urasah and her father may accept her Get. Rebbi Yehudah there disagrees and says that only her father may accept her Get.
Rebbi Yochanan and Reish Lakish disagree about whether the dispute between Rebbi Yehudah and the Rabanan applies also to Kidushin. May a Na'arah accept her own Kidushin, or must her father accept it for her? Reish Lakish maintains that their dispute applies also to Kidushin, and thus according to the Rabanan a Na'arah may accept her Kidushin. Rebbi Yochanan asserts that the Rabanan agree with Rebbi Yehudah that a Na'arah cannot accept Kidushin on her own but that her father must accept it for her.
The Gemara challenges the opinion of Reish Lakish from the Mishnah (41a) which states that a father may marry off his daughter when she is a Na'arah, "either he or his Shali'ach." The Gemara infers from the fact that the Mishnah does not state that "either she or her Shali'ach" may accept her Kidushin that a Na'arah cannot accept her own Kidushin, in contrast to the opinion of Reish Lakish. Reish Lakish answers (according to the conclusion of the Gemara) that the Mishnah expresses the view of Rebbi Shimon who agrees with Rebbi Yehudah with regard to Shelichus, and thus the Mishnah does not say that "she or her Shali'ach" may accept her Kidushin.
The Gemara's question on Reish Lakish from the Mishnah is difficult to understand. Perhaps when the Mishnah says that "he or his Shali'ach" may accept Kidushin for his daughter, it does not intend to exclude the Na'arah herself from accepting Kidushin, but rather it intends to exclude the Na'arah's Shali'ach from accepting Kidushin. (This is similar to the Gemara's conclusion that the Rabanan (in the Mishnah in Gitin) agree that only the Na'arah herself may receive her Get, but she may not appoint a Shali'ach to receive it for her.) Perhaps the Na'arah is excluded only from the right to appoint a Shali'ach but not from the ability to receive the Kidushin herself. Since she may accept Kidushin for herself, the Mishnah poses no question on the view of Reish Lakish.
ANSWER: The RITVA and RASHBA answer that if the intent of the Mishnah is to teach only that a Na'arah's Shali'ach cannot accept her Kidushin, the Mishnah should not mention the father's own ability to receive the Kidushin ("either he or his Shali'ach"), but rather it should mention only that his Shali'ach may accept Kidushin for his daughter. Since the Mishnah mentions both the father and his Shali'ach, it is clear that the Tana's intent is to exclude a Na'arah from both powers -- she may not appoint a Shali'ach to receive her Kidushin, and she may not receive it herself. (See alternative answer of SHITAH LO NODA L'MI.)
This explanation needs clarification. According to the Ritva and Rashba, the Gemara's inference from the Mishnah is not from the inability of the Na'arah to appoint a Shali'ach (as on 44b), but from the Na'arah's own inability to receive the Get herself. Why, then, does the Gemara refer to the Mishnah as "Shelichus" and say that with regard to Shelichus the Tana agrees with Rebbi Yehudah? According to this explanation, the Gemara is not discussing Shelichus at all; it is discussing the difference between the father and the Na'arah themselves!
The MAHARSHA answers that even according to the Rabanan who rule that a Na'arah may receive a Get or Kidushin herself, her right to receive the Get or Kidushin is not based on her own power, but it is an extension of her father's rights. The Maharsha proves this from the question of the Gemara later (44b): Is a Ketanah like the Yad (hand) of the father (and therefore she may appoint a Shali'ach) or is a Ketanah like the Chatzer of the father (and therefore she may not appoint a Shali'ach)? Both sides of the question view the Ketanah as an extension of her father -- either as his Yad or as his Chatzer. Neither side views her as having her own independent power. Therefore, when the Gemara discusses the Na'arah's own ability to receive a Get or Kidushin, it refers to her ability as "Shelichus" since she is, in effect, the Shali'ach of her father, as her power to receive a Get or Kidushin comes from him.
The RASHBA in Gitin (64b) cites this Gemara as proof to the view of the RIF mentioned earlier (Insights to 43:2) who maintains that according to the Rabanan only a Na'arah may receive her Get, but not a Ketanah. The Gemara's reference to the ability of a Na'arah to receive her Get or Kidushin as "Shelichus" teaches that she really has no power of her own, but she receives her ability from her father. The same applies to a Ketanah, who may accept a Get by herself only after her father dies, because of "Nisroknah." (A. KRONENGOLD)
3) A KETANAH WHO ACCEPTS KIDUSHIN WITHOUT THE CONSENT OF HER FATHER
QUESTION: Shmuel states that a Ketanah who accepted Kidushin from a man without the knowledge of her father needs a Get and must perform Mi'un. The Gemara explains that both a Get and Mi'un are necessary because perhaps the father later consented to the Kidushin, in which case the Kidushin is valid mid'Oraisa and requires a Get to absolve it. Mi'un is necessary because perhaps the father did not consent, in which case the Kidushin is not valid mid'Oraisa. However, since she receives a Get, people might think that the Kidushin was valid and when her former "husband" marries her sister they will assume that the Kidushin with her sister is not binding (when it really is binding). Therefore, both a Get and Mi'un are necessary.
Rav Nachman adds that a Get is necessary only when the husband of the Ketanah discussed the marriage with her father before the Kidushin. When her father's consent becomes known, the Kidushin takes effect mid'Oraisa retroactively (l'Mafrei'a) from its start (as Rashi explains in DH v'Hu she'Shidchu).
The Gemara assumes that if the consent of the father can be verified, the Kidushin which the Ketanah accepted will be valid.
However, there are a number of problems with a Kidushin performed in this manner.
(a) Since a Katan or Ketanah does not have the intellectual maturity (Da'as) to perform a Kinyan (see 44a), how can a Ketanah acquire the money of Kidushin for herself?
(b) The Gemara's ruling that the father's consent is necessary in order for the Ketanah's acceptance of Kidushin to be effective implies that when the Ketanah accepts Kidushin she carries out her father's will and acts as his Shali'ach. This implication contradicts the previous Sugya that teaches that Shelichus does not apply to a Katan or Ketanah. (Although the Gemara specifically states that a Katan cannot appoint a Shali'ach and it does not state that a Katan cannot be appointed as a Shali'ach, since the Katan's inability to appoint a Shali'ach is derived from a verse, it is logical that he should not become a Shali'ach just as he cannot appoint a Shali'ach, as the Rishonim point out.)
(c) Why does verification of the father's consent at a later time suffice for the Kidushin to take effect? In order for her act of acceptance of Kidushin to be considered an act of Shelichus on behalf of her father, the will of the father must be known at the moment his daughter accepts the Kidushin! How does her father's consent work retroactively to make her a Shali'ach if, at the moment she performed the act, she was not his Shali'ach?
(a) The ROSH (1:25) earlier (19a) makes two amendments to the limitations of the act of a Katan. The first is that although a Katan cannot perform an act of Kinyan, when someone else (the "Makneh") gives the object to him he does acquire the object. The Da'as of the Makneh who transfers the object into the possession of the Katan assists the Katan in his act of making a Kinyan for himself. Since every Kidushin has a Makneh (the man who is Mekadesh the woman), a Ketanah is able to participate in the act of the Kinyan of Kidushin. This answers the first question.
(b) The Rosh's second modification to the limitations of the act of a Katan involves the Katan's ability to be a Shali'ach. The concept of Shelichus generally means that an agent (the Shali'ach) does an act on behalf of the one who appointed him (the Meshale'ach) for the benefit and interest of the Meshale'ach. A Katan or Ketanah certainly is not qualified to participate in this form of Shelichus. This form of Shelichus, however, is not the Shelichus which occurs when a Ketanah acts as a Shali'ach for her father to receive her Kidushin. In such a case, the Shali'ach (the daughter) herself is the beneficiary of the act, and not the Meshale'ach (the father). A Ketanah indeed has the power to serve as a Shali'ach for an act which results in a benefit for herself. This answers the second question.
(c) The Rishonim suggest two basic approaches to the third question.
1. The RAN explains that the Ketanah's ability to accept Kidushin is based not on the common mechanism of Shelichus, but through Zechiyah, the right of one person to acquire something beneficial on behalf of another person. Hence, the father's consent is not needed in order to make his daughter his Shali'ach. Rather, his consent at a later time merely indicates that he considers it a benefit to have his daughter married to this man, and it shows that his daughter had the power to act as a Shali'ach even without any specific appointment, through the law of Zechiyah.
2. The RITVA gives an entirely different explanation of the Gemara because of these questions. The Ritva maintains that the Kidushin is valid only "mi'Kan ul'Haba," from the time the father's consent is verified and onward. (See the Ritva's comments that the money of Kidushin must still be in the hands of the Ketanah at the time the father's consent is verified. Once his consent is verified, the fact that the Mekadesh does not take back the money shows that he now wants to be Mekadesh the Ketanah, with the consent of her father.)