QUESTION: In an attempt to prove that Beis Din may uproot a Mitzvah in the Torah, the Gemara cites a Beraisa which states that a man who is married to a Ketanah (a minor with whom Kidushin takes effect only mid'Rabanan) inherits the property of the Ketanah if she dies. He also may become Tamei for her if he is a Kohen. However, if the Torah states that a girl's father inherits her property, how could the Rabanan enact that her husband inherits her when the marriage is binding only mid'Rabanan? It must be that the Rabanan have the authority to uproot a Torah law.

The Gemara refutes this proof and says that the Ketanah's husband, and not her father, inherits her not because the Rabanan uprooted a Torah law, but because of the principle, "Hefker Beis Din Hefker."

RASHI explains that when the Gemara says that according to Torah law, a Ketanah's father, and not her husband, inherits her, it cannot mean literally that the father inherits his daughter. The only case in which the status of a Ketanah's marriage is mid'Rabanan is when her father died before he accepted Kidushin on her behalf, and other members of her family, such as her brothers, married her off instead. Rashi explains that the Gemara means that mid'Oraisa the relatives of her father inherit her. (The same presumably applies to the allowance for a Kohen to become Tamei for her. When the Gemara says that mid'Oraisa her "father" may became Tamei for her, it does not mean literally her father, since he is no longer living.)

REBBI AKIVA EIGER asks why Rashi needs to say that the Gemara refers to the father's relatives. The Gemara in Kidushin (44b) discusses the concept of "Yesomah b'Chayei ha'Av" ("a girl who is an orphan while her father is still alive) -- it is possible for a Ketanah to get married while her father is still alive and yet the Kidushin takes effect only mid'Rabanan. Such a situation exists in a case in which the father already married her off once to one man, and then she was divorced and remarried another man. At the time she married the first husband, she left the domain of her father and he may no longer accept Kidushin on her behalf (as RASHI explains on 2b, DH v'Chulan she'Meisu, 12a, DH Mishum, and 107b, DH Kol she'Yecholah). Hence, her second marriage is only mid'Rabanan.

Why does Rashi not explain that the Gemara here refers to a case of "Yesomah b'Chayei ha'Av" and that "her father" refers literally to her father? Why does Rashi need to explain that the Gemara's words are imprecise and refer to her father's relatives?

ANSWER: The MISHNEH L'MELECH (Hilchos Avel 2:7) asks another question. The Gemara attempts again to prove that the Rabanan may uproot a Torah law. It quotes the Beraisa's statement that the Kohen husband of a Mema'enes may become Tamei for the girl if she dies. Since the Ketanah's marriage to him is only mid'Rabanan, mid'Oraisa only her father may become Tamei for her. It must be that the Rabanan uprooted the Torah law that only her father may become Tamei for her. The Gemara refutes this proof and asserts that the husband indeed may become Tamei for her mid'Oraisa, because the Mema'enes has the status of a Mes Mitzvah for whom a Kohen may become Tamei. She is a Mes Mitzvah because no one (other than her husband) will have an interest in burying her since it is her husband who inherits her.

Why does the Gemara introduce this proof by saying that "mid'Oraisa the father may became Tamei for his daughter"? If the Gemara means that mid'Oraisa the husband may not become Tamei for his Ketanah wife, it should say so explicitly and leave out mention of the father. Apparently, the Gemara means that the Rabanan's enactment not only gave the husband the responsibility to become Tamei and handle the burial of the girl, but it also removed that responsibility from the father (in the case of a "Yesomah b'Chayei ha'Av").

However, what indication is there in the Beraisa that the Rabanan enacted that the father may no longer become Tamei for his daughter? What source teaches that the Rabanan took away the father's right to become Tamei for his daughter? All of her relatives should be obligated to bury her, including both her husband and her father. After she is married mid'Rabanan (or even mid'Oraisa), her father is obligated to become Tamei for her if she dies; no source mentions any exemption from this responsibility. (It is true that her brothers are not permitted to become Tamei for her after she is married, as the Torah states. Her father, however, must become Tamei for his daughter even if she is a Be'ulah, and certainly he should be obligated to become Tamei for her in this case.)

The ARUCH LA'NER answers that when the Gemara says that mid'Oraisa the father may become Tamei for her, it means that if she would have had a father he would have been the only one permitted to become Tamei for her mid'Oraisa. In this case, however, her father has died, and thus no Kohen -- including her husband -- should be permitted to become Tamei for her mid'Oraisa. This is the intent of the Gemara when it says that mid'Oraisa her father may become Tamei for her; mid'Oraisa, not only may her husband not become Tamei for her, but no Kohen may become Tamei for her. Accordingly, the Aruch la'Ner concludes that the father of a Ketanah who is a "Yesomah b'Chayei ha'Av" is obligated to become Tamei for her, even after the Rabanan enacted that the husband may [also] become Tamei for her.

According to the Aruch la'Ner's explanation, the wording of the Gemara clearly implies that the Ketanah under discussion has no living father (as Rashi writes) and she is not a "Yesomah b'Chayei ha'Av."

Further proof that there is no father in this case may be adduced from the fact that the Gemara says that if the husband does not bury her, no one else will bury her because the husband inherits her. Why is there no one else to bury her? The Torah obligates the father to bury her even if he receives no inheritance! It must be that the Ketanah has no living father in this case. In contrast, the husband of a "Yesomah b'Chayei ha'Av" perhaps is not permitted to become Tamei for her, since she is not like a Mes Mitzvah (because her father is obligated mid'Oraisa to bury her). Rashi explains that the discussion of the Gemara about the enactment that the husband may become Tamei for his wife who is a Ketanah implies that the case of the Beraisa refers to a Ketanah who has no father. (M. Kornfeld)