Kidushei Ketana: A Case of Halakhic Flexibility?

Krum as a bagel

To anyone who contends that halakha does not evolve, that it is an unchanging, inflexibile corpus handed down from Har Sinai, I challenge them to explain the following gemara in Kiddushin about one of the rather “icky” halakhic institutions, kedushei ketana, or betrothal of a minor daughter.

The mishna rules as follows:

“a man can betroth his daughter directly or through an agent.”

This ruling comports with the biblical law, which quite plainly recognizes and permits this practice.

The amora, Rav, having no patience for apologizing for what he sees as a bad practice, simply rejects the mishna’s ruling, and the entire practice of kiddushei ketana:

It is forbidden for a father to betroth her while she is a minor until she becomes an adult and declares that she desires her prospective husband.

That’s it. No biblical verse (and certainly many such verses could have been cited), no pithy aggadic sayings, nothing. Just an out and out rejection of of kiddushei ketana. It’s assur.

But that’s not all. Despite the gemara’s prohibition of kiddushei katana, the ba’alei tosafos, aware of the prevalence of the practice in Jewish communities of the time, rule that assur doesn’t really mean assur:

And today, when it is our custom to betroth our daughters even when they are minors, this is because with the passing of each day the exile overwhelms us more and more (hagalus misgaber alenu) and if a man has enough money for a dowry for his daughter, maybe he won’t have that money after the passage of time and his daughter will remain unmarried forever.

Wow. Talk about shidduch crisis.

But seriously, how to understand Rav's rejection of the mishna and Tosfos' rejection of Rav? Note that Rav is the one amora who has the status of a tanna status, so his rejection of the mishna's ruling isn't that odd. In addition, Rav's statement is also quoted in the name of Rabbi Elazar, who I believe is a tanna. Still, we are dealing with a biblically authorized practice. As noted above, one would at least have expected Rav to cite a biblical verse as support for his ruling. The most obvious explanation is that Rav is telling us implicitly that considerations of morality and yashrus can be invoked to prohibit that which is legally permitted. Although no verse is cited, the reason for the prohibition is clear.

As for tosfos: first, tosfos may suggesting that based on the circumstances of their day, the underpinnings of Rav’s ruling no longer applied. Rav reasoned that it was immoral and unethical to force a person into a marriage when her will can’t be taken into account even though the practice was permitted by the Torah. Tosfos is saying that while it is appropriate to apply morality and ethics to forbid the permitted, based on the circumstances of their day, the value of respecting the girl’s will is outweighed by our concern for long term economic welfare. Under prevailing circumstances, the moral calculus yeilds a different result.

A more realistic interpretation of tosfos is that they are simply being melamed z’chus on the Jewish community's de facto rejection of Rav’s ruling by looking for some justification for the practice. The message of tosfos is about the importance of established practice in determining the content of halakha even where it means overturning a clear prohibition.

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