A father can sell his daughter off only when she is a minor. So how can a father sell a widowed daughter? If he had married her off and then she was widowed, he no longer has the right to sell her. Rather, it must mean that she married herself off. Nevertheless, she is still called a widow, proving that there is some validity to such a marriage.
R. Amram resolves the difficulty. She was widowed from a betrothal that was done in the form of designation—meaning she was sold as a slave, and then the master designated her as his wife (like betrothal) and then died. But this betrothal was not done with the consent of the father. The kiddushin does not go into effect with the original sale to which the father did consent, so we have here a case of a girl who is a widow but her father is allowed to sell her again because he never consented to betroth her in the first place. But in a regular case of betrothal, a father could not sell his daughter after she had already been married.
Today’s section discusses what the law is when the girl who was married without her father’s consent is widowed and becomes liable for yibbum.
The young girl who was betrothed without her father’s knowledge now becomes a yevamah, a woman awaiting levirate marriage. The question asked is—what do we do in this complicated situation.
Rav says essentially that the levirate connection, in Hebrew, zikah, is not relevant here. What is relevant here is the fact that the yavam, her husband’s brother, performed ma’amar with her, and ma’amar is like betrothal.
If he performed ma’mar with her, then to get out of this connection to the yavam, she will need three things—a get, halitzah (release from levirate marriage) and mi’un, refusal.
If the father did not consent to the marriage to the first man, but did consent to the marriage to the second, then the act of betrothal with the second is valid, and she will need a get to be released from this marriage. This marriage was not yibbum, it was just regular marriage.
If the father consented to the first marriage, then this is a regular case of yibbum and she needs halitzah to be released.
If the father did not consent to either of the marriages, then she is not married to the second man at all. If this man performs kiddushin with her sister, the kiddushin will be valid. However, people might not know this, thinking that she was married to the second husband, in which he cannot subsequently marry her sister. To let people know that there was no validity to either marriage, she should perform mi’un, which would annul the marriage had it existed.
If the brother did not perform ma’amar, she certainly does not need a get. If the father consented to the first marriage then halitzah would be enough.
We might have thought that she needs mi’un for the same reasons as above—maybe people will think that if the brother marries her sister, the marriage is not valid. But everyone knows that marriage with the sister of one’s halutzah is prohibited only by the rabbis and therefore is valid according to biblical law. If he marries her, she will need a divorce in order to be married to someone else.
Resh Lakish notes that the Torah prohibits one from marrying the sister of one’s divorcee. The rabbis add that the same is true of the sister of one’s halutzah—she is prohibited but only derabanan.
Today’s sugya contains a story about two men who betroth their kids to each other.
This scene strikes me as reflective of actually society. Two men are drinking and they decide to marry off their kids to one another. What parent hasn’t tried (or at least thought) to marry their kid to one of their friend’s kids.
Ravina says that these kiddushin are not valid at all. If a girl is married without her father’s consent, we might think that the father may have consented. But a father cannot marry off his son and no one holds that perhaps the son consented. A man cannot marry unless he gives explicit consent.