R. Yannai indeed agrees, the mishnah refers to two different contexts. In the first clause, the meaning of the statement is that the father must say yes, whereas in the last two clauses, the meaning of the statement is that my father not object. To Resh Lakish, it is preferable to say the mishnah refers to two different circumstances, i.e. the betrother said two different things, rather than attribute the mishnah to two different tannaim.
R. Joseph b. Ammi finds one reasoning for the whole mishnah. If the father does not protest within thirty days, she is betrothed. If the father dies before protesting, she is betrothed because he will not protest. It is not his silence that causes the betrothal to be effective, it is his lack of protest. If the son dies within thirty days, the father must protest to undo the betrothal. Thus we can successfully provide one explanation for the whole mishnah.
A father has a right to betroth his daughter before she reaches majority age, defined by halakhah as being 12 1/2. Our mishnah deals with a father who says that he has betrothed his daughter but does not remember to whom.
The father does not remember to whom he betrothed his daughter. At this point she is in a terrible situation; she could be married to anybody therefore she is forbidden to everybody, lest she be married to someone else. Comes along a man and says that he was the one who betrothed her. He is believed, since there is no contradictory testimony.
In this case two men come along and claim that they are the ones who betrothed her. Neither can marry her lest she is betrothed to the other. They must both give her a get. However, if they come to an agreement, one may give a get and then the other may marry her.
This section deals with the mishnah we learned yesterday. A father says he does not remember to whom he betrothed his daughter. A man comes along and says it was him. The mishnah says he is believed. The amoraim ask what it means when it says he is believed.
Rav says that the man who claims to have married her is allowed to give her a divorce. We can assume that he didn’t lie for without a purpose. He must believe that he is married to her. He would not lie just to get her out of her pickle.
On the other hand, maybe he is lying, and he simply desires her. She’s a “damsel in distress” of sorts.
Since there is contradictory logic here, we tell him he must divorce her. He is not allowed to marry her lest he is lying and is married to someone else.
R. Assi says that if the father claims he married her off, the man who says it was to him can even marry her.
However, if the woman herself accepted the kiddushin, but does not remember from whom, the man is not believed to marry her. The Talmud will explain this below.
The mishnah said that if two men come and claim to have married her, one can divorce her and the other marry her. This seems to dispute Rav for Rav seems to say that one may not marry her.
Rav could solve the problem by saying that it is different if there are two men. The man who marries her will be afraid to lie in front of another person [this reasoning is very difficult—after all, one of the men is certainly lying].
This baraita accords with R. Assi—the first man who comes and claims he married her is allowed to marry her.
If another man comes and now claims it was him, he cannot disrupt the previous marriage. We do not trust him to undo what is already done.
However, if the woman herself forgot to whom she was betrothed, a man is not believed lest he is lying and she is colluding with him to get herself out of this problematic situation.
Today’s section continues to deal with the woman whose father said he betrothed her but does not remember to whom.
The mishnah ruled that she is prohibited to all men. But do we really treat her as if she is married? If she has intercourse with a man, are she and he stoned as adulterers? Rav says no—the father is believed to prohibit her to any person, but he is not believed to the extent that a court could execute based on his word only.
R. Assi says that the Torah completely believes the father.
R. Assi agrees that if it was the woman herself who said “I was betrothed,” we do not stone her if she sleeps with someone else. The Talmud will below explain why R. Assi agrees with Rav in this case.
R. Assi notes that his own rulings are inconsistent. Earlier he had said that if the father says “I betrothed her” she is allowed to marry one who comes to marry her. This implies that we don’t take the father’s words so seriously that we would not allow her to marry this person. Nevertheless, if she has intercourse with someone, she (and he are stoned). All the more so, we should stone in a case where we do not allow her to marry someone else because we take her original words, “I was betrothed but I do not know to whom” even more seriously and don’t allow her to marry anyone.
The Talmud rejects R. Assi’s own difficulty on himself. The woman is simply not believed enough to cause her or the one she sleeps with to be stoned based on her words. There is different reasoning for this issue than there is for the issue of allowing her to marry someone who says she was betrothed to him. It is not that we believe her more than we believe the father. The issue is that we fear she is colluding, as we learned in yesterday’s section.
R. Hisda says that no matter who says the girl was betrothed, she or her father, we do not stone anyone if someone sleeps with her. R. Hisda, the Talmud notes, follows his own opinion that fathers can be believed in some matters, but not in others. In order to be liable for a forbidden sexual act a boy must be nine years and a day and the girl three years. [I should emphasize, the boy or girl in this case is not the one liable—the one who sleeps with them is. Thus if an adult married woman has sex with a nine year old boy, she is an adulteress. If an adult male has sex with a three year old betrothed girl, he is an adulterer. The adult is punished, not the child.] The father is believed if the issue is unwitting adultery. This would cause the adult to be liable for a sacrifice. The father is not believed to have the adult punished physically. Here we can see that in certain cases there is some inconsistency. A person can be believed to have certain consequences, but not others.
The baraita accords with R. Hisda, in that a father is believed in some matters but not in others. If the father says that the child is old enough to take a vow, or to dedicate or sanctify something to the Temple, or to say that the value of something will go to the Temple, the father is believed. The age required for a person to be able to legally dedicate something is thirteen for a boy, twelve for a girl. But a father is not believed to say that a child is this age, if the consequence will be the punishment of the child.
In all of these cases we can see the rabbis’ famous leniency when it comes to punishments. A witness (the father) might be believed, but the credence the court lends him only extends to non-punishment types of consequences, mostly economic consequences. There needs to be greater evidence before someone can be punished.