Geshmak to be a Yid? The Ger Katan Debate

MISHNA: With regard to a female convert, or a captive woman, or a maidservant, who were ransomed with regard to the captive, or who converted with regard to the convert, or who were freed with regard to the maidservant, when they were less than three years and one day old, their marriage contract is two hundred dinars, as their presumptive status is that of a virgin. Even if they were subject to intercourse when they were younger than that age, the hymen remains intact. And they are subject to a claim concerning their virginity. GEMARA: Rav Huna said: With regard to a convert who is a minor, one immerses him in a ritual bath with the consent of the court. As a minor lacks the capacity to make halakhic decisions, the court is authorized to make those decisions in his stead. What is Rav Huna coming to teach us? Is he teaching that it is a privilege for the minor to convert, and one may act in a person’s interests even in his absence? We already learned that explicitly in a mishna (Eiruvin 81b): One may act in a person’s interests in his absence, but one may not act against a person’s interests in his absence. Rav Huna’s statement was necessary lest you say: With regard to a gentile, licentiousness is preferable for him, so conversion is contrary to his interests, just as we maintain that with regard to a slave, licentiousness is certainly preferable. Just as a slave has no interest in assuming the restrictions that come with freedom, in that a freed Canaanite slave is a convert to Judaism, a gentile would have the same attitude toward conversion. Therefore, Rav Huna teaches us: That applies only with regard to an adult, who has experienced a taste of prohibition. Therefore, presumably he prefers to remain a slave and indulge in licentiousness. However, with regard to a minor, who did not yet engage in those activities, it is a privilege for him to convert. The Gemara suggests: Let us say that the mishna supports Rav Huna’s statement: With regard to a female convert, or a captive woman, or a maidservant, who were ransomed with regard to the captive, or who converted with regard to the convert, or who were freed with regard to the maidservant, when they were less than three years and one day old; what, is it not referring to a case where they immersed the minor converts and the maidservants with the consent of the court? Apparently, a conversion of that sort is valid. The Gemara rejects that proof: No, with what are we dealing here? It is with a convert whose minor sons and daughters converted with him, as they are content with whatever their father does in their regard. However, that does not apply to a child who is converting on his own. Rav Yosef said: In any case where minors convert, when they reach majority they can protest and annul their conversion. Abaye raised an objection to his opinion from the mishna: With regard to a female convert, or a captive woman, or a maidservant who were ransomed, or who converted, or who were freed when they were less than three years and one day old, their marriage contract is two hundred dinars. And if it enters your mind to say that when they reach majority they can protest and annul their conversion, do we give her the payment of the marriage contract that she will go and consume in her gentile state? The Gemara answers: She receives payment of her marriage contract once she has reached majority and does not protest, but not while still a minor. The Gemara asks: When she reaches majority too, is there not the same concern that she will protest and abandon Judaism? The Gemara answers: Once she reached majority for even one moment and did not protest, she may no longer protest. This mishna poses no difficulty to the opinion of Rav Yosef. Rava raised an objection from a mishna (29a): These are the cases of young women for whom there is a fine paid to their fathers by one who rapes them: One who engages in intercourse with a mamzeret; or with a Gibeonite woman [netina], who are given [netunim] to the service of the people and the altar (see Joshua 9:27); or with a Samaritan woman [kutit]. In addition, the same applies to one who engages in intercourse with a female convert, or with a captive woman, or with a maidservant, provided that the captives were ransomed or that the converts converted, or that the maidservants were freed when they were less than three years and one day old, as only in that case do they maintain the presumptive status of a virgin. In all of these cases, there is a fine paid to their fathers if they are raped. And if you say that when they reach majority they can protest and annul their conversion, do we give her payment of the fine that she will go and consume in her gentile state? The Gemara answers: Her father receives payment of the fine once she has reached majority and does not protest, but not while she is still a minor. The Gemara asks: When she reaches majority too, is there not the same concern that she will protest and abandon Judaism? The Gemara answers: Once she reached majority for even one moment and did not protest, she may no longer protest. Abaye did not state his objection from the same source as did Rava, because there, in the mishna cited by Rava, it is referring to a fine, and in that case this is the reason: So that the sinner will not profit. The Sages did not absolve the rapist from payment of the fine merely due to the concern that the woman he raped may ultimately negate the conversion.

[One] immerses him with the consent of the court because it is a benefit to him. Rav Huna tells us that the bais din will immerse a minor gentile for conversion, even though he does not have sufficient intelligence to make the choice to become Jewish himself. It is ultimately to his benefit to be a Jew and bais din acts in his behalf as a self-appointed agent to convert him since it is a benefit for him.
Tosfos views the relationship between the minor and the bais din as a principal and an agent. The bais din becomes the agent of the minor to perform the conversion for him. Thus we must view this agency of the bais din in the terms of any other type of agency and see if this agency satisfies the requirements needed to establish this relationship.
In an analysis of how one’s courtyard can acquire movable objects for him, Rav Ashi concludes in Bava Metzia 12a, that the courtyard is considered an extension of one’s person when one is in close proximity to it. In such cases even when the acquisition is not beneficial to the recipient, such as a woman acquiring a divorce document, the courtyard will acquire the divorce document for a woman. However, when the owner is not in close proximity to the courtyard, it can acquire for him only if the acquisition is to his benefit.
The Gemara there explains this phenomenon with almost the identical words that it uses here: דזכות הוא לו – זכין לאדם שלא בפניו - it is beneficial for [the recipient] and we may act in his behalf even in his absence. Earlier, the Gemara refers to this system of acquisition as שליחות - agency. Tosfos assumes that whenever the term זכייה - acting in his behalf is used, it is a form of agency and the rules governing agency are applicable.
Tosfos examines the many regulations governing agency and finds that in this situation the requirements for agency are not satisfied.
There are two requirements of agency that are not satisfied in our Gemara:
A) One cannot be an agent for a minor.
B) One cannot be an agent for a gentile.
Tosfos first addresses the issue of agency for a minor: This is bewildering! For the process of zechiya is effective because the acquirer is considered an agent of the beneficiary. For since it is beneficial to [the recipient] to acquire an object, we can bear witness that the recipient would have definitely designated the acquirer as his agent and the self-appointed agent can therefore act in his behalf, as is evident in the first Perek of Bava Metzia (12a), where the Gemara says concerning a courtyard, that it is included as a way of acquiring for its owner because it is similar to his hand when the owner is in close proximity to the courtyard, but it is not worse than an agent and even when a courtyard cannot function as a hand, i.e. when the owner is not in close proximity to the courtyard, it can function as his agent and acquire that which is beneficial to the owner. Since the Gemara refers to this process of acquiring via a courtyard as זכין, we see that this term is used when one is acting as a self-appointed agent of a beneficiary.
If so, that the legal mechanism behind acquiring for the benefit of an absent beneficiary is because it is an extended form of agency, the rules governing agency should apply to acquiring, how can the bais din act for the benefit of a minor, but there is no agency for a minor, as [the Gemara] says in Aizehu Neshech (Bava Metzia 71b)?
It is evident that a minor cannot designate an agent. If zechiyah is an extension of the concept of agency, how can zechiyah be effective for a minor? How can the bais din act as self-appointed agents of the minor who is to be converted?
Tosfos will now address the issue of agency for a gentile: Furthermore, the child being converted is still an idolater at the outset of the conversion process, and [the Gemara] says there in Bava Metzia 71b, a minor, who will eventually become eligible to have an agent, has zechiya - he can acquire via a self-appointed agent by rabbinic law. However, an idolater, who will never become eligible to have an agent does not have zechiya - even by rabbinic law.
From the very same Gemara it is evident that an idolater cannot have an agent. Since Tosfos assumes that zechiya is an extension of the concept of שליחות - agency, the zechiya of our Gemara is extremely problematic, because it is being applied to a minor and an idolater. It is appealing to R’I that here as well the bais din is acting in behalf of the gentile minor by rabbinic law, as[the Gemara] says there - a minor has zechiya by rabbinic law. Here in regard to the gentile minor, his conversion will be valid only on a rabbinic level, but not for Torah matters.
This resolves the issue of the convert being a minor, but what about the fact that he is a gentile? Even though he is still an idolater who does not even have zechiya by rabbinic law, because he will ordinarily never be eligible to have an agent, but in this case where we are about to convert him, he will eventually be eligible to have an agent and the rabbinic level of agency can be applied to him in this situation.
Alternatively, since as a result of this zechiya he will become Jewish, it is as if he is an absolute Jew, insofar as zechiya is concerned.
Tosfos’ conclusion that the conversion of a minor by bais din is only valid on a rabbinic level, engenders many difficulties. If you ask: How can he be a convert by rabbinic law and be permitted to marry a Jewish woman and his betrothal of her will legally be considered a valid betrothal, but by Torah law he is an idolater and he cannot acquire a wife since the bais din could not act as his agent to perform the conversion for him?
At this point Tosfos sees no way that the conversion might be considered valid on a Torah level. We are compelled to say that even though the conversion is essentially rabbinic, it can override Torah law. How is this possible?
There is general agreement that the Rabonon can tell us to violate Torah law passively. For example, when Rosh Hashanah is Shabbos, the Rabonon tell us to refrain from performing the mitzvah of blowing shofar. We are then passively violating the Torah, but the Rabonon are empowered to establish such a restriction. However, when the violation of the Torah would be an active violation, such as in this case where the Rabonon are recognizing the conversion, even though it does not satisfy Torah requirements and even so the convert may marry a Jewish daughter which is an active violation of Torah law, there is a dispute in Yevamot 89b. Some hold that the Rabonon are empowered even to legislate an active violation of Torah law and some disagree. According to their thinking, the Rabonon may only legislate a passive violation of Torah law.
We can answer: that [Rav Huna] the author of this ruling holds like the one who says in Ho’eeshah Rabah (Yevamot 89b) that the Rabonon do have the power to uproot a Torah law by an active violation, such as in this case, where by recognizing the conversion, the convert will eventually do things that are prohibited for a non-Jew, such as marrying a Jewish girl, which is inherently a violation of Torah law.
The legal machinery exists for recognizing this rabbinic level conversion. But the Gemara asked: what is Rav Huna teaching us with this ruling? Isn’t this ruling a novelty because it is based on the opinion of those who hold that the Rabonon are empowered to legislate even an active violation of Torah law? When [the Gemara] asked: what is [Rav Huna] teaching us? [The Gemara] could have answered that [Rav Huna] is informing us that the Rabonon are empowered to legislate laws that even actively uproot matters from the Torah such as an idolater marrying a Jewish woman. But why didn't the Gemara use this answer instead of the answer that Rav Huna is teaching us that it is a benefit for the minor idolater to become a Jew? [The Gemara] answered only one of the two answers that could be answered. The Gemara doesn't need to give every conceivable answer to a question. The Gemara is often satisfied with the one answer it actually uses.
According to the Gemara in Sanhedrin 68b, the verse in Bamidar 5, 8, speaks of a young convert who is considered a convert by Torah law. Tosfos has taught us that the conversion of our Gemara is inherently rabbinic. If so, how is it possible that there is a Torah level conversion of a minor? That which [the Gemara] says at the beginning of Ben Sorer Umoreh (Sanhedrin 68b) in regard to objects stolen from a convert that are to be given to the Kohanim when the convert has passed away without leaving any heirs, The Gemara explains the verse (Bamidbar 5, 5) that discusses this issue as follows: If the man has no heirs - if he is an adult man, you must investigate him to determine if he has an heir, since he is an adult male, even though he has no blood relatives, it is possible that he fathered children who are his heirs, but if he is a minor, it is not required to investigate whether he has any heirs. He definitely does not have any heirs, because he has no blood relatives and as a minor he could not have possibly fathered any children.
We see from this Gemara that a minor convert who possessed wealth that was stolen from him does in fact exist. But Tosfos has concluded that conversion of a minor is only possible on a rabbinic but not Torah level, what type of minor convert is the verse discussing? It is possible that there is a Torah level minor convert, via a pregnant idolater who converted, as [the Gemara] says in Perek He’orel (Yevamot 78a) - a pregnant idolater who converted, her son who was a fetus at the time of conversion does not require immersion to become Jewish. His mother’s immersion is effective for him, because he is comparable to the leg of his mother that was immersed in the mikvah as part of the mother. So too, the fetus is a part of the mother and has already been immersed. He is a convert through his mother’s conversion.
He is a Torah level convert, for he is absolutely Jewish, and he may possess property by Torah law, for example when he inherits his mother. Even though as a minor he cannot acquire property by Torah law, he can acquire property via inheritance, and you need not investigate to determine whether he has heirs, because he has no heirs. Since he is a minor, he cannot father children.
But his mother may have other children, who might inherit him? His brothers via his mother do not inherit him.
We now have a situation that satisfies the conditions of the verse in Bamidbar 5, 8.
A) A convert via his mother’s immersion is a convert by Torah law.
B) He may possess assets by inheriting his mother. These assets may have been stolen from him.
C) There is no need to investigate whether he has heirs, because as a minor, he cannot father children. His maternal brothers do not inherit him.
Tosfos now revisits the Gemara in Bava Metzia 71b where he deduced that zechiya for a minor is rabbinic and not Torah law. It is because of that Gemara that Tosfos was compelled to conclude that the conversion of our Gemara is merely rabbinic. This engendered many difficulties as we learned earlier. Tosfos now concedes that there is a variant text of that Gemara, which indicates that zechiya for a minor is in fact Torah law. This, of course, relieves us of the need to state many rather cumbersome solutions.
According to the manuscripts who have the text in Bava Metzia (71b) in regard to a minor, even though he cannot have an agent, however zechiya, he does have and they do not have the text “by rabbinic law”, it is easier to understand the mechanism of our Gemara. For we can say that [a minor] has zechiya by Torah law and a minor idolater since he comes to convert, we consider him like a Jewish minor. Since a Jewish minor has zechiya by Torah law according to this text in the Gemara of Bava Metzia 71b, a minor idolater who is comparable to Jewish minor, who is presently about to become a Jew as mentioned earlier, also has zechiya by Torah law and his conversion is of a Torah level. We will not be compelled to say that the conversion is rabbinic and that the Rabonon are empowered to override Torah laws by active violations.
Tosfos still maintains that zechiya is an extension of the power of designating an agent. How does that concur with the conclusion of the variant text of Bava Metzia 71b? Even though zechiya is an extension of the concept of agency and [an idolater] does not have agency by Torah law, that is so only in matters where there is some slight negative involved by the self-appointed agent such as when the self-appointed agent is designating terumah for the benefit of the owner of the produce without the owner’s knowledge, because perhaps [the owner] of the produce that is being tithed would have wanted to relieve his obligation to designate terumah with only one kernel of wheat or perhaps he would have wanted to designate superior produce as the terumah, but here, in the case of converting a minor, which is an absolute benefit for him, he can have an agent work in his behalf.

A minor who is an idol worshipper, if he has a [living] father, the father can convert him [i.e. present him to be converted]. And if he does not have a father and he comes to convert, or if his mother brings him to convert, a beit din can convert him, because it’s a merit to him, and we can give a merit to [the child] outside of his presence [because he is a minor and has no legal capacity]. Whether he is a minor who is converted on behalf of his father, or whether he was converted by a beit din [in the absence of a father], when he is older he can protest his conversion - we don’t treat him the way we would treat an adult convert- he is not like an apostate Jew, rather like an idol worshipper.

And they inform him of the main principles of the religion, which is the unification of God's name, and the prohibition of idol worship, and they dwell at length on this matter. And they inform him of some of the lenient commandments, and some of the stringent commandments. And they do not dwell at length on this. And they let him know the sin of “gatherings” “forgotten sheaves” “corners of the field” and “second tithe.” And they tell him of the punishments for not keeping the commandments. How so? They say to him: Know that before this point, if you ate forbidden fate, you would not be punished with karet, if you broke Shabbat, you would not be punished by being stoned. But now, after you have converted, if you eat forbidden fat you will be punished with karet, if you break Shabbat, you will be punished by being stoned. And they do not dwell at length on this, nor do they go into detail, lest this causes him to be troubled and turn away from the good path to the evil path. For at the beginning we do not draw a person except with words of appeasement and gentleness. I drew them with human ties, with cords of love.

Anyone who accepts upon himself and carefully observes the Seven Commandments is of the Righteous of the Nations of the World and has a portion in the World to Come. This is as long as he accepts and performs them because (he truly believes that) it was the Holy One, Blessed Be He, Who commanded them in the Torah, and that is was through Moses our Teacher we were informed that the Sons of Noah had already been commanded to observe them. But if he observes them because he convinced himself logically, then he is not considered a Resident Convert and is not of the Righteous of the Nations of the World, but merely one of their wise.