Monday, November 16, 2020

Gentile's Rights

 Rashi (24:57) ונשאלה פיה – שאין משיאין אשה אלא לדעתה.  The Maharal asks but he was going to whisk her away even when her father was alive?  He answers  ואין זה קשיא, דבתואל גוי היה, ואין זכות לגוי בבתו לקדשה, ורבקה גיורת הואי, ויתומה.  We see the Maharal holds that a gentile father does not have any rights over the marriage of his daughter.  Rav Yosef Engel also assumes the fathers' right over the marriage of his daughter is a unique chiddush said to a yisroel.  However, he suggests that possibly even a gentile can marry of their daughter because we assume she will want her father's marriage, the possuk of אֶת בִּתִּי נָתַתִּי לָאִישׁ הַזֶּה  that tells us the din by a yisroel is to add that she can not object even when she grows up.  With this idea he explains a Rashi.  The Gemorah in Kiddushin (61b) asks בשלמא לר' מאיר היינו דכתיב (בראשית כד, מא) אז תנקה מאלתי אלא לרבי חנינא בן גמליאל למה לי. "The Gemara asks another question: Granted, according to the opinion of Rabbi Meir, this is the reason that it is written, with regard to Abraham’s instruction to Eliezer to bring a wife for Isaac: “Then you shall be clear from my oath…if they will not give her to you” (Genesis 24:41). However, according to the opinion of Rabbi Ḥanina ben Gamliel, why do I need this addition? The positive formulation of the oath already indicates the negative."  The Gemorah answers איצטריך סלקא דעתך אמינא היכא דניחא לה לדידה ולא ניחא ליה לדידהו מייתי בעל כרחייהו קא משמע לן.  Rashi says the לדידהו is לקרובים.  Why do the relatives have a say?  Rav Yosef Engel says since they don't want it it removes the assumption that she would have wanted the marriage because even her relatives don't want the marriage.   

It is possible that if the din of a father's control over his daughters marriage would apply to a gentile depends on the machlokes Rishonim as to how to understand this din.  The Ritva in Kiddushin 3b says the father has ownership over his daughter and hence can marry her off.  However, it seems that Rashi there and 5b in Kiddushin disagrees and holds that the father is merely granted rights of being able to "sell" her into marriage, but he doesn't actually own her.  Rashi in Ketubot (47a) says we know the father can do nissuin for his daughter as well because it says את בתי נתתי and נתתי included all forms of giving over.  Tosfos asks why do we have to derive it from the possuk, just learn it out from kiddushin?  The Shitah answers that we don't learn out monetary issues from issur.  Tosfos couldn't answer that because he holds the law of kiddushin is also a monetary law, that the father owns his daughter.  According to the approach of Rashi this would be a chiddush din only by a yisroel but one could argue according to Tosfos that understands the Torah is teaching us a law of ownership, that law applies to gentiles as well for they also own things.  However, it is possible this is a new type of ownership only applicable to a yisroel.   

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