The problem is that R. Yohanan’s rule does not accord perfectly with either R. Eliezer ben Ya’akov who says that the husband is punished only if he has sex with her, such that his claim that she is not a virgin is based on his experience, or with the rabbis who hold that he need not have sex with her at all.
To fix this, the Talmud emends the statement such that it basically agrees completely with R. Eliezer b. Ya’akov. The husband must have natural intercourse and then claim that she committed adultery by having natural intercourse with another man.
Introduction
This mishnah delineates basic rights that a father has over his daughter and that a husband has over his wife. In addition the mishnah outlines basic responsibilities that a husband has to his wife. We can easily see from this mishnah that the society that the Mishnah envisions/reflects is patriarchal. The father/husband is head of the household. Most of the earnings of the members of the household belong to him and he has the responsibility for providing for them.
Section one: According to the first mishnah in tractate Kiddushin there are three means by which to effect betrothal: money, document or intercourse. Our mishnah teaches that a father has the right to accept money or document on behalf of his daughter in order that she should be betrothed. He also has the right to give her to a man with whom she will have intercourse and thereby become betrothed. This right is limited to a girl who has not yet reached majority age (typically 12 ½). After that the girl receives her own betrothal.
Section two: Any money a daughter might earn belongs to her father. This includes things she might find and her handiwork (for instance weaving, sewing, work in the field, etc.). In addition the father has a right to annul her vows (see Numbers 30:6). The reason that annulling vows is listed in this clause is that it is in essence an economic right since a vow could prevent him from having her handiwork. For instance if she took a vow that any thing she finds is forbidden to her father, she would thereby deny him of one of his economic rights.
Section three: If the father betroths his daughter and then the husband decides to divorce her before fully marrying her, the father receives the get. However, if the girl was married, the father no longer has any domain over her. If the girl should come into money while still in her father’s house, the principal belongs to her as well as the interest (the usufruct). However, if she dies, her father inherits both the principal and the usufruct. The normal way that a girl would come into money that does not automatically belong to her father is by inheriting her mother’s father. This would happen if her mother died before her grandfather died (for if her grandfather died first when her mother died her husband would inherit her) and her mother was an inheritor (i.e. her grandfather had no sons). In such a case she would inherit her grandfather.
Section four: A husband has more rights than the father in that the husband does have right to the usufruct from his wife’s property during her lifetime. This could happen if she received an inheritance after the marriage. If she should die before her husband dies then he would inherit the principal as well, but if the husband would die first he would never own the principal. The husband also has rights over whatever his wife finds and whatever money she earns. He also can annul her vows.
Section five: The mishnah now begins to list the husband’s responsibilities towards his wife. The primary responsibility is to provide food. He also must provide her with clothing and shelter. If she is taken captive he must pay a ransom in order to redeem her. From the very fact that this is listed as a basic responsibility of the husband to his wife clearly demonstrates that kidnapping must have been a serious problem.
The husband is also responsible to pay for his wife’s burial. According to Rabbi Judah, even if the husband is poor he must provide two flutes and one lamenting-woman for the funeral.
The Talmud now begins to ask how we know that the father receives the money through which she is betrothed. Rav Judah answers with a midrash of a verse concerning a young girl who is sold into slavery. When this girl reaches a certain age, the master or his son is to marry her. If he does not, he must send her free, without the usual money used to redeem a slave. The Torah emphasizes this—“she goes out for nothing, without money.” The repetition allows Rav Judah to offer a midrash—there is no money when a girl leaves her master’s domain in this case. But in another similar case, when a girl leaves her father’s domain by being betrothed, there is money. And who receives the money—her father....
Judah’s midrash successfully proved that there is money when the girl leaves her father’s domain. But how do we know the father receives it? Maybe the girl who is being betrothed should receive it?
The answer is that if the father has the right to betroth her, i.e. to decide to whom she is betrothed, then shouldn’t he be the one to receive the money.
Above we said that since a father decides whom his daughter marries, he should receive the betrothal money. But a na’arah, a girl between the ages of 12 to 12.5 can decide herself to whom she is betrothed. So she should be able to receive her betrothal money, not her father. But we know that the father does receive the money. So again the question is asked, how do we know this?
The Talmud now answers with a verse taken from the context of the annulment of vows. The verse implies, to the Talmud, that all financial advantage that comes to her in her youth, while a na’arah, go to her father. This would include the money used for her betrothal.
Introduction
Yesterday’s section concluded by positing that the biblical source for the idea that a father receives the betrothal money of his na’arah (between 12 and 12.5) daughter is the verse in Numbers 30 according to which all of the financial advantages accrued to a young girl go to her father. In today’s section the same law is learned from another verse, raising the question of which verse is the actual source.
The work that a daughter produces, her earnings, belongs to her father. Rav deduces this from the fact that a man may sell his daughter to be a maidservant. But if the verse from Numbers teaches that all of the financial advantages of a daughter go to her husband, why does Rav need to prove that a daughter’s handiwork goes to her father from that verse?
The Talmud now admits that the verse from Numbers does not have broader implications. It refers only to the annulment of vows and not to a father’s right to his daughter’s betrothal money. And should we suggest that just as a father has a right to annul his daughter’s vows, so too he has right to his daughter’s betrothal money, this must be rejected for one cannot derive laws regarding monetary matters from the laws of vows.
The Talmud suggests that we derive the fact that the father receives the betrothal money from the fact, learned earlier in Ketubot, that he receives any fines owed to her, such as those for rape and seduction. However, the laws of fines differ from the laws of monetary payments and therefore there is a rule that the latter cannot be derived from the former.
If a na’arah is raped/seduced the payments for the shame and blemish go to her father (we learned this earlier in Ketubot). But this cannot be a source for the father’s receiving the betrothal money because there is a difference with shame and blemish. The meaning of “since the father is involved” is not entirely clear. I believe that the words could mean that when she is shamed or blemished, the father also suffers. In any case, we still have no source for how we know that the father receives the betrothal money.
The resolution of how we know that the father receives the money goes back to the original source—the fact that when the daughter sold into slavery goes free, the master does not receive a payment. Had there been a payment, the master would have received it. Thus, logically, in the case of betrothal, where there is a payment, the money goes to the father, who is akin to the master.
The problem is that the comparison between the two “going outs” is not precise. When the maidservant goes free, she becomes completely free. Her master retains no control. But betrothal is only a partial transfer of authority. Her father still retains some authority over her and will continue to do so until she enters the huppah. So how can the two be compared?
The answer is that in one respect, even though still living in her father’s house, the father has lost control over her at betrothal—he no longer has the right to unilaterally annul her vows. Once betrothed, the father and husband jointly annul her vows.
The Talmud now goes on to ask how we know that the father has a right to marry his daughter off through a document or by giving her to the husband for intercourse. The answer is that all of the ways of becoming a wife are included in one verb in the verse. This comparison is invoked when the Talmud wishes to compare one way of becoming a wife with another. Again, for a longer discussion of how betrothal is contracted, see my commentary on the first mishnah of Kiddushin.