Shalom. I have a doubt that assails me.
In this text from Talmud (b.Kiddushin 41a) the marriage of a minor is not prohibited but not recommended, in contrast to laws that allow it (b.Sanhedrin 54b, 55a-55b; b.Yebamoth 57b-60b etc) and he says in the name of Rab Judah:
דאמר רב יהודה אמר רב: אסור לאדם שיקדש את בתו כשהיא קטנה, עד שתגדל ותאמר בפלוני אני רוצה. Rab Judah said in Rab's name: One may not give his daughter in betrothal when a minor, [but must wait] until she grows up and says: “I want So-and-so”.
It refers to an orphaned minor in view of the possibility of "me'un" or common minor? This is primarily my question.
Because.... Adin Steinsaltz says:
Ritva cites another explanation, according to which the statement in Kiddushin refers to a minor girl who has a father, whereas the statements in our Gemara refers to an orphan girl.» (Adin Steinsaltz, The Talmud: The Steinsaltz edition: A reference guide, Random House, New York 1989, p. 242)
It can be deduced that B. Kiddushin 41a does not concern at all the engagement of any minor daughter but of a fatherless girl? In fact, only a fatherless girl can escape an unwanted marriage (b.Yebamoth 107b).
Maybe (Tosafot, Kiddushin 41a, ad loc. “Asur le-adam”) "It is still our habit to promise our minor daughters". Ritva and also Maimonides, Ishut 11,12-19 have misunderstood B. Kiddushin 41b?
The fundamental thing is that, in fact, it is allowed for a father to engage an underage daughter can be found in the same treatise precisely in Kiddushin 2a-3b.
Ephraim Urbach (1912-1991) illustrious Jewish scholar of Judaism known above all for his reference works on rabbinic thought, the sages, and for research on Tosafot: «The law that a man has the right to give his minor daughter in marriage (Kiddushin 2:1) is deduced from the Torah, as it is written, “I gave this man my daughter to wife” (Deuteronomy 22,16; TB Kiddushin 3b). It seems, however, that if a person died and left a minor daughter, it was an accepted custom that her mother or brothers could give her in marriage with or without her consent.» (Efraim Elimelech Urbach, The Halakhah, its sources and development, Massada Publishing, Jerusalem 1986, p. 35)
Statements that do not coincide with Rab's judgment at all. Judah confirms that what sentenced in b.Kiddushin 41a is only an aggadic and not halachic declaration.
So, the question what Steinsaltz says about Kiddushin is true? I rephrase the question, does Kiddushin 41b speak of an orphan and therefore Maimonides had an oversight to make "me'un" universal?
Shalom.
