The Mishnah (13:12) taught that if a katan1 performed yibum to a ketana or a gedola then they must stay together until they both reach adulthood before a get can be presented. The Bartenura explains that the reason is because a katan is unable to give a get; similarly a ketana cannot receive one. One question that should be asked is what is the status of the yibum of a katan?
Rashi (Kidushin 19a) understands that yibum of a katan is koneh (acquires) on a biblical level. The katan would inherit her property in the event of her passing and would be allowed to become tameh in that case even if was a kohen. In Gemara Nidah (45a), Rashi explains that the katan would also acquire his deceased brother’s estate. Even though ordinarily a minor cannot acquire property, in this case it is already considered acquired for him.
The Mishnah in Nidah (45a) also teaches that if a katan performs yibum he must what till he is a gadol prior to giving a get. The Gemara there asks, how is it possible that a get would suffice? The Beraita taught that the Chachamim decreed that the bi’ah of a katan is considered like a maamar. The Gemara continues that indeed the katan would require bi’ah again after he became a gadol in order to be able to deliver a get. The Ramban understands from this Gemara, like Rashi, that yibum acquires for a katan on a biblical level. The question of the Gemara relates to the Chachamim’s effect on the yibumof a katan having reduced it to be like a ma’amer.
The Tosfot (Kiddushin 19a) however argue that yibum of a katan is defined as yibum only on a rabbinic level. They base their assertion on the Gemara (Yevamot 96b) that explains that the Chachamim instituted that the yibum of a katan be considered like a maamar. The Baalei Tosfot understand that really the yibum holds no weight on a biblical level. It is only with respect to yibum being considered like a maamer to exclusion of any other matter (yerusha, etc) that the Chachamim gave it weight.
HaRav Moshe Hershler (in his footnotes to the Ramban on Niddah) explains the debate as follows. The Gemara (Kiddusin 19a) excludes a katan from marriage based on a passuk. The question is, what is the effect of this exclusion. There are two ways to understand it. One is that the katan is excluded from the legal area of kidushin (much like a goi). The other way to understand the exclusion is that he simply does not have the capacity to perform kiddusin – he is not a bar daat. It appears that the Tosfot maintain the first understanding. Having been excluded from the world of ishut, the yibum of a katan on a biblical level is meaningless. The Ramban and Rashi however would maintain the second understanding. The lack of daat prevents him from performing kiddushin. With yibum however since it acquires even in the case of shogeg, it does not require the yabam initiate the legal change; the acquisition is from Shamayim. Consequently since the bi’ah of a ben tesha has legal weight, on a biblical level the yibum is considered yibum.2
1 The katan referred to in this article is at least nine years old. He will be referred to as simple a katan for the sake of brevity.
2 See the Shut Oneg Yom Tov, who resolves a number of seemingly contradictor commentaries of Rashi. He explains that while Rashi maintains the yibum of a katan is a complete kinyan, he has not yet fulfilled the mitzvah of yibum (as he is not yet ra’ui l’holid). Another bi’ah would be required when he becomes a gadol in order to fulfil this mitzvah.
Receive our publication with an in depth article and revision questions.
Listen to the new Mishnah Shiurim by Yisrael Bankier