Is the minor girl really married? TB Yevamot 108

The Mishnah on TB Yevamot 107b defines the difference between a minor and a child so young that she completely unable to give consent. A minor has the ability to refuse the marriage consented by her mother or brother with me’oon (מִיעוּן) because she knows what she is doing. A child, who is so young that she cannot even give consent, does not need to refuse for the marriage to be terminated. “Who is a minor girl who needs to perform refusal in order to annul her marriage? Any minor whose mother or brother married her off with her consent. If they married her off without her consent, she need not refuse her husband at all and may leave her husband without a declaration of refusal. Rabbi Ḥanina ben Antigonus says: Any girl who is so young that she cannot keep her betrothal, i.e., the money or document of betrothal, safe does not need to refuse, as the Sages instituted marriage only for a girl old enough to understand what she is doing.” (Sefaria.org translation)

Rabbi Eliezer and Rabbi Yehoshua disagree what is the status or state of the marriage with the minor. Rabbi Eliezer doesn’t consider it a valid marriage at all and Rabbi Yehoshua considers the relationship as a full-fledged marriage with one exception.

“It is taught in a baraita: Rabbi Eliezer says: The act of a minor girl is nothing, and therefore her marriage is not valid. And her husband has no rights to items she finds, nor to her earnings; nor does he have the right to annul her vows; he does not inherit her assets if she dies; and if she dies he may not become ritually impure on her account if he is a priest, i.e., through his presence in the same room as her corpse. The principle is: She is not his wife in any sense, except that she must perform refusal in order to marry someone else.

“Rabbi Yehoshua says: In the case of a minor whose mother or brother married her off, her husband has rights to items she finds, and to her earnings; and he has the right to annul her vows; and he inherits her assets if she dies; and if she dies he must become ritually impure on her account even if he is a priest. The principle is: She is his wife in every sense, except that she can leave him by means of refusal and does not require a bill of divorce.” (Sefaria.org translation)

Interestingly Rabbi Yehuda HaNasi weighs in on this disagreement and likes Rabbi Eliezer’s position better because of his consistency. “Rabbi Yehuda HaNasi said: The statement of Rabbi Eliezer appears to be more correct than the statement of Rabbi Yehoshua, as Rabbi Eliezer applied a consistent standard with regard to a minor, while Rabbi Yehoshua applied an inconsistent standard. The Gemara asks: In what way is his standard inconsistent? The Gemara answers: If she is his wife, she should require a bill of divorce from him.

“According to Rabbi Eliezer too, there appears to be an inconsistency, as, if she is not his wife, she should not be required to perform refusal either. The Gemara answers: But shall she leave with no ritual at all? Some sort of act is required to indicate that their relationship is permanently severed. Rabbi Eliezer has a consistent standard, according to which the marriage of a minor has no substance and to dissolve it she need only indicate that she does not want her husband. Rabbi Yehoshua is inconsistent in treating the relationship as a marriage even though it can be dissolved easily.” (Sefaria.org translation)

One might think therefore that the halakha follows Rabbi Eliezer especially since it is praised by Rabbi Yehuda HaNasi, but one would be wrong. The Gemara in TB Ketubot decides that the halakha is according to Rabbi Yehoshua. Consequently, Rambam and the Shulkhan Aruhk poskin accordingly. (Mishneh Torah, Sefer Nashim, Laws of Marital Status (הלכות אישות), Chapter 22, Halakha 4; Shulkhan Arukh, Even Ha’ezer, 155:10)