The right of refusal, TB Yevamot 107

With today’s daf TB Yevamot 107 we begin the 13^th chapter of our massekhet. This chapter discusses the laws of me’oon (מִיעוּן), the right of a minor girl to annul a marriage contracted by her mother or brother. Obviously today this protocol is only theoretical because underage marriages are forbidden by law and our society understands these underage marriages as exploitative and abhorrent.

Premodern societies saw underage marriages as something more positive. Life was difficult and life expectancy was not very long. By marrying a minor daughter, the family was trying to ensure that she would have a roof over her head and food on the table that they may not be able to provide or in the case of the parents’ death. Under age marriage was sanctioned because it protected the minor girl.

Marriage needs the consent of both the bride and groom. If either the man or the woman does not consent to the marriage, there can be no marriage.

A minor girl does not have the capacity legally to consent to a marriage. Consequently, consent has to be provided on her behalf. The Torah gives the father the legal right to give consent for his minor daughter to marry. If the father is dead or halakhically out of the picture, the rabbis permitted the mother or the brother to provide consent for their under aged daughter or sister.

The rabbis wanted to protect this underage girl, who they gave permission to her mother or brother to marry her off.  Before she reaches the age of majority, the rabbis give her the right of refusal, me’oon, (מִיעוּן). She not only annuls the marriage, but also expunges it as if the marriage never ever took place. Unlike a divorcee she is permitted to marry her former husband’s relatives or a priest.

The first Mishna presents five different disagreements between Beit Hillel and Beit Shammai. Beit Shammai has a more restrictive understanding of me’oon while Beit Hillel has a more expansive one.

“MISHNA: The Sages decreed that in the case of a minor girl whose father died, her mother or brothers may marry her off. However, such a marriage does not have the same legal status as the marriage of an adult. Therefore, if the minor regrets having married, she is allowed to make a declaration of refusal to her husband, thereby annulling the marital bond. The Sages disagreed with regard to the details of this halakha:

1.     Beit Shammai say: Only betrothed girls may refuse. A girl may refuse, upon reaching adulthood, to remain married to the man to whom her mother or brothers married her as a minor after the death of her father. But Beit Hillel say that both betrothed and fully married girls may refuse.

2.   Beit Shammai say: Refusal may be directed only at her husband and not at her yavam. In such a situation, she must perform ḥalitza in order to dissolve the levirate bond. But Beit Hillel say: It may be directed at her husband or her yavam.

3. Beit Shammai say: The refusal must take place specifically in the presence of the husband. But Beit Hillel say: It may take place either in his presence or in his absence. 

4. Beit Shammai say: The refusal must take place specifically in court. But Beit Hillel say: It may take place either in court, or not in court.

5. Beit Hillel said to Beit Shammai: She may refuse as long as she is a minor, even four or five times if her relatives married her off again to another man after each refusal. Beit Shammai said to them: The daughters of Israel are not to be treated with disregard and should not be passed from one man to another. Rather, she refuses once. And then she must wait until she reaches majority, and refuse, and marry.” (Sefaria.org translation)

As in most cases, the halakha follows Beit Hillel. (Rambam, Mishneh Torah, Sefer Nashim, the Laws of Divorce, chapter 11, Halakha 3 and Shulkhan Arukh, Even Ha’ezer. 155:4-6)

We should note that in disagreement #4 the Gemara clarifies that Beit Hillel also agrees that the me’oon needs to be done before three. They disagree with Beit Shammai because they believe that these three don’t need to be expert judges. “As it is taught in a baraita: Beit Shammai say: Before a court, and Beit Hillel say: Either before a court or not before a court, but both this school and that school concede that three people are required.” (Sefaria.org translation) To review why a court of three is necessary, we reread my TB Yevamot 101 entry.