[Avodah] Did RSRH Write LH about Shimon and Levi

[Joshua Waxman]

RTKatz:
>>
It was already established back from the time of Rivkah ("Nish'alah es
pi hana'arah") that Jews do not marry off a daughter or a sister
without her consent.
>>

Saul Mashbaum:
>>
It is a common misconception that the cited phrase indicates that
Rivkah's consent was necessary for the proposed marriage. As is clear
from the Biblical text, the cited phrase relates to something else:
the proposal that Rivkah leave her father's house immediately, as
Eliezer requested, rather than remain in his house for a while, as her
family suggested.
On the contrary, the text does not indicate at all that Rivkah
consented to the proposed marriage.
>>

Yet the interesting thing about this is that that particular Rashi is citing
a midrash where it is about a *brother and sister* marrying off the orphaness.
And the midrash uses the word Yetomah, so that it hooks into the midrash
about the disappearance of Betuel. And the key is that this is not what
you or I would label peshat, but what the midrash, and Rashi intends. Shadal
says like you about the meaning of the phrase, but Rashi indeed says it was
asking her about marriage. This is not misconception, but rather dispute
about the meaning of the term. (And I would agree with you as to the meaning
on a peshat level.)

Saul Mashbaum:
>>
Al pi halacha,  a father *may* marry off a minor daughter without her
consent. This well-known Talmudic principle  is the halacha, as stated
explicitly in Even HaEzer 37;1, without dispute. The Mechaber in 37;11
cites the statement in the g'mara that it is a mitzva for the father
not to exercise the right he has marry off his minor daughter. The
Rama there cites the opinion of Tosfot which justifies  marrying off
minor daughters without their consent, and concludes that this was the
common practice in Ashkenaz.
Thus, the statement " Jews do not marry off a daughter or a sister
without her consent" , when applied to a minor, is incorrect both in
theory and in widespread practice, up to modern times.
>>

But some, when discussing the Rashi, do hook it into the Mishna and 
gemara which state that it is forbidden for a father to do so. And the Rif
paskens that it is forbidden to do so. This is problematic anyway because
Rashi assumes that she is a minor at this point, so asking consent would 
not help.

I wrote about this a while back, here:
http://parsha.blogspot.com/2008/11/chayei-sarah-rashi-and-womens.html

But you are absolutely right in terms of the way halacha has developed and
has been codified.

KT,
Josh Waxman