לזכות נסיה תמר בת אלישבע טובה לבריאות השלימה!!
Tosfos in Ksubos [11b D.H. Matbilin] asks according to their opinion that גר קטן מטבילין אותו על דעת בית דין is only מדרבנן, there is a question from the Gemara in Perek Ben Sorer:
דאמר רבה קטן אינו מוליד שנא' (במדבר ה, ח) אם אין לאיש גואל וכי יש לך אדם בישראל שאין לו גואל
The Gemara comments: And Rav Chisda’s statement disagrees with the opinion of Rabba, as Rabba says in connection with one who returns stolen property after having taken a false oath that he did not steal it: A minor cannot father a child, as it is stated: “But if the man has no relative to whom restitution may be made, let the trespass that is recompensed to Hashem be the Kohen’s” (Numbers 5:8). And is there any man in the Jewish people who does not have a relative? All members of the Jewish people are related, as they all descend from the patriarch Jacob, and therefore every person has a relative who is fit to inherit from him.
אלא בגזל הגר הכתוב מדבר
Rather, the verse is speaking of the robbery of a convert, who is treated like a newborn child and considered to have no ties to his natural parents or relatives. If he did not father any children after his conversion, he is a man with no relatives at all, and therefore if he dies, property that had been stolen from him must be returned to a priest.
ואמר רחמנא איש איש אתה צריך לחזור עליו אם יש לו גואלין ואם לאו קטן אי אתה צריך לחזור עליו בידוע שאין לו גואלין
And the Merciful One states: “But if the man has no relative,” teaching that it is only in the case of a convert who is a man that you must go around seeking whether or not he has relatives, i.e., children who were born to him after his conversion. But in the case of a convert who is a minor, you do not have to go around searching for relatives; it is known that he has no relative, since a minor cannot father a child.
So we see that there is a concept of גר קטן even מדאורייתא because as we see, the concept is based on a pasuk?!
Ha-Gaon Rav Aharon Kotler ztz"l answered that גויים don't have an objective shiur [amount or age] that determines gadlus [as we do at 13] and they are considered adults when they have דעת. So it could be that he converted when he was a בר דעת but under 13 where his geirus is effective מדאורייתא and now he is a Jew but is considered a קטן because he is under 13. So we have a גר קטן מדאורייתא. But when the גוי has no דעת and we convert him [like the גר קטן שמטבילין אותו על דעת בית דין that can apply even to a baby], that is only מדרבנן.
Said Ha-Gaon Rav Shimon Moshe Diskin ztz"l: It is not so simple! The reason there is no set, objective שיעור גדלות for a גוי is because, as the Rosh [כלל ט"ז] explains, that בני נח weren't given shiurim - only Jews received shiurim. The explanation is NOT that בעצמותו, inherently, existentially, they have no objective shiurim. That would mean [if it were true] that even as far as what applies to Jews he is a gadol when he reaches the age of דעת. But rather the correct understanding is that בעצמותו, as far as the גוי himself is concerned, there ARE shiurim. Just the practical laws that pertain to him do not have shiurim. He has no תורת ודיני שיעורים. So when is the גוי objectively a gadol? At 13. When do the laws of a gadol apply to him? When he has דעת. So we the Jews [for our purposes] view him as a gadol at 13 and not when he has דעת. So if he converted as an 11 year old with דעת, he would NOT be a גר קטן מדאורייתא [as Rav Aharon said] because we only consider him a gadol at 13 and his דעת doesn't change his status as far as דיני ישראל go.
This would mean that if a בן נח with דעת kills when he was a קטן and then converted, he will not be executed because he killed as a קטן. He was, בעצמותו, a קטן. Now he has the status of a Jew who is not killed for what he does as a קטן. But if we say like the first possibility that we negated [that he is a gadol for all purposes when he reaches the age of דעת], then he will be punished because he sinned as a gadol and now he is Jewish and Jews are executed for what they do as gedolim.
Similarly with regard to the din that before the age of 9 his ביאה is not a ביאה, which also applies to משכב זכור, it would depend on the two approaches. According to the first approach that בעצמותו a גוי has no shiurim, if a Jew has משכב זכור with a גוי less than 9 years old, the Jew will be punished because his ביאה is considered a ביאה. It is as if he had ביאה with an underage בהמה to whom shiurim don't apply and he is חייב regardless of the age of the בהמה. So too, if we say that גויים are precluded from shiurim in their very essence, then it doesn't matter how old the גוי is and the Jew is חייב.
But if we adopt the second approach, that בעצמותם Goyim have shiurim, that would create a significance to the fact that the גוי is below the requisite age and the Jew would be פטור because as far as we are concerned the גוי is underage, making the ביאה a non-issue [because ביאה for an underage person is not ביאה].
So too, if an עכו"ם sodomizes a Jew under 9 [or a girl under 3] he will be חייב. This is because despite the fact that the victim is not of age, as far as the עכו"ם is concerned these dinim of shiurim do not apply [because as we said - תורת ודיני שיעורים don't apply to an עכו"ם]. So wrote the Minchas Chinuch.
