Yevamot 219:1

מאי לאו דלא בעל לא דבעל אי דבעל מאי טעמא דשמואל קסבר כל הבועל על דעת קדושין הראשונים הוא בועל

Does not [this refer to a case] where he<span class="x" onmousemove="('comment',' Her first husband. ');">¹</span> did not cohabit [with her]?<span class="x" onmousemove="('comment',' After she had attained her majority. And since Rab nevertheless rules that no divorce from the second husband is required it is obvious that he regards her first marriage as valid! ');">²</span> — No; where he<span class="x" onmousemove="('comment',' Her first husband. ');">¹</span> did cohabit with her.<span class="x" onmousemove="('comment',' And it is this cohabitation, not their first betrothal, that constitutes the kinyan of the first marriage. ');">³</span> If, however, he<span class="x" onmousemove="('comment',' Her first husband. ');">¹</span>

והא פליגי בה חדא זימנא דאיתמר קדשה על תנאי וכנסה סתם רב אמר צריכה הימנו גט ושמואל אמר אינה צריכה הימנו גט

cohabited [with her] what is Samuel's reason?<span class="x" onmousemove="('comment',' Since cohabitation renders the betrothal of the first husband valid, that of the second must be invalid; why then did Samuel require the woman to be divorced from her second husband! ');">⁴</span> — He holds the view that one Who performs cohabitation does so in reliance on his first betrothal.<span class="x" onmousemove="('comment',' Which was invalid. The marriage with the second husband is therefore valid and can be annulled by divorce only. ');">⁵</span> But surely they<span class="x" onmousemove="('comment',' Rab and Samuel. ');">⁶</span> once disputed this point! For it was stated: If a man betrothed a woman conditionally,<span class="x" onmousemove="('comment',' Stipulating, for instance, that she must have no bodily defect or that she must not be subject to any restrictions due to a vow she may have made. ');">⁷</span> and unconditionally, Rab ruled: She<span class="x" onmousemove="('comment',' If it was discovered that she had a defect or that she was subject to the restrictions due to a vow. ');">⁸</span>

רב אמר צריכה הימנו גט כיון דנסבה אחולי אחליה לתנאיה ושמואל אמר אינה צריכה הימנו גט כל הבועל על דעת קדושין הראשונים הוא בועל

requires from him a letter of divorce; and Samuel ruled: She requires no letter of divorce from him. 'Rab ruled: She requires from him a letter of divorce', because as soon as he marries her he undoubtedly dispenses with his condition.<span class="x" onmousemove="('comment',' And valid kinyan is effected by their first cohabitation. ');">⁹</span> 'And Samuel ruled: She requires no letter of divorce from him', because one who performs cohabitation does so in reliance on his first betrothal!<span class="x" onmousemove="('comment',' Which was invalid; v, Keth. 72b. Why then should they dispute the same point again? ');">¹⁰</span> — [Both disputes were] necessary. For if the former<span class="x" onmousemove="('comment',' Lit., 'that'; the dispute concerning a minor who did not exercise her right of mi'un, cited from Keth. 73a. ');">¹¹</span> only had been stated, it might have been assumed that Rab adheres to his opinion there only because no condition<span class="x" onmousemove="('comment',' This is the reading of Rashi, following the version in Keth. 73a. The reading of cur. edd. is given infra p. 766, n. 6. ');">¹²</span> was attached [to the betrothal]<span class="x" onmousemove="('comment',' And the husband was obviously anxious to give the union all the necessary validity. Being well aware that the betrothal of a minor is Pentateuchally invalid he naturally 'betroths' her again by cohabitation as soon as she becomes of age. ');">¹³</span>

צריכא דאי איתמר ההיא בההיא קאמר רב משום דאיכא תנאה וכיון דבעל אחליה לתנאיה אבל בהא אימא מודה ליה לשמואל ואי איתמר בהא בהך קאמר שמואל אבל בהך אימא מודה ליה לרב צריכא

but in the latter case,<span class="x" onmousemove="('comment',' Lit., 'that'; cited from Keth. 72b. ');">¹⁴</span> where a condition was attached to it, he agrees with Samuel.<span class="x" onmousemove="('comment',' That the original condition remains in force even after consummation of the marriage. ');">¹⁵</span> And if the latter case<span class="x" onmousemove="('comment',' Lit., 'that'; cited from Keth. 72b. ');">¹⁴</span> only had been stated, it might have been assumed that there only<span class="x" onmousemove="('comment',' Since the condition was attached to the original betrothal, ');">¹⁶</span> does Samuel maintain his view<span class="x" onmousemove="('comment',' That the marriage remains dependent on the original condition and is, therefore, invalid. ');">¹⁷</span>

ומי אמר רב כי בעל אין אי לא בעל לא והא ההיא עובדא דהוה בנרש ואיקדישה כשהיא קטנה וגדלה ואותביה אבי כורסייא ואתא אחרינא וחטפה מיניה ורב ברונא ורב חננאל תלמידי דרב הוו התם ולא הצריכוה גיטא מבתרא

but in the former<span class="x" onmousemove="('comment',' v. supra p. 765, n. 13. ');">¹⁸</span> he agrees with Rab.<span class="x" onmousemove="('comment',' Cur. edd. read, 'For if that had been stated, (it might have been assumed that) in that case only did Rab maintain his view, because there existed a condition and as soon as (the man) cohabited with her he dispensed with his condition; but in this case it might have been assumed that he agrees with Samuel; and if this had been stated (it might have been assumed that) in this case only did Samuel maintain his view; but in that, it might have been said, he agrees with Rab'. [Rashi rejects this reading in view of the passage in Keth. 72a which states distinctly that Rab's ruling was not because he held that the man dispenses with the condition on intercourse, but because he renews betrothal at the time to avoid intercourse degenerating into mere fornication. Tosaf. s.v. [H] retains the reading of cur. edd., and explains that it is because no man would render his intercourse mere fornication that we assume that he dispensed with the condition, since he made no mention of the condition at the time. Had he, however, repeated the condition at intercourse, the condition would stand]. ');">¹⁹</span> [Hence both were] required. Did Rab, however, state that only where [the husband] cohabited with her<span class="x" onmousemove="('comment',' The minor who has attained majority. ');">²⁰</span> does she require a letter of divorce<span class="x" onmousemove="('comment',' Lit., 'yes'. ');">²¹</span>

אמר רב פפא בנרש מינסב נסיבי והדר מותבי אבי כורסייא רב אשי אמר הוא עשה שלא כהוגן לפיכך עשו בו שלא כהוגן ואפקעינהו רבנן לקידושי מיניה

but that if he did not cohabit with her none is required?<span class="x" onmousemove="('comment',' Lit., 'not'. ');">²²</span> Surely it once happened at Naresh that a man betrothed a girl while she was a minor, and, when she attained her majority and he placed her upon the bridal chair,<span class="x" onmousemove="('comment',' It is assumed that this was a ceremony similar to ordinary huppah (v. Glos.). ');">²³</span> another man came and snatched her away from him; and, though Rab's disciples, R. Beruna and R. Hananel, were present on the occasion, they did not require the girl to obtain a letter of divorce from the second man!<span class="x" onmousemove="('comment',' Obviously because they regarded the first marriage. though no cohabitation had taken place (v. supra n. 10), as valid, As the disciples presumably acted in accordance with the ruling of their Master, Rab, how could it be said that Rab requires a divorce only where cohabitation had taken place? ');">²⁴</span> — R. Papa replied: At Naresh they married<span class="x" onmousemove="('comment',' Cohabitation. ');">²⁵</span> first and then placed [the bride] upon the bridal chair.<span class="x" onmousemove="('comment',' And this is the reason why Rab's disciples regarded the marriage with the first husband as valid and, therefore, required no divorce from the second man. ');">²⁶</span>

אמר ליה רבינא לרב אשי תינח דקדיש בכספא קדיש בביאה מאי שויוה רבנן לבעילתו בעילת זנות אמר רב יהודה אמר שמואל הלכה כרבי אליעזר וכן אמר רבי אלעזר הלכה כרבי אליעזר:

R. Ashi replied: He<span class="x" onmousemove="('comment',' The second man. ');">²⁷</span> acted improperly<span class="x" onmousemove="('comment',' In snatching away another man's wife. ');">²⁸</span> they, therefore, treated him also improperly, and deprived him of the right of valid betrothal.<span class="x" onmousemove="('comment',' All betrothals are made 'in accordance with the law of Moses and Israel' (cf. P.B. p. 298) i.e.. the Pentateuchal, as well as Rabbinic law; hence it is within the power of the Rabbinical authorities to declare certain betrothals, such, for instance, as the present one where the girl was improperly snatched away, to be invalid. ');">²⁹</span> Said Rabina to R. Ashi: [Your explanation is] satisfactory where the man betrothed [her] with money;<span class="x" onmousemove="('comment',' One of the forms of kinyan in marriage (cf. Kid. 2a). Since the Rabbis are empowered to confiscate a man's property they might well dispose of the money of the betrothal by treating it as a mere gift to the girl. ');">³⁰</span> what [however, can be said where] he betrothed her by cohabitation? — The Rabbis have declared his cohabitation to be an act of mere fornication.<span class="x" onmousemove="('comment',' Which has no legal validity to effect a kinyan. ');">³¹</span>

<big><strong>מתני׳</strong></big> מי שהיה נשוי לשתי יתומות קטנות ומת ביאתה או חליצתה של אחת מהם פוטרת צרתה וכן שתי חרשות קטנה וחרשת אין ביאת אחת מהן פוטרת צרתה

Rab Judah stated in the name of Samuel: The <i>halachah</i> is in agreement with R. Eliezer;<span class="x" onmousemove="('comment',' That THE MINOR IS TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN. ');">³²</span> and so did R. Eleazar state: The <i>halachah</i> is in agreement with R. Eliezer.<span class="x" onmousemove="('comment',' That THE MINOR IS TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN. ');">³²</span> <b><i>MISHNAH</i></b>. IF A MAN WAS MARRIED TO TWO ORPHANS WHO WERE MINORS<span class="x" onmousemove="('comment',' Marriage with whom is only Rabbinically valid. ');">³³</span> AND DIED, COHABITATION<span class="x" onmousemove="('comment',' By the levir, even during her minority, for the purpose of the levirate marriage. ');">³⁴</span> OR <i>HALIZAH</i><span class="x" onmousemove="('comment',' After she has attained her majority. ');">³⁵</span>

פקחת וחרשת ביאת הפקחת פוטרת החרשת ואין ביאת החרשת פוטרת את הפקחת גדולה וקטנה ביאת הגדולה פוטרת הקטנה ואין ביאת הקטנה פוטרת הגדולה:

WITH ONE OF THEM EXEMPTS HER RIVAL.<span class="x" onmousemove="('comment',' From levirate marriage and halizah. ');">³⁶</span> AND THE SAME LAW IS APPLICABLE TO<span class="x" onmousemove="('comment',' Lit., 'and so'. ');">³⁷</span> TWO DEAF<span class="x" onmousemove="('comment',' I.e., deaf.mute. ');">³⁸</span> WOMEN.<span class="x" onmousemove="('comment',' Marriage with whom, like marriage with a minor, is only Rabbinically valid. ');">³⁹</span> [IF A MAN WAS MARRIED TO] A MINOR AND TO A DEAF<span class="x" onmousemove="('comment',' I.e., deaf.mute. ');">³⁸</span>

<big><strong>גמ׳</strong></big> וחרשת בת חליצה היא והתנן חרש שנחלץ וחרשת שחלצה וחולצת מן הקטן חליצתה פסולה

WOMAN,<span class="x" onmousemove="('comment',' Though the marriage with either, according to Rabbinic law, is of equal validity. ');">⁴⁰</span> COHABITATION WITH ONE OF THEM DOES NOT EXEMPT HER RIVAL.<span class="x" onmousemove="('comment',' Since it is uncertain, owing to the difference in their physical condition and age, which of them he preferred and which of them has consequently the greater claim to be regarded as his wife. ');">⁴¹</span> [IF ONE WAS] POSSESSED OF HER FACULTIES AND THE OTHER WAS DEAF,<span class="x" onmousemove="('comment',' I.e., deaf-mute. ');">⁴²</span> COHABITATION WITH THE FORMER EXEMPTS THE LATTER, BUT COHABITATION WITH THE LATTER DOES NOT EXEMPT THE FORMER. [IF ONE WAS] OF AGE AND THE OTHER A MINOR, COHABITATION WITH THE FORMER EXEMPTS THE LATTER, BUT COHABITATION WITH THE LATTER DOES NOT EXEMPT THE FORMER. <b><i>GEMARA</i></b>. Is, however, a deaf<span class="x" onmousemove="('comment',' I.e., deaf-mute. ');">⁴²</span>

אמר רב גידל אמר רב אביאה רבא אמר אפילו תימא אחליצה כאן בחרשת מעיקרא כאן בפקחת ואח"כ נתחרשה

woman permitted to perform <i>halizah</i>? Surely, we learned: If a deaf levir submitted to <i>halizah</i> or a deaf sister-in-law performed <i>halizah</i>, or if <i>halizah</i> was performed on a minor, the <i>halizah</i> is invalid!<span class="x" onmousemove="('comment',' Supra 104b. How then could it be said in our Mishnah. AND THE SAME LAW IS APPLICABLE TO TWO DEAF WOMEN? ');">⁴³</span> — R. Giddal replied in the name of Rab: [This<span class="x" onmousemove="('comment',' The law in our Mishnah concerning two deaf women. V. supra n. 3. ');">⁴⁴</span> applies] to COHABITATION.<span class="x" onmousemove="('comment',' Not to halizah. ');">⁴⁵</span> Raba<span class="x" onmousemove="('comment',' Others, 'Rabbah'. Cf. infra p. 772, n. 8. ');">⁴⁶</span> replied: It<span class="x" onmousemove="('comment',' V. supra note 4. ');">⁴⁷</span>

חרשת מעיקרא כי היכי דעל הכי נפק פקחת ואחר כך נתחרשה לא דמעכבא בה קרייה

may be said to apply even to <i>halizah</i>; one<span class="x" onmousemove="('comment',' Lit., 'here'; our Mishnah which allows halizah in respect of a deaf woman. ');">⁴⁸</span> referring to a woman who was originally deaf,<span class="x" onmousemove="('comment',' Even before her marriage. ');">⁴⁹</span> and the other<span class="x" onmousemove="('comment',' The Mishnah supra 104b which rules the halizah of a deaf woman to be invalid. ');">⁵⁰</span> referring to a woman who was possessed of hearing<span class="x" onmousemove="('comment',' At the time she married. ');">⁵¹</span> and became deaf afterwards. The 'woman who was originally deaf', leaves<span class="x" onmousemove="('comment',' The levir by means of halizah. ');">⁵²</span>

איתיביה אביי וחרשת מעיקרא בת חליצה היא והתנן שני אחין אחד פקח ואחד חרש נשואין לשתי נכריות אחת פקחת ואחת חרשת מת חרש בעל חרשת מה יעשה פקח בעל פקחת כונס ואם רצה להוציא יוציא

as she entered,<span class="x" onmousemove="('comment',' The marriage with her husband. As the marriage was performed by means of signs and gestures so also is the halizah. ');">⁵³</span> but the 'woman who was possessed of hearing and became deaf afterwards' cannot do so, since her inability to recite [the prescribed formulae]<span class="x" onmousemove="('comment',' Cf. supra 106b. ');">⁵⁴</span> acts as an obstacle.<span class="x" onmousemove="('comment',' As a deaf-mute she is unable to recite them and is consequently precluded from the performance of halizah. ');">⁵⁵</span> Abaye raised an objection against him: Is, however, one who was originally deaf permitted to perform <i>halizah</i>? Surely, we learned: If two brothers, one of whom was in possession of his faculties and the other deaf,<span class="x" onmousemove="('comment',' Not to halizah. ');">⁴⁵</span> were [respectively] married to two strangers,<span class="x" onmousemove="('comment',' I.e., women who were not related to one another. ');">⁵⁶</span>

מת פקח בעל פקחת מה יעשה חרש בעל חרשת כונס ואינו מוציא לעולם מאי לאו בחרשת מעיקרא וקתני כונס אין

one of whom was in the possession of her faculties and the other deaf,<span class="x" onmousemove="('comment',' I.e., deaf-mute. ');">⁵⁷</span> and the deaf [brother] who was the husband of the deaf woman died, what should [his brother who was] in possession of his faculties, the husband of the woman in possession of her faculties, do? He marries her<span class="x" onmousemove="('comment',' I.e., contracts the levirate marriage by means of signs and gestures. No halizah is permitted since the woman is incapable of reciting the prescribed formulae. ');">⁵⁸</span> and if he wishes to send her away,<span class="x" onmousemove="('comment',' After he has married her. ');">⁵⁹</span> he may do so.<span class="x" onmousemove="('comment',' Divorcing her, as he married her, by the use of signs and gestures. ');">⁶⁰</span> If the [brother] who was in possession of his faculties, the husband of the woman who was in possession of her faculties, died, what should the deaf brother, the husband of the deaf woman do? He marries [the widow] and may never divorce her.<span class="x" onmousemove="('comment',' Infra 112b. The divorce of a man who is not in the possession of all his faculties cannot annul the marriage of his brother who was in the possession of all his faculties and whose marriage, therefore, subjects him to a levirate marriage that can never be annulled. ');">⁶¹</span> Does not this apply to a woman who was originally deaf?<span class="x" onmousemove="('comment',' Probably it does. ');">⁶²</span> And yet it was stated that he may only marry