Yevamot 220

חולץ לא לא בפקחת ואחר כך נתחרשה

but not submit to <i>halizah</i>!<span class="x" onmousemove="('comment',' Owing to the woman's incapability of reciting the prescribed formulae. How, then, could Raba (or Rabbah) state that in such a case halizah is permissible? ');">¹</span> — No, this refers to a woman who was capable of hearing<span class="x" onmousemove="('comment',' At the time she married. ');">²</span> and became deaf afterwards.<span class="x" onmousemove="('comment',' After he has married her. ');">³</span>

תא שמע שני אחין פקחין נשואין שתי נכריות אחת פקחת ואחת חרשת מת פקח בעל החרשת מה יעשה פקח בעל פקחת כונס ואם רוצה להוציא יוציא מת פקח בעל פקחת מה יעשה פקח בעל חרשת או חולץ או מייבם

Come and hear: If two brothers of sound senses were married to two strangers<span class="x" onmousemove="('comment',' I.e., women who were not related to one another. ');">⁴</span> one of whom was of sound senses and the other deaf, and [the brother who was] of sound senses, the husband of the deaf woman, died, what should the [brother who was] of sound senses, the husband of the woman who was of sound senses, do? He marries [the deaf widow], and if he wishes to divorce her he may do so.<span class="x" onmousemove="('comment',' V. supra n. 5. ');">⁵</span> If [the brother who was] of sound senses, the husband of the woman who was of sound senses, died, what should the [brother who was] of sound senses, the husband of the woman who was deaf, do? He may either submit to <i>halizah</i> or contract levirate marriage.<span class="x" onmousemove="('comment',' Infra 112b. ');">⁶</span>

מאי לאו מדהוא פקח מעיקרא היא נמי חרשת מעיקרא וקתני כונס אין חולץ לא מידי איריא הא כדאיתא והא כדאיתא

Are we not to assume that<span class="x" onmousemove="('comment',' Lit., 'what not?' ');">⁷</span> as the man was originally<span class="x" onmousemove="('comment',' Even before marriage. ');">⁸</span> of sound senses so was she originally<span class="x" onmousemove="('comment',' Even before marriage. ');">⁸</span>

איתיביה שני אחין אחד פקח ואחד חרש נשואין שתי אחיות אחת פקחת ואחת חרשת מת חרש בעל חרשת מה יעשה פקח בעל פקחת תצא משום אחות אשה

deaf, and nevertheless it was stated that he may only<span class="x" onmousemove="('comment',' Lit., 'yes'. ');">⁹</span> marry her but may not submit to her <i>halizah</i>!<span class="x" onmousemove="('comment',' V. p. 769, n. 8. ');">¹⁰</span> — Is this an argument? Each one may bear its own meaning.<span class="x" onmousemove="('comment',' Lit., 'that as it is, and that etc.' ');">¹¹</span>

מת פקח בעל פקחת מה יעשה חרש בעל חרשת מוציא את אשתו בגט ואשת אחיו אסורה לעולם

An objection was raised against him:<span class="x" onmousemove="('comment',' Raba (or Rabbah). ');">¹²</span> If two brothers, one of whom was of sound senses and the other deaf, were married to two sisters, one of whom was of sound senses and the other deaf, and the deaf brother, the husband of the deaf sister, died, what should [the brother who was] of sound senses, the husband of [the sister who was] of sound senses, do? — [Nothing, since] the widow is released<span class="x" onmousemove="('comment',' From levirate marriage and halizah. ');">¹³</span> by virtue of her being [the levir's] wife's sister. If [the brother who was] of sound senses, the husband of [the sister who was] of sound senses, died, what should the deaf brother, the husband of the deaf sister, do? He releases his wife by means of a letter of divorce,<span class="x" onmousemove="('comment',' He must not continue to live with her because she is the sister of his zekukah (v. Glos.) the levirate bond with whom is, as was her marriage with her husband, Pentateuchally valid, while his own marriage with his deaf wife, though valid in Rabbinic law, is invalid in Pentateuchal law. A Rabbinically valid marriage cannot override a levirate bond which is Pentateuchal. ');">¹⁴</span>

וכי תימא ה"נ בפקח ואחר כך נתחרש מי מצי מפיק והתנן נתחרשה יוציא נשתטית לא יוציא נתחרש הוא או נשתטה לא יוציא עולמית

while his brother's wife is for ever forbidden [to marry again]!<span class="x" onmousemove="('comment',' Infra 112b. She is forbidden to her brother-in-law since she is (in Rabbinic law) his wife's (or divorcee's) sister, and she is forbidden to other men since, as a deaf-mute who is unable to recite the prescribed formulae, her brother-in-law is precluded from submitting to halizah from her, and, in consequence, she remains attached to him by the levirate bond. Now, as the levir's deafness is, in this case, an affliction from which he suffered prior to his marriage, the deafness spoken of in the two previously cited cases (since all these appear in the same contexts) must similarly refer to afflictions commenced prior to the marriage. This then presents an objection against Raba (cf. supra p. 769, n. 8)! ');">¹⁵</span> And should you reply that here also [it is a case of a man] who was of sound senses and who became afterwards deaf, is [such a man, it may be retorted], in a position to divorce [his wife]? Surely, we learned: If she<span class="x" onmousemove="('comment',' One's wife. ');">¹⁶</span> became deaf, he may divorce her; if she became insane, he may not divorce her.<span class="x" onmousemove="('comment',' In accordance with a Rabbinical provision safeguarding the position of the woman who, were she to be divorced and thus remain unprotected by a husband, would be subject, owing to her mental condition, to serious moral and physical danger. ');">¹⁷</span>

אלא לאו בחרש מעיקרא ומדהוא חרש מעיקרא היא נמי חרשת מעיקרא ומדאחיות חרשות מעיקרא נכריות נמי חרשות מעיקרא ותנן גבי נכריות כונס אין חולץ לא אישתיק

If he became deaf or insane he may never divorce her.<span class="x" onmousemove="('comment',' Infra 112b; because his marriage which took place when he was in full possession of his senses was Pentateuchally valid, while a divorce given by him while deaf or insane would have no Pentateuchal validity. ');">¹⁸</span> Consequently it must be a case of a man<span class="x" onmousemove="('comment',' Lit., 'but not?' ');">¹⁹</span> who was originally<span class="x" onmousemove="('comment',' Prior to the marriage. ');">²⁰</span>

כי אתא לקמיה דרב יוסף א"ל מ"ט תותביה מהא דיכול לשנויי לך אחיות חרשות מעיקרא נכריות פקחות ואח"כ נתחרשו

deaf. And since [the man spoken of] is one who was originally deaf, the woman [spoken of in the same context must] also be one who was originally deaf; and, as the sisters were such as were originally deaf, the strangers also [must be such as were] originally deaf; but in the case of the strangers we learned that [the levir] may only marry<span class="x" onmousemove="('comment',' Lit., 'yes'. ');">²¹</span> but may not submit to <i>halizah</i>!<span class="x" onmousemove="('comment',' V. supra p. 769, n. 8. ');">²²</span> The other<span class="x" onmousemove="('comment',' Raba (or Rabbah). ');">²³</span>

אלא איבעי לך לאותביה מהא שני אחין חרשין נשואין שתי אחיות פקחות או שתי אחיות חרשות או שתי אחיות אחת פקחת ואחת חרשת וכן שתי אחיות חרשות נשואות לשני אחין פקחין או לשני אחין חרשין או לשני אחין אחד פקח ואחד חרש הרי אלו פטורות מן החליצה ומן הייבום ואם היו נכריות יכנוסו ואם רצו להוציא יוציאו

remained silent. When he<span class="x" onmousemove="('comment',' Abaye. ');">²⁴</span> visited R. Joseph, the latter said to him: Why did you raise your objections against him<span class="x" onmousemove="('comment',' Raba (or Rabbah). ');">²³</span>

היכי דמי אילימא בפקחים ולבסוף נתחרשו מי מצי מפקי והתנן נשתטית לא יוציא נתחרש הוא או נשתטה לא יוציא עולמית

from [teachings] which he could parry by replying that the sisters [spoken of are such as were] originally deaf, and that the strangers [are such as were originally] of sound senses who became deaf afterwards? You should rather have raised your objection against him from the following: If two deaf brothers were married to two sisters who were of sound senses, or to two deaf sisters or to two sisters one of whom was of sound senses and the other deaf; and so also if two deaf sisters were married to two brothers who were of sound senses, or to two deaf brothers, or to two brothers one of whom was of sound senses and the other deaf, behold these women<span class="x" onmousemove="('comment',' If their husbands died without issue. ');">²⁵</span> are exempt from levirate marriage and from <i>halizah</i>.<span class="x" onmousemove="('comment',' Because all these marriages having been contracted by signs and gestures, are of equal validity. Each widow is, therefore, forbidden to the respective levir as his wife's sister. ');">²⁶</span> If [however the women] were strangers<span class="x" onmousemove="('comment',' To one another. ');">²⁷</span>

אלא לאו אחרשין מעיקרא ומדהן חרשין מעיקרא אינהו נמי חרשות מעיקרא וקתני אם היו נכריות יכנוסו יכנוסו אין יחלצו לא תיובתא דרבה תיובתא:

[the respective levirs] must marry them,<span class="x" onmousemove="('comment',' Halizah is forbidden, since either the levir or the sister-in-law (or both), as the case may be, is unable to recite the prescribed formulae. ');">²⁸</span> and if they wish to divorce them, they may do so.<span class="x" onmousemove="('comment',' Cit. 71b, infra 112b. ');">²⁹</span> Now, how [is this ruling]<span class="x" onmousemove="('comment',' Concerning the deaf people spoken of in this context. ');">³⁰</span>

קטנה וחרשת וכו': אמר רב נחמן אשכחתיה לרב אדא בר אהבה ולרב חנא חתניה דיתבי וקמקוו אקוותא בשוקא דפומבדיתא ואמרי הא דתנן קטנה וחרשת אין ביאת אחת מהן פוטרת צרתה הני מילי דנפלה ליה מאחיו פקח דלא ידעינן אי בקטנה ניחא ליה אי בחרשת ניחא ליה

to be understood? If it be suggested [that it refers to brothers who were first]<span class="x" onmousemove="('comment',' Prior to the marriage. ');">³¹</span> of sound senses and who became deaf afterwards,<span class="x" onmousemove="('comment',' After the marriage. ');">³²</span> could they [it may be asked] divorce [their wives]? Surely, we learned: If he<span class="x" onmousemove="('comment',' Cf. BaH. Cur. edd. insert: 'If she became insane he may not divorce'. ');">³³</span>

אי בקטנה ניחא ליה דאתיא לכלל דיעה אי בחרשת ניחא דגדולה היא ובת ביאה היא אבל נפלה מאחיו חרש ודאי בחרשת ניחא ליה דבת ביאה היא ובת מיניה היא

became deaf or insane he may never divorce her!<span class="x" onmousemove="('comment',' Git. 71 b. infra 112b. Cf. supra p. 771, n. 1. How, then, could it be said to be a case of deafness acquired after marriage! ');">³⁴</span> This ruling must consequently refer<span class="x" onmousemove="('comment',' Lit., 'but not?' ');">³⁵</span> to [brothers who were] originally<span class="x" onmousemove="('comment',' Prior to the marriage. ');">³¹</span>

ואמינא להו אנא אפילו נפלה ליה מאחיו חרש נמי מספקא ליה

deaf; and since they [are such as were] originally deaf, the women [referred to must] also be [such as were] originally<span class="x" onmousemove="('comment',' Prior to the marriage. ');">³¹</span> deaf; and it was nevertheless taught: 'If [the women, however], Were strangers [the respective levirs] must marry them',<span class="x" onmousemove="('comment',' Git. 71 b, infra 112b. ');">³⁶</span> they may thus only<span class="x" onmousemove="('comment',' Lit., 'yes'. ');">³⁷</span>

כיצד תקנתן אמר רב חסדא אמר רב כונס החרשת ומוציאה בגט וקטנה תמתין עד שתגדיל ותחלוץ

marry them but may not submit to their <i>halizah</i>. This, then, presents a refutation of Rabbah!<span class="x" onmousemove="('comment',' Or 'Raba'. Cf. supra p. 768, n. 6 and supra p. 769, n. 8. ');">³⁸</span> — This is indeed a refutation. A MINOR AND A DEAF WOMAN etc. R. Nahman related: I once found R. Adda b. Ahabah and his son-in-law R. Hana sitting in the market place of Pumbeditha and bandying arguments<span class="x" onmousemove="('comment',' So Tosaf. and one of Rashi's explanations. [H] (vb. [H] 'to blunt' and noun [H] or [H] 'refutation'). Jastrow renders, 'They were sitting and raising arguments. Another interpretation of Rashi derives the expression from the [H] 'to gather'; 'they were gathering round them an assembly of students'. ');">³⁹</span>

אמר רב חסדא ש"מ קסבר רב חרשת קנויה ומשויירת קטנה קנויה ואינה קנויה דאי ס"ד חרשת קנויה ואינה קנויה קטנה קנויה ומשויירת חרשת אמאי כונס ומוציאה בגט

and [in the course of these they] stated: The ruling,<span class="x" onmousemove="('comment',' Lit., 'that which we learned'. ');">⁴⁰</span> [IF A MAN WAS MARRIED TO] A MINOR AND TO A DEAF WOMAN, COHABITATION WITH ONE OF THEM DOES NOT EXEMPT HER RIVAL applies only to a case<span class="x" onmousemove="('comment',' Lit., 'these words'. ');">⁴¹</span> where [the widows] became subject to him<span class="x" onmousemove="('comment',' Lit., 'she fell'. ');">⁴²</span> through a brother of his who was of sound senses, since it is not known to us whether he<span class="x" onmousemove="('comment',' The deceased brother. ');">⁴³</span> was more pleased with the minor or whether he was more pleased with the deaf woman; 'whether he was more pleased with the minor' because she would [in due course] reach the age of intelligence or 'whether he was more pleased with the deaf woman' because she was fully grown and in a marriageable condition; if [the widows], however, became subject to him<span class="x" onmousemove="('comment',' Lit., 'she fell'. ');">⁴²</span> through a deaf brother of his, there is no doubt that he<span class="x" onmousemove="('comment',' The deceased brother. ');">⁴⁴</span> was more pleased with the deaf woman, because she was of matrimonial age and of his kind. But I told them: Even if [the widows] became subject to him<span class="x" onmousemove="('comment',' Lit., 'she fell'. ');">⁴⁵</span> through a deaf brother of his [the question of his preference still remains] a matter of doubt. How do they<span class="x" onmousemove="('comment',' The minor and the deaf wife whose husband died childless and who became subject to a levir. ');">⁴⁶</span> obtain redress?<span class="x" onmousemove="('comment',' Since one does not exempt the other (v. our Mishnah) and the deaf woman is incapable of performing halizah. Were the levir to marry the deaf widow and submit to halizah from the minor after she had attained her majority, the former would become forbidden to him by the halizah of her rival ('If a man did not build he must never build', supra), the marriage of the deaf not being Pentateuchally valid to sever the levirate bond with the minor. ');">⁴⁷</span> — R. Hisda replied in the name of Rab: [The levir] marries the deaf widow and then releases her by a letter of divorce,<span class="x" onmousemove="('comment',' Cf. supra n. 4. ');">⁴⁸</span> while the minor waits until she is of age, when she performs <i>halizah</i>.<span class="x" onmousemove="('comment',' Both widows are thus released from the levir. ');">⁴⁹</span> From this, said R. Hisda, it may be inferred that Rab is of the opinion that a deaf wife is partially acquired,<span class="x" onmousemove="('comment',' By her husband. Lit., 'acquired and left over'; only in a part of her person is she legally regarded as wife, Cf. infra n. 9. ');">⁵⁰</span> [while concerning] a minor [it is a matter of doubt whether] she is [properly] acquired,<span class="x" onmousemove="('comment',' Completely; and she is consequently regarded as the deceased brother's proper wife. ');">⁵¹</span> or not acquired [at all];<span class="x" onmousemove="('comment',' And consequently she is legally no more than a stranger. That the legal condition of relationship between the minor and her husband is different from that between the deaf wife and her husband is fairly obvious. For if they were both regarded as partially acquired, or if the acquisition of either was regarded as doubtful, their legal position would in no way differ from that of two minors or two deaf women, while, in fact, it does. (Cf. our Mishnah and the following one). From Rab's ruling, however, it is inferred that it is the deaf wife who is partially acquired and that it is the minor concerning whom it is uncertain whether she is wholly acquired or not acquired at all. ');">⁵²</span> for were it to be suggested that concerning a deaf wife [it is uncertain whether] she is acquired<span class="x" onmousemove="('comment',' Completely; and she is consequently regarded as the deceased brother's proper wife. ');">⁵¹</span> or not acquired [at all and that] a minor is partially acquired,<span class="x" onmousemove="('comment',' By her husband. Lit., 'acquired and left over'; only in a part of her person is she legally regarded as wife, Cf. infra n. 9. ');">⁵⁰</span> [the question would arise] why [should the levir] marry [the deaf widow] and release her by a letter of divorce?