Yevamot 221:1

תיתיב גביה ממה נפשך אי קנויה היא הא קנויה היא ואי לאו קנויה היא הא נכרית בעלמא היא

Let her<span class="x" onmousemove="('comment',' Once the levir married her. ');">¹</span> continue to live with him in any case. For if [a deaf woman] is acquired<span class="x" onmousemove="('comment',' As the legal wife of her husband. ');">²</span> then she is of course acquired,<span class="x" onmousemove="('comment',' And having been the proper wife of the deceased, her marriage with the levir severs the levirate bond with the minor, the subsequent halizah with whom is null and void and in no way affects the validity of her marriage. ');">³</span> and if she is not acquired,<span class="x" onmousemove="('comment',' As the legal wife of her husband. ');">⁴</span>

וכי תימא קטנה אמאי תמתין עד שתגדיל ותחלוץ תיתיב גביה אי קנויה היא הא קנויה היא אי לאו קנויה היא נוכריתא בעלמא היא אם כן חרשת במה תיפוק

then she is a mere stranger.<span class="x" onmousemove="('comment',' To the minor, halizah with whom does not concern her at all. Consequently it must be inferred that it is the deaf wife who is partially acquired, and that the doubt as to complete acquisition or none exists in the case of the minor. ');">⁵</span> And should you argue, 'why should the minor wait until she grows up and then performs <i>halizah</i>? Let her<span class="x" onmousemove="('comment',' Once the levir married her. ');">⁶</span> continue to live with him [for the same reason<span class="x" onmousemove="('comment',' Given in the case of the deaf woman. ');">⁷</span> that] if she is [properly] acquired<span class="x" onmousemove="('comment',' As the legal wife of her husband. ');">⁴</span>

אמר רב ששת הכי נמי מיסתברא כדקא מתרץ רב חסדא אליבא דרב

then she is of course acquired,<span class="x" onmousemove="('comment',' Cf. supra n. 1 mutatis mutandis. ');">⁸</span> and if she is not acquired,<span class="x" onmousemove="('comment',' As the legal wife of her husband. ');">⁴</span> then she is a mere stranger';<span class="x" onmousemove="('comment',' To the deaf woman, marriage with whom does not consequently affect the validity of her marriage. ');">⁹</span> if so [it could be retorted] whereby should the deaf [widow] be released!<span class="x" onmousemove="('comment',' Of halizah she is incapable, owing to her inability to recite the prescribed formulae; and marriage with her after a marriage had been contracted with the minor is forbidden. Hence the necessity for Rab's ruling which provides redress for the minor as well as the deaf widow. ');">¹⁰</span>

דתניא שני אחין נשואין שתי אחיות יתומות קטנה וחרשת מת בעלה של קטנה חרשת יוצאה בגט וקטנה תמתין עד שתגדיל ותחלוץ

R. Shesheth said: Logical deduction leads also to the interpretation R. Hisda imparted to Rab's ruling.<span class="x" onmousemove="('comment',' That a deaf wife is partially acquired and the legality of the acquisition of a minor is altogether doubtful. ');">¹¹</span> For it was taught: If two brothers were married to two orphan sisters,<span class="x" onmousemove="('comment',' Orphan is mentioned on account of the minor. ');">¹²</span> a minor and a deaf woman, and the husband of the minor died, the deaf widow is released by means of a letter of divorce<span class="x" onmousemove="('comment',' She is forbidden to live with her husband as the sister of the minor who is now his zekukah (v. Glos.), since she, as a deaf woman, is only partially acquired as wife, while the minor's acquisition by her husband (and consequently her levirate bond with the levir) might possibly have been completely valid. ');">¹³</span> while the minor waits until she is of age, when she performs <i>halizah</i>.<span class="x" onmousemove="('comment',' And is then free to marry any other man. ');">¹⁴</span>

מת בעלה של חרשת קטנה יוצאה בגט וחרשת אסורה לעולם ואם בא על החרשת נותן לה גט והותרה

If the husband of the deaf woman dies, the minor is released by a letter of divorce<span class="x" onmousemove="('comment',' As it is possible that the minor is not acquired at all as a wife, while the levirate bond with the deaf widow is at all events partially valid, the former is forbidden to her husband as the sister of his zekukah. (V. Glos. and cf. supra n. 11). ');">¹⁵</span> while the deaf widow is forever forbidden [to marry again].<span class="x" onmousemove="('comment',' She is forbidden to the levir as the sister of his divorcee (it being possible that the minor was completely acquired as his wife), and she is forbidden to any other man since, owing to her inability to recite the required formulae, the levir cannot release her by halizah. Even when the minor dies, and the prohibition of 'divorcee's sister' is lifted, she remains forbidden to the levir as 'brother's wife'. Since at the time she became subject to the levir as his deceased brother's wife she was for some reason unfit to contract the levirate marriage, the prohibition of 'brother's wife' comes again into force. ');">¹⁶</span> If, however, he cohabited with the deaf widow<span class="x" onmousemove="('comment',' After he had divorced the minor. ');">¹⁷</span> he must give her a letter of divorce and she<span class="x" onmousemove="('comment',' Though the cohabitation was forbidden. ');">¹⁸</span>

אי אמרת בשלמא חרשת קנויה ומשויירת קטנה קנויה ואינה קנויה משום הכי דכי בא על החרשת נותן לה גט והותרה דאמרת ממה נפשך אי קטנה קנויה היא הא נפקא משום אחות אשה אי לאו קנויה שפיר מיבם

becomes permitted [to marry any other man].<span class="x" onmousemove="('comment',' Because (a) if the minor was to be regarded as his legal wife, the deaf woman was all the time permitted to marry a stranger since, as his wife's sister, she was never subject to the levirate obligations; and if (b) the minor was not to be regarded as his legal wife, his marriage with the deaf widow, who accordingly was not his wife's sister, was a valid levirate marriage which was duly and lawfully annulled by the letter of divorce which set her free. ');">¹⁹</span> Now, if you grant that a deaf wife is partially acquired<span class="x" onmousemove="('comment',' V. supra p. 773, n. 7. ');">²⁰</span> [and that concerning] a minor [it is doubtful whether] she is [fully] acquired<span class="x" onmousemove="('comment',' Cf. supra p. 773, n. 8. ');">²¹</span> or not acquired [at all], one can well see the reason why when he cohabited with the deaf widow he gives her a letter of divorce and she becomes permitted [to marry any other man]. For you may rightly claim that in any case [she becomes permitted]. If the minor is acquired,<span class="x" onmousemove="('comment',' Cf. supra p. 773, n. 8. ');">²¹</span>

אלא אי אמרת חרשת קנויה ואינה קנויה קטנה קנויה ומשויירת כי בא על חרשת אמאי נותן גט והותרה הויא ליה ביאה פסולה וביאה פסולה לא פטרה

[the deaf widow] is rightly released as his wife's sister;<span class="x" onmousemove="('comment',' Cf. supra n. 3 (a). ');">²²</span> and if she is not acquired [at all] he has quite lawfully contracted with her<span class="x" onmousemove="('comment',' The deaf widow. ');">²³</span> the levirate marriage.<span class="x" onmousemove="('comment',' Cf. supra n. 3 (b). ');">²⁴</span> If you contend, however, [that concerning] a deaf woman [it is doubtful whether] she is acquired<span class="x" onmousemove="('comment',' Because (a) if the minor was to be regarded as his legal wife, the deaf woman was all the time permitted to marry a stranger since, as his wife's sister, she was never subject to the levirate obligations; and if (b) the minor was not to be regarded as his legal wife, his marriage with the deaf widow, who accordingly was not his wife's sister, was a valid levirate marriage which was duly and lawfully annulled by the letter of divorce which set her free. ');">¹⁹</span>

הא מני רבי נחמיה היא דאמר ביאה פסולה פוטרת מחליצה

or not acquired [at all], and that a minor is partially acquired,<span class="x" onmousemove="('comment',' V. supra p. 773, n. 7. ');">²⁰</span> [the difficulty arises] why should the deaf widow, if he cohabited with her and gave her a letter of divorce, be permitted [to marry again] when the cohabitation with her was unlawful,<span class="x" onmousemove="('comment',' Since the minor is at least partially his wife and the deaf widow is forbidden to him as his wife's sister. ');">²⁵</span> and an unlawful cohabitation does not release a woman?<span class="x" onmousemove="('comment',' From the levirate obligations. Since it is possible that the deaf woman was completely acquired as wife by the deceased brother, the levirate bond between her and the levir is also fully valid, and as the partial acquisition of the minor by her husband (the levir) cannot annul such a possibly fully valid bond, the deaf widow is precluded from marrying either the levir whose partial wife's sister she is (cf. supra n. 9) or from marrying any other man to whom she can be permitted only through halizah with the levir, which she, as a deaf person, is incapable of performing. Had she been permitted to marry the levir, his cohabitation with her would have released her from any further levirate obligation, while his divorce would have set her free to marry any other man. Since, however, cohabitation with the levir is unlawful, she cannot thereby be released from her levirate obligation and should consequently remain forbidden to all men forever! ');">²⁶</span> — It is possible that this statement represents the view of<span class="x" onmousemove="('comment',' Lit., 'this, who?' ');">²⁷</span>

אי רבי נחמיה אימא סיפא מי שהיה נשוי שתי יתומות קטנה וחרשת ומת בא יבם על הקטנה וחזר ובא על החרשת או שבא אחיו על החרשת נאסרו שתיהן עליו כיצד תקנתן חרשת יוצאת בגט וקטנה תמתין עד שתגדיל ותחלוץ

R. Nehemiah who ruled that an unlawful cohabitation exempts [a widow] from <i>halizah</i>.<span class="x" onmousemove="('comment',' V. supra 50b. Hence the permissibility for the deaf widow to marry again after she had been divorced. ');">²⁸</span> If [this statement represents the view of] R. Nehemiah read the final clause: 'If a man was married to two orphans,<span class="x" onmousemove="('comment',' V. supra p. 774 n. 10. ');">²⁹</span> one of whom was a minor and the other deaf, and died 'and the levir cohabited with the minor and then cohabited with the deaf widow, or a brother of his cohabited with the deaf widow,<span class="x" onmousemove="('comment',' After the former had cohabited with the minor. ');">³⁰</span> both are forbidden to him.<span class="x" onmousemove="('comment',' The reason is given infra. ');">³¹</span>

אי אמרת בשלמא חרשת קנויה ומשויירת קטנה קנויה ואינה קנויה ורבנן היא משום הכי תמתין עד שתגדיל ותחלוץ דדלמא קדים ובעיל חרשת ברישא והויא ליה ביאה דקטנה ביאה פסולה

How do they obtain redress? The deaf woman is released by a letter of divorce<span class="x" onmousemove="('comment',' The reason is given infra. ');">³¹</span> while the minor waits until she is of age 'when she performs halizah'.<span class="x" onmousemove="('comment',' And she is free at all events: If the minor was a lawfully acquired wife the deaf widow is exempt from the levirate marriage by the former's levirate marriage; and if the minor was not a lawfully acquired wife, the deaf widow had performed the levirate obligation by her own cohabitation with the levir through whose divorce she is now free to marry again. ');">³²</span> Now, if you grant<span class="x" onmousemove="('comment',' In respect of the two sisters spoken of in the first clause cited. ');">³³</span> that a deaf wife is partially acquired [and that concerning] a minor [it is doubtful whether she is fully] acquired or not acquired [at all],<span class="x" onmousemove="('comment',' Cf. supra p. 775, n. 3. ');">³⁴</span>

אלא אי אמרת רבי נחמיה הא אמר ביאה פסולה פטרה

and [that the opinion in this statement] is that of the Rabbis,<span class="x" onmousemove="('comment',' Who maintain that an unlawful cohabitation does not exempt a deceased brother's widow from the levirate marriage and halizah. ');">³⁵</span> one can well understand the reason why<span class="x" onmousemove="('comment',' In the final clause, relating to a marriage with orphans who were strangers to each other. ');">³⁶</span> 'the minor<span class="x" onmousemove="('comment',' Though marriage with her by the levir should in any case be permitted. For if she was fully acquired by her husband the subsequent cohabitation by the levir with the deaf widow who was only partially acquired can have no validity to cause the minor's prohibition to him; and if she was not acquired at all she, as a stranger, should also be permitted to the levir; and in either case her divorce should set her free without the performance of halizah. ');">³⁷</span> waits until she is of age, when she performs halizah', since [otherwise]<span class="x" onmousemove="('comment',' If halizah were not imposed upon the minor when she attains her majority. ');">³⁸</span>

אלא שמע מינה רבנן היא ש"מ

he might cohabit with the deaf widow first,<span class="x" onmousemove="('comment',' And the minor, since it is possible that she was fully acquired, would not be exempt by the levir's cohabitation with the deaf widow who was only partially acquired. ');">³⁹</span> and the [subsequent] cohabitation with the minor would [thereby] be rendered an unlawful cohabitation.<span class="x" onmousemove="('comment',' Since it followed that of the deaf widow who, having been at least partially acquired, is the minor's rival, and two rivals may not be married. As in such a case the minor could not be free before she became of age and performed halizah, a similar restriction has been imposed in the former case also. ');">⁴⁰</span> If you contend, however, [that the opinion in the statement is that of] R. Nehemiah,<span class="x" onmousemove="('comment',' That the minor is partially acquired and that concerning the deaf woman the validity of her acquisition as a wife is in doubt. ');">⁴¹</span> surely he [it may be objected] ruled that an unlawful cohabitation does exempt!<span class="x" onmousemove="('comment',' Why then should the minor have to wait until she is of age? If the deaf woman is not acquired at all the minor's cohabitation with the levir is, surely, permitted. But even if the deaf woman is acquired, and her levirate bond causes the minor to be forbidden to the levir, there should be no need for the minor to wait until she is of age and able to perform the halizah, while according to R. Nehemiah, an unlawful cohabitation also exempts a woman from the levirate marriage and halizah! ');">⁴²</span>

אמר רב אשי מרישא נמי שמע מינה דרבנן היא דקתני אם בא על החרשת נותן לה גט והותרה ולא קתני אם בא על הקטנה נותן לה גט והותרה

Consequently it must be concluded [that the opinion in the statement is that of] the Rabbis. Our point is thus proved. R. Ashi said: From the first clause<span class="x" onmousemove="('comment',' Which deals with the marriage of two sisters. ');">⁴³</span> also it may be inferred that [the opinion expressed] is that of the Rabbis. For it was stated, 'If,<span class="x" onmousemove="('comment',' When the husband of the deaf sister died. ');">⁴⁴</span> however, he cohabited with the deaf widow he must give her a letter of divorce and she becomes permitted [to marry any other man]', but it was not stated,<span class="x" onmousemove="('comment',' In the case where the husband of the minor died. ');">⁴⁵</span>

אי משום הא לא איריא חרשת דלית לה תקנתא דהיתירא קתני תקנתא דאיסורא קטנה דאית לה תקנתא דהיתירא לא תני תקנתא דאיסורא:

'If he cohabited with the minor, he must give her a letter of divorce and she becomes permitted'!<span class="x" onmousemove="('comment',' Which would be the law according to R. Nehemiah, who ruled that an unlawful cohabitation exempts the woman from the levirate obligations. The statement, consequently, must represent the view of the Rabbis, and the reason why the minor cannot be released by a letter of divorce is because cohabitation with her is unlawful since she is the sister of the levir's partially acquired wife; while she herself, in case she was fully acquired, is subject to the levirate bond, from which the marriage with her deaf sister, whose kinyan was only partial, cannot exempt her. ');">⁴⁶</span> — If this is all, there is not much force in the argument; since in respect of the deaf widow for whom no lawful redress is possible<span class="x" onmousemove="('comment',' As she is forbidden to all men including the levir, as shewn supra. ');">⁴⁷</span> mention had to be made of redress obtained through a forbidden act,<span class="x" onmousemove="('comment',' It being the only possible means whereby she could marry again. ');">⁴⁸</span> but concerning a minor, for whom lawful redress is possible,<span class="x" onmousemove="('comment',' She has only to wait until she is of age, when she can lawfully perform halizah and thereby obtain her freedom. ');">⁴⁹</span>

<big><strong>מתני׳</strong></big> מי שהיה נשוי לשתי יתומו' קטנות ומת ובא יבם על הראשונה וחזר ובא על השניה או שבא אחיו על השניה

no redress obtainable through a forbidden act was mentioned. <b><i>MISHNAH</i></b>. IF A MAN WHO WAS MARRIED TO TWO ORPHANS WHO WERE MINORS DIED, AND THE LEVIR COHABITED WITH ONE,<span class="x" onmousemove="('comment',' Lit., 'the first'. ');">⁵⁰</span> AND THEN HE ALSO COHABITED WITH THE OTHER,<span class="x" onmousemove="('comment',' Lit., 'the second'. ');">⁵¹</span> OR A BROTHER OF HIS COHABITED WITH THE OTHER,<span class="x" onmousemove="('comment',' Lit., 'the second'. ');">⁵¹</span>