Babylonian Talmud: Tractate Yebamoth

Folio 110a

Does not [this refer to a case] where he¹  did not cohabit [with her]?²  — No; where he¹  did cohabit with her.³  If, however, he¹  cohabited [with her] what is Samuel's reason?⁴  — He holds the view that one Who performs cohabitation does so in reliance on his first betrothal.⁵  But surely they⁶  once disputed this point! For it was stated: If a man betrothed a woman conditionally,⁷  and unconditionally, Rab ruled: She⁸  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.⁹  'And Samuel ruled: She requires no letter of divorce from him', because one who performs cohabitation does so in reliance on his first betrothal!¹⁰  — [Both disputes were] necessary. For if the former¹¹  only had been stated, it might have been assumed that Rab adheres to his opinion there only because no condition¹²  was attached [to the betrothal]¹³  but in the latter case,¹⁴  where a condition was attached to it, he agrees with Samuel.¹⁵  And if the latter case¹⁴  only had been stated, it might have been assumed that there only¹⁶  does Samuel maintain his view¹⁷  but in the former¹⁸  he agrees with Rab.¹⁹  [Hence both were] required.

Did Rab, however, state that only where [the husband] cohabited with her²⁰  does she require a letter of divorce²¹  but that if he did not cohabit with her none is required?²²  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,²³  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!²⁴  — R. Papa replied: At Naresh they married²⁵  first and then placed [the bride] upon the bridal chair.²⁶  R. Ashi replied: He²⁷  acted improperly²⁸  they, therefore, treated him also improperly, and deprived him of the right of valid betrothal.²⁹  Said Rabina to R. Ashi: [Your explanation is] satisfactory where the man betrothed [her] with money;³⁰  what [however, can be said where] he betrothed her by cohabitation? — The Rabbis have declared his cohabitation to be an act of mere fornication.³¹

Rab Judah stated in the name of Samuel: The halachah is in agreement with R. Eliezer;³²  and so did R. Eleazar state: The halachah is in agreement with R. Eliezer.³²

MISHNAH. IF A MAN WAS MARRIED TO TWO ORPHANS WHO WERE MINORS³³  AND DIED, COHABITATION³⁴  OR HALIZAH³⁵  WITH ONE OF THEM EXEMPTS HER RIVAL.³⁶  AND THE SAME LAW IS APPLICABLE TO³⁷  TWO DEAF³⁸  WOMEN.³⁹

[IF A MAN WAS MARRIED TO] A MINOR AND TO A DEAF³⁸  WOMAN,⁴⁰  COHABITATION WITH ONE OF THEM DOES NOT EXEMPT HER RIVAL.⁴¹  [IF ONE WAS] POSSESSED OF HER FACULTIES AND THE OTHER WAS DEAF,⁴²  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.

GEMARA. Is, however, a deaf⁴²  woman permitted to perform halizah? Surely, we learned: If a deaf levir submitted to halizah or a deaf sister-in-law performed halizah, or if halizah was performed on a minor, the halizah is invalid!⁴³  — R. Giddal replied in the name of Rab: [This⁴⁴  applies] to COHABITATION.⁴⁵  Raba⁴⁶  replied: It⁴⁷  may be said to apply even to halizah; one⁴⁸  referring to a woman who was originally deaf,⁴⁹  and the other⁵⁰  referring to a woman who was possessed of hearing⁵¹  and became deaf afterwards. The 'woman who was originally deaf', leaves⁵²  as she entered,⁵³  but the 'woman who was possessed of hearing and became deaf afterwards' cannot do so, since her inability to recite [the prescribed formulae]⁵⁴  acts as an obstacle.⁵⁵

Abaye raised an objection against him: Is, however, one who was originally deaf permitted to perform halizah? Surely, we learned: If two brothers, one of whom was in possession of his faculties and the other deaf,⁴⁵  were [respectively] married to two strangers,⁵⁶  one of whom was in the possession of her faculties and the other deaf,⁵⁷  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 her⁵⁸  and if he wishes to send her away,⁵⁹  he may do so.⁶⁰  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.⁶¹  Does not this apply to a woman who was originally deaf?⁶²  And yet it was stated that he may only marry

1. Her first husband.
2. 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!
3. And it is this cohabitation, not their first betrothal, that constitutes the kinyan of the first marriage.
4. 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!
5. Which was invalid. The marriage with the second husband is therefore valid and can be annulled by divorce only.
6. Rab and Samuel.
7. 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.
8. If it was discovered that she had a defect or that she was subject to the restrictions due to a vow.
9. And valid kinyan is effected by their first cohabitation.
10. Which was invalid; v, Keth. 72b. Why then should they dispute the same point again?
11. Lit., 'that'; the dispute concerning a minor who did not exercise her right of mi'un, cited from Keth. 73a.
12. This is the reading of Rashi, following the version in Keth. 73a. The reading of cur. edd. is given infra p. 766, n. 6.
13. 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.
14. Lit., 'that'; cited from Keth. 72b.
15. That the original condition remains in force even after consummation of the marriage.
16. Since the condition was attached to the original betrothal,
17. That the marriage remains dependent on the original condition and is, therefore, invalid.
18. v. supra p. 765, n. 13.
19. 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].
20. The minor who has attained majority.
21. Lit., 'yes'.
22. Lit., 'not'.
23. It is assumed that this was a ceremony similar to ordinary huppah (v. Glos.).
24. 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?
25. Cohabitation.
26. 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.
27. The second man.
28. In snatching away another man's wife.
29. 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.
30. 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.
31. Which has no legal validity to effect a kinyan.
32. That THE MINOR IS TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN.
33. Marriage with whom is only Rabbinically valid.
34. By the levir, even during her minority, for the purpose of the levirate marriage.
35. After she has attained her majority.
36. From levirate marriage and halizah.
37. Lit., 'and so'.
38. I.e., deaf.mute.
39. Marriage with whom, like marriage with a minor, is only Rabbinically valid.
40. Though the marriage with either, according to Rabbinic law, is of equal validity.
41. 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.
42. I.e., deaf-mute.
43. Supra 104b. How then could it be said in our Mishnah. AND THE SAME LAW IS APPLICABLE TO TWO DEAF WOMEN?
44. The law in our Mishnah concerning two deaf women. V. supra n. 3.
45. Not to halizah.
46. Others, 'Rabbah'. Cf. infra p. 772, n. 8.
47. V. supra note 4.
48. Lit., 'here'; our Mishnah which allows halizah in respect of a deaf woman.
49. Even before her marriage.
50. The Mishnah supra 104b which rules the halizah of a deaf woman to be invalid.
51. At the time she married.
52. The levir by means of halizah.
53. The marriage with her husband. As the marriage was performed by means of signs and gestures so also is the halizah.
54. Cf. supra 106b.
55. As a deaf-mute she is unable to recite them and is consequently precluded from the performance of halizah.
56. I.e., women who were not related to one another.
57. I.e., deaf-mute.
58. 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.
59. After he has married her.
60. Divorcing her, as he married her, by the use of signs and gestures.
61. 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.
62. Probably it does.

but not submit to halizah!¹  — No, this refers to a woman who was capable of hearing²  and became deaf afterwards.³

Come and hear: If two brothers of sound senses were married to two strangers⁴  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.⁵  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 halizah or contract levirate marriage.⁶  Are we not to assume that⁷  as the man was originally⁸  of sound senses so was she originally⁸  deaf, and nevertheless it was stated that he may only⁹  marry her but may not submit to her halizah!¹⁰  — Is this an argument? Each one may bear its own meaning.¹¹

An objection was raised against him:¹²  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 released¹³  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,¹⁴  while his brother's wife is for ever forbidden [to marry again]!¹⁵  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 she¹⁶  became deaf, he may divorce her; if she became insane, he may not divorce her.¹⁷  If he became deaf or insane he may never divorce her.¹⁸  Consequently it must be a case of a man¹⁹  who was originally²⁰  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 marry²¹  but may not submit to halizah!²²  The other²³  remained silent.

When he²⁴  visited R. Joseph, the latter said to him: Why did you raise your objections against him²³  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 women²⁵  are exempt from levirate marriage and from halizah.²⁶  If [however the women] were strangers²⁷  [the respective levirs] must marry them,²⁸  and if they wish to divorce them, they may do so.²⁹  Now, how [is this ruling]³⁰  to be understood? If it be suggested [that it refers to brothers who were first]³¹  of sound senses and who became deaf afterwards,³²  could they [it may be asked] divorce [their wives]? Surely, we learned: If he³³  became deaf or insane he may never divorce her!³⁴  This ruling must consequently refer³⁵  to [brothers who were] originally³¹  deaf; and since they [are such as were] originally deaf, the women [referred to must] also be [such as were] originally³¹  deaf; and it was nevertheless taught: 'If [the women, however], Were strangers [the respective levirs] must marry them',³⁶  they may thus only³⁷  marry them but may not submit to their halizah. This, then, presents a refutation of Rabbah!³⁸  — 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 arguments³⁹  and [in the course of these they] stated: The ruling,⁴⁰  [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 case⁴¹  where [the widows] became subject to him⁴²  through a brother of his who was of sound senses, since it is not known to us whether he⁴³  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 him⁴²  through a deaf brother of his, there is no doubt that he⁴⁴  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 him⁴⁵  through a deaf brother of his [the question of his preference still remains] a matter of doubt.

How do they⁴⁶  obtain redress?⁴⁷  — R. Hisda replied in the name of Rab: [The levir] marries the deaf widow and then releases her by a letter of divorce,⁴⁸  while the minor waits until she is of age, when she performs halizah.⁴⁹

From this, said R. Hisda, it may be inferred that Rab is of the opinion that a deaf wife is partially acquired,⁵⁰  [while concerning] a minor [it is a matter of doubt whether] she is [properly] acquired,⁵¹  or not acquired [at all];⁵²  for were it to be suggested that concerning a deaf wife [it is uncertain whether] she is acquired⁵¹  or not acquired [at all and that] a minor is partially acquired,⁵⁰  [the question would arise] why [should the levir] marry [the deaf widow] and release her by a letter of divorce?

1. 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?
2. At the time she married.
3. After he has married her.
4. I.e., women who were not related to one another.
5. V. supra n. 5.
6. Infra 112b.
7. Lit., 'what not?'
8. Even before marriage.
9. Lit., 'yes'.
10. V. p. 769, n. 8.
11. Lit., 'that as it is, and that etc.'
12. Raba (or Rabbah).
13. From levirate marriage and halizah.
14. 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.
15. 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)!
16. One's wife.
17. 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.
18. 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.
19. Lit., 'but not?'
20. Prior to the marriage.
21. Lit., 'yes'.
22. V. supra p. 769, n. 8.
23. Raba (or Rabbah).
24. Abaye.
25. If their husbands died without issue.
26. 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.
27. To one another.
28. 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.
29. Cit. 71b, infra 112b.
30. Concerning the deaf people spoken of in this context.
31. Prior to the marriage.
32. After the marriage.
33. Cf. BaH. Cur. edd. insert: 'If she became insane he may not divorce'.
34. 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!
35. Lit., 'but not?'
36. Git. 71 b, infra 112b.
37. Lit., 'yes'.
38. Or 'Raba'. Cf. supra p. 768, n. 6 and supra p. 769, n. 8.
39. 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'.
40. Lit., 'that which we learned'.
41. Lit., 'these words'.
42. Lit., 'she fell'.
43. The deceased brother.
44. The deceased brother.
45. Lit., 'she fell'.
46. The minor and the deaf wife whose husband died childless and who became subject to a levir.
47. 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.
48. Cf. supra n. 4.
49. Both widows are thus released from the levir.
50. 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.
51. Completely; and she is consequently regarded as the deceased brother's proper wife.
52. 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.