Talmud - Yevamot 112b יבמות קי״ב ב׳

the mishna should have said that the court asks the yavam to perform ḥalitza rather than forces him. The court would not force him to perform ḥalitza in a case where she deliberately attempted to avoid fulfilling the mitzva of levirate marriage. The Gemara answers: With what are we dealing here? With a woman who has children with her husband when she vows, so that it did not enter her mind to the extent that her children would die, and later her husband would also die, and she would happen before his brother for levirate marriage.

The Gemara asks: But if she has no children, what is the halakha? Is it that we ask him to perform ḥalitza, but do not force him? If so, then instead of teaching the more remote case that if she intended to do so, to avoid levirate marriage in the event of her husband’s death, even if she vowed during her husband’s lifetime, the court merely asks him to perform ḥalitza with her, let the mishna distinguish and teach the distinction within this halakha itself, as follows: In what case is this statement said? When she has children, but if she does not have children, the court merely asks him.

Rather, learn from it that there is no difference between when she has children and when she does not have children. Either way the court forces him to perform ḥalitza, in accordance with the opinion of Rav, as there is no assumption that the woman planned to avoid levirate marriage unless she says so explicitly. The Gemara concludes: Indeed, learn from it that the halakha follows Rav’s opinion.

MISHNA: With regard to a deaf-mute who married a halakhically competent woman, and a halakhically competent man who married a deaf-mute: If either man wants to divorce his wife, he may divorce her, and if he wants to maintain her as his wife, he may maintain her. The reason why a deaf-mute man can divorce his wife is that just as he marries her by intimation, i.e., his marriage is not performed by explicit speech, as deaf-mutes rely on gestures, so too, he divorces her by intimation.

Likewise, in the case of a halakhically competent man who married a halakhically competent woman, and she later became a deaf-mute: If he wants to divorce his wife, he may divorce her, as a wife does not have to have intellectual capacity to receive a bill of divorce, and if he wants to maintain her as his wife, he may maintain her. If she became an imbecile, he may not divorce her, i.e., a bill of divorce is ineffective in this case. If he became a deaf-mute or an imbecile after they were married, he may never divorce her, as he does not have the legal competence to give a bill of divorce.

Rabbi Yoḥanan ben Nuri said: For what reason is the halakha that in the case of the woman who becomes a deaf-mute, her husband may divorce her, but in the case of the man who becomes a deaf-mute, he may not divorce his wife? If the bill of divorce written by someone who formerly possessed all his senses and later became a deaf-mute is invalid, it stands to reason that it should not be valid when she becomes a deaf-mute either. They said to him: The man who divorces his wife is not similar to the woman who is divorced, as the woman is divorced whether she is willing or unwilling. Since the woman’s consent is not required, she may be divorced even if she is a deaf-mute. And, conversely, the man divorces his wife only willingly, and therefore the bill of divorce of a deaf-mute, who is not legally competent, is ineffective.

Rabbi Yoḥanan ben Gudgada testified with regard to a female deaf-mute whose father married her off when she was a minor, which means her marriage was valid by Torah law, that she can be divorced with a bill of divorce even when she matures and is no longer under her father’s authority, despite the fact that she is not legally competent. They said to him: This woman, too, has a similar status. In other words, a woman who possessed all her faculties and later became a deaf-mute is comparable to a minor whose marriage was valid by Torah law and later, when she matured and was no longer under the authority of her father, received a bill of divorce. Both of these women can receive a bill of divorce, in accordance with the principle stated in the previous paragraph.

The mishna continues: In a case where there were two deaf-mute brothers married to two deaf-mute sisters or to two halakhically competent sisters, or to two sisters, one of whom was a deaf-mute and the other one halakhically competent; or in a case where there were two deaf-mute sisters married to two halakhically competent brothers or to two deaf-mute brothers or to two brothers, one of whom was a deaf-mute and the other one halakhically competent, all these women are exempt from ḥalitza and from levirate marriage. Each of them is forbidden to her yavam because he is married to her sister. And if they were unrelated women, i.e., the women are not sisters, the men may marry them in levirate marriage, and if they want to divorce them later, they may divorce them.

However, if two brothers, one of whom is a deaf-mute and other one halakhically competent, were married to two halakhically competent sisters, and the deaf-mute married to the halakhically competent sister died, what should the halakhically competent brother married to the halakhically competent sister do? His brother’s wife is released without levirate marriage or ḥalitza, due to the prohibition with regard to a wife’s sister.

If the halakhically competent brother married to the halakhically competent sister died, what should the deaf-mute brother married to the halakhically competent sister do? He divorces his wife with a bill of divorce, as his wife’s sister came before him for levirate marriage by Torah law, and the legal status of her marriage and her levirate marriage is higher than his own marriage, which applies only by rabbinic law. And his brother’s wife is forbidden to him forever, and there is no remedy for her. He cannot marry her, as by rabbinic law she is the sister of his ex-wife, nor can he exempt her by means of ḥalitza, as he is a deaf-mute.

If two halakhically competent brothers were married to two sisters, one of whom is a deaf-mute and the other one halakhically competent, and the halakhically competent brother married to the deaf-mute sister died, what should the halakhically competent brother married to the halakhically competent sister do? The deaf-mute sister is released due to the prohibition with regard to a wife’s sister. If the halakhically competent brother married to the halakhically competent sister died, what should the halakhically competent brother married to the deaf-mute sister do? He divorces his wife with a bill of divorce, as the halakhically competent sister came before him for levirate marriage, and the status of her levirate bond is higher than the status of his marriage to his wife, a deaf-mute. And he releases his brother’s wife, who is not a deaf-mute, by means of ḥalitza, as they are both legally competent and can therefore perform ḥalitza.

If two brothers, one of whom is a deaf-mute and the other one halakhically competent, were married to two sisters, one of whom is a deaf-mute and the other one halakhically competent, and the deaf-mute brother married to the deaf-mute sister died, what should the halakhically competent brother married to the halakhically competent sister do? The deaf-mute woman is released due to the prohibition with regard to a wife’s sister.

If the halakhically competent brother married to the halakhically competent sister died, what should the deaf-mute brother married to the deaf-mute sister do? He divorces his wife with a bill of divorce, which is as valid as their original marriage. And his brother’s wife is forbidden to him forever. There is no remedy for her, as he may not consummate levirate marriage with her because she is the sister of his ex-wife by rabbinic law, and he cannot perform ḥalitza with her either, as he is a deaf-mute.

If two brothers, one of whom is a deaf-mute and the other one halakhically competent, were married to two unrelated, halakhically competent women, and the deaf-mute married to the halakhically competent woman died, what should the halakhically competent brother married to the halakhically competent woman do? He either performs ḥalitza or enters into levirate marriage. If the halakhically competent brother married to the halakhically competent woman died, what should the deaf-mute brother married to the other halakhically competent woman do? He cannot perform ḥalitza with her, as he is a deaf-mute. Rather, he marries her, and he may never divorce her, as sexual intercourse between a yavam and his yevama creates a valid marriage that cannot be broken by the bill of divorce of a deaf-mute.

If two halakhically competent brothers were married to two unrelated women, one of whom is halakhically competent and the other one a deaf-mute, and the halakhically competent brother married to the deaf-mute woman died, what should the halakhically competent brother married to the halakhically competent woman do? The brother cannot perform ḥalitza with her, as she is a deaf-mute. Rather, he marries the deaf-mute, and if he wishes to divorce her, he may subsequently divorce her with a bill of divorce. If the halakhically competent brother married to the halakhically competent sister died, what should the halakhically competent brother married to the deaf-mute do? Either he performs ḥalitza or he enters into levirate marriage.

If two brothers, one of whom is a deaf-mute and the other one halakhically competent, were married to two unrelated women, one of whom is a deaf-mute and the other one halakhically competent, and the deaf-mute brother who was married to the deaf-mute woman died, what should the halakhically competent brother married to the halakhically competent woman do? He may marry her if he desires the deaf-mute woman, and if he wishes afterward to divorce her, he may divorce her. If the halakhically competent brother married to the halakhically competent woman died, what should the deaf-mute brother married to the deaf-mute woman do? He marries his yevama and may never divorce her, as he does not have the legal capacity to end a valid marriage.

GEMARA: Rami bar Ḥama said: What is the difference between the case of a deaf-mute man and a deaf-mute woman, that the Sages enacted rabbinic marriage for them despite their condition, and the case of an imbecilic man and an imbecilic woman, that the Sages did not enact marriage for them? As it is taught in a baraita: With regard to an imbecilic man and a minor who married women and died, their wives are exempt from ḥalitza and from levirate marriage. This indicates that the marriages of an imbecile and a minor are of no significance.

The Gemara explains: In the case of a deaf-mute man and a deaf-mute woman, where the ordinance of the Sages can be fulfilled, i.e., these marriages can be maintained, the Sages enacted marriage for them. By contrast, with regard to an imbecilic man and an imbecilic woman, where the ordinance of the Sages cannot be fulfilled, as one cannot live with an imbecilic partner, in accordance with the well-known saying: A person cannot reside in a basket, i.e., in close quarters, with a snake, the Sages did not enact marriage for them.

The Gemara asks: And what is the difference between a minor, that the Sages did not enact marriage for him, and a deaf-mute, that the Sages did enact marriage for him? The Gemara explains: In the case of a deaf-mute, as he will not reach the stage of eligibility for marriage by Torah law, the Sages enacted marriage for him. Conversely, with regard to a minor, as he will eventually reach the stage of eligibility for marriage by Torah law when he matures, the Sages did not enact marriage for him.

The Gemara raises a difficulty: But there is the case of a minor girl, who will reach the stage of eligibility for marriage by Torah law someday, and yet the Sages enacted marriage for her, as her mother and brothers may marry her off by rabbinic law. The Gemara answers: There the Sages issued their decree for a different reason, so that people should not treat her in the manner of ownerless property. If she marries, her husband will watch over her; if not, she might be treated disrespectfully.

The Gemara asks: What is the difference between a minor girl, that she may perform refusal, i.e., she can retroactively nullify her marriage by means of a declaration of refusal of her husband, and a female deaf-mute, that she cannot perform refusal, as the Sages did not establish the option of refusal in her case? Since the marriage of a deaf-mute woman also applies by rabbinic law, why didn’t the Sages establish refusal in her case as well? The Gemara answers: The reason is that if so, i.e., had the Sages enacted refusal for a female deaf-mute,

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Yevamot 112b examines whether courts compel or merely request ḥalitza when a widow’s prior vow suggests avoidance of levirate marriage, then opens the mishna on deaf-mute marriage and divorce.