Babylonian Talmud: Tractate Yebamoth

Folio 113a

men would abstain from marrying her.¹

And why is there a difference between a minor [and a deaf woman] that the former should be permitted to eat terumah²  while a deaf woman³  may not? For we learned, 'R. Johanan b. Gudgada testified concerning a deaf girl whom her father gave in marriage⁴  that she may be dismissed by a letter of divorce,⁵  and concerning a minor, the daughter of an Israelite, who was married⁶  to a priest, that she may eat [Rabbinical]⁷  terumah',⁸  while the deaf woman may not eat'!⁹  This¹⁰  is a preventive measure against the possibility that a deaf man might feed a deaf woman [with such terumah]. Well, let him feed her, [since she is only in the same position] as a minor who eats nebelah!¹¹  This¹²  is a preventive measure against the possibility that a deaf [husband] might feed a wife of sound senses [with it]. But even a deaf husband might well feed his wife who was of sound senses with Rabbinical terumah!¹³  — A preventive measure was made against the possibility of his feeding her with Pentateuchal terumah.

And why is the minor different [from the deaf woman] that the former should be entitled to her kethubah while the deaf woman is not entitled to her kethubah? — Because if [the latter also were] so [entitled] men would abstain from marrying her.¹⁴

Whence, however, is it inferred that a minor is entitled to a kethubah? — From what we learned: A minor who exercised the right of mi'un, a forbidden relative of the second degree,¹⁵  and a woman who is incapable of procreation, are not entitled to a kethubah;¹⁶  but [it follows¹⁷  that one] released by a letter of divorce,¹⁸  though a minor, is entitled to receive her kethubah.

And whence is it inferred that a deaf woman is not entitled to her kethubah? — From what was taught: If a man who was deaf or an imbecile married women of sound senses [the latter], even though the deaf man recovered his faculties or the imbecile regained his intelligence, have no claim whatsoever on [either of] them.¹⁹  But if [the men] wished to retain them [the latter] are entitled to a kethubah of the value of²⁰  a maneh.²¹  If, however, a man of sound senses married a woman who was deaf or an imbecile, her kethubah is valid, even if he undertook in writing to give her a hundred maneh,²²  since he himself had consented to suffer the loss.²³  The reason, then,²⁴  is because he himself consented; had he not consented, however, she would receive no kethubah,²⁵  since otherwise²⁶  men would abstain from marrying her.²⁷

If so,²⁸  a kethubah should have been provided for a woman of sound senses who married a deaf man, since otherwise²⁹  [women] would abstain from marrying [deaf men]! — More than the man desires to marry does the woman desire to be taken in marriage.³⁰

A deaf man once lived in the neighbourhood of R. Malkiu [and the latter] allowed him to take a wife to whom he had assigned in writing a sum of four hundred zuz out of his³¹  estate. Raba remarked: Who is so wise as R. Malkiu who is indeed a great man. He³²  held the view: Had he wished to have a maid to wait upon him, would we not have allowed one to be bought for him?³³  How much more, [then, should his desire be fulfilled] here where there are two [reasons for complying with his request]!³⁴

R. Hiyya b. Ashi stated in the name of Samuel: For [unwitting intercourse with] the wife of a deaf man³⁵  no asham talui²²  is incurred.³⁶

It might be suggested that the following provides support to his³⁷  view: There are five who may not set apart terumah, and if they did so their terumah is not valid. These are they: A deaf man, an imbecile, a minor, he who gives terumah³⁸  from that which is not his own, and an idolater who gave terumah from that which belonged to an Israelite; and even [if the latter gave it] with the consent of the Israelite his terumah is invalid!³⁹  — He⁴⁰  holds⁴¹  the same view is R. Eleazar. For it was taught: R. Isaac stated in the name of R. Eleazar that the terumah of a deaf man must not be treated⁴²  as profane, because its validity is a matter of doubt.⁴³  If he⁴⁰  is of the same opinion as R. Eleazar,⁴⁴  an asham talui also should be incurred!⁴⁵  — It is necessary⁴⁶  [that the offence should be similar to that of eating] one of two available pieces [of meat].⁴⁷  But does R. Eleazar require [a condition similar to that of eating] one of two pieces? Surely, it was taught: R. Eleazar stated: For [eating] the suet of a koy⁴⁸  one incurs the obligation of an asham talui!⁴⁹  — Samuel is of the same opinion as R. Eleazar in one case⁵⁰  but differs from him in the other.⁵¹

Others read: R. Hiyya b. Ashi stated in the name of Samuel: For [unwitting intercourse with] the wife of a deaf man the obligation of an asham talui is incurred.⁵²  An objection was raised: There are five who may not set apart terumah!⁵³  — He⁵⁴  holds the same view as R. Eleazar.⁵⁵

R. Ashi asked: What is R. Eleazar's reason? Is he positive that the mind of a deaf man is feeble but in doubt whether that mind is clear⁵⁶

1. Because at any time throughout her life she could leave her husband by merely making her declaration of refusal. This does not apply to a minor who loses her right to mi'un as soon as she becomes of age.
2. Even if only her mother or brother gave her in marriage to a priest.
3. Who was not given in marriage by her father. V. infra.
4. While she was in her minority.
5. Even after she became of age, when it is she and not her father that receives it.
6. By her mother or brothers after the death of her father.
7. Cf. supra 902.
8. 'Ed. VII, 9, Git. 53b. Though such marriage is not Pentateuchally valid.
9. Since only the minor, and not the deaf woman of whom the first clause speaks, was mentioned in this, the second clause.
10. The prohibition against the eating of terumah by a deaf woman.
11. V. Glos. Neither he nor she is subject to any punishment for the eating of forbidden food, v. infra 114a.
12. The prohibition against the eating of terumah by the deaf woman.
13. Since their marriage is at least Rabbinically valid.
14. Cf. supra p. 793, n. 5, mutatis mutandis. While deafness, as a rule, is an affliction for life, a minor does not forever remain in her minority.
15. Who is forbidden in Rabbinic, though not in Pentateuchal law. Cf. supra 21a.
16. Keth. 100b, B.M. 67a. The first mentioned, because her separation from her husband is effected even against his will; the second was penalized for contracting an unlawful marriage (cf. supra 85b); while in the case of the last the marriage is regarded as a contract under false pretenses.
17. Since the Mishnah cited speaks only of a minor who has exercised the right of mi'un, and whose separation was, therefore, effected even without the husband's consent.
18. Which is valid only if the husband had consented to the separation.
19. Because, at the time the marriage had been contracted, the men were not in the possession of all their senses or faculties and were, in consequence, incapable of undertaking any monetary obligations.
20. V. BaH. Cur. edd. omit to the end of the clause.
21. V. Glos. [Their marriage is deemed to have taken place when the husband recovers his faculties, and at that time they were no longer virgins. Beth Joseph, Eben ha-Ezer LXVII].
22. V. Glos.
23. [H], lit., 'to be damaged in his estate'. Bomb. ed. and others (cf. BaH) read [H] 'to be maintained'.
24. Why the deaf woman is entitled to her kethubah.
25. Even according to Rabbinic law.
26. Lit., 'for if so', i.e., if the Rabbis had entitled her to receive a kethubah.
27. Cf. supra p. 793, n. 5 mutatis mutandis.
28. That eligibility to receive a kethubah is determined by the likelihood of the consent to marry the deaf person.
29. Cf. supra n. 5, mutatis mutandis.
30. The lack of a kethubah would not prevent a woman from marrying a man even if he was deaf.
31. The deaf man's.
32. R. Malkiu, in allowing the deaf man to accept responsibility for the sum mentioned.
33. The answer is, of course, in the affirmative.
34. Matrimony and service.
35. Though it might be argued that, since the degree of her husband's intelligence or mental capacity cannot be accurately gauged — the validity of her marriage should be deemed doubtful.
36. Such an offering is due only when the offence is a matter of doubt (cf. infra p. 796. n. 10). In this case, however, as the marriage is valid in Rabbinic law only but remains definitely invalid in Pentateuchal law, no offering could be incurred.
37. Samuel's.
38. Without the authority of its owner.
39. Ter. I, 1 Shab. 153b. From this Mishnah, then, it follows, since the terumah of a deaf man is regarded as definitely invalid, that the incapacity of a deaf man is not a matter of doubt; and this apparently provides support to Samuel's view.
40. Samuel.
41. In regard to terumah.
42. Lit., 'go out'.
43. Shab. 153a. The invalidity of the terumah spoken of in the Mishnah cited may consequently be due to a similar reason. Hence no support for Samuel's view concerning a deaf man's wife may be adduced from it.
44. That the validity of the deaf man's action, and consequently also his capacity, is a matter of doubt.
45. In a case of intercourse with his wife. Cf. supra p. 795, n. 15, mutatis mutandis.
46. If an asham talui is to be incurred.
47. One of which was definitely forbidden and the other definitely permitted, and it is unknown whether a person ate the one or the other. Only in such a case, where the doubt is due to the existence of two objects, is an asham talui incurred. Similarly in the case of intercourse with one of two women, when it is unknown whether the woman affected was his own wife or a forbidden stranger, an asham talui is incurred. If the doubt, however, relates to one object, it being unknown, for instance, whether a piece of fat one has eaten was of the permitted or forbidden kind, no asham talui is involved. Similarly, in the case of the deaf man's marriage, where the doubt relates to one woman, it being uncertain whether she has the status of a married woman or not, no asham talui is incurred.
48. A kind of antelope, [G], concerning which it was unknown whether it belonged to the genus of cattle whose suet is forbidden or to that of the beast of chase whose suet is permitted. Cf. Hul. 80a.
49. Though the doubt relates to one object only.
50. In regard to terumah.
51. In regard to the liability of an asham talui.
52. Cf. supra p. 795. n. 14 mutatis mutandis.
53. Cf. supra p. 796. n. 2 mutatis mutandis.
54. Samuel.
55. V. supra p. 796. n. 7 (mutatis mutandis) and text.
56. And whatever little his feebleness enables him to do he can do well at all times.

or not clear,¹  though [in either case] it Is always in the same condition,²  or is it possible that he has no doubt that the [deaf man's] mind is feeble and that it is not clear,¹  but [his doubt] here is due to this reason: Because [the deaf man] may sometimes be in a normal state³  and sometimes in a state of imbecility? In what respect would this constitute any practical difference? — In respect of releasing his wife⁴  by a letter of divorce.⁵  If you grant that his mind is always in the same condition,⁶  his divorce [would have the same validity] as his betrothal.⁷  If, however, you contend that sometimes he is in a normal state³  and sometimes he is in a state of imbecility, he would indeed be capable of betrothal; in no way, however, would he be capable of giving divorce.⁸  What then is the decision? — This remains undecided.⁹

IF SHE BECAME AN IMBECILE etc. R. Isaac stated: According to the word of the Torah, an imbecile may be divorced,¹⁰  since her case is similar to that of a woman of sound senses [who may be divorced] without her consent. What then is the reason why it was stated that she may not be divorced? — In order that people should not treat her as a piece of ownerless property.¹¹

What kind [of imbecile, however, is here] to be understood? If it be suggested [that it is one] who is capable of taking care of her letter of divorce and who is also capable of taking care of herself, would people [it may be asked] treat her as if she were ownerless property! If, however, [she is one] who is unable to take care either of her letter of divorce or of herself, [how could it be said that] in accordance with the word of the Torah she may be divorced? Surely, it was stated at the school of R. Jannai, And giveth it in her hand¹²  [only to her] who is capable of accepting her divorce,¹³  but this one¹⁴  is excluded since she is incapable of accepting her divorce; and, furthermore, it was taught at the school of R. Ishmael, And sendeth her out of his house,¹⁵  only one who, when he sends her out, does not return, but this one¹⁴  is excluded since she returns even if he sends her out! — This¹⁶  was necessary¹⁷  in respect of one who is capable of preserving her letter of divorce but is unable to take proper care of herself. Hence, in accordance with the word of the Torah, such an imbecile may well be divorced for, surely, she is capable of preserving her letter of divorce; the Rabbis, however, ruled that she shall not be dismissed in order that people might not treat her as a piece of ownerless property.

Abaye remarked: This¹⁸  may also be supported by deduction. For in respect of her¹⁴  it was stated, IF SHE BECAME AN IMBECILE HE MAY NOT DIVORCE HER, while in respect of him¹⁹  [the statement was]. HE MAY NEVER DIVORCE HER. In what respect [it may be asked] does he²⁰  differ [from her] that the statement [concerning him] is NEVER while in respect of her 'NEVER' is not mentioned?²¹  The inference, then, must be that the one is Pentateuchal, the other Rabbinical.

R. JOHANAN B. NURI ASKED etc. The question was raised: Was R. Johanan b. Nuri certain [of the law concerning] the man²²  and his question related to that of the woman, or is it possible that he was certain concerning that of the woman²³  and his question related to that of the man? — Come and hear: Since they answered him: A MAN WHO GIVES A DIVORCE IS NOT LIKE A WOMAN WHO IS DIVORCED. FOR WHILE A WOMAN MAY BE DIVORCED WITH HER CONSENT AS WELL AS WITHOUT IT, A MAN CAN GIVE A DIVORCE ONLY WITH HIS FULL CONSENT, it may be inferred²⁴  that his question related to the man.²⁵  On the contrary; since they said to him: THE OTHER ALSO IS IN A SIMILAR POSITION,²⁶  it may be inferred that his question related to the woman! — But [the fact is this]: R. Johanan b. Nuri was addressing [them²⁷  in the light] of their own statement. 'According to my view', [he argued], 'as well as a man²⁸  is incapable of giving a divorce, so also is a woman²⁵  incapable of receiving a divorce;²⁹  but according to your view,³⁰  why should there be a difference between a man and a woman?'³¹  [To this] they replied: A MAN WHO GIVES A DIVORCE IS NOT LIKE A WOMAN WHO IS DIVORCED.

R. JOHANAN … TESTIFIED etc. Raba stated: From the testimony of R. Johanan b. Gudgada³²  [it may be inferred that if a husband] said to witnesses, 'See this letter of divorce which I am giving [to my wife]', and to her he said,³³  'Take this bill of indebtedness', she is nevertheless divorced. For did not R. Johanan b. Gudgada imply that [the woman's] consent was not required?³⁴  Here also, then, her consent is not required. Is not this obvious!³⁵  — It might have been assumed that since he said to her, 'Take this bill of indebtedness'³⁶  he has thereby cancelled [the letter of divorce], hence we were taught [that it remains valid, for] had he in fact cancelled it, he would have made his statement to the witnesses. Since, however, he did not make the statement to the witnesses he did not cancel it at all; and the only reason why he made that statement to her was³⁷  to conceal [his] shame.³⁸

R. Isaac b. Bisna once lost the keys of the school house in a public domain³⁹  on a Sabbath.⁴⁰  When he came to R. Pedath⁴¹  the latter said to him, 'Go and

1. He cannot do anything rational.
2. Either always clear or always not clear.
3. Lit., 'sound'.
4. Whom he married when he was already suffering from his infirmity.
5. This question applies only to the view of R. Eleazar. (Cf. supra p. 796. n. 7). According to the Rabbis, as has been stated (supra 112b), a deaf man may divorce his wife, as he marries her, by gestures.
6. Either always clear or always not clear.
7. Since his mental powers do not change, he is as capable of giving divorce as contracting a marriage. He was either capable of both transactions or of neither.
8. It being possible that at the time of the betrothal or marriage he happened to be in a normal state, and his act was consequently valid, while at the time of the divorce he may happen to relapse into imbecility, in consequence of which his act can have no validity.
9. Teku, v. Glos.
10. Though it is impossible to ascertain whether she realizes the significance of her action.
11. Were she left unprotected by a husband, unscrupulous men might take undue advantage of her.
12. Deut. XXIV, 1 (hand = [H]. V. infra note 4).
13. Lit., 'who has a hand' (v. supra note 3).
14. The imbecile.
15. Deut. XXIV, 1.
16. The statement of R. Isaac concerning the imbecile.
17. Lit., 'not required (but)'.
18. That the divorce of an imbecile is only Rabbinically forbidden but Pentateuchally permitted.
19. The man who became an imbecile.
20. Lit., 'here'.
21. Lit., 'and what is different there that it was not taught forever'.
22. That if he was deaf he may not divorce his wife.
23. That if she was deaf she may be divorced.
24. Since the expression used in the reply was, A MAN … IS NOT LIKE A WOMAN.
25. Had it referred to the woman, the expression in the reply would have been, 'A woman … is not like a man'.
26. The man not having been mentioned at all.
27. The Rabbis.
28. Who is deaf.
29. It was to this statement that the Rabbis replied, THE OTHER ALSO IS IN A SIMILAR POSITION.
30. Which allows a deaf woman to be divorced.
31. Why should not a deaf man also be allowed to divorce his wife?
32. According to which a woman may be divorced without her consent even though her betrothal was Pentateuchally valid.
33. When handing the letter of divorce to her.
34. Cf. supra p. 799, n. 13.
35. According to R. Johanan. What need, then, was there for Raba to state the obvious?
36. Thus describing the document as one which has no relation whatsoever to divorce.
37. Lit., 'and that which he said thus, owing to'.
38. At divorcing her. Or, to save her from the shame of being divorced in public.
39. Reshuth harabbim [H]. Glos. [Though the question arose on Sabbath they could not have been lost in a public domain on that day. BaH., therefore, rightly omits 'on a Sabbath'; nor did Rashi seem to have it, v. 114a s. v. [H], v.n. 9].
40. I.e., in a place where, and on a day when carrying of objects is forbidden.
41. On Sabbath (Rashi). To consult him on the best way of getting the keys to the school house.