Gittin 71a (עא.) — the Talmud in English

Rather,

the things that are appropriate for the summer and winter seasons, about which he is asked whether he is interested in them, that is,

fruits

that are not available during that particular season of the year. If he answers the question by nodding “yes,” it is a sign that his mind is not clear.

A mentally competent man who betrothed a woman with a completely valid betrothal, and afterward became deaf-mute or insane: the law is that he can never divorce his wife, since a divorce issued by a deaf-mute does not have the power to dissolve the betrothal of a mentally competent man.

Rav Kahana said that Rav said:

But if he is

a deaf-mute who can speak through writing,

meaning that he knows how to write on parchment for messengers: “You, so-and-so and so-and-so, write a bill of divorce and give it to my wife,”

then he is completely mentally competent, and if he conveyed his instructions to them in writing,

they may write and give a bill of divorce to his wife.

Rav Yosef said: What is Rav teaching us

[what did Rav make known]?

We have already

learned:

One who was mentally competent and

became mute, and they said to him, “Shall we write a bill of divorce for your wife?” and he nodded his head, they examine him three times; if, regarding “no,” he says no, and regarding “yes,” he says yes—

these people may write and give it!

It follows that even if he can do no more than gesture, he is fit to divorce, and all the more so when he can speak through writing.

Rabbi Zeira said to him:

Do you mean to prove Rav’s ruling from the Mishna, which says that a divorce is effective in the case of an

alum

who can hear but cannot speak,

did you

[say] that this proves that a divorce is effective in the case of a deaf-mute who can neither hear nor speak except through writing? But one cannot derive the law of a deaf-mute from that of an alum.

Because

it is different

[it is different] in the case of an

alum,

since, as he can hear, he is like a mentally competent person in every respect. This is not so with a deaf-mute, who can neither hear nor speak: if he cannot speak through writing, he is not fit to divorce by mere gesturing.

And had Rav not taught us that a deaf-mute who can speak through writing is fit to divorce, we would not have known this.

The distinction between an alum and a deaf-mute was taught in a beraita:

as it was taught:

A deaf-mute who

speaks but cannot hear—

this is a deaf-mute;

one who hears but cannot speak—

this is an alum;

and both this one and that one—

both one who speaks but cannot hear and one who hears but cannot speak—

they are

considered

like mentally competent people in all their affairs.

It is clear from the beraita that an alum is considered mentally competent in all respects. The deaf-mute mentioned here in the beraita is not the deaf-mute whom the Sages discuss throughout the Talmud and equate with an insane person, because this deaf-mute is mentally competent in all respects. Rather, the deaf-mute whom they discuss throughout the Talmud, and about whom Rav spoke, is one who can neither hear nor speak.

It is evident from the beraita that an alum differs from the deaf-mute discussed by Rav Kahana.

And we inquire:

And from where

[and from where] is it established

that one who speaks but cannot hear is

called

a deaf-mute,

and

one who hears but cannot speak is

called

an alum?

And we explain:

as it is written: “But I, like a deaf man, do not hear, and like an alum, he does not open his mouth”

[Psalms 38:14]. Thus, it is explicit in the verse that a person who cannot hear is called a deaf-mute, and a person who cannot speak is called an alum.

And if you wish, say:

The expression “alum” is

as people say

[as people say]:

ishtakil milulei

[his words were taken away]. “Alum” is an abbreviation formed from the initial letters of “ishtakil milulei.”

Rabbi Zeira said: If I have a difficulty

with the words of Rav Kahana in the name of Rav,

this is my difficulty,

as it was taught

in a beraita: The Torah states concerning the punishment of one who knows testimony against another and swears that he does not know it:

“If he does not testify

and bears his iniquity” [Leviticus 5:1], and he must bring an offering for an oath of testimony.

We learn from the wording of the verse to exclude:

except for an alum who cannot testify

the testimony orally.

Thus, if he knew testimony and they administered an oath to him that he did not know testimony, and he nodded his head to indicate that he did not know, he is exempt from the offering.

According to Rav Kahana, this is difficult:

why

is he excluded from the requirement of testimony if he cannot speak?

For he can

still

testify through writing.

Rather, it follows from the beraita that testimony in writing is not considered testimony, contrary to the statement of Rav Kahana in the name of Rav.

Abaye said to him: Are you speaking of testimony

[did you say] that testimony proves that testimony in writing is not considered testimony?

But there is no proof from testimony with regard to a bill of divorce!

Because

it is different

[it is different] in the case of

testimony, for the Merciful One said

that the testimony must be conveyed

from their mouths.

As it is written, “according to the testimony of two witnesses” [Deuteronomy 19:15]—

and

we learn from this to exclude that they

may not

testify

by means of their writing

in court.

Therefore, in the case of testimony, only oral speech is considered testimony.

This is not so with a bill of divorce, where there is no scriptural decree of “from their mouths—and not from their writing”; therefore, a testimony given in writing is also considered testimony. .

And we challenge this:

Meitivi

we learned in a beraita:

Just as they examine him

one who has become mute

with regard to bills of divorce

by means of his nodding,

so do they examine him with regard to purchases and gifts

with regard to buying and selling his property,

and with regard to testimonies and inheritances.

In any event, it teaches

the beraita teaches at least

testimonies,

which implies that he can also testify even though he cannot speak. But was it not stated above that there is a scriptural decree that testimony must be delivered orally?

Rav Yosef bar Minyomi said that Rav Sheshet said:

What is written in the beraita, that a mute is qualified to give testimonies, refers

to testimony concerning a woman,

in which he testifies that her husband has died, so that she may marry.

For in this matter the Sages were lenient,

in various ways so that she would be able to marry, and in this matter they were lenient and accepted the testimony of a mute given in writing.

But with regard to other testimonies, which are of Torah origin, the testimony cannot be delivered in writing.

And we refute this:

But it teaches: inheritances!

This implies that a mute can also testify concerning an inheritance, which is a monetary matter, and his testimony is of Torah origin.

And we answer:

Rabbi Abbahu said:

It is not referring to testimony concerning the property of others. Rather, it is referring to his own property, and “inheritances” refers to

the inheritance of his firstborn son,

where he testifies in writing, if he wishes to alter the order of inheritance and make his firstborn son equal to the other brothers.

And we refute this:

In any event, it teaches

the beraita teaches at least that he is qualified

for purchases and gifts; is it not so

that he is qualified to buy and sell

to others

and that this means that he may testify on their behalf in writing?

And we reject this:

No,

it is referring to buying and selling

for himself

and is not referring to testimony.

And we challenge this:

Meitivi

from what we learned:

With regard to a deaf-mute, they did not follow his gestures, his jumping, or his handwriting

to regard him as mentally competent,

but

with regard to buying and selling

movable property,

but not

did they regard him as mentally competent

with

regard

to bills of divorce,

in a case where he had betrothed his wife with a complete betrothal when he was mentally competent.

This presents a difficulty against the statement of Rav Kahana, who said that he is regarded as mentally competent to divorce by means of his handwriting.

And we answer: It is a dispute among

tannaim.

As it was taught: Rabban Shimon ben Gamliel said:

When are these words applicable,

that we do not rely on the handwriting of a deaf-mute with regard to bills of divorce?

With regard to one who was a deaf-mute from the outset,

who does not possess handwriting that reflects mental competence, since his mind was never lucid.

But

if he had been

mentally competent

and had learned to write while his mind was lucid,

and then became a deaf-mute

afterward—

he writes

the bill of divorce

and they sign.

Rav Kahana holds in accordance with the opinion of Rabban Shimon ben Gamliel.

And we challenge this:

And can one who was a deaf-mute from the outset not

write a bill of divorce?

But we learned in Yevamot:

Just as he brings her in

the deaf-mute

through gestures,

without oral speech,

so does he send her out through gestures!

And we answer:

If

it is referring

to his wife,

whom he married when he was a deaf-mute,

so too

it is clear that he can divorce her through gestures.

Rather,

here, what are we dealing with

what is the case here?—

with his yevama,

who came before him for levirate marriage. Her betrothal had been a complete betrothal, and her bond of levirate marriage was complete; but he cannot perform chalitza with her, since he is not included in the verse, “And he shall stand and say: I do not desire to take her” [Deuteronomy 25]. Rather, he marries her through levirate marriage, but he can never divorce her, because the bill of divorce of a deaf-mute does not dissolve a Torah-level bond of levirate marriage.

We inquire about this:

His yevama—from whom

did she come before him for levirate marriage?

If you say

that

she came to him from his brother

who was also

a deaf-mute.

But

just as her entry

her betrothal to the first brother

was through gestures, so

the law of

her departure is through gestures!

If so, why should the deaf-mute yavam not be able to divorce her after performing levirate marriage with her?

Rather,

it must be said

that she came to him

for levirate marriage

from a mentally competent brother

whose betrothal was a complete betrothal.

And if you wish, say instead:

Actually,

it is referring

to a case where she came to him from a deaf-mute brother, and

the Sages enacted

a decree

concerning a yevama from

a deaf-mute brother

that he may not divorce her,

lest

because people will come to permit a divorce by a deaf-mute yavam whose yevama came from

a mentally competent brother.

And we challenge this:

If so,

if they issued a decree that a deaf-mute may not divorce a yevama from a deaf-mute brother because of his inability to divorce a yevama from a mentally competent brother,

then with regard to

his wife

the deaf-mute’s

also

let us issue a decree that he may not divorce her, because of his yevama from a mentally competent brother.

And we answer:

His yevama may be confused with another yevama

and people may come to compare one with the other and derive one from the other. If they permit him to divorce a yevama from a deaf-mute brother, they may come to compare it and permit him to divorce even a yevama from a mentally competent brother.

That is not so with regard to

his wife, who cannot be confused with his yevama

and people will not come to compare the two.

And we challenge this:

Do we issue a decree

that a yevama may not be divorced from a

deaf-mute brother, lest

because of the divorce of a yevama from a

mentally competent brother?