Gittin 71b (עא:) — the Talmud in English

And didn’t we learn: Two deaf-mute brothers

who married

women

by means of gestures, to

two competent sisters or

to

two deaf-mute sisters or

to

two sisters, one competent and one deaf-mute,

whose marriages are all only by rabbinic enactment, since the husbands married them by means of gestures.

And likewise, two deaf-mute sisters

who married by means of gestures and were

married to two competent brothers, or to two deaf-mute brothers, or to two brothers, one competent and one deaf-mute,

whose marriages were all only by rabbinic enactment, since they married by means of gestures.

Their law:

These women are exempt from halitza and yibbum,

since the woman who fell to yibbum is the wife’s sister of the yavam, and all those forbidden as ervayot are exempt from yibbum.

And if

the two women

were unrelated

and there was no erva prohibition in their marriages, and one of the brothers died,

the surviving brother cannot perform halitza, because he is a deaf-mute and is excluded from halitza, or because she is a deaf-mute woman and cannot say, “What of my yavam?”

Rather,

they shall marry

the yevama,

and if they wish

afterward

to divorce them—

they shall divorce them,

because the bill of divorce of a deaf-mute can sever the bond created by the betrothal of a deaf-mute.

It is evident from this Mishna that a yevama whose deceased brother was a deaf-mute and who fell before a deaf-mute yavam may be divorced by him; we do not issue a decree because of a yevama whose deceased brother was competent, whom he cannot divorce.

Rather, it is clear as we answered initially:

we must return to the first answer: when we learned that one who was deaf from the outset cannot divorce by means of a written document, this refers to a yevama whose deceased brother was competent.

What we said above, to explain that Rav Kahana holds in accordance with the opinion of Rabban Shimon ben Gamliel—that a deaf-mute who had originally been competent can effect a fully Torah-valid divorce—cannot mean that everyone agrees with this, and that Rabban Shimon ben Gamliel came only to explain the words of the first tanna rather than to dispute him.

For

Rabbi Yohanan said

explicitly:

His colleagues dispute Rabban Shimon ben Gamliel

and maintain that if a competent man betrothed a woman with fully valid betrothal and then became a deaf-mute, he cannot divorce her even if he knows how to write.

Abaye said: We, too, have learned this

—that a deaf-mute cannot divorce even if he can communicate through writing—for we learned concerning the woman that only if she

became insane

after the marriage—

he may not divorce her,

and it is forbidden to divorce her.

But if she was competent and then became a deaf-mute, he may divorce her, since the woman’s consent is not required for divorce, and he may divorce her even against her will.

It was only in the case of a woman who became insane that the Sages decreed that he may not divorce her, because she does not know how to protect herself, and they feared that people would treat her permissively with regard to illicit sexual relations. By contrast, if she remains married, people will take care with her because she is a married woman.

By contrast, the husband, whether

he became a deaf-mute or became insane—

he may not divorce

his wife

ever.

It is thus clear that if he married her while he was competent and then became a deaf-mute, he cannot divorce her.

And we raised the following question:

What

[what is the emphasis in the statement that he may not divorce his wife]

ever?

Is it not

[does it not] written to include that

even though he can communicate through writing,

nevertheless he cannot divorce his wife with a divorce valid by Torah law; and if he married her while he was competent, when his betrothal was valid by Torah law, he cannot divorce her?

Rav Pappa said: Had Rabbi Yohanan not informed us

[had he not taught us]

that Rabbi Yohanan

Rabban Shimon ben Gamliel came to dispute the first tanna,

I would have thought

[I would have said]

that Rabban Shimon ben Gamliel came only to explain the reason of the first tanna

[he came], and everyone agrees that even a deaf-mute who had been competent at the time of betrothal, whose betrothal is valid by Torah law, can use writing for divorce.

And

according to this,

what

[what is the emphasis in what we learned concerning a competent man who became a deaf-mute, that he may not divorce his wife]

ever?

And we explain: This does not teach that he cannot instruct others through writing to write a bill of divorce; rather, it teaches that

even though we see that he is sharp

[even though we see that he is sharp] and understands, he is not capable of effecting a divorce by instructing others through gestures to divorce her, but through writing he can divorce her.

Alternatively,

the emphasis on “ever” is written to infer

the principle of Rabbi Yitzhak,

because from the fact that the first clause does not state “ever,” while the latter clause does state “ever,” it is inferred that the law in the first clause—that he may not divorce his insane wife—is only rabbinic, whereas the law in the latter clause—that if the husband is insane he may not divorce—is by Torah law. This is in accordance with the words of Rabbi Yitzhak.

For Rabbi Yitzhak said: By Torah law, an insane woman

who knows how to safeguard her bill of divorce

is divorced, as is the case

[as is the law]

with a competent woman divorced against her will,

since the woman’s consent is not required for divorce.

And for what reason did

the Sages say that an insane woman, even one who knows how to safeguard her bill of divorce,

is not divorced?

In order

that people not treat her permissively,

since she does not know how to protect herself.

By contrast, when the husband is a deaf-mute, he cannot divorce even by Torah law, since his consent is required: a man divorces only willingly. Therefore, the beraita emphasized in its latter clause that when the husband is a deaf-mute [who cannot communicate even through writing] or insane, he cannot divorce “ever.”

Mishna:

They said to him

when the husband was healthy, or when he was dangerously ill [a sick man who was expected to die] but his mind was still clear,

“Let us write a bill of divorce for your wife”

so that she would not require yibbum after his death.

And he said to them

the husband,

“Write.”

They themselves must write and sign it.

[They may also give it to the woman, since this concerns a sick man or one departing by sea and the like, as explained in the preceding chapter: when he says, “Write,” his instruction is equivalent to saying, “Write and give.”]

But if those men did not write and sign the bill of divorce themselves, but

told the scribe, and he wrote

the bill of divorce,

and

told

the witnesses, and they signed

at their instruction,

even though the scribe wrote it

the scribe

and the witnesses signed it,

the witnesses,

and gave it to him

the husband,

and he returned

the husband

and gave it to her,

this shows that he revealed his willingness that his agents need not write and sign it themselves.

Nevertheless,

the bill of divorce is invalid until

the husband himself

says to the scribe, “Write,” and to the witnesses, “Sign,”

because the bill of divorce must be written and signed at the husband’s instruction.

Gemara:

The Gemara infers from the Mishna:

The reason

that the bill of divorce is invalid if the husband did not explicitly tell the scribe to write is that the Mishna makes clear

that he did not say

to those men, using the expression

“Give,”

but explicitly said to them, “Write.” This indicates that he specifically insists that they themselves write it, and that they not tell someone else to write it, because he is embarrassed to reveal to others that he does not know how to write a bill of divorce himself. In this matter even Rabbi Meir agrees, as stated above [on 66], that if he said, “Write a bill of divorce for my wife,” even if he said this to a court, he did not designate them as a court in order to authorize others to write the bill of divorce.

But

if

he said

to them, the husband, using the expression

“Give,”

and they told the scribe to write and the witnesses to sign—

they may give it

even though the husband did not explicitly instruct them to do so.

According to whom

[whose opinion is this]?

It is in accordance with the opinion of

Rabbi Meir.

For he said: Statements can be entrusted to an agent.

It is possible to appoint an agent to convey instructions, and therefore they also become agents to appoint others in their place.

This is inferred from the first clause of the Mishna, and the Gemara raises a contradiction to it from the latter clause:

Say

look at the

latter clause

of the Mishna, in which we learned:

The bill of divorce is invalid

until

the husband himself

says to the scribe, “Write,” and to the witnesses, “Sign.”

This indicates that there is no possibility of permitting others to write; rather, the one who hears the instruction from the husband must write it, even if the husband said this to three people [who constitute a court], and even if he did not say to them “Write,” but rather “Give,” indicating that he does not insist that others not write it.

If so, it is inferred from the latter clause that the Mishna

comes

[proceeds]

according to Rabbi Yosei, who said: Statements cannot be entrusted to an agent—

it is impossible to appoint an agent to convey instructions, and agents do not become agents to appoint others. Therefore, as long as the husband did not explicitly appoint the scribe to write the bill of divorce, the scribe may not write it, even if the husband did not insist that the agents refrain from appointing another and relied on them to do so, because they do not become agents for this matter, to instruct others.

It therefore follows that the

first clause

of the Mishna is in accordance with the opinion of

Rabbi Meir,

while the

latter clause

of the Mishna is in accordance with the opinion of

Rabbi Yosei.

How can the Mishna adopt two opinions that dispute one another? And we answer:

Indeed,

[yes], the Mishna truly adopts in the

first clause

the opinion of

Rabbi Meir, and

in the

latter clause

the opinion of

Rabbi Yosei,

even though the opinions dispute one another.

Abaye said

to offer another resolution:

The entire Mishna

[the whole Mishna] is in accordance with the opinion of

Rabbi Meir.

And here, with what are we dealing?

In the latter clause, which states that the bill of divorce is not valid until he tells the scribe himself to write it, we are dealing with a case

in which the husband did not say

using the expression

“Give,”

but rather said, “Write.”

This is the meaning of the latter clause: when the husband says “Write,” the bill of divorce is not valid until he tells the scribe himself to write it.

And we ask: Since there is a way to permit others to write when he says to them “Give,”

if so

[if that is so], “

until he says

the husband using the expression

‘Give’ is required”

[the tanna should have said this, and I would know by a kal va-chomer that it is valid in the simpler case, when the husband himself told the scribe to write it].

Rather,

certainly the latter clause refers even to a case in which the husband said to them “Give.” The reason that the bill of divorce is valid only when the husband himself instructed the scribe to write is that

here, with what are we dealing?

[What is the case here, in the latter clause?]

He did not say to three

[people], but rather said it to two. And with regard to two, Rabbi Meir agrees that even if the husband said to them “Give,” they write it themselves, since he did not make them a court empowered to appoint others to write and sign, and they are not agents for that purpose.

And we ask: Since there is a way to permit others to write when the husband says to three people “Give,”

if so

[if that is so], “

until he says

the husband

to three

‘Give’”

is required

[the tanna should have said this, and I would know by a kal va-chomer that it is valid in the simpler case, when the husband himself told the scribe to write it].

Rather,

it must be said that the Mishna

in its entirety

follows the opinion of

Rabbi Yosei,

and the fact that the first clause states that the husband said “Write” is not meant to infer that if the husband had said “Give,” without saying “Write,” they could tell others, who would then write it.

Rather,

here, with what are we dealing?

[What is the case here, in the first clause?] The reason they cannot appoint others to write the bill of divorce is not that the husband did not say “Give” to them, but rather

that he did not say

to them using the expression

“Tell.”

For if the husband had said to them, “Tell the scribe to write, and so-and-so and so-and-so to sign,” they would become agents to convey the instruction to others. Rabbi Yosei agrees in this case, since he made them agents for that purpose.

And we ask: Since there is a way to permit others to write when he says to them “Tell,”

if so

[if that is so], “

until he says

to them, the husband, using the expression

‘Tell’ is required”

[the tanna should have said this in the latter clause, and I would know by a kal va-chomer that it is valid in the simpler case, when the husband himself told the scribe to write it].

Furthermore,

there is another difficulty:

Does Rabbi Yosei agree when one says

the husband using the expression

“Tell”

that the agents can convey the husband’s instruction to others?

And didn’t we learn: If a scribe wrote

the bill of divorce

and

another signed it—

the bill is valid,

since it contains the testimony of two: the handwriting of the scribe and the signature of the other man.

And Rabbi Yirmeya said: We learned, “the scribe signed,”

not “the scribe wrote”; only if the scribe signed together with the other witness is the bill of divorce valid.

And Rav Hisda said: The Mishna

that validates the signature of the scribe—

according to whom

[whose opinion is it]?