Today’s page of Gittin is dedicated by our good friend Joe Jamal in honor of Chagat Daf Yomi and in honor of the Netzach Minyan. Today’s study should be a source of complete healing for Isteh bat Salat S’macha, and for all the sick among the people of Israel. Amen.
We begin on page 71, amud alef, at the top of the page. The Gemara says: “Rav Kahana said in the name of Rav.” The discussion concerns a deaf-mute, a person who cannot hear and cannot speak, but who is able to communicate through writing. He wants to write on a piece of paper, instructing the people, “Write a bill of divorce for my wife,” and he hands the paper to them. In that case, they may write the bill of divorce and give it to his wife. His written communication is considered sufficient.
This applies specifically when he was able to communicate normally when he married her. He was fully competent when the marriage took place, so the marriage is a complete marriage. If he later became deaf and mute, or became mentally incompetent, he may not divorce her. His inability to divorce is an indication that, although he may have been competent at the time of the marriage, he is no longer considered competent now.
Rav Yosef asks: What is Rav teaching us? We already learned this in the Mishnah. The Mishnah says that if a person became unable to speak and others said to him, “Write a bill of divorce for your wife,” and he nodded his head—checking his responses three times, or six times, to determine that he answers yes and no appropriately—they may write the bill of divorce and give it to her. We see that he does not even need to be able to write. If he can nod his head and answer the questions correctly, that is already sufficient evidence that he has the necessary understanding. If so, why does Rav need to teach that writing is sufficient?
The Gemara answers that the Mishnah is speaking about an individual who cannot speak but can hear. In the case of a mute person who can hear, it is enough for him to demonstrate that he understands the questions and can answer them correctly. He does not need to write in order to demonstrate that he is competent. Rashi explains that because he can hear, he is considered competent with respect to the words he expresses. The examination merely establishes that he possesses the necessary understanding.
Our case, however, concerns a person who can neither hear nor speak. In that case, we would not have known from the Mishnah that writing is sufficient. Rav’s case is more difficult: the person cannot communicate through speech, and he cannot hear what is being said to him. Therefore, we need Rav to teach that if he can communicate through writing, that is sufficient.
The Gemara then cites a teaching: A person who can speak but cannot hear is called a deaf person; a person who can hear but cannot speak is called a mute person; and a person who is both deaf and mute is considered, in this respect, like a competent person if he can communicate appropriately. If he has only one of these limitations, he is treated as competent in this matter.
How do we know that the term for a deaf person refers to someone who cannot hear, while the term for a mute person refers to someone who cannot speak? One answer is based on the verse in Tehillim: “I was like a deaf person and did not hear; and like a mute person who does not open his mouth.” The verse distinguishes between the person who does not hear and the person who does not open his mouth. A second answer is based on the way people use the word for a mute person: his speech has been taken away from him. That is why he is called mute.
Accordingly, the deaf person discussed in the Mishnah is a person who cannot hear but can speak. He is considered competent for these matters, even though he cannot hear. The person discussed by Rav, however, cannot hear and cannot speak. Rav teaches that if such a person can communicate through writing, his writing is sufficient to establish his intention.
The Gemara raises a difficulty against Rav. There is a teaching concerning the laws of an oath involving testimony. Suppose a person falsely swears to another person that he does not know testimony, and it later becomes clear that he did know testimony. The verse says, “If he does not testify,” and then states that he will bear his sin. The implication is that someone who is capable of expressing testimony but withholds it is liable. But what about a person who cannot speak? If he can write, why should he not be able to express his testimony through writing? We have just said that, concerning a bill of divorce, writing is sufficient. If writing is an adequate form of communication, then a person who falsely swore that he did not know testimony should be able to write the testimony. Why would he be exempt merely because he cannot speak?
The Gemara answers that testimony is different from a bill of divorce. Testimony must be expressed verbally. A bill of divorce requires the husband’s intention and instruction, and that intention can be communicated through writing. Testimony, however, is defined as something that comes from the witness’s mouth. Therefore, writing is not considered testimony in the relevant sense.
The Gemara raises another question. If writing is not considered testimony, how can a mute person sign a document? A signed document also testifies that a particular event occurred. Rashi distinguishes between the two cases. A person may sign a document because he is signing while the transaction is taking place, or before the event is complete. That signature helps establish the transaction as it occurs. Testimony, by contrast, reports something that already happened. When a person comes later to testify about a past event, that is testimony, and the Torah requires it to be heard from the witness’s mouth.
Thus, the issue is not whether writing is a meaningful form of communication. Writing can certainly communicate a person’s intentions. The issue is that testimony has a specific legal definition. The Torah requires testimony to be heard verbally from the witness. This is also reflected in the expression “by their mouth”: the testimony must come through the mouth of the witnesses, not through a letter, a signed statement, a code, or another form of communication.
The Gemara then returns to a statement of Abaye. Just as we examine a person who cannot speak by having him respond through nodding his head, perhaps we should also be able to establish his testimony in this way. We test him and determine that he understands the questions, that he knows how to answer yes and no, and then we should accept his testimony. Alternatively, perhaps he should be able to write his testimony. The Gemara is asking whether the ability to establish that he is competent also allows us to accept what he writes as testimony.
The answer is that the discussion may concern testimony about a woman’s status. Testimony that a woman’s husband has died is treated more leniently. In such a case, even relatives may sometimes be accepted, because the Sages were lenient with testimony regarding a woman. It may therefore be possible to accept the testimony of a person who communicates in this manner in that special context. That would not establish that ordinary testimony may be given through writing.
The Gemara then cites another case involving inheritance. At first glance, it appears that a person who cannot speak is permitted to testify about another person’s inheritance. That would be a form of testimony, and it would contradict the distinction we just made. The answer is that the case is not one in which he is testifying about someone else’s inheritance. Rather, he is giving instructions concerning his own property while he is still alive.
For example, a father may wish to distribute his property equally among his children, rather than allowing the firstborn to receive a double portion after his death. While he is alive, he can give the property as a gift. He is not testifying about an inheritance; he is giving instructions concerning a present transfer of property. His writing is therefore sufficient to express what he wants to do.
Rashi explains that the case concerns his own son and his own property. The father is not attempting to alter the Torah’s inheritance laws after his death. Rather, while he is alive, he is giving the property to his children equally. Since he is making a gift during his lifetime, and not testifying about what should happen after his death, writing can establish his intention.
The Gemara raises a further difficulty concerning gifts and business transactions. The language sounds as though the person may be giving instructions about transactions involving other people, which would again resemble testimony. The Gemara answers that the cases concern his own gifts and his own transactions. He is instructing others to carry out his wishes, not testifying about an event that has already occurred.
This is the answer to Abaye’s question. Abaye was speaking about testimony, and ordinary testimony cannot be established through writing. The cases involving gifts, purchases, and similar transactions are not testimony. They are expressions of a person’s own wishes. Once it has been established through examination that the person understands what he is doing, he may communicate those wishes in writing.
The Gemara returns to the question against Rav. Rav taught that a person who was competent when he married and later became deaf and mute may write instructions for a bill of divorce, and the bill of divorce is valid. A teaching, however, says that we do not follow the signs, gestures, or writing of a deaf person except with respect to certain transactions. The teaching adds that he cannot divorce or become betrothed through these forms of communication. If so, this appears to contradict Rav.
The Gemara first explains that the teaching may be discussing a person who was deaf and mute from the outset. A person who was always in that condition may not be able to create a marriage or a divorce on his own. Rav, however, is discussing someone who was competent when the marriage took place and only afterward became deaf and mute. Because he possessed full competence at the beginning, writing may establish his intention later.
The Gemara then examines the wording of the teaching. It says that such a person cannot divorce, and it adds that he remains unable to divorce permanently. Why is the additional expression necessary? The Gemara suggests that it teaches that even if he can communicate through writing, this does not help in the case of someone who was deaf and mute from the beginning.
At this point, the Gemara distinguishes between two opinions. One opinion maintains that a person who was competent and then became deaf and mute can divorce through writing. This is the position associated with Rabban Shimon ben Gamliel. The other opinion, the first opinion in the teaching, maintains that even in that case writing is not sufficient. Rav is therefore understood as following Rabban Shimon ben Gamliel rather than the first opinion.
Rabbi Yohanan explains that these two opinions disagree. The first opinion holds that even if the person was competent at the beginning and only later became deaf and mute, writing does not establish his intention. Rabban Shimon ben Gamliel holds that if he was competent at the beginning and can now communicate through writing, he may divorce his wife.
The Gemara asks: If a person was deaf and mute from the beginning, why can he not divorce his wife? We learned in Yevamot that such a person can marry through gestures, and therefore he should also be able to divorce through gestures. The Gemara answers that this is indeed true when the woman is his wife in the ordinary sense. If he entered the marriage through the rabbinic form appropriate to his situation, he may end that marriage through the corresponding rabbinic form.
The case under discussion, however, is not an ordinary marriage. It concerns a woman who fell to him for levirate marriage after his brother died. The deceased brother had been fully competent, and his marriage had been a complete marriage under Torah law. When the brother dies without children, the woman becomes connected to the surviving brother through a Torah-level levirate bond. Even though the surviving brother is deaf and mute, he is now dealing with a relationship that originated at the Torah level. His writing is not sufficient to dissolve that bond.
The Gemara asks why he cannot perform the ritual of release instead. Rashi explains that the ritual requires him to say, “I do not want to take her.” A person who cannot speak cannot make that statement. The ritual is performed only when he is able to state that he does not want to enter the levirate marriage. Since he cannot express that refusal verbally, the ritual cannot be performed. He also cannot perform the levirate marriage in the ordinary manner and then divorce her, because the divorce would not be strong enough to undo the Torah-level bond.
In other words, when the competent brother died, a Torah-level bond was created. The deaf-mute brother cannot release that bond through a bill of divorce, because his divorce is only effective at the rabbinic level. Before the levirate marriage, he cannot perform the ritual of release because he cannot make the required declaration. Once he performs the levirate marriage, he is unable to divorce her. He is therefore left without a way to end the relationship.
One might ask why he can perform the levirate act at all. The answer is that the levirate bond comes from the deceased brother’s marriage. The surviving brother does not need to create the entire relationship through his own independent intention. The Torah connected the widow and the surviving brother through the bond of levirate marriage. Therefore, the act itself can take effect even though the surviving brother lacks the level of intention required to create an ordinary marriage or divorce.
The Gemara offers a second possibility. Perhaps the original brother was himself deaf and mute. In that case, the brother’s marriage was only rabbinic, and the levirate bond would also be rabbinic. If everything is only rabbinic, perhaps the surviving brother should be able to divorce her through writing.
The Gemara answers that the Sages nevertheless made a protective decree. If they allowed a deaf-mute man to divorce in a case where the deceased brother had been deaf and mute, people might also permit him to divorce in a case where the deceased brother had been fully competent and the levirate bond was from the Torah. The Sages therefore prohibited the divorce even in the entirely rabbinic case, in order to prevent confusion between the two cases.
The Gemara asks why the same concern does not apply when the deaf-mute man is divorcing his ordinary wife. Why do we not fear that people will confuse that case with the case of a levirate bond? The answer is that the two relationships are visibly different. An ordinary wife and a woman who has fallen to a man for levirate marriage are not likely to be confused with one another. The Sages were therefore not concerned that permitting the first case would lead people to permit the second.
The Gemara then cites a teaching involving two deaf-mute brothers who married two sisters. The sisters may both have been competent, both may have been deaf and mute, or one may have been competent and the other deaf and mute. In all of these cases, the marriages of the brothers are rabbinic, because the brothers are deaf and mute.
The reverse case is also discussed: two deaf-mute sisters who are married to two brothers. Again, the brothers may both be competent, both may be deaf and mute, or one may be competent and one deaf and mute. The teaching discusses what happens when one of the brothers dies without children.
These women are exempt from both the ritual of release and the levirate marriage because each is considered the sister of the surviving brother’s wife. Normally, a woman’s sister is forbidden to him as the sister of his wife, and that prohibition prevents the levirate marriage. Even though the marriages in this teaching are rabbinic, and the levirate bond is also rabbinic, the prohibition involving the sister of one’s wife overrides the rabbinic levirate bond.
The reasoning is as follows. When one of the brothers dies, a rabbinic bond is created between the surviving brother and the widow. At the same time, there is a rabbinic prohibition against marrying his wife’s sister. One might have thought that the levirate bond should override the prohibition, or that the two rabbinic rules should be weighed against each other. The ruling is that the prohibition involving the wife’s sister takes precedence and dissolves the levirate bond. Therefore, neither levirate marriage nor the ritual of release is performed.
The teaching then discusses a case in which the women are not sisters. In that case, there is no prohibition involving the wife’s sister. Since the marriages and the levirate bonds are all rabbinic, the surviving brother may perform the levirate marriage, and afterward he may divorce her through a rabbinic bill of divorce.
The Gemara asks why we do not make a protective decree in this case as well. If we permit a deaf-mute brother to divorce a woman who came to him through a rabbinic levirate bond, people might confuse that with a case in which the deceased brother was competent and the levirate bond was from the Torah. The Gemara answers that this is precisely the type of decree that could have been made, but the teaching indicates that in this situation the Sages did not make it. The two cases are sufficiently distinct, or the circumstances are sufficiently clear, that the divorce is permitted.
The Gemara returns to the earlier discussion. The original answer was that the teaching prohibiting the divorce is dealing with a woman who fell to a deaf-mute brother from a competent brother. The deceased brother’s marriage was from the Torah, and therefore the levirate bond is from the Torah. The deaf-mute brother cannot dissolve that bond through writing. The other cases involving entirely rabbinic marriages do not establish a contradiction.
The Gemara then returns to the question of whether one follows the writing of a person who was deaf and mute from the beginning. The more lenient view is speaking about someone who was competent and then became deaf and mute. Since he had full understanding originally, and since he can now express himself in writing, his writing can establish his intention. The stricter view maintains that even in that case writing does not suffice.
Rabbi Yohanan says that the two opinions disagree. The first opinion does not accept the writing even when the person was originally competent. Rabban Shimon ben Gamliel does accept it. Thus, Rav’s ruling follows Rabban Shimon ben Gamliel.
The Gemara seeks support from the Mishnah in Yevamot, which says that when a husband becomes deaf and mute after the marriage, he may not divorce his wife. The Mishnah adds a phrase indicating that he may not divorce her permanently or in any manner. The Gemara suggests that this phrase teaches that even if he can communicate through writing, he still cannot divorce her. That would support the stricter opinion and contradict Rabban Shimon ben Gamliel.
Abaye explains that the additional wording can be understood as follows: even if the person can communicate through writing, he may not divorce her in the condition in which he presently stands. The wording does not necessarily establish that writing can never help. If he demonstrates through writing that he is fully competent, perhaps he can then be treated as competent for this purpose.
However, without Rabbi Yohanan’s statement that the two opinions disagree, this would not be a definitive proof. The Mishnah could be understood as following the first opinion, while the case of a person who was competent and later became deaf and mute could still be treated differently. Once Rabbi Yohanan teaches that the opinions disagree, the Mishnah can be understood as supporting the stricter position.
Another possibility is that the phrase in the Mishnah means only that, according to Torah law, a deaf-mute person cannot divorce. If he later demonstrates through writing that he is competent, the writing may help. The Mishnah is emphasizing the level of the prohibition, not eliminating every possible way for him to demonstrate his competence.
The Gemara then discusses a woman who became mentally incompetent after her marriage. A woman does not need to consent in order for her husband to divorce her. Even if she is protesting and saying that she does not want the divorce, the husband can ordinarily give her a bill of divorce. Why, then, does the Mishnah say that a husband may not divorce a wife who became mentally incompetent?
The answer is that the Sages prohibited it as a protective measure. A woman who is mentally incompetent cannot protect herself properly. If her husband were to divorce her and remove her from his home, she might become vulnerable to exploitation or immorality. The Sages therefore prohibited the husband from divorcing her, even though the divorce would otherwise be effective under Torah law.
This also helps explain the distinction between the two sides of the Mishnah. In the case of a woman who became mentally incompetent, the prohibition is rabbinic. In the case of a husband who became deaf and mute, the issue is that, under Torah law, he lacks the necessary competence to divorce. The use of the expression indicating that he cannot divorce in any manner emphasizes the Torah-level limitation in that case.
Nevertheless, if the husband can demonstrate through writing that he is actually competent, that may change his status. The way to demonstrate this is through writing. If he can write appropriate instructions and show that he understands what he is doing, his writing may establish that he is competent. This is the basis of the more lenient opinion.
We now move to the next Mishnah. Earlier, we learned about a person who told two people, “Give a gift to my wife,” or who told three people, “Write a bill of divorce and give it to my wife.” In the case of two people, they must carry out the instructions themselves; they may not appoint someone else. In the case of three people, since three people constitute a court, they may appoint others to carry out the instructions.
The new Mishnah discusses a person who was healthy, or a person who was dangerously ill, and who said, “Write a bill of divorce for my wife.” He did not say, “You write it.” The people asked a scribe to write it, and the scribe wrote it. They then instructed other witnesses to sign it. Finally, they gave the bill of divorce to the husband, and the husband gave it to his wife. The bill of divorce is invalid.
The reason is that the husband must instruct the scribe to write the bill of divorce and must instruct the witnesses to sign it. In this case, the people who heard him did not themselves write the bill of divorce or sign it. They transferred the instructions to other people, even though the husband had not authorized them to do so in the necessary manner.
One might ask why these people were involved in the first place. They may have approached the dangerously ill man because they were concerned that he might die and that his wife would then fall to levirate marriage. They wanted to determine whether they should arrange a bill of divorce for her. He responded, “Write.” The Mishnah teaches that his statement is sufficient to authorize these particular people to write and deliver the bill of divorce, but it does not authorize them to transfer the task to others.
The Gemara analyzes the wording. If the husband had said, “Give it,” without saying, “Write it,” perhaps the people could appoint others. Since he said only, “Write,” he may have been particular that those specific people write it themselves. Perhaps he was embarrassed to have others know that he was arranging a bill of divorce, and therefore he intended only the people standing before him.
The Gemara asks: If he had said, “Give it,” without saying, “Write it,” would the people be allowed to instruct others to write and sign it? One possibility is that when he says “give it,” he is appointing them as a court, and they may arrange everything necessary. Another possibility is that the same limitation applies and that only the husband can directly appoint the scribe and the witnesses.
This issue depends on a dispute between Rabbi Meir and Rabbi Yosei. Rabbi Meir maintains that words can be transferred from one agent to another. A person who appoints agents verbally may authorize them to appoint additional agents. Rabbi Yosei maintains that words cannot be transferred in this manner. The original principal must directly appoint the person who is to carry out the instruction.
According to Rabbi Meir, the first part of the Mishnah can be understood easily. Since the husband said only, “Write,” the people are restricted to carrying out that instruction themselves. If he had said, “Give it,” they might have been able to appoint others. According to Rabbi Yosei, however, even a clear instruction to give the bill of divorce cannot be transferred from one agent to another. The husband himself must directly appoint the people who will write and sign it.
The Gemara asks why the Mishnah uses the phrase “until the husband says” that the bill of divorce should be written, signed, and given. If the issue is merely that the first agents cannot transfer the instruction, the Mishnah should say that the agents may not appoint others. Why does it return to the husband and require his direct instruction?
The Gemara answers that the wording of the Mishnah may follow Rabbi Yosei. According to Rabbi Yosei, the only way the process can be valid is for the husband to give the instruction directly to the scribe and to the witnesses. The first agents cannot transfer the instruction to them.
There is an additional discussion concerning the scribe’s role. A previous Mishnah stated that if a scribe wrote the bill of divorce for its proper purpose and witnesses signed it for its proper purpose, the bill of divorce is valid. This appears to indicate that the scribe may also serve as a witness, or at least that his involvement can be recognized in the process.
The Gemara asks which opinion that Mishnah follows. If Rabbi Yosei is the author, there is no concern that the husband’s instructions will be transferred improperly, because the scribe cannot be appointed by the first agents. The husband must appoint him directly. If Rabbi Meir is the author, there would be a concern that the first agents might appoint the scribe and that the scribe would then sign as a witness even though the husband did not intend to appoint him in that capacity.
The Gemara therefore suggests returning to the original interpretation: the first part of the Mishnah follows Rabbi Meir, while the latter part follows Rabbi Yosei. According to Rabbi Meir, when the husband says only, “Write,” the agents cannot transfer the instruction, because his wording indicates that he wants those specific people to write. Had he said, “Give it,” the wording might authorize them to arrange the writing and delivery.
According to Rabbi Yosei, however, neither “write” nor “give” is enough for the agents to transfer the assignment. Even if the husband said, “Give it,” the husband must directly instruct the scribe and the witnesses. The Mishnah’s reference to the husband’s instruction is therefore necessary according to Rabbi Yosei.
The Gemara then explains that the Mishnah may be written in the style of “not only.” It first teaches the more obvious case: when the husband said, “Write,” the agents cannot appoint others. One might have thought that if he said, “Give it,” they could appoint others, because the emphasis would be on delivery rather than on the identity of the writers. The Mishnah teaches that even in that case the agents cannot transfer the instruction. The husband must appoint the people directly.
Thus, according to Rabbi Yosei, the entire Mishnah can be understood consistently. The agents cannot transfer the husband’s verbal instructions to other people. The scribe and the witnesses must be instructed directly by the husband. The phrase “until the husband says” is therefore essential: only a direct instruction from the husband can establish the agency required for the writing, signing, and delivery of the bill of divorce.
The Gemara brings a baraita in support of this approach. If the scribe wrote the bill of divorce for its proper purpose, the witnesses signed it for its proper purpose, and the bill of divorce was given to the husband and then to the wife, it is nevertheless invalid until the scribe and the witnesses hear the husband say directly that they should write and sign it.
What are they supposed to hear from him? They must hear the husband’s direct instruction. The point is not merely that the bill of divorce was written and signed properly. The scribe and witnesses must have been appointed by the husband himself. If they heard the instruction only from other agents, the appointment is invalid according to Rabbi Yosei.
This baraita supports Rabbi Yosei’s position that verbal instructions cannot be transferred from one agent to another. The husband must address the scribe and the witnesses directly. The validity of the bill of divorce depends not only on the technical writing and signing, but also on the proper appointment of the people who perform those actions.
The Gemara connects this issue to the earlier discussion about a person who cannot speak but can write. The question there was whether writing can establish his intention. The stricter opinion maintains that writing does not suffice when the Torah requires a verbal instruction. The more lenient opinion allows writing when the person was competent originally and became unable to speak later.
Accordingly, there are two separate questions. One question is whether a person who cannot speak may communicate his own intention through writing. The other is whether an agent who received an instruction from the husband may transfer that instruction to another person. Even if writing can establish the husband’s intention in certain cases, that does not automatically mean that an agent may appoint a second agent. The rules governing the husband’s intention and the rules governing agency must remain distinct.
The overall conclusion is that when the husband’s instruction is verbal, the identity of the person receiving the instruction matters. According to the view that verbal instructions cannot be transferred, a scribe cannot rely on the words of the first agents. He must hear the instruction from the husband himself. Likewise, the witnesses must be appointed directly by the husband.
When the husband says only, “Write,” there is an additional concern that he intended those specific people to write the bill of divorce. When he says, “Give it,” there may be greater room to view the people as a court or as agents responsible for the entire process. Even so, according to Rabbi Yosei, they still cannot transfer the verbal appointment to others. The husband must directly establish the agency of the scribe and the witnesses.
That is the conclusion of the discussion: the validity of the bill of divorce depends on the husband’s direct instruction, the proper appointment of the scribe and witnesses, and the distinction between writing a person’s own intentions and giving testimony about a past event. Each of these matters has its own rules, and the Gemara carefully prevents us from merging them into one general principle.