The Eri B. Sitt edition and audio series of the Talmud Bavli, Massechet Gittin, has been sponsored by our good friend and loyal student of the daily Talmud cycle, Mr. Haim Idana, and his dear wife. He has dedicated this tractate according to the principle taught by our Rabbis: when a person studies something, that study can avert the matter from occurring. We therefore study Gittin so that it will remain in the realm of learning and never come to fruition in actuality. May he, his dear wife, and all the Jewish people be blessed with peace in the home, success, prosperity, and blessing in all their endeavors. Amen.
We are beginning three lines from the bottom, where the discussion becomes broader. We previously discussed the case in the Mishnah of a husband who became paralyzed. They asked him, “Shall we write a bill of divorce for your wife?” He nodded. That is the case described in the Mishnah.
We explained that they test him three times to determine whether he is coherent. If he gives the correct answers three times, whether by nodding yes or no, then we accept his gesture when he nods that he wants a bill of divorce to be written.
The Gemara asks: Perhaps he has simply become caught up in the motion of nodding. Perhaps the nodding has taken over, and merely because he nods his head three times, there is no indication that he understands what is happening. Maybe his head is simply moving in that direction, and he is nodding to everything without being coherent.
Therefore, one should not ask him three questions consecutively. Rather, one asks him a question, waits for an interval, and then asks another question. In that way, it is not simply a continuous back-and-forth movement of the head.
But the Gemara raises another possibility: perhaps he is simply locked into the mode of answering yes at intervals. Therefore, one should not ask him three questions requiring the same answer. One asks two questions whose answers are yes and one whose answer is no, or the reverse—two no answers and one yes answer. If he gives the correct answers in that pattern, it is clear that he is not merely making random movements. He understands what he is doing.
They ask him a summer question during the winter and a winter question during the summer. What does that mean? For example, a cloak is a garment that provides warmth, while a sheet does not provide sufficient warmth. During the summer, when it is very hot, they ask him, “Do you want a cloak?” Naturally, he should indicate no. During the winter, they ask him, “Do you want a sheet?” Since a sheet will not keep him warm enough, he should again indicate no.
The Gemara says that even this is not necessarily an indication of coherence. Perhaps, if he answers yes to a cloak in the summer, he is coherent but suffering from a chill. Likewise, if he answers yes to a sheet in the winter, perhaps he is hot and therefore wants a lighter covering. Thus, the way he responds to a summer question in the winter, or to a winter question in the summer, does not by itself prove that he understands.
What questions should they ask? They should ask about seasonal fruit. For example, watermelon is available in the summer. During the winter, they ask him whether he wants some watermelon. Conversely, they can ask him during the summer about a fruit associated with the winter, such as apples. The point is to ask questions about things that are out of season.
There is an additional qualification. If he merely shakes his head, that does not necessarily show that he is competent. The explanations indicate that he must demonstrate that he understands the foolishness of the question. If someone asks, “Do you want watermelon in the winter?” it is not enough for him simply to shake his head no because he does not want it. His gesture must show that he understands that the question itself is unreasonable: “What kind of question is that? Watermelon in the winter?” In this way, he demonstrates that he is indeed competent.
Once they test him three times with questions of this kind, they can assume that when he indicated that he wanted a bill of divorce written, he was responding knowingly. Even though he cannot speak, he is reacting with understanding, and the bill of divorce may therefore be written.
The Gemara cites a teaching of Rav, transmitted by Rav Kahana. This is the novelty of Rav Kahana in the name of Rav: the case concerns a deaf-mute, someone who neither speaks nor hears. Rashi points out that this person had been fully competent when he married. We know that when a competent person marries, the marriage is valid on a biblical level, and it is a complete marriage.
If afterward he becomes a deaf-mute, or becomes mentally incompetent, he is stuck. His marriage took effect on a biblical level, and he cannot undo a biblical marriage through a rabbinic mechanism. A deaf-mute can ordinarily effect a divorce only on a rabbinic level, and that is insufficient to dissolve a marriage that took effect on a biblical level.
The same would apply in the reverse case. If she was competent when she married and afterward became mentally incompetent or a deaf-mute, the marriage cannot be undone in that manner.
Rav Kahana’s novelty is that if the husband is a deaf-mute but knows how to write, he is considered competent for this purpose. Even though he is a deaf-mute, if he can communicate in writing, he can write on paper or on a cloth, “Give this bill of divorce to my wife,” and he can thereby divorce her. That is the novelty of Rav Kahana in the name of Rav.
Rav Yosef asks Rav Kahana: We have just learned this already. The husband in the Mishnah became paralyzed and could not speak. They asked whether a bill of divorce should be written for his wife, and he nodded. They tested him with three questions, as we have learned. We already know, then, that verbal communication is not required. The Mishnah teaches that even if a man can do nothing more than nod his head, that is sufficient indication that he understands and that a bill of divorce may be written. Why, then, is it necessary to teach that if a man can write, the bill of divorce is valid? We should know that from the Mishnah.
The Gemara answers that the case in the Mishnah is different. The Mishnah is discussing someone who can hear but cannot speak. He has only one deficiency. He is an otherwise competent person who is unable to speak, and he is called a mute. The novelty of the Mishnah is that he is still considered competent, but his competence must be tested. If he can answer questions by nodding—yes, yes, no, and no—that is sufficient.
The case of Rav Kahana, however, concerns a full-fledged deaf-mute: he neither hears nor speaks. Rav Kahana’s novelty is that even such a person is considered competent if he can communicate through writing. That cannot be learned from the Mishnah, because Rav Kahana is extending the principle to a more serious case.
Thus, in the Mishnah, the man is a mute who can hear. The novelty is that although he cannot speak, he is considered a competent person, provided that his understanding is tested. In Rav Kahana’s case, the man is a full-fledged deaf-mute, and the novelty is that writing is sufficient to establish his competence.
The Gemara then clarifies the terminology. When the Sages speak of a deaf person, they generally mean someone who cannot hear. A mute is someone who cannot speak. Both are nevertheless considered competent because each has only one disability. The one can speak but cannot hear, and the other can hear but cannot speak.
How do we know these terms? The verse says, “I am like a deaf person who does not hear, and like a mute who does not open his mouth.” The word for deaf person refers to someone who cannot hear, while the word for mute refers to someone who cannot speak. There is also an interpretation based on the popular expression that the speech was taken away from him, which explains the terminology for a mute. In any event, these terms teach us that a deaf person and a mute person are both considered competent when they have only one of these deficiencies.
Rav Yosef’s question to Rav Kahana is therefore resolved. The Mishnah has no bearing on Rav Kahana’s case. The Mishnah discusses a competent person who became a mute and can hear. Rav Kahana discusses a full-fledged deaf-mute, and his novelty is that such a person can still be considered competent if he can communicate in writing.
The Gemara then restates Rav Yosef’s question in a different form. Suppose a person knows testimony concerning his fellow. He is required to testify, and the court asks him whether he knows anything about the matter. He swears that he knows nothing, but afterward it becomes clear that he did know the testimony. The law is that he brings an offering for a false oath concerning testimony. The Torah requires him to make the oath verbally.
The verse says that a person is liable only if he is capable of giving testimony. It excludes a mute who cannot testify verbally. If the court asks the mute, “Do you swear that you do not know any testimony?” and he nods his head, that is not sufficient. The verse requires him to be capable of speaking. Since he cannot speak, he is not liable for the offering.
Rav Yosef asks: According to Rav Kahana, who says that competence can be established through writing, why should this mute not be liable? He can communicate through writing. If the court asks him whether he knows the testimony, he can write the answer. Just as Rav Kahana teaches that writing is sufficient in the case of a bill of divorce, writing should also be sufficient in the laws of testimony. Why, then, does the Torah require him to speak verbally?
Abaye answers: Are you speaking about ordinary testimony? Testimony is different. The Torah explicitly says that testimony must come “from their mouths,” and not from their written words. Written testimony is excluded. In the case of a bill of divorce, there is no requirement that the husband’s declaration come from his mouth; it is enough to establish that he is competent and wants the bill of divorce to be given. Testimony, however, has a special requirement that it be verbal.
The Gemara raises another question. We previously learned that when a person becomes paralyzed and can no longer move or speak, we test him through questions to determine whether he understands. Once we establish his competence, his transactions are valid. If he sells something, the sale is valid after his understanding has been tested through appropriate questions. Why, then, should testimony require verbal expression? If nodding is enough to establish that a person understands his wishes in the case of a bill of divorce and in other transactions, perhaps nodding should also suffice for testimony.
The Gemara answers that the question concerns a different category of testimony, the testimony required for inheritance. The issue is whether testimony about inheritance may be written. An individual who cannot speak could write, “I testify that so-and-so inherited the property of so-and-so.” This appears to show that even testimony can be given in writing.
The Gemara rejects that proof. The case of inheritance is not necessarily testimony about another person. It may involve a person writing about his own estate and his own intentions.
Consider the law of a firstborn son. Ordinarily, a firstborn receives a double portion of the inheritance. However, the father has the ability to declare that he wishes to give the firstborn only an equal portion, like all his other sons. If the father writes, “I gave my son an equal share,” he is not testifying about someone else’s inheritance. He is stating his own decision concerning his own property. That is not ordinary testimony about another person.
Likewise, when the text speaks of sales and gifts, it may mean that the person is writing about his own transactions: “I bought this item,” or “I received this gift.” He is not testifying that someone else bought the item or received the gift. He is recording his own acquisition. Therefore, these cases do not prove that ordinary testimony about another person may be given in writing.
The conclusion is that Rav Kahana’s ruling remains intact. A deaf-mute who can communicate through writing is considered competent for the laws of bills of divorce. His writing demonstrates that he understands and wishes the bill of divorce to be given. Since he originally married while he was competent, and the marriage took effect on a biblical level, his written communication allows the divorce to take effect on a biblical level as well.
However, nodding alone is not enough in Rav Kahana’s case. The man in the Mishnah was not a full-fledged deaf-mute. He became paralyzed but could still hear, and he was therefore considered competent. In that case, one need only establish through questions that he understands what is happening. In the case of a full deaf-mute, more is required: he must be able to communicate through writing.
The Gemara now raises another difficulty. A teaching states that in the case of a deaf-mute, we do not follow his gestures, his hand signals, or even his writing, except for transactions involving movable property. This appears to contradict Rav Kahana, who taught that writing is sufficient in the case of a deaf-mute who was originally competent. The earlier teaching seems to say that writing is not sufficient.
The Gemara answers that this is a dispute among the Tannaim. One Tanna disagrees with Rav Kahana, while another Tanna supports him.
A Baraita teaches in the name of Rabban Shimon ben Gamliel: When do we say that writing is not considered valid? When the person was a deaf-mute from birth. He never previously possessed the required capacity, and therefore his writing is not enough. But if he was originally competent and afterward became a deaf-mute, he may write and sign, and his writing is effective. This is precisely the position of Rav Kahana in the name of Rav.
The Gemara raises a further question against Rabban Shimon ben Gamliel. If a person was a deaf-mute from birth, how could he ever have married? If he entered the marriage through gestures, and the marriage was valid on a rabbinic level, then he should be able to leave through gestures as well. The general principle is that the manner by which a person enters a relationship can also be the manner by which he exits it.
The Gemara in Yevamot teaches that such a person may marry and may also leave the marriage at the same level. Why, then, does Rabban Shimon ben Gamliel say that a deaf-mute from birth cannot get out through gestures or writing?
The Gemara answers that if we were discussing his ordinary wife, the question would indeed be valid. If a deaf-mute from birth married an ordinary woman through a rabbinic marriage, then he should be able to end that marriage through the same type of gesture by which he entered it.
Here, however, the case may concern a woman who became subject to levirate marriage. The deaf-mute’s brother died, and his widow fell before the deaf-mute for levirate marriage. The bond created by levirate marriage is biblical. The only way to establish the marriage is through levirate marriage, because the deaf-mute cannot perform the verbal declaration required for release through the alternative procedure. Once he performs levirate marriage, the resulting marriage is biblical, and he cannot dissolve it through a mere gesture or through writing that has only rabbinic force.
This explains the statement that a deaf-mute from birth cannot leave through gestures: the case concerns a levirate marriage whose underlying bond was biblical. If it were merely an ordinary wife whom he had married through a rabbinic act, he could leave through the corresponding rabbinic act.
The Gemara asks what kind of levirate marriage is being discussed. If the woman had originally been married to a deaf-mute brother, then the first marriage was only rabbinic. When that brother dies, the levirate bond is also only rabbinic, and the deaf-mute should be able to end the relationship through a gesture.
Therefore, the first brother must have been competent. His marriage was biblical, and after his death the levirate bond was biblical as well. The surviving deaf-mute cannot perform the alternative procedure because he cannot speak, so he performs levirate marriage. Since he entered a biblical marriage, he cannot later leave it through a rabbinic gesture or through writing.
The Gemara offers a second explanation. Even if the deceased brother had been a deaf-mute and the levirate bond had been only rabbinic, the Sages may nevertheless have enacted a decree. They prohibited the deaf-mute from leaving through a gesture in the levirate case because of the possibility that people would confuse it with a case in which the deceased brother had been competent and the levirate bond was biblical.
According to this explanation, the Sages extended the restriction from the biblical case to the rabbinic case. The Gemara asks why such a decree would be made from an ordinary marriage to a levirate marriage. It answers that two levirate cases can easily be confused with one another, whereas an ordinary marriage and a levirate marriage are more clearly distinguishable.
Thus, there are two answers to the question concerning a deaf-mute from birth. The first answer limits the case to a biblical levirate marriage: the deceased brother had been competent, the marriage and the levirate bond were biblical, and the deaf-mute cannot dissolve the resulting marriage through a gesture. The second answer says that even when the levirate bond is only rabbinic, the Sages prohibited the deaf-mute from leaving through a gesture as a safeguard against confusion with a biblical levirate case.
The Gemara then challenges the second answer from a Mishnah in Yevamot. The Mishnah discusses two deaf-mute brothers who married two competent sisters, two deaf-mute sisters, or one deaf-mute woman and one competent woman. It also discusses two deaf-mute sisters who married two competent brothers, two deaf-mute brothers, or one competent brother and one deaf-mute brother.
In all these cases, if one of the brothers dies, the women are exempt from both the alternative procedure and levirate marriage. The reason is that the marriages of the deaf-mute parties are rabbinic, while the rule of levirate marriage permits a person to marry his brother’s wife only when no other prohibition intervenes. Levirate marriage overrides the ordinary prohibition against marrying one’s brother’s wife, but it does not override every other prohibition.
For example, if the two women are sisters, the surviving brother cannot marry the widow because she is also his wife’s sister. The prohibition concerning a wife’s sister remains in place, so there is neither levirate marriage nor the alternative procedure.
The Gemara says that this case is not the relevant challenge. The Mishnah also discusses a case in which the women are unrelated outsiders rather than sisters. Two brothers who are deaf-mutes may be married to two unrelated women. If one brother dies, the surviving brother cannot perform the alternative procedure because he cannot speak. What does he do? He performs levirate marriage.
If he later wants to end the relationship, he may do so through a bill of divorce. The marriage of the deaf-mute was rabbinic, the levirate bond in this case was rabbinic, and therefore the bill of divorce, which is effective on a rabbinic level in this situation, can dissolve the relationship.
This creates the difficulty. We see that the Sages did not make a decree prohibiting a deaf-mute from leaving a rabbinic levirate marriage through the means available to him. If the case of a deaf-mute from birth required a decree extending the restriction from a biblical levirate marriage to a rabbinic one, why does the Mishnah permit a deaf-mute in this case to perform levirate marriage and afterward leave through a bill of divorce?
The Gemara returns to the first answer. The correct explanation is that the case of the deaf-mute from birth concerns a levirate marriage in which the deceased brother had been competent. The first marriage was biblical, the levirate bond was biblical, and the deaf-mute entered a biblical marriage through levirate marriage. He cannot leave it through a gesture or through writing that is insufficient for a biblical divorce.
There is no need to create a general decree extending the restriction from a deaf-mute brother to a competent brother. The rabbinic case described in the Mishnah is different: the original marriage and the levirate bond were both rabbinic, so a rabbinic bill of divorce is sufficient.
The Gemara then returns to the Baraita of Rabban Shimon ben Gamliel. The first Tanna stated that in the case of a deaf-mute, we do not follow his gestures, hand signals, or writing, except in transactions involving movable property. Rabban Shimon ben Gamliel said that writing is invalid when the person was a deaf-mute from birth, but that a person who was competent and afterward became a deaf-mute may write and sign.
Rabbi Yohanan explains that Rabban Shimon ben Gamliel is not merely clarifying the words of the first Tanna; he is arguing with him. The first Tanna’s words imply that writing is never effective for a deaf-mute, regardless of whether he was deaf from birth or became deaf later. Rabban Shimon ben Gamliel disagrees and says that writing is effective when the person was originally competent and subsequently became a deaf-mute.
We find a similar distinction concerning a woman who becomes mentally incompetent. The teaching says that if she becomes mentally incompetent after marriage, she may not be divorced. If, however, a competent woman becomes a deaf-mute, she may be divorced. A regular woman does not need to possess the same level of understanding in order to receive a bill of divorce; she may be divorced even against her will. Nevertheless, the Sages prohibited divorcing a woman who became mentally incompetent, because she may later recover, and while she remains married she is protected from being treated as sexually abandoned or unprotected.
A deaf-mute is different. If a woman was competent and then became a deaf-mute, there is no reason to prevent the husband from giving her a bill of divorce. Even if she had remained competent, he could have divorced her. Her loss of speech or hearing does not create the same concern as mental incompetence.
The Gemara then examines the phrase stating that if the husband becomes a deaf-mute, he cannot divorce his wife “forever.” Why is the word “forever” necessary? Perhaps it means that even if he can communicate through writing, he cannot divorce her. That would support the position of the first Tanna, who disagrees with Rabban Shimon ben Gamliel and does not accept writing as an indication of competence even when the man had originally been competent.
Abaye explains that if Rabbi Yohanan had not taught that the two Tannaim were arguing, one could have interpreted Rabban Shimon ben Gamliel as merely explaining the first Tanna. The first Tanna would then be saying that a deaf-mute cannot divorce. Rabban Shimon ben Gamliel would clarify that this applies only to a deaf-mute from birth, whereas someone who was originally competent may divorce through writing.
Under that interpretation, the word “forever” would not necessarily mean that writing is ineffective. It could mean that as long as the man remains a deaf-mute, he cannot divorce in the ordinary manner, even if it appears that his condition has improved somewhat. One should not be misled by the appearance that he has regained some awareness. As long as he remains classified as a deaf-mute, he cannot divorce in the ordinary way; the special rule permitting writing would still apply according to Rabban Shimon ben Gamliel.
The Gemara offers another answer in the name of Rabbi Yitzhak. From the Torah itself, a mentally incompetent woman can be divorced. Even a minor does not need the same level of understanding in order to receive a divorce. The reason the Sages prohibited divorcing a mentally incompetent woman is a rabbinic decree, so that she would not be left unprotected and treated as available to anyone.
Accordingly, the two cases use different language. In the case of a woman who becomes mentally incompetent, the teaching says simply that she may not be divorced; it does not say “forever,” because on the biblical level she could be divorced and the restriction is only rabbinic. In the case of a husband who becomes a deaf-mute, the phrase “he cannot divorce forever” can be understood as referring to the biblical status of his inability to divorce, rather than as excluding the possibility of communication through writing.
However, Rabbi Yohanan teaches that Rabban Shimon ben Gamliel and the first Tanna are in fact arguing. According to Rabban Shimon ben Gamliel, a man who was competent and then became a deaf-mute may communicate through writing, and that demonstrates competence. According to the first Tanna, even such writing is not sufficient.
We therefore have a fundamental dispute concerning a competent person who later becomes a deaf-mute. Does communication through writing indicate that he remains competent for the purpose of divorce? The first Tanna says no. Rabban Shimon ben Gamliel says yes. Rav Kahana, in the name of Rav, follows Rabban Shimon ben Gamliel.
In contrast, the case of the Mishnah is different. There, the man became paralyzed but could still hear. He was not a full deaf-mute. He remained a competent person, and the only question was how to establish that he understood what he was doing. They therefore ask him three questions, including questions with alternating answers and questions concerning matters that are out of season. If he answers correctly and demonstrates that he understands the questions, he may signal that he wants the bill of divorce written.
That is the conclusion: in the case of a full deaf-mute, writing is the subject of a dispute among the Tannaim. The first Tanna does not accept writing as sufficient, while Rabban Shimon ben Gamliel does, provided that the person was originally competent and only afterward became a deaf-mute. Rav Kahana in the name of Rav follows Rabban Shimon ben Gamliel.
In the Mishnah’s case, however, the man can hear and is therefore considered competent. Once his understanding has been established through the three tests—by asking questions whose answers alternate between yes and no, by leaving intervals between the questions, and by asking about matters that are inappropriate for the season—his nodding is sufficient to authorize the writing of the bill of divorce.
May the One who grants understanding grant us understanding in the study of His Torah. Amen.