Torah Community Connections

Week 56 - Friday - 22 December 2000

YEVAMOT: CHAPTER 12: MISHNAH 4

If a male deaf-mute was subjected to halitzah, or a female deaf-mute performed halitzah, or a woman performed halitzah on a minor -- their halitzah is invalid. If a girl who is a minor performed halitzah, she must perform halitzah when she is of age; and if she did not perform halitzah, her halitzah is invalid.

Kehati

If a male deaf-mute -- who neither hears nor speaks, was subjected to halitzah -- from his yevamah. The mishnah here uses the passive voice of the verb, rather than the usual active voice, because the deaf-mute is not mentally competent to have the intention of releasing her by the halitzah (see our explanation of 2:2, above),

Or a female deaf-mute performed halitzah, or a woman performed halitzah on a minor -- to a yavam who is less than thirteen years and one day old, or who has not produced two hairs, their halitzah is invalid -- the male deaf-mute who was submitted to halitzah does not exempt his yevamah by his halitzah where there is another, fit, brother (Rashi; Nimukei Yosef; see also Tosefot Yom Tov); the female deaf-mute who performed halitzah is not released by her halitzah, and yibum is the only measure available to her. The halitzah of the woman who performed halitzah on a minor is invalid -- since she may not undergo yibum after this halitzah, and she requires another, valid, halitzah in order to be permitted to marry any man. This mishnah follows the opinion of Rabbi Meir, who holds that the halitzah of a minor invalidates her from undergoing yibum; the Sages, however, hold that the halitzah of a minor is of no legal significance, and it does not debar her from undergoing yibum (Rambam; Bartenura). The Gemara states that the reason why the halitzah of a male deaf-mute and that of a female deaf-mute is invalid is because they cannot recite the verses. Although it was taught, above, that the recital is not essential for halitzah, this is so only in the case of people who are capable of reciting. But if no recital can take place, it impairs the halitzah. It follows from this that the halitzah of the male mute and of the female mute also is invalid. According to another opinion, the halitzah of the male mute and that of the female mute specifically is termed invalid, since they are unable to recite, but the halitzah of the male deaf-mute and that of the female deaf-mute is, in principle, of no legal significance, because they are not mentally competent (Rambam, Hil. yibum 4:13; see also Maggid Mishneh, who explains how this mishnah may be resolved with Rambam's interpretation).

If a girl who is a minor performed halitzah -- on an adult, she must perform halitzah when she is of age -- in order to permit her to marry; and if she did not perform halitzah -- when she came of age, her halitzah is invalid -- according to another version, "her halitzah is valid," for, bedi'avad, the halitzah of a girl who is a minor is valid (Jer. Talmud; R. Yitzhak Alfasi; see also Tosefot Yom Tov). The reason that the law distinguishes between a male minor and a female minor is that the male minor is excluded since the Torah states about halitzah: "And if the man does not want," which implies: "man," and not a male minor, but "woman" is not stated in this passage. Those who hold, however, that the correct version is "her halitzah is invalid" (as in the version before us), it is because we compare the woman to the man, in accordance with the opinion of Rabbi Meir (Yev. 105b; see Tosefot, ad loc.).

YEVAMOT: CHAPTER 12: MISHNAH 5

If she performed halitzah before two, or there, and one of them is found to be a relative or ineligible -- her halitzah is invalid. Rabbi Shimon and Rabbi Yohanan HaSandlar declare it valid. It once happened that someone submitted to halitzah when he and she were alone together in prison, and the case came before Rabbi Akiva, and he declared it valid.

Kehati

It was taught in 12:1, above, that the mitzvah of halitzah must be performed before a Court of three. This mishnah discusses a halitzah which was performed before two.

If she performed halitzah before -- a Court of two members, or she performed halitzah before a Court of three members, and one of them is found to be a relative -- of the yavam or of the yevamah, or is ineligible -- to give testimony and to sit in judgment, and only two qualified ones remained, her halitzah is invalid -- because halitzah is valid only if performed before three.

Rabbi Shimon and Rabbi Yohanan HaSandlar declare it valid -- though performed before fewer than three.

It once happened that someone submitted to halitzah when he and she were alone together in prison -- the Gemara explains that this refers to a case in which two witnesses saw it from outside the prison, and the case came before Rabbi Akiva -- who, the Gemara explains, was imprisoned and he declared it valid -- the halitzah. The halakhah follows the First Tanna.

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