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Week 57- Thursday - 28 December 2000

YEVAMOT: CHAPTER 13: MISHNAH 10

A woman of sound senses and a deaf-mute woman: if the yavam had intercourse with the woman of sound senses and then with the deaf-mute woman, or his brother had intercourse with the deaf-mute woman -- he has not disqualified the woman of sound senses; if the yavam had intercourse with the deaf-mute woman, and then with the woman of sound senses, or his brother had intercourse with the woman of sound senses -- he has disqualified the deaf-mute woman.

Kehati

If a man was married to a woman of sound senses -- who is not a deaf-mute, and a deaf-mute woman -- and he died, childless: if the yavam had intercourse with the woman of sound senses, and then with the deaf-mute woman, or his brother had intercourse with the deaf-mute woman -- he has not disqualified the woman of sound senses -- for he fully married her by his intercourse, and his intercourse with the deaf-mute afterwards is merely a licentious act; Rambam writes that the deaf-mute requires a bill of divorce (Hil. Yibum 5:29; see also Maggid Mishneh, ad. loc.);

If the yavam had intercourse with the deaf-mute woman -- first, and then with the woman of sound senses, or his brother had intercourse with the woman of sounds senses -- since the marriage contracted with the deaf-mute is not fully valid, and the subsequent marriage of the woman of sound senses is fully valid, he has disqualified the deaf-mute woman -- Rambam writes (ib.) that the deaf-mute goes out with a bill of divorce, and the woman of sound senses goes out with a bill of divorce and halitzah (ibid.). Maggid Mishneh (ad loc.) explains that the deaf-mute goes out with a bill of divorce because the act of intercourse with her was lawful, and a bill of divorce suffices for her; the woman of sound sense goes out with a bill of divorce and by halitzah, because the intercourse with her was an unlawful act (ibid.).

YEVAMOT: CHAPTER 13: MISHNAH 11

An adult woman and a minor: if a yavam had intercourse with the adult woman, and then with the minor, or his brother had intercourse with the minor -- he has not disqualified the adult woman; if a yavam had intercourse with the minor, and then with the adult woman, or his brother had intercourse with the adult woman -- he has disqualified the minor girl. Rabbi Elazar says, They teach the minor girl to refuse him.

Kehati

An adult woman and a minor -- who were married to one man, and he died: if a yavam had intercourse with the adult woman, and then with the minor, or his brother had intercourse with the minor -- he has not disqualified the adult woman -- since he had already acquired her fully by his act of intercourse, and the intercourse with the minor is only a licentious act;

If a yavam had intercourse with the minor -- first, and then with the adult woman, or his brother had intercourse with the adult woman -- he has disqualified the minor -- for his marriage with her is doubtful, and both are prohibited to him.

Rabbi Eleazar says, They teach the minor girl to refuse him -- the yavam, in order to fulfill the mitzvah of yibum on the adult woman.

This mishnah quotes Rabbi Eleazar, i.e., Rabbi Eleazar ben Shamus, a pupil of Rabbi Akiva; the Rabbi Eliezer cited above in mishnah 7 ("Rabbi Eliezer says, They teach the minor to refuse him") is Rabbi Eliezer ben Hyrkanus, a pupil of Rabban Yohanan ben Zakkai (Nid. 8a; Rashi; Tosefot Yom Tov).

According to one version, Rabbi Eleazar states in our mishnah, "In all of them they teach the minor to refuse him" (R. Yitzhak Alfasi; Rashba; Ramban; Bartenura). I.e., also in the case of the deaf-mute and the minor they teach the minor to refuse the yavam. Rashba writes that if the yavam had intercourse with the deaf-mute, and then either he or his brother had intercourse with the minor, they teach the minor to refuse him, and the deaf-mute stays with him, since the yibum tie of the minor was completely severed by her Refusal, and she is not regarded as her rival at all. Although, according to one opinion in the Gemara, a minor may exercise Refusal only against the yavam's ma'amar (i.e., if he married her by ma'amar she may refuse and thereby make the marriage void, so that she does not require a bill of divorce to sever the ma'amar marriage), but not against her tie to him (the Refusal does not cancel her tie to the yavam) (Yev 107a). The halakhah, however, follows the opinion that she may exercise Refusal even against her tie to him, since by her Refusal of the yavam she renders her first marriage void, and there no longer is a yibum tie in such a case (Yev. 107b). Rambam, however, writes regarding the case of the minor and the deaf-mute: "If the yavam first has intercourse with the deaf-mute, and then he or his brother has intercourse with the minor, he has disqualified the deaf-mute, and they teach the minor to refuse, and the deaf-mute goes out with a bill of divorce" (Hil. Yibum 5:28). According to Rashba, Rambam's ruling ("and the deaf-mute goes out with a bill of divorce") is surprising, since the minor has completely severed her tie to the yavam when she refused him (see Kesef Mishneh, ad loc.). Ravad is critical of Rambam's ruling that they teach the minor to refuse, for according to his opinion Rabbi Elazar's statement that "They teach the minor to refuse him" refers only to the case of an adult and a minor, in order to fulfill the Torah mitzvah of yibum, but does not refer to the case of the deaf-mute and the minor, where marriage of both is only by Rabbinic law, and the Sages said that one should always keep away from Refusal. Indeed -- Ravad writes -- our version of the statement of Rabbi Eleazar does not include the phrase "In all of them." Ramban, however, writes that there are versions which do read "in all of them"; this also is the version of the Tosefta, and also refers to the case of a deaf-mute and a minor, that they teach her to refuse, since the reason for the Sages' recommendation, "a person should always keep away from Refusal" is lest she regret this after she has come of age. In this case, however, the minor goes out in any event, for if she is not able to refuse, she must wait until she comes of age and performs halitzah, and why should she remain in a state of limbo and wait until she comes of age, perform halitzah, and be disqualified from marry a priest, and the deaf-mute be rendered prohibited to her husband, who had married her lawfully?! (Sefer ha-Zekhut; see also Tosefot Yom Tov).

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