Gittin 71

אלא בפירי

Rather, it means that the court asks him questions with regard to produce that is not found during that season.

אמר רב כהנא אמר רב חרש שיכול לדבר מתוך הכתב כותבין ונותנין גט לאשתו אמר רב יוסף מאי קא משמע לן תנינא נשתתק ואמרו לו נכתוב גט לאשתך והרכין בראשו בודקין אותו שלשה פעמים אם אמר על לאו לאו ועל הן הן הרי אלו יכתבו ויתנו

Rav Kahana says that Rav says: With regard to a deaf-mute who can express himself through writing, the judges of the court may write and give a bill of divorce to his wife based on his written instructions. Rav Yosef said: What is he teaching us? We already learned in the mishna: In a case where the husband became mute, and the members of the court said to him: Shall we write a bill of divorce for your wife, and he nodded his head indicating his agreement, they examine him with various questions three times. If he responded to questions that have a negative answer: No, and responded to questions that have a positive answer: Yes, indicating his competence, they shall write the bill of divorce and give it to his wife based on the nod of his head.

אמר ליה רבי זירא אלם קאמרת שאני אלם דתניא מדבר ואינו שומע זהו חרש שומע ואינו מדבר זהו אלם וזה וזה הרי הן כפקחין לכל דבריהם

Rabbi Zeira said to him: A mute, you say? Is your challenge based on the mishna which discusses one who is mute? A mute is different because it is clear that his mind is intact. As it is taught in a baraita (Tosefta, Terumot 1:2): With regard to one who speaks but cannot hear, this individual is categorized as a deaf person. With regard to one who hears but cannot speak, this individual is categorized as a mute person, and both this one and that one are considered to be like halakhically competent people with regard to all their matters. Rav Kahana stated his ruling with regard to one who can neither hear nor speak. This goes beyond the halakha of the mishna, as Rav Kahana says that the written statement of a deaf-mute is an indication of his mental competence.

וממאי דמדבר ואינו שומע זהו חרש שומע ואינו מדבר זהו אלם דכתיב ואני כחרש לא אשמע וכאלם לא יפתח פיו ואי בעית אימא כדאמרי אינשי אישתקיל מילוליה

The Gemara asks: And from where do we learn that one who speaks but cannot hear, this individual is categorized as a deaf person, and that with regard to one who hears but cannot speak, this individual is categorized as a mute person? As it is written: “And I am like a deaf man, I do not hear, and like the mute man who will not open his mouth” (Psalms 38:14). And if you wish, say as people say: The word for a mute [ilem] is a contraction of the expression his speech has been taken [ishtakil millulei].

אמר רבי זירא אי קשיא לי הא קשיא לי דתניא אם לא יגיד פרט לאלם שאינו יכול להגיד אמאי הא יכול להגיד מתוך הכתב

Rabbi Zeira said: If Rav Kahana’s statement is difficult for me, this is difficult for me, as it is taught in a baraita with regard to the punishment of one who was called to testify and failed to do so: “If he does not utter his testimony then he shall bear his iniquity” (Leviticus 5:1). The Sages derive from this that the verse serves to exclude a mute who is unable to utter his testimony, and he is exempt from bringing the offering of one who refuses to testify. And it is possible to raise the following question: Why is he exempt from bringing the offering; but he is able to utter his testimony through writing? Apparently, written testimony is not valid testimony.

אמר ליה אביי עדות קאמרת שאני עדות דרחמנא אמר מפיהם ולא מפי כתבם

Abaye said to him: You say testimony? Testimony is different, as the Merciful One states: “From their mouths” (Deuteronomy 17:6), which emphasizes that testimony must come from the witnesses’ mouths and not from their writing.

מיתיבי כשם שבודקין אותו לגיטין כך בודקין אותו למשאות ולמתנות ולעדיות ולירושות קתני מיהת עדיות

The Gemara raises an objection to this based on that which is taught in a baraita (Tosefta 7:1): Just as the judges of the court investigate him, one who lost his ability to speak, with regard to bills of divorce, so too, the judges investigate him with regard to business transactions, testimonies, and inheritances. In any event it teaches: Testimonies, which proves that even one unable to speak can give testimony.

אמר רב יוסף בר מניומי אמר רב ששת בעדות אשה דאקילו בה רבנן

Rav Yosef bar Minyumi said that Rav Sheshet said: This is not referring to testimony in general. Rather, it is referring to testimony with regard to a woman whose husband died, as the Sages were lenient with her and allowed testimony that would normally not be accepted, in order to permit her to remarry.

והא קתני ירושות אמר רבי אבהו ירושת בנו הבכור

The Gemara challenges: But isn’t it also taught: Inheritances. This seems to be referring to monetary matters, where proper testimony is required. Rabbi Abbahu said: The baraita is referring to the inheritance of his own firstborn son, meaning that he is not testifying about other people’s property but testifying which one of his sons is the firstborn. Since this testimony is merely considered to be a division of the property that belongs to him, the testimony of one who is unable to speak is valid.

קתני מיהת למשאות ולמתנות מאי לאו לעלמא לא לדידיה

The Gemara continues to challenge: In any event it teaches in the baraita: With regard to business transactions, what, does it not mean that a mute may testify with regard to business transactions for everyone else? The Gemara answers: No, he may testify for himself only. The baraita is saying that when a mute conducts business the court must first check if he is mentally capable.

מיתיבי חרש לא הלכו בו אחר רמיזותיו ואחר קפיצותיו ואחר כתב ידו אלא במטלטלין אבל לא לגיטין

The Gemara raises an objection from a baraita: With regard to a deaf-mute, the judges of the court follow his signals, and follow the movement of his lips, and follow his handwriting only for matters of buying and selling movable property but not for bills of divorce. This appears to contradict Rav Kahana’s statement that it is permitted for a deaf-mute husband to give written instructions to divorce his wife.

תנאי היא דתניא אמר רבן שמעון בן גמליאל במה דברים אמורים בחרש מעיקרו אבל פיקח ונתחרש הוא כותב והן חותמין

The Gemara answers: It is a dispute between tanna’im, as it is taught in a baraita (Tosefta, Terumot 1:1) that Rabban Shimon ben Gamliel said: In what case is this statement that the court may not rely on the written testimony of a deaf-mute with regard to a bill of divorce said? Only in the case of a deaf-mute who was deaf from the outset, i.e., from birth. But if he had been halakhically competent, i.e., he could previously hear, but became a deaf-mute later, then he may write instructions to give his wife a bill of divorce and they, the witnesses, should sign, in accordance with the opinion of Rav Kahana.

וחרש מעיקרו לא כשם שכונסה ברמיזה כך מוציאה ברמיזה

The Gemara asks: And one who is a deaf-mute from the outset cannot give written instructions with regard to a bill of divorce? Isn’t it true that just as he marries her with intimation, i.e., without speaking, so too, he divorces her with intimation.

אי באשתו הכי נמי הכא במאי עסקינן ביבמתו

The Gemara answers: If the baraita is referring to his wife, indeed this would be the case and he could divorce her through intimations, because such a marriage is not a fully valid marriage by Torah law. But with what are we dealing here? With his yevama, his sister-in-law whose husband, his brother, died childless to whom he performed levirate marriage, and whom he subsequently wishes to divorce. This marriage is a fully valid marriage.

יבמתו ממאן אילימא דנפלה ליה מאחיו חרש כשם שכניסתה ברמיזה כך יציאתה ברמיזה אלא דנפלה ליה מאחיו פיקח

The Gemara asks: His yevama from whom? If we say that she fell to him from his brother who was also a deaf-mute, then just as her marriage to the brother was through intimation, so too, her divorce from the yavam can be through intimation. Rather, it must be that she fell to him from his halakhically competent brother. Consequently, the bond of the levirate marriage is by Torah law, whereas the deaf-mute man’s intimations that he desires to divorce her are valid only by rabbinic law.

ואיבעית אימא לעולם דנפלה ליה מאחיו חרש וגזירה אחיו חרש אטו אחיו פיקח

And if you wish, say instead: Actually, explain that she fell to him from his deaf-mute brother, and the Sages instituted a rabbinic decree with regard to a woman bound in a levirate marriage from his deaf-mute brother due to the death of his halakhically competent brother.

אי הכי אשתו נמי יבמתו ביבמתו מיחלפא אשתו ביבמתו לא מיחלפא

The Gemara challenges: If so, and the Sages made such a decree with regard to a case where a deaf-mute brother died due to the case where a brother who is halakhically competent died, then with regard to his own wife as well, they should have made a decree that a deaf-mute husband cannot divorce her with a bill of divorce if he married her as a deaf-mute. The Gemara answers: His yevama who was married to his halakhically competent brother might be confused with his yevama who was married to his deaf-mute brother. But people would not confuse his own wife with his yevama. Therefore, there was no need to institute such a decree.

ומי גזרינן חרש אטו פיקח

The Gemara asks: And do we, the Sages, decree with regard to his deaf-mute brother due to confusion between him and his halakhically competent brother?

והתנן שני אחין חרשין נשואין שתי אחיות פיקחות או שתי אחיות חרשות או שתי אחיות אחת פיקחת ואחת חרשת וכן שתי אחיות חרשות נשואות לשני אחין פיקחין או לשני אחין חרשין או לשני אחין אחד פיקח ואחד חרש הרי אלו פטורות מן החליצה ומן היבום

But didn’t we learn in a mishna (Yevamot 112b): In a case where there were two deaf-mute brothers, whose marriage is valid by rabbinic law, married to two halakhically competent sisters, or to two deaf-mute sisters, or to two sisters, one of whom was halakhically competent and one of whom was a deaf-mute; and similarly, if there were two deaf-mute sisters, whose marriage is valid by rabbinic law, married to two halakhically competent brothers, or to two deaf-mute brothers, or to two brothers, one of whom was halakhically competent and one of whom was a deaf-mute; and in each case one brother dies without children, then all these women are exempt from ḥalitza and from levirate marriage. Each sister is exempt, as she is the sister of the wife of the yavam.

ואם היו נכריות יכנסו ואם רצו להוציאן יוציאו

And if they were unrelated women the men may marry them in levirate marriage, and if they wanted to divorce them later via a bill of divorce they may divorce them. Since this is stated as a general halakha it indicates that the deaf-mute brother can also give a bill of divorce to his yevama who was previously married to his deaf-mute brother, and the Sages did not institute a decree in order not to create confusion with the similar case of a deceased halakhically competent brother.

אלא מחוורתא כדשנין מעיקרא

Rather, it is clear as we initially answered, that it is referring to a yevama, previously married to a halakhically competent brother, who fell before a yavam who was a deaf-mute from birth. The alternative answer given on the previous amud is rejected.

אמר רבי יוחנן חלוקין עליו חביריו על רבן שמעון בן גמליאל

Rabbi Yoḥanan says: The colleagues of Rabban Shimon ben Gamliel disagree with him, and hold that written instructions from a deaf-mute have no halakhic validity.

אמר אביי אף אנן נמי תנינא נישטת לא יוציא נתחרש הוא או נשתטה לא יוציא עולמית מאי עולמית לאו אף על גב דיכול לדבר מתוך הכתב

Abaye said that we, too, learn in the mishna (Yevamot 112b) that non-verbal instructions are insufficient to initiate a divorce even for one who was born with the ability to hear and subsequently became a deaf-mute: If a woman became an imbecile after her wedding the Sages instituted that the husband must not divorce her. If the husband became a deaf-mute or an imbecile he can never divorce her, as he does not have the legal competence to grant a bill of divorce. Abaye explains: What is the reason that the mishna emphasizes that he can never divorce her? Isn’t this teaching that even though he can communicate through writing, he is unable to divorce her?

אמר רב פפא אי לאו דאשמועינן רבי יוחנן הוה אמינא רבן שמעון בן גמליאל לפרושי טעמא דתנא קמא הוא דאתא ומאי עולמית אף על גב דחזינא ליה דחריף

Rav Pappa said: If not for the fact that Rabbi Yoḥanan teaches us that there is a dispute between Rabban Shimon ben Gamliel and the Rabbis, then I would say that Rabban Shimon ben Gamliel comes only to explain the reason of the first tanna, not to disagree with him. If that were so, all agree that one who was born with the ability to hear and subsequently became a deaf-mute can issue written instructions to write and give a bill of divorce for his wife. And according to this explanation, what is the meaning of the word never? It is not referring to issuing written instructions. It means that even though I see that he is sharp by means of examining his gestures, these indications are not sufficient to warrant the giving of a bill of divorce. Despite this, if he were to issue written instructions to divorce his wife, they would be followed.

אי נמי לכדרבי יצחק דאמר רבי יצחק דבר תורה שוטה מתגרשת מידי דהוה אפיקחת בעל כרחה

Alternatively, the mishna emphasized that the only situation where the husband can never divorce his wife is where her husband became a deaf-mute or an imbecile, but not if the husband remained healthy and the wife became a deaf-mute or imbecile, in accordance with the opinion of Rabbi Yitzḥak, as Rabbi Yitzḥak says: By Torah law a woman who is an imbecile may be divorced even though she is unable to give her consent, just as it is permitted to divorce a halakhically competent woman against her will.

ומה טעם אמרו אינה מתגרשת שלא ינהגו בה מנהג הפקר

And what is the reason that the Rabbis said she may not be divorced? So that she will not be treated as ownerless property. If she has no husband to protect her, and she is unable to protect herself, she may be treated as ownerless property by anyone who wishes to engage in sexual intercourse with her. By contrast, if the husband is a deaf-mute or an imbecile then he cannot divorce her by Torah law. This is why the mishna stresses only that the husband may never divorce his wife in the case where he becomes halakhically incompetent, but not when it is the wife who becomes a deaf-mute or an imbecile, in order to demonstrate the difference between the two cases in terms of Torah law.

מתני׳ אמרו לו נכתוב גט לאשתך ואמר להן כתובו אמרו לסופר וכתב ולעדים וחתמו אף על פי שכתבוהו וחתמוהו ונתנוהו לו וחזר ונתנו לה הרי הגט בטל עד שיאמר לסופר כתוב ולעדים חתומו

MISHNA: If people said to the husband: Shall we write a bill of divorce for your wife? And he said to them: Write the document, and those people told the scribe to write it, and he wrote it and instructed the witnesses to sign it, and they signed it; even if they wrote it, and signed it, and gave it to him, and he then gave it to his wife, the bill of divorce is void unless he himself says to the scribe: Write the document, and he himself says to the witnesses: Sign the document.

גמ׳ טעמא דלא אמר תנו הא אמר תנו נותנין מני רבי מאיר היא דאמר מילי מימסרן לשליח

GEMARA: The Gemara infers from the mishna: The reason that the bill of divorce is void is because he told the people only to write the document, but he did not say: Give a bill of divorce to my wife. But if he said to them: Give a bill of divorce to my wife, and they told the scribe to write the document and the witnesses to sign it, those people give the document to his wife and it is valid. In accordance with whose opinion is this statement? It is in accordance with the opinion of Rabbi Meir, who says: Verbal directives can be delegated to an agent. Everyone agrees that an agent can be appointed to perform an action on behalf of another, but Rabbi Meir holds that an agent can be appointed to give instructions to others on behalf of another.

אימא סיפא עד שיאמר לסופר כתוב ולעדים חתומו אתאן לרבי יוסי דאמר מילי לא מימסרן לשליח

The Gemara comments: Say the latter clause of the mishna: The bill of divorce is void unless he himself says to the scribe: Write the document, and he himself says to the witnesses: Sign the document. In the latter clause of the mishna, we arrive at the opinion of Rabbi Yosei, who said: Verbal directives cannot be delegated to an agent.

רישא רבי מאיר וסיפא רבי יוסי אין רישא רבי מאיר וסיפא רבי יוסי

The Gemara asks: Is that to say that the first clause of the mishna is in accordance with the opinion of Rabbi Meir and the latter clause is in accordance with the opinion of Rabbi Yosei? The Gemara answers: Yes, the first clause is in accordance with the opinion of Rabbi Meir and the latter clause is in accordance with the opinion of Rabbi Yosei. Although unusual, it is possible for a single mishna to represent two contrary opinions.

אביי אמר כולה רבי מאיר היא והכא במאי עסקינן דלא אמר תנו אי הכי עד שיאמר תנו מיבעי ליה

Abaye said: Actually, the mishna in its entirety is in accordance with the opinion of Rabbi Meir. And with what are we dealing here? With a situation whereby the husband did not say: Give the bill of divorce to my wife, but said only to write it. In that case he must instruct the scribe and the witnesses directly. If he issued instructions to give the bill of divorce, it would also have been effective. The Gemara asks: If so, the mishna should have said: The bill of divorce is void unless he says: Give the bill of divorce to my wife.

אלא הכא במאי עסקינן דלא אמר לבי תלתא אי הכי עד שיאמר לשלשה מיבעי ליה

Rather, with what are we dealing here? With a situation whereby the husband did not say his instructions to three people, who constitute a court with the authority to appoint others to write a bill of divorce. Rather, he instructed two people, who do not constitute a court, and therefore do not have the authority to appoint others to write a bill of divorce, even if the husband told them to give the bill of divorce to his wife. Witnesses may only write and give the document themselves. The Gemara challenges: If so, the mishna should have said: Unless he says his instructions to three people.

אלא כולה רבי יוסי היא והכא במאי עסקינן דלא אמר אמרו

Rather, the mishna in its entirety is in accordance with the opinion of Rabbi Yosei, and with what are we dealing here? With a situation whereby the husband did not explicitly say to his agents: Say my instructions to the scribe to write the document.

אי הכי עד שיאמר אמרו מיבעי ליה

The Gemara challenges: If so, the expression: Until he says to the scribe, is imprecise. Rather, the mishna should have said: Until the husband instructs the agents to tell.

ועוד מי מודה רבי יוסי באומר אמרו והתנן כתב סופר ועד כשר ואמר רבי ירמיה חתם סופר שנינו ואמר רב חסדא מתניתין מני

And does Rabbi Yosei concede in the case of one who says: Tell another to write it? But didn’t we learn in a mishna (87b): If a bill of divorce has the writing of a scribe, and the scribe identifies his handwriting, and one witness verifies his signature, it is valid as though two witnesses testified to ratify their signatures. And Rabbi Yirmeya said: We learned in the mishna that this is the halakha with regard to the scribe’s signature and not the scribe’s writing. And Rav Ḥisda said: Whose opinion is expressed in the mishna?