Babylonian Talmud: Tractate Gittin

Folio 71a

— The proper way is to ask him about fruit.¹

R. Kahana said in the name of Rab: If a deaf-mute can signify his meaning by writing, a Get may be written and given to his wife.²  Said R. Joseph: What does this tell us [that we do not know already]? We have learnt: IF A MAN IS STRUCK DUMB AND WHEN THEY SAY TO HIM, SHALL WE WRITE A GET FOR YOUR WIFE, HE NODS HIS HEAD, HE IS TESTED WITH THREE QUESTIONS. IF HE SIGNIFIES 'NO' AND 'YES' PROPERLY EACH TIME, THEN THE GET SHOULD BE WRITTEN AND GIVEN FOR HIM?³  — R. Zera replied to him: You have quoted a statement about an illem [mute]. An illem is different, as it has been taught: One who can speak but not hear is called heresh,⁴  and one who can hear but not speak is called illem, and both are considered to be in possession of their faculties for all purposes. What is your warrant for saying that one who can speak but not hear is called heresh, and one who can hear but not speak is called illem? — Because it is written, But I am as a deaf man [heresh] I hear not, and I am as a dumb man [illem] that openeth not his mouth.⁵  Or if you like I can say that we know it from the colloquial description⁶  of a dumb man as Ishtekil Miluleh.⁷

R. Zera said: If I do find any difficulty [in R. Kahana's remark] it is this, that it has been taught: 'If he do not utter it.⁸  This excludes a mute who cannot utter'. Now why should this be, seeing that [according to R. Kahana] he can signify by writing? — Abaye replied to him: You are speaking of testimony, and testimony comes under a different rule, because the All-Merciful has said that it must be from their mouths,⁹  and not from their writing.

[The following] was raised in objection [to Abaye's statement]: In the same way as he¹⁰  is tested in connection with a Get, so he is tested in connection with business transactions, with testimony, and with bequests. Now 'testimony' is mentioned here? — R. Joseph b. Manyumi said in the name of R. Shesheth: This applies only to testimony regarding the status of a woman,¹¹  with which the Rabbis were not so strict. But it also says 'bequests'?¹²  — R. Abbahu said: It refers to the inheritance of his eldest son.¹³  But it also says 'in connection with business transactions', and this presumably means anyone's? — No, it refers only to his own.

[The following] was then raised in objection: The directions of a deaf-mute given by gestures, by lip-movements, and by writing are to be followed only in regard to the transfer of movables, but not to a Get?¹⁴  — There is in truth a difference of opinion on this point between Tannaim, as it has been taught: R. Simeon b. Gamaliel says: This¹⁵  is the case only with one who was a deaf-mute from the outset, but one who was originally whole and became a deaf-mute after marriage can write a Get for himself which others can sign.¹⁶

But cannot one who was originally a deaf-mute give a Get? As he married her by gesture, cannot he also divorce her by gesture? — If [we were speaking] of his wife, this would indeed be the case, but [in fact] we are dealing with his sister-in-law.¹⁷  His sister-in-law from whom? Are we to say, one who fell to his lot from his [de ceased] brother who was also a deaf-mute? [In that case], just as she was married by gesture,¹⁸  so she can be put away by gesture! No; it is one who fell to his lot from a brother in possession of his faculties.¹⁹  Alternatively I may say that she did fall to his lot from a brother who was a deaf-mute, and we forbid the [wife of a] deaf-mute to be divorced by gesture so as not to set a precedent for [the wife of] one who was sound. If that is the case, should we not forbid him to divorce his wife also?²⁰  — A sister-in-law can be confused with a sister-in-law, but not with a wife. But do we indeed forbid [a deaf-mute] because [of a sound one]?

1. I.e., whether he wants freshly plucked fruit when they are out of season.
2. I.e., if he was whole at the time of marriage and so made a proper betrothal. If he was deaf and dumb before marriage, he betroths by gesture and can also divorce by gesture, v. infra.
3. And writing is surely as effective as nodding.
4. In Biblical phraseology. Whereas in Rabbinical language heresh generally denotes a deaf-mute, and it is to a deaf-mute that R. Kahana refers.
5. Ps. XXXVIII, 14.
6. Lit., 'as men say'.
7. I.e., 'his speech has been taken away from him'.
8. Lev. V, 1, of one who is called on to testify and withholds his evidence.
9. Deut. XIX, 15, 'At the mouth of two witnesses … shall a matter be established'.
10. The reference is to one who is struck dumb.
11. I.e., whether she may contract a certain marriage or not on his evidence regarding the death of her husband.
12. Which presumably means, giving evidence about other people's bequests.
13. I.e., his signifying that his eldest son should not have a double portion (Rashi), or that one of his sons was the eldest (Tosaf).
14. This refutes R. Kahana.
15. That the directions of a deaf-mute are not to be followed in regard to a Get.
16. In agreement with R. Kahana.
17. A deaf and dumb man cannot give halizah (v. Glos.), because he cannot say 'I do not desire to marry her'. He must therefore contract the levirate marriage, and as the betrothal of the first husband was effected by word of mouth, he cannot undo it by a gesture or by writing.
18. By the first husband.
19. And as the betrothal of the first husband was effected by word of mouth, he cannot undo it by a gesture or by writing.
20. Lest she should set a precedent for the sister-in-law.

Have we not learnt, 'If two brothers, deaf-mutes, were married to two sisters who were not deaf-mutes or to two sisters who were deaf-mutes or to two sisters one of whom was a deaf-mute and the other not, and similarly if two sisters who were deaf-mutes were married to two brothers who were not deaf-mutes or to two brothers who were deaf-mutes or to two brothers one of whom was a deaf-mute and the other not, these sisters¹  are free from the obligation of halizah or levirate marriage.²  If however, the women were not related to one another, they must contract the marriage,³  and if [the second husband] desires to put her away⁴  he may do so'?⁵  — The truth is that the first answer is the best.

R. Johanan said: R. Simeon b. Gamaliel's colleagues⁶  differed from him. Abaye said: We have also learnt to the same effect:⁷  If the wife became insane, he cannot put her away. If he became deaf and dumb or insane, he can never put her away.⁸  What is meant by never'? Surely it means, even if he can signify his intention in writing? — R. Papa said: But for the statement of R. Johanan, I would have said that R. Simeon b. Gamaliel intended only to explain the statement of the previous Tanna, and that 'never' means, 'even though we see that he is intelligent'.⁹  Or, I might have said, the word 'never' indicates the lesson taught by R. Isaac. For R. Isaac said: According to the rule of the [written] Torah, an insane wife can be divorced, being on the same footing as a sound woman who is divorced without her own consent. Why then did the Rabbis lay down that she should not be divorced? In order that she should not be used for immoral purposes.¹⁰

MISHNAH. IF THEY SAID TO HIM, SHALL WE WRITE A GET FOR YOUR WIFE, AND HE SAID TO THEM, WRITE, AND IF THEY THEN TOLD A SCRIBE AND HE WROTE AND WITNESSES AND THEY SIGNED, EVEN THOUGH THEY HAVE ALREADY WRITTEN AND SIGNED IT AND GIVEN IT TO HIM AND HE IN TURN HAS GIVEN IT TO HER, THE GET IS VOID UNLESS HE HIMSELF HAS SAID TO THE SCRIBE 'WRITE' AND TO THE WITNESSES, 'SIGN'.

GEMARA. The reason [why it is invalid] is because he did not say 'give' [instead of 'write'].¹¹  We presume, therefore, that if he said 'give' they [may tell others to write and] give.¹²  Whose view is this? R. Meir's, who said that verbal instructions can be entrusted to an agent.¹³  Read now the later clause: UNLESS HE HAS SAID TO THE SCRIBE, 'WRITE' AND TO THE WITNESSES 'SIGN'. This brings us round to the view of R. Jose who said that verbal instructions cannot be entrusted to an agent. Are we to say then that the first clause follows R. Meir and the second R. Jose? — Yes; the first follows R. Meir and the second R. Jose. Abaye, however, said: The whole follows R. Meir, and we are dealing here [in the last clause] with the case where he did not say 'give'.¹⁴  If that is the case, it should say, 'he must say, Give'?¹⁵  — In fact the case here is one in which he did not tell three persons.¹⁶  If that is the case, it should say, 'He must tell three'? — Hence the whole follows R. Jose, and the case here is one in which he did not say, 'Tell'.¹⁷  If that is the case, it should say, 'He must say, Tell'? And besides, does R. Jose admit that the Get is valid where he says 'tell'? Have We not learnt: 'If a scribe wrote and a witness signed, it is valid', and R. Jeremiah explained that what is meant is that the scribe [also] signed, and R. Hisda said, Whom does this Mishnah follow?

1. The widow of any of the brothers who died without issue.
2. That is to say, although the marriage was contracted at least on one side by gesture only, it is sufficiently valid to release the wife's sister from the obligation of giving halizah to or to bar her from marrying the husband, v. Yeb. I, 1.
3. Not being able to give halizah because either he or she cannot recite the requisite formula.
4. I.e., after having Performed the levir marriage.
5. V. Yeb. 110b. Which shows that we do not forbid a deaf-mute to divorce the wife of his deceased brother who was also a deaf-mute.
6. The representatives of the anonymous view mentioned in the Baraitha cited supra p. 338.
7. The view of the Rabbis which R. Simeon opposes.
8. Yeb. 110b.
9. But not, 'even though he can write', so that this Mishnah would not differ from R. Simeon.
10. The insertion of the word 'never' in the second clause is not intended to exclude the deaf-mute's divorce by writing, but is meant to indicate that the rule regarding the husband has the sanction of the Torah, whereas the one regarding the wife mentioned in the first clause has the sanction only of the Rabbis.
11. V. Rashi a.l.
12. That is to say, if there were three of them, in which case the word 'give' constitutes them a Beth din to write and deliver the Get.
13. I.e., that the agent is at liberty to instruct someone else to carry out the instructions which were given to him, v. supra 29b.
14. I.e., in such a case the Get is invalid unless he tells the scribe etc.
15. Instead of 'write'. And there is no need to mention the case of his telling the scribe personally.
16. And if he told only two, even if he used the word 'give', they would not be at liberty to tell a scribe.
17. I.e., tell the scribe to write etc.