Yevamot 110
מַאי לָאו, דְּלָא בְּעַל? לָא, דִּבְעַל. אִי דִּבְעַל, מַאי טַעְמָא דִּשְׁמוּאֵל? קָסָבַר: כׇּל הַבּוֹעֵל — עַל דַּעַת קִדּוּשִׁין הָרִאשׁוֹנִים הוּא בּוֹעֵל.
What, is it not a case where he did not have intercourse with her after she reached majority? If so, Rav thinks that even when he did not have intercourse with her, her marriage is fully realized once she reaches majority. The Gemara rejects this: No, this is referring to a case where he did have intercourse with her. The Gemara asks: If it is referring to a case where he had intercourse with her, what is Shmuel’s reasoning? If the first one engaged in intercourse with her after she reached majority, then the marriage was fully realized. Under such circumstances, the second betrothal would not take effect. The Gemara answers: Shmuel holds that when anyone has sexual intercourse with a woman he married as a minor, his intention is that the intercourse is within the framework established by the initial betrothal and is not a new act of acquisition.
וְהָא פְּלִיגִי בַּהּ חֲדָא זִימְנָא, דְּאִיתְּמַר: קִדְּשָׁהּ עַל תְּנַאי, וּכְנָסָהּ סְתָם — רַב אָמַר: צְרִיכָה הֵימֶנּוּ גֵּט, וּשְׁמוּאֵל אָמַר: אֵינָהּ צְרִיכָה הֵימֶנּוּ גֵּט.
The Gemara asks: But if this is the basis of the dispute, they already disagreed about this once, as it was stated with regard to the following case: A man betrothed a woman on some condition, and married her without mentioning the condition, and the condition was not fulfilled. Rav says: She requires a bill of divorce from him, and Shmuel says: She does not require a bill of divorce from him.
רַב אָמַר צְרִיכָה הֵימֶנּוּ גֵּט — כֵּיוָן דְּנַסְבַהּ אַחוֹלֵי אַחֲלֵיהּ לִתְנָאֵיהּ. וּשְׁמוּאֵל אָמַר: אֵינָהּ צְרִיכָה הֵימֶנּוּ גֵּט, כׇּל הַבּוֹעֵל, עַל דַּעַת קִדּוּשִׁין הָרִאשׁוֹנִים הוּא בּוֹעֵל!
The Gemara explains: Rav says she requires a bill of divorce from him, for since he married her, he apparently retracted his condition, and is therefore married to her even though the condition was not met. And Shmuel says: She does not require a bill of divorce from him, because anyone who has sexual intercourse with his wife, his intention is that the intercourse is within the framework established by the initial betrothal and the condition he set at the time of betrothal still stands. Since it was not fulfilled, the marriage is annulled. If so, Rav and Shmuel already disagreed about this same issue.
צְרִיכָא, דְּאִי אִיתְּמַר הָהִיא, בְּהָהִיא קָאָמַר רַב, מִשּׁוּם דְּאִיכָּא תְּנָאָה, וְכֵיוָן דִּבְעַל, אַחֲלֵיהּ לִתְנָאֵיהּ. אֲבָל בְּהָא, אֵימָא מוֹדֶה לֵיהּ, לִשְׁמוּאֵל. וְאִי אִיתְּמַר בְּהָא: בְּהָךְ קָאָמַר שְׁמוּאֵל, אֲבָל בְּהָךְ, אֵימָא מוֹדֶה לֵיהּ לְרַב, צְרִיכָא.
The Gemara answers: It is necessary to state the dispute in both contexts, for if only that halakha about conditional betrothal was stated, one might think: In this case Rav says she needs a divorce since there is a condition with regard to the betrothal, but when he had intercourse with her, he retracted the condition. But in this case of betrothal to a minor, say that Rav would concede to Shmuel that the intercourse was not performed with the intention of it constituting a full betrothal. And if only this case of betrothal to a minor was stated, one might think: Shmuel said that the marriage is effective in this case of betrothal to a minor, but in that case of a conditional betrothal, say that he would concede to Rav. Therefore, it was necessary to state the dispute explicitly in both instances.
וּמִי אָמַר רַב כִּי בְּעַל — אִין, אִי לָא בְּעַל — לָא? הָא הָהִיא עוֹבָדָא דַּהֲוָה בְּנַרֶשׁ, וְאִיקַּדִּישָׁה כְּשֶׁהִיא קְטַנָּה, וְגָדְלָה, וְאוֹתְבַיהּ אַבֵּי כוּרְסְיָיא, וַאֲתָא אַחֲרִינָא וְחַטְפַהּ מִינֵּיהּ. וְרַב בְּרוֹנָא וְרַב חֲנַנְאֵל תַּלְמִידֵי דְרַב הֲווֹ הָתָם, וְלָא אַצְרְיכוּהָ גִּיטָּא מִבָּתְרָא!
The Gemara asks: And did Rav actually say that when he engaged in sexual intercourse with her, yes, the original marriage is valid, and if he did not have intercourse with her, no, it is not valid? Wasn’t there an incident in the city of Neresh where a woman was betrothed when she was a minor, and she reached majority, and the husband seated her in a bridal chair under the marriage canopy and had not yet had intercourse with her, and another man came and seized her from him and married her? And Rav Bruna and Rav Ḥananel, the students of Rav, were there and they did not require her to receive a bill of divorce from the latter husband. Presumably, they regarded her as fully married to the first husband, so the marriage to the second marriage never took effect, despite the fact that the first marriage had not yet been consummated.
אָמַר רַב פָּפָּא: בְּנַרֶשׁ מִינְסַב נָסְיבִי, וַהֲדַר מוֹתְבִי אַבֵּי כוּרְסְיָיא. רַב אָשֵׁי אָמַר: הוּא עָשָׂה שֶׁלֹּא כַּהוֹגֶן, לְפִיכָךְ עָשׂוּ בּוֹ שֶׁלֹּא כַּהוֹגֶן, וְאַפְקְעִינְהוּ רַבָּנַן לְקִידּוּשֵׁי מִינֵּיהּ.
Rav Pappa said: There is a difference, because in Neresh their practice is to first marry a woman and have intercourse with her, and afterward they seat her in the bridal chair. In this incident, the husband had already had intercourse with her once she was an adult, and that is why Rav’s students did not require a bill of divorce from the second man. Rav Ashi says: There was a different reason, even if the practice was not as Rav Pappa describes. This bride snatcher acted improperly. Consequently, they treated him improperly by annulling the legal validity of his actions, and the Sages abrogated his betrothal.
אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: תִּינַח דְּקַדֵּישׁ בְּכַסְפָּא, קַדֵּישׁ בְּבִיאָה מַאי? שַׁוְּיוּהָ רַבָּנַן לִבְעִילָתוֹ בְּעִילַת זְנוּת. אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הֲלָכָה כְּרַבִּי אֱלִיעֶזֶר. וְכֵן אָמַר רַבִּי אֶלְעָזָר: הֲלָכָה כְּרַבִּי אֱלִיעֶזֶר.
Ravina said to Rav Ashi: This works out well if the second man betrothed her with money, as then the Sages could declare that money to be ownerless property and void the betrothal. If he betrothed her by means of intercourse, what is the halakha? How can the Sages dissolve the betrothal when the sexual act took place? The Gemara answers: The Sages rendered his sexual act a licentious sexual act, which does not create a bond of betrothal. With regard to the dispute in the mishna, Rav Yehuda said that Shmuel said: The halakha is in accordance with the opinion of Rabbi Eliezer, and the minor is instructed to make a declaration of refusal. Likewise, Rabbi Elazar said: The halakha is in accordance with the opinion of Rabbi Eliezer.
מַתְנִי׳ מִי שֶׁהָיָה נָשׂוּי לִשְׁתֵּי יְתוֹמוֹת קְטַנּוֹת, וּמֵת — בִּיאָתָהּ אוֹ חֲלִיצָתָהּ שֶׁל אַחַת מֵהֶם פּוֹטֶרֶת צָרָתָהּ. וְכֵן שְׁתֵּי חֵרְשׁוֹת. קְטַנָּה וְחֵרֶשֶׁת — אֵין בִּיאַת אַחַת מֵהֶן פּוֹטֶרֶת צָרָתָהּ.
MISHNA: If a man was married to two orphaned minors and died, consummation of levirate marriage or ḥalitza with one of them exempts her rival wife from either levirate marriage or ḥalitza, rendering her free to remarry. Likewise, if two deaf-mutes were married to one man who died, consummation of levirate marriage or ḥalitza with one of them exempts her rival wife. In both of these cases, both women are married by rabbinic law and consequently become yevamot by rabbinic law. Since their statuses are equal, one can exempt the other. If one wife is a minor and the other is a deaf-mute, consummation of levirate marriage or ḥalitza with one of them does not exempt her rival wife. Although both women are married by rabbinic law, their statuses are not the same and one cannot exempt the other.
פִּקַּחַת וְחֵרֶשֶׁת — בִּיאַת הַפִּקַּחַת פּוֹטֶרֶת הַחֵרֶשֶׁת, וְאֵין בִּיאַת הַחֵרֶשֶׁת פּוֹטֶרֶת אֶת הַפִּקַּחַת. גְּדוֹלָה וּקְטַנָּה — בִּיאַת הַגְּדוֹלָה פּוֹטֶרֶת הַקְּטַנָּה, וְאֵין בִּיאַת הַקְּטַנָּה פּוֹטֶרֶת הַגְּדוֹלָה.
If one of them was halakhically competent and one was a deaf-mute, consummation of levirate marriage with the halakhically competent wife exempts the deaf-mute, as the halakhically competent women’s marriage and levirate marriage are by Torah law. But consummation of levirate marriage with the deaf-mute does not exempt the halakhically competent wife. Likewise, if one was an adult woman and one a minor girl, consummation of levirate marriage with the adult exempts the minor but consummation of levirate marriage with the minor does not exempt the adult.
גְּמָ׳ וְחֵרֶשֶׁת בַּת חֲלִיצָה הִיא? וְהָתְנַן: חֵרֵשׁ שֶׁנֶּחְלַץ, וְחֵרֶשֶׁת שֶׁחָלְצָה, וְחוֹלֶצֶת מִן הַקָּטָן — חֲלִיצָתָהּ פְּסוּלָה!
GEMARA: The mishna states that ḥalitza by one deaf-mute exempts the other. The Gemara asks: Can a deaf-mute perform ḥalitza? Didn’t we learn in a mishna (104b): If a male deaf-mute performs ḥalitza, and if a female deaf-mute performs ḥalitza, and if a woman performs ḥalitza on a minor boy, her ḥalitza is disqualified?
אָמַר רַב גִּידֵּל אָמַר רַב: אַבִּיאָה. רָבָא אָמַר: אֲפִילּוּ תֵּימָא אַחֲלִיצָה — כָּאן בְּחֵרֶשֶׁת מֵעִיקָּרָא, כָּאן בְּפִקַּחַת וְאַחַר כָּךְ נִתְחָרְשָׁה.
Rav Giddel said that Rav said: The mishna is not referring to a deaf-mute’s ḥalitza, but rather to consummation of levirate marriage with one of the deaf-mutes. Rava said: You can even say it is referring to ḥalitza. Here, the mishna is referring to a woman who was a deaf-mute from the outset, when he married her, and there the mishna that disqualifies the ḥalitza is referring to someone who was halakhically competent when she was married and afterward became a deaf-mute.
חֵרֶשֶׁת מֵעִיקָּרָא, כִּי הֵיכִי דְּעָל — הָכִי נָפֵק, פִּקַּחַת וְאַחַר כָּךְ נִתְחָרְשָׁה — לָא, דִּמְעַכְּבָא בַּהּ קְרִיָּיה.
The difference is that a deaf-mute from the outset, just as she entered into marriage with her first husband so she leaves the levirate bond by means of ḥalitza. Both her marriage and her status as a yevama are by rabbinic law. However, one who was halakhically competent, so that she was married by Torah law, and later became a deaf-mute, no, she cannot be released by ḥalitza, since recitation is indispensable for her ḥalitza, and she cannot recite the text that a yevama must recite.
אֵיתִיבֵיהּ אַבָּיֵי: וְחֵרֶשֶׁת מֵעִיקָּרָא בַּת חֲלִיצָה הִיא? וְהָתְנַן: שְׁנֵי אַחִין, אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ, נְשׂוּאִין לִשְׁתֵּי נׇכְרִיּוֹת, אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת, מֵת חֵרֵשׁ בַּעַל חֵרֶשֶׁת, מָה יַעֲשֶׂה פִּקֵּחַ בַּעַל פִּקַּחַת? כּוֹנֵס. וְאִם רָצָה לְהוֹצִיא — יוֹצִיא.
Abaye raised an objection to this: And is one who is a deaf-mute from the outset a candidate for ḥalitza? Didn’t we learn in a mishna (Yevamot 112b): Two brothers, one who is halakhically competent and one who is a deaf-mute, are married to two unrelated women, one who is halakhically competent and one deaf-mute. If the male deaf-mute, who is the husband of the female deaf-mute, dies, what should the halakhically competent man, who is the husband of the halakhically competent woman, do? He may consummate the levirate marriage, but there is no option of performing ḥalitza. And if he wants to divorce her later, he may divorce her.
מֵת פִּקֵּחַ בַּעַל פִּקַּחַת, מָה יַעֲשֶׂה חֵרֵשׁ בַּעַל חֵרֶשֶׁת? כּוֹנֵס, וְאֵינוֹ מוֹצִיא לְעוֹלָם. מַאי לָאו, בְּחֵרֶשֶׁת מֵעִיקָּרָא, וְקָתָנֵי: כּוֹנֵס אִין,
If the halakhically competent man, husband of the halakhically competent woman, dies, what should the male deaf-mute, who is the husband of the female deaf-mute, do? He may consummate the levirate marriage, but he may never divorce her, as a deaf-mute is not halakhically competent to divorce a woman to whom he is married by Torah law. What, is it not referring to a deaf-mute from the outset? And it is taught: Yes, he may consummate the levirate marriage,
חוֹלֵץ לָא! לָא, בְּפִקַּחַת וְאַחַר כָּךְ נִתְחָרְשָׁה.
but no, he may not perform ḥalitza. The Gemara rejects this: No, it is referring to a halakhically competent woman who later became a deaf-mute, and ḥalitza performed by a deaf-mute does not have the power to undo a levirate bond that is valid by Torah law.
תָּא שְׁמַע: שְׁנֵי אַחִין פִּקְחִין נְשׂוּאִין שְׁתֵּי נׇכְרִיּוֹת, אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת, מֵת פִּקֵּחַ בַּעַל הַחֵרֶשֶׁת, מָה יַעֲשֶׂה פִּקֵּחַ בַּעַל פִּקַּחַת? כּוֹנֵס, וְאִם רוֹצֶה לְהוֹצִיא יוֹצִיא. מֵת פִּקֵּחַ בַּעַל פִּקַּחַת, מָה יַעֲשֶׂה פִּקֵּחַ בַּעַל חֵרֶשֶׁת? אוֹ חוֹלֵץ אוֹ מְיַיבֵּם.
Come and hear proof from a baraita: Two halakhically competent brothers are married to two unrelated women, one who is halakhically competent and one who is a deaf-mute. If the halakhically competent man who is the husband of the female deaf-mute, dies, what should the halakhically competent man who is the husband of the halakhically competent woman do? He consummates the levirate marriage with the deaf-mute, and if he later wishes to divorce her, he may divorce her. But if the halakhically competent man who is the husband of the halakhically competent woman dies, what should the halakhically competent man who is the husband of the female deaf-mute do? He may either perform ḥalitza or consummate the levirate marriage.
מַאי לָאו: מִדְּהוּא פִּקֵּחַ מֵעִיקָּרָא, הִיא נָמֵי חֵרֶשֶׁת מֵעִיקָּרָא, וְקָתָנֵי: כּוֹנֵס אִין, חוֹלֵץ לָא! מִידֵּי אִירְיָא? הָא כִּדְאִיתָא וְהָא כִּדְאִיתָא.
What, is it not the case in this baraita that since he is halakhically competent from the outset, one may presume that she is a deaf-mute from the outset as well? And it is taught yes, he may consummate the levirate marriage with the yevama who is a deaf-mute, but no, he may not perform ḥalitza to her, thereby indicating that ḥalitza cannot be performed even though as a deaf-mute from the outset, she is a yevama by rabbinic law and not by Torah law. The Gemara rejects this: Are the cases comparable? This case is as it is, i.e., the husband is competent throughout, and that case is as it is, i.e., the wife was not a deaf-mute at the outset.
אֵיתִיבֵיהּ: שְׁנֵי אַחִין, אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ, נְשׂוּאִין שְׁתֵּי אֲחָיוֹת, אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת. מֵת חֵרֵשׁ בַּעַל חֵרֶשֶׁת, מָה יַעֲשֶׂה פִּקֵּחַ בַּעַל פִּקַּחַת? תֵּצֵא מִשּׁוּם אֲחוֹת אִשָּׁה.
The Gemara raised an objection to this from a mishna (Yevamot 112b): Two brothers, one who is halakhically competent and one who is a deaf-mute, are married to two sisters, one who is halakhically competent and one who is a deaf-mute. If the male deaf-mute who is the husband of the female deaf-mute dies, what shall the halakhically competent man who is the husband of the halakhically competent woman do? The female deaf-mute leaves and is exempt from levirate marriage due to the prohibition against marrying the sister of one’s wife.
מֵת פִּקֵּחַ בַּעַל פִּקַּחַת, מָה יַעֲשֶׂה חֵרֵשׁ בַּעַל חֵרֶשֶׁת? מוֹצִיא אֶת אִשְׁתּוֹ בְּגֵט, וְאֵשֶׁת אָחִיו אֲסוּרָה לְעוֹלָם.
If the halakhically competent man who is the husband of the halakhically competent woman dies, what should the male deaf-mute who is the husband of the female deaf-mute do? He releases his wife, the female deaf-mute, with a bill of divorce, and his brother’s wife is forbidden forever and may never remarry. He cannot remain married because his wife is the sister of his yevama by Torah law. He cannot consummate the levirate marriage with her because she is the sister of his ex-wife. Apparently, ḥalitza is not an option because he is a deaf-mute, and his ḥalitza cannot dissolve a levirate bond that is established by Torah law.
וְכִי תֵּימָא הָכָא נָמֵי בְּפִקֵּחַ וְאַחַר כָּךְ נִתְחָרֵשׁ — מִי מָצֵי מַפֵּיק? וְהָתְנַן: נִתְחָרְשָׁה — יוֹצִיא, נִשְׁתַּטֵּית — לֹא יוֹצִיא. נִתְחָרֵשׁ הוּא אוֹ נִשְׁתַּטָּה — לֹא יוֹצִיא עוֹלָמִית.
And if you would say: Here, too, it is referring to a man who was halakhically competent and later became a deaf-mute, can such a person divorce his wife? Didn’t we learn the following in the mishna (112b): If a halakhically competent man married a halakhically competent woman and she became a deaf-mute, he may divorce her; if she became mentally incompetent, he may not divorce her, because of a rabbinic ordinance to protect her from harm. If he himself became a deaf-mute or became mentally incompetent, he may never divorce her. Since he was competent when he married her, he cannot dissolve a marriage that is by Torah law when he is incompetent.
אֶלָּא לָאו, בְּחֵרֵשׁ מֵעִיקָּרָא, וּמִדְּהוּא חֵרֵשׁ מֵעִיקָּרָא — הִיא נָמֵי חֵרֶשֶׁת מֵעִיקָּרָא. וּמִדַּאֲחָיוֹת חֵרְשׁוֹת מֵעִיקָּרָא — נׇכְרִיּוֹת נָמֵי חֵרְשׁוֹת מֵעִיקָּרָא, וּתְנַן גַּבֵּי נׇכְרִיּוֹת: כּוֹנֵס אִין, חוֹלֵץ לָא! אִישְׁתִּיק.
Rather, is it not referring to a male who was deaf-mute from the outset? And since he was a deaf-mute from the outset, she was also a deaf-mute from the outset. And since the sisters in these cases were deaf-mutes from the outset, then the unrelated women were also deaf-mutes from the outset, and we learned in the mishna with regard to the unrelated women that yes, he may consummate the levirate marriage with them, but no, he may not perform ḥalitza. When this question was presented to Rabba, he was silent and had no response.
כִּי אֲתָא לְקַמֵּיהּ דְּרַב יוֹסֵף, אֲמַר לֵיהּ: מַאי טַעְמָא תּוֹתְבֵיהּ מֵהָא, דְּיָכֵול לְשַׁנּוֹיֵי לָךְ: אֲחָיוֹת — חֵרְשׁוֹת מֵעִיקָּרָא, נׇכְרִיּוֹת — פִּקְּחוֹת וְאַחַר כָּךְ נִתְחָרְשׁוּ.
When Abaye came before Rav Yosef and told him of the matter, Rav Yosef said to him: What is the reason that you raised an objection to him based on this? For he could teach, i.e., explain to you, as follows: The sisters the mishna referred to were deaf-mutes at the outset, whereas the unrelated women it referred to were halakhically competent women who later became deaf-mutes.
אֶלָּא אִיבְּעִי לָךְ לְאוֹתֹבֵיהּ מֵהָא: שְׁנֵי אַחִין חֵרְשִׁין נְשׂוּאִין שְׁתֵּי אֲחָיוֹת פִּקְּחוֹת, אוֹ שְׁתֵּי אֲחָיוֹת חֵרְשׁוֹת, אוֹ שְׁתֵּי אֲחָיוֹת אַחַת פִּקַּחַת וְאַחַת חֵרֶשֶׁת. וְכֵן שְׁתֵּי אֲחָיוֹת חֵרְשׁוֹת נְשׂוּאוֹת לִשְׁנֵי אַחִין פִּקְחִין, אוֹ לִשְׁנֵי אַחִין חֵרְשִׁין, אוֹ לִשְׁנֵי אַחִין אֶחָד פִּקֵּחַ וְאֶחָד חֵרֵשׁ — הֲרֵי אֵלּוּ פְּטוּרוֹת מִן הַחֲלִיצָה וּמִן הַיִּיבּוּם. וְאִם הָיוּ נׇכְרִיּוֹת — יִכְנוֹסוּ, וְאִם רָצוּ לְהוֹצִיא — יוֹצִיאוּ.
Rather, you should have raised an objection to him from this mishna (112b): In the cases of two deaf-mute brothers married to two halakhically competent sisters or to two deaf-mute sisters or to two sisters, one halakhically competent and one a deaf-mute; and likewise, two deaf-mute sisters married to two halakhically competent brothers or to two deaf-mute brothers or to two brothers, one halakhically competent and one a deaf-mute, all these women are exempt from ḥalitza and from levirate marriage in the event of the death of one of the brothers while childless. And if, in these cases, the women were unrelated to one another, the surviving brothers should consummate levirate marriage with them, and if they wish to divorce them subsequently, they may divorce them.
הֵיכִי דָמֵי? אִילֵּימָא בְּפִקְחִים וּלְבַסּוֹף נִתְחָרְשׁוּ, מִי מָצֵי מַפְּקִי? וְהָתְנַן: נִשְׁתַּטֵּית — לֹא יוֹצִיא, נִתְחָרֵשׁ הוּא אוֹ נִשְׁתַּטָּה — לֹא יוֹצִיא עוֹלָמִית!
The Gemara clarifies: What are the circumstances? If we say the mishna is referring to men who were halakhically competent and later became deaf-mutes, then in that case can they release them? But didn’t we learn in the mishna (112b): If she became mentally incompetent, he may not divorce her; if he became a deaf-mute or mentally incompetent, he may never divorce her?
אֶלָּא לָאו אַחֵרְשִׁין מֵעִיקָּרָא, וּמִדְּהֵן חֵרְשִׁין מֵעִיקָּרָא — אִינְהוּ נָמֵי חֵרְשׁוֹת מֵעִיקָּרָא, וְקָתָנֵי: אִם הָיוּ נׇכְרִיּוֹת — יִכְנוֹסוּ. יִכְנוֹסוּ — אִין, יַחְלֹצוּ — לָא! תְּיוּבְתָּא דְּרַבָּה תְּיוּבְתָּא.
Rather, is it not referring to men who were deaf-mutes at the outset? And since they were deaf-mutes at the outset, the women were also deaf-mutes at the outset, and it is taught there: If, in these cases, they were unrelated to one another, the surviving brothers should consummate levirate marriage with them. This implies: Yes, they should consummate levirate marriage with them, but no, they should not perform ḥalitza. From this conclusion is apparent that a female deaf-mute may not perform ḥalitza; the refutation of the opinion of Rabba is a conclusive refutation.
קְטַנָּה וְחֵרֶשֶׁת וְכוּ׳. אָמַר רַב נַחְמָן: אַשְׁכַּחְתֵּיהּ לְרַב אַדָּא בַּר אַהֲבָה וּלְרַב חָנָא חַתְנֵיהּ, דְּיָתְבִי וְקָמַקְווּ אַקְווֹתָא בְּשׁוּקָא דְּפוּמְבְּדִיתָא וְאָמְרִי, הָא דִּתְנַן: קְטַנָּה וְחֵרֶשֶׁת, אֵין בִּיאַת אַחַת מֵהֶן פּוֹטֶרֶת צָרָתָהּ, הָנֵי מִילֵּי דִּנְפַלָה לֵיהּ מֵאָחִיו פִּקֵּחַ, דְּלָא יָדְעִינַן אִי בִּקְטַנָּה נִיחָא לֵיהּ אִי בְּחֵרֶשֶׁת נִיחָא לֵיהּ
§ It is taught in the mishna: If one wife is a minor and the other is a deaf-mute, consummation of levirate marriage or ḥalitza of the yavam with one of them does not exempt her rival wife. Rav Naḥman said: I found Rav Adda bar Ahava and Rav Ḥana his son-in-law sitting and posing challenges [kamakvu akvata] to one another in the marketplace of Pumbedita, and saying as follows: That which we learned in the mishna, that in the case of a minor and a deaf-mute, the consummation of levirate marriage with one of them does not exempt her rival wife, applies when she happened before him for levirate marriage as the widow of his halakhically competent brother. Under such circumstances, we do not know if the minor was preferable to the brother who married her initially, or if the deaf-mute was preferable to him.
אִי בִּקְטַנָּה נִיחָא לֵיהּ — דְּאָתְיָא לִכְלַל דֵּיעָה, אִי בְּחֵרֶשֶׁת נִיחָא — דִּגְדוֹלָה הִיא, וּבַת בִּיאָה הִיא. אֲבָל נָפְלָה מֵאָחִיו חֵרֵשׁ — וַדַּאי בְּחֵרֶשֶׁת נִיחָא לֵיהּ, דְּבַת בִּיאָה הִיא וּבַת מִינֵּיהּ הִיא.
The Gemara explains: They wondered if the minor was preferable to him, since she eventually would have come to full intellectual capacity when she reached majority, or if the deaf-mute was preferable, since she is an adult and she is suitable for sexual intercourse. Given the uncertainty, it cannot be determined whose initial marriage was more complete and therefore the levirate marriage of one of them cannot exempt her rival wife. However, if she happened before him for levirate marriage as the widow of his brother who was deaf-mute, certainly the female deaf-mute was preferable to him, as she was suitable for sexual intercourse and was of his kind, and therefore the marriage to her was more complete.
וְאָמֵינָא לְהוּ אֲנָא: אֲפִילּוּ נְפַלָה לֵיהּ מֵאָחִיו חֵרֵשׁ נָמֵי מְסַפְּקָא לֵיהּ.
And I, Rav Naḥman, said to them: Even if she happened before him as the widow of his brother who was deaf-mute, it is still uncertain, because the difference between the marriage of a minor and a deaf-mute in this case is independent of the original husband’s preferences. They are different types of relationships.
כֵּיצַד תַּקָּנָתָן? אָמַר רַב חִסְדָּא אָמַר רַב: כּוֹנֵס הַחֵרֶשֶׁת וּמוֹצִיאָהּ בְּגֵט, וּקְטַנָּה תַּמְתִּין עַד שֶׁתַּגְדִּיל, וְתַחְלוֹץ.
The Gemara asks: How can their situation be rectified, so that they can remarry? Rav Ḥisda said that Rav said: He consummates the levirate marriage with the deaf-mute and then releases her by means of a bill of divorce. He cannot stay married to her because the subsequent ḥalitza of the minor will disqualify her as the rival wife of his yevama who has performed ḥalitza [ḥalutza]. The minor must wait until she reaches majority and then perform ḥalitza.
אָמַר רַב חִסְדָּא: שְׁמַע מִינַּהּ, קָסָבַר רַב: חֵרֶשֶׁת קְנוּיָה וּמְשׁוּיֶּירֶת, קְטַנָּה קְנוּיָה וְאֵינָהּ קְנוּיָה. דְּאִי סָלְקָא דַעְתָּךְ חֵרֶשֶׁת קְנוּיָה וְאֵינָהּ קְנוּיָה, קְטַנָּה קְנוּיָה וּמְשׁוּיֶּירֶת, חֵרֶשֶׁת אַמַּאי כּוֹנֵס וּמוֹצִיאָהּ בְּגֵט?
Rav Ḥisda said: Learn from this statement that Rav holds that a married deaf-mute is partially acquired, and a minor is either acquired or not acquired, i.e., there is uncertainty as to whether she was acquired completely or not acquired at all. For if it enters your mind to say the opposite, that the deaf-mute is either acquired or not acquired, while the minor is partially acquired, then with regard to the deaf-mute woman, why should he consummate the levirate marriage and then release her with a bill of divorce?
