Yevamot, Chapter Fourteen, Mishnah One

 

Introduction

This chapter is concerned with divorce or yibbum involving a deaf man and/or woman.  As we have mentioned previously, according to the rabbis deaf-mutes lack “da’at”, which I translate as “awareness” and hence they cannot truly contract marriage.  The marriage which they do contract is considered “derabbanan”, that is of rabbinic origin.  I should note that although halakhically speaking deaf-mutes were considered to lack “da’at”, in reality the rabbis often recognize that deaf-mutes do not necessarily lack intelligence.  Furthermore, as I stated in other opportunities, now that complex sign-language has been invented, deaf-mutes can be halakhically regarded as fully intelligent human beings.

 

Mishnah One

1)                     If a deaf man married a woman of sound senses or a man of sound senses married a deaf woman he may, if he wishes, divorce her, and he may, if he wishes retain her; just as he marries by gestures so he divorces her by gestures.

2)                     If a man of sound senses married a woman of sound senses and she became deaf, he may, if he wishes, divorce her; and he may, if he wishes, retain her.

a)                                 If she became insane he may not divorce her.

b)                                 If he became deaf or insane, he may never divorce her.

3)                     Rabbi Yohanan ben Nuri says: Why may a woman who became deaf be divorced while a man who became deaf may not divorce [his wife]?

a)                                 They answered him: a man who divorces is not like a woman who is divorced, for while a woman may be divorced with her consent and without her consent, a man can divorce only with his consent.

 

Explanation

Section one:  A deaf man can divorce a woman of sound senses by making gestures that make it clear that he wants to divorce her.  Just as he can marry a woman by making gestures which make his intent clear, so too he can divorce her.  A man of sound senses can divorce a deaf woman, even though she may not understand that she is being divorced.  This is because a woman can be divorced against her will, as we shall see in section three below.

Section two:  Whereas in section one the marriage was only of rabbinic status (because one party was deaf at the time of marriage), in this section the marriage is of deoraita status because both parties were of sound senses at the time of marriage.  Hence the law is different in this case.  If she becomes deaf he may still divorce her, because she may be divorced against her will.  However, if she becomes insane, he may not divorce her.  This is a special measure of protection offered the wife so that she will still have a husband and be less subject to mistreatment by others.  If the husband becomes deaf or insane he may not divorce her.  Since the original marriage was of a higher status, he can no longer end the marriage when he lacks “da’at”.

Section three:  In this section, through Rabbi Yochanan be Nuri’s question and the Sages answer, the discrimination between the divorce of a deaf woman and the divorce of a deaf man is explained.  Since a woman can be divorced without her consent, she can still be divorced when she is legally incapable of consenting (when deaf or insane).  Her consent is irrelevant.  In contrast, a man must express his will to divorce a woman and hence if he is legally incapable of expressing his will, he may not divorce.  I should note that this is one of the greatest examples of discrimination in Jewish law, but it was mostly corrected in the Middle Ages by Rabbenu Gershom who made a decree that a woman cannot be divorced against her will.  Until this day, this is still the law.

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