Siman 171

The law of two yevamot, a minor and a deaf-mute, or both equal. And it contains 12 seifim: It has already been explained that regarding two yevamot coming from one house, he performs yibbum or chalitzah with one of them and the rival-wife is also exempt; and if he later performs any act with the rival-wife, it is nothing and is like performing an act with a strange woman. And such is the law when he left two wives who were both married to him with rabbinic marriage, such as two minor orphans who were married off by their mothers and their brothers, or two deaf-mutes, for a minor orphan and a deaf-mute do not have marriage from the Torah, and only the sages instituted marriage for them so that people would not treat them as ownerless, as I wrote in siman 43 and 44. And they are not subject to chalitzah, as I wrote in siman 169, and the yavam is only able to perform yibbum if he wishes to perform yibbum with one of them. And for a deaf-mute there is no other remedy but yibbum, and for a minor he is able to wait until she grows up and becomes fit for chalitzah. And when his brother left two minors or two deaf-mutes and he had relations with one of them, the second is also exempt. And if he or his brother returned and had relations with the second, they did not disqualify the first from him, since the power of both of them is equal. And thus the sages taught (111a): One who was married to two minor orphans and died, and the yavam had relations with the first and returned and had relations with the second, or his brother had relations with the second, he did not disqualify the first; and similarly two deaf-mutes, see there. And it is forbidden for him to maintain the second, and she requires a get from him, for even with adult women she would require a get since kiddushin takes effect with her, as I wrote in the previous siman, and all the more so with minors and deaf-mutes where the primary zikah is very weak. And the Rambam, of blessed memory, in chapter 5, law 26, wrote regarding a minor that we instruct her to perform mi'un so that he may maintain the first, and so wrote the Tur and the Shulchan Aruch section 5, and their intention is so that she will not be disqualified from the priesthood by the get (and the Gra in subsection 8 questioned him, for this is only with an adult and a minor, see there; but this is not a necessity, and also the Maggid Mishneh agreed to this, see there).

If he left two wives, one an adult and one a minor orphan, or one of sound senses and one a deaf-mute, the intercourse of the adult or her chalitzah exempts the minor, but the intercourse of the minor does not exempt the adult. Similarly, the intercourse of the one of sound senses or her chalitzah exempts the deaf-mute, and the intercourse of the deaf-mute does not exempt the one of sound senses (ibid. 110a). And the reason is simple: for how could a marriage of rabbinic status exempt a marriage of Torah status? And if after he had intercourse with the adult, he or his brother returned and had intercourse with the minor, the minor requires a get. And according to the opinion of the Rambam, we instruct the minor to perform mi'un against him. And regarding the one of sound senses and the deaf-mute, when he had intercourse with the one of sound senses and returned and had intercourse with the deaf-mute, he or his brother, even according to the Rambam she requires a get, for a deaf-mute is not subject to mi'un. And even though the intercourse of the adult or the one of sound senses already removed the zika, nevertheless, it has already been explained that there is intercourse after intercourse even with two adults of sound senses to require her a get when he had intercourse with the second for the sake of marriage or for the sake of yibbum (the Maggid Mishneh), for kiddushin takes effect with her. And all the more so when the second is a minor or a deaf-mute, whose zika is not complete, that the kiddushin or the intercourse takes effect with her. And if he had intercourse for the sake of licentiousness, it is nothing. And it appears to me that this is the law also regarding two minors or two deaf-mutes that was explained in section 1.

And if the yavam initially cohabited with the deaf-mute woman and then he or his brother returned and cohabited with the woman of sound senses, they have disqualified the deaf-mute woman, for a Torah-level zika disqualifies a rabbinic-level zika, and therefore the deaf-mute woman shall go out with a get. However, the woman of sound senses is also forbidden to him because, in any event, the deaf-mute woman preceded her, and it is like two women from one house; therefore, the woman of sound senses shall also go out with a get. Yet she is still not exempt from the entire zika because she was preceded by a cohabitation that was not complete, and it is like a disqualified cohabitation; therefore, after the get of the woman of sound senses, she also requires chalitzah to permit her to the public.

But regarding a minor and an adult in such a case, where he first had relations with the minor and afterwards he or his brother returned and had relations with the adult, we do not need to forbid the adult, because there is a remedy to uproot the relations with the minor through mian, and it is as if he never had relations with her at all. Therefore, we instruct the minor to perform mian against him, and the adult remains with him or with his brother. This is not like a case where incomplete relations preceded her, because mian uproots even complete kiddushin and nisuin of rabbinic origin, and all the more so when she is a yevamah. This is not the case regarding a deaf-mute and one of sound senses, where it is impossible to perform this remedy, for a deaf-mute is not subject to mian, as mian was only instituted for an orphaned minor.

And there is reason to doubt according to the opinion of the Rambam regarding two minor girls, when he had relations with one and then he or his brother had relations with the second, such that the second requires mian as has been written, whether there is a permission for the first to perform mian and the second to remain with him or with his brother. For from the perspective of logic, it would seem to be permitted, since mian completely uproots the act of relations. However, from the wording of the Rambam it does not imply so, for if it were not so, he should have said "one of them shall perform mian." And one could say the reason is that we do not permit the second through the enactment of mian, as he performed a prohibited act with her; and we only permit the first because her relations were permitted, but not the second. And so it is implied from the wording of the Tur and the Shulchan Aruch, section 5, see there, and see what I wrote in section 11.

If the deceased left two wives, one a minor and one a deaf-mute, there is a different law in this case. And even though both are by rabbinic law, nevertheless they are not similar to one another. The reason is explained in the Gemara (110b) that the zika of the deaf-mute is acquired and remaining, while the zika of the minor is a doubt whether it is completely acquired or not acquired at all. The explanation of the matter is that although both are rabbinic marriages, nevertheless their acquisitions are not similar to one another. For the minor, her marriage is dependent until she grows up and does not perform mi'un, and then if she does not perform mi'un, the matter is clarified retroactively that he acquired her with a complete acquisition, and if she performs mi'un, her acquisition is completely voided. But the deaf-mute is bound to him forever, as she does not have the ability to perform mi'un, and if he does not wish to divorce her, she is his wife like all women. Nevertheless, her acquisition is not a complete acquisition because she will never come to have legal competence, and it is close to the matter that she is not according to his will. But the minor will eventually come to have legal competence. Therefore, the zika is also not equal, for the zika of the deaf-mute is somewhat of a certain zika and also not a complete zika because the acquisition is such, acquired and remaining. But the minor is either completely bound because her acquisition, it can be said, is a complete acquisition if she does not perform mi'un, and her zika is superior to the zika of the deaf-mute and the intercourse of the deaf-mute does not exempt her; or she is not bound at all because her acquisition, it can be said, is no acquisition at all if she performs mi'un, and the zika of the deaf-mute is superior to her and the intercourse of the minor does not exempt her. And if they were capable of chalitzah, the law would be simple that both perform chalitzah, but the deaf-mute is not capable of chalitzah at all and only yibum is her remedy. Also, the minor is not capable of chalitzah in her minority, but only when she grows up. And to perform yibum with both of them is impossible, for it is forbidden to build two houses from one house. And to perform yibum with one of them is impossible, as the second is not exempted by the intercourse of this one.

And it is stated in the Gemara there two remedies for this: one, Rava said, he marries the deaf-mute woman and releases her with a get, and the minor shall wait until she grows up and performs chalitzah; for he cannot marry her since he already married the deaf-mute woman, and it is also impossible to keep the deaf-mute woman when the minor grows up, for when she performs chalitzah to him, the deaf-mute woman will be disqualified because of "once he does not build," since the intercourse of the deaf-mute woman did not exempt her, as has been written. Therefore, for the time being, he performs yibbum with the deaf-mute woman, and if the minor grows up and performs chalitzah, he shall divorce her then. And there is yet another remedy for this, for just as we wrote regarding an adult and a minor, when he has intercourse with the minor first, we instruct the minor to perform mi'un and the adult becomes permitted, as has been written in section 4; and here too it is possible to do so, to instruct the minor to perform mi'un, and he performs yibbum with the deaf-mute woman and does not need to divorce her.

And behold, the Rif and the Rambam ruled indeed so, that the minor shall perform mi'un and the deaf-mute woman is taken in yibbum, and if he subsequently desires to divorce her, he divorces her and she is permitted to the market. However, the Ra'avad, of blessed memory, ruled according to the enactment of Rav, that he should take the deaf-mute woman in yibbum and then divorce her, and the minor shall perform chalitzah once she grows up. And his reasoning is that the enactment of mi'un was only instituted in order to fulfill a Torah commandment of yibbum, such as the case of the minor and the adult woman in section 4, where regarding the adult woman there is a Torah yibbum; but for the sake of the enactment for the deaf-mute woman, which is not from the Torah, it is sufficient that he fulfill the rabbinic commandment of yibbum with the first cohabitation or until the minor grows up, and we do not resort to mi'un for her sake, as one must distance oneself from mi'unim (Yevamot 109a). But the Rosh, the Tur, and the Shulchan Aruch in section 1 ruled like the Rif and the Rambam, for certainly if he desires to divorce her, who shall prevent him? But if he does not desire to divorce her, why should we not make an enactment for this unfortunate woman? And this is certainly also a mitzvah. Furthermore, for the reason that one must distance oneself from mi'un, the Sages, of blessed memory, said "perhaps she will regret it when she grows up," and here there is no such concern, for ultimately she is forbidden to him and must leave with chalitzah (Ramban); therefore, the enactment of mi'un is preferable.

The Rambam, of blessed memory, wrote (ibid.): If the yavam first had intercourse with the minor and then he or his brother had intercourse with the deaf-mute, he has not disqualified the minor, and the deaf-mute requires a get because the intercourse of the minor is superior to the intercourse of the deaf-mute, for the minor is destined for competence after a period of time; therefore, he shall maintain the minor who was first subjected to intercourse. Thus far his words. And his words are explained because the intercourse of the deaf-mute does not disqualify the minor to him, for since the minor is either completely bound by zika or not bound at all as I have written, if so, whichever way you look at it: if she is completely bound, she is superior to a deaf-mute and the intercourse of the deaf-mute does not forbid her as I have written, and if she is not bound at all, she is like a stranger and is not of this house. And such is his version of the text in the Mishnah in Yevamot (111b): If a yavam had intercourse with a minor and then had intercourse etc. with a deaf-mute, he has not disqualified etc. And that which he wrote that the intercourse of the minor is superior, his intention is to say that it is not only necessary to say if she is not completely acquired that it is obvious she is like a stranger and is permitted, but even if she is acquired, she is superior to a deaf-mute, for if she is acquired, her acquisition is complete as I have written, and the reason is because after she grows up, if she does not perform mi'un, she is of complete legal competence, which is not the case with a deaf-mute (and this answers the difficulty of the Lechem Mishneh, see there).

But the version of Rashi, of blessed memory, and such is also the version of the Tosafot and the Ra'avad, of blessed memory, is that if he had intercourse with the minor and afterward with the deaf-mute, he has disqualified the minor. And they explained the reason: perhaps he would precede and have intercourse with the deaf-mute first, and afterward have intercourse with the minor, for the minor certainly disqualifies the deaf-mute; for if she is fully bound, she is superior to a deaf-mute who is only partially bound, and perhaps she is fully bound and rejects the deaf-mute so that there should not be two women from one house. Therefore, they also decreed in a case where he had intercourse with the minor first and afterward with the deaf-mute, that the deaf-mute prohibits her as well. And in the Shulchan Aruch, only the opinion of the Rambam was brought.

If he first cohabited with the deaf-mute woman and then he or his brother returned and cohabited with the minor, the Rambam wrote that he has disqualified the deaf-mute woman, and we instruct the minor to perform mian, and the deaf-mute woman leaves with a get. Thus far his words. Behold, we have explained the reason for the disqualification of the deaf-mute woman, and also the mian of the minor follows his reasoning as I have written; the mian is so that she will not need to wait until she grows up to perform chalitzah. However, that which he wrote, that the deaf-mute woman leaves with a get, his words are puzzling. Why should she leave with a get? Behold, the mian uproots the zika retroactively, as he himself wrote regarding two minors. The Rashba, of blessed memory, already raised this difficulty against him (and the Kesef Mishneh brought it and remained with the difficulty). It appears to me that the opinion of the Rambam is this: when the cohabitation was completely permitted, then we push aside the prohibition of "two houses" by means of the mian. This is not the case when his initial cohabitation was not according to the law, for he should have previously seen to it that the minor perform mian before he cohabited with the deaf-mute woman. Furthermore, as soon as he cohabited with the minor, the deaf-mute woman became prohibited, and since she was prohibited for one moment, it is impossible for her to return to her permitted state. A proof for this is from what he wrote in section 5 regarding two minors, that the second does not return to a permitted state by means of the mian of the first; see there. (The words of the Tur are very puzzling, as written in the Yam Shel Shlomo, Perek Beit Shammai, siman 23; see there).

It appears to me regarding all the laws that were explained concerning minority, if they reached majority by the time of the yibum, we follow the time of their falling for yibum. And if the minor girl reached majority in the interim, then there is no remedy through mi'un, for in her majority it is impossible for her to perform mi'un, as written in siman 155. Therefore, it is necessary to judge according to the time of the falling, whether for permission or for prohibition. And similarly, regarding a deaf-mute woman who regained her hearing by the time of the yibum, one must judge according to the time of the falling, and they are then fit for chalitzah.