משנה: הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם אַייְלוֹנִית רִבִּי יְהוּדָה אוֹמֵר לֹא יַחֲזִיר וַחֲכָמִים אוֹמרִים יַחֲזִיר. נִישֵּׂאת לְאַחֵר וְהָיוּ לָהּ בָנִים מִמֶּנּוּ וְהִיא תוֹבַעַת כְּתוּבָּתָהּ. אָמַר רִבִּי יְהוּדָה אוֹמֵר לָהּ שְׁתִיקוּתֵיךְ יָפָה מִדִּיבָּרֵיךְ. MISHNAH: If somebody divorces his wife because she is a she-ram189A woman lacking secondary female sex characteristics; she is presumed to be infertile. If she was married when very young and then failed to develop, the husband can claim the the marriage and his obligation of ketubah was entered into in error. Cf. Yebamot 1:1, Note 65; Ketubot 7:7, Note 77. R. Jehudah holds that a she-ram should not be married, Mishnah Yebamot 6:5., Rebbi Jehudah says, he cannot take her back, but the Sages say, he may take her back. If she was married to another man, had children by him, and requests her ketubah, Rebbi Jehudah says, he tells her: Your silence would be better than your talking190This gives R. Jehudah’s rationale. If she was divorced without payment of the sum promised her in the ketubah and it turns out that she is not infertile, the husband tells her that if she goes to court, he will declare that he would never have divorced her, had he known that she was not infertile (or, according to Rashi, that he would have to pay the ketubah), and turn her children from the second husband into bastards..
הלכה: הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם אַייְלוֹנִית כול׳. תַּנֵּי. מִפְּנֵי מַה אָֽמְרוּ. הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם אַייְלוֹנִית לֹא יַחֲזִיר. שֶׁהֲרֵי הַמּוֹצִיא אֶת אִשְׁתּוֹ מִשּׁוּם אַייְלוֹנִית וְהָֽלְכָה וְנִישֵּׂאת לְאַחֵר וְיָֽלְדָה מִמֶּנּוּ בָּנִים. וְאָמַר. אִילּוּ הָיִיתִי יוֹדֵעַ שֶׁאִשְׁתִּי יוֹלֶדֶת אִילּוּ הָיָה אָדָם נוֹתֵן לִי בְאִשְׁתִּי מֵאָה מְנָה לֹא הָיִיתִי מְגָֽרְשָׁהּ. וְנִמְצָא גֵּט בָּטֵל וְהַװְלָד מַמְזֵר. וּמִתּוֹךְ שֶׁהוּא יוֹדֵעַ שֶׁאִם הוּא מְגָֽרְשָׁהּ שֶׁהִיא אֲסוּרָה לַחֲזוֹר לוֹ אַף הוּא נוֹתֵן לָהּ גֵּט שָׁלֵם מִשָּׁעָה רִאשׁוֹנָה. אָמַר רִבִּי זְעִירָה. תֵּדַע לָךְ שֶׁעִילָּה הָיָה רוֹצֶה לְגֵרְשָׁהּ. שֶׁהֲרֵי כַּמָּה נָשִׁים נְשׂוּאִין אַייְלוֹנִיּוֹת וְעַל יְדֵי שֶׁיֵּשׁ לָהֶן נַחַת רוּחַ מֵהֶן מְקַייְמִין אוֹתָן. HALAKHAH: It was stated184Tosephta 3:5.: “Why did they say that he who divorces his wife as a she-ram cannot take her back? For if he divorced his wife as a she-ram, when she went, married another man, and bore him children, and he said, if I had known that she can have children, even if somebody had offered me a hundred minas for my wife I would not have divorced her, then the bill of divorce would be invalidated and her child a bastard. But since he knows that if he divorces her, she will be forbidden to return to him, from the start he gives her a perfect bill of divorce.” Rebbi Ze‘ira said, you can see that he was looking for a pretext to divorce her since there are women she-rams who are married and since [their husbands] are satisfied with them they keep them191He rejects the Mishnah and its implications. If the court would tell him that he was lying when he claimed that he was divorcing her because of infertility, it could force him to pay the ketubah or let him take her back..
רִבִּי יְהוּדָה אוֹמֵר לֹא יַחֲזִיר. וְאַתְּ אָמַר כֵּן. אָמַר רִבִּי יוֹחָנָן. לֵית כָָּאן רִבִּי יְהוּדָה אֶלָּא רִבִּי מֵאִיר. וְתַנֵּי כֵן מִשּׁוּם רִבִּי מֵאִיר. אוֹמֵר לָהּ. שְׁתִיקוּתֵיךְ יָפָה מִדִּיבָּרֵיךְ. “Rebbi Jehudah says, he cannot take her back,” and you say so192Since R. Jehudah prohibits him to take her back and he knows that the divorce is irrevocable, how can he then claim that he would not have divorced her?? Rebbi Joḥanan said, there is no Rebbi Jehudah but Rebbi Meїr193Who is represented by the “Sages” in the Mishnah. The Babli, 46b, disagrees and holds that for R. Meїr the bill of divorce is valid and immune from attack by the first husband unless the bill of divorce was delivered with the explicit declaration that it be valid if and only if she is a sterile she-ram.. It was stated thus in Rebbi Meїr’s name: Your silence would be better than your talking.