מאי לאו דלא בעל לא דבעל אי דבעל מאי טעמא דשמואל קסבר כל הבועל על דעת קדושין הראשונים הוא בועל 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.
והא פליגי בה חדא זימנא דאיתמר קדשה על תנאי וכנסה סתם רב אמר צריכה הימנו גט ושמואל אמר אינה צריכה הימנו גט 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.
רב אמר צריכה הימנו גט כיון דנסבה אחולי אחליה לתנאיה ושמואל אמר אינה צריכה הימנו גט כל הבועל על דעת קדושין הראשונים הוא בועל 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.
צריכא דאי איתמר ההיא בההיא קאמר רב משום דאיכא תנאה וכיון דבעל אחליה לתנאיה אבל בהא אימא מודה ליה לשמואל ואי איתמר בהא בהך קאמר שמואל אבל בהך אימא מודה ליה לרב צריכא 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.
ומי אמר רב כי בעל אין אי לא בעל לא והא ההיא עובדא דהוה בנרש ואיקדישה כשהיא קטנה וגדלה ואותביה אבי כורסייא ואתא אחרינא וחטפה מיניה ורב ברונא ורב חננאל תלמידי דרב הוו התם ולא הצריכוה גיטא מבתרא 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.
אמר רב פפא בנרש מינסב נסיבי והדר מותבי אבי כורסייא רב אשי אמר הוא עשה שלא כהוגן לפיכך עשו בו שלא כהוגן ואפקעינהו רבנן לקידושי מיניה 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.
אמר ליה רבינא לרב אשי תינח דקדיש בכספא קדיש בביאה מאי שויוה רבנן לבעילתו בעילת זנות אמר רב יהודה אמר שמואל הלכה כרבי אליעזר וכן אמר רבי אלעזר הלכה כרבי אליעזר: 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.
מתני׳ מי שהיה נשוי לשתי יתומות קטנות ומת ביאתה או חליצתה של אחת מהם פוטרת צרתה וכן שתי חרשות קטנה וחרשת אין ביאת אחת מהן פוטרת צרתה 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.
פקחת וחרשת ביאת הפקחת פוטרת החרשת ואין ביאת החרשת פוטרת את הפקחת גדולה וקטנה ביאת הגדולה פוטרת הקטנה ואין ביאת הקטנה פוטרת הגדולה: 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.
גמ׳ וחרשת בת חליצה היא והתנן חרש שנחלץ וחרשת שחלצה וחולצת מן הקטן חליצתה פסולה 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?
אמר רב גידל אמר רב אביאה רבא אמר אפילו תימא אחליצה כאן בחרשת מעיקרא כאן בפקחת ואח"כ נתחרשה 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.
חרשת מעיקרא כי היכי דעל הכי נפק פקחת ואחר כך נתחרשה לא דמעכבא בה קרייה 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.
איתיביה אביי וחרשת מעיקרא בת חליצה היא והתנן שני אחין אחד פקח ואחד חרש נשואין לשתי נכריות אחת פקחת ואחת חרשת מת חרש בעל חרשת מה יעשה פקח בעל פקחת כונס ואם רצה להוציא יוציא 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.
מת פקח בעל פקחת מה יעשה חרש בעל חרשת כונס ואינו מוציא לעולם מאי לאו בחרשת מעיקרא וקתני כונס אין 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,