תִּיתֵּיב גַּבֵּיהּ מִמָּה נַפְשָׁךְ אִי קְנוּיָה הִיא הָא קְנוּיָה הִיא וְאִי לָאו קְנוּיָה הִיא הָא נׇכְרִית בְּעָלְמָא הִיא Let her stay with him, as she is permitted whichever way you look at it: If she is acquired, then she is fully acquired; and if she is not acquired at all, then she is merely an unrelated woman. If the marriage to the deceased brother was not a true marriage, there is no reason for her to be forbidden to him.
וְכִי תֵּימָא קְטַנָּה אַמַּאי תַּמְתִּין עַד שֶׁתַּגְדִּיל וְתַחְלוֹץ תִּיתֵּיב גַּבֵּיהּ אִי קְנוּיָה הִיא הָא קְנוּיָה הִיא אִי לָאו קְנוּיָה הִיא נוּכְרִיתָא בְּעָלְמָא הִיא אִם כֵּן חֵרֶשֶׁת בְּמָה תִּיפּוֹק And if you would say that the same question could be asked if you claim that it is the minor whose acquisition is uncertain: Why should she wait until she reaches majority and performs ḥalitza? Let her stay with him: If she is acquired, then she is fully acquired; and if she is not acquired at all, then she is merely an unrelated woman. However, you cannot say that because, if that is so, how shall the deaf-mute be released? As a deaf-mute, she cannot perform ḥalitza, and he cannot consummate the levirate marriage with her since the minor may be considered to be acquired by him, in which case the deaf-mute would be disqualified as the rival wife of his yevama. Rav’s suggestion was meant to find a way for both of them to be able to remarry, and that is only possible if the minor and deaf-mute’s statuses are as Rav Ḥisda argues.
אָמַר רַב שֵׁשֶׁת הָכִי נָמֵי מִיסְתַּבְּרָא כִּדְקָא מְתָרֵץ רַב חִסְדָּא אַלִּיבָּא דְרַב Rav Sheshet said: Indeed, this too stands to reason, i.e., only the way that Rav Ḥisda explained the halakha in accordance with the opinion of Rav is reasonable.
דְּתַנְיָא שְׁנֵי אַחִין נְשׂוּאִין שְׁתֵּי אֲחָיוֹת יְתוֹמוֹת קְטַנָּה וְחֵרֶשֶׁת מֵת בַּעְלָהּ שֶׁל קְטַנָּה חֵרֶשֶׁת יוֹצְאָה בְּגֵט וּקְטַנָּה תַּמְתִּין עַד שֶׁתַּגְדִּיל וְתַחְלוֹץ As it is taught in a baraita about the following case: Two brothers married two orphaned sisters, one of them a minor and one of them a deaf-mute. If the husband of the minor dies and she happens before the husband of the deaf-mute for levirate marriage, the deaf-mute must be released by means of a bill of divorce due to her sister’s levirate bond, and the minor must wait until she reaches majority and perform ḥalitza.
מֵת בַּעְלָהּ שֶׁל חֵרֶשֶׁת קְטַנָּה יוֹצְאָה בְּגֵט וְחֵרֶשֶׁת אֲסוּרָה לְעוֹלָם וְאִם בָּא עַל הַחֵרֶשֶׁת נוֹתֵן לָהּ גֵּט וְהוּתְּרָה If the deaf-mute’s husband dies, the minor must be released by means of a bill of divorce and the deaf-mute is forbidden forever. He must divorce the minor because of the levirate bond with her sister. He may not consummate the levirate marriage with the deaf-mute because she is his ex-wife’s sister; and he cannot perform ḥalitza with her, because she is not capable of performing ḥalitza. And if he transgresses and consummates the levirate marriage with the deaf-mute, he gives her a bill of divorce afterward, and she is thereby released.
אִי אָמְרַתְּ בִּשְׁלָמָא חֵרֶשֶׁת קְנוּיָה וּמְשׁוּיֶּירֶת קְטַנָּה קְנוּיָה וְאֵינָהּ קְנוּיָה מִשּׁוּם הָכִי דְּכִי בָּא עַל הַחֵרֶשֶׁת נוֹתֵן לָהּ גֵּט וְהוּתְּרָה דְּאָמְרַתְּ מִמָּה נַפְשָׁךְ אִי קְטַנָּה קְנוּיָה הִיא הָא נָפְקָא מִשּׁוּם אֲחוֹת אִשָּׁה אִי לָאו קְנוּיָה שַׁפִּיר מְיַבֵּם Granted, this argument works if you say that the deaf-mute is partially acquired, and the minor is either acquired or not acquired; it is due to that reason that if he transgresses and consummates the levirate marriage with the deaf-mute, he gives her a bill of divorce and she is released. You would say she is released whichever way you look at it: If the minor is fully acquired by her husband, then the deaf-mute is released due to her status as the sister of his wife, who is a forbidden relative and as such is entirely exempt from levirate marriage. And if the minor is not acquired at all, then he may rightly consummate the levirate marriage and afterward divorce her.
אֶלָּא אִי אָמְרַתְּ חֵרֶשֶׁת קְנוּיָה וְאֵינָהּ קְנוּיָה קְטַנָּה קְנוּיָה וּמְשׁוּיֶּירֶת כִּי בָא עַל חֵרֶשֶׁת אַמַּאי נוֹתֵן גֵּט וְהוּתְּרָה הָוְיָא לֵיהּ בִּיאָה פְּסוּלָה וּבִיאָה פְּסוּלָה לָא פָּטְרָה But if you say that the deaf-mute is either acquired or not acquired, i.e., the status of a marriage with a deaf-mute is uncertain, while the minor is partially acquired, then when he transgresses and has intercourse with the deaf-mute, why should he give her a bill of divorce and she thereby be released? It is an invalid sexual act, as the minor is partially acquired, which disqualifies her sister from levirate marriage. And an invalid sexual act does not exempt her, i.e., does not constitute full consummation of the levirate marriage, making it possible for him to divorce her. She still requires ḥalitza, and a deaf-mute cannot perform ḥalitza. Therefore it must be, as Rav Ḥisda suggested, that the deaf-mute is partially acquired while it is uncertain whether the minor is acquired or not.
הָא מַנִּי רַבִּי נְחֶמְיָה הִיא דְּאָמַר בִּיאָה פְּסוּלָה פּוֹטֶרֶת מֵחֲלִיצָה The Gemara rejects the conclusion that the baraita provides evidence for Rav Ḥisda’s explanation, as it is possible to say: In accordance with whose opinion is this baraita? It is in accordance with the opinion of Rabbi Neḥemya, who said: An invalid sexual act also exempts a woman from ḥalitza.
אִי רַבִּי נְחֶמְיָה אֵימָא סֵיפָא מִי שֶׁהָיָה נָשׂוּי שְׁתֵּי יְתוֹמוֹת קְטַנָּה וְחֵרֶשֶׁת וּמֵת בָּא יָבָם עַל הַקְּטַנָּה וְחָזַר וּבָא עַל הַחֵרֶשֶׁת אוֹ שֶׁבָּא אָחִיו עַל הַחֵרֶשֶׁת נֶאֶסְרוּ שְׁתֵּיהֶן עָלָיו כֵּיצַד תַּקָּנָתָן חֵרֶשֶׁת יוֹצֵאת בְּגֵט וּקְטַנָּה תַּמְתִּין עַד שֶׁתַּגְדִּיל וְתַחְלוֹץ The Gemara asks: If one accepts the suggestion that this baraita is in accordance with the opinion of Rabbi Neḥemya, say the latter clause of this same baraita: Consider the case of one who was married to two orphans, a minor and a deaf-mute, and he died. If the yavam had intercourse with the minor and then had intercourse with the deaf-mute, or if one of his brothers had intercourse with the deaf-mute after the first brother engaged in intercourse with the minor, they are both forbidden to the first brother. How can their situation be rectified? The deaf-mute must be released with a bill of divorce, and the minor must wait until she reaches majority and then perform ḥalitza.
אִי אָמְרַתְּ בִּשְׁלָמָא חֵרֶשֶׁת קְנוּיָה וּמְשׁוּיֶּירֶת קְטַנָּה קְנוּיָה וְאֵינָהּ קְנוּיָה וְרַבָּנַן הִיא מִשּׁוּם הָכִי תַּמְתִּין עַד שֶׁתַּגְדִּיל וְתַחְלוֹץ דְּדִלְמָא קָדֵים וּבָעֵיל חֵרֶשֶׁת בְּרֵישָׁא וְהָוְיָא לֵיהּ בִּיאָה דִקְטַנָּה בִּיאָה פְּסוּלָה Granted, this halakha makes sense if you say that a deaf-mute is partially acquired, meaning that she was never fully acquired in the first place; that a minor is either acquired or not acquired; and that the baraita is in accordance with the opinion of the Rabbis who state that an invalid sexual act does not exempt a woman from ḥalitza. For these reasons, the minor must wait until she reaches majority and then perform ḥalitza. The Sages decreed that she must perform ḥalitza no matter what, as perhaps he may precipitately have intercourse with the deaf-mute first, so that the subsequent intercourse with the minor is considered an invalid sexual act, because he is already partially married to her rival wife. However, since the deaf-mute is only partially acquired, her levirate marriage does not exempt the minor and the minor still must perform ḥalitza.
אֶלָּא אִי אָמְרַתְּ רַבִּי נְחֶמְיָה הָא אָמַר בִּיאָה פְּסוּלָה פָּטְרָה But if you say it is in accordance with the opinion of Rabbi Neḥemya, and also that the status of a deaf-mute’s marriage is uncertain while the status of the minor is that she is partially acquired, there is no explanation why the minor must perform ḥalitza when she reaches majority, as he said that an invalid sexual act exempts her.
אֶלָּא שְׁמַע מִינַּהּ רַבָּנַן הִיא שְׁמַע מִינַּהּ Rather, conclude from this reasoning that this baraita is in accordance with the opinion of the Rabbis. The Gemara concludes: Learn from it.
אָמַר רַב אָשֵׁי מֵרֵישָׁא נָמֵי שְׁמַע מִינַּהּ דְּרַבָּנַן הִיא דְּקָתָנֵי אִם בָּא עַל הַחֵרֶשֶׁת נוֹתֵן לָהּ גֵּט וְהוּתְּרָה וְלָא קָתָנֵי אִם בָּא עַל הַקְּטַנָּה נוֹתֵן לָהּ גֵּט וְהוּתְּרָה Rav Ashi said: One may learn also from the first clause of the baraita that it is in accordance with the opinion of the Rabbis, as it teaches: If he transgresses and consummates the levirate marriage with the sister, who is a deaf-mute, he gives her a bill of divorce afterward, and she is thereby released. And it does not teach: If he consummates the levirate marriage with the minor, he gives her a bill of divorce and she is released. This is presumably because consummation of levirate marriage with the minor is an invalid sexual act, as her deaf-mute sister is partially married to the yavam. Even if he does engage in intercourse with her, she will still require ḥalitza.
אִי מִשּׁוּם הָא לָא אִירְיָא חֵרֶשֶׁת דְּלֵית לַהּ תַּקַּנְתָּא דְהֶיתֵּירָא קָתָנֵי תַּקַּנְתָּא דְאִיסּוּרָא קְטַנָּה דְּאִית לַהּ תַּקַּנְתָּא דְהֶיתֵּירָא לָא תָּנֵי תַּקַּנְתָּא דְאִיסּוּרָא The Gemara rejects this argument: If it is due to that reason, there is no conclusive argument, as one may say that for the deaf-mute, whose situation has no rectification that is permitted because she cannot perform ḥalitza, the baraita teaches a prohibited rectification; but for the minor, whose situation has a permitted rectification, in that she can perform ḥalitza after she reaches majority, the baraita does not teach a prohibited rectification.
מַתְנִי׳ מִי שֶׁהָיָה נָשׂוּי לִשְׁתֵּי יְתוֹמוֹת קְטַנּוֹת וּמֵת וּבָא יָבָם עַל הָרִאשׁוֹנָה וְחָזַר וּבָא עַל הַשְּׁנִיָּה אוֹ שֶׁבָּא אָחִיו עַל הַשְּׁנִיָּה MISHNA: If a man was married to two minor orphans and he died, and a yavam engaged in intercourse with the first of them to consummate the levirate marriage, and then engaged in intercourse with the second, or if his brother who is also their yavam engaged in intercourse with the second,