Today’s page contains an extensive discussion of how the laws of personal status, including marriage and divorce, do and don’t apply to people who are classed as a pikeach, a cheresh and a shoteh. These terms can be best translated as “hearing,” “Deaf,” and “legally incompetent,” usually due to some perceived psychological or intellectual disability. While those who are “hearing” are understood to be fully legally competent, and therefore subject to and able to participate in the rabbinic laws of marriage and divorce, the rabbis limit the degree of participation in these laws for the cheresh and the shoteh.
Thus according to today’s daf:
A Deaf woman does not have a marriage contract.
That is, a (hearing) man who marries a Deaf woman is not required to write a formal contract which obligates him in certain things during their marriage, and enacts financial obligations if the marriage ends. Why not? The Gemara explains that if a (hearing) man were required to take on marital obligations for a Deaf woman upon marriage:
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He would refrain from marrying her.
The Gemara assumes that men would not want to marry this woman without legal and financial incentives. We’ll come back to this teaching, but let me just say that I think this assumption is disrespectful to people with disabilities, and to those — disabled and abled — who love them and want to marry them.
Beyond the laws of personal status, today’s daf limits the legal abilities of the cheresh and the shoteh in other spheres as well. It quotes a mishnah in Terumot that describes who is permitted to separate the agricultural tithes. Knowing the rules of tithing is important, because the rabbis believe it is forbidden to eat any of one’s agricultural harvest until the correct tithes have been taken. The laws are also difficult and complicated. So the quoted mishnah specifies:
Five categories of people may not separate terumah, and if they separated terumah, their terumah is not considered terumah. They are: A cheresh, a shoteh, and a minor, and one who separates terumah from produce that is not his, and a gentile who separated terumah of a Jew even with the Jew’s permission.
The rabbis don’t trust a child or a non-Jew to correctly separate terumah because they consider Jewish adults the only people qualified to know the laws and perform the procedure correctly. Beyond that, not every Jewish adult, the rabbis assume, may be physically and intellectually able and thus legally competent to understand issues of consent, ritual status and the minutiae of rabbinic thinking.
This rabbinic move may well have mirrored the mores of their day, but I’d like to think we have moved (or, at least, are working to move) beyond it. Excluding whole categories of people from obligations and rights inherent in parts of the halakhic system overlooks what each member of the Jewish community brings to the table. Recognizing this truth, across the Jewish denominations, there are groups working to integrate disabled people more fully into Jewish practice and tradition. And indeed, some in our MJL community journeying through Daf Yomi together are themselves disabled. Each member of our community brings their own unique life experiences and enriches the learning for all of us.
I want to end with a rabbinic countervoice from Pirkei Avot, the Ethics of our Forefathers. The second-century Rabbi Shimon ben Azzai taught: “Do not despise any person, and do not discriminate against anything, for there is no person that has not their hour, and there is no thing that has not its place.” (Pirkei Avot 4:3)
In our day, I hope, we are more inclined to take our cues from this kind of teaching, to recognize that all of us are worthy of dignity and respect, and that the more fully each of us can participate in our community and the world, the better for us all.
Read all of Yevamot 113 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on June 28th, 2022. If you are interested in receiving the newsletter, sign up here.
