Cheresh and Chereshet

Yevamot (14:1) | Yisrael Bankier | a year ago

The Mishnah discusses cases where a couple was married and then one of the parties become a cheresh (deaf-mute). The Mishnah explains that if the wife became a chereshet, then they can continue to be married, but if he wishes to divorce her he can do so. If however he becomes a cheresh, then they would not be able to get divorced. We shall try to understand this Mishnah.

Recall that a cheresh is considered as not having daat -- understanding to a level that has halachic significance. It is clear then why if he becomes a cheresh they cannot get divorced. Neither was a cheresh when they got married, so their marriage was binding on a biblical level. Once he becomes a cheresh, he is no longer a ben daat and therefore unable to give a get. R' Yochanan ben Nuri therefore asks that if that is the case, the same should be true if she became a chereshet. She is no longer a bat daat and therefore they should not be able to get divorced. The Chachamim respond that while the husband must be a willing participant in giving the get, it is not necessary for the wife to be.

Focusing on the opinion of R' Yochanan ben Nuri, it appears as if he understands that a woman can never be divorced against her will. The Beit Yitzchak (Even HaEzer II 3:4) finds this difficult, considering that in the case of ones or mefateh, the Torah teaches that the man may never divorce her (against her will). According to R' Yochanan ben Nuri, what then is unique about the case of ones and mefateh? Her willingness is required in all cases of divorce. Another question is based on the understanding that the ketubah was instituted with financial obligations so that a husband could not flippantly divorce his wife. According to R' Yochanan ben Nuri he would not be able to divorce her without her consent anyway, so the introduction of the ketubah appears unnecessary.

The Beit Yitzchak therefore understands that R' Yochanan ben Nuri's position is specifically in the case of a cheresh. He cites the Yerushalmi (14:2) that asks (in the context of the discussion there) that regarding a pikachat (one who is not a chereshet) since they have daat, they can be divorced with or without daat. A chereshet however, who does not have daat, daat would be required for her to be divorced. The Korban Ha'Eidah there explains that this is similar to the principle of "kol ha'raui le'bilah..." In other words, daat does not prevent the divorce, provided it is possible to have daat.

The Tosfot (112b s.v. he'id) explains that the reason is that when the get is handed over, it will not be a full shiluchin since she will not understand and likely return. Shayarei HaKorban however finds this answer difficult since it could be explained to her prior to the get being given. He suggests that the above Yerushalmi, that requires daat, is based on the hekesh (connection) that connects marriage and divorce ("ve'halcha ve'hayta le'ish acher"). Just as daat is a requirement for marriage it is also required for divorce. The Chachamim however understand from the pasuk "ve'natan be'yadah" that it is not necessary for divorce.

The Keren Orah (Yevamot 113b) also understands that R' Yochanan ben Nuri's position specifical relates to a chereshet. He explains that R' Yochanan ben Nuri agrees that a woman's daat is not required for divorce. She must nevertheless be aware that she has received her get (albeit against her will). R' Yochanan ben Nuri understands that a chereshet is in a worse position since that basic awareness will be lacking.

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