The fourteenth perek opens with a discussion dealing with the halachic status of an action performed by a cheresh – a deaf mute. A deaf and mute person is considered feeble-minded, and is considered by Torah law to be legally incompetent. The question at hand is, if this person either receives or performs kidushin do we view this process as a binding act that will leave the man and woman married. The Mishnah rules that a cheresh can indeed get married, yet this marriage is only binding on a rabbinic level.
The Mishnah comments and explains an interesting practical problem that if the man is a deaf and mute, how is he able to communicate to his bride that he wishes to marry her. The Halacha allows the man to hint to his wife, and if she is mute herself, she is allowed to hint in return to express her desire to marry.
However, to truly understand what the chiddush of the Mishnah is, we must first ask why the action of the deaf-mute is not halachically binding?
Within the Gemara the deaf-mute person is often grouped with two other types of people, a shoteh and a minor. This ‘famous’ group of three are often unable to perform certain halachic actions. The problem is that for an action to be considered valid, both parties need to fully comprehend what is happening. For example, a child12 who is below the age of bar mitzvah, often would not fully understand that when they sell an item and receive money or goods in return that they have lost all rights and claims over the item that they have sold. However, the Halacha does recognise that the child is able to purchase something since they can understand the concept of receiving.
The distinction between giving and taking forms one of the main pillars of Rav Dessler’s ztz”l philosophy. Rav Dessler13 explains:
The faculty of giving is a sublime power; it is one of the attributes of the Creator of all things. He is the Giver par excellence; His mercy, His bounty and His goodness extend to all His creatures. His giving is pure giving for He takes nothing in return.
He later explains that the action of taking is where a person aspires to draw to himself all that comes within his reach.
This principle of Rav Dessler, which is classically only used for moral teachings, can however be used to understand the din of the Mishnah and why the Rabbis allow such a marriage to take halachic status when the Torah did not.
The general problem is that the cheresh is unable to understand giving; that there are two parties who after the exchange will have no legal bond or relationship. However, in the case of kidushin what is being created is one new entity, as the Torah describes in Bereshit (2:24) that they should leave their parent’s home and become one. The cheresh can understand this change in status. However, a regular case of giving or buying and selling, where there are clearly two separate parties, the cheresh is unable to comprehend. The act of giving and losing all connection needs a mature and developed understanding, which according to the Halacha the cherish does not have.14
12 The same would apply for both the cheresh and shoteh, either for the same reason or another reason.
13 Rav Dessler ztz”l, was Mashgiach in Gateshead Yeshiva, England and Ponevich Bnei Brak, Israel.
14 Rav Dessler ztz”l, does explain later in the article that at times taking is not just a necessary act but even the correct thing.
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