Deaf And Dumb In Jewish Law:

By: Louis Ginzberg , Julius H. Greenstone

In Jewish legislation deaf and dumb persons are frequently classed with minors and idiots, and are considered unable to enter into transactions requiring responsibility and independence of will. They are regarded as irresponsible persons in the eye of the law, and in many cases their claims upon others, or the claims of others upon them, have no validity. Still, to preserve peace and order, the Rabbis made special provisions for this class in civil, criminal, and ritual cases.

As Witnesses.

The deaf-mute, as well as the deaf or the mute, was not competent to be a witness to any transaction; for all testimony was given by word of mouth, and the witnesses had to be able to hear the exhortation of the court. There was only one exception to this rule, and that was in the case of an ' Agunah , where the testimony of deaf-mutes was sufficient to warrant her remarriage. No oath could be administered to deaf-mutes, nor could an oath be administered through charges brought by them (Maimonides, "Yad," To'en, v. 12; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 96, 5). To a dumb person, however, an oath could be administered, either by his writing out the formula of the oath above his signature, or by his assenting to the oath read before him by nodding his head in approval (Eisenstadt, "Pitḥe Teshubah," Shulḥan 'Aruk, ad loc. ).

A deaf-mute who caused bodily injury to another person, or whose ox gored a man, could not be punished by the court, although an injury to him or to his possessions was punishable. The court, however, had to appoint a trustee for the ox that proved itself to be mischievous; and this trustee was then held responsible (B. Ḳ. 39a, 87a; "Yad," Nizḳe Mamon, vi. 3; ib. ḥobel, iv. 20; ḥoshen Mishpaṭ, 406, 5, and 424, 8).

The uninterrupted possession of real estate for three years, which, according to Jewish law, established one's claim to the land, was of no avail when the property belonged to a deaf-mute, or when the deaf-mute was the holder (To'en, xiii. 2; Ḥoshen Mishpaṭ, 149, 18).

The deaf-mute or the deaf, after he had satisfied the court as to his full understanding of the transaction under consideration, could buy and sell movable goods, but not real estate. The dumb, however, who was not deaf, might transact business and make gifts, even in real estate (Giṭ. 59a, 71a; "Yad," Mekirah, xxix. 2; Ḥoshen Mishpaṭ, 235, 17-19).

Since the deaf-mute had no legal power of acquiring property, if he found anything he was not entitled to the possession of it, and any one might take it away from him. The Rabbis, however, considered this an act of robbery; and in order to preserve the peace of the community, they decided that such property must be returned to him (Giṭ. 59b; "Yad," Gezelah, xvii. 12; Ḥoshen Mishpaṭ, 270, 1).

Marriage.

According to Biblical law as interpreted by the Rabbis, the marriage of a deaf-mute was not valid; yet the Rabbis sanctioned such a marriage when contracted by signs. Since this was merely a rabbinical provision, it had not the same validity as a perfect marriage; and many complications often arose therefrom (Yeb. 112b; "Yad," Ishut, iv. 9; Shulḥan 'Aruk, Eben ha-'Ezer, 44, 1). A male deaf-mute was not permitted to perform the levirate ceremony ("ḥaliẓah"); nor could this ceremony be performed in the case of a deaf-mute woman (Eben ha-'Ezer, 172, 11).

Just as the male deaf-mute could marry by signs, so also could he divorce his wife by signs. The questions put to him in order to determine his full knowledge of the transaction, were at least three in number, two of which required a negative and one a positive answer, or vice versa. The deaf-mute and the mute were examined in the same manner, and a divorce was then granted by the court. But if at the time of marriage the husband had been perfectly sound, and he had become deaf and dumb after his marriage to the woman, the law did not permit him to divorce his wife (Yeb. 112b; "Yad," Gerushin, ii. 16, 17; Eben ha-'Ezer, 121, 5, 6).

In the case of a deaf-mute who was permitted to divorce his wife by signs, the court gave to the divorced woman, in addition to the regular bill of divorce ("geṭ"), a note which read as follows:

( Elsenstadt , "Pitḥe Teshubah," ad loc. quoted from the code of R. Terveham )

"On the day . . .—we, the undersigned, members of the court, sitting in a court of three, being of one mind—there came before us . . ., who made us understand by signs that he wished to divorce . . ., who was married to him by signs; and when he thus explained to us his intention by signs, we wrote this bill of divorce by which she becomes entirely divorced and free to be married to any man that she may desire, and none shall hinder her from that day forever. And this shall be unto her abill of dismissal, a document of release, and a letter of freedom according to the institutions of the Rabbis, and she shall be permitted to marry any man".

In ritual matters, similar restrictions were placed upon deaf-mutes. The deaf-mute and the deaf could not discharge the religious obligation of an Israelite to hear the blowing of the shofar on New-Year's Day, by blowing it before him, while the mute might do so (R. H. 29a; "Yad," Shofar, ii. 2; Shulḥan 'Aruk, Oraḥ Ḥayyim, 589, 2). The same law prevailed in reference to the reading of the Book of Esther ("Megillah") on Purim (Meg. 19b; "Yad," Megillah, i. 2; Oraḥ Ḥayyim, 689, 2).

The deaf-mute was not permitted to slaughter an animal; but if he did slaughter one, and others saw that it was done in accordance with the prescribed rules, its flesh could be eaten. Neither was the deaf allowed to slaughter; but if he did slaughter an animal, although no one saw him do it, its flesh could also be eaten. The mute might slaughter, if some one pronounced the blessing for him (Ḥul. 2a; "Yad," Sheḥiṭah, iv. 5, 9; Shulḥan 'Aruk, Yoreh De'ah, i. 5 and 7).

L. G. J. H. G.