It is quite possible that I am wrong, but I boldly advance the following in the interests of increasing talmud torah:
Citing from my translation on my Rif blog:
{Yevamot 104b}And then:
Mishna:החרש שנחלץ והחרשת שחלצה והחולצת מן הקטן חליצתה פסולהThe {male} deaf-mute who underwent chalitza and the {female} deaf-mute who performed chalitza, and she who received chalitza from a {male} minor, her chalitza is invalid.
קטנה שחלצה תחלוץ משתגדיל ואם לא חלצה חליצתה פסולה
חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר
A {female} minor who performed chalitza must perform chalitza when she becomes an adult, and if she does not perform chalitza then, her chalitza is invalid.
If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.
And there was an incident in which she performed chalitza with just he and she present, in the prison, and the incident came before Rabbi Akiva and he validated.
{Yevamot 105b}חלצה בשנים או בשלשה ונמצא וכו':
אמר רב יוסף בר מניומי אמר רב נחמן אין הלכה כאותו הזוג דאפילו דאיעבד בתרי חליצתה פסולה וכן הלכה:"If she performed chalitza with two or three and it turned out...":
Rav Yosef bar Minyumi cited Rav Nachman: The halacha is not like that pair, for even if after the fact, with two {judges} her chalitza is invalid.
And so is the halacha.
This is a good summary of this gemara:
But we already had this from another Mishna, and another gemara! I'll answer this in a bit.
Another issue is how to parse the Mishna. There are two ways to parse it:
This is the way Rashi, and the gemara, takes the Mishna.
The alternative reading of the Mishna is as follows:
But since when is one judge acceptable for this? In fact, we have read earlier of a Tanna, and an Amora, who orchestrated a chalitza as lone judges. So this is certainly readable as such.
However, there is a further way to read this -- that we are dealing here not with judges but with witnesses. As the pasuk in Devarim 17:5 reads:
And why would you expect three judges? Well, even though five judges are best, only three of them sign on the get chalitza, the document certifying that the chalitza happened.
I believe it quite possible that this is why the case in our Mishna was חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה. That is, if there was a set of two and one was invalidated, such that you do not have a valid set of witnesses, or even if there was a set of three and one was invalidated, such that you also don't have a valid set of witnesses, since the set is broken -- if so, the chalitza is invalid.
And this is Rabbi Akiva coming afterwards to back them up that bedieved, witnesses are not required. And this is why it is not in the same location as the other dispute about whether three or five, or one judge is required.
This reading has so much to recommend itself to me that I prefer it to the assumption that it is talking about judges. But I could be wrong.
We might (or might not) have to develop a reason for Rav Yosef bar Minyumi's two statements, but that seems eminently possible. For example, one statement is that if a witness set breaks up, it is invalid, and the second is that you need three rather than two witnesses.
What pushes it towards judges rather than witnesses? Well, Rabbi Akiva's case, according to a named Amora, happened with witnesses. To cite the gemara:
A problem with this comes from various parallel statements in regard to the number required for refusal, with a parallel zug, and from Rabbi Yosef bar Minyumi, on Yevamot 107b. Those would need to be similarly reinterpreted.
IF [A SISTER-IN-LAW] PERFORMED HALIZAH IN THE PRESENCE OF TWO etc. R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is not in agreement with this pair. But, surely. R. Nahman had once stated this; for R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is that halizah [must be performed] in the presence of three [judges]! — [Both are] required: For if the first only had been stated, it might have been assumed [that three judges are required] ab initio only. but that ex post facto even two [judges are enough] hence we were taught that 'the halachah is not in agreement with this pair'. And if we had been taught that 'the halachah is not in agreement with this pair' but in accordance with the ruling of the first Tanna, it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are required, [hence the former statement was also] required.Soncino's take on this is that what we are referring to here are judges, and this is indeed based on the fact that the setama digemara states that
it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are requiredAnd we know earlier of Rabbi Yehuda's statement that five judges are required, with the disputants holding three. And indeed, we rule earlier in the gemara that only three are required, but we do five merely to publicize it.
But we already had this from another Mishna, and another gemara! I'll answer this in a bit.
Another issue is how to parse the Mishna. There are two ways to parse it:
חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר
We can either sayומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר
If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.In which case she either started with two judges and then nothing happened, or else she started with three and something happened, namely that one of the three judges was found to be a relative or otherwise invalid.
This is the way Rashi, and the gemara, takes the Mishna.
The alternative reading of the Mishna is as follows:
If she performed chalitza with two or three {people present} and it turns out that one of them is a relative or is invalid, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.In this reading, she starts with either two or three, and then one of them is found to be invalid, such that she has one or two.
But since when is one judge acceptable for this? In fact, we have read earlier of a Tanna, and an Amora, who orchestrated a chalitza as lone judges. So this is certainly readable as such.
However, there is a further way to read this -- that we are dealing here not with judges but with witnesses. As the pasuk in Devarim 17:5 reads:
And why would you expect three judges? Well, even though five judges are best, only three of them sign on the get chalitza, the document certifying that the chalitza happened.
I believe it quite possible that this is why the case in our Mishna was חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה. That is, if there was a set of two and one was invalidated, such that you do not have a valid set of witnesses, or even if there was a set of three and one was invalidated, such that you also don't have a valid set of witnesses, since the set is broken -- if so, the chalitza is invalid.
And this is Rabbi Akiva coming afterwards to back them up that bedieved, witnesses are not required. And this is why it is not in the same location as the other dispute about whether three or five, or one judge is required.
This reading has so much to recommend itself to me that I prefer it to the assumption that it is talking about judges. But I could be wrong.
We might (or might not) have to develop a reason for Rav Yosef bar Minyumi's two statements, but that seems eminently possible. For example, one statement is that if a witness set breaks up, it is invalid, and the second is that you need three rather than two witnesses.
What pushes it towards judges rather than witnesses? Well, Rabbi Akiva's case, according to a named Amora, happened with witnesses. To cite the gemara:
T ONCE HAPPENED THAT A MAN SUBMITTED TO HALIZAH etc. PRIVATELY BETWEEN HIMSELF AND HERSELF! How, then, can we know it? — Rab Judah replied in the name of Samuel: When witnesses observed it from without.But firstly, this might be Rabbi Akiva's opinion and not that of Rabbi Shimon and Rabbi Yochanan haSandler. And furthermore, if not present actually there, perhaps they are not valid witnesses to validate the chalitza if such is required, even if they can function as witnesses that such an event occurred.
A problem with this comes from various parallel statements in regard to the number required for refusal, with a parallel zug, and from Rabbi Yosef bar Minyumi, on Yevamot 107b. Those would need to be similarly reinterpreted.
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