Generally the hagdara of a "shoteh" in the entire torah who is patur from mitzvos is classified by the gemara in chagiga 3b as someone who may have a high IQ but does crazy things. R' Moshe (Even Haezer 1:120) has an elaborate and controversial teshuva explaining that if he does one of the crazy acts mentioned, we assume he is a shoteh until proven otherwise, but if we can prove otherwise, then he is no longer considered a shoteh (but he points out that the Rambam implies that we consider him a shoteh even if he is crazy in only one thing and nothing else, he is still patur from mitzvos- but R' Moshe is then mechadesh that regarding giving a get, so long as he understands the inyan, it is valid).
A man who has shoteh status cannot divorce his wife since he needs to be a bar da'as, but a woman can be divorced against her will and therefore the gemara says she can receive a get m'dorasya. However, the Torah requires that in order to receive a 'get', she must: 1. Be able to watch her get, which means to distinguish between the get and something else (Gittin 64b). 2. She must have enough understanding about the concept of divorce that she does not return to the husbands house. The gemara concludes that even one who is a shoteh for everything else, can have enough da'as to distinguish between a get and something else, and realize that she must not return. But, since she will most likely be mafkir herself to z'nus, chazal do not allow you to divorce her.
Tosafos and Rashi argue about a girl who is unable to distinguish between her get and something else, and will also continue to return after the divorce, whether the father can receive the get for her. Tosafos seems to understand that the father preventing her from returning qualifies, implying that it is a practical consideration that she must be someone who will not return, rather than being an issue of da'as. Rashi seems to understand that the father preventing her from returning isn't sufficient since it is a da'as requirement and she is still missing the da'as. It is interesting to note that according to Tosafos, a woman who is sometimes a shoteh and sometimes healthy, can receive a get at a time where she has enough intellect not to return, even though she is likely to once again become a shoteh and return to her husbands house (v'dok).
R' Moshe (Y.D. 4:29 and Even Haezer 1:164 makes a very important distinction between a shoteh and someone with a very low IQ, implying that many mentally retarded people do not halachically qualify as a shoteh. I think his approach is very meduyak in the gemara and rashi on the bottom of 113a that a low level intellect which thinks clearly and straight (rather than 'krum' qualifies as sufficient da'as).
7 comments:
very interesting!
i heard a story on a tape that a down syndrome kid came to rav elyashiv saying that he wants to lein his bar mitzvah parsha (maybe only part of it) and his father doesn't let him since he cannot be motzi other people.
rav elyashiv asked him how he got to his house from bnei brak and the kid answered that he took the bus. the rav then paskened that if he knew how to do that he can lein on his bar mitzvah!
One more point:
On the gemara 112b which says that chazal were not mesakein nissuin for a shoteh since "a person can't live with a snake" (meaning that marriage is fundamentally based on "shalom" and it is impossible to have a peaceful relationship with a shoteh). Tosafos comments, that if a healthy man and woman were already married and she becomes a shoteh, he is not allowed to divorce her. Tosafos seems to be supplying us with obvious information that we already see in the mishna and gemara - What is their point?
R' Moshe (Even Haezer 1:80) explains that Tosafos understands from our gemara that if a husband became a shoteh and she wants out of the marriage, since she has a legitimate claim we would force him to give her a 'get'. Tosafos is therefore bothered, why if the wife becomes a shoteh do we force him to stay married to her? To that Tosafos answers that the concern of her being hefker is more severe than the concern of living under these conditions.
R' Shlomo Vilna (Cheshek Shlomo) quotes from Chasam Sofer that Tosafos is bothered, if we are so concerned with her being hefker and we therefore disregard the fact that he will have to live with a snake, the rabbonon should have instituted nissuin for a woman who is a shoteh to avoid her from being hefker. Tosafos makes a distinction between a situation where he is already married to her, so she is his responsibility, and we require him to watch her from being hefker, and a case where they are not married so even if she is hefker, she is not anyone's responsibility.
RE: your comment,
do you think r' elyashiv would have allowed this child to lain in the shteiblech on parshas zachor?
dont know,
it was meant to bring home the point that the level of a shoteh is not all or nothing but is customized to the action/mitzva at hand
Reb Yossie: what tape please? thanks
its a tape of rabbi tatz, dont remember which one right now.
Thank you; if you remember the topic of the tape, i would be interested; thanks.
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