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Viewing Competency
“A Deaf Person Able to Speak”
(Gittin 71a)



In our sugya, we learn that a deaf-mute person has the halachic status of a mentally incompetent person (shoteh), who is exempt from mitzvos. The Chachomim, whose opinion is cited in halacha (Shulchan Aruch E.H. 120:5), maintain that even if he can express himself clearly in writing, this is not enough to prove that he has the presence of mind necessary to be obligated in mitzvos.


Educating the Deaf

In the time of the Gemara, a person who was born deaf lived in a vacuum, unable to communicate with the world around him. Hence, his understanding of the world was very limited. However, great advances have since been made in this field. The first establishment school for the deaf (taubstummeninstitut) was established in Vienna in 1779 after a formal visit by Emperor Joseph II to the Abbe de I’Epees school in Paris (1769) and Leipzig (1778). Additional schools were established in Prague and Milan. Smaller informal schools were established earlier. The Rashash, zt”l, (1720-1777), on our sugya, refers to a school in Vienna in which the deaf were taught to write.

Previously, if a person was born deaf, it was impossible to help him advance to the point where he could express his thoughts in writing. Accordingly, the Maharshal explains that our sugya refers to someone who learned to write when he was a child, and then lost hearing before he reached adulthood. As such, although he learned how to write, his mind never had a chance to develop to the point where he would be obligated in mitzvos. This seems to imply that if a deaf-mute person learned to express himself in writing as an adult, the Maharshal would view him as a fully competent person. However, as we shall see, other poskim disagree.


Contemporary Deaf

Today, deaf and mute people can fully communicate with those around them through the use of sign language, lip reading, electronic media and the like. They can advance to a level of intelligence equivalent to those who can speak and hear. Yoel Deitsch, who managed an institute for the deaf in Vienna 150 years ago, said of one his students who wrote articles for newspapers: “I doubt if there is anyone with the use of all his senses who can express his thoughts more cleverly” (Melamed Lehoi’el, Teshuvos R’ Azriel Hildsheimer II, E.H. 58). As such, the poskim question whether a deaf person who is interactive with his surroundings, and is clearly of full intelligence has the same halachic status as a person who can hear.


Classifying a Shoteh

The Gemara gives signs by which a shoteh (mentally incompetent person) is classified as such according to Torah law. If a person goes out alone at night, sleeps in a graveyard, and tears his clothes, he is considered a shoteh who is exempt from all mitzvos (Chagiga 3b; see Teshuvos Chasam Sofer E.H. 2). These classifications were necessary, since many people have a certain peculiarity of thought, which is tempered by their being fully functional in other areas. However, our Sages gave no criteria to create classifications of which deaf people are mentally competent and which are not. Rather, they made a sweeping generalization that all deaf people are mentally incompetent, since in their times, all deaf people were unable to communicate with the world around them, and were thus denied the opportunity to develop their minds (see Rashi, Chagiga 2b, s.v. Hacheresh). Today, since this is no longer true, we must question whether they are still exempt from mitzvos, and if not, what level of mental development is required to obligate them in mitzvah observance.

Sign Language

Our sugya distinguishes between a deaf-mute, who is exempt from mitzvos, and a deaf person capable of speech, who is obligated in mitzvos. As such, the poskim unanimously rule that if a deaf person learned to talk normally, to the extent that he can express himself through speech, alone without any assistance through sign language, he has the halachic status of a fully intelligent person and is obligated in mitzvah observance. In contrast, if a deaf person is mute, even if he can express himself through sign language, this is not enough to prove that his mind has developed enough to be obligated in mitzvos. This is true, even if his actions seem to indicate that he is extremely intelligent. The Tzemach Tzedek (77) wrote about a tailor from Krakow who was born deaf but distinguished himself for his great intelligence, and presented himself before Beis Din to prove his mental competence. Nevertheless, the Tzemach Tzedek ruled that he is exempt from mitzvos, as we find in our sugya, that even if a deaf person can express himself intelligently in writing, he is still exempt.

The poskim debate the case of a deaf person whose speech is awkward but who can express himself verbally with the help of sign language. According to the Divrei Chaim (E.H. 72), such a person is considered halachically competent. According to the Levushei Serad (Neos Desha E.H. 132), such person is not.


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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.