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During a traditional wedding ceremony, the groom makes a formal declaration that he is making the bride his wife with a ring "הרי את מקודשת לי...‏" and then gives her the ring . Obviously if the groom is unable to speak, he cannot make this statement. What happens in such a case? Has this scenario ever been asked about (where a mute man wanted to marry) and what was the determined course of action?

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    Note neither the bride nor groom need to be present at the ceremony, as both can send emissaries to perform their duties, including speaking as the case may be. – Double AA Dec 28 '16 at 3:34
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The implication of the Mishna (Ma'aser Sheni 4:7) is that a formal declaration is not necessary, and context suffices:

היה מדבר עם האשה על עסקי גיטה וקדושיה ונתן לה גיטה וקדושיה ולא פירש רבי יוסי אומר דיו. ‏

This is the halakha as recorded by Rambam (Hilkhot Ishut 3:8) and the Shulhan Arukh (EH 27:1).

Accordingly, a mute could get married without difficulty by simply clarifying through context that that is what he is doing.

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In writing or in sign language.

You are talking about someone that can hear and understand. For the Din of Cheresh (which imply inability to be Chayav bemitsvot) is a man who cannot speaking nor hearing (mishna Terumot 1, 2).

A mute is mentioned in mishna Teruma 1, 6, the mishna says that he is not allowed to levying the Teruma, but if he did this, the teruma is regular. What is the problem of the mute regarding teruma? First the Bartenura explains that the mute we're talking about is a man who has lost the ability to speak because of an illness (e.g. because of a CVA yerachem Hashem). The reason we don't allow him to levy teruma is his lack of capacity to say a Beracha. This generate also a inability to teach, so they are exempt from mitsvat Hakhel and Chagiga.

A mute is regarded as able of all mitsvot which are not dependent from speaking. See this anecdote in Gemara Chagiga 3a.

But behold there were two dumb men in the neighbourhood of Rabbi, sons of the daughter of R'Johanan B'Gudgada, and according to others, sons of the sister of R'Johanan, who, whenever Rabbi entered the College, went in and sat down [before him], and nodded their heads and moved their lips. And Rabbi prayed for them and they were cured, and it was found that they were versed in Halachah, Sifra, Sifre and the whole Talmud! Said Mar Zutra, Read, That they may teach.

How can he say his volunty from an halachic point of view, see Gittin 71a:

R'Kahana said in the name of Rab: If a deaf-mute can signify his meaning by writing, a Get may be written and given to his wife. {Rashi explains that the case is as follow. A man had the faculty of speech and gave a good Kiddushin to the woman. Now he had lost the speech and want to make a Get. He can write on a scroll "write and give Get to my wife, you, Ploni and Ploni." and he pass them the scroll. This is good enough.}

Equally he can write to the woman "הרי את מקודשת לי בטבעת זו כדת משה וישראל", she and the witnesses are going to read the scroll and she is mekudeshet. If he makes this by sign language, we need to check before the kiddushin, by a triple check, that through his signs he speak as a reasonable person (Rambam Gerushin 2, 16).

See SA EH 121, 6.

For a man who has a status of Cheresh, the first mishna of the 13th chapter of Yebamot said:

as he marries [the woman] by gestures so he divorces her by gestures.

This case is a case in which Kiddushin is not 100% (only miderababan see EH 44, 1), and Get is not 100%, but in the same way that we take into consideration the kiddushin that were made by a sign language, we take into consideration the Get which was ordinated by a sign language. (From this mishna we have no proof of a whole validity of kiddushin, because if he was healthy at the time of kiddushin and give them normally, he cannot give a get when he has a status of cheresh).

About the din of היה מדבר איתה על עסקי גיטה וקידושיה (a clear context of kiddushin) the same question is how a mute makes clear that he want to give Kiddushin. The same question (the OP) should be asked but at a different time (if he was already mute before the kiddushin). How made he this clear for the woman and the witnesses that he want to give Kiddushin?

About Kiddushe Shtar. See the Bet Shmuel EH 136 sk 1, who said that Kiddushin by shtar is according to some more stringent than Get, because that "אין ניכר אם דעתה ג"כ לקידושין " (we need to show that she takes the shtar with the intent to be mekudeshet) when he says nothing. Thus the fact that something is clearly written in the shtar does not resolve our question with a mute man.

  • I believe that the concept of "remiza" as a valid form of consent is also discussed in Gittin. I had an article that discusses quite extensively marriage of the cherish who uses sign language. I'll see if I can locate it. – DanF Dec 28 '16 at 15:51
  • @DanF yes the same as the Mishna in Yebamot פרק ה משנה ז – kouty Dec 28 '16 at 15:56
  • @DanF דף נ"ט עמוד א – kouty Dec 28 '16 at 16:05
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The Mishnah (Kiddushin 2a) gives three ways to get married: money, document, or marital relations. So if he can't give the ring, he can always give the document. One merely has to write in the document הרי את מקודשת לי - it need not be said (ibid. 9a), unlike by the money (ibid. 6b).

  • @DonielF the woman needs to know at the time of the transmission that this is for Kiddushin. The witnesses need to know what is appening. The Shtar kiddushin needs to be written leshem haYisha... see also EH 136 about get if he did not say nothing at the time of transmission. – kouty Dec 29 '16 at 8:05
  • cont: Kal Vachomer for kiddushin that is min hatora passul baal korcha. – kouty Dec 29 '16 at 8:06
  • see an interesting Bash in EH 136 (א) ה"ז גט פסול: אף על גב בקדושין אם לא היה עסוקי' בקדושין ונתן בשתיקה אין חשש קידושין ובסי' כ"ז כתבתי אפי' אם היה כוונתם לשם קידושין לא מהני שאני גט דאע"ג שלא אמר כלום מ"מ לשון הגט הוא לשון הבעל אבל בקדושין אפילו אם מקדש בשטר והוי כאלו הוא מדבר מ"מ אין ניכר אם דעתה ג"כ לקידושין והא דאינו בטל הגט כשלא אמר כלום מדאוריי' דכתיב ונתן ביד' ספר כריתות דפי' הקרא הוא שנתן לתורת כריתות ואם נותן לתורת כריתות י"ל אפי' אינו מדבר כלום כשר מדאורייתא, מיהו הטור והר"ן כתבו אם אינו מדבר כלום בטל מדאורייתא וכ"כ בש"ג פ' הזורק והיינו אם אין עסוקים באותו ענין: – kouty Dec 29 '16 at 8:25
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    @kouty That everyone needs to know is an issue with any type of Kiddushin. Can't the woman appoint the eidim? And what does ksiva lishmah have to do with anything? Also, by Bash did you mean Bach? – DonielF Dec 29 '16 at 14:43
  • bet shmuel 15 char – kouty Dec 29 '16 at 15:23

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