Kollel Iyun Hadaf Insights to the Daf: Sotah 26-30
Insights to the Daf: Sotah 26-30
INSIGHTS INTO THE
DAILY DAF
DAILY DAF
prepared by Kollel Iyun Hadaf
of Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
12th CYCLE DEDICATION
SOTAH
26-28 - A week of study material has been dedicated by Mrs. Rita
Grunberger of Queens, N.Y., in loving memory of her husband, Reb
Yitzchok Yakov (Irving) ben Eliyahu Grunberger. Irving Grunberger helped
many people quietly in an unassuming manner and is dearly missed by all
who knew him. His Yahrzeit is 10 Sivan.
1) WHICH WOMAN WANTS TO MAKE HERSELF A SOTAH?
QUESTION:
The Gemara cites three explanations for the verse, "v'Niksah v'Nizre'ah
Zara" (Bamidbar 5:28). Rebbi Shimon ben Elazar explains that the verse
teaches that an Aylonis does not drink the Mei Sotah because she is not
fit to bear children. Rebbi Akiva explains that if the woman was
childless (Akarah) until now, she will be blessed and have children.
Rebbi Yishmael challenges Rebbi Akiva's view and asks that if the verse
promises the blessing of children for every childless woman who drinks
the Mei Sotah and emerges innocent, then all unscrupulous, childless
women will seclude themselves with other men after Kinuy in order to
have children and they will benefit from their sin, while an upright and
G-d-fearing Akarah will suffer as a
result of her virtuousness! Rather, Rebbi Yishmael explains that the
verse teaches that if the woman gave birth in pain in the past, then she
will give birth easily, or if she gave birth to ugly children in the
past, she will give birth to handsome children.
Rebbi
Yishmael's explanation, however, does not answer the very question
which he posed on Rebbi Akiva's explanation. Unscrupulous women who gave
birth in pain will seclude themselves after Kinuy in order to garner
the blessing of an easy birth, while the G-d-fearing woman who gave birth in pain will suffer because of her virtuousness! (TOSFOS DH Amar Lo)
ANSWERS:
(a) The MAHARSHA
in Berachos (31b) answers that a woman would voluntarily make herself a
Sotah only out of extreme desperation, since the process of a Sotah
involves undergoing terrible torment and disgrace before meriting the
blessing of "v'Niksah v'Nizre'ah Zara." A woman would consider making
herself a Sotah only if she stands to gain a very significant benefit --
such as having children when she is childless -- which would outweigh
the torment and disgrace of the Sotah process. She would not undergo
such an ordeal simply to be able to bear children with less pain during
childbirth.
The TZELACH (Berachos 31b) and the HAFLA'AH
(Kuntrus Acharon 115:11; Panim Yafos, Parshas Naso) add that by making
herself a Sotah, the woman risks losing her husband entirely since he
might decide not to bring her to drink the Mei Sotah but to divorce her
instead. A woman would not risk losing her husband merely to gain the
blessing of an easy birth. If, however, she is an Akarah, she stands to
lose her husband anyway, since the Torah entitles the husband to divorce
his wife after ten years of childlessness. Since she risks nothing, she
will make herself a Sotah in order to gain the blessing of having
children.
(b) The BEN YEHOYADA
answers that a painful birth is not necessarily brought about by the
physiological condition of the woman, and the tendency to give birth to
ugly or to feminine children is not necessarily dependent on her
physical state. A woman would not consider undergoing the ordeal of a
Sotah in order to prevent the possibility that she will have pain, or an
ugly child, during her next birth. However, a childless woman knows
that she will not have children because of her physiological condition,
and thus she is willing to take the drastic action of making herself a
Sotah.
RAV ELAZAR MOSHE HA'LEVI HOROWITZ adds
that when Rebbi Yishmael states that if a woman gave birth in pain she
will give birth with ease, he does not refer to past births. Rather, he
refers to future births. He means that if the woman was destined
to have a birth that is painful, drinking the Mei Sotah (and emerging
innocent of sin) will change her destiny and she will give birth with
ease. Since no woman knows her future, she will not make herself a
Sotah.
This may be the intention of TOSFOS
as well when he asks his question specifically from the case of the
women who have painful births. Why does Tosfos not ask from the other
cases which Rebbi Yishmael mentions -- women who give birth to feminine
children or to ugly children? Those women, too, will want to seclude
themselves and undergo the procedure of a Sotah in order to change the
way they give birth! (See MINCHAS KENA'OS.)
According to the Ben Yehoyada's approach, the answer is clear: a woman
knows that her past births have no bearing on her next birth; her next
birth might be an attractive child, or a masculine child. Tosfos asks
only from the case of women who have painful births, because sometimes
painful births are dependent on a woman's physical nature (see
Bava Basra 16b, Yevamos 65b). Such a woman would want to become a Sotah
in order to cure herself, according to Rebbi Yishmael.
(See also MAHARATZ CHAYOS, EINI SHMUEL, and YOSEF DA'AS.)
2) GIVING THE "MEI SOTAH" TO THE WIFE OF A "SERIS"
QUESTION:
The Mishnah states that the wife of a Seris drinks the Mei Sotah. The
Gemara asks that this is obvious; why should she not be able to drink
the Mei Sotah? The Gemara answers that one might have thought that she
does not meet the requirement of the verse, "Mibal'adei Ishech"
(Bamidbar 5:20), which implies that the Sotah's husband must be able to
have relations in order for the Sotah to drink the Mei Sotah. Therefore,
the Mishnah teaches that the wife of a Seris does drink the Mei Sotah.
RASHI addresses the obvious question on
the Gemara. Why indeed does the wife of a Seris drink the Mei Sotah? Why
is she not excluded from the laws of Sotah because of the verse the
Gemara cites, "Mibal'adei Ishech," which implies that her husband must
be fit to have relations in order for the laws of Sotah to apply?
Rashi
explains that the verse does not teach that the husband must be fit to
have relations, but rather it teaches that the Shechivas ha'Ba'al must
precede the Shechivas ha'Bo'el. Rashi adds that a Seris does satisfy the requirement that the Sotah's husband be fit for relations; he just is unable to make her pregnant.
Rashi
continues and says that the Mishnah must be referring to a "Seris
Chamah" who was born a Seris, because if the husband would be a "Seris
Adam" (who was made into a Seris after he was born), he would not be
permitted to remain married to his wife and she would not be able to
drink the Mei Sotah (like a woman married to a Mamzer).
Apparently,
Rashi adds this explanation in order to refute another possible
interpretation of the Mishnah. One might have thought that there is
another case in which a Seris fulfills the requirement that the
Shechivas ha'Ba'al precede the Shechivas ha'Bo'el: the husband was not a
Seris at the time he became married, and later he became a Seris Adam.
Rashi rejects this explanation because in such a case the wife of the
Seris would not be able to drink the Mei Sotah because she is prohibited
to remain married to him.
However,
Rashi himself on the Mishnah (24a, DH Eshes Seris) gives the very
explanation which here he rejects. Rashi there explains that the Mishnah
refers to a Seris who became a Seris after he married his wife,
and that is how the Shechivas ha'Ba'al preceded the Shechivas ha'Bo'el.
How are the words of Rashi to be reconciled?
Moreover,
according to Rashi on the Mishnah, what is the Chidush of the case of
"Eshes Seris"? If the husband became a Seris after the marriage, the
Gemara's question remains: it is obvious that the wife of the Seris
should drink the Mei Sotah because the requirement that the Shechivas
ha'Ba'al precede the Shechivas ha'Bo'el was fulfilled, and the husband was fit to have children at that time.
Finally,
how does Rashi on the Mishnah answer the question he poses here on the
Gemara, that the wife of a Seris Adam should not drink the Mei Sotah
because she is prohibited to remain married to him?
ANSWERS:
(a) The MISHNEH L'MELECH
(Hilchos Sotah 2:6, DH v'Eshes Seris) answers that Rashi on the Mishnah
explains the Mishnah according to the way the Gemara initially
understands the Mishnah, before it asks that this Halachah is obvious.
Only after the Gemara asks that this Halachah is obvious does the Gemara
interpret the Mishnah as referring to a person who was always a Seris,
and that the Seris nevertheless is considered a "Bar Shechivah" (able to
have relations).
The
Mishneh l'Melech does not answer the third question posed above, that
the wife of a Seris Adam should be prohibited to him and should not be
able to drink the Mei Sotah.
Also, if Rashi understands that the Gemara's answer is that a Seris is
a "Bar Shechivah," why does Rashi need to add here that the verse of
"Mibal'adei Ishech" teaches the requirement that the husband's Shechivah
must precede the adulterer's, and not that the husband must be fit for
Shechivah? Rashi should write that the verse "Mibal'adei Ishech" teaches
that the husband must be fit for Shechivah but that the Seris is fit for Shechivah (RASHASH).
(b) The RASHASH
suggests that Rashi here actually presents two independent approaches
to understanding the Gemara. When, in the beginning of his comments,
Rashi writes that the verse teaches that the Shechivas ha'Ba'al must
precede the Shechivas ha'Bo'el, Rashi understands that the husband
became a Seris later (as Rashi on the Mishnah explains). In the end of
his comments, Rashi gives an alternate explanation (and the words "Iy
Nami" should be inserted into Rashi's text) and eventually rejects his
first explanation (because of the question that the wife will be
prohibited to her husband and thus will not be able to drink the Mei
Sotah).
The TOSFOS HA'ROSH
takes a similar approach. He writes that Rashi actually changed his
mind, and that our text of Rashi is a combination of two different
explanations: Rashi's original explanation, and Rashi's conclusion in
which he rejects his original explanation. Rashi on the Mishnah, and the
first part of Rashi here, follow Rashi's original explanation.
The ME'IRI also cites these as two distinct explanations.
According
to Rashi on the Mishnah, who says that the husband became a Seris
later, one might have thought that the husband must be a "Bar Shechivah"
not only before the Setirah but even at the time of the Setirah. The
Mishnah teaches that it suffices if he was a "Bar Shechivah" before the
Setirah and his Shechivas ha'Ba'al preceded the Shechivas ha'Bo'el.
How
does Rashi on the Mishnah justify the fact that the wife of a Seris is
permitted to her husband and may drink the Mei Sotah? The Rishonim
suggest a number of answers.
1. The ME'IRI
explains that the Seris mentioned in the Mishnah may refer to a man who
became a Seris later in life at the hands of Hash-m ("b'Yedei
Shamayim") and not due to any act of man (or disease). The Me'iri
apparently refers to the Gemara in Yevamos (75b) which says that a man
who became a Petzu'a Daka b'Yedei Shamayim is permitted to remain
married to his wife. Rashi explains there that this refers to a man
whose organs withered out of fright from hearing a sudden, terrifying
loud noise.
2.
The Me'iri suggests further that the Mishnah may refer to a Seris who
is married to a Giyores (convert) or a Meshuchreres (freed maidservant)
who is permitted to remain married to him. (However, the Mishnah in
Eduyos 5:6 cites a Machlokes Tana'im whether a Giyores may drink the Mei
Sotah.)
3. TOSFOS
(DH Eshes) implies that the Mishnah may refer to a Seris who lost the
ability to have children by drinking a sterilizing potion (see Tosfos to
24a, DH she'Einah). Since no physical damage was done to his organs, he
is permitted to remain married to his wife. (However, the Mishnah
usually refers to such a person as an "Akar" (or "Akarah") and not as a
"Seris.")
Sotah 27
27b----------------------------------------27b
1) THE WOMAN'S PROHIBITION TO THE ADULTERER
OPINIONS:
The Mishnah teaches that just as the Sotah is prohibited to her
husband, she is prohibited to the suspected adulterer ("Bo'el"). Rebbi
Akiva derives this prohibition from the "Vav" of the word "v'Nitma'ah"
(Bamidbar 5:29). Rebbi Yehoshua derives it from the fact that the Torah
repeats the word "Nitma'ah" (see Gemara, 29a).
Why
does the Mishnah compare the woman's prohibition to the Bo'el with her
prohibition to her husband ("just as she is prohibited to her husband,
she is prohibited to the Bo'el")? The Mishnah should simply state that
"the woman is prohibited to the husband and to the Bo'el." What is the
point of the comparison? Does the Mishnah mean to teach that the reason
she is prohibited to the Bo'el is that he caused her to become
prohibited to her husband, and therefore he deserves to become
prohibited to her as well (so that he not be a "Chotei Niskar," a sinner
who benefits as a result of his sin)? Alternatively, perhaps the
Mishnah simply means that the same type of circumstances which can
create a prohibition to the husband are severe enough to create a
prohibition to the Bo'el as well.
The MISHNEH L'MELECH
(Hilchos Sotah 2:12) discusses this question at length. He points out
that there are a number of practical differences between these two
possible intents of the Mishnah. One practical difference exists in the
case of a woman who has relations with the adulterer b'Shogeg (she
thought he was her husband) or b'Ones (she was forced), while the
adulterer acted b'Mezid (intentionally). The Halachah is that the wife
of a Yisrael is permitted to remain married to her husband when her
extramarital relations were b'Shogeg or b'Ones (see Gemara, end of 28a).
In such a case, is she also permitted to the Bo'el as well (after her
husband divorces her or dies)? According to the first way of
understanding the prohibition to the Bo'el, she should be permitted to
him because he did not succeed in prohibiting her to her husband.
According to the second approach, she should be prohibited to the Bo'el
because the woman's status to her husband has no bearing on her status
to the Bo'el.
A
similar practical difference exists in the opposite situation, in the
case of a woman who sinned b'Mezid (intentionally) while the Bo'el's act
was b'Shogeg or b'Ones. According to the first approach, the woman
might be prohibited to him since the Bo'el's act causes her to become
prohibited to her husband, while according to the second approach, she
should be permitted to the Bo'el because his sin was not so severe.
(a)
The Gemara in Kesuvos (9a) asks how David ha'Melech was permitted to
marry Bas Sheva. Since a Sotah is prohibited to the Bo'el, she should
have been prohibited to David ha'Melech. The Gemara first answers that
Bas Sheva was an Anusah since she could not refuse the king, and an
Anusah is not prohibited to the Bo'el. The Gemara then answers that she
was permitted to him for a different reason: Uriyah had given her a
conditional document of divorce when he went to war, and thus she was
not a Sotah at all.
The
Mishneh l'Melech points out that it is clear that the first answer of
the Gemara supports the first explanation proposed above: the woman is
prohibited to the Bo'el only if he caused her to become prohibited to
her husband. Therefore, if the Bo'el acted b'Mezid and the woman b'Ones,
she is permitted to the Bo'el. Although it is possible that the second
answer of the Gemara rejects that view, TOSFOS in Shabbos (56a, DH Lekuchin) implies that both answers in the Gemara agree with that view.
Further support for this view may be found in TOSFOS
in Yevamos (3b, DH l'Fi). The Gemara there states that although the
Tzarah of a Sotah does not perform Yibum or Chalitzah when the husband
dies, she is not included in the Mishnah's list in the beginning of
Yevamos because no case can be construed in which she would have a
"Tzaras Tzarah" (because when a woman is a Sotah, none of the brothers
of the deceased husband are permitted to her or to her Tzaros). Tosfos
asks that there is a case of "Tzaras Tzarah" -- in a situation in which the Sotah later married the brother
of the Bo'el, and upon his death her Tzarah (the other wife of the
Bo'el's brother) did Yibum with another brother of the Bo'el. The second
brother's other wife is thereby rendered a "Tzaras Tzarah."
Tosfos
answers that no case can be construed in which the husband will be
prohibited to the Tzaras Tzarah of the Sotah. Since the prohibition to
the Bo'el is connected to the prohibition to the husband, the "Tzaras
Tzarah" will not be prohibited to the Bo'el either.
Tosfos
implies that the reason for the prohibition to the Bo'el is the
prohibition he caused for the husband. Accordingly, the Bo'el is not
prohibited in any manner in which he did not prohibit the husband (as
the KOVETZ HE'OROS writes in Yevamos
12:6). How, though, can this be reconciled with the Gemara earlier (25a)
which says that a man who is prohibited to his wife because of an Isur
Lav may do Kinuy in order to prohibit her to the Bo'el when she does
Setirah? Since she is already prohibited to her husband and the Bo'el
did not create that Isur, why should the Bo'el be prohibited to her?
The answer is that even in such a case, the Bo'el did
make the woman prohibited to her husband even though she was prohibited
to her husband because of a pre-existing Isur. The Gemara in Yevamos
(32b) teaches that although there is a rule that "Ein Isur Chal Al Isur"
-- one Isur cannot take effect when there is already an Isur in effect,
the second Isur does amplify the prohibition; it does not take effect
only with regard to punishment (such as to require that the transgressor
receive an additional set of Malkus). Hence, since the Bo'el did create an Isur, he becomes prohibited to the woman.
(b) However, TOSFOS
here (DH k'Shem) cites the Yerushalmi which says that if the Bo'el
sinned b'Mezid and the woman sinned b'Shogeg, although she is permitted
to her husband, the Bo'el still becomes prohibited to her.
The
Yerushalmi apparently maintains that the Isur of the Bo'el is
independent of whether he caused the wife to become prohibited to her
husband.
However,
the Yerushalmi continues and says that even if she sins b'Mezid and the
Bo'el sins b'Shogeg, the Bo'el becomes prohibited to her since his act
made her prohibited to her husband! The Yerushalmi clearly contradicts
itself.
Apparently,
the Yerushalmi maintains that there are two possible reasons for why
the Bo'el becomes prohibited to the woman: he becomes prohibited to her
because he prohibited her to her husband, or -- even if he did not
prohibit her to her husband -- since he transgressed a serious violation
of the Isur of Eshes Ish he becomes prohibited to her because of the
Aveirah he did.
With
regard to David ha'Melech, the Yerushalmi must understand that David
ha'Melech was permitted to Bas Sheva because of the Get she received
when her husband to war.
HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv shlit'a) cites the CHASAM SOFER
(EH 26) who suggests that the question of the Mishneh l'Melech may
depend on the Machlokes between Rebbi Yehoshua and Rebbi Akiva in the
Mishnah. Rebbi Akiva, who derives the Isur to the Bo'el from the letter
"Vav" of "v'Nitma'ah," may understand that the Isur to the Bo'el is a
corollary of the Isur to the husband (the Isur to the husband is the
subject of the word "Nitma'ah" to which the "Vav" is appended). Rebbi
Yehoshua, who argues with Rebbi Akiva and derives the two Isurim from
two separate words, may rule like the Yerushalmi that the Isur to the
Bo'el may apply even when there is no Isur to the husband.
Another
question that arises is whether a man who rapes the wife of a Kohen
becomes prohibited to her, since the act causes her to become prohibited
to her husband who is a Kohen. (The Gemara in Yevamos (56b) explains
that "v'Nitma'ah," the Isur of Tum'ah, applies to the wife of a Kohen
even when he act was done b'Ones.) According to the Yerushalmi which
says that even one who lives with the wife of a Yisrael (where the
woman's act was b'Shogeg) becomes prohibited to her, it is obvious that
one who rapes the wife of a Kohen becomes prohibited to her. According
to the Bavli, however, which permits the Bo'el to the wife of a Yisrael
whom he raped, what is the Halachah in the case of the wife of a Kohen?
Since he prohibited her to her husband, is he prohibited to her, or does
the Derashah teach that the Bo'el is prohibited to the woman only when
he prohibits the woman to her husband as a result of her sin being
willful and intentional?
The Mishneh l'Melech (ibid.) discusses this question. He cites the CHELKAS MECHOKEK
(EH 11:3) who prohibits the Bo'el to the wife of a Kohen whom he raped.
The Mishneh l'Melech cites support for this ruling from the words of TOSFOS in Yevamos (35a, end of DH Af Al Pi).
Sotah 28
1) THE PROHIBITION OF A "SAFEK SOTAH"
The
Gemara teaches that the verse of "v'Nitma'ah" (Bamidbar 5:29) teaches
that a Safek Sotah is prohibited to her husband after Kinuy and Setirah.
(a)
Why is it necessary for a verse to teach that a Safek Sotah is
prohibited to her husband? Since she is suspected of having relations
with another man, she should be prohibited because of the principle of
Safek Isur. (TOSFOS DH Mah)
(b)
Even if a Safek Isur is normally judged leniently, there still is no
necessity for a verse to prohibit the Safek Sotah. Even without the
verse there is reason to be stringent and prohibit the woman because, as
the Gemara says in Nidah (3a), when the woman secludes herself with
another man after Kinuy there is "Raglayim l'Davar" that she sinned. (TOSFOS DH Eino)
ANSWERS:
(a) TOSFOS
explains that the reason why a Safek Isur is normally treated
stringently is that it is necessary to suspect the worst. When a person
takes the risk of doing an act which may involve a transgression of a
Torah law, but it turns out that no Isur was involved, he has not
transgressed a Mitzvah of the Torah. (Rather, he merely needs atonement
for not being cautious of the Safek Isur. See Nazir 23b.) In contrast,
the prohibition of a Safek Sotah to her husband is an independent
Mitzvah (a Mitzvas Aseh of "v'Nitma'ah"; some even say that Malkus is
administered for transgressing this Mitzvas Aseh -- see Tosfos to
Yevamos 11b, DH Mai, and Insights to Sotah 7:1:a).
Similarly,
when an object which is Safek Tamei is found in Reshus ha'Yachid, the
rule is that it is considered definitely Tamei, and if it is an item of
Terumah it must be burned. (However, in contrast to the case of Sotah,
in the case of Tum'ah if the Safek is clarified and it is determine that
there was no Tum'ah, retroactively anything which touched the object is
Tahor.)
Alternatively,
without the verse of "v'Nitma'ah" a Safek Sotah would be permitted to
her husband because she has a Chezkas Heter that she is permitted to
him. The verse of "v'Nitma'ah" teaches that the Chezkas Heter does not
apply. (See Tosfos to 28b, DH mi'Kan.)
(b) TOSFOS
explains that without the evidence of "Raglayim l'Davar" there is not
even a doubt that the woman committed adultery, because no Jewish woman
is suspected of committing such terrible transgressions (she has a
Chezkas Kashrus). The "Raglayim l'Davar" transforms the situation into a
Safek -- but it remains a Safek until the verse of "v'Nitma'ah" teaches
that she is Asurah mi'Vadai, prohibited for certain, with no doubt.
The RASHBA
in Kesuvos (9a) explains that the "Raglayim l'Davar" offsets the
woman's claim of certainty (her "Ta'anas Bari") that she knows for
certain that she is Tehorah, and it makes her case into a case of Safek.
Rebbi
Shimon in Nidah (3a), however, rules that when there is no "Raglayim
l'Davar," a Safek Tum'ah in Reshus ha'Yachid is indeed Tamei only
mi'Safek. In the case of Sotah, the "Raglayim l'Davar" together with the
verse of "v'Nitma'ah" makes her prohibition into a Vadai.
2)
"SAFEK TUM'AH": THE DIFFERENCES BETWEEN "RESHUS HA'RABIM" AND "RESHUS
HA'YACHID," AND BETWEEN "DAVAR SHE'EIN BO DA'AS LISHA'EL" AND "DAVAR
SHE'YESH BO DA'AS LISHA'EL"
OPINIONS: The Gemara teaches that an item that is a Safek Tum'ah in Reshus ha'Yachid is deemed Tamei,
but only when that item is a "Davar she'Yesh Bo Da'as Lisha'el." An
item that is a Safek Tum'ah in Reshus ha'Rabim, or a "Davar she'Ein Bo
Da'as Lisha'el" even in Reshus ha'Yachid, is deemed Tahor.
The Rishonim discuss whether the Safek Tum'ah in Reshus ha'Rabim is Tahor because of its Chezkas Taharah (Tosfos to 28b, DH mi'Kan) or because of a special Halachah l'Moshe mi'Sinai which states that even when there is no Chazakah a Safek Tum'ah in Reshus ha'Rabim is Tahor (Tosfos to Chulin 9b, DH Hasam).
The
Gemara derives these Halachos of a Safek Tum'ah by comparing Tum'ah to
the Isur of a Sotah. The Gemara in Chulin (9b) refers to this as
"Hilchasa Gemira Lah mi'Sotah" -- a Halachah l'Moshe mi'Sinai derived
from the Halachos of Sotah. However, even if these differences (between
Reshus ha'Rabim and Reshus ha'Yachid, and between "Davar she'Yesh Bo
Da'as Lisha'el" and "Davar she'Ein Bo Da'as Lisha'el") are a Halachah
l'Moshe mi'Sinai, there should be some logic behind them. Is there any
way to logically justify the difference between Reshus ha'Rabim and
Reshus ha'Yachid, and the difference between "Davar she'Yesh Bo Da'as
Lisha'el" and "Davar she'Ein Bo Da'as Lisha'el," with regard to the
status of an item that is Safek Tum'ah?
(a) TOSFOS (28b, end of DH mi'Kan) and the RA'AVAD
(Hilchos Avos ha'Tum'ah 16:1) cite a Tosefta which states that the
reason why a Safek Tum'ah in Reshus ha'Rabim is Tahor is that "Iy Efshar
Lish'ol l'Rabim" -- it is impossible to ask the populace if the item or
person is Tamei or Tahor.
The
Tosefta implies that the logic for being Metaher a Safek Tum'ah in
Reshus ha'Rabim, and the logic for being Metaher a Safek Tum'ah which is
"Ein Bo Da'as Lisha'el," are based on the same point: when it is
impossible to clarify through interrogation whether the item is Tamei --
either because only inanimate items are involved or because it is not
known who was present at the time the Safek arose -- the Torah does not
make the item Tamei. (Since it is normally not known who was present in
Reshus ha'Rabim at any given moment, and it normally is known who was
present in Reshus ha'Yachid, the Torah does not differentiate between
each specific case, whether or not it is known who was there.)
Why,
though, should the Tum'ah depend on whether there is someone available
to ask about it? Apparently, the Torah makes the object Tamei since its
Tum'ah is able to be clarified. When the doubt can be clarified, the
Torah does not want us to rely on the Chezkas Taharah to make it Tahor.
This is consistent with the opinion of Tosfos here who writes that a
Safek Tum'ah in Reshus ha'Rabim is Tahor only because of the Chezkas
Taharah (and when there is no Chezkas Taharah, it is Tamei).
A similar opinion is that of TOSFOS (DH b'Reshus ha'Rabim) and the TOSFOS HA'ROSH
(end of Nidah 2a) who write that a Safek Tum'ah in Reshus ha'Rabim is
treated leniently because the Safek "can be revealed to all" -- that is,
the true status of the object tends to be known by all. The logic
behind this might be that in Reshus ha'Rabim it is not necessary to
investigate whether the object is Tamei or not, because had it been
Tamei someone certainly would have spoken up about it. Hence, there is a
strong reason to assume that it is Tahor, and that is why the Torah is
lenient and relies on the Chazakah and assumes that the object's status
did not change and it remained Tahor in a case of a Safek Tum'ah in
Reshus ha'Rabim.
Why, though, is the Torah lenient in the case of a Safek Tum'ah which is a "Davar she'Ein Bo Da'as Lisha'el"? The ROSH
there writes that when the item can be asked about the Tum'ah, it is
possible to clarify the Safek, as the Tosefta says, and the Torah
requires us to clarify the Safek whenever possible, even in Reshus
ha'Yachid. (Tosfos here (DH b'Reshus ha'Rabim) seems to imply that even
if there is a logical reason to differentiate between a Reshus ha'Rabim
and a Reshus ha'Yachid, there is no logical reason to differentiate
between "Yesh Bo Da'as Lisha'el" and "Ein Bo Da'as Lisha'el." However,
Tosfos (in DH mi'Kan) seems to say that there is not even any logical
reason to differentiate between Reshus ha'Rabim and Reshus ha'Yachid.
Rather, it is all a Halachah l'Moshe mi'Sinai with no apparent reason.)
(b) The VILNA GA'ON
(Chidushim, Maseches Taharos 5:1 and 6:1, printed in the Vilna Shas)
writes that the Torah is lenient in the case of a Safek Tum'ah in Reshus
ha'Rabim because it is more common for doubts to arise with Tum'ah in
Reshus ha'Rabim since so many people traverse there. Similarly, when the
object is a "Davar she'Ein Bo Da'as Lisha'el," it is more common for
doubts to arise because there is no person involved who is trying to avoid the Safek. Therefore, the Torah is lenient. (RAV M. HELLER)
The
Vilna Ga'on seems to understand that the Torah wants to make it easier
for those who work with Taharos, and, therefore, it rules that one may
be lenient in cases where doubts arise often. This is similar to the
Halachah taught in the end of Chagigah, that during the festival, when
more Amei ha'Aretz come to Yerushalayim, what they touch is treated as
Tahor and the normal Chumros are suspended.
The logic of the Vilna Ga'on is easier to understand according to the opinion of the RAMBAM
(Hilchos Avos ha'Tum'ah 16:1), who writes that the reason why "the
Chachamim were Metaher Tum'ah in Reshus ha'Rabim" is "because all of the
Sefeikos are only Isurei d'Rabanan," and he adds that one should see
what he writes elsewhere (in Hilchos Isurei Bi'ah 18:17), where he
writes that every Safek d'Oraisa is judged leniently, l'Kula,
mid'Oraisa, and it is only mid'Rabanan that we are Machmir in cases of
Safek d'Oraisa. Here, the Rabanan were lenient out of necessity, as the
Vilna Ga'on explains.
Sotah 29
1) COMPARING THE LAWS OF TUM'AH TO THE LAWS OF SOTAH
QUESTION:
The Gemara writes that two sources are needed to teach the law that a
Safek Tum'ah in the case of a "Davar she'Ein Bo Da'as Lisha'el" is Tahor:
the verse, "veha'Basar Asher Yiga b'Chol Tamei" (Vayikra 7:19), which
teaches that only a Vadai Tum'ah is considered Tamei and not a Safek
Tum'ah, and the laws of Sotah which teach that just as a woman becomes
prohibited as a Sotah only when she is "Yesh Bah Da'as Lisha'el," so,
too, an item of Safek Tum'ah is deemed Tamei only when it is "Yesh Bo
Da'as Lisha'el."
The Gemara says that without the second source, one would have thought that even in Reshus ha'Rabim a Safek Tum'ah which is a "Davar she'Yesh Bo Da'as Lisha'el" is Tamei,
and thus it is necessary to learn from Sotah that only in Reshus
ha'Yachid is it Tamei. Without the first source (the verse of
"veha'Basar"), one would have thought that a Sotah is Tamei only when both
the Da'as of the subject and the Da'as of the object ("Noge'a" and
"Magi'a") are present, and thus the verse "veha'Basar" teaches that the
Da'as of the object (the item that became Tamei, or the woman who became
a Sotah) is sufficient.
Why
does the Gemara assume that the verses of Sotah refer only to a case in
which the Sotah has "Da'as Lisha'el"? Perhaps the Sotah is a Ketanah (whose father married her off), who does not have "Da'as Lisha'el" (as the Mishnah in Taharos teaches).
ANSWER:
The answer seems to be that if the woman is a Ketanah, she would not
become prohibited to her husband with the Isur of Sotah. This is because
the Gemara in Yevamos (32b) teaches that "Pituy Ketanah k'Ones" -- when
a man persuades a Ketanah to sin with him, she is considered to be
Anusah (forced against her will).
The RAMBAM
(Hilchos Sotah 2:4), however, writes that if a Ketanah sinned willfully
with another man, she becomes prohibited to her husband. (See the
commentators there who discuss why the Rambam rejects the apparent
conclusion of the Gemara.)
According
to the Rambam, why does the Gemara derive from the laws of Sotah that a
Safek Tum'ah is Tamei only when it is a "Davar she'Yesh Bo Da'as
Lisha'el"? In the case of a Sotah, even a Ketanah -- who is "Ein Bah
Da'as Lisha'el" -- becomes Tamei! (SHEV SHEMAITSA 1:16)
1. The SHEV SHEMAITSA
suggests that the case of a Sotah is considered "Yesh Bo Da'as
Lisha'el" not because the woman (or girl) has Da'as, but because the Bo'el
has Da'as. Since the Bo'el is also part of the Safek, it suffices for
either the "Metamei" (the Bo'el) or the "Nitma" (the woman) to have
Da'as.
However,
the Shev Shemaitsa himself is not satisfied with this answer, because
the verse seems to discuss even a Ketanah who lived with a Katan
(over the age of nine), and yet she still becomes prohibited to her
husband even though neither the Bo'el nor the woman is "Yesh Bo Da'as
Lisha'el."
Moreover,
the Gemara seems to contradict the Shev Shemaitsa's assertion when it
states that in the case of Sotah, both the man and the woman have Da'as.
(b) Some Acharonim point out that the comparison between Sotah and Tum'ah is not an exact comparison, as the TOSFOS HA'ROSH
(28a) mentions (see, however, Tosfos there). Accordingly, the Gemara
means that the Torah refers to Sotah as "Tum'ah" in order to teach that
the two should be compared (see RASHI to Chulin 9b, DH Mah Sotah).
Accordingly,
the comparison between the two Halachos is not an exact comparison, and
thus even if the Isur of Sotah applies when the woman is "Ein Bah Da'as
Lisha'el," in the case of a Safek Tum'ah the item is deemed Tamei only
when it is "Yesh Bo Da'as Lisha'el."
However, the Gemara implies that Sotah is compared with Tum'ah even with regard to a "Davar she'Ein Bo Da'as Lisha'el."
(c) HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv shlit'a) and RAV SHLOMO ZALMAN AUERBACH
zt'l (in his commentary to the Shev Shemaitsa) point out that not every
Katan is considered "Ein Bo Da'as Lisha'el." The Gemara in Sukah (42a)
clearly states that there is a type of Katan who does have "Da'as
Lisha'el." Accordingly, the Rambam -- who rules that a Ketanah who
commits adultery becomes prohibited, may be referring only to a Ketanah
who has reached the age at which she is able to understand the Isur of
Z'nus, or as some Acharonim express it, she is old enough to appreciate
the meaning of rebelling against her husband as expressed in the verse
of "u'Ma'alah Vo Ma'al" (Bamidbar 5:12; CHASAM SOFER EH 2:4, BRIS AVRAHAM 80:6, BEIS YAKOV
Kesuvos 9a). It is logical that the woman must have a certain amount of
Da'as, because if she has no Da'as the Kinuy would not be effective; it
would not prevent her from secluding herself with another man and would
not create a "Raglayim l'Davar" (Rav Shlomo Zalman Auerbach zt'l).
Hence, the age of a Ketanah who knows enough to realize the severity of
this sin is the same as the age at which she is "Yesh Bah Da'as
Lisha'el"; at that age Beis Din can ask her whether she did such an act,
since she realizes the consequences of the act and pays attention to
whether it happened or not.
Therefore,
the Gemara's comparison of the law of Tum'ah of a Katan and Ketanah
with the law of a Sotah who is a Ketanah is accurate. In both cases,
when they are "Yesh Bo Da'as Lisha'el" the Safek is judged stringently,
l'Chumra.
Sotah 30
1) "SHELISHI" FOR TERUMAH AND "REVI'I" FOR KODESH: MID'ORAISA OR MID'RABANAN
OPINIONS:
The Gemara derives the Halachos of Shelishi for Terumah and Revi'i for
Kodesh from either a Kal va'Chomer or from a Mah ha'Tzad. (See Chart.)
These sources imply that the respective degrees of Tum'ah for Terumah
and for Kodesh are mid'Oraisa. Are they indeed mid'Oraisa?
(a) RASHI
here implies that the Halachos of Shelishi for Terumah and Revi'i for
Kodesh are both mid'Oraisa, and that the Kal va'Chomer of the Gemara is a
full-fledged Kal va'Chomer. Although each Kal va'Chomer which the
Gemara suggests (to teach Shelishi and Revi'i) can be refuted by the
argument of "Dayo," nevertheless the Gemara maintains that when a Kal
va'Chomer will be rendered useless when the rule of "Dayo" is applied,
"Dayo" is not applied and the Kal va'Chomer remains in effect.
(The problem of "Dayo" of the Kal va'Chomer that teaches Shelishi for Terumah is that the Chumra of a Sheni is that it itself
is Tamei for Chulin, but not that it is Metamei other items. Hence,
that law should not be able to teach, through a Kal va'Chomer, that a
Sheni can make another item Pasul in the case of Terumah. The problem of
"Dayo" of the Kal va'Chomer that teaches Revi'i for Kodesh is that one
who is Mechusar Kipurim is only prohibited from eating Terumah,
but he does not make Terumah that he touches Pasul, and therefore that
law should not be able to teach, through a Kal va'Chomer, that a
Shelishi makes Terumah become Pasul.)
This is also the opinion of TOSFOS in many places (Pesachim 19a, DH Lo; Chulin 35a, DH Ein Lecha; Chagigah 21b, DH Basraisa #2).
(b) However, RASHI in Chagigah (24a, end of DH Eino Din) and in Pesachim (19a, DH Amar Lei) asserts that the law of Revi'i for Kodesh is only mid'Rabanan.
Rashi in Pesachim proves this from the fact that Rebbi Yosi -- who
teaches the Kal va'Chomer -- maintains that a solid food is Mekabel
Tum'ah from neither a liquid nor a solid food, but only from a Kli
(vessel). Since a Kli can never be less than a Rishon l'Tum'ah, the food
which touches the Kli becomes a Sheni, and the liquid which touches the
food becomes a Shelishi, after which nothing else becomes Tamei,
mid'Oraisa. Rebbi Yosi must be discussing the Tum'ah d'Rabanan of
food or drink which touches another food, and thus the point of his Kal
va'Chomer is to teach a Halachah d'Rabanan (i.e. the situation in which
something can become Tamei with Revi'i l'Tum'ah).
Rashi
cites further proof from the Gemara in Chagigah (21b) which states that
the Chumra of Kodesh (that a Revi'i makes Kodesh become Pasul while
only a Shelishi makes Terumah become Pasul) is only a "Ma'aleh
d'Rabanan" which has no source in the Torah. (Tosfos in Pesachim cites a
different Girsa of the Gemara in Chagigah. Tosfos also attempts to
reconcile the Gemara in Chagigah with his opinion that Revi'i for Kodesh
is mid'Oraisa, even according to Rashi's Girsa.)
(c) RASHI
in Chulin (35a) seems to have a third opinion. Rashi explains that even
the law of Shelishi for Terumah is only mid'Rabanan, and food that
touches a Tevul Yom is also Pasul (as a Shelishi) only mid'Rabanan.
According to Rashi, none of the Kal va'Chomers here are true Kal
va'Chomers (perhaps because of the problem of "Dayo"), and they teach
only Halachos mid'Rabanan.
This
is also the opinion expressed by Rashi later in Chulin (128a, DH
Mehader; see Gilyon ha'Shas and Rashash there), and it may also be the
opinion of Rashi's second explanation in Chagigah (24a, DH Eino Din).
(See Insights to Chagigah 24:1.)
Why
does Rashi say that a Tevul Yom does not make Terumah become Pasul
mid'Oraisa? The Gemara in Yevamos cites two sources from the Torah to
teach that a Tevul Yom may not touch Terumah. One of the sources is the
one Rashi cites here (beginning of 29b): the Torah clearly refers to a Kli
which is a Tevul Yom and which remains Tamei until the evening with
regard to Terumah. A Kli obviously cannot eat Terumah, and thus the
verse must be teaching that a Kli may not touch Terumah.
How
does Rashi in Chulin explain that verse? Apparently, Rashi learns that
just as a person who is a Tevul Yom is prohibited from eating Terumah, a person or a Kli Tevul Yom is prohibited from touching
Terumah. If, however, he does touch it, b'Di'eved the Terumah does not
become Pasul. That is, the Gemara in Yevamos teaches only that a Tevul
Yom is prohibited from touching Terumah, but not that the Terumah
becomes Pasul (this is implicit in the words of Rashi in Yevamos).
The
Acharonim cite a source for Rashi's opinion in Chulin from the Girsa of
the Gemara of some Rishonim in Pesachim (35a; see Rabeinu Nisim Ga'on to
Berachos 35b, and Tosfos to Menachos 21a, DH Yatzu), that after a
person performs Tevilah when he is still a Tevul Yom he is actually
Tahor, and the Torah merely made a special level of purity, a Ma'aleh,
which prohibits him from eating Kodshim.
2) THE STATUS OF A "MECHUSAR KIPURIM" WITH REGARD TO KODESH
OPINIONS:
Rebbi Yosi proves from a Kal va'Chomer that a Revi'i of Tum'ah will
make Kodesh become Pasul. His Kal va'Chomer is from the Halachah of a
person who is Mechusar Kipurim, who is "Pasul b'Kodesh" even though he
is "Mutar b'Terumah." If a Mechusar Kipurim is Mutar b'Terumah but yet
is Pasul b'Kodesh, then certainly a Shelishi -- which makes Terumah
become Pasul -- should make Kodesh become a Revi'i (see Chart, footnote
7). When Rebbi Yosi refers to a Mechusar Kipurim's status with regard to
Kodesh, he says that a Mechusar Kipurim is "Pasul" for Kodesh. Does
Rebbi Yosi mean that a Mechusar Kipurim is merely prohibited from eating
Kodesh, or does he mean that a Mechusar Kipurim is also able to make
Kodesh Pasul by touching it?
(a) The RASHASH
in Chagigah (beginning of 21a) asserts that a Mechusar Kipurim is not
only prohibited mid'Oraisa from eating Kodesh, but he is even able to be
Posel Kodesh, mid'Oraisa, by touching it. He proves this from the
Gemara in Yevamos (74b) in which Rava infers from the verse (Vayikra
12:7) -- which teaches that the Mechusar Kipurim becomes Tahor after he
brings his Korban -- that until that time the person remains Tamei. Rava
concludes, therefore, that the Halachah that meat of Kodesh which
touches something Tamei may not be eaten applies to meat of Kodesh which
touches a Mechusar Kipurim before the person brings his Korban (see
Rashi there, DH Kari).
(b)
However, the wording of the Gemara here clearly implies that a Mechusar
Kipurim is not Posel Kodshim mid'Oraisa, but that he is only Pasul from eating Kodshim mid'Oraisa. Although it is true that he is Posel Kodshim (Tevul Yom 2:4) -- that law is only mid'Rabanan. The RASHASH
(Chagigah 24a) cites the Tosefta in Chagigah (3:7), which is the source
for Rebbi Yosi's Kal va'Chomer, and the Yerushalmi in Chagigah (3:4),
which both say that the Kal va'Chomer is from the Halachah that a
Mechusar Kipurim is Posel Kodesh. Nevertheless, the Girsa of the
Gemara here, the Gemara in Chagigah (24a), and the Gemara in Pesachim
(18b) is that a Mechusar Kipurim is Pasul (not Posel) for Kodesh.
This is also clear from the Gemara in Pesachim (35a, according to the
Girsa of our text; see previous Insight) which teaches that a Mechusar
Kipurim is Asur b'Kodshim mid'Oraisa only because of a Ma'aleh, but not because he is Tamei.
In fact, the TOSFOS HA'ROSH
questions why the Gemara here says that a Mechusar Kipurim is only
Pasul from eating Kodesh and is not Posel. Why should he not be Posel
Kodesh as well because of the logic of the Rashash (that the Torah
implies that he is Tamei and any Kodesh that a Tamei person touches
becomes Pasul)?
The
Tosfos ha'Rosh answers that the Torah does not actually refer to a
Mechusar Kipurim as "Tamei." Rather, it says merely that after he brings
his Korban, he "becomes Tahor." Only something explicitly called
"Tamei" can be Posel items of Kodesh.
What,
though, is the meaning of the Gemara in Yevamos which the Rashash cites
as proof that a Mechusar Kipurim can be Posel Kodesh?
The
Gemara there is expressing the opinion of Rava, who argues with Abaye
about this point. Apparently, the Gemara here and the Gemara in Pesachim
(35a) side with Abaye, who says that Kodesh touched by a Mechusar
Kipurim does not become Pasul mid'Oraisa. (Rava will adopt the Girsa of
the Rashash in the statement of Rebbi Yosi, that Mechusar Kipurim is Posel items of Kodesh.)
Please Mr. Netanyahu, Mr. Ben Gvir, Mr. Smotrich and Mr. Gallant unite and bring Hashem’s Righteousness back to the Har HaBayit? |
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