Why does the Gemara suggest in the first place that a Safek Sotah should be
able to do Yibum? The Gemara in Yevamos (11a) cites the teaching of Rav who
says that a Vadai Sotah does not do Yibum or Chalitzah, but rather she is
treated like an Ervah, because the verse refers to the status of a Sotah as
"Tum'ah" (Devarim 24:4), implying that she is treated like an Ervah who does
not do Yibum or Chalitzah. According to the Gemara in Yevamos, why should
the Gemara here suggest that the Sotah do Yibum? Since there is a
possibility that she is a Vadai Sotah who cannot do Yibum, out of doubt she
should have to do Chalitzah and not Yibum, exactly like the Mishnah says!
(TOSFOS, Yevamos 11a)
Furthermore, the Gemara derives from the verse, "v'Haisah l'Ish Acher," that
a Safek Sotah does not do Yibum. Abaye asks that she should not need
Chalitzah either, and Rav Yosef answers that just like she needs a Get from
her husband when her husband is alive, she needs a release of Chalitzah from
the Yavam when her husband is dead. The verse, though, is referring to a
*Vadai* Sotah and not to a Safek Sotah, like the Gemara says in Yevamos
(11b)! A Vadai Sotah indeed does not do Chalitzah! What, then, is Abaye's
question, and what is Rav Yosef's reply, that she needs Chalitzah from the
Yavam because she would have needed a Get from her husband? We see from the
Gemara in Yevamos that a Vadai Sotah does not do Chalitzah, despite the fact
that she would have needed a Get from her husband had he been alive!
(TOSFOS)
(a) The ROSH (Yevamos 1:4) writes that the Sugya here and in Yevamos are in
agreement. The reason a Safek Sotah will not be prevented from doing Yibum
because of the same reason that a Vadai Sotah cannot do Yibum is because
there really is no reason to be stringent with a Safek Sotah and suspect
that she actually committed adultery (because she has a Chezkas Heter
l'Yibum and a Chezkas Kashrus that she is not a Zonah -- see Kidushin 80a,
"we do not prohibit a woman just because she isolated herself with another
man"). The only reason we prohibit a Safek Sotah to the husband, the
suspected adulterer, and to eat Terumah is because of the Gezeiras ha'Kasuv.
The verse says "v'Nisterah v'Hi Nitma'ah" (Bamidbar 5:13).
That verse, though, only applies to the Isur to live with her husband and
with the adulterer, but it does not teach that she is Asur to the Yavam.
Even though we learn the Isur that prohibits a Vadai Sotah to the Yavam from
the fact that the Torah calls her state a state of "Tum'ah" in the verse,
"Acharei Asher *Hutama'ah*" (Devarim 24:4), implying that she must be
treated like an Ervah regarding Yibum, nevertheless the fact that the Torah
prohibits the Safek Sotah with the similar phrase, "v'Hi *Nitma'ah*"
(Bamidbar 5:13), does not prove that she, too, is like an Ervah regarding
Yibum. The difference between the two types of "Tum'ah" is that the Tum'ah
of a Vadai Sotah is written as an Isur Lo Ta'aseh, while the Tum'ah of a
Safek Sotah is written as a Mitzvas Aseh. Only Tum'ah written with regard to
a Lo Ta'aseh can teach that the woman is like an Ervah and is not eligible
for Yibum. Therefore, the Safek Sotah remains permitted to the Yavam and
that is why the Gemara asks that she should do Yibum. (See also RAV CHAIM
HA'LEVY in Hilchos Yibum ch. 6, for a similar explanation.)
This leaves us with the other two questions. Our Gemara seems to be saying
that even a Vadai Sotah needs to perform Chalitzah in order to be released
from the Yavam! The Rosh will have to answer the way Tosfos answers in our
Sugya, that the reason why the Gemara cites the verse of Vadai Sotah is
because that verse is extra; it is not necessary to teach that a Sotah does
not do Yibum, because we already know that from "Acharei Asher Hutama'ah"
(Devarim 24:4) which teaches that she is considered like an Ervah, so it
must be referring to a Safek Sotah.
The reason why a Vadai Sotah does not need Chalitzah -- even though her
husband would have to give her a Get if he was alive -- is because when the
Torah excludes a woman from the category of Yibum, it considers her to be a
normal "Eshes Ach" who is prohibited to her husband's brother ("Eshes Ach
she'Lo b'Makom Mitzvah"), and thus it is obvious that she needs neither
Yibum nor Chalitzah. A Safek Sotah, though, is not totally removed from the
Parshah of Yibum. Rather, the verse that teaches "l'Ish Acher v'Lo l'Yavam"
is saying that she must leave her Yavam for the same reason that she must
leave her husband. It is an extension of the Isur to her husband, and it is
not because of her Tum'ah! (Or, as Rav Chaim ha'Levy, ibid., puts it, the
verse "l'Ish Acher" simply discloses to us that "v'Nitme'ah v'Hi Nitma'ah"
incorporates an Isur to the Yavam as well as the Isur to the husband.) That
is why a Safek Sotah needs Chalitzah.
(b) Other Rishonim assume that our Sugya disagrees with the Sugya in
Yevamos. They explain that our Sugya does not accept the Derashah of Rav in
Yevamos that the Tum'ah of a Sotah is comparable to the Tum'ah of Arayos.
The Sugya here maintains that the Tum'ah of a Sotah does *not* make her like
an Ervah to exempt her from Yibum.
The RA'AVAD, cited by the Rosh in Yevamos, explains that, indeed, according
to our Sugya even a Vadai Sotah Vadai must do Chalitzah, not like the Sugya
in Yevamos holds. According to the Ra'avad, who says that our Gemara does
not compare the Tum'ah of Sotah to the Tum'ah of Ervah, we easily can answer
the second two questions. Our Sugya holds that a Vadai Sotah does Chalitzah,
and the verse of Vadai Sotah is cited because the Sugya is also discussing a
Vadai Sotah and not only a Safek Sotah; the Gemara here is looking for a
source that not only a Safek Sotah does not do Yibum, but that a Vadai Sotah
also does not do Yibum.
How does the Sugya in Yevamos respond to the logic of our Gemara that the
Yavam must do Chalitzah with the Sotah whenever the husband would have had
to give her a Get? Why does Rav say that she does not even need Chalitzah?
Will the Ra'avad have to resort to the answer of Tosfos?
The RE'AH cited by the RITVA and the ME'IRI in Yevamos write that the Sugya
in Yevamos that says that a Vadai Sotah is exempt from Yibum *agrees* that a
Vadai Sotah must do Chalitzah, based on the logic of our Gemara.
Another approach is that of the RAMBAN and RASHBA in Yevamos. They write
that the Sugya in Yevamos exempts the Vadai Sotah from Chalitzah because
there is an extra verse. Besides the verse that calls her "Tamei" like an
Ervah, there is another verse of "l'Ish Acher" (the verse cited by our
Sugya). This extra verse teaches that a Vadai Sotah does not even do
Chalitzah.
RASHI in our Sugya seems to be suggesting a different answer to why the
Gemara in Yevamos is not bothered by the logic of our Gemara (that when the
husband would have needed to give her a Get, the Yavam must do Chalitzah
with her). The Gemara is not proposing that anytime the husband would have
to give a Get, the Yavam needs to do Chalitzah. Rather, the Gemara is asking
a specific question on what we learn from the verse, "l'Ish Acher." The
Derashah from that verse is based on the assumption that when the verse says
that she marries an "Ish Acher" ("another man"), it is not just referring to
a Sotah whose husband divorced her, but even to a Sotah whose husband died
without divorcing her. The Gemara challenges this comparison by pointing out
that if the Torah says specifically that the husband must divorce her, then
why should we assume that the Yavam does *not* need to do Chalitzah? The
verse seems to be saying that some act *is* required in order to send her
away, and therefore it is not proper to infer from this verse that the Yavam
does not need to do Chalitzah. However, when the Gemara later learns from
other sources that a Sotah does not perform Yibum, this logic will not
apply; that is, the comparison between the husband (needing to give her a
Get) and the Yavam (needing to do Chalitzah) will not apply. For example,
Rav Yosef learns that the Sotah does not do Yibum because the Torah implies
that it is not proper for a person to marry a Sotah, and therefore the Torah
cannot possibly obligate the Yavam to marry her if it is not a proper thing
to do. According to that logic, the inference that there is no Yibum does
not come from a simple comparison between the woman whose husband divorced
her and the woman whose husband died; it is coming from the verse that
teaches that it is not proper to marry such a woman! Hence, when we see that
the Torah does not require Yibum because it is not proper to marry her, we
can infer that the Torah does not require Chalitzah either. Since the Torah
does not give the option of Yibum here altogether, the woman is completely
exempt from the Parshah of Yibum (including Chalitzah). This is why Rashi
(beginning of 6a) writes that according to the second source for why the
Sotah does not do Yibum (that it is not proper to marry such a woman), the
Sotah is like an "Eshes Ach she'Lo b'Makom Mitzvah" which implies that she
does not have Chalitzah either. According to this reasoning, the Gemara
concludes like Rav in Yevamos, that a Vadai Sotah has neither Chalitzah nor
Yibum.