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Sotah, 24

SOTAH 21-25 - These Dafim have been dedicated by Mrs. Estanne Abraham-Fauer in honor of the first Yahrzeit (18 Teves 5761) of her father, Reb Mordechai ben Eliezer Zvi (Weiner). May the merit of supporting and advancing the study of the Talmud be l'Iluy Nishmaso.

1) A "SHOMERES YAVAM" AND AN "ARUSAH" DRINKING THE "MEI SOTAH"

QUESTION: The Gemara records a Machlokes between Rebbi Yonasan and Rebbi Yoshiyah regarding whether a Shomeres Yavam may drink the Mei Sotah. Both agree that an Arusah does not drink the Mei Sotah, and they agree that the Yavam's Kinuy is effective to cause the Shomeres Yavam to lose her Kesuvah (and to prohibit her to the Yavam; see Rashi 23b, DH v'Lo Notlos). The Mishnah (23b) follows the opinion of Rebbi Yonasan who says that a Shomeres Yavam, like an Arusah, does not drink the Mei Sotah.

How is the view of Rebbi Yonasan and the Mishnah here to be reconciled with the Mishnah earlier (18b) that states that when the woman is given the Mei Sotah to drink, she must affirm an oath that not only did she not sin while married (during Nesu'in), but that she also did not sin while she was an Arusah or a Shomeres Yavam? The Mishnah there implies that a woman *does* drink the Mei Sotah when her husband (or Yavam) accuses her of infidelity while she is a Shomeres Yavam or Arusah!

ANSWERS: The Gemara in Yevamos (58b) and Kidushin (27b) asks this question and the Gemara offers various answers to this question.

(a) The Gemara in Kidushin (27b) explains that the Mishnah earlier in Sotah (18b) is not discussing a case of giving a woman the Mei Sotah to drink because of a Kinuy and Setirah that occur while she is a Shomeres Yavam or an Arusah. Rather, it is referring to a case where the woman is given the Mei Sotah to drink because of a Kinuy and Setirah that occur after Nesu'in. The Mishnah is saying that once she is drinking the Mei Sotah for a Kinuy and Setirah that occurred after Nesu'in, we make her swear that not only did she not sin with the Setirah for which she is accused, but that she also did not sin at any other time of her marriage, such as when she was an Arusah or Shomeres Yavam. The Gemara states there that this Mishnah provides the source for the concept of "Gilgul Shevu'ah."

This seems to be the approach of the Gemara here in Sotah (19b) as well, which infers from the Mishnah that a Shomeres Yavam who sinned with another man is prohibited to the Yavam from the fact that the Mishnah says that we only append an additional clause to the Shevu'ah ("Gilgul") for the type of sin that would make her prohibited to her husband. The Gemara is clearly understanding the Mishnah literally -- that the case of Shomeres Yavam in the Mishnah refers to a normal case of a Yevamah who is waiting to perform Yibum.

This is also the approach of Rav Nachman bar Yitzchak in Yevamos (58b).

(b) However, Rav Sheshes and Rav Papa in Yevamos (58b) avoid this approach. Apparently, they find this approach unsatisfactory because it leads to one of two conclusions: it either supports the view of Rav Hamnuna that a Shomeres Yavam who sinned is prohibited to the Yavam, or it supports the view of Rebbi Akiva that Chayavei Lavim are the same as Chayavei Kerisus and therefore a Shomeres Yavam who sinned is prohibited to the Yavam just like an Eshes Ish who sinned is prohibited to her husband (as the Gemara says here on 18b). The problem is that the Gemara itself rules against both of these opinions. It rules against Rav Hamnuna's opinion earlier in Sotah (18b; see, however, Tosfos there, DH Amrei, who rules contrary to the Gemara's conclusion), and it rules against Rebbi Akiva in Yevamos (49a).

Therefore, Rav Sheshes and Rav Papa suggest that the Mishnah (18b) is not discussing the case of "Gilgul Shevu'ah," but rather the Mishnah is discussing a case of Kinuy of a woman who is actually a Shomeres Yavam or an Arusah. Why is such a woman given the Mei Sotah to drink? Rav Papa in Yevamos suggests that the Mishnah means that the husband did Kinuy while she was a Shomeres Yavam or Arusah, and then after the woman did Yibum or became married she was Nisterah with the other man. The Kinuy done when she was a Shomeres Yavam or Arusah is effective, like our Gemara says; it is only the Setirah which must occur after she is fully married in order to require her to drink the Mei Sotah. (This is one way of understanding Rav Papa's answer in Yevamos according to Rashi there. However, Rashi himself points out that this answer is very weak because -- if the Setirah occurred after she was married -- the Mishnah should not say that she "became a Sotah" while she was a Shomeres Yavam or Arusah. Rashi therefore offers another explanation there for Rav Papa's answer; see (c) below.)

(c) The Gemara in Yevamos suggests further that the Mishnah in Sotah (18b) means that an Arusah -- who had Kinuy *and* Setirah while she was an Arusah -- could be made to drink the Mei Sotah later, after she becomes married (like the Gemara here says on 25a).

However, this raises a new problem: if she was Nisterah while she was an Arusah, before the Nesu'in, then the Shechivas ha'Bo'el (the sin with the adulterer) occurred *before* the husband lived with her! There is a rule that the Shechivas *ha'Ba'al* (the husband) must precede the Shechivas ha'Bo'el in order for the woman to drink the Mei Sotah. Why, then, should an Arusah have to drink the Mei Sotah? The Gemara answers there (like it answers here in Sotah) that the Mishnah must be discussing a case when the husband had relations with her before marrying her ("b'Beis Chamihah"). However, this answer only suffices to explain why an Arusah drinks the Mei Sotah -- since it is possible for her to become a Nesu'ah after the Setirah through Chupah (without Bi'ah with the husband) and thus to remain "Menukah m'Avon" (the rule is that in order to drink the Mei Sotah, the husband and the accused woman may not have relations after the Setirah). However, if a Shomeres Yavam underwent Kinuy and Setirah before doing Yibum, how can the Yavam possibly marry her and still remain "Menukeh m'Avon?" The only way to marry her is through the Bi'ah of Yibum! Moreover, how can he fulfill the requirement that the Shechivas ha'Ba'al precede the Shechivas ha'Bo'el; how can he have relations with the Shomeres Yavam before the adulterer? If he has relations with her, then she will no longer be a Shomeres Yavam at the time of the Setirah, because by having relations with her he thereby marries her fully!

The Gemara in Yevamos suggests a number of answers to this question.

1. The case is when the Yavam had relations with the Shomeres Yavam against her will, before the Setirah, and thus he is not Koneh her with regard to all matters. Therefore, she is still considered a Shomeres Yavam (this follows the opinion of Shmuel who says that Bi'ah against her will is not Koneh her with regard to Terumah), and yet she is able to drink the Mei Sotah since the Yavam had relations with her (this follows the opinion of Rebbi Yoshiyah who says that a Shomeres Yavam after Bi'ah against her will does drink the Mei Sotah, not like the Mishnah on 23b).

2. The Gemara suggests further that the Mishnah follows the opinion of Beis Shamai who says that Ma'amar is Koneh a Shomeres Yavam, and -- after Ma'amar -- Bi'ah can no longer be Koneh her without Chupah (see Yevamos 29b, where the Gemara is in doubt about this point). In this case, the Yavam lived with her after Ma'amar, following which the Bo'el was Nisterah with her.

3. RASHI in Yevamos suggests another interpretation of the Gemara there, according to which the Gemara answers that it is indeed not necessary for the Yavam himself to live with the Yevamah before the adulterer. It suffices that the Yavam's *brother* lived with her before the adulterer, and the Yavam merely takes the place of his deceased brother.

The only problem that needs to be resolved is why the Shomeres Yavam may drink the Mei Sotah at all, if Rebbi Yonasan says that a Shomeres Yavam does not drink the Mei Sotah. The Gemara could have answered that the Mishnah follows the opinion of Rebbi Yoshiyah who says that a Shomeres Yavam does drink the Mei Sotah. However, the Gemara answers that the Mishnah can even follow the opinion of Rebbi Yonasan if it holds like Beis Shamai who says that Ma'amar is Koneh the Yevamah, and if Rebbi Yonasan agrees that after Ma'amar, the Yevamah may drink the Mei Sotah. (Alternatively, the Mishnah can follow the opinion of Rebbi Yonasan if it holds like Shmuel who says that Bi'ah against her will is not Koneh the Yevamah for all matters, and if Rebbi Yonasan agrees that it *is* Koneh her with regard to drinking the Mei Sotah.)

How, though, can Rashi say that the Bi'ah of the deceased brother is considered to be the Shechivas ha'Ba'al that precedes the Shechivas ha'Bo'el? This clearly contradicts our Sugya (TOSFOS 58a, DH d'Kavasah)! The answer is that Rashi learns that the Machlokes between the Sugyos regarding whether the Mishnah (18b) is discussing "Gilgul Shevu'ah" or is discussing a normal case of Kinuy revolves around this very point. The Gemara in Yevamos holds that the Mishnah is discussing a normal case of Kinuy, because it holds that the Bi'ah of the deceased husband is considered Shechivas ha'Ba'al, and therefore we can explain the Mishnah as discussing a Kinuy of a Shomeres Yavam (as in 3 above). Our Sugya, though, and the Sugya in Kidushin hold that the deceased husband's Bi'ah does not count as the Shechivas ha'Ba'al, and therefore it is not possible to explain that the Mishnah is referring to a normal case of Kinuy while the woman was a Shomeres Yavam, since the condition of Shechivas ha'Ba'al preceding the Shechivas ha'Bo'el cannot be fulfilled. This forces the Sugya to explain the Mishnah to be discussing a case of "Gilgul Shevu'ah."


24b

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