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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 that Safek Tum'ah in the case of an item that is a "Davar she'Ein Bo Da'as Lisha'el" is *Tahor*: the verse, "v'ha'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 like a woman only becomes prohibited as a Sotah when she is "Yesh Bah Da'as Lisha'el," so, too, an item of Safek Tum'ah is only deemed Tamei when it is "Yesh Bo Da'as Lisha'el." The Gemara says that if we only had the verse of "v'ha'Basar..." then we might have thought that even in Reshus *ha'Rabim* a Safek Tum'ah with is a "Davar she'Yesh Bo Da'as Lisha'el" is *Tamei*, and thus we need to learn from Sotah that it is only in Reshus ha'Yachid that it is Tamei. If we only had the laws of Sotah and not the verse of "v'ha'Basar," then we might have thought that she is Tamei only when we have *both* the Da'as of the subject and the Da'as of the object ("Noge'a" and "Magi'a"), and thus the verse "v'ha'Basar" teaches that the Da'as of the object (the item that became Tamei, or the woman who became a Sotah) is sufficient.

Why do we assume that the verses of Sotah are referring only to a case where the Sotah has "Da'as Lisha'el?" Perhaps the Sotah is a *Ketanah* (whose father married her off)! The Mishnah tells us (in Taharos) that a Katan (or Ketanah) does not have Da'as Lisha'el!

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.

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 Mefarshim there who discuss why the Rambam rejects the apparent conclusion of the Gemara.)

According to the Rambam, how can we learn 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! (SHAV SHEMAITSA 1:16)

1. The SHAV 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 Shav Shemaitsa himself is not satisfied with this answer, because the verse seems to be discussing 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 of them are "Yesh Bo Da'as Lisha'el!"

In addition, our Gemara seems to contradict the Shav Shemaitsa's assertion, since the Gemara says clearly 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) points out (see, however, Tosfos there). Accordingly, the comparison simply is that the Torah refers to Sotah as "Tum'ah" in order to teach us to compare the two (see RASHI in Chulin 9b, DH Mah Sotah).

Hence, perhaps we do not need to compare the Halachos exactly, and thus even if the Isur of Sotah applies when the woman is "Ein Bah Da'as Lisha'el," nevertheless in the case of Tum'ah we rule stringently only when the item is "Yesh Bo Da'as Lisha'el."

However, our Gemara seems to imply that we do compare Sotah with Tum'ah even with regard to a "Davar she'Ein Bo Da'as "Lisha'el."

(c) The HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv) and RAV SHLOMO ZALMAN AUERBACH zt'l (in his commentary to the Shav Shemaitsa) point out that not every Katan is considered "Ein Bo Da'as Lisha'el." The Gemara in Sukah (42a) says clearly that there is a type of Katan who does have "Da'as Lisha'el." The Rambam, also, who says that a Ketanah who commits adultery becomes prohibited, might 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 otherwise the Kinuy would not be effective, for it would not prevent her from secluding herself with another man and thus it 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 we 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. The Gemara, then, is indeed correct in comparing the law of a Katan and Ketanah regarding Tum'ah to the law of a Ketanah regarding Sotah. In both cases, if they are "Yesh Bo Da'as Lisha'el," the Safek is judged stringently, l'Chumra.

29b