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Yevamos, 58

1) SUMMARY: HOW A "SHOMERES YAVAM" CAN BECOME A SOTAH

The Gemara cites a proof for Rav who says "Yesh Chupah l'Pesulos" -- that is, if a Kohen effects a Chupah with a Bas Kohen to whom he is prohibited (such as a Gerushah) it invalidates her from eating Terumah (see previous Insight). The Gemara proves this from the Mishnah (Sotah 18a) which discusses the oath of a Sotah, a woman suspected of adultery, which the woman makes when she drinks the "Mei Sotah" (the water that a suspected Sotah is given to drink to determine whether or not she was disloyal to her husband).

The Mishnah (Sotah 18a) says that she swears that she did not sin while she was an "Arusah, Nesu'ah, Shomeres Yavam, or Kenusah." How is it possible that Mei Sotah can determine whether she committed adultery as an Arusah, when another Mishnah (Sotah 23b) says that an Arusah does not drink Mei Sotah? It must be, concludes the Gemara, that the first Mishnah is referring to when her husband warned her not to isolate herself with another man (Kinuy) while she was an Arusah, after which she isolated herself with the man (Setirah). Then she entered the Chupah with her husband, effecting Nisu'in. He can make her drink the Mei Sotah because she is now a Nesu'ah, even though the Chupah with her was a Chupah with a Pesulah, since she is prohibited to him since the time of the Setirah. From here we see that "Yesh Chupah l'Pesulos," like Rav says.

The Gemara adds that an Arusah can become a Sotah only if she lived with her husband during Erusin before she sinned, because in order to become a Sotah, her husband must have done Bi'ah with her before the adulterer.

The Gemara challenges this proof, saying that the Mishnah is problematic in any case and thus no proof can be brought from there, because the Mishnah also mentions that she swears that she did not sin while she was a Shomeres Yavam. It is not possible for her to be a Sotah while still a Shomeres Yavam!

The Gemara does not clearly explain *why* it is not possible, and RASHI (58b) gives two approaches to explain the Gemara's statement. Rashi's words are terse and because of this there are a number of points that must be clarified in order to understand exactly how each approach learned the Gemara and in order to understand the differences between the two approaches.

(a) INTRODUCTION: The Mishnah (Sotah 18a) says that it is possible to make a woman a Sotah for a sin that was done while she was an Arusah or Shomeres Yavam. This contradicts another Mishnah (Sotah 23b) which says that an Arusah and Shomeres Yavam cannot be made to drink Mei Sotah. The Gemara answers that the first Mishnah (that says an Arusah *can* be a Sotah) is referring to when there was Kinuy and Setirah while she was an Arusah, and then *after she married* her husband the husband wants her to drink Mei Sotah.

The Gemara then faces two problems with this answer. First, there is a rule that a woman cannot be made into a Sotah unless she lived with her husband *before* living with the adulterer. If she did Setirah when she was an Arusah or Shomeres Yavam, she did not yet have the opportunity to live with her husband, and so she should not be able to be made a Sotah!

Second, in order to change her status from an Arusah or a Shomeres Yavam into a Nesu'ah, the husband must effect Nisu'in with her through an act of Bi'ah. Once she has done Setirah, she is Asur to him, and if a man had prohibited relations with his wife after her Setirah (and he is no longer "Menukeh me'Avon," or "clean of any wrongdoing"), she cannot be given the Mei Sotah.

Thus, there are two problems in the cases of an Arusah and a Shomeres Yavam: how is it possible that the husband did Bi'ah *before* the adulterer, and how is it possible that he did Bi'ah *after* the adulterer (in order to be Koneh her)?

The Gemara resolves these two questions with regard to an Arusah in a relatively simple manner. The husband did Bi'ah before the adulterer by doing Bi'ah with his Arusah (l'Shem Zenus) while she was still in her father's home. Regarding doing Bi'ah afterwards in order to be Koneh her to make her a Nesu'ah, that Bi'ah is not necessary, because Chupah without Bi'ah also makes her into a Nesu'ah, even though she is Pesulah to him (this is the proof for Rav that "Yesh Chupah l'Pesulos").

However, the Gemara is bothered by the case of Shomeres Yavam mentioned in the Mishnah in Sotah. It is at this point that Rashi offers two different explanations for the Gemara's question.

(b) RASHI'S FIRST APPROACH: Rashi explains that the Gemara wants to know how the Shomeres Yavam could have had Bi'ah with the Yevamah *before* the woman's Setirah. If she lived with her husband, then he is Koneh her through Yibum and by the time of the Setirah she was no longer a Shomeres Yavam! The Gemara suggests that perhaps the Bi'ah was done b'Shogeg or b'Ones, and since such a Bi'ah is not Koneh a Yevamah for Nisu'in, according to Shmuel, but only for Erusin, it is still possible to call her a Shomeres Yavam.

This answer does not suffice according to Rav (who says that such a Bi'ah will be Koneh the Yevamah in all respects), and so the Gemara suggests another answer. It says that the Mishnah is according to Beis Shamai and is discussing a case where the Yavam did Ma'amar. After Ma'amar, a Bi'ah b'Shogeg or b'Ones is not Koneh her even according to Rav, a possibility which the Gemara mentioned earlier (29b). Once the Yavam did Ma'amar with her it turns the bond between them into an Erusin-like bond, which must culminate in Nisu'in. Bi'as Shogeg or Ones can no longer accomplish Nisu'in.

1. One problem with this approach is why the Gemara does not address the other problem that exists with a Shomeres Yavam: how can the Yavam be Koneh her after the Setirah, and yet remain "Menukeh me'Avon?" How does the Gemara address that question? (It could be argued that after Bi'as Shogeg, a Shomeres Yavam can become a Sotah even without completing Yibum, since a partial Kinyan has been made. However, that partial Kinyan resembles Erusin, and a woman cannot become a Sotah from Erusin. In addition, it seems from the Gemara in Sotah 24b that even after such a Bi'ah she cannot become a Sotah.)

TOSFOS (DH d'Kavasa) answers that the Mishnah (from Sotah 18a0 that our Gemara is quoting represents the opinion of Rebbi Oshiya (Sotah 24b), who holds that a Shomeres Yavam may actually drink the Mei Sotah even before she becomes a Nesu'ah. According to that opinion, it is not necessary for the Yavam to be Koneh her in order for her to drink the Mei Sotah.

2. Another problematic point with this approach is that the Gemara is taking sides on an issue that was left unresolved earlier in the Maseches (Daf 29b), whether Ma'amar (according to Beis Shamai) can change the Zikah into an Erusin-like Kinyan and prevent Bi'as Shogeg from completing the Yibum.

(b) RASHI'S SECOND APPROACH: According to Rashi's second approach, the Gemara is addressing the second question -- how could the Yavam be Koneh the Shomeres Yavam? She can only drink the Mei Sotah once she is a Nesu'ah -- but if the Yavam does Bi'as Yibum with her (making her like a Nesu'ah) he is no longer "Menukeh me'Avon?" The Gemara does not address the first question of how the husband can do Bi'ah with the Yevamah before the adulterer, because the Gemara understands that the Bi'ah that the *first* brother did with his wife (before he died) qualifies for having the "husband's" Bi'ah precede the adulterer's.

The Gemara first suggests that, according to Shmuel, the Yavam did Bi'ah b'Shogeg or b'Ones. (This answer might be construed as saying that *after* the Setirah, he did Bi'as Shogeg or Ones to acquire her, and he is Menukah me'Avon since his act, although prohibited, was done b'Ones. However, if this were true the Gemara would stop right here. Even according to Rav, who holds that Bi'as Ones *is* a full-fledged Yibum, we could offer the same explanation as to how she became a Nesu'ah (i.e. a Yevamah) without making him Eino Menukah me'Avon. Even though she is a Nesu'ah at the time that she is given the Mei Sotah, the Mishnah calls her a Shomeres Yavam because the Kinuy and Setirah occurred while she was a Shomeres Yavam -- like the Gemara suggested on the other side of the page, regarding Arusah. Rather this answer must be understood in a manner similar to Rashi's first explanation, as follows:)

What the Gemara means by this is that the Yavam did Bi'as Shogeg or Ones *before* the woman became a Sotah. Since, according to Shmuel, she is not fully acquired by the Yavam with a Bi'as Shogeg or Ones, she is still called "Shomeres Yavam." On the other hand, she *can* become a Sotah after a Bi'as Shogeg or Ones, even though she still is a Yevamah, since she can be called "Tachas Ishech," under wedlock, to a certain extent.

Rashi is effectively answering the first problem (above (a):1) with his first approach by saying that our Gemara clearly argues with the Gemara in Sotah 24b which was the source of our problem. The Gemara there said that even after Bi'as Shogeg u'Mezid the Yevamah cannot become a Sotah. But the Gemara there also held that the Bi'ah the first brother did with his wife (before he died) *does not* qualify for having the "husband's Bi'ah precede the adulterer's." It was this very point that forced it to conclude that after Bi'as Shogeg u'Mezid the Yevamah still cannot become a Sotah. Since our Gemara disagrees on that count, it is able to conclude that after Bi'as Shogeg u'Mezid the woman *is* able to become a Sotah, and *is* considered to be "Tachas Ishech." (This also opens the way to answer TOSFOS' questions on Rashi in Kidushin 27b, DH Hachi Garsinan.")

The Gemara concludes that even according to Rav, there is a way for the Yavam to be Koneh the Yevamah only partially, so that she is "Tachas Ishech," but not yet in the category of a Nesu'ah. This can be accomplished through Ma'amar -- according to Beis Shamai. Ma'amar accomplishes a Kinyan with a Yevamah, after which the Yevamah is considered "Tachas Ishech," under wedlock with the husband. However, Ma'amar does not complete the Nisu'in until it is followed by Chupah, so she may be still called "Shomeres Yavam."

This answers the second problem we posed on Rashi's first approach (above, (a):2). It is no longer necessary for the Gemara to get involved in the question of whether or not *Bi'as Shogeg u'Mezid after Ma'amar* accomplishes Yibum. The Gemara here is referring to Ma'amar that is *not* followed by Bi'as Shogeg u'Mezid, which certainly is not Koneh a Yevamah completely (just as Erusin is not Koneh a woman completely, without Chupah, Rashi and Tosfos 29b).

(One point about this second approach remains to be explained. Rashi earlier (29b) wrote that Ma'amar with a Yevamah is only a Kinyan d'Rabanan even according to Beis Shamai. If Ma'amar is only a Kinyan d'Rabanan, then mid'Oraisa she is not really a Nesu'ah after Ma'amar and if so how can she drink the Mei Sotah after Ma'amar? According to Rashi's first approach, since there was a Bi'ah with the Ma'amar, on a d'Oraisa level it certainly effects a complete Kinyan, and therefore the Yevamah can become a Sotah. However, according to his second approach, that there was Ma'amar without any Bi'ah, why should she be able to drink Mei Sotah, if mid'Oraisa she is not a Nesu'ah?)

58b