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Yevamos, 95

1) BECOMING PROHIBITED TO THE ONE WHO MADE HER PROHIBITED TO THE OTHER

QUESTION: The Gemara searches for a case that fits the description of a man who lives with a woman who is Asur to him, "and that man causes her to become Asur to the one who made her Asur to him in the first place." The Gemara suggests that it might be referring to a Sotah. If a Sotah -- after being alone with another man ("Setirah") when her husband had warned her not to be alone with him -- has relations with her husband (which is prohibited once she has become a Sotah), then that act of prohibited relations with her husband causes her to become Asur "to the one who made her Asur [to her husband]" in the first place -- the Bo'el (the suspected adulterer).

The Gemara rejects this, saying that it is not the prohibited relations between the husband and the Sotah that causes her to become Asur to the Bo'el. Rather, she is Asur to the Bo'el even if the husband does not have relations with her, but instead gives her a Get or refuses to let her drink the Mei Sotah. Hence, it is not correct to say that it is the prohibited act of the husband living with her that causes her to become prohibited to the Bo'el.

What was the Gemara's initial intention when it said that when the husband lives with his Sotah wife, he makes her prohibited to her Bo'el? The Bo'el is already Asur to her even before the husband lives with her, because the rule is that after she has been alone with him, she is Asur to both her husband and the Bo'el! In what way does living with her husband make her Asur to the Bo'el?

ANSWERS:

(a) TOSFOS explains that even though the Bo'el is prohibited to the Safek Sotah, it is nevertheless possible for her to become Mutar to him by drinking the Mei Sotah and proving her innocence. Once the husband lives with her, though, the husband is no longer "Menukeh me'Avon" and the Mei Sotah will no longer be effective in determining whether his wife was innocent or not. Therefore, living with his wife causes her to become Asur *permanently* to the Bo'el by depriving her of the ability to vindicate herself by drinking the Mei Sotah. That is why the Gemara says that the prohibited act of relations with her husband causes the Bo'el to become Asur to her -- it causes the Bo'el to become Asur to her in a more permanent fashion than he was until now.

However, Tosfos has difficulty with this explanation. If this is what the Gemara means, then why does the Gemara say that even if the husband says that he does not want to give his wife the Mei Sotah to drink, he also causes her to become Asur to the Bo'el? Just because he says that he is not going to give her the Mei Sotah now is not a reason to say that she will *never* be able to prove her innocence! Perhaps her husband will change his mind the next day and decide to give her the Mei Sotah, and then she will be able to prove her innocence, and thus the Bo'el still has a possibility of being permitted to the Sotah!

Tosfos suggests a novel ruling based on this question. Tosfos suggests that if a husband says that he does not want his wife to drink the Mei Sotah, he cannot change his mind. He is given only one opportunity to let her drink, and once he forfeits that opportunity, he can no longer opt to bring her to drink the Mei Sotah.

This suggestion, though, is problematic. Tosfos himself has difficulty finding a source for such a law. Moreover, we may add that if this is what the Gemara means, the Gemara should not have to mention that her husband can prevent her from drinking the Mei Sotah in one of two ways -- by giving her a Get, or by saying that he does not let her drink the Mei Sotah. Preventing her from drinking the Mei Sotah by giving her a Get is basically the same as saying that he will not let her drink, because he is divorcing her and refusing to let her drink the Mei Sotah and prove her innocence. Thus, the Gemara did not have to mention that he could prevent her from drinking the Mei Sotah by giving her a Get, for giving a Get is essentially the same as refusing to let her drink! The reason she will not be able to drink the Mei Sotah after the Get is because her husband did not want to give her the Mei Sotah to drink in the first place. They are not two ways of stopping her from drinking; they are one and the same.

(b) RASHI does not mention anything about the requirement that the husband must be "Menukeh me'Avon" in order for the wife to drink the Mei Sotah. ("Menukeh m'Avon" was the rule that Tosfos, above (a), invoked to show that the husband may not have his wife drink the Mei Sotah once he has had relations with her after she became a Sotah.) It appears that Rashi is following his view expressed elsewhere (58b and 85b; see Insights there), where Rashi holds that there is a Tana that does not agree to the requirement that the husband be "Menukeh me'Avon" in order to have his wife drink the Mei Sotah. Rather, even after he lives with his wife, he can give her the Mei Sotah to drink. Several Gemaras seem to follow that opinion.

Accordingly, our Gemara also means that the husband *is* able to give the Mei Sotah to his wife even after he lives with her. If so, our original question returns: why did the Gemara say that when the husband lives with her, he causes her to become Asur to the Bo'el? She is already Asur to the Bo'el because she is a Safek Sotah!

The Gemara must mean that in a normal case of a Safek Sotah, when the husband does not live with her wrongfully, we assume that he is going to give her the Mei Sotah in order for her to become permitted to him once again by proving her innocence. A further consequence of her innocence will be that she becomes Mutar to the Bo'el. However, by having relations with her, the husband shows that he is disregarding the fact that she is a Sotah, and he is showing that he has no intentions of giving her the Mei Sotah to drink! Hence, she will remain Asur to the Bo'el by default. The fact that the husband lived with her establishes a Chazakah that he will not give her the Mei Sotah, for he does not care that she is a Sotah. In that sense, he is prohibiting her to the Bo'el by having relations with her.

When the Gemara rejects the suggestion that it is the relations of the husband which makes her Asur to the Bo'el, for "even if he says 'I will not give her to drink,' and even if he divorces her," she is still Asur to the Bo'el, the Gemara means to say simply that she is Asur without any act on the part of her husband, merely because she is a Safek Sotah. The husband's act is not *creating* an Isur to the Bo'el.

"Even if the husband divorces her," permitting her to the rest of the world, the Bo'el may not marry her -- even if the husband did not live with her after she became a Sotah. "Even if he says 'I will not give her to drink'" means that even if the husband *dies* without agreeing to give her the Mei Sotah, and she now becomes permitted to the rest of the world, she is still Asur to the Bo'el. (See Rashi end of DH Iy Neima.)

Consequently, in contrast to the way Tosfos learns the Gemara, there is no proof from the Gemara that the husband may not change his mind when he says that he is not going to let her drink the Mei Sotah. (Nor can it be proven from here that the husband cannot give her to drink after divorcing her and remarrying her, see Tosfos 85b DH ul'Rebbi, and Insights there.) The Gemara is just saying that if he does not give her the Mei Sotah to drink and therefore she does not prove her innocence, she is going to be Asur to the Bo'el simply because of her act of Setirah with him (as we pointed out in the question with which we started). The fact that the husband had relations with her, thereby showing that he does not intend to give her the Mei Sotah, does not create any *new* Isur; it just shows that he is not going to give her the opportunity to become Mutar. That is why the Gemara rejects the suggestion that the "one who causes the prohibition in the first place" is referring to the Bo'el. (M. Kornfeld)

95b

QUESTION: Rava concludes that the case about which it was said that living with a woman with whom one is prohibited causes the person who made her prohibited in the first place to become Asur to her as well, is the case of "Eshes Ish." If a man lives with an Eshes Ish, another man's wife, he causes her to become Asur to her husband, who was the one who made her Asur to every other man to begin with (by virtue of marrying her).

The Beraisa (95a) is making a Kal v'Chomer from that case: if, in a lighter Isur like "Eshes Ish," when a man has prohibited relations with the woman, he causes the person who created the Isur (i.e. her husband) to become Asur to her, then certainly in a more severe Isur like "Achos Ishto," when a man has prohibited relations with the woman (his wife's sister), she should cause the person who created the Isur (i.e. his wife) to become Asur to him.

The Gemara asks how can we make such a Kal v'Chomer? The Isur of "Eshes Ish" is more severe than "Achos Ishto" in many ways! The Gemara explains that the Isur of "Eshes Ish" is less severe because it is possible to remove the Isur even in the lifetime of the one who makes her Asur, meaning the husband, by his giving her a Get. In contrast, the Isur of "Achos Ishto" cannot be removed during the lifetime of the one who makes her Asur, meaning the wife, because it is never permitted to marry the sister of one's wife during her lifetime. (Only after his wife dies does he become permitted to marry her sister).

This is a problematic statement. The Gemara earlier, when searching for a case that fit the description of the statement of "Ne'esar ha'Osrah," rejected the possibility that it refers to the Isur of "Machzir Gerushaso" or to the Isur of "Yevamah la'Shuk." There are various reasons, asserted the Gemara, why those Isurim are not more lenient than the Isur of "Achos Ishto." One reason was that in the case of "Yevamah la'Shuk," the woman herself is "Nitma ha'Guf;" it was the woman herself who did something wrong and thereby caused her husband to become Asur to her, while in the case of "Achos Ishto" it is the *sister* who became "Nitma," making her sister -- the man's wife -- Asur to him. Another reason to be more stringent in the case of "Yevamah la'Shuk" was that the Isur of "Yevamah la'Shuk" causes the woman to be prohibited to *all* men in the world, while the Isur of "Achos Ishto" only makes the woman Asur to one man (her sister's husband). For this reason, the Gemara says that "Yevamah la'Shuk" cannot be called a "more lenient" Isur than the Isur of "Achos Ishto."

Why, now in the conclusion of the Gemara, does the Gemara say that the Isur of "Eshes Ish" can be removed during the life of the one who makes her prohibited (the husband)? What about all of the other objections which the Gemara raised for making a Kal v'Chomer from "Yevamah la'Shuk" and from "Machzir Gerushaso?" Those objections also apply to making a Kal v'Chomer from the Isur of "Eshes Ish!" (TOSFOS DH Ela)

In addition, the Isur of "Yevamah la'Shuk" also has this leniency of being able to be permitted in the lifetime of the Oser (i.e. the Yavam who makes her Asur)! If the Yavam does Chalitzah with her, she becomes permitted to marry la'Shuk! Why, then, does Rava have to say that the Beraisa is referring to an Eshes Ish? He could have said that the statement refers to a Yevamah la'Shuk, whose Isur is more lenient than "Achos Ishto" because it can be removed during the lifetime of the Yavam!

ANSWER: The TOSFOS HA'ROSH answers in the name of the RIVA that in the case of an Eshes Ish, that fact that she has a Heter in the lifetime of her husband is such a tremendous leniency that it overrides any of the other Chumros that she might have (such as the fact that the Isur is punishable with Chenek, it is a case of "Nitma ha'Guf," and it is "Isurah b'Rov").

If this leniency overrides all of the Chumros, then why did the Gemara not say the same thing about the Isur of "Yevamah la'Shuk?"

The answer is that the Isur of "Yevamah la'Shuk" is only an Isur Lav. The fact that an Isur Lav is able to become permitted in the lifetime of the one who causes that Isur is not such a tremendous leniency over the Isur of "Achos Ishto." Since the Isur is only an Isur Lav, it can be removed, while it stands to reason that Achos Ishto, which is an Isur Kares, cannot become removed.

In contrast, if we find that the Isur of "Eshes Ish," which is an Isur *Chenek*, and which is more severe than an Isur Kares, can nevertheless be removed in the lifetime of the one who makes that Isur -- if that very strong Isur can still be removed, then it shows that the Isur is much more lenient than the Isur of "Achos Ishto," which is a less severe Isur (and Isur Kares) and yet it cannot be removed. That is why only with regard to the Isur of "Eshes Ish" could we say that the fact that it is permissible in the life of the one who causes the Isur shows the leniency of that Isur!