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Sotah, 7

SOTAH 7 (2 Teves) - the Dafyomi study for the last day of Chanukah has been dedicated to the memory of Hagaon Rav Yisroel Zev Gustman Ztz"L (author of "Kuntresei Shiurim") and his wife, Rebbetzin Sarah Gustman (daughter of Hagaon Rav Meir Bassin) on the Rebbetzin's Yahrzeit. Sponsored by a student who merited to study under Rav Gustman's tutelage.


QUESTION: The Mishnah states that Beis Din appoints two Talmidei Chachamim to escort the Sotah and her husband to the Beis ha'Mikdash. The Gemara explains that the reason they need to be escorted by two Talmidei Chachamim is so that if they are suspected of attempting to be together, the Talmidei Chachamim will give them proper Hasra'ah (warning).

When the Gemara says that the purpose of the Talmidei Chachamim is to give Hasra'ah, it obviously does not mean merely that the Talmidei Chachamim are there as escorts to warn the Sotah and her husband to stay apart, because it is not necessary to have Talmidei Chachamim for that purpose. Beis Din could appoint any two people and tell them that their job is to keep the man and woman apart. Obviously, the Hasra'ah the Gemara is discussing is the type of Hasra'ah necessary in order to administer a punishment. There are many details to the Hasra'ah, such as how close to the act it must be given, and how the person who sins accepts the Hasra'ah (to which those who give the Hasra'ah must be witness), and therefore the Beis Din needs to send Talmidei Chachamim with the couple, because only Talmidei Chachamim are familiar with all of the laws of Hasra'ah.

For what punishment, though, are they giving Hasra'ah to the couple? The Gemara in Yevamos (11b) says explicitly that only a Vadai Sotah is prohibited to her husband with an Isur Lav and Malkus, but a Safek Sotah is only prohibited with an Isur Aseh of "v'Nisterah v'Hi Nitma'ah" (Bamidbar 5:13)." (Although the Gemara here says later that a Safek Sotah who is going to drink the Mei Sotah is Asur to her husband with a Lav, and the Gemara quotes the Lav mentioned in Yevamos 11b regarding a Vadai Sotah, Rashi does not mean that the same Lav applies equally to a Safek Sotah. Rather, he means that a Safek Sotah is Asur because of a *Safek* Isur Lav, and a Safek Isur Lav is not punishable with Malkus.)


(a) TOSFOS in Yevamos (11b; see also RASHBA cited by Magid Mishnah, Hilchos Gerushin 11:14) explains that the verse that says "v'Nisterah v'Hi Nitma'ah" -- although it is only an Aseh -- gives the status of a Vadai to a Safek Sotah (Sotah 28a). Therefore, any Chumra that applies to a Vadai Sotah applies to a Safek Sotah as well. Hence, just like a Vadai Sotah is punishable with Malkus, so, too, a Safek Sotah is punishable with Malkus, because the Torah treats her like a Vadai.

(b) However, Tosfos in Yevamos (69a, DH Ki Siheyeh) and in Sotah (28a, DH Mah Talmud Lomar) and many other Rishonim do not accept this. They write that having relations with a Safek Sotah is not punishable with Malkus (see also ROSH, cited in previous Insight). What, then, is the point of the Hasra'ah mentioned in our Gemara?

Rashi answers this question by explaining that the point of the Hasra'ah is to tell the husband that if he lives with her he will not be "Menukeh m'Avon" ("free of sin") and the Mei Sotah will not be able to determine if his wife is innocent or guilty of adultery, and, consequently, she will remain prohibited to him forever. Rashi means, like Tosfos says in Yevamos (58a, DH Ela), that only if the husband sins b'Mezid (intentionally) is he considered not to be "Menukeh m'Avon." If, however, he sins b'Shogeg (unintentionally), then the Mei Sotah *will* be effective. Rashi is learning that the type of intent to make the act one of Mezid that is required is the same intent that is required in order to administer Malkus to a sinner. This intent is determined by the presence of Hasra'ah from witnesses (see Sanhedrin 46a, that the purpose of Hasra'ah is to differentiate between an act of Shogeg and an act of Mezid).

According to Rashi, it is possible that the reason why the Mei Sotah is not effective when the man is not "Menukeh m'Avon" is because it is punishment for his misdeed. He is no longer worthy of having the Mei Sotah determine whether his wife is permitted to him or not (and, consequently, she remains prohibited to him forever). Therefore, his act needs Hasra'ah in order to earn this punishment.

Why, though, does Rashi and the other Rishonim not explain like Tosfos, that the reason for this Hasra'ah is because the Torah makes a Safek Sotah like a Vadai Sotah, like the Gemara says explicitly? There are a number of reasons why Rashi might not have learned that this is the reason for the Hasra'ah. First, Rashi might have learned like Tosfos later (28a) who says that when the Torah makes her like a Vadai Sotah, it does not mean that it gives her the status of a Vadai Sotah. Rather, it means that this Safek Isur is stronger than a regular Safek Isur, such that the Isur of a Safek Sotah is as strong an Isur as an Isur of a Vadai Sotah. It remains, however, its own independent Isur, an Isur Aseh. The Isur Aseh of a Safek Sotah is a *Vadai* Isur, but it is still not the same as the Isur Lav of a Vadai Sotah.

Alternatively, even if Rashi accepts Tosfos' approach that a Safek Sotah is like a Vadai Sotah, that is not necessarily enough to administer Malkus. As Tosfos himself says, a Safek Sotah is like a Vadai Sotah only *l'Chumra* -- and giving Malkus is a *Kula*, because it permits the Beis Din to do an act that would otherwise be prohibited mid'Oraisa (because of the Lav of "Lo Yosif"). Tosfos, who rules that a Safek Sotah receives Malkus, apparently learns that the moment Beis Din rules that she is a Safek Sotah, we give her the status of a Vadai Sotah and the Malkus that comes about afterwards is Malkus for living with a *Vadai* Sotah. That Malkus comes after we have ruled already that she is a Vadai. (This is similar to the RAMBAM's principle that although Malkus cannot be administered on the testimony of an Ed Echad (a single witness), nevertheless if an Ed Echad testifies that a certain piece of meat is not Kosher, then one who eats it afterwards (with two witnesses) *will* receive Malkus.)

Finally, Rashi might hold like the Ritva in Makos (4a) who says that in order to give Malkus, there must be an Azharah (where the Torah explicitly gives a Lo Ta'aseh). Hence, even if a Safek Sotah is considered like a Vadai, nevertheless since the Isur does not have an Azharah in the Torah it does not receive Malkus.

OPINIONS: The Mishnah (7a) states that the Sotah is told words "that are not fit for her to hear." The Gemara explains that she is told the stories of Reuven and Yehudah, both of whom sinned, admitted their sins, and did Teshuvah. Why are these stories considered "not fit for her to hear?"
(a) RASHI explains that the point of telling her these stories is to convince her to confess her sin. When she hears about the Tzadikim who sinned and confessed their sins, she will be more willing to confess her own sin. The Mishnah says that these stories are "not fit for her to hear," meaning that it is not fit to compare this woman with these great Tzadikim, because their sins were different, and they admitted their sins and did complete Teshuvah, while this woman is still a suspected adulteress.

(b) The RAMBAM (in Perush ha'Mishnayos) says the opposite of Rashi. The Sotah is told about terrible sins, such as the verse's account of Reuven's sin of living with the Pilegesh of his father, and the story of Yehudah who lived with his daughter-in-law. Even though Reuven did not actually sin (Shabbos 55b), we tell her the story according to the way it is written literally in the verses so that she will not be embarrassed to confess her sin (which is a lesser sin that the ones described by the verses about Reuven and Yehudah).

(c) The ME'IRI explains that the words in the Mishnah are to be read together as one long phrase -- "we tell her things that she is not able to hear [even when accompanied by] her entire family." The Mishnah means that we present her with a persuasive argument to confess her sin. The argument is so persuasive that even if her family members are present she will not be embarrassed to admit her guilt. Telling these stories do not disgrace her for the sin she committed, but rather these stories make her sin seem lest significant (like the Rambam says, as quoted above).

When the Mishnah says that these words are "not fit for her to hear," it means that she is not strong enough to withstand the persuasion to confess.

This is also the explanation of the RAMBAM in the Mahadura Basra of the Perush ha'Mishnayos (Rav Kapach edition).

The Rambam in Mishnah Torah (Hilchos Sotah 3:2) seems to learn this way as well. The Rambam writes that we threaten the woman and try to persuade her when her husband is not present. The Acharonim wonder what the Rambam's source for this is; where does he learn that the woman is threatened while the husband is not present (see KEREM NETA)? According to the Me'iri's reading of the Mishnah, the Mishnah is the source for the Rambam's statement. The Mishnah is saying that we persuade her in such a way that even if her father's family is present, she will not be embarrassed to confess her sin. This implies that her father's family is present, but her husband and his family are *not* present.


OPINIONS: The Mishnah (7a) states that the Sotah is brought to the Beis Din ha'Gadol, of 71 Dayanim, in Yerushalayim. The Gemara derives this from a Gezeirah Shavah from Zaken Mamrei.

What exactly does the Beis Din ha'Gadol do with the Sotah? What part of the process is done with the Beis Din ha'Gadol?

(a) TOSFOS (DH Mah) explains that the Beis Din ha'Gadol threatens the woman and attempts to persuade her to confess her sin. The drinking of the Mei Sotah and the making of the Shevu'ah do not need to be done in the presence of the Beis Din ha'Gadol. Tosfos adds that since threatening the woman is not Me'akev the effectiveness of the Mei Sotah, the entire process may be done -- b'Di'eved -- without the Beis Din ha'Gadol.

(b) However, RASHI (DH Mena Hani Mili, and 7a, DH l'Sha'ar Mizrach) explains that the Sotah is given the water to drink in front of Beis Din ha'Gadol. Rashi maintains that the entire process of Hashka'as Sotah (giving the Mei Sotah to the Sotah to drink) must be done in front of Beis Din ha'Gadol in Yerushalayim.

Rashi here points out that it is not even necessary to find a source for making her drink the Mei Sotah in front of Beis Din (a normal Beis Din of 23 Dayanim). The Gemara only needs a source to show that it is done in front of Beis Din ha'Gadol and not just in front of any Beis Din (of 23 Dayanim).

Why is it obvious that without any verse, the Hashka'as Sotah would need to be done in front of a normal Beis Din? Rashi apparently learns that the Hashka'as Sotah is a form of a punishment, and a punishment requires a Beis Din of 23 Dayanim. The Gemara's Chidush is that 23 Dayanim is not enough; it must be done in the Beis Din of 71 Dayanim.

Tosfos, on the other hand, holds that the Mei Sotah is only a means for clarifying whether or not she sinned, and therefore the Hashka'as Sotah does not need to be done in front of a Beis Din.

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