Why does the Mishnah compare the woman's prohibition to the Bo'el with her
prohibition to her husband ("just like she is prohibited to her husband, she
is prohibited to the Bo'el")? The Mishnah could simply have stated that "the
woman is prohibited to the husband and to the Bo'el!" Why does it compare
Does the Mishnah mean to imply that the reason for the prohibition to the
Bo'el is because he caused her to become prohibited to her husband and
therefore he deserves to become prohibited to her as well (so that he should
not be a "Chotei Niskar," a sinner who gains through his sin), or does the
Mishnah simply mean that the same type of circumstances which can create a
prohibition to the husband are severe enough to create a prohibition to the
Bo'el as well?
(a) The Gemara in Kesuvos (9a) asks how David ha'Melech was permitted to
marry Bas Sheva. Since a Sotah is prohibited to the Bo'el, she should have
been prohibited to David ha'Melech. The Gemara first answers that Bas Sheva
was an Anusah since she could not refuse the king, and an Anusah is not
prohibited to the Bo'el. The Gemara then answers that she was permitted to
him for a different reason -- Uriyah gave her a conditional document of
divorce when he went to war, and thus she was not a Sotah at all.
The Mishneh l'Melech points out that it is clear that the first answer of
the Gemara supports the first explanation proposed above: the woman is only
prohibited to the Bo'el if he caused her to become prohibited to her
husband. Therefore, if the Bo'el is Mezid and the woman is Anusah, she is
permitted to the Bo'el. Although it is possible that the second answer of
the Gemara is rejecting that view, from TOSFOS in Shabbos (56a, DH Lekuchin)
it seems that both answers in the Gemara agree with this view.
We can bring further support for this view from TOSFOS in Yevamos (3b, DH
l'Fi). The Gemara there says that even though the Tzarah of a Sotah does not
perform Yibum or Chalitzah when their husband dies, she is not included in
the Mishnah's list in the beginning of Yevamos because no case can be
construed where she would have a "Tzaras Tzarah" (this is because when a
woman is a Sotah, none of the brothers of the deceased husband are permitted
to her or to her Tzaros). Tosfos asks that we should be able to find a case
of "Tzaras Tzarah" in a situation where the Sotah later married the
*brother* of the Bo'el, and upon his death her Tzarah (the other wife of the
Bo'el's brother) did Yibum with another brother of the Bo'el. That would
make the second brother's other wife a "Tzaras Tzarah!"
Tosfos answers that no case can be construed where the husband will be
prohibited to the Tzaras Tzarah of the Sotah. Since the prohibition to the
Bo'el is connected to the prohibition to the husband, the "Tzaras Tzarah"
will not be prohibited to the *Bo'el* either.
Tosfos seems to be saying that the reason for the prohibition to the Bo'el
is because of the prohibition that he caused for the husband, and therefore
we do not prohibit the Bo'el in any manner in which he did not prohibit the
husband (like the KOVETZ HE'OROS says in Yevamos 12:6). How, though, can
this be reconciled with the Gemara earlier (25a) that says that a man who is
prohibited to his wife because of an Isur Lav may do Kinuy in order to
prohibit her to the Bo'el when she does Stirah? Since she is already
prohibited to her husband, the Bo'el did not create that Isur, so why should
the Bo'el be prohibited to her?
The answer is that even in such a case, the Bo'el *did* make the woman
prohibited to her husband, even though she was prohibited to her husband
because of a pre-existing Isur. The Gemara in Yevamos (32b) teaches that
even though there is a rule that "Ein Isur Chal Al Isur" -- one Isur cannot
take effect when there is already an Isur in effect, nevertheless the second
Isur does amplify the prohibition; it does not take effect only with regard
to punishment (such as requiring the transgressor to receive an additional
set of Malkus). Hence, since the Bo'el did create an Isur, he becomes
prohibited to the woman.
(b) However, TOSFOS here (DH k'Shem) cites a Yerushalmi that says that if
the Bo'el sinned intentionally, b'Mezid and the woman sinned
unintentionally, b'Shogeg, then although she is permitted to her husband,
the Bo'el still becomes prohibited to her.
The Yerushalmi apparently maintains that the Isur of the Bo'el is
independent of the fact that he caused the wife to become prohibited to her
However, the Yerushalmi continues and says that even if she sins b'Mezid and
the Bo'el sins b'Shogeg, the Bo'el becomes prohibited to her, since his act
made her prohibited to her husband!
Apparently, the Yerushalmi maintains that there are two reasons for why the
Bo'el becomes prohibited to the woman: it is either because he prohibited
her to her husband (like the previous opinion), or -- even if he did not
prohibit her to her husband -- since he transgressed a serious violation of
the Isur of Eshes Ish he becomes Asur to her because of the Aveirah that he
Regarding David ha'Melech, the Yerushalmi must learn that the reason why
David was permitted to Bas Sheva was because of the Get that she received
when her husband to war.
HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv) cites the CHASAM
SOFER (Even ha'Ezer 26) who suggests that the question of the Mishneh
l'Melech might depend on the Machlokes between Rebbi Yehoshua and Rebbi
Akiva in our Mishnah. Rebbi Akiva -- who derives the Isur to the Bo'el from
the letter "Vav" of "v'Nitma'ah" -- might hold that the Isur to the Bo'el is
corollary to the Isur to the husband (the Isur to husband is the subject of
the word "Nitma'ah" to which the "Vav" is appended). Rebbi Yehoshua -- who
argues with Rebbi Akiva and learns the two Isurim from two separate words --
might rule like the Yerushalmi that the Isur to the Bo'el can exist even
when there is no Isur to the husband.
Another question that arises regarding the Isur to the Bo'el is whether or
not a man who rapes the wife of a Kohen becomes prohibited to her, since the
act causes her to become prohibited to her husband the Kohen (the Gemara in
Yevamos 56b explains that "v'Nitma'ah," the Isur Tum'ah, applies to the wife
of a Kohen even when it was done b'Ones). According to the Yerushalmi that
says that even one who lives with the wife of a Yisrael (where the woman was
Shogeges) becomes prohibited to her, it is obvious that one who rapes the
wife of a Kohen becomes prohibited to her. According to the Bavli, though,
that permits the Bo'el to the wife of a Yisrael whom he raped, what is the
Halachah in the case of the wife of a Kohen? Do we say that since he
prohibited her to her husband he should be prohibited to her, or do we say
that the Derashah that teaches us that the Bo'el is prohibited applies only
to someone who prohibits a woman to her husband as a result of her sin being
willful and intentional?
The Mishneh l'Melech (ibid.) discusses this question. He cites the CHELKAS
MECHOKEK (EH 11:3) who prohibits the Bo'el to the wife of a Kohen whom he
raped. The Mishneh l'Melech cites support for this ruling from the words of
TOSFOS in Yevamos (35a, end of DH Af Al Pi).