Iyun Masechet Sota: 5b

 

This week's sugya sits at the confluence of two masekhtot of seder Nashim – Sota and Yevamot.  Thus, the status of a Sota regarding yibum and chalitza is a function, unsurprisingly, of the interplay between the basic rules and ideas of these two areas of Even Haezer.

 

The Mishna in Sota 2a states that a Sota who has undergone kinui and setira but has not arrived at the Mikdash for the drinking ceremony, cannot undergo yibum if her husband dies childless, but she also cannot remarry without chalitza.  Though such a ruling may sound quite reasonable, it is in contradiction to the basic principle of masekhet Yevamot (20a-20b), that "kol she'aino oleh le-yibum – aino oleh la-chalitza" (i.e., yibum and chalitza are interdependent, so that if there is no requirement or possibility of yibum, chalitza is unnecessary.  In Yevamot parlance, both yibum and chalitza are a function of the "zika" (bond) between the woman and the brother; the presence of either yibum or chalitza is, therefore, indicative of the existence of the halakhic relationship between them, while an exemption from either of the two is proof of the lack of any bond between them.  Therefore, the sugyot in Yevamot postulate a correlation between these two halakhot.  There are, however, exceptions to this rule.  Since the basic principle is not the interdependence of chalitza upon yibum per se, but the existence zika between the woman and the yavam, chalitza remains necessary in cases where the zika is known to exist, even though yibum is ruled out as an option for technical reasons.  Two prime examples of this are: Cases of safek, when the existence of the zika is in doubt, so that the woman's status as a yevama must be addressed but yibum is out of the question, for if there is no zika, performance of yibum – but not of chalitza – will result in an issur karet of gilui arayot (eshet ach sheloh bemakom mitzva).  The second example of chalitza without yibum are the cases in which there is a definite zika, but yibum is prevented due to its resulting in the violation of other issurim (e.g. the brother of a kohen gadol dies childless, imposing the obligation of yibum or chalitza of a widow upon the kohen gadol who is prohibited from marrying a widow). 

 

In our sugya, however, neither of the above reasons exists to justify chalitza while prohibiting yibum, yet the gemara seems to treat the Mishna's ruling as a de'oraita.  Moreover, the denial of yibum is difficult to understand, for why should the Sota status of the woman that was established by her husband have implications for her marriage to his brother.  Therefore, the gemara's initial response to the Mishna's ruling is to question its psak that yibum cannot be performed.

 

The Yevamot considerations mentioned in the previous paragraphs are at the root of our sugya's concerns as it attempts to justify the ruling that chalitza is necessary for a Sota, although yibum is prohibited.  The gemara's first answer is that the Torah stated that a Sota must leave her husband for a different person ("acher"), but his brother, the yavam, is not considered an "acher" but an extension of the brother.  This claim brings us to the core of yibum and chalitza issues.  What is the yibum mechanism, how does it work, what is the status of the woman in the interim period between her husband's death and the yibum (or chalitza), with implications for our understanding the suspension of the arayot element as well? 

 

It may be best to approach these questions from the perspective of a machloket between Rav and Shmuel, who disagreed about the status of a shomeret yavam (a woman in the interim period) who accepted kiddushin from a stranger.  Rav claimed that the kiddushin are not binding, while Shmuel is unwilling to accept such a ruling.  The rationale of Rav's claim, that prima facie is incompatible with the rule that kiddushin, even if prohibited are halakhically binding if the prohibition is a regular mitzvat lo taaseh, is that there is an element of "ishut" in the yavam–shomeret yavam relationship.  The prohibition incumbent upon her not to marry outside her husband's family is not a moral imperative but is indicative of a marriage-like bond between her and the yavam at the moment.  Shmuel doubts this; while there is an obligation to perform yibum as a mitzva, this does not imply any current relationship between the woman and the brother.  Once the husband has died, all marital bonds have been dissolved, so that there is no personal relationship during the waiting period.  The woman is a candidate for yibum but is not in any pseudo-marital state. 

 

Actually, two possible models of a marriage relationship are possible.  One option is to assume a matrimonial non-conjugal relationship between the woman and the brother.  A bond ("zika") exists between them that will be consummated by the act of yibum.  It is independent of the original marriage and is not a reflection of the relationship between the dead husband and the wife.  An alternative approach is to accept the far-reaching claim that the relationship between the yavam and the shomeret yavam is a continuation of the matrimony between the woman and the dead brother.  The Ramban (Yevamot 51a) interprets a machloket in the gemara whether there is zika or not as revolving around this question; for zika, the Ramban explains, is a minor version of full ishut.  Therefore, if we claim that there is zika between the yavam and the shomeret yavam, the implication is that there is indeed a certain bond that links them together, but that this link is not of a marital nature, in contrast to the opinion that there isn't zika since "his brother's kiddushin apply to the entire brotherhood." [It is important to point out that this is Ramban's interpretation of that particular usage of ein zika; he, too, is well aware that its classic usage is to denote a lesser level, rather than higher, form of relationship.]

 

As our aim in this shiur is not to provide an extensive overview of Yevamot but to explore the Sota-yavam meeting point, we will not present the numerous and manifold expressions of these issues in Yevamot, as we will henceforth limit ourselves to its relevance to the case of a Sota shomeret yavam.

 

The sugya's first answer to the chalitza without yibum psak is that the Torah decried that a Sota leave her husband and marry only a stranger, but the brother is not considered a stranger.  Essentially, the gemara is accepting the line of reasoning that yibum is a continuation, by means of transference from brother to brother, of the original marital relationship, so that the breakdown of the marriage, due to unfaithfulness applies to its second installment as well as the first.  Thus, she can remarry a stranger but not the brother, since the new marriage is an extension of the old union. 

 

The implications of this state of affairs, however, would seem to depend upon our  theory of Sota as well as our concept of yibum.  If the prohibition of the Sota after kinui and setira is due to our concern that there was tuma and not the unfaithfulness itself, the issur to the first husband is, thereby, due to a safek of a tuma and the shomeret yavam will require chalitza, as in all cases of safek (I am not calculating the idea of "asah sfeiko kevadao" into the equation, a concept that requires a separate discussion which will be undertaken in the fifth perek, b'n).  Thus, the combination of the yibum and Sota perspectives bring us to the psak of chalitza alone in a case of Sota, as Rav Yosef explains.

 

Abaye's question that chalitza should not be required according to Rav Yosef's logic assumes that the issur of Sota is not a result of a safek but is due to the breakdown of the marriage between the two companions.  Therefore, if there is no yibum, there should be no chalitza as well, since yibum and chalitza are interdependent.

 

Rav Yosef responds to Abaye's objection and asserts that chalitza is required to terminate the marriage, in lieu of the get that would have done so, had the brother not died.  The argument between them brings to light an additional disagreement that revolves around the nature of chalitza.  Rav Yosef claims that chalitza can undo a MARRIAGE relationship and release the woman from her marital obligations, in a similar manner to a get.  In halakhic terminology, chalitza is a "matir," a claim that is supported by a straightforward reading of the opening mishna in Kiddushin.  Abaye, however, understood the mechanism of chalitza as releasing the woman from the obligation of YIBUM, thereby enabling her to remarry.  In his opinion, the chalitza does not directly address her marital status, rather it is a dispensation from performing yibum which is the only obligation incumbent upon them.  Therefore, if there is no need for an exemption, there should not be any need for chalitza, a fact attested to by the rule of kol she'aino oleh leyibum aino oleh la-chalitza.  [Needless to say, here, too, we are limiting ourselves to our sugya and not spreading out into Yevamot for a systematic treatment of this suggestion] Rav Yosef's understanding of this principle, though, is that it is an indication of the woman's status vis a vis zika, not an exemption from chalitza whenever there is no yibum; therefore, wherever there is zika but yibum is prohibited for other reasons, as in our case, chalitza is required.

 

Rav Yosef's two positions, that yibum is a continuation of the original marriage and that chalitza is required to dissolve the bond between the shomeret yavam and the brother, are interrelated.  If yibum is not the beginning of a new relationship but is a continuation of a prior one, the original bond that was established between the dead husband and the woman has never been undone and a mechanism of release, independent of yibum must exist for cases in which yibum is impossible or undesirable. 

 

Rejection of Rav Yosef's premise regarding yibum can bring us to two possibilities.  We could deny any marital or quasi-marital relationship at all between the yavam and the shomeret yavam prior to yibum, so that there is no obligation save the mitzva of yibum, which can be escaped through the mechanism of chalitza. Alternatively, we can accept that a relationship does exist between the brother and the woman, but it is a new bond and is not the continuation of the previous marriage.  Therefore, chalitza is necessary as a matir of this new zika but not as a matir of the former ishut.

 

The other possibilities in the gemara that report the debate between Rav Yosef and Abaye apparently do not accept the premise that yibum continues the original marriage.  Thus, the problem is no longer the breakdown of the old marriage that the yibum is intended to prolong, but the establishment of a new relationship with a woman who is inappropriate for it.  It is indeed not inconceivable that the prohibition regarding chalitza, according to these two lishnot, may only be a derabanan (though the it does appear to be mi-deoraita according to the explanation of R. Chananel that is quoted by Tosfot)

 

Rava's explanation of the Mishna is very similar to the first lishna regarding Rav Yosef's position, although it bases itself upon halakhic logic rather than a drasha from a pasuk, thus releasing us from dependence upon the various lishnot to determine the meaning of the drasha. 

 

The ensuing dialogue between Rava and Abaye must be understood accordingly.  If Abaye's response to Rav Yosef (in lishna kama) related to the interplay between yibum and chalitza, his exchange with Rava revolves around the nature of the zika.  Rava understood it as a continuation of the previous marriage; therefore there is basic distinction to be drawn between a halakhically failed marriage (as in the case of the Sota) that is not to be continued, and a successful union in which one of partners tragically develops a personal halakhic problem that prohibits the continuation of the marriage.  Abaye, who does not accept this obvious chiluk, is of the opinion that yibum is a new beginning, so that the failure or success of the woman's relationship with the dead brother is irrelevant, thereby prompting him to a reductio ad absurdum of Rava's logic. 

 

An alternate possible interpretation of Abaye is that he perceived Sota as a concern of tuma, rather than marital loyalty.  This would transfer the problem from an issue of the marriage failure to a personal problem that is in effect with her husband but not necessarily others and, thus, analogous to the cases he produces to disprove Rava's logic.