Skip to main content
Iyun in Sota -
Lesson 9

Iyun Masechet Sota: 7a

Text file

 

The topic of our sugya (7a) is the problem of yichud after kinui and stira, since the wife is now prohibited to the husband.  The mishna quotes a machloket between R. Yehuda and Tana Kama regarding the need for strangers to escort the husband and wife on their journey to the Mikdash.  Tana Kama rules that two talmidei chakhamim are required to accompany them because of the need to prevent yichud between the sota and her husband, while R. Yehuda trusts the husband and does not insist upon an escort. 

 

The gemara's discussion focuses upon the comparison or contrast between sota and nida regarding the issue of yichud, as both are married women who are prohibited from sexual relations with their husbands.  Although there is an issur yichud with women who are ariyot, yichud with a nida is permitted (otherwise married couples could not live together when the wife is a nida without strangers in the house).  Tosfot in our sugya (s.v. nida) are perplexed as to the source of the heter in nida, since she too is an issur karet, as like other ariyot.  They answer that the issur of yichud is learnt from a drasha that excepts one's mother therefore, conclude Tosfot, the issur only includes those ariyot that are similar to a mother, in that they are constant prohibitions, unlike the nida who is subsequently permitted to her husband. 

 

     This answer can be construed in two separate manners that take us to the heart of the matter regarding yichud.  One possible understanding of the Tosfot's reply is to assume that the purpose of the issur of yichud is to prevent sexual contact between the parties.  Since the need for the presence of others is to thwart the possibility of improper physical contact, they are unnecessary if we do not fear such a scenario.  Thus, in cases where temptations inherent in the male-female relationship are presumed not to exist; e.g. in the context of maternal or filial relationships, intimacy is permitted.  Tosfot's explanation that yichud is not prohibited with a nida since her issur will be lifted is based upon the assumption that the option of legitimate relations in the future allays our fear of an indiscretion in the present.

 

An alternative to this approach is to link Tosfot's answer to a similar claim of R. Tam in a different context.  R. Tam states (Sefer Hayashar, responsa 79a) that nida does not exempt the brother from yibum, despite the rule established by the opening mishna of Yevamot that ariyot are exempt from yibum and chalitza, since she is not an "erva," as evidenced by the fact that her issur is not constant as in classical ariyot but on and off.  Although sexual relations with a nida are punishable by karet, as are ariyot, nevertheless, nida belongs to a different category.  (cf. Tosfot Yevamot 2a d.h. va'achot ishto that nida and ariyot differ in terms of the scope of the issur as well, a further indication of the dissimilarity between them).  Thus, the cyclical nature of issur nida serves R. Tam as the rationale (or proof) of the idea that nida is not an erva, thereby enabling him to release the nida from rules that apply to ariyot e.g. yibum or the rule of two eidim for davar sheb'erva.  (A famous application of this issue is the applicability of Yehareg ve'al Ya'vor to nida.  See Beit Yosef YD 195.)

[Rambam, unlike R. Tam, considered nida to be categorized as an erva.  See Issuri Biah 4:1.]

 

The same logic that R. Tam applied to yibum could explain the answer that our Tosfot provide in regard to yichud.  Here, too, they assume that yichud is a halakha that is unique to ariyot, so that if a nida is not an erva, as proven by the cycle of heter and issur, there is no issur of yichud either.

 

This explanation is predicated upon a conceptual understanding of yichud that radically differs from the previous suggestion.  In this view, yichud is not a halakhic precaution designed to prevent a different problem, a secondary issur serving the primary prohibition of issuri biah, but an independent issur that prohibits intimacy as inappropriate in and of itself, regardless of our fear that the circumstances will lead to sexual relations.  This consideration, although crucial in the case of an erva, is irrelevant to the case of a nida whose issur is not due to the impossibility and, hence, the inappropriateness of the relationship but to other reasons.  Clearly, there is nothing immodest in a husband and wife sharing a common home, even if the wife is a nida.

 

Though the first option is the simpler, there are indications that certain authorities were of the opinion that there is a two-tiered system in hilkhot yichud.  Rashi in Kiddushin 81a is of the opinion that the exemption granted to a woman whose husband is in town is valid only to reprieve her from punishment but the prohibition of yichud remains in effect.  As the gemara mentions this as an exemption, the meaning of Rashi's position is that there is a full fledged issur if the husband is away that is somewhat alleviated by his presence in town.  The explanation of this is that there is a dual element involved in the issur of yichud that includes a hedge against graver sexual offences as well as the intrinsic issur of the intimacy.  Therefore, if the husband is in town, the anxiety that they will sin disappears, but the inherent issur of intimacy with a stranger remains, a state of affairs that results in an issur without punishment.

 

Furthermore, there is a group of poskim (see Pitchei Teshuva, Even Haezer 22:1) that are of the opinion that yichud is an issur d'oraita if it is one on one but only midrabanan if it two on one.  Once more, the rationale is that two on one is not an intrinsic violation, only a hedge against issur while one on one is inherently negative. 

 

As can be seen from the halakha that yichud of two on one is prohibited and the distinction of Rav that there is a difference between "ksheirim" and "prutzim," as well as from other cases and halakhot (e.g. the issur of yichud in a chatan avel – Ketuvot 4a-b), there is certainly an issur yichud designed to prevent sexual relations; the question at hand is whether there is an additional element as well.  For a treatment of this topic (including a vigorous debate amongst 20th century Achronim), see R. Shlomo Fisher's Beit Yishai, siman 74).

 

A final point that is relevant to our sugya must be mentioned.  The division of issur yichud into erva and non-erva cases is based on a well-known halakhic distinction.  However, the theory itself presents a measure of unreasonableness.  Presumably, the very issurei ariyot that are prohibited in yichud are those very relationships that are least problematic to be in their company, as there is a familial relationship involved.  Do we really perceive yichud between an aunt and her nephew or a father in-law and daughter in-law as inherently immodest?

 

Clearly, such a theory makes sense only if it there is a sexual connotation to the yichud.  R. Shlomo Fisher's formulation that the issur is the "kiruv hada'at" (psychological intimacy) that accompanies the yichud rather than the seclusion per se is somewhat of answer to this critique, if we construe "kiruv hada'at" as reflecting an emotional intimacy of a sexual nature.  In this writer's opinion, the theory that yichud is an inherent issur and not a preventive measure must be limited to the case of an eshet ish and not to other ariyot (see Shabbat 13a with Rishonim, esp. Ramban and Ramban's commentary on Sefer Hamitzvot, lo ta'aseh 353, for a similar distinction between an married woman and other ariyot in an analogous case).  Intimate seclusion with an eshet ish is indeed improper, unlike other ariyot that are covered by the familial connection that justifies their meeting in seclusion. 

 

Let us now return to our sugya.  The mishna clearly states that the need for an escort is a preventive measure.  Since they are husband and wife, there is no inherent issur in the yichud, only our concern that they will commit an issur therefore, R. Yehuda, who trusts them, does not require that anyone accompany them. 

 

The gemara's discussion reflects the issues mentioned above.  Two Breitot are quoted; the first records a machloket Tana Kama and R. Yehuda while the latter registers three opinions; Tana Kama, R. Yehuda and R. Yossi.  Moreover, the gemara is concerned with the differing presentation of R. Yehuda's reasoning that is presented in one source as a logical kal vahomer and in the other source as the result of a yalphuta. 

 

The explication of the discussion is as follows.  Both R. Yehuda and Tana Kama are of the opinion that there is no intrinsic problem in the yichud of the sota with her husband, since they are husband and wife.  This is the essence of R. Yehuda's quote of the verse "ve-heivi haish et ishto" that seems to prove nothing at first glance, as the pasuk is not describing their journey but stating the legal step that the husband is taking.  For instance, when we say that "my neighbor TOOK me to court about the fence that I built" it is obvious that there is nothing in this sentence to indicate that he gave me a ride in his car to the courthouse or that we went alone (the Yerushalmi, quoted by Tosfot, that Rabanan replied to R. Yehuda that he brings her with eidim relies upon this obvious point).  R. Yehuda is not relying here on a multi-layered concept of the text that treats metaphors literally; rather, he is pointing out that the Torah is conceptually treating the sota and her jealous husband as man and wife ("ish et ishto") and not as a broken or dismantled marriage.  If this is the case, it follows that there is no inherent problem in their traveling alone, as the fact that there is no fear of biah when a husband and wife who are prohibited to each other are alone can be learned by kal ve-chomer from nida.  Thus, the drasha teaches us that there is no inherent issur, while the kal ve-chomer proves that there is no need for preventive measures.  Tana Kama agrees with the classification of sota as a working marriage, but adds that the lesser severity of the issur is the very reason that we should be more concerned about a breach of the issur.

 

In the second braita, the kal ve-chomer from nida to sota is evoked by R. Yossi in similar manner to R. Yehuda's statement in the first braita.  A careful reading of the response to R. Yossi, though, will reveal differences between it and the reply to R. Yehuda in the previous source.  In the former, Tana Kama argue from the perspective of lesser severity, but in the latter, this line of reasoning is abandoned and the gap between sota and nida in regard to their future heter is emphasized.  Although it is possible to read this as an additional or alternate reasoning to justify a greater fear of issur, it is also possible to read this reply as a claim and comment upon the different status of sota and nida.  The sota, unlike the nida, has no subsequent heter and is consequently prohibited from yichud with her husband.

 

Aside from the shift in their claims, we must also ask why the "amru lo" in the second braita define sota as not having subsequent heter, for after all she may be proven innocent and return to her husband.

 

[In the Tosefta they are represented as two alternate answers that the same Chakhamim respond to R. Yehuda's kal ve-chomer.  See Tosefta, Yerushalmi and Tosfot d.h. amar for the different representation and arrangement of the braita in these sources.]

 

Therefore, we might suggest that they may not be addressing the need for a preventive issur because of the impossibility of permitted sexual relations, rather the response is an attempt to define the marital status of the sota as essentially different from that of the nida.  The nida has a full marital relationship regardless of the permissibility of sexual relations, as the issur has no bearing on their union.  The fact that issur nida is independent of marriage and applies to unmarried women as well serves to underscore this point, as Tosfot in Yevamot (2a d.h. ve-achot ishto) point out.  Sota, though, affects the relationship since it has been unraveled by the kinui and setira.  It is not a state of marriage, but separation prior to divorce that the "amru lo" perceive.  The issur of sota reflects the "kefeida deba'al" and the betrayal of the woman that have dismantled the marriage; therefore, there is an issur of yichud that is due to the impropriety of yichud of a couple without a functioning marriage relationship.  The claim that sota does not have a subsequent heter is symptomatic of the fact that there is no relationship at the moment.  Even if the woman will be found innocent, the return to her husband will be a new beginning, so that the claim that she has no future heter is conceptually correct in the sense that her status as a sota is not intrinsically cyclical as the nida, although it is possible that she will indeed achieve a future heter.  Chronologically, a sota may have a heter in her future, but, logically, the concept of sota is without heter.  Thus, if the future heter alleviates our concern that the husband will commit an issur, it is the statistical element, rather than the logical aspect that interests us; however, if the subsequent heter is proof of a current relationship, the heter must exist in the present.

 

[Our explanation of the response to R. Yossi assumes that it is suggested as an independent claim and not only a reiteration of support for Tana Kama's stated position that the two escorts are a derabanan requirement.  Although the admittedly simpler reading is to understand the response as an additional calculation in support of the possibility of an issur biah occurring, the above suggestion is certainly possible.  Cf. the discussion in the Beit Yishai who quotes such an understanding of this statement from R. Eliezer Shach's Aviezri as providing a solution to a question of R. Akiva Eiger.]

 

R. Yehuda responds to this position by quoting the pasuk that implies that the marital relationship remains in effect.  Therefore, the gemara states that R. Yehuda and Tana Kama are in basic agreement regarding their relationship but are in disagreement as to the derabanan. 

This website is constantly being improved. We would appreciate hearing from you. Questions and comments on the classes are welcome, as is help in tagging, categorizing, and creating brief summaries of the classes. Thank you for being part of the Torat Har Etzion community!