Iyun Masechet Sota: 2b

 

Before commencing our analysis of the mechanism by which the sota is created, let us lay forth the factual details.  As mentioned in last week's shiur, if there is definite knowledge that the wife had sexual relations with a strange man, she is forbidden from resuming the union with her husband (and 12 other halakhot apply, as detailed in the opening Mishna of the tenth perek of Yevamot) and their relationship is terminated (see Tosfot Zevachim 2b s.v. stam whether they are forced to actually divorce or only to separate).  However, if there is no such evidence, an additional option is available to the husband – the mechanism of kinui and stira.  The details are as follows: the husband warns the woman not to be seen together with a certain person whom he suspects of a liaison with his wife (kinui).  If the woman is, nevertheless, sighted with the stranger in an intimate setting (stira), she is prohibited from cohabiting with her husband until she is brought to the Mikdash, where she is obligated to drink the mayim ha-mearerim (the arousing/condemning/damning waters).  Upon drinking the water, her final status is determined, since she will succumb to the water if guilty, so that if the water does not bring about any special effect, her innocence is established and she may resume her marital relationship.  The performance of this ceremony is contingent upon a total lack of evidence that she had sexual relations with her suspected lover (aside from the suspicion cast upon them by their private meeting).  If there is any slight testimony that there were such relations, even that of a lone witness, she is prevented from drinking the water and is prohibited to her husband forever.

 

Kinui and stira, the first stages in the process are the topic of our opening mishna and its accompanying sugya.  The mishna records a machloket between R. Eliezer and R. Yehoshua regarding the level of testimony necessary to create a sota and R. Yehoshua requires two witnesses for both the kinui and the stira while R. Eliezer agrees that while two witnesses are necessary for kinui, one is sufficient for the stira.  A third opinion of R. Yossi ben R. Yehuda in the name of R. Eliezer that reverses the order and claims that two witnesses are required for stira but not for kinui is quoted by the gemara from the Tosefta.  We shall now focus upon this machloket rather than the gemara's initial discussion of the lone witness.

 

The gemara approaches the machloket from the perspective of a perceived contrast between tum'a (knowledge of the actual sexual relations that does not require two witnesses) and at least one other previous stage in the process that does require two witnesses.  The debate amongst the three opinions of the Tana'im is to which of these elements does the contrast apply.  We would be mistaken, though, to perceive the argument as a disagreement that is limited to the technique of the drasha that excludes the early stages of sota from the reliance upon a lone witness, for it really revolves around the basic definition of the sota issue.  Simply put, the question is whether (1) the kinui and/or stira are preliminary steps that set up the stage for our appraisal whether the tum'a actually occurred or not, our entire concern focused upon ascertaining the likelihood of tum'a; or (2) is the kinui and stira mechanism an independent process that is halakhically significant in and of itself.

 

The first stage is the kinui.  The husband warns his wife not to be in compromising circumstances (i.e. in private) with a specific person that he suspects has a romantic relationship with her.  From the former perspective, the only significance of the kinui is that it causes the ensuing stira to be significant ("raglayim ladavar" in the gemara's phrase).  Had he not forewarned her, we would not attach any significance to their joint presence in a home (or any other enclosed area); however, after the husband has established his suspicions, we no longer view their rendezvous as an innocent encounter and we assume an amorous affair (given the fact that they did so in awareness of the husband's distrust and despite his warning) until proven otherwise.  Thus, the role of the kinui is essentially a preliminary to the issue of the stira and the presumed tum'a, without any independent significance per se. 

 

An second approach, though, regards kinui as an independent element within the process of sota.  Two cases in the gemara will best serve to clarify this point.  The gemara in the fourth perek (26b) quotes a drasha that excludes from the parsha of sota a case in which the husband warns the wife to refrain from physical contact such as hugging and kissing ("derekh eivarim") with her suspected lover, but does not include sexual intercourse.  This claim triggers an obvious question that the sugya immediately raises as to the need for a special drasha to exclude a case that is merely immodest behavior ("pritzuta b'alma") but does not involve any potential tum'a, if only the metaphysics of tum'a or the suspicion of it can create a sota.  The answer that the gemara suggests is that we would have thought that the issur of sota is due to "kefeida deba'al" (the husband's jealousy) and that any instance of (justified) jealousy, even if not indicative of tum'a, should suffice to establish the woman as a sota; hence, there is a need for the Torah to state that it is not so in this case.

 

The crucial question, left hanging in the balance is whether the conclusion that she does not become a sota based upon this warning of "derekh eivarim" is a total rejection of the concept of kefeida deba'al, since our only concern is the issue of tum'a, or that the basic idea that sota is a function of kefeida deba'al remains valid, although the specific mechanism of derech eivaram is denied.

 

This chakira regarding the outcome of the sugya on 26b is addressed by the gemara itself in a previous discussion.  The gemara on 25a queries whether the husband can retract his kinui since the entire process is contingent on his jealousy ("bekafida deba'al tala Rachmana"), or that once issued it is irrevocable, since the kinui simply generates suspicions that all is not kosher in her behavior, and therefore the husband's sudden magnanimity is irrelevant, as the process is not controlled by him. 

 

The conclusion of the sugya is that the husband can retract, but there is a machloket regarding the ability to retract after the stira.  If he can retract after the stira, the idea of kefeida deba'al is, undoubtedly, the rationale governing sota.  However, if we accept the opinion that he cannot change his mind after stira, as the gemara itself concludes, it is reasonable to assume that the stira itself is perceived as presumed tum'a, while the nature of kinui as a preliminary or independent factor remains open to both possible interpretations.    

 

The suggestion that kfida deba'al is the motivating force behind the status of the sota returns us to last week's discussion.  The idea behind kfida deba'al is that the basic element in sota that prevents the husband and wife from reuniting is the breakdown of the inter-personal relationship between them, regardless of the element of tum'a.  Thus, the woman's behavior is an indicator of the breach of trust between them, not the cause of the issur.  This being the case, the focus of the kefeida is the kinui, since it is the expression of the lack of trust and loss of faith, rather than the later stages.  The role of stira in this paradigm is to confirm that the husband's concerns are valid and legitimate and are not the product of misguided envy.

 

Conversely, if we accept the option that all revolves around the perceived tum'a, there is a role reversal between kinui and stira, since kinui is hereby considered a mere preliminary that establishes the probability that the stira involves tum'a.

 

Needless to say, it is quite possible to claim that both ideas are true and that sota includes both element, a claim that is certainly supported by the pesukim in Bamidbar that mention both the fact of me'ilah and tum'a.

 

Beit Halevi (2:40) conclusively proves that the Rambam adopted the kefeida deba'al approach.  His proof is based upon the Rambam's pesak regarding the possibility of issur sota in a shomeret yavam (a woman who is waiting to undergo yibum).  The Mishna (23b) states that a shomeret yavam who has undergone the process of kinui and stira does not drink the water in the Mikdash, but she forfeits her ketuba.  Whether or not she is prohibited from performing yibum and living with her future husband is not explicitly mentioned in the Mishna or in the gemara's subsequent discussion.  However, as Beit Halevi points out, it should presumably be obvious that she is not prohibited, since even if there was actual documented tum'a, the Rambam's psak is that a shomeret yavam who committed adultery during the waiting period is not prohibited from yibum (since the relationship between them is not a marital relationship), so that even assuming the worst that there was tum'a during the stira, she is still not prevented from yibum.  Nevertheless, the Rambam does rule that the shomeret yavam who has undergone kinui and stira is prohibited from yibum as a sota, even while ruling that a sota vadai is not prohibited (see hilkhot Yibbum ve-Halitza 2:20 and hilkhot Sota 2:2).  The only possible explanation for this position is that the kinui and stira (that are lacking from a sota vadai) are able to independently create an issur sota, regardless of the tum'a that does not exist in the shomeret yavam relationship.  The logic behind this is the breach of trust that are expressed by the kinui and the subsequent disregard of the stira that exist even in yibum, in the Rambam's opinion.  [Although it is surprising to assume that yibum has such a personal element, time and space do not permit discussing this axiom in this shiur.]

 

Rashi and Tosfot disagree with the Rambam and postulate that there cannot be an issur sota safek if there is no issur sota vadai (see Rashi 23b s.v. ve-lo notlot and esp.  Tosfot 23b s.v.  veshomeret who explicitly make this claim).  The simplest understanding of this machloket, supported by the Tosfot's formulation, is that the argument revolves around our understanding of the relationship between kinui, stira and tum'a, with the Rambam taking the position that kinui and stira are of independent significance while Tosfot dispute this and claim that the sole role of kinui is to enable us to evaluate the stira.  Hence "how can there be any meaning to kinui if the stira will not prohibit her, anyways" as the Tosfot phrase their question.

 

We may now return to the machloket of the Tana'im regarding the level of eidut required during the various stages.  R. Eliezer, as mentioned above, contrasts between kinui and tum'a, requiring two witnesses for kinui but not for tum'a.  The contrast is based upon the above logic that the raison d'etre of sota is the kinui rather than the tum'a.  Therefore, the kinui is considered the davar shebervah that requires two witnesses, while the stira is only the realization of the husband's claim.  The gemara clearly expresses this idea in its interpretation of R. Eliezer, as a close reading of the gemara's play by play will reveal.

 

1. R.  Eliezer contrasts kinui to tum'a (since kinui is based upon kefeida deba'al rather than the tum'a). 
2. Why not contrast stira as well (since stira is part of the kefeida deba'al element as it is the contemptful response of the wife to the kinui, as R.  Yehoshua assumed)?
3. Stira is as tum'a (and is not part of the kefeida deba'al element).
4. If so kinui is also part of the tum'a system (as it can be understood as creating the grounds for suspicion that make our presumption of tum'a a reasonable claim [(raglayim ladavar]).
5. There is an exclusion of "bah" that sets up a contrast between tum'a and other elements (i.e. there is the kefeida deba'al problem in addition to the tum'a issue).
6. Stira is more crucial since it creates an issur in a similar manner to tum'a.  (The gemara is assuming that stira is not the conclusion of kinui but is considered as a case of alleged tum'a.  Therefore, its halakhot are as those of tum'a and unlike those of kinui).
7. On the contrary, kinui is the main element of sota.  (Logically, this claim is perplexing; for if kinui is the main element, it is so not because of an action but because of a certain abstract relationship that is postulated.  As we shall see in the next shiur, this halakhic condition SHOULD be a reason to require witnesses, unlike tum'a that is an action and is not as dependent on witnesses.  Therefore, this stage does not fit in our scheme of explanation, that the gemara immediately returns to).
8. Without stira there is no kinui (so that stira is the main element [of tum'a] that kinui lays the ground for), yet without kinui there is no stira (since kinui is the kefeida deba'al that stira confirms.  The upshot of all this is that the original dilemma remains in full force).
9. Nevertheless, stira is to be preferred over kinui since it is the first stage of the tum'a, (i.e. kinui is to be contrasted to tum'a and not stira, since stira is part and parcel of the tum'a aspect of sota, while kinui is based upon kefeida deba'al).

 

Thus, R. Eliezer's opinion that kinui requires two witnesses but stira doesn't reflects the different roles that they perform in the sota paradigm.  Retuning to R. Yehoshua's opinion that requires witnesses in both cases, it is now reasonable to postulate that he relates to both kinui and stira as a function of kefeida deba'al and therefore insists upon witnesses for stira as well.  However, a full understanding of R. Yehoshua's position will be possible only upon completion of our analysis of the function of witnesses within the system, a task that will, b"n, be attempted in the next shiur.

 

The position of R. Yossi ben Yehuda, who holds that kinui does not need witnesses but that stira does, is more difficult to fathom (and maybe this is the reason that it was omitted from the Mishna??) Kinui is apparently no more than a preliminary stage that does not require formal testimony, so that stira is the focal point that is in need of witnesses; however, whether this is a reflection of kefeida deba'al or of suspected tum'a cannot be determined.

 

In the following shiurim, we will continue the discussion of the tum'a – kefeida deba'al issue that runs as a thread throughout the masekhet as well as a more specific treatment of the function of the witnesses.