Iyun Masechet Sota: 3b

In the previous shiur, we examined the significance of the stage at which two eidim (witnesses) are required.  This week, we shall attempt to explore the very need to have eidim in the sota process.  As explained last week, the gemara derives the need for two eidim from a verses, by contrasting kinui and/or stira to tum'a ("BA veloh bekinui," "BA ve-lo bestira").  Thus, the gemara is able to provide a source for the mishna's ruling in this regard; however, it does not explain the rationale for this halakha or the role of the eidim in the process.  What their presence contributes to the kinui and stira remains to be clarified.

Moreover, the very need for eidim in kinui and stira can be questioned.  The starting point of this claim is that a lone witness suffices to establish tum'a but not kinui and/or stira since there is an implied contrast in the pasuk between them.  However, given that tum'a relies upon a single witness, it is possible to contrast kinui and stira to it in one of two ways – either that they require two eidim, as the gemara states, or that there is no need for any eidim at all.  Why the gemara chose the former option rather than the latter must also be understood.

The key to these inquiries is to be found in the gemara 3b, that addresses the role of eidim in sota from the perspective of "davar she-be'erva" (the accurate translation of this phrase is the subject of the subsequent discussion).  The gemara quotes a source that defines the need for two eidim in a davar she-be'erva, thus providing a different source for the need of eidim in sota.  The gemara's conclusion is that "ba ve-lo bekinui" is the source that requires eidim in kinui, while the other source relates to cases of tum'a in which the woman is not a sota.  The result of these reasonings is that kinui and/or stira require two eidim (a demand that is derived from "ba") as does tum'a "be-alma" (whose need for eidim is due to its being a davar she-be'erva), while tum'a in the case of a sota doesn't require two eidim.

Let us now proceed to analyze this data and attempt to understand the logic of davar she-be'erva.  The gemara in Kiddushin (65b) rules that kiddushin require two eidim, even in cases when both husband and wife agree that the kiddushin took place.  The testimony is not necessary for purposes of proof but is a requirement of the kiddushin act itself.  This is the famous concept of eidut le-kiyum ha-davar, i.e. the testimony functions as a component of the legal act rather than as a record of it, thereby necessitating it even when there is no need for proof.  On the other hand, the gemara in Gittin (3a) evokes the rule of davar she-be'erva in regard to the level of testimony (two eidim rather than one) needed to prove the legitimacy of a get, assuming that the davar she-be'erva rule creates a higher standard of verification as well.  Thus, the principle of davar she-be'erva is actually a multifaceted principle that must be applied in accordance to the regulations of the specific case and discipline at hand.  This point was already noticed and formulated by Rishonim (see Ritva Gittin 2b – "at times these eidim are for trustworthiness, but at others it is not due to their reliability, since even if [we] have knowledge of the event, it is not legally binding without two eidim; e.g., kiddushin that are disqualified if there was a lone witness and are binding only with two.  This is a divine decree – "gezirat ha-katuv") and elaborated upon by Achronim (see Netivot 36:10, Or Samech, Ishut 9:16 and many others). 

An additional issue that must be addressed is the definition of davar she-be'erva.  Possible translations could be "an issue pertaining to sexual relationships" or "an issue of personal status."  The Shev Shmatata (6:15) points out that there is a machloket between the Rambam and the Tosfot Rid regarding the need for two eidim in matters of personal status.  The Tosfot Rid claims that the determination that a woman is a divorcee requires two eidim, but the Rambam disagrees and rules that a lone witness suffices.  As the gemara (kiddusin 66a) is explicit that two eidim are necessary to establish the fact that a kohen is the son of a divorcee (and, therefore, a disqualified kohen), the Rambam's position is seemingly puzzling.  If the root of the matter (the mother's status) can be determined by a single eid, why should her son's eligibility, derivative of her history, require two? The explanation that the Shev Shmatata offers is that issues of personal status require two eidim, but not necessarily events pertaining to halakhic issues of marriage etc.  Thus, the ruling of the bet din regarding the son is an issue of personal status, while the woman's divorce is a factual event that does not confer any change in her personal status.  Though the Shev Shmatata does not explain the Rid's opinion, it is evident that he must either consider being a divorcee a legally significant status or that the rule of davar she-be'erva applies to all events and details of Even Haezer, even if they do not cause a change in personal status.  I have often heard my father, shlita, explain the Rid according to the latter option. 

Therefore, the issue confronting us in our sugya is how to evaluate the davar she-be'erva element in sota.  Which of the two aspects of davar she-be'erva is applicable here?  Is it eidut le-kiyum ha-davar that is necessary per se, even if we are not in doubt about the facts, or is it testimony that is intended to factually clarify the situation at hand.  A priori, it would seem that it must be the latter, for what kind of kiyum ha-davar could there possibly be in a case of sota?  Unlike gittin or kiddushin, there is no legal act or document that requires eidim to make sota a legally valid act.  If there is no legal apparatus, there is no room for kiyum ha-davar.

Let us now proceed to examine the data regarding eidut in sota and to analyze it, taking into account last week's shiur as well as the above.  If the sota mechanism is simply an indication that tum'a occurred, the requirement for eidim in the early stage of kinui cannot be due to any change in the woman's personal status, since kinui is only a preliminary to the basic issue.  Therefore, the requirement for two eidim in kinui would have to be explained as a more stringent standard of proof in such cases.  This, though, would be reasonable only if we also required two eidim for stira as well, since it cannot be claimed that the standard of evidence that we insist upon in a case of sota, because of its severity as an Even Haezer case, will be greater in the preliminary stage that in the actual point of issur.  Any claim that two eidim are required as a higher standard of proof would have to demand the two eidim throughout the kinui and stira process.  Thus, this explanation that the davar she-be'erva in sota must be an issue of verification can be suggested according to R.  Yehoshua who indeed requires eidim for both kinui and stira, but it cannot hold up as an interpretation of R. Eliezer who limits the need for two eidim to kinui alone.

This leads us to the conclusion that R. Eliezer's position, which cannot be justified as a standard of proof, must be understood as requiring the two eidim in kinui for purposes of eidut le-kiyum ha-davar.  The underlying rationale for this is the idea that kinui creates an independent legal state that defines the woman as unfaithful and disloyal, if his suspicions will be borne out.  As the cause of the issur is the abstract act of kinui that confers a legal status upon her, the need for the eidim is to legally fortify the kinui, rather than to prove that it happened.  We can explain the action of the eidim as fortifying the husband's da'at, along the line of interpretation of kiyum ha-davar that R. Meir Simcha HaKohen developed in the above-mentioned piece in his Or Samech, or we could claim that unfaithfulness is transformed into a legal personal status.  Either way, it is eidut le-kiyum ha-davar that we are dealing with.

The claim that the need for two eidim in kinui according to R. Eliezer is for eidut le-kiyum ha-davar was made by the Beit HaLevi (2:41) who distinguishes between kinui and stira in this regard.  The eidim of kinui are eidim le-kiyum ha-davar while the eidim of stira are only needed to convince the husband that his wife committed adultery.  Therefore, according to the opinion in the gemara that eidim are only required for stira, independent knowledge of the husband would force him to leave his wife, but lack of eidim in kinui would prevent the creation of a sota status and allow the husband and wife to continue cohabiting.  (See also R. Velvel's discussion of this issue in his sefer on the Rambam in Hilkhot Sota.)

Returning to the sugya on 3b, we can now suggest that the need for the dual sources is due to the differing functions of davar she-be'erva.  The factual davar she-be'erva as a standard of proof is derived from an analogy with the rules of evidence in monetary disputes ("davar davar me-mammon") and therefore is attributed to cases of tum'a, since the act itself creates the issur, while the yalphuta of "bah" teaches us that, unlike tum'a, kinui requires eidut le-kiyum ha-davar.  This also explains the paradox that the gemara is struggling with - the fact that the more severe tum'a requires a lower level of eidut than kinui or stira.  The very severity of tum'a is that the act itself defiles, so that all that is needed is proof that can be supplied either by eidim or by circumstantial evidence of raglayim la-davar.  Kinui, though, is not an actual event but an abstract legal situation that must be propped up by the power of eidut le-kiyum ha-davar, without which it is insignificant.  (Throughout this paragraph, I have followed the Beit HaLevi and contrasted kinui and tum'a.  The status of stira is dependent upon last week's discussion and our reading of 3b must be adjusted, according to our understanding of the various opinions regarding stira).

Before concluding, it is worthwhile mentioning an important source regarding kinui and stira that we forgot to discuss last week.  The gemara in Ketuvot 9a claims that kinui and stira would be required to prohibit a woman from her husband, even when he claims to be aware of her unfaithfulness.  Since personal knowledge is halakhically reliable for the individual involved ("shavya anafsheih chaticha de-issura)," the reason that the unfaithful wife is permitted to continue living with her husband who is convinced that she committed adultery cannot be due to a need to verify whether or not there was tum'a, but to the fact that kinui and stira are an independent factor of issur, as explained in the previous shiur.  This claim is ultimately rejected by the gemara, the sugya's conclusion being that knowledge of tum'a alone suffices to create an issur without kinui and stira.  As the conclusion of the sugya does not necessarily deny the workings of kinui and stira when they are required, the essence of the issur that is established when the mechanism of kinui and stira is evoked remains unresolved.  The light that is shed upon the process of kinui and stira by the hava amina is worthy of notice as a clear-cut example of the non-tum'a approach to kinui and stira. 

It is also worth adding a few mekorot in Achronim, for those interested, that relate to the nature of kinui and stira: R. Chaim, Hilkhot Yibbum, 6:19, Achiezer, Even Haezer, 1:1-2, and Or Samech, Sota 1:1.