Iyun Masechet Sota: 18b

 

The concluding sugya of the second perek brings us back to an issue that we encountered in the early stages of the masekhet – the status of a shomeret yavam regarding sota issues.  The mishna rules that the sota affirms in her oath that she has not been unfaithful as a shomeret yavam, even though the sota procedure cannot be initiated if her status is that of a shomeret yavam and not a married woman (see the mishna 23b).

 

The halakhic status of the unfaithful shomeret yavam applies to three different issues: a. mamzerut - is the child a mamzer if he is born of the illicit relationship between the sota and her husband; b. tefisat kiddushin - whether she needs a get from a person who has married her prior to yibum or chalitza; and c. her ability to marry the yavam after she has had relations with a stranger.  Rav Hamnuna's statement that she is prohibited from cohabiting with the yavam if she has been unfaithful need not imply that the children are mamzerim or that kiddushin does not apply to her, since the issur of sota is not necessarily based upon the same principles that cause mamzerut or nullify a marriage act. 

 

Actually, there should be a one-way connection.  If we accept Rav Hamnuna's claim that the sota is prohibited to her husband, it should lead us to the conclusion that kiddushin should not apply to the shomeret yavam.  The logic behind Rav Hamnuna's psak is that the shomeret yavam relationship is somewhat of a marital situation, for otherwise, the issur of sota which is unique to marriage would be irrelevant.  Thus, Rav Hamnuna's position should lead us to the conclusion that she cannot be married by another since he considers her to be partially married to the yavam (see Tosfot d.h. shomeret yavam in our sugya who define her status as an arusah who is after kiddushin but before nisuin). 

 

Conversely, though, it is possible to claim that there will be no kiddushin but that the issur of sota does not apply, since the illegitimacy of the kiddushin can be based upon other ideas as well; e.g., that the kiddushin to a stranger will prevent the option of yibum and are therefore nullified or that there is an element of non-personal kinyan in the shomeret yavam relationship that prevents another person from "acquiring" the shomeret yavam but does not trigger the issur of sota that is personal in nature.  This is the subject of a machloket in Yevamot 92b.  Rav is of the opinion that kiddushin apply to shomeret yavam since:

 

a.   He considers her as a candidate for yibum and not as a pseudo wife of the yavam and,

b.   He does not view the mitzva of yibum as overriding kiddushin.  Shmuel, though, disagrees and nullifies the kiddushin, citing the pasuk of "lo tehyeh eshet hamet hachutza leish zar."  This results in a further disagreement.  Rav Ashi assumes that Shmuel denied Rav's latter premise and, therefore, he rules against Rav Hamnuna, while the other option suggested by the gemara is to tie Shmuel and Rav Hamnuna together, since Shmuel is understood to deny Rav's former assumption.  

 

A similar dilemma confronts us regarding the issue of mamzerut.  On the one hand, it is a legal/metaphysical status that is a function of a metaphysically unrecognized union.  The issur of the sota to her husband, though, is unrelated to this metaphysic and need not be dependent on it.  Therefore, Rav Hamnuna can rule that a shomeret yavam is analogous to a wife regarding the issur of a sota and/or the option of kiddushin to a stranger, yet has a totally different status regarding the result of such a union.

 

In a sense, we have arrived at the classic chakira regarding the relationship between mamzerut, denial of kiddushin and the issur of incest.  Are they analogous but independent issues or are they interrelated? Is mamzerut a sanction against the result of an unrecognized union and therefore a function of the kiddushin and/or the issur, or is it a metaphysical problem? These are all basic issues of masechet Yevamot and beyond the scope of a shiur in masekhet Sota.  Our discussion will limit itself to their application in our sugya and to the sota perspective.

 

Before we commence on the sota angle, though, we must provide a little background.  The mishna in Yevamot 49a records a broad spectrum of opinion regarding the definition of a mamzer, ranging from a child born to parents whose issur to each other is a "mere" issur asei to a child whose parents' union is a capital offence.  Throughout the gemara's subsequent discussions, two opinions emerge as dominant: R. Shimon HaTimni's (or HaTeimani) opinion that mamzerut is the result of an issur karet and R. Akiva's position that the degree of severity of a negative commandment ("issur lav") suffices to trigger the mechanism of mamzerut.

 

Let us now review the play-by-play of our sugya.  From the mishna's ruling that the sota must affirm under oath that she was not unfaithful as a shomeret yavam, Rav Hamnuna infers that an unfaithful shomeret yavam is prohibited from cohabiting with the yavam, for otherwise there would be no point in demanding this affirmation.  This inference rests upon the assumption that the purpose of the oath is to establish the faithfulness of the sota and its conclusion is that there must be a pseudo-marital connection between the shomeret yavam and her future husband (the yavam) that is corrupted by a breach of trust.  Had the gemara assumed that the oath is designed to establish her guilt or innocence, it would have been required regardless of its implications for their marital status.

 

The Amoraim of Eretz Yisroel, though, disagree with Rav Hamnuna and claim that the shomeret yavam is not prohibited to her yavam.  The rejection of Rav Hamnuna's position is not unreasonable, for it is far from clear that there indeed is a marital relationship between the shomeret yavam and the yavam during the waiting period (see the shiur on 5b for treatment of this topic).  Therefore, the fact of a machloket in this regard is not surprising; after all, Rav and Rav Ashi in Yevamot also disagree with him.  However, Rav Hamnuna's proof from the mishna must be explained by those who do not accept his conclusions.

 

This, too, does not seem a grave difficulty, since an understanding of the oath as related to the tuma element, rather than the interpersonal trust, would enable us to add on shomeret yavam to her original oath.  Surprisingly, though, the gemara does not give such an answer but prefers to introduce R. Akiva's position that a level of a standard negative prohibition suffices to nullify kiddushin (and to establish mamzerut).  Such an answer is extremely perplexing.  R. Akiva's position is not unique to sota and the definition of marital relationships; it is a general rule regarding illicit relationships and the legal status of marriages prohibited by the Torah.  Therefore, his position would be very relevant if we were to discuss the possibility of the husband to remarry his sota wife or the status of a child born of such a union.  However, since the issue at stake here is the intensity of the relationship between the shomeret yavam and the brother and not the severity of the issur, the definition of the issur as an issur lav or issur karet should not influence our assessment of the marital element between the shomeret yavam and the yavam.

 

Apparently, the gemara is of the opinion that even the permissibility of the sota to continue living with her husband is rooted in the tuma, and not the betrayal, and thereby mobilizes R. Akiva's opinion to establish the severity of the issur.  The reason that the sota is prohibited to the husband is because of their metaphysical incompatibility, as expressed in the fact that they cannot marry each other.  In this regard, there is a difference between R. Akiva and other Tanaim regarding the level of issur that is indicative of the metaphysical divide.  This, though, is very difficult, since the issur to continue living with the husband is unique to sota and does not apply to bona fide cases of ervah (e.g. two sisters); presumably, this distinction is due to the concept of trust and betrayal that are relevant to sota and not to ervah, so that R. Akiva's machloket with R. Shimon HaTimni and Chakhamim should be of no regard.

 

Nevertheless, this is the conclusion of Bnei Ma'arava (and, by extension, of the sugya).  The Rambam, indeed, adopted this psak and ruled against Rav Hamnuna.  Tosfot and the Ramban, though, come to our rescue and argue that other sugyot support Rav Hamnuna's position.  The sugyot in the Bavli that Tosfot mention are cited by them to support Rav Hamnuna's opinion without dwelling upon the problematic introduction of R. Akiva into the equation.  However, they also quote the Yerushalmi in our sugya that recorded a parallel discussion to the Bavli's but that concludes by confronting our problem head on and asserting that there is no connection between R. Akiva's opinion on mamzerut and the issue of sota: "what is there between mamzer and kinui – the Torah stated 'vekinah et ishto,' even if she is a partial isha [i.e. the issur sota of the shomeret yavam is a function of her marital status vis a vis the yavam, while mamzerut is a result of a legal metaphysical status]."

 

The Ramban (Yevamot 92b) independently makes the identical claim that R. Akiva should be understood as limiting his opinion to mamzerut and not to the prohibition of sota "since it can be claimed that even R. Akiva doesn't prohibit her [the shomeret yavam] as a sota because R. Akiva doesn't consider her an "ervah" regarding the issur sota, since the Torah prohibited only full fledged marriage that has a capital sanction for unfaithfulness by its formula of the double "venitmeah" but not a shomeret yavam whose matrimonial bond to the yavam isn't expressed by an issur karet or mitah." 

 

Thus, our sugya seems to leave us with one of two options: either acceptance of Rav Hamnuna's position and its practical and conceptual implications regarding the status of the shomeret yavam or adaption of R. Akiva's theory regarding mamzerut to the issur of sota with all of its attendant consequences regarding sota.

 

The Ramban offers an alternative that enables us to break through this logjam by suggesting that other sugyot can reject our mishna's assumption that the oath can include only cases that prohibit the sota from cohabitation with the husband.  If we dispose of this axiom, then we need not accept Rav Hamnuna nor R. Akiva to include the case of shomeret yavam in her oath.  Essentially, this is what the Rambam indeed did, since he rules against Rav Hamnuna and R. Akiva yet retains the rule that a shomeret yavam can be a sota.

 

This position has major implications regarding the role of kinui and setira within the sota system and their relationship to tuma; these were dealt with at length in our shiur on 2a.