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Sotah, 6


QUESTION: The Mishnah (2a) says that a Safek Sotah whose childless husband dies before divorcing her does Chalitzah but not Yibum. The Gemara (5b) asks why she does not do Yibum. The Gemara gives four different reasons for why a Sotah -- when her husband dies before he divorces her -- cannot do Yibum. The Gemara's first answer is that the verse says, "v'Haisah l'Ish Acher" (Devarim 24:2), which teaches "l'Acher v'Lo l'Yavam" -- she shall marry another man ("Acher") and not the Yavam to whom she would naturally fall.

Why does the Gemara suggest in the first place that a Safek Sotah should be able to do Yibum? The Gemara in Yevamos (11a) cites the teaching of Rav who says that a Vadai Sotah does not do Yibum or Chalitzah, but rather she is treated like an Ervah, because the verse refers to the status of a Sotah as "Tum'ah" (Devarim 24:4), implying that she is treated like an Ervah who does not do Yibum or Chalitzah. According to the Gemara in Yevamos, why should the Gemara here suggest that the Sotah do Yibum? Since there is a possibility that she is a Vadai Sotah who cannot do Yibum, out of doubt she should have to do Chalitzah and not Yibum, exactly like the Mishnah says! (TOSFOS, Yevamos 11a)

Furthermore, the Gemara derives from the verse, "v'Haisah l'Ish Acher," that a Safek Sotah does not do Yibum. Abaye asks that she should not need Chalitzah either, and Rav Yosef answers that just like she needs a Get from her husband when her husband is alive, she needs a release of Chalitzah from the Yavam when her husband is dead. The verse, though, is referring to a *Vadai* Sotah and not to a Safek Sotah, like the Gemara says in Yevamos (11b)! A Vadai Sotah indeed does not do Chalitzah! What, then, is Abaye's question, and what is Rav Yosef's reply, that she needs Chalitzah from the Yavam because she would have needed a Get from her husband? We see from the Gemara in Yevamos that a Vadai Sotah does not do Chalitzah, despite the fact that she would have needed a Get from her husband had he been alive! (TOSFOS)

ANSWERS: There are two basic approaches in the Rishonim to these questions. Some Rishonim attempt to reconcile the Sugya in Sotah here with the Sotah in Yevamos, while others assume that the two Sugyos disagree.

(a) The ROSH (Yevamos 1:4) writes that the Sugya here and in Yevamos are in agreement. The reason a Safek Sotah will not be prevented from doing Yibum because of the same reason that a Vadai Sotah cannot do Yibum is because there really is no reason to be stringent with a Safek Sotah and suspect that she actually committed adultery (because she has a Chezkas Heter l'Yibum and a Chezkas Kashrus that she is not a Zonah -- see Kidushin 80a, "we do not prohibit a woman just because she isolated herself with another man"). The only reason we prohibit a Safek Sotah to the husband, the suspected adulterer, and to eat Terumah is because of the Gezeiras ha'Kasuv. The verse says "v'Nisterah v'Hi Nitma'ah" (Bamidbar 5:13).

That verse, though, only applies to the Isur to live with her husband and with the adulterer, but it does not teach that she is Asur to the Yavam. Even though we learn the Isur that prohibits a Vadai Sotah to the Yavam from the fact that the Torah calls her state a state of "Tum'ah" in the verse, "Acharei Asher *Hutama'ah*" (Devarim 24:4), implying that she must be treated like an Ervah regarding Yibum, nevertheless the fact that the Torah prohibits the Safek Sotah with the similar phrase, "v'Hi *Nitma'ah*" (Bamidbar 5:13), does not prove that she, too, is like an Ervah regarding Yibum. The difference between the two types of "Tum'ah" is that the Tum'ah of a Vadai Sotah is written as an Isur Lo Ta'aseh, while the Tum'ah of a Safek Sotah is written as a Mitzvas Aseh. Only Tum'ah written with regard to a Lo Ta'aseh can teach that the woman is like an Ervah and is not eligible for Yibum. Therefore, the Safek Sotah remains permitted to the Yavam and that is why the Gemara asks that she should do Yibum. (See also RAV CHAIM HA'LEVY in Hilchos Yibum ch. 6, for a similar explanation.)

This leaves us with the other two questions. Our Gemara seems to be saying that even a Vadai Sotah needs to perform Chalitzah in order to be released from the Yavam! The Rosh will have to answer the way Tosfos answers in our Sugya, that the reason why the Gemara cites the verse of Vadai Sotah is because that verse is extra; it is not necessary to teach that a Sotah does not do Yibum, because we already know that from "Acharei Asher Hutama'ah" (Devarim 24:4) which teaches that she is considered like an Ervah, so it must be referring to a Safek Sotah.

The reason why a Vadai Sotah does not need Chalitzah -- even though her husband would have to give her a Get if he was alive -- is because when the Torah excludes a woman from the category of Yibum, it considers her to be a normal "Eshes Ach" who is prohibited to her husband's brother ("Eshes Ach she'Lo b'Makom Mitzvah"), and thus it is obvious that she needs neither Yibum nor Chalitzah. A Safek Sotah, though, is not totally removed from the Parshah of Yibum. Rather, the verse that teaches "l'Ish Acher v'Lo l'Yavam" is saying that she must leave her Yavam for the same reason that she must leave her husband. It is an extension of the Isur to her husband, and it is not because of her Tum'ah! (Or, as Rav Chaim ha'Levy, ibid., puts it, the verse "l'Ish Acher" simply discloses to us that "v'Nitme'ah v'Hi Nitma'ah" incorporates an Isur to the Yavam as well as the Isur to the husband.) That is why a Safek Sotah needs Chalitzah.

(b) Other Rishonim assume that our Sugya disagrees with the Sugya in Yevamos. They explain that our Sugya does not accept the Derashah of Rav in Yevamos that the Tum'ah of a Sotah is comparable to the Tum'ah of Arayos. The Sugya here maintains that the Tum'ah of a Sotah does *not* make her like an Ervah to exempt her from Yibum.

The RA'AVAD, cited by the Rosh in Yevamos, explains that, indeed, according to our Sugya even a Vadai Sotah Vadai must do Chalitzah, not like the Sugya in Yevamos holds. According to the Ra'avad, who says that our Gemara does not compare the Tum'ah of Sotah to the Tum'ah of Ervah, we easily can answer the second two questions. Our Sugya holds that a Vadai Sotah does Chalitzah, and the verse of Vadai Sotah is cited because the Sugya is also discussing a Vadai Sotah and not only a Safek Sotah; the Gemara here is looking for a source that not only a Safek Sotah does not do Yibum, but that a Vadai Sotah also does not do Yibum.

How does the Sugya in Yevamos respond to the logic of our Gemara that the Yavam must do Chalitzah with the Sotah whenever the husband would have had to give her a Get? Why does Rav say that she does not even need Chalitzah? Will the Ra'avad have to resort to the answer of Tosfos?

The RE'AH cited by the RITVA and the ME'IRI in Yevamos write that the Sugya in Yevamos that says that a Vadai Sotah is exempt from Yibum *agrees* that a Vadai Sotah must do Chalitzah, based on the logic of our Gemara.

Another approach is that of the RAMBAN and RASHBA in Yevamos. They write that the Sugya in Yevamos exempts the Vadai Sotah from Chalitzah because there is an extra verse. Besides the verse that calls her "Tamei" like an Ervah, there is another verse of "l'Ish Acher" (the verse cited by our Sugya). This extra verse teaches that a Vadai Sotah does not even do Chalitzah.

RASHI in our Sugya seems to be suggesting a different answer to why the Gemara in Yevamos is not bothered by the logic of our Gemara (that when the husband would have needed to give her a Get, the Yavam must do Chalitzah with her). The Gemara is not proposing that anytime the husband would have to give a Get, the Yavam needs to do Chalitzah. Rather, the Gemara is asking a specific question on what we learn from the verse, "l'Ish Acher." The Derashah from that verse is based on the assumption that when the verse says that she marries an "Ish Acher" ("another man"), it is not just referring to a Sotah whose husband divorced her, but even to a Sotah whose husband died without divorcing her. The Gemara challenges this comparison by pointing out that if the Torah says specifically that the husband must divorce her, then why should we assume that the Yavam does *not* need to do Chalitzah? The verse seems to be saying that some act *is* required in order to send her away, and therefore it is not proper to infer from this verse that the Yavam does not need to do Chalitzah. However, when the Gemara later learns from other sources that a Sotah does not perform Yibum, this logic will not apply; that is, the comparison between the husband (needing to give her a Get) and the Yavam (needing to do Chalitzah) will not apply. For example, Rav Yosef learns that the Sotah does not do Yibum because the Torah implies that it is not proper for a person to marry a Sotah, and therefore the Torah cannot possibly obligate the Yavam to marry her if it is not a proper thing to do. According to that logic, the inference that there is no Yibum does not come from a simple comparison between the woman whose husband divorced her and the woman whose husband died; it is coming from the verse that teaches that it is not proper to marry such a woman! Hence, when we see that the Torah does not require Yibum because it is not proper to marry her, we can infer that the Torah does not require Chalitzah either. Since the Torah does not give the option of Yibum here altogether, the woman is completely exempt from the Parshah of Yibum (including Chalitzah). This is why Rashi (beginning of 6a) writes that according to the second source for why the Sotah does not do Yibum (that it is not proper to marry such a woman), the Sotah is like an "Eshes Ach she'Lo b'Makom Mitzvah" which implies that she does not have Chalitzah either. According to this reasoning, the Gemara concludes like Rav in Yevamos, that a Vadai Sotah has neither Chalitzah nor Yibum.


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