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Sotah, 28

SOTAH 28 (23 Teves) - dedicated in memory of Nachum ben Shlomo Dovid Mosenkis on his 61st Yahrzeit, by his son, Shlomo Dovid (Sid) ben Nachum Mosenkis of Queens N.Y.


The Gemara teaches that we learn from the verse "v'Nitma'ah" (Bamidbar 5:29) that a Safek Sotah is prohibited to her husband after Kinuy and Setirah.
(a) Why is it necessary for a verse to teach that a Safek Sotah is prohibited to her husband? Since she is suspected of having relations with another man, she should be Asur because of the normal principle of Safek Isur! (TOSFOS DH Mah)

(b) Even if a Safek Isur would normally be judged leniently, there is still no necessity for a special verse to prohibit the Safek Sotah, because even without the verse there is reason to be stringent in the case of a Safek Sotah! This is because, like the Gemara says in Nidah (3a), when the woman secludes herself with another man after Kinuy, there is "Raglayim l'Davar" that she sinned! (TOSFOS DH Eino)

(a) TOSFOS explains that the reason why we normally treat a Safek Isur stringently is because we must suspect the worst. If a person takes the risk of committing a sin when he is not supposed to, and it turns out that there was no Isur, he has not transgressed a Mitzvah of the Torah (he just needs atonement for being disrespectful for the Mitzvos and not being cautious of the Safek Isur; see Nazir 23b). However, the prohibition of a Safek Sotah to her husband is an independent Mitzvah in and of itself (a Mitzvas Aseh of "v'Nitma'ah;" some even say that Malkus is administered for transgressing this Mitzvas Aseh -- see Tosfos Yevamos 11b, DH Mai, and Insights to Sotah 7:1:a).

Similarly, when an object that is Safek Tamei is found in Reshus ha'Yachid, the rule is that it is considered definitely Tamei, and if it is an item of Terumah it may be burned. (However, in contrast to the case of Sotah, in the case of Tum'ah if the Safek is clarified and we determine that there was no Tum'ah, then retroactively anything that touched the object is Tahor.)

Another possibility is that normally we would be lenient in the case of a Safek regarding whether the wife became prohibited to her husband or not, because she has a Chezkas Heter that she is permitted to her husband. The verse of "v'Nitma'ah" teaches us not to rely on the Chezkas Heter. (See Tosfos 28b, DH mi'Kan.)

(b) TOSFOS explains that without the proof of "Raglayim l'Davar" there is not even a doubt that the woman committed adultery, because Jewish women are not suspected of committing such terrible transgressions (she has a Chezkas Kashrus). The "Raglayim l'Davar" is what turns it into a Safek; but it remains a Safek until the verse of "v'Nitma'ah" teaches that she is Asurah mi'Vadai -- she is prohibited for certain, with no doubt.

The RASHBA (Kesuvos 9a) explains that the "Raglayim l'Davar" offsets the woman's claim of certainty (her "Ta'anas Bari") that she knows for sure that she is Tehorah, and it makes her case into a Safek.

Rebbi Shimon in Nidah (3a), however, rules that, indeed, when there is no "Raglayim l'Davar," a Safek Tum'ah in Reshus ha'Yachid is only Tamei mi'Safek. In the case of Sotah, the "Raglayim l'Davar" together with the verse of "v'Nitma'ah" makes it into a Vadai.

OPINIONS: The Gemara says that an item that is a Safek Tum'ah in Reshus ha'Yachid is *Tamei*, but only when that item is a "Davar she'Yesh Bo Da'as Lisha'el." If the item is in Reshus ha'Rabim, or it is a "Davar she'Ein Bo Da'as Lisha'el" (even in Reshus ha'Yachid), the Safek Tum'ah is *Tahor*.

The Rishonim discuss whether the Safek Tum'ah in Reshus ha'Rabim is Tahor because of the *Chezkas Taharah* (Tosfos 28b, DH mi'Kan) or because of a special *Halachah l'Moshe mi'Sinai* that says that even when there is no Chazakah, a Safek Tum'ah in Reshus ha'Rabim is Tahor (Tosfos in Chulin 9b, DH Hasam).

Our Gemara derives these Halachos of a Safek Tum'ah by comparing Tum'ah to the Isur of a Sotah. The Gemara in Chulin (9b) refers to this as "Hilchasa Gemira Lah m'Sotah" -- a Halachah l'Moshe mi'Sinai derived from the Halachos of Sotah. Even if these differences (between Reshus ha'Rabim and Reshus ha'Yachid, and between "Davar she'Yesh Bo Da'as Lisha'el" and "Davar she'Ein Bo Da'as Lisha'el") are a Halachah l'Moshe mi'Sinai, there should be some logic behind them.

Is there any way to justify the difference between Reshus ha'Rabim and Reshus ha'Yachid, and the difference between "Davar she'Yesh Bo Da'as Lisha'el" and "Davar she'Ein Bo Da'as Lisha'el," with regard to the status of an item that is Safek Tum'ah?

(a) TOSFOS (28b, end of DH mi'Kan) and the RA'AVAD (Hilchos Avos ha'Tum'ah 16:1) cite a Tosefta that states that the reason Safek Tum'ah in Reshus ha'Rabim is Tahor is because "Iy Efshar Lish'ol l'Rabim" -- it is impossible to ask the populace if the object or person is Tamei or Tahor.

The Tosefta seems to be saying that the reasoning behind being Metaher a Safek Tum'ah in Reshus ha'Rabim and being Metaher a Safek Tum'ah that is "Ein Bo Da'as Lisha'el" are based on the same point: when it is impossible to clarify whether the object is Tamei through interrogation -- either because only non-human objects are involved, or because we do not know which people were present -- then the Torah did not make the item Tamei. (Since we normally do not know who was present in Reshus ha'Rabim, while we do know who was present in Reshus ha'Yachid, the Torah does not differentiate between each specific case, whether we know who was there or we do not know who was there.)

What is the logic for having the Tum'ah depend on whether there is someone there to ask about it? Apparently, the Torah made the object Tamei since its Tum'ah is able to be clarified; if it is possible to clarify the Safek, the Torah does not want us to rely on the Chezkas Taharah to make it Tahor. This seems to follow the opinion of Tosfos in our Sugya who says that Safek Tum'ah in Reshus ha'Rabim is Tahor only because of the Chezkas Taharah (and when there is no Chezkas Taharah, it is Tamei).

A similar opinion is that of TOSFOS (DH b'Reshus ha'Rabim) and the TOSFOS HA'ROSH (end of Nidah 2a) who write that we are lenient with a Safek Tum'ah in Reshus ha'Rabim because the Safek "can be revealed to all" -- that is, the true status of the object tends to be known by all. The logic behind this might be that in Reshus ha'Rabim it is not necessary to investigate whether the object is Tamei or not, because had it been Tamei someone certainly would have spoken up about it. Hence, there is a strong reason to assume that it is Tahor, and that is why we are lenient to rely on the Chazakah and assume that the object's status did not change and it remained Tahor in a case of Safek Tum'ah in Reshus ha'Rabim.

Why, though, are we lenient and Metaher a Safek Tum'ah in a case of a "Davar she'Ein Bo Da'as Lisha'el?" The ROSH there writes that when the object can be asked about the Tum'ah, it is possible to clarify the Safek, like the Tosefta says, and the Torah wants us to clarify the Safek, if possible, even in Reshus ha'Yachid. (Tosfos in our Sugya (DH b'Reshus ha'Rabim) seems to imply that even if there is a logical reason to differentiate between a Reshus ha'Rabim and a Reshus ha'Yachid, there is no logic to differentiate between "Yesh Bo Da'as Lisha'el" and "Ein Bo Da'as Lisha'el." Tosfos, though, in DH mi'Kan seems to say that there is not even any logic to differentiate between Reshus ha'Rabim and Reshus ha'Yachid. Rather, it is all Halachah l'Moshe mi'Sinai with no apparent reason.)

(b) The VILNA GA'ON (Chidushim on Maseches Taharos 5:1 and 6:1, printed in the Vilna Shas) writes that we are lenient in Reshus ha'Rabim because it is more common for doubts to arise regarding Tum'ah in Reshus ha'Rabim since so many people pass by there. Similarly, when the object is a "Davar sh'Ein Bo Da'as Lisha'el," it is more common for Sfeikos to arise because there is no *person* involved who is trying to avoid the Safek. Therefore, the Torah is lenient. (RAV M. HELLER)

The Vilna Ga'on appears to be saying that the Torah wanted to make it easier for those who work with Taharos, and, therefore, it said that we may be lenient in cases where Sfeikos arise often. This is similar to the Halachah taught in the end of Chagigah, that during the Regel, when more Amei ha'Aretz come to Yerushalayim, we treat what they touch as Tahor and suspend the normal Chumros.

The logic of the Vilna Ga'on is easier to understand according to the opinion of the RAMBAM (Hilchos Avos ha'Tum'ah 16:1) who writes that the reason "the Chachamim were Metaher Tum'ah in Reshus ha'Rabim" is "because all of the Sfeikos are only Isurei d'Rabanan" and he adds to see what he writes elsewhere (in Hilchos Isurei Bi'ah 18:17) where he writes that every Safek d'Oraisa is judged leniently, l'Kula, mid'Oraisa, and it is only mid'Rabanan that we are Machmir in cases of Safek d'Oraisa. Here, the Rabanan were lenient out of necessity, like the Vilna Ga'on explains.


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