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Sotah, 25

1) THE HUSBAND'S "MECHILAH" OF HIS "KINUY"

QUESTION: The Gemara says that the husband can be Mochel his Kinuy to prevent his wife from becoming prohibited to him through Setirah with the other man after the Kinuy. The Mechilah of the Kinuy will make the Setirah into a normal situation of an Eshes Ish who did Yichud with another man, which does not prohibit her to her husband, because she is assumed to be innocent of sinning because of her Chezkas Kashrus.

One Amora maintains that the husband can be Mochel the Kinuy even after his wife did Setirah and thereby permit her to him retroactively. How, though, can the husband's Mechilah of his Kinuy possibly permit his wife after the Setirah? The reason why the woman becomes prohibited to him when she did Setirah after Kinuy (as opposed to doing Setirah without Kinuy) is because of the logical argument of "Raglayim l'Davar" (Nidah 3a): since the husband warned her not to seclude herself with this man and she will get in trouble if she does, she would not have secluded herself with him unless she had a strong Yetzer ha'Ra to sin with him, and thus it may be assumed that she sinned.

How does the Mechilah of the Kinuy remove this proof? She should still be prohibited to her husband because there is "Raglayim l'Davar" that she sinned, even if the husband is Mochel the Kinuy! (REBBI AKIVA EIGER)

ANSWERS:

(a) RABEINU CHAIM HA'LEVI answers that "Raglayim l'Davar" alone does not suffice to make a woman prohibited to her husband. The Chezkas Kashrus would overpower even the "Raglayim l'Davar" and permit her if not for the special Gezeiras ha'Kasuv of the Torah that says that when a woman is Nisterah after Kinuy, she becomes prohibited to her husband. Therefore, when the husband is Mochel the Kinuy, she is no longer prohibited to him (see Insights to 18:1).

(b) Perhaps the Mechilah of the Kinuy can actually weaken the proof of "Raglayim l'Davar." The reason for this is because if the husband's Mechilah of the Kinuy is effective, we may assume that the woman might have known in advance that she would be able to persuade her husband to be Mochel the Kinuy, permitting her to remain married to him. Therefore, she was not risking so much by secluding herself with another man after the Kinuy, since the Kinuy did not scare her away from him to such an extent, and therefore there is no "Raglayim l'Davar" (i.e. she might have secluded herself without sinning).

This is comparable to Kinuy done without witnesses, which the Gemara (2b) implies cannot make her prohibited to her husband even though he and she both know that there was a Kinuy. (See the TESHUVOS SHA'AGAS ARYEH in Hosafah 1.) Why should she be permitted to him if she was Nisterah after such a Kinuy? She should still be prohibited because of "Raglayim l'Davar," since they both know that there was a Kinuy! The answer is that she was not afraid to seclude herself after such a Kinuy since she knew that the consequences would not be so severe, for she could just deny that there ever was a Kinuy and no one will be able to disprove her.

(c) Alternatively, if the husband was Mochel the Kinuy, there is a Chazakah that he investigated the matter and determined that his wife did not sin with another man, since, otherwise, a husband normally does not desire to return to an unfaithful wife and he would not have been Mochel the Kinuy. (This Chazakah is similar to the Chazakah of "Ishah Daika u'Minasva" (88a) which tells us that if a woman remarries based on the testimony of a single witness who says that her first husband died, it is assumed that she thoroughly investigated the matter and knows that the witness is telling the truth.) This Chazakah offsets the proof of "Raglayim l'Davar" that tells us that she sinned, and therefore she is permitted to her husband. (M. Kornfeld)

25b