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Sotah, 27

27b

OPINIONS: The Mishnah teaches that jut like the Sotah is prohibited to her husband, she is prohibited to the suspected adulterer ("Bo'el"). Rebbi Akiva learns this from the "Vav" of the word "v'Nitma'ah" (Bamidbar 5:29). Rebbi learns this from the fact that the Torah repeats the word "Nitma'ah" (see Gemara on 29a).

Why does the Mishnah compare the woman's prohibition to the Bo'el with her prohibition to her husband ("just like she is prohibited to her husband, she is prohibited to the Bo'el")? The Mishnah could simply have stated that "the woman is prohibited to the husband and to the Bo'el!" Why does it compare them?

Does the Mishnah mean to imply that the reason for the prohibition to the Bo'el is because he caused her to become prohibited to her husband and therefore he deserves to become prohibited to her as well (so that he should not be a "Chotei Niskar," a sinner who gains through his sin), or does the Mishnah simply mean that the same type of circumstances which can create a prohibition to the husband are severe enough to create a prohibition to the Bo'el as well?

The MISHNEH L'MELECH (Hilchos Sotah 2:12) discusses this at length. He points out that there are a number of practical differences between these two approaches. For example, what would be the Halachah if the woman has relations with the Bo'el b'Shogeg (she thought he was her husband) or b'Ones (she was forced), while the Bo'el acted b'Mezid (intentionally)? We know that the wife of a Yisrael is permitted to her husband if she is Shogeges or Anusah (see Gemara end of 28a). Will she then be permitted to the Bo'el as well (after her husband divorces her or dies)? According to the first way of understanding the prohibition to the Bo'el, she should be permitted to him because he did not succeed in prohibiting her to her husband. In contrast, according to the second approach, she should be prohibited to the Bo'el because the woman's status to her husband has no bearing on her status to the Bo'el. The same question can be asked in the opposite situation, where the woman sinned intentionally, b'Mezid, and becomes prohibited to her husband, while the Bo'el did it b'Shogeg or b'Ones. According to the first approach, she might be prohibited to him, since the Bo'el's act causes her to become prohibited to her husband, while according to the second approach, she should be permitted to him because his sin was not so severe.

(a) The Gemara in Kesuvos (9a) asks how David ha'Melech was permitted to marry Bas Sheva. Since a Sotah is prohibited to the Bo'el, she should have been prohibited to David ha'Melech. The Gemara first answers that Bas Sheva was an Anusah since she could not refuse the king, and an Anusah is not prohibited to the Bo'el. The Gemara then answers that she was permitted to him for a different reason -- Uriyah gave her a conditional document of divorce when he went to war, and thus she was not a Sotah at all.

The Mishneh l'Melech points out that it is clear that the first answer of the Gemara supports the first explanation proposed above: the woman is only prohibited to the Bo'el if he caused her to become prohibited to her husband. Therefore, if the Bo'el is Mezid and the woman is Anusah, she is permitted to the Bo'el. Although it is possible that the second answer of the Gemara is rejecting that view, from TOSFOS in Shabbos (56a, DH Lekuchin) it seems that both answers in the Gemara agree with this view.

We can bring further support for this view from TOSFOS in Yevamos (3b, DH l'Fi). The Gemara there says that even though the Tzarah of a Sotah does not perform Yibum or Chalitzah when their husband dies, she is not included in the Mishnah's list in the beginning of Yevamos because no case can be construed where she would have a "Tzaras Tzarah" (this is because when a woman is a Sotah, none of the brothers of the deceased husband are permitted to her or to her Tzaros). Tosfos asks that we should be able to find a case of "Tzaras Tzarah" in a situation where the Sotah later married the *brother* of the Bo'el, and upon his death her Tzarah (the other wife of the Bo'el's brother) did Yibum with another brother of the Bo'el. That would make the second brother's other wife a "Tzaras Tzarah!"

Tosfos answers that no case can be construed where the husband will be prohibited to the Tzaras Tzarah of the Sotah. Since the prohibition to the Bo'el is connected to the prohibition to the husband, the "Tzaras Tzarah" will not be prohibited to the *Bo'el* either.

Tosfos seems to be saying that the reason for the prohibition to the Bo'el is because of the prohibition that he caused for the husband, and therefore we do not prohibit the Bo'el in any manner in which he did not prohibit the husband (like the KOVETZ HE'OROS says in Yevamos 12:6). How, though, can this be reconciled with the Gemara earlier (25a) that says that a man who is prohibited to his wife because of an Isur Lav may do Kinuy in order to prohibit her to the Bo'el when she does Stirah? Since she is already prohibited to her husband, the Bo'el did not create that Isur, so why should the Bo'el be prohibited to her?

The answer is that even in such a case, the Bo'el *did* make the woman prohibited to her husband, even though she was prohibited to her husband because of a pre-existing Isur. The Gemara in Yevamos (32b) teaches that even though there is a rule that "Ein Isur Chal Al Isur" -- one Isur cannot take effect when there is already an Isur in effect, nevertheless the second Isur does amplify the prohibition; it does not take effect only with regard to punishment (such as requiring the transgressor to receive an additional set of Malkus). Hence, since the Bo'el did create an Isur, he becomes prohibited to the woman.

(b) However, TOSFOS here (DH k'Shem) cites a Yerushalmi that says that if the Bo'el sinned intentionally, b'Mezid and the woman sinned unintentionally, b'Shogeg, then although she is permitted to her husband, the Bo'el still becomes prohibited to her.

The Yerushalmi apparently maintains that the Isur of the Bo'el is independent of the fact that he caused the wife to become prohibited to her husband.

However, the Yerushalmi continues and says that even if she sins b'Mezid and the Bo'el sins b'Shogeg, the Bo'el becomes prohibited to her, since his act made her prohibited to her husband!

Apparently, the Yerushalmi maintains that there are two reasons for why the Bo'el becomes prohibited to the woman: it is either because he prohibited her to her husband (like the previous opinion), or -- even if he did not prohibit her to her husband -- since he transgressed a serious violation of the Isur of Eshes Ish he becomes Asur to her because of the Aveirah that he did.

Regarding David ha'Melech, the Yerushalmi must learn that the reason why David was permitted to Bas Sheva was because of the Get that she received when her husband to war.

HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv) cites the CHASAM SOFER (Even ha'Ezer 26) who suggests that the question of the Mishneh l'Melech might depend on the Machlokes between Rebbi Yehoshua and Rebbi Akiva in our Mishnah. Rebbi Akiva -- who derives the Isur to the Bo'el from the letter "Vav" of "v'Nitma'ah" -- might hold that the Isur to the Bo'el is corollary to the Isur to the husband (the Isur to husband is the subject of the word "Nitma'ah" to which the "Vav" is appended). Rebbi Yehoshua -- who argues with Rebbi Akiva and learns the two Isurim from two separate words -- might rule like the Yerushalmi that the Isur to the Bo'el can exist even when there is no Isur to the husband.

Another question that arises regarding the Isur to the Bo'el is whether or not a man who rapes the wife of a Kohen becomes prohibited to her, since the act causes her to become prohibited to her husband the Kohen (the Gemara in Yevamos 56b explains that "v'Nitma'ah," the Isur Tum'ah, applies to the wife of a Kohen even when it was done b'Ones). According to the Yerushalmi that says that even one who lives with the wife of a Yisrael (where the woman was Shogeges) becomes prohibited to her, it is obvious that one who rapes the wife of a Kohen becomes prohibited to her. According to the Bavli, though, that permits the Bo'el to the wife of a Yisrael whom he raped, what is the Halachah in the case of the wife of a Kohen? Do we say that since he prohibited her to her husband he should be prohibited to her, or do we say that the Derashah that teaches us that the Bo'el is prohibited applies only to someone who prohibits a woman to her husband as a result of her sin being willful and intentional?

The Mishneh l'Melech (ibid.) discusses this question. He cites the CHELKAS MECHOKEK (EH 11:3) who prohibits the Bo'el to the wife of a Kohen whom he raped. The Mishneh l'Melech cites support for this ruling from the words of TOSFOS in Yevamos (35a, end of DH Af Al Pi).