Today we will see a Tosfot on daf 58a, however, in order to understand it, we will begin with the mishna on daf 56 and the gemara on daf 57a.
The mishna on daf 56 speaks about a special case which causes the daughter of a cohen to become disqualified from eating teruma, and a tannaitic dispute regarding this disqualification:
מתני’. אלמנה לכהן גדול, גרושה וחלוצה לכהן הדיוט, מן האירוסין – לא יאכלו בתרומה, רבי אלעזר ורבי שמעון מכשירין. נתארמלו או נתגרשו, מן הנשואין – פסולות, מן האירוסין – כשרות.
Rashi helps us to understand the mishna:
מן האירוסין לא יאכלו בתרומה – משעה שנתקדשו לאלו קדושי עבירה נפסלה מלאכול בתרומה דבי נשא אם בת כהן היא.
ר’ אלעזר ור”ש מכשירין – עד שתבעל לו ותעשה חללה כדכתיב לא יחלל שני חלולין אחד לה ואחד לזרעה.
נתארמלו או נתגרשו – מן הכהנים הללו.
Rashi explains that here the mishna is speaking about the daughter of a cohen who has a flaw which prevents her from marrying a cohen gadol or regular cohen. Because she is the daughter of a cohen, she can eat teruma, however, if she sleeps with a man who is forbidden for her to marry, she will become a chalala, and because of this, will be disqualified from eating teruma.
The dispute between Rabbi Elazar and Rabbi Shimon and the tanna kamma is regarding the question of whether betrothal to such a man will already disqualify her from eating teruma, or if it is only the marital relations which turn her into a chalala which disqualifies her from eating teruma.
Rabbi Elazar and Rabbi Shimon’s opinion is more logical. The woman becomes a chalala through forbidden relations and therefore, only from that moment does she become disqualified from eating teruma. The opinion which requires clarification is that of the tanna kamma. According to this opinion, forbidden betrothal, even not through sexual relations but rather with money or a document can disqualify her from eating teruma. At first glance, it seems that this is a surprising expansion of the law of the chalala, which at its core, is a law which is relevant where there were forbidden sexual relations, yet here, it is specifically a legal action which enacts the disqualification according to the tanna kamma.
The gemara on daf 57 brings an amoraic dispute regarding a similar topic:
איתמר, רב אמר: יש חופה לפסולות, ושמואל אמר: אין חופה לפסולות. אמר שמואל: ומודה לי אבא, בתינוקת פחותה מבת שלש שנים ויום אחד, הואיל ואין לה ביאה אין לה חופה.
At first glance, it seems that the dispute between Rav and Shmuel is parallel to the dispute in our mishna. Rav who says that there is significance to the chuppa ritual even when the union is forbidden – יש חופה לפסולות, is like the tanna kamma who says that forbidden kiddushin disqualifies the daughter of the cohen from eating teruma. Shmuel who says that there is no significance to the chuppa ritual when the union is forbidden – אין חופה לפסולות, seems to be like Rabbi Elazar and Rabbi Shimon. However, Rashi here emphasizes that here the dispute is different. We will examine his words:
רש”י מסכת יבמות דף נז עמוד ב
יש חופה לפסולות – כה”ג שהכניס אלמנה בת כהן לחופה ולא בא עליה ומעיקרא נמי לא קידשה אפילו הכי פסלה מתרומה דבי נשא דחופה ככניסת בעילה דמיא.
Rashi explains that here, it is speaking about chuppa which was not preceded by kiddushin. The dispute between Rav and Shmuel is regarding the question of whether in addition to kiddushin through money, or a document, or marital relations, between relations of kiddushin and relations of marriage, there is another practice which has the power to disqualify her – chuppa. We will note that these words of Rashi led to a lively debate among the rishonim, and from a quick glance at the long Tosfot on this page which mentions this, we will understand that this is a heavy topic of discussion regarding what is a chuppa, what is its status, and if it has its own power, even when there was no kiddushin which preceded it. We will focus on Rashi’s words as background for the next sugiya. We will continue in his words and ask – how can chuppa, which is not kiddushin, be the cause of her disqualification; there were no marital relations and no kiddushin? Rashi continues to explain:
אף אנן נמי תנינא – דאין ביאתה פוסלתה וכיון דאין ביאתה פוסלתה כ”ש דאין חופתה פוסלתה דהא חשיבות חופה אינה אלא משום שהיא קרובה לביאה והיכא דביאה לא חשיבא כל שכן חופה.
Rashi explains the logic behind the opinion of Rav, which is strengthened by the statement of Rava – chuppa is like marital relations, and therefore it functions as a parallel to it in his opinion.
On daf 58, the gemara continues to deliberate how to determine the outcome of the dispute between Rav and Shmuel. It brings an interesting proof of Rav Sheshet for the opinion of Rav, that יש חופה לפסולות:
אמר רב עמרם: הא מילתא אמר לן רב ששת, ואנהרינהו לעיינין ממתניתין – יש חופה לפסולות,
ותנא תונא: אמן – שלא שטיתי ארוסה ונשואה, שומרת יבם וכנוסה; האי ארוסה היכי דמי? אילימא דקני לה כשהיא ארוסה וקא משקה לה כשהיא ארוסה, ארוסה בת משתיא היא? והא תנן: ארוסה ושומרת יבם – לא שותות ולא נוטלות כתובה! אלא דקני לה כשהיא ארוסה, ואיסתתרה וקמשקה לה כשהיא נשואה, מי בדקי לה מיא? והתניא: ונקה האיש מעון, בזמן שהאיש מנוקה מעון – המים בודקין את אשתו, אין האיש מנוקה מעון – אין המים בודקין את אשתו! אלא דקני לה כשהיא ארוסה, ואיסתתרה ונכנסה לחופה ולא נבעלה, ושמע מינה: יש חופה לפסולות.
Rav Sheshet proves to Rav Amram from a mishna in Sotah that יש חופה לפסולות. We will first lay out a few basic rules with regards to the laws of Sotah before going into the proof of Rav Sheshet. In order for a man to be able to make his wife perform the oath of the Sotah, it needs to be preceded by “קינוי” and “סתירה”.
“קינוי” is when the man, in front of two witnesses warns his wife not to seclude herself with a specific man of whom he is suspicious. “סתירה” is when the wife does seclude herself with the man, in front of two witnesses. After these two events, the husband can bring his wife to the Beit Hamikdash for the oath of the Sotah and the drinking of the water.
The mishna in Masechet Sotah describes the content of the oath of the Sotah. The woman answers “אמן אמן” to the oath that the cohen makes. The mishna explains the meaning of the double “אמן”:
משנה מסכת סוטה פרק ב משנה ה
על מה היא אומרת אמן אמן אמן על האלה אמן על השבועה אמן מאיש זה אמן מאיש אחר אמן שלא שטיתי ארוסה ונשואה ושומרת יבם וכנוסה אמן שלא נטמאתי ואם נטמאתי יבאו בי רבי מאיר אומר אמן שלא נטמאתי אמן שלא אטמא:
From the mishna we see that the woman makes an oath regarding many possible scenarios of seclusion. One of them is seclusion during the time when she was betrothed. Rav Yosef raises a difficulty on this in our sugiya and asks – how could there be a situation where a betrothed woman transgresses קינוי and סתירה, when we have a different mishna in Masechet Sotah which says that a betrothed woman does not drink the Sotah water:
משנה מסכת סוטה פרק ד משנה א
ארוסה ושומרת יבם לא שותות ולא נוטלות כתובה שנאמר אשר תשטה אשה תחת אישה פרט לארוסה ושומרת יבם
We must therefore understand that this is talking about a situation where the woman secluded herself with the man when she was betrothed, but was married in the interim, and only then does she drink the water. However, this leads to another problem. There is an important rule when it comes to giving her the Sotah water. In order for the water to work, it is not enough that there was קינוי and סתירה, but the husband himself must also be clean of sin, meaning that he himself did not have any forbidden relations. This creates a problem: a man who knows that his fiancee secluded herself with this man, is forbidden to have relations with her, and so automatically cannot marry her. Therefore there cannot be a situation where the woman transgressed קינוי and סתירה while she was betrothed and then subsequently got married, when her husband is clean of sin. Their marital relations constitute a sin for him, as she is forbidden to him once she secludes herself!
In light of this, Rav Sheshet suggests that there could be a situation where the woman is married, yet did not consummate the marriage – when she is married through the mechanism of chuppa. Rav Sheshet claims that the seeming contradiction between the mishnayot reveals that Rav is correct – יש חופה לפסולות, and therefore there is no contradiction between the mishnayot. The chuppa is what creates this rare scenario of a betrothed woman who secludes herself with another man and yet drinks the Sotah water.
We will mention that the continuation of the gemara rejects the proof of Rav Sheshet for various reasons, and solves the contradiction between the mishnayot in a different way. Rav Nachman Bar Yitzchak claims that here we are not dealing with different scenarios of giving her the Sotah water, but rather with the classic Sotah, where the קינוי and סתירה happened after the marriage, however, once we make her swear about events which happened after the marriage, we can attach to this an oath about events which happened when she was only betrothed. Indeed, the gemara in Masechet Sotah, in explaining this mishna, brings the words of Rav Nachman bar Yitzchak and derives the law regarding adding another oath from the section in the Torah about the Sotah. We will stop our reading of the simple meaning of the gemara here and will move on to Tosfot who discuss the suggestion of Rav Sheshet, and clarify the details of the law that the husband needs to be clean of sin. We will begin with the difficulty which Tosfot raise on daf 58a:
ונקה האיש מעון – וא”ת ונוקמה כגון שבא עליה בשוגג וכשבא עליה לא ידע עדיין שנסתרה דכי האי גוונא חשיב מנוקה מעון דהא כי מוקי לה ע”י גלגול לא חשיב אין מנוקה מעון אם זינתה באירוסין
Tosfot raise a difficulty on Rav Sheshet. Rav Sheshet assumes that without the solution of חופה לפסולות, there can never be a situation where a woman secluded herself with the man when she was betrothed, and then her husband had relations with her as an act of marriage. This is because these relations are the type of sin which will prevent the husband from being able to give his wife the water. Tosfot suggest the following chronological progression: 1. Reuven betrothes Dina 2. In front of witnesses, Reuven warns Dina not to seclude herself with a certain man 3. Dina secludes herself with him in front of witnesses 4. Reuven marries Dina 5. After the marriage, the witnesses come and testify as to the seclusion.
Here, Tosfot explain, we have a situation where the man marries the woman without knowledge of the seclusion, and therefore, their marital relations were not in sin as he was not aware that she was forbidden to him. It seems that even a case of relations such as these, where the sin was unintentional, will be considered clean of sin – can it be that we would claim that this man, who did not know that his wife secluded herself with another man during their engagement, has sinned?! The second solution in the sugiya, which speaks of adding another oath proves that the man who did not know that his wife secluded herself during their engagement is not considered to have sinned. If so, there is no proof that יש חופה לפסולות, as the contradiction between the mishnayot can be solved in a different way – as we have described – unintentional sinful relations. This difficulty raised by Tosfot is a strong one. We will examine their solution:
וי”ל דהכא כיון דבשעת השקאה יודע שבא עליה באיסור אפילו בא עליה שוגג לא חשיב מנוקה מעון אבל על ידי גלגול שאינו יודע בשעת השקאה מנוקה מעון קרינן ביה.
Tosfot make two claims: 1. There is a difference between adding another oath and the situation described above. 2. Even unintentional sinful relations is considered a sin once he is aware of it.
We will detail each of these claims:
- The difference between adding another oath and the situation where the witnesses as to the seclusion come after the marriage, is a difference between the man’s awareness of the fact that he unintentionally had sinful relations, and his lack of awareness of this. In the case where the man gives his wife the water because of קינוי וסתירה which happened after their marriage, it is likely that there was no problematic incident during the engagement period. There are no witnesses who report a problematic incident during this time, and therefore we make her take the oath. When the man brings his wife to the Beit Hamikdash, to the best of his knowledge, he is indeed clean or sin, even unintentional sin. In contrast, in the case where the witnesses come after the marriage – these witnesses testify with certainty as to the fact that the woman secluded herself during the engagement period, which means that the the husband knows with certainty that his relations with her were forbidden, though unintentionally so, but as a result of this, he is not able to bring her to drink the water as he is not clean of sin.
- Tosfot’s big chiddush is that the man who gives his wife to drink the Sotah water needs to be completely clean of sin, as far as his awareness reaches. Even unintentional sinful relations prevent him from turning to the method of clarifying what his wife did using the Sotah water. This is a double chiddush –
first, it further limits his ability to use the water, and second, is uses reason to arrive at the conclusion that a man who wishes to give his wife to drink from the water needs to first confront his own sexual behavior, and even if there was something over which he had no control, he does not have the ability to make her drink. This undermining of his ability to make her drink strongly reflects the understanding that sexual sins can also happen unintentionally, and this moves the couple from the route of using the legal system to solve their problems to another route which requires of them to clarify their marital relationship, without using the harsh Sotah ritual.
We have seen a complicated sugiya that is built from a number of stages:
- The dispute in the mishna about the disqualification of the daughter of the cohen from eating teruma as a result of kiddushin
- The dispute between Rav and Shmuel regarding chuppa without kiddushin – can chuppa take the place of marital relations – according to the explanation of Rashi
- The contradiction between the mishnayot in Sotah which was solved by Rav Sheshet, as a proof for Rav that יש חופה לפסולות
- A different solution to the contradiction – adding another oath
We emphasized Rashi’s reading of the sugiya without examining his words. We moved on to discuss Tosfot. Tosfot introduced the idea that even unintentional sinful relations is considered a sin, and this prevents the husband from making his wife drink the Sotah water. We claimed that this reflects the limiting of this route and emphasizes an alternative route where this couple, who has issues in the sexual realm, even unintentional, must deal with this internally, without the intervention of the Mikdash.
Translated by Daphna Ansel-Nizan