1) WHY A WOMAN LOSES HER KESUVAH FOR MARRYING A MAN TO WHOM SHE IS ASUR MID'RABANAN
Rebbi disagrees and says that she loses her Kesuvah for a different reason. When a woman marries a man to whom she is prohibited mid'Rabanan, the Rabanan decreed that she does not receive her Kesuvah as a way of strengthening their Isur d'Rabanan. They were not stringent in the case of an Isur d'Oraisa, because an Isur d'Oraisa does not need to be strengthened. According to Rebbi, it is irrelevant who initiated the courtship.
The Gemara attempts to find a case in which a woman marries a man to whom she is forbidden by an Isur d'Oraisa, but who does not disqualify her or her children from Kehunah (in which case she does not refrain from initiating the courtship). Such a case will be the practical difference between the reason of Rebbi Shimon ben Elazar and the reason of Rebbi.
Rav Ashi says that such a situation exists in the case of "Machzir Safek Sotah," in which a man lives with his wife even though she is forbidden to him because she is a Safek Sotah (she was accused of adultery but has not yet undergone the process of the Mei Sotah). The woman is forbidden to her husband mid'Oraisa but she has nothing to lose by remarrying him, and thus she initiates the courtship. According to Rebbi Shimon ben Elazar, she loses her Kesuvah even though the Isur is an Isur d'Oraisa. According to Rebbi, she does not lose her Kesuvah.
The Gemara rejects this suggestion because according to one Tana, Rebbi Masya ben Charash, she does stand to lose by remarrying him and thus she does not initiate the courtship. (Consequently, according to both Rebbi Shimon ben Elazar and Rebbi, she does not lose her Kesuvah.) Rebbi Masya ben Charash maintains that if the husband of a woman who is a Safek Sotah lives with his wife, she becomes a Zonah and is disqualified from Kehunah and may not eat Terumah.
Mar bar Rav Ashi concludes that the practical difference between Rebbi and Rebbi Shimon ben Elazar exists in the case of a Sotah Vadai, a woman who definitely committed adultery. She is forbidden to her husband by an Isur d'Oraisa, but she has nothing to lose by returning to him because she already has the status of a Zonah and is disqualified from Kehunah and may not eat Terumah. Hence, she will initiate the courtship. According to Rebbi Shimon ben Elazar she loses her Kesuvah, and according to Rebbi she does not lose her Kesuvah.
Why does the Gemara assert that in the case of a Safek Sotah, the woman stands to lose by returning to her husband? A Safek Sotah, like a definite Sotah, is also forbidden from marrying a Kohen and from eating Terumah. RASHI (DH Ha Lo Margela Lei) explains that a Safek Sotah may prove that she is innocent by drinking the Mei Sotah and thereby become permitted to her husband (and to Kohanim and to Terumah). If, however, she lives with her husband in her state of Safek Sotah before she drinks the Mei Sotah, she will become permanently disqualified (as a Zonah) from marrying Kohanim, according to Rebbi Masya ben Charash.
Rashi's explanation is unclear and leaves a number of questions unanswered.
(a) How does Rashi understand Rav Ashi's case of a Safek Sotah who returns to live with her husband? Does he understand that the case involves a Safek Sotah who was divorced from her husband and now returns to him? If this is the case, why does Rashi write that she does not want to live with her husband because she will not be able to drink the Mei Sotah? Once she is divorced she cannot drink the Mei Sotah anyway, regardless of whether she returns to her husband or not (as the Gemara on 95a implies). She has nothing to lose by remarrying her husband, and thus she will initiate the courtship and she should lose her Kesuvah according to Rebbi Shimon ben Elazar. (TOSFOS)
(See, however, Insights to Yevamos 95:1 with regard to how Rashi learns the Sugya there. Even if the Gemara later provides no proof that a Safek Sotah whose husband divorced her is not permitted to return to her husband after she drinks the Mei Sotah, there is logical basis for this assertion. The Torah discusses only giving Mei Sotah to one's wife, not to one's divorcee.)
Moreover, why does Rashi write that the woman wants to become permitted to Kehunah and to eat Terumah through drinking the Mei Sotah and proving her innocence? If she was divorced from her husband, she already is disqualified from Kehunah because she is a Gerushah.
(b) On the other hand, if Rashi understands that Rav Ashi's case refers to a Safek Sotah who was not divorced, and "Machzir Safek Sotah" does not mean that her husband remarries her after he divorces her but that he reunites with her after she has become a Safek Sotah, another set of questions arises:
1. What Kesuvah is there to speak of in such a case? The Safek Sotah receives no Kesuvah! If she reunites with her husband and lives with him, she may not drink the Mei Sotah because her husband is not "Menukeh me'Avon" (as the Gemara says on 58a). Since she cannot drink the Mei Sotah, she loses her Kesuvah. How, then, can Rebbi maintain that in such a case she does receive her Kesuvah? (RASHBA, RITVA)
2. Why does the Gemara say that only according to Rebbi Masya ben Charash the Safek Sotah will not initiate the relationship because she stands to lose? Even according to those who disagree with Rebbi Masya, the Safek Sotah will not initiate the relationship because she stands to lose her husband by becoming prohibited to him! Although it is true that she will not become disqualified from Kehunah through the relationship, having a relationship with her husband disqualifies her from drinking the Mei Sotah, and once she becomes a Safek Sotah who cannot drink the Mei Sotah she must separate from her husband. (ARUCH LA'NER, NEHOR SHRAGA)
Moreover, if she lives with her husband she will become disqualified from Kehunah and from eating Terumah according to all Tana'im and not only according to Rebbi Masya ben Charash, because she is a Safek Sotah who is unable to drink the Mei Sotah. If she would refrain from living with him and instead drink the Mei Sotah, she would have a chance of remaining permitted to marry a Kohen and to eat Terumah. (TOSFOS)
3. If the Safek Sotah indeed may no longer drink the Mei Sotah when her husband divorces her and then remarries her, and as a result she does not stand to lose anything by remarrying him because she is disqualified from Kehunah anyway (as a Gerushah), why does Mar bar Rav Ashi explain that the practical difference between Rebbi Shimon ben Elazar and Rebbi is in a case of a Sotah Vadai? He could say instead that the difference between them is in a case of a Safek Sotah who was divorced and then remarried her husband! In such a case, Rebbi would maintain that she receives her Kesuvah, and Rebbi Shimon ben Elazar would maintain that she does not receive her Kesuvah because she initiates the relationship since she has nothing to lose. (RAMBAN)
4. Finally, why does the Gemara assume that according to Rebbi Masya ben Charash, the Safek Sotah will not initiate the relationship because returning to her husband will disqualify her from Kehunah, and if she does not return to her husband she will not become a Zonah and can become permitted to Kehunah through drinking the Mei Sotah? This assumption is true only if she actually is free of sin; drinking the Mei Sotah will exonerate her of all suspicion. However, perhaps she did sin and thus does not want to drink the Mei Sotah. In that case, she will initiate the relationship with her husband because she does not stand to lose anything (on the contrary, she stands to gain by not having to drink the Mei Sotah). Even Rebbi Masya ben Charash should agree that she might initiate the relationship, and thus she should lose her Kesuvah even according to Rebbi Shimon ben Elazar. (RASHBA)
Although she is already forbidden to Kohanim, to Terumah, and to her husband, and she may not drink the Mei Sotah, she still is afraid to initiate the relationship according to Rebbi Masya ben Charash for the simple reason that through this relationship she will acquire the title of "Zonah." No woman wants the shameful title of "Zonah," as there is a type of Zonah (one who willfully committed Z'nus) who is forbidden even to a Yisrael.
While this approach sufficiently explains the Sugya, it does not resolve the difficulties with Rashi's approach.
(b) The RAMBAN and other Rishonim explain that Rashi understands that "Machzir Safek Sotah" does not mean that she was divorced and then remarried, but that her husband "reunited" with her (without having divorced her) after she became a Safek Sotah.
1. The Ramban answers the first question (that she already forfeited her Kesuvah by not being able to drink the Mei Sotah) by explaining that her husband writes for her a new Kesuvah when he reunites with her. According to Rebbi Shimon ben Elazar, she will lose that new Kesuvah since she is the one who initiates the relationship.
The RITVA suggests that perhaps the Halachah is that when a man lives with his wife who is a Safek Sotah, she indeed does not lose her original Kesuvah even though she may not drink the Mei Sotah. She does not lose her Kesuvah because it is her husband who is to blame for her inability to drink the Mei Sotah, since he is not "Menukeh me'Avon."
2. A possible answer to the second question (that even according to those who disagree with Rebbi Masya ben Charash, the Safek Sotah will not initiate the relationship because she will thereby become prohibited to her husband who will not be "Menukeh me'Avon"), perhaps Rashi maintains that a Safek Sotah is prohibited to her husband only out of doubt, mi'Safek, due to the possibility that she actually sinned. If she knows that she did not sin and that she is not truly prohibited to her husband, she does not care if she will not be able to drink the Mei Sotah. Hence, she will initiate the relationship and reunite with her husband. (See Tosfos to 11a, DH Tzaras Sotah.)
However, she still should not want the union because people will think that she is prohibited to her husband even though she knows that she really is permitted to him (Aruch la'Ner). Moreover, she should not want to initiate the relationship because doing so will disqualify her from Kehunah and from Terumah (since she will not be able to drink the Mei Sotah to establish her innocence), and no Kohen will want to marry her.
Perhaps another approach may be suggested to resolve these questions, as well as the question of why she receives a Kesuvah after she returns to live with her husband. Rashi follows his own view as expressed elsewhere (58a, DH Amar Rav Papa; see also Insights to Yevamos 95:1), where he writes that there is a Tana who does not agree with the law of "Menukeh me'Avon." That Tana maintains that when a man is not "Menukeh me'Avon" (he lived with his wife after she became a Safek Sotah) his wife may drink the Mei Sotah. Rashi may understand that the Gemara here follows the view of that Tana, and that is why she may drink the Mei Sotah -- and receive her Kesuvah -- even after she lives with her husband, and thus she has nothing to lose by reuniting with him. (The Gemara could have challenged this case by citing the other Tana who maintains that she may not drink the Mei Sotah when her husband is not "Menukeh me'Avon," but the Gemara asks a different question instead: according to Rebbi Masya ben Charash, she will not initiate the relationship because of the Isur Zonah that it will create for her.)
3. Why does the Gemara conclude that the only difference between Rebbi Shimon ben Elazar and Rebbi is the case of a Sotah Vadai, when the case of a Safek Sotah who was divorced (she is forbidden mid'Oraisa to return to her husband, but since she may no longer drink the Mei Sotah she is already disqualified from Kehunah and therefore she will initiate the relationship) is also a practical difference between them? The RAMBAN answers that the Gemara indeed could have mentioned that case, but it sufficed to mention one case.
A simple answer to this question may be suggested based on Rashi's opinion elsewhere. Rashi here (DH Sotah Vadai) points out that the case in which Rebbi Shimon ben Elazar and Rebbi disagree must be consistent with the opinion of Rebbi Akiva. Rebbi Akiva maintains that the child from a union of an Isur Lav is a Mamzer. The reason why the Gemara considers the cases of Safek Sotah and Sotah Vadai is that even Rebbi Akiva agrees that a child born from the Isur Lav of those unions is not a Mamzer, as the Gemara says earlier (49b). When the Gemara (49b) teaches that the child of a Sotah is not a Mamzer, Rashi explains that it is because Kidushin remains in effect between a man and his wife who is a Sotah even after she sinned. The original Kidushin is not uprooted, as is evident from the fact that the Torah requires that the husband give her a Get. Since the Kidushin is not discontinued, the child from that union is not a Mamzer.
TOSFOS in Kidushin (68a, DH ha'Kol Modim) writes that according to Rashi's explanation, only when the child is born to the Sotah from her original marriage to her husband is the child not a Mamzer. If, however, the husband divorces the Sotah and then remarries her, the Kidushin does not take effect and the child from that union is a Mamzer. Tosfos refutes this assertion based on the Gemara here which implies that when one remarries his wife who is a Sotah after he divorces her, even Rebbi Akiva agrees that the child is not a Mamzer.
Rashi, however, avoids that question. When the Gemara refers to "returning" a Safek Sotah, it does not mean that the husband divorced her and remarries her, but rather it means that he merely reunites with her. (Similarly, when the Gemara refers to "returning" a Sotah Vadai, it means reuniting with a Sotah Vadai who was never divorced in the first place, as implied by Rashi here.) Therefore, according to Rashi, there is good reason for the Gemara not to suggest the case of a Sotah who was divorced and then remarried, for in such a case the child would be a Mamzer according to Rebbi Akiva, and thus she certainly will not initiate the relationship.
4. The RITVA addresses the fourth question, that according to Rebbi Masya ben Charash perhaps she will initiate the relationship in a case in which she is guilty of sin. The Ritva answers that the very fact that the husband did not send her away but remained with her shows that he investigated the matter and found that his wife was not disloyal. Thus, the likelihood that she was unfaithful is negligible and is not taken into consideration.
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