1) MAY A "SHOMERES YAVAM" AND AN "ARUSAH" DRINK THE "MEI SOTAH"?
QUESTION: The Gemara records a dispute between Rebbi Yonasan and Rebbi Yoshiyah with regard to whether a Shomeres Yavam may drink the Mei Sotah. They agree that an Arusah may not drink the Mei Sotah, and they agree that the Yavam's Kinuy is effective to cause the Shomeres Yavam to lose her Kesuvah (and to prohibit her to the Yavam; see Rashi 23b, DH v'Lo Notlos). The Mishnah (23b) follows the opinion of Rebbi Yonasan who says that a Shomeres Yavam, like an Arusah, does not drink the Mei Sotah.
How is the view of Rebbi Yonasan and the Mishnah here to be reconciled with the Mishnah earlier (18b) which states that when the woman is given the Mei Sotah to drink, she must affirm an oath that not only did she not sin while married (during Nisu'in), but that she also did not sin while she was an Arusah or a Shomeres Yavam? The Mishnah there clearly implies that a woman does drink the Mei Sotah when her husband (or Yavam) accuses her of infidelity while she is a Shomeres Yavam or Arusah.
ANSWERS: The Gemara in Yevamos (58b) and Kidushin (27b) asks this question and offers three answers.
(a) The Gemara in Kidushin (27b) explains that the Mishnah earlier in Sotah (18b) does not refer to a case in which a man gives his wife the Mei Sotah to drink because of a Kinuy and Setirah which occur while she is a Shomeres Yavam or an Arusah. Rather, it refers to a case in which he gives his wife the Mei Sotah to drink because of a Kinuy and Setirah which occur after Nisu'in. The Mishnah teaches that once she is obligated to drink the Mei Sotah for a Kinuy and Setirah which occur after Nisu'in, she is required to swear that not only did she not sin during the Setirah for which she is accused, but that she also did not sin at any other time of her marriage, such as when she was an Arusah or Shomeres Yavam. The Gemara states there that this Mishnah is the source for the concept of "Gilgul Shevu'ah."
This seems to be the approach of the Gemara in Sotah (19b) as well. The Gemara infers from the Mishnah that a Shomeres Yavam who sinned with another man is prohibited to marry the Yavam from the fact that the Mishnah says that an additional clause is appended to the Shevu'ah ("Gilgul") only for the type of sin that would make her prohibited to her husband. The Gemara clearly understands the Mishnah in its most literal sense -- that the case of Shomeres Yavam in the Mishnah refers to an ordinary case of a Yevamah who is waiting to perform Yibum.
(b) However, Rav Sheshes and Rav Papa in Yevamos (58b) avoid this approach. Apparently, they find this approach unsatisfactory because it leads to one of two conclusions: it either supports the view of Rav Hamnuna that a Shomeres Yavam who sinned is prohibited to the Yavam, or it supports the view of Rebbi Akiva that Chayavei Lavim have the same status as Chayavei Kerisus and therefore a Shomeres Yavam who sinned is prohibited to the Yavam in the same way that an Eshes Ish who sinned is prohibited to her husband (as the Gemara says earlier in Sotah, 18b). The problem is that the Gemara itself rules against both of these opinions. It rules against Rav Hamnuna's opinion earlier in Sotah (18b; see, however, Tosfos there, DH Amrei, who rules contrary to the Gemara's conclusion), and it rules against Rebbi Akiva in Yevamos (49a).
Therefore, Rav Sheshes and Rav Papa suggest that the Mishnah (18b) does not refer to the case of "Gilgul Shevu'ah," but rather it refers to a case of Kinuy of a woman who is actually a Shomeres Yavam or an Arusah. Why is such a woman given the Mei Sotah to drink? Rav Papa in Yevamos suggests that the Mishnah means that the husband performed Kinuy while she was a Shomeres Yavam or Arusah, and the woman was Nisterah with the other man after she did Yibum or became married. The Kinuy performed when she was a Shomeres Yavam or Arusah is effective, as the Gemara here says. It is only the Setirah which must occur after she is fully married in order to obligate her to drink the Mei Sotah. (This is one way Rashi explains Rav Papa's answer in Yevamos. However, Rashi himself points out that this answer is tenuous because if the Setirah occurred after she was married, the Mishnah should not say that she "became a Sotah" while she was a Shomeres Yavam or Arusah. Rashi therefore offers another explanation there for Rav Papa's answer; see (c) below.)
(c) The Gemara in Yevamos suggests further that the Mishnah in Sotah (18b) means that an Arusah -- who had Kinuy and Setirah while she was an Arusah -- could be required to drink the Mei Sotah later, after she becomes married (as the Gemara here (25a) mentions).
However, this suggestion raises a new problem. If she was Nisterah while she was an Arusah, before the Nisu'in, the Shechivas ha'Bo'el (the sin with the adulterer) occurred before the husband lived with her. One of the prerequisites for giving the woman the Mei Sotah is that the Shechivas ha'Ba'al (relations with the husband) must precede the Shechivas ha'Bo'el. Why, then, should an Arusah be required to drink the Mei Sotah?
The Gemara in Yevamos answers (as it answers here in Sotah) that the Mishnah must be referring to a case in which the husband had relations with her before he married her ("b'Beis Chamihah"). However, this answer suffices to explain only why an Arusah drinks the Mei Sotah. An Arusah can become a Nesu'ah after the Setirah through Chupah (without Bi'ah with her husband), and thus she fulfills the requirement of "Menukah me'Avon." (In order to drink the Mei Sotah, the husband and the accused woman may not have relations after the Setirah.) This answer does not suffice to explain why a Shomeres Yavam drinks the Mei Sotah. If a Shomeres Yavam underwent Kinuy and Setirah before she did Yibum, there is no possible way for the Yavam to marry her and still remain "Menukeh me'Avon," since the only way to marry a Yevamah is through an act of Bi'ah of Yibum. Moreover, there is no way to fulfill the requirement that the Shechivas ha'Ba'al precede the Shechivas ha'Bo'el; how can the Yavam have relations with the Shomeres Yavam before the adulterer does? If he has relations with her, she will no longer be a Shomeres Yavam at the time of the Setirah, because by having relations with her he thereby consummates the marriage!
The Gemara in Yevamos suggests a number of answers to this question.
1. The Mishnah refers to a case in which the Yavam had relations with the Shomeres Yavam against her will, prior to the Setirah. Since the act of Bi'ah was against her will, it is not fully effective. Therefore, she is still considered a Shomeres Yavam (according to the view of Shmuel, who rules that an act of Bi'ah against her will is not Koneh her with regard to Terumah), and yet she is able to drink the Mei Sotah since the Yavam had relations with her (according to the view of Rebbi Yoshiyah, who rules that a Shomeres Yavam after Bi'ah against her will does drink the Mei Sotah, in contrast to the Mishnah on 23b).
2. The Gemara suggests further that the Mishnah follows the opinion of Beis Shamai who says that Ma'amar is Koneh a Shomeres Yavam, and -- after Ma'amar -- Bi'ah can no longer be Koneh her without Chupah (see Yevamos 29b, where the Gemara is in doubt about this point). In this case, the Yavam lived with her after Ma'amar, after which the adulterer was Nisterah with her.
3. RASHI in Yevamos suggests another explanation for the Gemara there, according to which the Gemara answers that it indeed is not necessary for the Yavam himself to live with the Yevamah before the adulterer. The Bi'ah which the original brother did with his wife (before he died) suffices to fulfill the condition that the "husband's Bi'ah precede the adulterer's," as the Yavam merely takes the place of his deceased brother.
One problem remains, however. Why does the Shomeres Yavam drink the Mei Sotah at all, if Rebbi Yonasan rules that a Shomeres Yavam does not drink the Mei Sotah? The Gemara could have answered that the Mishnah follows the opinion of Rebbi Yoshiyah that a Shomeres Yavam does drink the Mei Sotah. However, the Gemara answers that the Mishnah may follow even the opinion of Rebbi Yonasan, if it rules like Beis Shamai who says that Ma'amar is Koneh the Yevamah, and if Rebbi Yonasan agrees that after Ma'amar the Yevamah may drink the Mei Sotah. (Alternatively, the Mishnah may follow the opinion of Rebbi Yonasan if it rules like Shmuel who says that Bi'ah against her will is not Koneh the Yevamah for all matters, and if Rebbi Yonasan agrees that it is Koneh her with regard to drinking the Mei Sotah.)
Why, though, does Rashi write that the Bi'ah of the deceased brother is considered to be the Shechivas ha'Ba'al which precedes the Shechivas ha'Bo'el? This clearly contradicts the Gemara here (see TOSFOS to 58a, DH d'Kavasah). The answer is that Rashi understands that the dispute between the Sugyos with regard to whether the Mishnah (18b) is discussing a case of "Gilgul Shevu'ah" or an ordinary case of Kinuy revolves around this point. The Gemara in Yevamos maintains that the Mishnah is discussing an ordinary case of Kinuy, because it understands that the Bi'ah of the deceased husband is considered Shechivas ha'Ba'al. Accordingly, the Mishnah refers to the Kinuy of a Shomeres Yavam (as in (3) above). The Gemara here, however, and in Kidushin understands that the deceased husband's Bi'ah does not qualify as the Shechivas ha'Ba'al, and therefore the Gemara cannot explain that the Mishnah refers to an ordinary case of Kinuy while the woman was a Shomeres Yavam, since the requirement that the Shechivas ha'Ba'al precede the Shechivas ha'Bo'el cannot be fulfilled. Therefore, the Gemara must explain that the Mishnah discusses a case of "Gilgul Shevu'ah."