1) COMPARING THE LAWS OF TUM'AH TO THE LAWS OF SOTAH
QUESTION: The Gemara writes that two sources are needed to teach the law that a Safek Tum'ah in the case of a "Davar she'Ein Bo Da'as Lisha'el" is Tahor: the verse, "veha'Basar Asher Yiga b'Chol Tamei" (Vayikra 7:19), which teaches that only a Vadai Tum'ah is considered Tamei and not a Safek Tum'ah, and the laws of Sotah which teach that just as a woman becomes prohibited as a Sotah only when she is "Yesh Bah Da'as Lisha'el," so, too, an item of Safek Tum'ah is deemed Tamei only when it is "Yesh Bo Da'as Lisha'el."
The Gemara says that without the second source, one would have thought that even in Reshus ha'Rabim a Safek Tum'ah which is a "Davar she'Yesh Bo Da'as Lisha'el" is Tamei, and thus it is necessary to learn from Sotah that only in Reshus ha'Yachid is it Tamei. Without the first source (the verse of "veha'Basar"), one would have thought that a Sotah is Tamei only when both the Da'as of the subject and the Da'as of the object ("Noge'a" and "Magi'a") are present, and thus the verse "veha'Basar" teaches that the Da'as of the object (the item that became Tamei, or the woman who became a Sotah) is sufficient.
Why does the Gemara assume that the verses of Sotah refer only to a case in which the Sotah has "Da'as Lisha'el"? Perhaps the Sotah is a Ketanah (whose father married her off), who does not have "Da'as Lisha'el" (as the Mishnah in Taharos teaches).
ANSWER: The answer seems to be that if the woman is a Ketanah, she would not become prohibited to her husband with the Isur of Sotah. This is because the Gemara in Yevamos (32b) teaches that "Pituy Ketanah k'Ones" -- when a man persuades a Ketanah to sin with him, she is considered to be Anusah (forced against her will).
The RAMBAM (Hilchos Sotah 2:4), however, writes that if a Ketanah sinned willfully with another man, she becomes prohibited to her husband. (See the commentators there who discuss why the Rambam rejects the apparent conclusion of the Gemara.)
According to the Rambam, why does the Gemara derive from the laws of Sotah that a Safek Tum'ah is Tamei only when it is a "Davar she'Yesh Bo Da'as Lisha'el"? In the case of a Sotah, even a Ketanah -- who is "Ein Bah Da'as Lisha'el" -- becomes Tamei! (SHEV SHEMAITSA 1:16)
1. The SHEV SHEMAITSA suggests that the case of a Sotah is considered "Yesh Bo Da'as Lisha'el" not because the woman (or girl) has Da'as, but because the Bo'el has Da'as. Since the Bo'el is also part of the Safek, it suffices for either the "Metamei" (the Bo'el) or the "Nitma" (the woman) to have Da'as.
However, the Shev Shemaitsa himself is not satisfied with this answer, because the verse seems to discuss even a Ketanah who lived with a Katan (over the age of nine), and yet she still becomes prohibited to her husband even though neither the Bo'el nor the woman is "Yesh Bo Da'as Lisha'el."
Moreover, the Gemara seems to contradict the Shev Shemaitsa's assertion when it states that in the case of Sotah, both the man and the woman have Da'as.
(b) Some Acharonim point out that the comparison between Sotah and Tum'ah is not an exact comparison, as the TOSFOS HA'ROSH (28a) mentions (see, however, Tosfos there). Accordingly, the Gemara means that the Torah refers to Sotah as "Tum'ah" in order to teach that the two should be compared (see RASHI to Chulin 9b, DH Mah Sotah).
Accordingly, the comparison between the two Halachos is not an exact comparison, and thus even if the Isur of Sotah applies when the woman is "Ein Bah Da'as Lisha'el," in the case of a Safek Tum'ah the item is deemed Tamei only when it is "Yesh Bo Da'as Lisha'el."
However, the Gemara implies that Sotah is compared with Tum'ah even with regard to a "Davar she'Ein Bo Da'as Lisha'el."
(c) HE'OROS B'MASECHES SOTAH (in the name of Rav Elyashiv shlit'a) and RAV SHLOMO ZALMAN AUERBACH zt'l (in his commentary to the Shev Shemaitsa) point out that not every Katan is considered "Ein Bo Da'as Lisha'el." The Gemara in Sukah (42a) clearly states that there is a type of Katan who does have "Da'as Lisha'el." Accordingly, the Rambam -- who rules that a Ketanah who commits adultery becomes prohibited, may be referring only to a Ketanah who has reached the age at which she is able to understand the Isur of Z'nus, or as some Acharonim express it, she is old enough to appreciate the meaning of rebelling against her husband as expressed in the verse of "u'Ma'alah Vo Ma'al" (Bamidbar 5:12; CHASAM SOFER EH 2:4, BRIS AVRAHAM 80:6, BEIS YAKOV Kesuvos 9a). It is logical that the woman must have a certain amount of Da'as, because if she has no Da'as the Kinuy would not be effective; it would not prevent her from secluding herself with another man and would not create a "Raglayim l'Davar" (Rav Shlomo Zalman Auerbach zt'l). Hence, the age of a Ketanah who knows enough to realize the severity of this sin is the same as the age at which she is "Yesh Bah Da'as Lisha'el"; at that age Beis Din can ask her whether she did such an act, since she realizes the consequences of the act and pays attention to whether it happened or not.
Therefore, the Gemara's comparison of the law of Tum'ah of a Katan and Ketanah with the law of a Sotah who is a Ketanah is accurate. In both cases, when they are "Yesh Bo Da'as Lisha'el" the Safek is judged stringently, l'Chumra.