[YH1]גירסת הב"ח: לשכנצבו, ואולי צ"ל לשכנציב, כמו במועד קטן כח,ב: אמר רבא: נשי דשכנציב אמרן הכי

 [YH2]WHY A WOMAN LOSES HER KESUVAH FOR MARRYING A MAN TO WHOM SHE IS ASUR MID'RABANAN
QUESTIONS: The Gemara cites a Machlokes Tana'im regarding why a woman loses her Kesuvah for marrying a man to whom she is Asur mid'Rabanan. Rebbi Shimon ben Elazar maintains that the reason she loses her Kesuvah is because she is the one who persuaded him to marry her in the first place, since a woman usually wants to get married more than a man does (Rashi). However, when an Isur d'Oraisa prohibits her to marry the man, she will not initiate the relationship, because she does not want to make herself Pasul or make her children Pasul by marrying that man. Thus, if they indeed get married, it must be due to the man's persuasiveness, and therefore the Rabanan did not
take away her Kesuvah.

Rebbi argues and says that she loses her Kesuvah for a different reason. When she marries a man to whom she is Asur because of an Isur d'Rabanan, the Rabanan were Machmir and decreed that she does not receive her Kesuvah, in order to strengthen the Isur d'Rabanan. They were not Machmir in the case of an Isur d'Oraisa, which does not need to be strengthened. According to Rebbi, it makes no difference whether or not she initiated the courtship.

The Gemara attempts to find a case where a woman marries a man to whom she is Asur with an Isur d'Oraisa, but yet who does not make her Pasul or make her children Pasul (and thus she *will* initiate the courtship). Such a case
will be a practical difference between the reasons of Rebbi Shimon ben Elazar and Rebbi.

Rav Ashi says that such a situation exists in a case of Machzir Safek Sotah, where a man lives with his wife even though she is Asur to him because she is a Safek Sotah (she has been accused of adultery, but has not yet consumed
the Mei Sotah). The woman is Asur to her husband mid'Oraisa, but she has nothing to lose by remarrying him, so she initiates the courtship. According to Rebbi Shimon ben Elazar, she still loses her Kesuvah even though it is an
Isur d'Oraisa, while according to Rebbi, she does not lose her Kesuvah.

The Gemara rejects this suggestion because according to one Tana – Rebbi Masya ben Charash -- she *will* lose by remarrying him, and she will *not* initiate the courtship (and thus according to both Rebbi Shimon ben Elazar
and Rebbi, she does not lose her Kesuvah). Rebbi Masya ben Charash holds that if the husband of a woman who is a Safek Sotah lives with her, she becomes a Zonah and is Pesulah to Kehunah and to Terumah.

Mar bar Rav Ashi concludes that there will be a practical difference between Rebbi and Rebbi Shimon ben Elazar in the case of a Sotah Vadai, a woman who definitely committed adultery. She is Asur to her husband with an Isur
d'Oraisa, but she has nothing to lose by returning to him because she is already a Zonah and Pesulah to Kehunah and to Terumah, and thus 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, she stands to lose something by returning to her husband? A Safek Sotah, like a definite Sotah, is already Asur to marry a Kohen and to eat Terumah! RASHI (DH Ha Lo Margela Lei) explains that a Safek Sotah may prove that she is innocent by drinking the Mei Sotah and thus become permitted to her husband (and to Kohanim and to Terumah). But if she lives with her husband in her state of
Safek Sotah before drinking the Mei Sotah, she will become permanently invalidated from marrying Kohanim as a Zonah, according to Rav Masya ben Charash.

Rashi's explanation is unclear and leaves a number of questions unanswered.
(a) First, how does Rashi understand Rav Ashi's case of a Safek Sotah returning to live with her husband? Is the case discussing a Safek Sotah who was *divorced* from her husband and is now being remarried to him? If this is the case, then how could Rashi write that she does not want to live with her husband because she will not be able to drink the Mei Sotah if she does? Once she is divorced she cannot drink the Mei Sotah anyway, regardless of
whether she returns to her husband or not, as the Gemara implies later (95a)! Thus, 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 what we write in Insights to 95:1 about the way Rashi learns that Sugya. Even if it cannot be proven from the Gemara, though, that a man cannot give his wife Mei Sotah after they are divorced to permit him to remarry her, it seems to be logically sound. We only find a *husband* giving his wife Mei Sotah, not a divorcee.)

Moreover, why does Rashi write that the woman wants to become permitted to *Kehunah* and to Terumah through drinking the Mei Sotah and proving her innocence? If she was divorced from her husband, she is already Pesulah to
Kehunah because she is a Gerushah!

(b) On the other hand, if Rashi understands that Rav Ashi's case is referring to a Safek Sotah who was *not* divorced, and "*Machzir* Safek Sotah" does not mean that her husband *remarries* her after divorcing her but that he *reunites* with her after she has become a Safek Sotah, we are faced with another set of questions:

1. What Kesuvah is there to speak of in such a case? The Safek Sotah has no Kesuvah! If she reunited with her husband and lived with him, she can no longer drink the Mei Sotah, because her husband is not "Menukeh me'Avon" (as the Gemara said on 58a), and since she cannot drink the Mei Sotah, she loses her Kesuvah. How, then, can we say that according to Rebbi, in such a case she *will* receive her Kesuvah? (RASHBA, RITVA)

2. Second, why does the Gemara say that according to Rebbi Masya ben Charash the Safek Sotah will not initiate the relationship because she stands to lose something? Even according to those who argue with Rebbi Masya, she will
not initiate the relationship because she stands to lose her husband by becoming prohibited to him! It is true that she will not become Pesulah to Kehunah through the relationship, but having a relationship with her husband will invalidate her from drinking the Mei Sotah, and once she is a Safek Sotah who cannot drink the Mei Sotah, she must separate from her husband!
(ARUCH LA'NER, NEHOR SHRAGA)

In addition, if she lives with her husband, she will become Pesulah to Kehunah and to Terumah according to all Tana'im, and not just according to Rav Masya ben Charash, because she is a Safek Sotah who is unable to drink
the Mei Sotah. If she were to refrain from living with him and instead drink the Mei Sotah, she would have a chance of remaining permitted to Kehunah and to Terumah! (TOSFOS)

3. Third, if, when he indeed divorces her and then remarries his Safek Sotah, she indeed may no longer drink the Mei Sotah and as a result she does *not* stand to lose anything by remarrying her husband because she is Pesulah anyway (as a Gerushah) -- then why did Mar bar Rav Ashi have to explain that the practical difference between Rebbi  Shimon ben Elazar and Rebbi is a case of a Sotah Vadai? He could have said that the difference between them is a case of a Safek Sotah who was divorced and then remarried her husband! Rebbi will say that she gets her Kesuvah, and Rebbi Shimon ben Elazar will say that she does not get her Kesuvah, because she initiates the relationship since she has nothing to lose! (RAMBAN)

4. Fourth, why does the Gemara assume, according to Rebbi Masya ben Charash, that she will not initiate the relationship because doing so will make her Pesulah to Kehunah, but if she does not reunite with her husband she will not become a Zonah and can become permitted to Kehunah through drinking the Mei Sotah? This is only true if she actually did not sin; she could drink the Mei Sotah and become permitted. But perhaps she did sin, and then she
does *not* want to drink the Mei Sotah (obviously). 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). If so, even Rebbi Masya ben Charash should agree that she might initiate the relationship, and therefore she should lose her Kesuvah even according to Rebbi Shimon ben Elazar! (RASHBA)

ANSWERS:
(a) TOSFOS rejects Rashi's explanation and explains that the Gemara is discussing a case where the husband divorced his wife who is a Safek Sotah, and is now remarrying her. Even though she is *already* Asur to Kohanim, to Terumah, and to her husband, and she may not drink the Mei Sotah, she is still afraid to initiate the relationship according to Rebbi Masya ben Charash, for the simple reason that through this relationship she will gain the name "Zonah." No woman wants to be called a Zonah because that is a shameful title, for there is a type of Zonah (one who was Mezanah b'Ratzon) who is Asur even to a Yisrael.
However, this way of understanding the Gemara does not conform to Rashi's approach.

(b) The RAMBAN and Rishonim explain that Rashi learns that "Machzir Safek Sotah" does not mean that she was divorced and then remarried, but that her husband "reunited" with her (without having ever divorced her) after she
became a Safek Sotah.
1. The Ramban answers the first question (that she already lost her Kesuvah by not being able to drink the Mei Sotah) by saying that the case is when her husband writes 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. The reason is because
it is her husband who is the one to blame for her inability to drink the Mei Sotah, since he is not "Menukeh m'Avon."

2. Regarding the second question, that she will become Asur to her husband (even without the opinion of Rebbi Masya ben Charash), because her husband will not be "Menukeh m'Avon" and thus she will not initiate the
relationship, perhaps Rashi holds that a Safek Sotah is only Asur to her husband *out of doubt*, mi'Safek, on the chance that she actually sinned. If she knows that she was not Mezanah, then she is not Asur to her husband, and
therefore she does not care if she will not be able to drink the Mei Sotah; she knows that she is allowed to live with her husband (see Tosfos 11a, DH Tzaras Sotah).
However, she still should not want the union because people will *think* that she is Asur to her husband even if she knows that she really is not (Aruch la'Ner). Furthermore, she should not want to restart the relationship because doing so will invalidate her to Kehunah and to Terumah (since she will not be able to drink the Mei Sotah to establish her innocence), and not Kohen will want to marry her!

Perhaps we may suggest another approach that will answer these questions, as well as the question of why she receives a Kesuvah after returning to live with her husband. Rashi is following his own view elsewhere (58a, DH Amar Rav Papa; see also Insights to 95a) where he says that there is a Tana who does not hold of the law of "Menukeh m'Avon," that when a man is not "Menukeh m'Avon" his wife may not drink the Mei Sotah. Rather, that Tana holds that she may drink the Mei Sotah even if her husband lived with her after she became a Safek Sotah. Rashi might be learning that our Gemara is following 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 holds that she may night drink the
Mei Sotah when her husband is not "Menukeh m'Avon," but the Gemara had a different question to ask -- that according to Rebbi Masya ben Charash, she will not initiate the relationship because of the Isur Zonah that it will
create for her.)

3. We also asked why the Gemara concludes that the only difference between Rebbi Shimon ben Elazar and Rebbi is the case of a Sotah Vadai, when it could have also said the case of a Safek Sotah who was divorced (she is Asur
d'Oraisa to return to her husband, but since she may no longer drink the Mei Sotah, she is already Pesulah and therefore she will initiate the relationship). The RAMBAN answers that the Gemara could have mentioned that
case, but it found this case so it did not bother to mention the other one.

However, we may offer a simple answer to this question for Rashi, based on Rashi's opinion elsewhere. Rashi here (DH Sotah Vadai) points out that the case in which Rebbi Shimon ben Elazar and Rebbi argue must work out even
according to Rebbi Akiva. Rebbi Akiva is of the opinion that the child from a union of an Isur Lav is a Mamzer. The reason why the case of Safek Sotah and the case of Sotah Vadai are considered by the Gemara is because even
Rebbi Akiva agrees that a child born from the Isur Lav of those cases will *not* be a Mamzer, as the Gemara says earlier (49b). When the Gemara (49b) says that the child of a Sotah is not a Mamzer, Rashi says that the proof
for this is that we see that Kidushin remains in effect between a man and his wife who is a Sotah even after she was Mezanah. The original Kidushin is not discontinued, as is evidenced from the fact that the Torah requires that the husband give the Sotah 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) explains that according to Rashi's explanation, only when the child is born to the Sotah from her *original marriage* to her husband will the child not be 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, however, refutes this view based on our Gemara, which implies that if someone remarries his wife who is a Sotah after divorcing her, then even Rebbi Akiva agrees that the child is *not* a Mamzer.

However, as we have seen, Rashi avoids that question in our Sugya. When the Gemara refers to "returning" a Safek Sotah, it does not mean that the husband divorced her, but rather it means that he merely reunites with her. (Likewise, when the Gemara refers to returning a Sotah Vadai, it is referring to reuniting with a Sotah Vadai who was never divorced in the first place, as it appears from Rashi in our Sugya.) Therefore, according to Rashi, there is very 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 will not initiate the relationship!

4. Regarding the fourth question, that according to Rebbi Masya ben Charash, perhaps she will initiate the relationship in a case where she was Mezanah, 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 chance that she was Mezanah is negligible.