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Week 80 - Shabbat - 9 June 2001

SOTAH: CHAPTER 6: MISHNAH 3

It would be logical to infer: Since the first testimony, which does not render her permanently forbidden, cannot be upheld by less than two - should we not conclude that the latter testimony, which renders her forbidden permanently cannot be upheld by less than two? Therefore Scripture teaches (Num. 5:13): "and there was none to testify against her" - whatever testimony there is against her. But now there is a kal vahomer to the first testimony. If the latter testimony, which renders her permanently forbidden, may be upheld by one witness - should we not infer that the first testimony, which does not render her forbidden permanently, may be upheld by one witness? Scripture teaches (Deut. 24:1): "For he found in her some improper matter," and elsewhere it states (ibid. 19:15): "by the testimony of two witnesses...shall a matter be established" - just as there it is by the testimony of two witnesses, so here, it is by the testimony of two witnesses.

Kehati

In continuation of the previous mishnah, this mishnah explains the reason for the halakhah whereby one witness is believed to establish a sotah's adultery.

It would be logical to infer - we might argue by a kal vahomer that a single witness is unacceptable concerning a sotah's defilement: since the first testimony - i.e., concerning her seclusion - which does not render her permanently forbidden - to her husband, only until she has drunk, whereas if found innocent, she rejoins her husband: yet it cannot be upheld by less than two - our mishnah reflects R. Yehoshua's view that a sotah is not made to drink unless two witnesses attest to her seclusion - should we not conclude that the latter testimony - concerning adultery - which renders her forbidden permanently - to her husband, whom she cannot rejoin - cannot be upheld by less than two? - Is that not evident by kal vahomer that less than two witnesses cannot establish adultery?

Therefore Scripture teaches - in the context of the sotah: "and there was none to testify against her" - no witness of her misconduct, when alone they make her drink, but whatever testimony there is against her - removes her from the category of a sotah, since even if there is one witness of misconduct, he is believed, and she does not drink (Hameiri; Rashi's commentary on the Torah). A baraita in the Gemara explains: Everywhere, the term "witness" denotes a set of two witnesses, unless Scripture states explicitly "one"; concerning the sotah, the Torah states: "and there be no witness against her," i.e., there is no set of witnesses against her, but only one witness of her misconduct, "neither was she taken by force" - i.e., she was not overpowered; this renders her forbidden to her husband; this proves that one witness who attests to her misconduct renders her forbidden to her husband. This is the meaning of: "whatever evidence there is against her" concerning defilement renders her forbidden to her husband.

Our mishnah then asks: But now there is a kal vahomer to the first testimony - since Scripture teaches that one witness is believed concerning adultery, we can draw a kal vahomer that also the first testimony concerning her seclusion requires but one witness: If the latter testimony - concerning misconduct - which renders her permanently forbidden - to her husband - may be upheld by one witness - as ordained by Scripture, "and there was none to testify against her," should we not infer that the first testimony - concerning her seclusion - which does not render her forbidden permanently - only until she has drunk - may be upheld by one witness? - Does it not follow by kal vahomer that one witness suffices concerning her seclusion? Why then does R. Yehoshua insist that seclusion cannot be established by less than two witnesses?

Scripture teaches - regarding a man who divorces his wife: "for he found in her some improper matter," - indecent behavior, e.g., secluding herself with someone, and elsewhere it states - in the Torah - "by the testimony of two witnesses… shall a matter be established" - the Sages learned from the term davar (matter) appearing in both verses, that just as there - in the subsequent passage davar signifies that it is by the testimony of two witnesses - whereby the "matter" is established - so - also here the use of the term davar "for he has found in her some ervat davar" indicates that - it is by the testimony of two witnesses - and not by one witness.

According to the Gemara, this identical terminology is not the basis of the law concerning seclusion; we learn it from the verse "and there was none to testify against her" - i.e., "against her" but not with regard to warning her, "against her" but not with regard to seclusion; i.e., one witness suffices to establish a sotah's defilement, whereas warning and seclusion require two witnesses. This terminology concerned testimony regarding defilement without warning or seclusion; thus the Torah accepted one witness regarding a sotah's defilement, i.e., only after two witnesses had testified to warning and seclusion. This was augmented by circumstantial evidence. But defilement alone, when not preceded by warning and seclusion, cannot be established by one witness, as implied by the above, for just as there it requires the testimony of two, so here, too, it requires the testimony of two.

SOTAH: CHAPTER 6: MISHNAH 4

If one witness says, She was defiled, but another says, She was not defiled; or if one woman says, She was defiled, but another woman says, She was not defiled, she drinks, If one says, She was defiled, but two say, She was not defiled, she drinks. If two say, She was defiled, but one says, She was not defiled, she does not drink.

Kehati

This mishnah discusses witnesses to defilement who contradict each other.

If one witness says, She was defiled - the sotah who secluded herself with the man about whom her husband had warned her, has committed adultery - but another says, She was not defiled - during that seclusion - or if one woman says, She was defiled, but another woman says, She was not defiled - although a woman is ineligible to testify, we learned above (see mishnayot 2 and 3) that the Torah accepted any testimony regarding a sotah's adultery after warning and seclusion in the presence of valid witnesses. Even male or female slaves are able to establish adultery, whereupon she does not drink. But in this case, since the witnesses contradict each other and their testimony is invalid she drinks - since her defilement remains doubtful.

The Gemara restricts the rule to contradictory evidence delivered concurrently, but if successively, the first one's "she was defiled" is accepted as twin evidence, since wherever the Torah accepts one witness, he is counted as two witnesses. A subsequent witness cannot contradict him, since one witness is incompetent against two. If one says, She was defiled but two say, She was not defiled - i.e., the two said to the one, we were with you when you witnessed the sotah's seclusion, and she was not defiled in our presence. Hence, the single evidence is offset by the two witnesses. Nevertheless, since she might have been defiled before her seclusion was discovered she drinks - even if the witnesses came in turn.

If two say, She was defiled, but one says, she was not defiled, she does not drink - because the one witness is offset by the two. The Gemara restricts this last clause to ineligible witnesses, e.g., slaves or women. Thus, the mishnah teaches us that with ineligible witnesses, we follow the majority whether the effect is a leniency or stringency, i.e., whether making or not making her drink. However, one eligible against two ineligible witnesses is considered as one witness against one witness (see Rambam, Hil. Sotah 1:19).

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