Ha'Ba'in Min Ha'Derech

Nidah (2:4) | Yisrael Bankier | 15 years ago

The Mishnah (2:4) teaches that a husband that is ba’in min ha’derech, returning from afar, can assume that his wife is tahor – there is no need to ask if she is a nidah.

The Gemara (15a) discusses exactly when the husband is returning. Rav Huna explains that the husband left after she was tahor, but is returning prior to her veset. The Gemara explains that Rav Huna maintains that vestot is d’oraita. In other words, had he returned after the veset, the assumption prior to inquiring would be that she is tameh.

Raba bar bar Chana however argues that even if he returned after the veset the rule of the Mishnah still applies. The Gemara explains that this is because Raba bar bar Chana maintains that vestot are d’rabbanan.

How are we to understand the opinion of Raba bar bar Chana? Even if the vestot is d’rabbanan the requirement to separate near the veset should not be affected unchanged? (See 63b.) What difference does the fact that vestot are rabbanan make?

The Tosfot explains that the debate is not about if the husband is returning close to the time of the veset, but rather if he returns time enough after the veset for tevilah as well. Consequently there are two sfeikot. The first is regarding the veset and the second is regarding the tevilah. According to Rav Huna if vestot are d’oraita, then the first safek is not considered a doubt at all, but rather a certainty. Consequently a safek tevilah will not help in such a case. According to Raba bar bar Chana however, vestot are d’rabbanan. Consequently the safek tevilah has the ability to alleviate that safek that there was a re’iyah.⁹³

The Mishnah Achrona notes that one point in the Tosfot’s explanation needs clarifying. In their explanation we stated that according to the opinion that vestot are d’oraita it is no longer a doubt, rather a certainty that she is tameh. But on what basis can we say that it is a “certainty”. Is it a chazakah? If so then there is no room for debate – everyone must agree that husband must assume she is tameh. The Mishnah Achrona therefore explains that according to the opinion that vestot are d’oraita, this case is considered a safek d’oraita. (The Mishnah Achrona points us to Rashi who explains this point in a similar way.) In all such cases we have learnt that one acts stringently. It is not that she is definitely tameh. Nevertheless, according to Rav Huna the husband would be required to act stringently.

⁹³ Other explanations are brought in the Rishonim without the week extension of the Tosfot. The Rashba explain that according to the Raba bar bar Chana that in truth the prohibition being d’rabbanan should not make no difference. However, in the case of ba’in min ha’derech the rabbanan’s rule itself is relaxed. The Ritva dismisses this explanation for a number of reasons, one being that such a heter is not mentioned anywhere explicitly. The Ritva himself suggest that that the debate is regarding a case where the wife did not check on the veset. According to Rav Huna since vestot are d’oraita, a later check won’t help and she is assumed tameh.

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