Kinui for Sotah

Sotah (1:1) | Yisrael Bankier | 12 years ago

This week we began mesechet Sotah. We will be learning about the process through which we clarify the guilt or innocence of a woman who is suspected of adultery (provided that the case qualifies). The first prerequisite learnt in the first Mishnah is that thewife must first be warned against being secluded with a particular man (kinui). Both R’ Eliezer and R’ Yehoshua agree that this must be performed in front of two witnesses (edut). Without witness testimony to the kinui, she would not be prohibited to her husband if only secluded with another man. The next prerequisite is that her subsequent seclusion for a sufficient period of time with that man (stira) was witnessed. According to R’ Eliezer even on witness would suffice, whereas R’ Yehoshua requires two witnesses. While the Gemara does present another opinion that kinui can be performed by the husband alone or with one witness (R’ Yosi BR’ Yehuda), we will look at the shared position of the Tanaim in our Mishnah that requires two witnesses for kinui.

The Gemara (2b) learns the requirement of witnesses from the pasuk that teaches the laws of Sotah: “… and there was no witness to her (bah) [committing adultery]”. The Gemara learns that if there is even one witness that she did indeed have an affair or if she admits to it, then the matter is dealt with differently. From the superfluous word “bah” it learns that while one witness to adultery is enough to prevent Sotah, two witnesses are required from stira.

There are two ways of understanding the need for witnesses. A way of highlighting this is by asking what is the law if the husband performed kinui on his own. The Rashba (Yevamot 24b) explains that even with subsequent edut to the stira she would be permitted to her husband. Strong suspicious alone is not enough to create an issur. For legal kinui to exist the kinui requires edut.

This position appears to be supported by the Gemara. It teaches that nowadays one should never perform kinui even in private out of concern for the opinion of R’ Yosi BR’ Yehuda who does not require edut for kinui. This implies that private kinui according to the Tanaim in our Mishnah would be meaningless.

The Maharit however explains that there is weight to a private kinui and his wife would become assur to him. He explains that edut is only required to clarify the truth, or in this case to determine if the husband is telling the truth and to make her a Sota. The difficulty with the Maharit’s position is the above-cited Gemara as we have already explained. 

According to the first understanding that edut is essential there are number of different explanation. The Shaagat Aryeh explains that edut is required to affect a change in status (chalut), much like all matters related to legal relationships (davar shebe’erva), e.g. with respect to kidushin. This explains the formal need for the witnesses to see the same kinui together rather then one in the morning and one in the evening (see Yerushalmi 1:1).

The Beit HaLevi explains that even without affecting a change in status, two witnesses are required. The kinui is essential as it serves to significantly heighten our concern that an affair has been committed after the kinui was disregarded. This would only be the case if the kinuiwas witnessed and nonetheless violate. Without witnesses the violation may not necessarily be interpreted as such as there would be less weight to the original kinui since she could deny it (see Masechet Sofrim 10:1). A practical difference between these two understanding is that here, she would need to be aware of the witnesses, whereas according to previous one, she would need to know of their presence in order for the chalut issur to occur.

The Achiezer argues that this is not a davar shebe’erva as the issur is not created at the time of kinui – it is a rather garam (cause). Normally a garam le’davar shebe’erva would not require edut. It is a novelty here in Sotah that the Torah requires edut for the kinui in order for the stira to have significance.

^* The content of this article was glean from Otzar Iyunim (1), Metivta.

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