Third Party Warning

Sotah (4:5) | Yisrael Bankier | 6 years ago

We opened masechet Sotah learning that the prerequisite for the process of sotah is that the woman is first warned against being in seclusion with an individual (kinui) and then subsequently witnessed in seclusion with that man (setira). The Mishnah (4:5) teaches that in certain situations, Beit Din can provide the kinui. These include if the husband became a cheresh (deaf-mute) or went mad, or if the husband was imprisoned. The Mishnah then debates the status of that kinui. According to the Chachamim, it is not equivalent to a regular kinui and the sotah process would not commence based on it. Instead the purpose of the kinui provided by Beit Din, is that if setira is witnessed, she would lose her ketubah. R' Yossi however argues that if the husband is freed (or recovers), then he can take his wife to the Sanhedrin to begin the process based on that kinui.

The Bartenura explains that the husband must be present for the process to begin since the pasuk (Bamidbar 5:15) explains, "and then the man shall bring his wife…". They argue however whether previous pasuk that states "… and he had warned his wife.." is connected, thus requiring the husband to provide the kinui as well. The Gemara (27a) explains that the Chachamim learn that the Beit Din can provide the kinui in these circumstance from the repetitious language of "ish, ish". The Tosfot explains that in truth the pasuk is required to teach the law that after kinui and stira she is forbidden to be with both her husband and the man she was warned against being in seclusion with. Instead, since the Tosfot understand that ketuba is rabbinic in the first place, the Tana cited in the Gemara is using this pasuk as an asmachta. Furthermore, the Tana is teaching that for a women to lose her ketubah due to promiscuous behaviour (violating daat moshe) she would need to be forewarned.

The Nodeh Beyehuda (Tenina YD 159) notes that the Beit Din only provides the kinui in these cases when the husband is unable to do so. If however the husband is fully able, the Beit Din cannot provide the kinui despite her questionable behaviour. Citing Rashi (25b, s.v. avdinan), the Nodeh Beyehuda explains that in our Mishnah, the Beit Din functions as the husband's shaliach (agent). They can act in that capacity because we assume that husband would be happy with them taking this initiative. This is based on the principle of zachin le'adam she'lo befanav – one can act for the benefit of another even without their knowledge. If the husband however can provide the warning himself and has not done so, Beit Din cannot step in. This is because it is clear that he does not wish to do so himself. Consequently the Beit Din cannot act as his shaliach.

The Nodeh Beyehuda takes this line of reasoning one step further. He suggests that in the case where the husband was imprisoned, then Beit Din provide the kinui and the husband is the freed, if the husband then says his is not happy with the Beit Din's actions, then the kinui does not take effect. Even though kinui cannot ordinarily be reverted, the husband's objection reveals that the Beit Din were not acting as his shaliach from the outset and the kinui is invalid.¹

¹ The Nodeh Beyehuda adds that since the Beit Din acts as the husband's shaliach, they would not be able to nominate someone else as their shaliach to provide the kinui. This is because since the substance of the shlichut is mili (words) they cannot be "handed over" to another to perform.

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