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Safek K’vadai: When Doubt Becomes Certain

In this week’s parshah the Torah writes about the halachos of a sotah. A sotah is a woman whose husband warned her, in the presence of two witnesses, not to go into seclusion with a specific man – but two witnesses saw her in seclusion with that man. Even though the only testimony that we have is that she was secluded with this man, she is nevertheless forbidden to be with her husband as she is an adulteress. This is in effect until she drinks the sotah water.

The Gemara in Sotah 28a says that concerning a sotah, the Torah treats every doubt as if it is certain (safek k’vadai). The Gemara then extends this halacha to the halacha of safek tumah (a doubt as to whether something became tamei). In other words, if there is a doubt whether something became tamei, it has the status of something that definitely became tamei. If the doubt occurred in a private place (by definition less than three people; similar to a sotah), it is viewed as certainly having become tamei. If the doubt occurred in a public place (by definition three or more people), it is deemed as certainly pure.

Reb Chaim Soloveitchik (Stencils) debates what the intention of the halacha was when it says that every doubt should be treated as if we were certain that it was tamei. Did the Torah intend that we should assume that all the necessary details that need to occur in order for it to be tamei actually occurred, thereby rendering it tamei, or should we just render it tamei without assuming that we know what exactly happened? For example, do we assume in the case of a sotah that the woman committed adultery and is thus forbidden to be with her husband, or is she forbidden to be with her husband even though we are unsure whether she indeed committed adultery?

Reb Chaim suggests that there is a proof that we do not assume we know what happened; rather we issue the p’sak with certainty without knowing the story’s details. The Gemara in Sotah says that an adulteress is forbidden regarding three things: to be with her husband; to be with the adulterer (she can never marry the adulterer even after she is divorced from her husband); and participating in terumah. The Gemara derives from the Torah’s written word, “v’nitmah” (written three times) that these same halachos apply to a sotah as well.

Question: Why does the Gemara require three pasukim to teach us these halachos? If we are to assume that we know what happened, i.e. that she was mezaneh, one pasuk would have been sufficient. Since we are to assume that we know with certainty that she committed adultery, all the halachos of an adulteress should apply to her. It seems clear from this that the Torah only intended that we render the sotah forbidden, and not assume that we know the details. Therefore, if the Torah only had one pasuk teaching us that we are to certainly render her forbidden to be with her husband, we would not apply all the halachos of an adulteress to her.

Based on this we can explain the machlokes between Tosafos in Yevamos (11b, d”h mai) and Tosafos in Sotah (28a, d”h ma). Lashes can only be administered to one who transgresses a lav (negative commandment). If, however, one transgresses a positive commandment or even a lav haba michlal assei (a prohibition that is derived from an assei), no lashes are administered. If there is a doubt whether it was forbidden, one does not receive lashes. On this issue, there is a lav for a husband to live with his wife after she commits adultery. This lav is punishable by lashes. The prohibition written in the Torah regarding a safek sotah is a lav haba michlal assei, which is not punishable by lashes.

Tosafos in Sotah says that even though the Torah said with certainty that a safek sotah is forbidden to be with her husband, it is only a lav haba michlal assei; therefore, if her husband transgresses and lives with her, they do not receive lashes. Tosafos in Yevamos disagrees, stating that since the Torah said to treat the doubt as if it were certainly a forbidden act, they receive lashes. The latter Tosafos is difficult to understand as to why there should be lashes by a safek sotah, as the only certain prohibition is a lav haba michlal assei – for which one does not receive lashes. One cannot receive lashes in the case of a safek sotah for having transgressed the lav of living with one’s wife after she committed adultery since it is a safek whether she is an adulteress.

Reb Chaim explains that Tosafos in Yevamos must hold that the Torah’s intention was for us to assume that we knew all the necessary details of the doubt with certainty. In this case we should assume that she committed adultery, and that that is the reason why she is prohibited by a lav haba michlal assei. So even though the Torah does not say explicitly that we should treat the doubt as if it were certain regarding the lav prohibiting the husband from living with his wife after she committed adultery, we can apply lashes if her husband lives with her because we assume with certainty that she committed adultery.

Tosafos in Sotah understands that when the Torah said to treat the doubt as if it were certain, the intention was only to render it as certainly forbidden – and not to assume that we know the details with certainty. Hence we can only treat the doubt with certainty regarding the three things that the Torah said (see above). Since the Torah only said to treat with certainty that which regards the lav haba michlal assei, they do not receive lashes.

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