Kinui By Beit Din

Sotah (4:5) | Yisrael Bankier | 9 years ago

The Mishnah (4:5) teaches that in certain situations the Beit Din can perform kinui (formal warning against seclusion with another man) on behalf of the husband. The cases include whether the husband becomes a cheresh (deaf-mute) a shoteh (insane) or if he was imprisoned.

A debate ensues regarding the effect of kinui performed by Beit Din. The Tana Kama maintains that even if stira (seclusion) is subsequently witnessed, she would not be a sotahand not be required to go through the process we are learning about. Rather it would result in the wife losing her ketubah if she violated the kinui. R’ Yosi on the other hand maintains that once the husband is released from jail, his wife would be a Sotah and he would be required to bring her to the Beit HaMikdash.

The Gemara (Sotah27a) explains that the debate in the Mishnah is based on the understanding of the two pesukim referring to the husband warning his wife (5:14) and then bringing his wife to the Beit HaMikdash (5:15). They argue whether the same person must perform kinui and the bringing.

A few points are worth addressing. The Gemara earlier (3a) records a debate amongst the Tanaim whether a husband must perform kinui. R’ Yishmael is of the opinion that the husband is allowed to perform kinui but no obligated while R’ Akiva maintains that should the situation arise, the husband must. The Gemara explains that according to R’ Yishael there is a prohibition of “You shall not hate your brother in your heart.” When the Torah writes “and he warns his wife” it is only to permit kinui in the face of this prohibition. How then should we understand the role of Beit Din in the absence of the husband in light of this debate?

The Gemaralearns the authority of Beit Din to perform kinui from the superfluous repetition of the words “ish ish” in the pasuk opening the section that deals with Sotah.The Davar Shaul (Sotah 27:1) explains that the concern of R’ Yishmael, that kinui might arise out unrest between husband and wife and violate “You shall not hate…” is not present when the kinui is performed by Beit Din. Consequently everyone would agree that there is a positive mitzvah on Beit Din to perform kinui for the husband should the situation demand it.

Returning to the derivation from the pasuk of the authority of Beit Din to perform kinui, the Gemara understands that we learn that Beit Din are able to perform kinui “in order to remove her rights to her ketubah”. The Tosfot (27a) however explain that the Gemara is not to be taken literally. The pasukr eally only teaches that the kinui of Beit Din is significant to make her prohibited to her husband. The reason being that ketubah is rabbinic. The Tosfot continues that even according to R’ Shimon ben Gamliel who states that it is de’oraita (biblical) his position is not that it is really de’oraita but rather there is on what to really in the Torah for its institution. The Tanacited in a Gemara is therefore to be understood as teaching an additional halacha that for the wife to lose her ketubah when violating dat, she must be forewarned.

The Netziv (Meromei Sade III, Sotah 27b) explains that the Tosfot’s understanding is based on their position that a husband who obligates himself via a ketubah is bound rabinically. The Netziv however proves that according to Rashi even though the obligation to give a ketubah is rabbinic, once a husband writes a ketubah the shiabud (financial lien) is biblical. (The reference to “mohar betulot” in the Torah is to the custom that men did choose to provide ketubot.) Consequently the Gemara can be taken literally that the Torah teaches that the kinui performed by Beit Din has the power to dissolve the lien created by a ketubah.

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