Sunday, September 27, 2009

Noda Biyehuda - Part 4

Two, we must understand the lenient opinion in the Yerushalmi, and to say it agrues on the Bavli is unsatisfactory. The Yerushalmi’s phrase “k”h is great that it pushes off the mitzvah if it’s a lo taseh, for a certain amount of time [lit. one hour]” is strange. Why the double useage of mitzvah and lo taseh, just say lo taseh! Rather the intent of the Yerushalmi is that k”h pushes off a mitzvah. When? The condition is for a lo taseh in a passive situation, but not actively. Now the Yerushalmi is exactly like the Bavli in that it only allows temporary suspension of the prohibition of shatnes because of k”h. Now the question is if you find your own garment has shatnez, how can the Y consider that passive, and Bavli calls it active? So I feel the amoraim in Y argue on the same point as the amoraim in the Bavli, Makos 21b: [how are you chayav many times for wearing shatnez?] Rav Beibo said when you take it off and put it on again. Rav Ashi says if you keep wearing it for the amount of time you could have removed it [you’re chayav]. To Rav Ashi, wearing it and not taking it off is considered an act of wearing shatnez, for if not, how could be chayav malkos, for the rule is there is no malkos for a passive violation? So he holds keeping it on is an action. And Rav Beibo holds you need to take off and put on multiple times to do an act to receive malkos. So the two opinions in the Y. accord with the two opinions in the Bavli…Now we understand that [Rav Beibo] who considers this passive – but only temporarily, not to keep wearing that garment indefinitely. If so, it follows that if you see someone wearing shatnez, since it’s a mitzvah to stop him from doing an aveira, but that is suspended because of k”h, only temporarily.

If so it is clear he must tell the husband that his wife was unfaithful so that he separates from her. The question is, as you asked, must he tell the husband in a situation where the husband may not believe him since he does not have two witnesses? I feel this is no argument [and he still must tell the husband] since he must do what he can to stop the man from sinning [by remaining with his unfaithful wife] even when it’s not certain, he must take care of his responsibility [and tell the husband] for it is no worse than the regular mitzvah of hochei’ach tochiach es amisecha, reproaching your fellow about which the Gemara Shabbos 55a says just because you know [it’s wrong], does he know?

This is instructive in the situation where a “stranger” knows that a certain woman committed adultery. But in this situation this man was the adulterer and he influenced her sin, and he wants to do teshuva he must remove the stumbling block in all ways possible and ensure his fellow won’t sin because of him either (about this see Chagiga 9b that an adulterer's sin continues because he cannot rectify it). Nothing stands in the way of Teshuva but Chazal’s intent was for strict teshuva. Still he must do all he can and if the husband does not believe him, he should hope to attain teshuva and the Master of Mercy (G-d) should accept his teshuva with mercy.

And that which you asked – if he informs the husband and he does not accept it, must he tell a beis din and inform them? It is simple that he only tells the husband. If the husband believes him he will separate from his wife and all is well, and if does not believe it, what good will going to the beis din help? The husband doesn’t have to believe him, and what will beis din do here? Not only is he not required to go to beis din, he may not even be allowed to go to beis din, and if he does he might deserve malkos midirabanan like the incident it Pesachim 113b where Tovia sinned, Zigud testified against him [alone; there was no other witness] and Rav Papa gave lashes to Zigud for allegations against Tovia which could not be proven because there were not two witnesses to Tovia’s act. Even though Rama in S”A C”M 28:1 says only for an incident which already happened would it be considered tale-bearing, but if it is to stop someone from sinning you may testify [which would imply in this case he may go to beis din]. Even if there is a doubt that the beis din will believe him, as the basis of this (the Rama’s) ruling is from Semag Lo Taseh 213: one man may not testify agains a man…we learn from here one man who knows something about his fellow where he cannot impose an oath (in monetary matters one witness may compel an oath) may not testify, and if he does he receives lashes for giving the other person a bad name. And that which we find in Kiddushin (Daf 66a) where one witness told a man his wife had been unfaithful, Mar Shmuel told the man if he believes the account like it was delivered by two witnesses he should divorce her, and Mar Shmuel did not castigate the single witness, and also a similar incident in Perek Hanizakin…[why was one witness believed and not punished]? To stop someone from committing a sin [of remaining with his unfaithful wife] it is different [and one witness may testif]. There, it was not certain that the husband would believe the witness, still Mar Shmuel did not punish him – the man told Mar Shmuel, the Beis Din, and not the husband! (NB shows from the text of the story the man must have told the Dayan, not the husband) Also, Mar Shmuel did not say the man should have told the husband? We can say in that situation the husband was not around, so he told Mar Shmuel, expecting the husband to believe him. But if the witness told the husband about the offense and sees he is not believed, there will be no benefit in telling the beis din, and he will only get lashes for giving someone a bad name.

And that which you were unsure about if he will confess [to the affair] in front of beis din it will give credence (raglayim ledavar) and the beis din will force the man to divorce his wife even though he’s not believed as two witnesses, as the Chavos Yair says in Teshuva 72? Even if the Chavos Yair would pasken this way, which is a matter of discussion, he is discussing a case where the wife admits that she was unfaithful and we say she only said it because she wanted to marry someone else (and by “admitting” to this her husband would have to divorce her) , in that case raglayim ledavar help…. And Yevamos 24b since the matter is disgusting (dirty) she must be divorced, most Rishinim explain that that case is where (the husband returned home to find a traveling salesman leaving and his wife was getting dressed [see the gemara there for exact situations] so he divorced her, if she then went and married that salesman) she must get divorced from the salesman (and the case is where the husband divorced her because of this incident even though he may not have been required to divorce her), and even to the She’iltos that she must get divorced from her husband if there were two witnesses [to the disgusting case, but not witnesses to the znus itself) but here there is only one man confessing and why would we believe his and his confession about the woman?

Therefore the advice is that the adulterer should only tell the woman’s husband privately. The way he should tell according to the Law is just to say your wife committed adultery (and not with whom) for it does not matter to the husband with whom she had adultery because regardless of who it was she is forbidden to him, and why should the adulterer announce his sin for no reason? The Gemara in Yoma 86b says regarding an unknown sin “praised is the one who covers a sin.” And it is also chutzpah to declare his sin. But, logically it seems the husband may believe him more when he sees the man is confessing with remorse and they feel very true, so it’s better to confess privately and if he is humiliated by it good, because if someone was humiliated after his sin he is forgiven. I think he also must ask forgiveness from the husband because this sin has two parts – between man and heaven, for transgressing a serious sin, for which teshuva and Yom Kippur will bring atonement, and the second part is the sin between man to his fellow in that he causes his wife to be forbidden to him. For sins between man and his fellow, teshiva and Yom Kippur doen’t help, and you also must appease the hurt party, for even if one steals and returns the pbject he must appease the victim, certainly here where he cannot rectify the situation (because she will remain forbidden to him forever). (It seem NB is saying while he doesn’t have to admit that he was the guy, the husband will probably figure it out, so the man should ask for forgiveness.)

And with this, by telling the husband and not beis din, he is keeping the honor of the family intact. No harm will come, because the husband is already elderly and he won’t go and marry a new wife [if he would divorce his current wife for being unfaithful] and he is not required to divorce her (because there is not real evidence like two witnesses) and she may stay in his house and we don’t suspect that he will have relations with her, since she was unfaithful, she is repulsive to him. As we see in S”A E”H 117:1 in Rama. Beis Shmuel 8 writes without witnesses he may keep her in his house. You can’t say that is only where she certainly was adulterous wit h2 witnesses, but not here where there is one witness, and she should be like sotah … This case is not like sotah because there we need two witnesses to ensure they are not together (on the way to Beis din after she was found being alone with the other man after her husband warned her; these 2 witnesses make sure the husband & wife aren’t together in yichud because if they are the sotah process won’t work) there, by Sotah, she was forbidden to him according to the din, een though her adultery was not certain, so they need 2 witnesses to ensure they don’t have yichud, but our case we don’t need witnesses to ensure they don’t have yichud because either if the husband believes the man like 2 witnesses she will be disgusting to him and we don’t suspect he will have relations with her. And if he doesn’t believe the man, she is not forbidden to him. So he may keep her in his house and to the Beis Shmuel you don’t even need witnesses [to ensure they don’t have yichud]. But it is simple that they may not have yichud in one room because then it is eish bine’uras (fire of youth). And this way there will be no blight to the family’s honor.

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