Sotah 003

10: The consideration that the procedure described in the text of the Torah must have been preceded by a formal act of warning is the starting point of our present mishnah. Before the suspicious husband can present his wife for the 'ordeal' of the 'cursing waters' two prior events must have taken place. Firstly, the husband must have formally charged his wife with a warning that in future she is not to be familiar with a certain (named) man. In this context 'to be familiar' means 'any kind of association that might cause suspicion'. (This is the explanation offered by Rambam in his commentary on our mishnah.)

11:
This formal warning of the wife must be given in the presence of two competent witnesses - i.e. two witnesses whose testimony is valid in a Bet Din. If this prior formal warning was not given the woman cannot later be charged and forced to drink the 'cursing waters' because of her association with another man. This is already an enormous step forward from the blanket initiative granted the husband by the Written Torah.

12:
But there is also a second requirement of prior judicial activity before the husband can force his wife to drink the waters. After she has been warned not to associate with a certain man there must be competent testimony that she defied this warning and did, indeed, consort with the man she was warned not to consort with. The next mishnah will give details as to the manner and content of the formal warning and of the subsequent association.

13:
Now this requirement of the sages that judicially competent testimony must be offered seems to be in direct contradiction to the plain text of the Torah [Numbers 5:12-14]:

If any man’s wife goes astray, and is unfaithful to him, and a man lies with her carnally, and it is hidden from the eyes of her husband, and is kept close, and she is defiled, and there is no witness against her, and she isn’t taken in the act; and the spirit of jealousy comes on him, and he is suspicious of his wife...: then the man shall bring his wife to the priest...

Here the Torah text is explicitly referring to a situation in which 'there is no witness against her'. The sages surmounted this difficulty by explaining that this part of the Torah legislation is referring to a different situation: one in which the husband had not formally charged his wife, and indeed was unaware of his wife's infidelity, but her behaviour with a certain person becomes the subject of popular rumour even though 'there is no [actual] witness against her'. Verse 14 must then be understood as an alternative scenario - the scenario which is the basis of our present mishnah. The Torah text, as interpreted by the sages, now reads as follows:

13:
In our present mishnah there is a maĥloket [difference of opinion] between two Tannaitic giants: Rabbi Eli'ezer and Rabbi Yehoshu'a. Both these sages were students of Rabban Yoĥanan ben-Zakkai (and together, in their student days, had been the brave souls who had smuggled their master out of the besieged Jerusalem in the year 68 CE). Rabbi Eli'ezer was known as a 'Shammuti', a sage who favoured the school of Shammai, a school of opinion known to be generally more stringent than the majority school of Hillel. Rabbi Eliezer Finkelstein z"l may be right in assuming that social and economic factors distinguish the views of these two schools of halakhic thought, and the school of Shammai was more 'bourgeois' and the school of Hillel more 'proletarian'. Rabbi Yehoshu'a was, of course, a follower of the school of Hillel.

14:
While both sages agree that for the formal warning to be judicially efficacious it must have been made in the presence of two competent witnesses, they disagree concerning the second stage, the evidence that the husband's formal warning had been disregarded by the wife. Rabbi Eli'ezer holds that in the latter case the usual rules of testimony may be relaxed and the evidence of one witness or even of the husband himself is sufficient. Rabbi Yehoshu'a holds that in this second stage also there must be two competent witnesses to the wife's infidelity. Halakhah follows Rabbi Yehoshu'a. This means, of course, that it will be more difficult for the husband to accuse his wife of infidelity and the marriage, hopefully, might be preserved.