Shalom rabbi,
1) Is "Tefah Beishah Ervah" Mideoraytah or Miderabbanan?
2) Is it an Issur on the man looker or on the woman to go out that way? From Torah or Rabbanan?
3)If it's an Isur from the Torah on the woman, then how could Tosfot in Sotah 8A D"H Haish Niskal suggest that according to the Rabbanan, the Torah doesn't mandate that a woman should be stoned naked but it's within the power of the bet Din to make her naked? I understand Hefker Bet Din Hefker but could the Bet Din make her violate an Issur from the Torah of being uncovered (if it is an Issur from the Torah).
4) On Sotah 8b the Gemara says that the opinion of the Rabbanan revolves around the concept of other woman taking Mussar learned from the Pasuk in Yehezkel "Venivasru". Should we infer that this concept is only Derabbanan because it's based on a Pasuk in Neviim?
Thank you Thank you,
Aaron Shemtob
1)
(a) See Chayei Adam, in Nishmas Adam 4:1, who writes "Tzarich Iyun" if Tefach b'Ishah Ervah is d'Oraisa. He writes that if we say it is d'Rabanan, it follows that one is allowed to close one's eyes and learn Torah or recite Keri'as Shema opposite the revealed Tefach.
(b) The Chayei Adam cites the Rambam (Hilchos Keri'as Shema 3:16) who writes, "All of the woman's body is Ervah; therefore, he should not look at the body of a woman when he is reading Shema, even if she is his wife." The Chayei Adam infers from the Rambam's words that "he should not look" that if he closes his eyes, it is permissible to read Shema. The Chayei Adam writes that this is different from what the Rambam wrote a few lines earlier, that one must not read the Shema opposite Ervah unless he turns the other way. It seems, therefore, from the Rambam that if it is full-scale Ervah, one has to look the other way, while if it is only a Tefach it is sufficient to close one's eyes. The Chayei Adam suggests from here that it appears that "Tefach b'Ishah Ervah" is mid'Rabanan, but he remains with a doubt, and does not rule definitively.
(c) The Kaf ha'Chayim (75:27) cites the Chayei Adam and understands that he learns that "Tefach b'Ishah Ervah" is Asur mid'Rabanan according to the Rambam. The Kaf ha'Chayim adds that from what he wrote in 75:11, it also seems that it is mid'Rabanan.
2) The Mishnah Berurah (3:1), in Bi'ur Halachah DH Yehei Tzanu'a, cites the Sefer Mitzvos Ketanos (SMaK) who counts modesty as one of the 613 Mitzvos. Clearly, there is a Torah prohibition against being naked in public.
However, this does not contradict what we saw above, that "Tefach b'Ishah Ervah" might only be mid'Rabanan, because a Tefach is approximately eight centimeters. Since only a small part is revealed, this is a d'Rabanan prohibition.
3)
(a) The Gemara states that since she is being stoned, one is not worried that someone might have bad thoughts about her, in such an extreme scenario of suffering. The Gemara gives this Sevara according to Rebbi Yehudah, but it can also apply according to the Chachamim. (According to this, we must say that even though Tzeniyus is a Torah Mitzvah, it does not apply where no one might come to have bad thoughts, especially when the condemned will suffer otherwise through a more painful death.)
(b) "Hefker Beis Din Hefker" usually applies to monetary matters, not to questions of what is permitted or forbidden.
4) The Eizehu Mekoman writes in the name of the Minchah Chareivah that it is possible to explain what Rava said on 8b, just before the Mishnah, that "everyone who wants to see can come and see," is referring to the Torah requirement. This means that women are also not commanded by the Torah to see, but they are permitted to do so. Rava concludes, "And woman are obligated to see it," which refers to the Divrei Kabalah, the words of Kabalah, i.e., the words of the Nevi'im. This means that even though women are not obligated by the words of the Torah to see it, nevertheless according to the words of the Nevi'im (which are more severe than a d'Rabanan but less severe than a d'Oraisa) they are obligated to see it.
Kol Tuv,
Dovid Bloom
Thank you rabbi
Other than the Smak does anyone else hold that it's assur from the Torah for a woman to go out bare chested if her actual Ervah is covered?
1) See Chayei Adam 4:7 who says that even when one's wife is breastfeeding one not say words of Torah, Kal va'Chomer if this is another woman (see Mishnah Berurah OC 75:3).
2) See also Teshuvos Levush Mordechai (Vinkler), Mahadura Tinyana second edition, Orach Chayim #21, who cites Yechezkel 16:7 that the chest causes desire. The Gemara in Berachos 24a learns from this the age of maturity which brings on the Yetzer ha'Ra.
3) I found that Rav Yehonasan Eibeshitz zt'l writes in Ya'aros Devash (sixth Derush, page 139, DH v'Hineh l'Vatel, in the Machon Or ha'Sefer edition, and found on Otzar ha'Chochmah):
"Certainly in the main street, in public, it is definitely a Torah obligation to go out covered and modestly."
4) Rav Yosef Shalom Elyashiv zt'l (Kovetz Teshuvos 1:13, page 29, DH Asher and DH Achen Ha) proves from our Sugya in Sotah 8a that bare-chested is forbidden by the Torah. The Mishnah (7a) states that the Kohen uncovers her heart and loosens her hair. The Gemara (8a) cites a Beraisa which derives this from Bamidbar 5:18, "And he uncovers the hair of the woman." The Gemara asks that this teaches us about her head, but how do we know that he uncovers her body? The Gemara answers that we learn this from the word "ha'Ishah." Rav Elyashiv writes that since we learn in Kesuvos (72a) from this verse that uncovering hair is Asur mid'Oraisa, it follows that uncovering her heart, which is derived from the same verse, is also mid'Oraisa.
Kol Tuv,
Dovid Bloom