1)

(a) We do not know for sure that we do not hold of this opinion. The Gemara does not say explicitly that the Halachah follows the Chachamim who disagree with Rebbi Yosi b'Rebbi Yehudah. This is why Rebbi Chanina of Sura was able to say that maybe we hold like Rebbi Yosi.

(b) We often find that the Gemara states explicitly whom the Halachah follows in a particular dispute. On the other hand, sometimes the Gemara says, "Since the Halachah has not been decided, [one may rule] either like Mar or like Mar" (see Berachos 27a and Gitin 60b). Similarly, in our Gemara we can say that since the Halachah has not been stated either like the Chachamim or like Rebbi Yosi, we should be Machmir and not get ourselves into a situation where the wife might become forbidden forever according to Rebbi Yosi.

2)

(a) The Shulchan Aruch rules that Kinuy should be done in front of two witnesses, because he follows the rule (see Berachos 9a and other places) that in a dispute between an individual and many Chachamim, the Halachah follows the majority. However, since there are exceptions to every rule, we cannot be totally certain that the Halachah does not follow Rebbi Chanina, which is why he also cites Rebbi Chanina.

(b) The Beis Yosef (Even ha'Ezer 178:7) cites the Teshuvos ha'Rashba #557, who writes that he "is close to saying" that if someone tells his wife, without witnesses, not to be alone with Ploni and then she was alone with him, even though according to Torah law she does not need to be divorced, there still is a Mitzvah to divorce her.

The Rashba seems to be saying that mid'Oraisa the Halachah follows the Chachamim, but mid'Rabanan we should be stringent and take into account the opinion of Rebbi Yosi b'Rebbi Yehudah.

(c) Looking further into this issue, I found other places where the Shulchan Aruch rules like Rebbi Chanina, as we will soon see bs'd.

1. We will start with the Rambam. In Hilchos Sotah, the Rambam does not mention the opinion of Rebbi Yosi and Rebbi Chanina, but in Hilchos Ishus (24:25) the Rambam writes:

"If the husband said to his wife privately, 'Do not be alone with such and such a man,' and he then saw that she was alone with that man long enough to become Tamei, she is forbidden to her husband, nowadays that we do not possess the Sotah water. The husband must divorce her and pay her Kesubah. If she admits that she was alone with the suspect after the warning, he divorces her and she loses the Kesubah."

The problem is that in Hilchos Sotah 1:1 the Rambam writes:

"Kinuy which is stated in the Torah is that the husband says to his wife in front of two witnesses, 'Do not be secluded with such and such a man.'"

The same contradiction exists in the Shulchan Aruch. In Even ha'Ezer 115:9, the Shulchan Aruch cites the Rambam in Hilchos Ishus 24:25, while in 178:2, he cites the Rambam in Hilchos Sotah 1:1.

The Bach (on the Tur, end of EH 115, DH ha'Omer) cites the Maharshal who raises the contradcition in the Rambam. The Bach answers that the problem is not at all difficult, since the question is whether or not she receives her Kesubah. If the Kinuy was in front of two witnesses, she loses the Kesubah; if the Kinuy was only between him and her, she does not lose the Kesubah. In both cases, however, she is forbidden to her husband who must now divorce her. This means that with the exception of the monetary aspect, we rule like Rebbi Yosi and Rebbi Chanina.

Another limitation to the fact that we rule like Rebbi Yosi and Rebbi Chanina is explained by the Pischei Teshuvah (EH 178:15). If there were two witnesses on the Kinuy, the Beis Din forces him to divorce her. If the Kinuy was done in private, he is obligated by the Torah to divorce her, but Beis Din does not force him to do so. Since there is a dispute between the Chachamim and Rebbi Yosi, Beis Din cannot force him to divorce her, because there is an opinion which maintains that they are still permitted to live together.

2. Another place where the Shulchan Aruch cites the opinion of Rebbi Chanina is at the very end of Even ha'Ezer. Again, we will start from the Rambam, bs'd.

The Rambam, at the very end of Hilchos Sotah 4:19, writes:

"It is not proper for a husband to rush and at the outset issue a Kinuy in the presence of witnesses. Instead, he should first speak to his wife privately and gently, in a way of purity and caution, in order to guide her to the proper path and remove obstacles."

The Kesef Mishneh (written by the author of the Shulchan Aruch) on the Rambam here cites Rebbi Chanina as the Rambam's source. The Kesef Mishneh writes that even though according to the letter of the law the Halachah follows Rebbi Yehoshau who disagrees with Rebbi Eliezer and maintains that the Kinuy should be done in front of two witnesses, nevertheless the Rambam learns from Rebbi Hanina a Halachah which is relevant to us: that the husband should not rush into doing Kinuy in front of two witnesses.

Of course, what the Kesef Mishneh writes, that according to the letter of the law we do not rule like Rebbi Eliezer, seems to be contradicted by the Rambam in Hilchos Ishus 24:25, which we saw above.

I will leave this problem for the moment and continue to the very last paragraph of the Shulchan Aruch in Even ha'Ezer, where the Mechaber cites the Rambam but changes his wording slightly. He writes, "It is not proper for a husband to rush and at the outset issue a Kinuy in the presence of witnesses." The Shulchan Aruch now continues, "Even privately he should not say to her, 'Do not be alone with such and such a man,' as has been explained, but rather he should rebuke her privately and gently, in a way of purity and caution, in order to guide her to the proper path and remove obstacles."

We see that the Shulchan Aruch does cite Rebbi Chanina again, but we also have the impression that Rebbi Chanina is giving us good advice about how the husband's attitude to his wife should be to solve the problems in a peaceful and gentle way.

3) I found a new way to answer all of the questions about Rebbi Chanina's opinion in the Aruch ha'Shulchan, Even ha'Ezer 178:21.

a) His approach starts with what the Rif writes in the third chapter of Kidushin (page 29a of the pages of the Rif). The Gemara in Kidushin (66a) asks what is the law if one witness testifies that a wife was unfaithful. Rava says that the witness is not believed, because the rule is that in matters of Ervah, a minimum of two witnesses are required. The Rif adds that Rava means that the Beis Din cannot force the husband to divorce his wife on the basis of one witness, but if the husband wants to do what is required of him in Heaven, if he believes the single witness as much as he would believe two witnesses, then he must divorce his wife and grant her the Kesubah payment.

b) The Aruch ha'Shulchan writes that the Rambam (Hilchus Ishus 24:25, which we saw above) is similar to the Rif. The Rambam writes that if the husband told his wife privately not to be alone with such and such a man and then he saw that she was alone with him for a long enough period of time for Tum'ah, she becomes forbidden to her husband who must now divorce her and grant her the Kesubah payment. The Aruch ha'Shulchan writes that in the same way that we find that the Rif writes that to conform with the requirements of Heaven the husband, who believes one witness, must divorce his wife and pay the Kesubah, so, too, the Rambam writes that the husband who saw his wife being alone with the man he had warned her about must divorce her "la'Tzeis Yedei Shamayim" and pay her Kesubah. This is something the Beis Din in this world cannot force him to do, but it is expected of the husband in Heaven.

c) This is why the Rambam in Hilchos Sotah does not mention explicitly the ruling of Rebbi Chanina of Sura -- because in Hilchos Sotah the Rambam cites only laws that the Beis Din can force the husband to comply with. In contrast, the Rambam in Hilchos Ishus, end of chapter 24, mentions laws that are necessary to fulfill the will of Shamayim.

d) This is why the Rambam, at the very end of Hilchos Sotah, where he does cite behavior which is appropriate to what is expected in Shamayim (as is the way of the Rambam, that he concludes his Sefarim with words of Musar) mentions a similar idea to that of Rebbi Chanina of Sura. This is what the Kesef Mishnah means when he writes that according to the letter of the law, we do not rule like Rebbi Eliezer. According to what Beis Din in this world can force people to do, we do not rule like Rebbi Chanina, but in the Dinim of Shamayim one should follow Rebbi Chanina.

(We now have an answer, bs'd, to the puzzle I posed above, at the end of "2)".)

Kol Tuv,

Dovid Bloom

I found two more Masechtos in which Rashi gives an explanation in the very first Mishnah which does not fit with the conclusion of the Gemara. Some Mefarshim ask how Rashi could write this way, but the answer given is that the way of Rashi is to explain in the Mishnah according to the Hava Amina. This is consistent with what I argued in my above reply.

1) The first example is from the first Mishnah in Yevamos 2b. The Mishnah states that if one of the 15 forbidden women mentioned there was later found to be an "Ailonis" (one who is not able to have children), the Tzarah is permitted. Rashi (first wide line on 2b) writes that the reason is that since it transpired that she is an Ailonis, the entire marriage was a mistake and she was never actually his brother's wife. The Nimukel Yosef (1a of the pages of the Rif, 6 lines from the bottom) cites the Rashba who is perplexted with Rashi, because Rashi's explanation is consistent with Rav Asi on 12a who says that if the husband knew in advance that she was an Ailonis, then the Tzarah is forbidden, because there was no mistake involved (since the husband was aware of her shortcoming). However, the Halachah does not follow Rav Asi, but rather it follows Rava (beginning of 12b) who says that even if he knew about her condition, the Tzarah is still permitted. The Tosfos Yom Tov writes that Rashi wrote this way because it fits better with the words of the Mishnah which states that she was "found" to be an Ailonis, which suggests that at the time of the marriage he did not know about it. Rebbi Akiva Eiger on the Mishnayos (#9) writes that the Tosfos Yom Tov's explanation is sufficient to explain Rashi, because Rashi's way is to explain according to the Hava Amina, since in this way the discussion of the Gemara will be well understood, as the Tosfos Yom Tov himself writes in the second chapter of Pe'ah (which I cited in my first reply).

In other words, the Tosfos Yom Tov answers that Rashi explained the Mishnah according to Rav Asi (even though we do not rule like Rav Asi) because Rav Asi's explanation fits better with the simple translation of the words "they were found to be an Ailonis."

2) The second example is from the first Mishnah in Maseches Kerisus. The Mishnah lists the 36 cases of Kares of the Torah. One of them is Bris Milah, since a person who did not have a Bris Milah is liable for Kares. Rashi (6th wide line, on the left side of the page) cites the verse, "And on the eighth day he shall circumcise his Orlah" (Vayikra 12:3). The problem is that this verse is not cited in Kidushin 29a as the source for the Mitzvah of Milah. Why does Rashi cite a verse that is not mentioned by the Gemara? The Teshuvos Tzitz Eliezer (8:32:4) answers along the same lines that we have been suggesting. He cites the Yad Malachi ("Rules in Rashi and Tosfos" #1, in the name of the Be'er Sheva; this is not exactly the same source that I cited in my first reply, but it is similar) who says that Rashi is accustomed to giving an explanation which is more simple, even though it does not follow the Halachah. That is why Rashi cites the verse of Vayikra 12:3 even though the Gemara cites different verses.

On the basis of these two examples, I want to strengthen my original suggestion that Rashi in the first Mishnah in Sotah cites the three most straightforward verses concerning the Tum'ah of the Sotah (the first two following the order of the way the incident happened, with the husband first warning her and afterwards her seclusion with the supected man, and finally the last time the word Tum'ah is stated in the Parshah). Even though these are not the verses mentioned by the Gemara on 28a, Rashi chose to cite the verses which give us the clearest idea of what is happening in the Parshah.

It seems that especially at the beginning of a Masechta, Rashi wants to make it as easy as possible for us to understand the Inyanim that we are about to learn, whether it is by citing the verses which are most simple to understand or whether it is by giving the simplest literal explanation of the Mishnah.

Kol Tuv,

Dovid Bloom