Klalei Halacha: Difference between revisions

# There is a discussion if safek derabbanan lkula allows doing something initially or only after the fact. Some rishonim hold it is only permitted after the fact.<ref>Reem on Samag Megillah writes that the principle of Safek Derabbanan is only permitted after the fact. Ran Menachot 65a agrees. Rav Ovadia in Chazon Ovadia v. 1 p. 201 supports this from the position of the Ran, Maharam Chalavah, and Raavad that when it is easy we should be strict for a safek derabbanan.</ref> However, others hold that safek derabbanan is permitted even initially.<ref>Ramban Yevamot 24a, Rashba (responsa 4:48). Pri Chadash (Klalei Safek Safeka 110:4) holds that safek derabbanan is permitted even initially. Rav Ovadia cites many who agree including the Get Mekushar 147c, Divrei Emet 9:4</ref>

# The Shach<ref>Klalei Safek 110:21, Shach 111:4</ref> holds that when there is a chazaka of an isur we're strict about a safek derabbanan, while the Pri Chadash disagrees. Gilyon Hashas Brachot 12a explains that the Ri holds like the Shach. Rashba Niddah 61b s.v. ha clearly seems to side with the Pri Chadash who is lenient. See further in Yabia Omer YD 8:5 and Taharat Habayit v. 3 p. 11. Sidrei Tahara end of 199 cites Taz in Hilchot Chatzitza who is lenient. Rash Mikavot 2:2 implies that he's lenient. Shaar Hamelech Mikvaot 10:7 writes that the dispute in the Tosfot Pesachim 9a centers around whether you can have a safek derabbanan lkula if there was a chazaka of it being asur. How do we pasken on those answers? (See Gra YD 331:84 who says we’re lenient but Derech Emunah Maaser 3:63 disagrees.) Shach YD 110:21 is strict. Pri Chadash 110:34 and Taz 198:21 are lenient. Sidrei Tahara 199:40 and Taharat Habayit (v. 3, pp. 85-6) discuss this at length. Taz YD 69:24 is lenient and the Shaar Hamelech Mikvaot 10:7 disagrees. Meor Yisrael Pesachim 9a answers locally for the Taz but also that we’re lenient on every safek derabbanan where there’s a chezkat isur. Chida in Machzik Bracha 69:14 agrees with Pri Chadash. Meor Yisrael Pesachim 4a s.v. hamaskir (1) brings a proof for the Pri Chadash from Rosh Pesachim 1:2.

# Rabbi Akiva Eiger in Beitzah 14a writes that the peshat in Tosfot is not that something for which you have a safek which would lead to a kula in opposite cases is asur. He says that’s wrong and against Shabbat 34b that for ben hashemashot we say we’re lenient for derabbanan’s like establishing an eruv even if for one person it is valid because he only set it up in middle of ben hashemashot and the other person’s had a dog eat his in middle. Same is true of one person over multiple shabbaton. Rather that peshat is wrong. Peshat in tosfot is dvar sheyesh lo matirin. He said he had an argument with the baal bet meir about this and this is how the bet meir concluded. (He’s assuming it is a dvar sheyesh lo matirin because you could grind it with a shinuy, that’s like the rif and not trumat hadeshen; also it is against pri chadash that dvar sheyesh lo matirin doesn’t apply to machloket haposkim; also it is against nodeh beyehuda’s idea of dvar sheyesh lo matirin by moving muktzeh; R’ Sarfaty in chabura on beitzah pointed this out).  

# Raavad in the Katuv Sham in Beitzah 14a says that anyone who listens to the pesak of tosfot to be machmir on both cases of spices is a kesil bchoshech holech. The Baal Hameor agreed with Tosfot. This is my addition.  

# Raavad in Baalei Hanefesh (cited by rosh niddah 9:2 and s”a 184:4) writes that originally he was machmir for a veset safek by day and safek by night on both. Then he concluded to be lenient and only asur the daytime one. The Baal Hameor in the end is lenient as well. S”A follows the raavad. Chatom sofer on s”a says that s”a is wrong because of other opinion in raavad said tartei dsatrei kulot here so why be lenient you have to be machmir on both. He compares it to a case of being toleh a ketem with two woman (niddah 60a) which we’re machmir on because of chucha vtelula. Rest of poskim follow s”a. Haflah on yd 184:4 says in theory chatom sofer’s right from Tosfot Beitzah 14a but the raavad came up with a hachraah why the second was more chamur.

# Rashba Brachot 31a cites a dispute regarding something which is a Biblically forbidden but there’s a doubt if it is forbidden and additionally another reason why it might not be a Biblical prohibition but would be a rabbinic one. Do we say safek safeka in such a case?  

# How it works: The [http://www.hebrewbooks.org/pdfpager.aspx?req=19550&st=&pgnum=33 Teshuva Mahava 234] explains that seemingly it is a safek that isn't mithapech since one safek is whether it is Biblical or rabbinic. Either way according to that safek it is forbidden. He explains that on a Biblical level it is a safek safeka that is mithapech.

* The Shulchan Aruch O.C. 8:9 states that one should check his tzitzit before reciting a bracha upon it each morning even though there is a chazaka that it was kosher the previous day. Magen Avraham 8:11 compares this to YD 1 where it is necessary to check into the status of the shochet even though there's a majority that are experts. Dagul Mirvava (on Magen Avraham 8:11) notes that the Magen Avraham seems to be in contradiction his ruling in Magen Avraham 437:4 that it is only necessary to further investigate if there was a chazaka of something prohibited. Nodeh Beyehuda OC 2:1 also notes this contradiction. In Hilchot [[Niddah]], Dagul Mirvava on Shach YD 187:19 proves that this is also the position of the Shach. Generally, the Magen Avraham and Shach's position is also that of the Bet Yosef OC 437:2 as the Magen Avraham notes. However, Chatom Sofer answers the Nodeh Beyehuda's question by saying that a chazaka does need verification always, whereas a rov doesn't unless it is going against a chazaka of something previously prohibited. Even though a majority is greater than a previous chazaka it is only slightly better and still needs to be verified. When there is no previous chazaka of something prohibited the majority doesn't need any verification. However, a chazaka is intrinsically weaker and as long as there's some concern something could have changed it always needs to be verified. Even Haazel Chametz Umatza 2:17 agrees. The Bach 437:2 argues with the Bet Yosef and differentiates between whether the permitted status is established with an action or a natural phenomenon. If it is based on an action then it needs to be verified since it is subject to error, however, if it is a naturally occurring process it doesn't need to be verified. See Meor Yisrael Pesachim 4a s.v. lmay who compares the argument of the Bach to Bechorot 20a. See Yabia Omer EH 7:1:2.  

* An alternate approach is taken by the Gra (on OC 8:9). He addresses the issue by stating it depends on whether there is a ''miyut hamatzuy''. In the case of Pesachim 4a there is a ''miyut hamatzuy'' of people who don't do [[bedikat chametz]] and as such it needs verification. The same is true of checking whether the shochet was an expert or whether the [[tzitzit]] strings broke. However, the other terefot besides the lungs don't need to be verified since there isn't a ''miyut hamatzuy'' of terefot. Chatom Sofer (on Magen Avraham 437:4) agrees. This is almost explicitly also the approach of the Ran Chullin 3b s.v. vheycha. See further the Ritva Pesachim 4a.  

* See also Avnei Nezer YD 1 for a novel explanation as to why the Gemara Pesachim 4a uniquely requires verification. Finally, note that the Rambam Chametz Umatzah 2:17 entirely omits the Gemara Pesachim 4a's requirement for verification. Pri Megadim E"A 437:4 supposes that the Rambam held like the Bach 437:2's reading of the gemara that it is never necessary to verify something established with a majority. </ref>