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Klalei Halacha: Difference between revisions
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==Safek Derabbanan Lkula Bchezkat Isur== | ==Safek Derabbanan Lkula Bchezkat Isur== | ||
# 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. | # 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 and Nekudat Hakesef 69:5) 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 10:6:7 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. | ||
## Shach YD 201:148 contradicts himself and holds that safek derabbanan lkula is permitted even where there's a chezkat isur. Chazon Ish (Mikvaot 10:2) notes this contradiction. | ## Shach YD 201:148 contradicts himself and holds that safek derabbanan lkula is permitted even where there's a chezkat isur. Chazon Ish (Mikvaot 10:2) notes this contradiction. | ||
# If there was a piece of something rabbinically forbidden that was recognizable in its own place before it fell into a mixture then it isn't considered itchazek isura and we're lenient to apply ''safek derabbanan lkula''. If the pieces weren't recognizable when they fell into a mixture then it is considered itchazek isur and according to the Shach we don't apply ''safek derabbanan lkula''.<ref>Shach 111:4, Pri Megadim S"D 110:38</ref> | # If there was a piece of something rabbinically forbidden that was recognizable in its own place before it fell into a mixture then it isn't considered itchazek isura and we're lenient to apply ''safek derabbanan lkula''. If the pieces weren't recognizable when they fell into a mixture then it is considered itchazek isur and according to the Shach we don't apply ''safek derabbanan lkula''.<ref>Shach 111:4, Pri Megadim S"D 110:38</ref> | ||
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==Safek Derabbanan Lkula when one didn't do anything== | ==Safek Derabbanan Lkula when one didn't do anything== | ||
# Mishna Lmelech<ref>Bechorot | # Mishna Lmelech<ref>Hilchot Bechorot 4:1</ref> writes that safek derabbanan lkula only applies if he did something to permit the rabbinic prohibition. However, if he did nothing (''dvar hamatiro'') and there just is a safek, it is forbidden. However, Shaar Hamelech<ref>Mikvaot (10:6:1 and 7 at the end)</ref> argues. Here are his proofs: | ||
## Gemara Brachot 21a states that if Shema is only derabbanan and there's a safek if someone said Shema he doesn't need to repeat it. That indicates that safek derabbanan lkula is applied even though it is possible that no action was taken. However, it is possible to answer for Mishna Lmelech that a rabbinic mitzvah is more lenient and this type of safek is sufficient. | ## Gemara Brachot 21a states that if Shema is only derabbanan and there's a safek if someone said Shema he doesn't need to repeat it. That indicates that safek derabbanan lkula is applied even though it is possible that no action was taken. However, it is possible to answer for Mishna Lmelech that a rabbinic mitzvah is more lenient and this type of safek is sufficient. | ||
## Taz YD 69:24 writes that if someone doesn't remember if they salted a piece of meat before cooking it, it is permitted based on safek derabbanan lkula. Knesset Hagedola (Hagahot Bet Yosef 69:31) agrees. This implies that even though it is possible that no action was taken safek derabbanan lkula applies. | ## Taz YD 69:24 writes that if someone doesn't remember if they salted a piece of meat before cooking it, it is permitted based on safek derabbanan lkula. Knesset Hagedola (Hagahot Bet Yosef 69:31) agrees. This implies that even though it is possible that no action was taken safek derabbanan lkula applies. | ||
## Gemara Pesachim 9a is clear that fruit which were untithed in the possession of a religious person who passed away and it isn't clear if the owner tithed them before he passed away are permitted. This is an application of safek derabbanan lkula even though it is possible that nothing was done to permit the prohibition. See Shaar Hamelech how he deflects this proof. | ## Gemara Pesachim 9a is clear that fruit which were untithed in the possession of a religious person who passed away and it isn't clear if the owner tithed them before he passed away are permitted. This is an application of safek derabbanan lkula even though it is possible that nothing was done to permit the prohibition. See Shaar Hamelech how he deflects this proof. | ||
## Ran and Rashba (Chullin Elu Terefot) write that food which is muchzak to be infested with bugs is forbidden even if it is cooked and perhaps the bugs dissolved. Seemingly, that indicates that safek derabbanan lkula does not apply if nothing was done to permit the prohibition. However, this can be because of the reason that safek cannot change a vaday or safek derabbanan does not apply if there's a chezkat isur. | ## Ran and Rashba (Chullin Elu Terefot) write that food which is muchzak to be infested with bugs is forbidden even if it is cooked and perhaps the bugs dissolved. Seemingly, that indicates that safek derabbanan lkula does not apply if nothing was done to permit the prohibition. However, this can be because of the reason that safek cannot change a vaday or safek derabbanan does not apply if there's a chezkat isur. | ||
## Mishna Mikvaot 2:2 establishes that according to Tana Kama safek derabbanan lkula applies to a person who is tameh midrabbanan even if there's a question he went to mikveh. Seemingly, this proves that safek derabbanan lkula applies even if it is unknown if anything was done to permit the prohibition. Mishna Lmelech answers that the case must be where the person who is tameh went to dip in the mikveh and there's a question if he dipped his body in the mikveh completely or if there was a chatzitza. This discussion is quoted by Pitchei Teshuva 201:44. | |||
## Tur OC 394:1 holds that if there's a safek if he left the eruv he may not rely on it for carrying in the chetzer. This is Mishna Lmelech's proof to his thesis. Shaar Hamelech argues that the reason for this is there's two safekot why this would be forbidden: maybe he didn't place the eruv and maybe the eruv didn't last until ben hashemashot. If there's a safek safeka against a safek derabbanan Tur might hold that this is forbidden. | |||
==Safek Safeka== | ==Safek Safeka== | ||
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==Chazaka - Tzarich Levarer== | ==Chazaka - Tzarich Levarer== | ||
# Something which is permitted based on the principle of chazaka should be checked to verify that it is nonetheless still the case. Some say that this is only necessary when there is a previous status of a forbidden chazaka.<ref>The Rashba Chullin 10b establishes that when if something is permitted based on a previous status which established a chazaka if it can be verified it should be. For example, if a shochet's knife was previously knife it should nonetheless be checked before being used. | # Something which is permitted based on the principle of chazaka should be checked to verify that it is nonetheless still the case. Some say that this is only necessary when there is a previous status of a forbidden chazaka.<ref>The Rashba Chullin 10b establishes that when if something is permitted based on a previous status which established a chazaka if it can be verified it should be. For example, if a shochet's knife was previously knife it should nonetheless be checked before being used. | ||
* 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. | *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. | *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> | *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. | ||
*Ran (Respona 66) writes that it is a good thing to check the mikveh that it has 40 seah before using it even though the chazaka is that it is kosher and it isn't known to change over time. Ran compares this with checking the house if it had bedikat chametz. This clearly indicates that it is necessary to check something established by a chazaka. Shulchan Aruch YD 201:65 codifies this. This seems to be against Bet Yosef and Magen Avraham 437 but can be explained by Chatom Sofer that something with a chezkat heter needs a birur. Gra 201:115 follows his position to explain that it is only necessary to check if there's a miyut hamatzuy of there being an issue.</ref> | |||
==Safek Safeka - Tzarich Levarer== | ==Safek Safeka - Tzarich Levarer== | ||
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==Safek Deoritta Lchumra== | ==Safek Deoritta Lchumra== | ||
#Rambam holds that safek deoritta lchumra is only rabbinic and is learned from a derivation the rabbis made regarding mamzer.<Ref>Rambam (Responsa Blau, siman 310). Rav Shlomo Ginzler (Yeshrun p. 34) quotes the fuller text of that teshuva with the line that makes it clear that safek deoritta lchumra is only derabbanan is learned from mamzer vaday v'lo mamzer safek.</ref> | #Rambam holds that safek deoritta lchumra is only rabbinic and is learned from a derivation the rabbis made regarding mamzer.<Ref>Rambam (Responsa Blau, siman 310). Rav Shlomo Ginzler (Yeshrun p. 34) quotes the fuller text of that teshuva with the line that makes it clear that safek deoritta lchumra is only derabbanan is learned from mamzer vaday v'lo mamzer safek.</ref> | ||
#If there's a safek deoritta about the past status of an item, but right now it appears kosher, there's a machloket if that item is permitted.<ref>Taz 201:85 indicates that Ran holds that a mikveh which is not known to leak is kosher if it was known to have 40 seah and currently has 40 seah. Even though it is unknown that there were 40 seah when someone used it in between that is fine since there's no suspicion that it became invalidated. This implies that if it wasn't known to begin with that it had 40 seah it would be an issue. However, Rash Mikvaot 2:1 implies this is permitted. Taz adds that it is possible that even Ran agrees that it is permitted.</ref> | |||
==Sources== | ==Sources== | ||
<references/> | <references/> | ||
[[Category:Rules for Determining Halacha]] | [[Category:Rules for Determining Halacha]] | ||
