Klalei Halacha

From Halachipedia
Jump to: navigation, search

Safek Derabbanan Lkula

  1. 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.[1] However, others hold that safek derabbanan is permitted even initially.[2]
  2. Some say that everyone agrees that safek isur derabbanan lkula is permitted even initially, but only a safek mitzvah derabbanan lkula is to be avoided initially.[3]

Safek Derabbanan Lkula Bchezkat Isur

  1. The Shach 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 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 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.

Safek Safeka

  1. Some say that safek safeka is only permitted after the fact.[4] Many others disagree.[5]

Safek Safeka MShem Echad

  1. A safek safeka that both sefakot rely on the same leniency isn't a safek safeka and is termed safek safeka mshem echad.[6] If one of the sefakot permit more than the other it is a valid safek safeka.[7]

Safek Derabbanan Lkula - Safek Eched Deoritta Safek Eched Derabbanan

  1. 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?
  2. The Gemara Pesachim 9a implies that a case where there’s a doubt if it was checked for chametz and additionally there’s a doubt if bitul chametz occurred it must be checked again. That seems to prove that it isn’t a safek safeka and is forbidden. The Rashba answers that chametz might be more serious than other prohibitions. The Tosfot HaRash Pesachim 9a answers that the case was where there was no bitul. They’re both assuming that we would apply safek safeka in such a case.
  3. Do we follow that answer of the Rashba or Rash? Locally in Brachot 31a this question which the Rashba was discussing affects a case of food brought into the house unprocessed whether it is exempt from trumah altogether. The Gra YD 331:84 writes that we follow the strict opinion in that discussion and accordingly we’d be lenient to consider it a safek safeka. Rav Chaim Kanievsky in Derech Emunah Maaser 3:63 holds that the Rambam is lenient and if so we’d be strict about the safek safeka.
  4. Shach Klalei Safek Safeka YD 110:16 writes that is a safek safeka. A proof for this can be found in Rama YD 122:9 and Shach 122:8.
  5. Application: Rabbi Akiva Eiger OC 184 says it about if a woman isn't sure if she said birkat hamazon that she doesn't have to repeat it.
  6. How it works: The 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.

Safek Safeka With Kulot that are Soter One Another

  • LChumra: Tosfot Niddah 27a and Bava Kama 11 are machmir. Pri Megadim Klalei Safek Safeka Hamechudashim n. 1 codifies this.
    • Derabbanan’s: Ginat Veradim of pri megadim klal 2 says that the whole din of two sefakot that are soter one another might only apply to a deoritta safek safeka but not safek derabbanan lkula. It is like a taz and against a darkei moshe. Rabbi Akiva Eiger 49 is machmir.
  • LKula:
  1. Maharshal on niddah 27a asks on tosfot so what there’s two kulot that are soter each other why can’t you be meikel on either you choose, why machmir on both. It is like kesil bchoshesh holech. Rav Ovadia in Taharat habayit v1 p276 quotes this and adds that the binyan tzion 1:60 and torat shlamim 187:29 agree. Rav Ovadia is machmir in end. (Maharsha there answers for tosfot. Aruch Lner niddah 27a says that from the proofs of tosfot it is mutually exclusive to prove kulot which are tartei dsatrei lchumra and also hold safek safeka doesn't work bchezkat isur (shach klalim 29). Therefore, acc to pri chadash we could accept tosfot but not acc to shach.)
  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).
  3. 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.
  4. Korban Netanel moed katan 2:80 points out that the rosh and rif m”k are meikel on a mochleket amoraim for chol hamoed in both directions even though rosh beitzah agreed with tosfot. He said that tosfot beitzah 14a was only machmir because it was a safek cheshron yediya of which amora was the rav and which talmid so it was barur the din but we don’t know what it was.
  5. 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.
  6. Pri Megadim E”A 538:2 cites from mishna lmelech megillah based on ran pesachim 108a that if it isn’t oker takana completely it is muter to be lenient in both directions. Gra on s”a 538 says s”a is stirah to s”a 504 by yom tov. Tzarich iyun.
  7. Rabbi Akiva Eiger megillah 5b s.v. nitkashti seems to be assuming unlike tosfot bk 11 as he’s trying to explain why the gemara ask on rebbe who did melacha maybe it was because of safek derabbanan. There he backs down because of pri chadash that safek dvar shyesh lo matirin doesn’t apply to a machloket haposkim. See R’ Yitzchak Yosef’s article on tartei dsatrei bderabbanan in Ayin Yitzchak Shulchan Marechet p.55 who quotes his father’s answer (Chazon Ovadia 1:13:198) to this R’ Akiva Eiger based on tosfot bk 11 and nidah 27 and the yerushalmi megilah.
  8. With respect to tefillah see tosfot brachot 2a and kehilat yakov that avid kmar is unique because of elu velu.

Safek Safeka with Chezkat Isur

  1. Some poskim disallow a safek safeka if it contradicts a chezkat isur,[8] while others permit it.[9] Everyone agrees that a safek safek safeka works even if there's a chezkat isur.[10]

Safek Safeka Lheter against a Safek Safeka Lisur

  1. If there are three safekot to permit something and only two to forbid it it is still considered a safek safeka and it is permitted.[11]

Sources

  1. 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.
  2. 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
  3. Rav Ovadia citing the Mutzal M'esh 13 based on Menachot 68b, Michtam LDovid 17 s.v. amnam
  4. The Reem on Smag Megillah writes that safek safeka is only permitted after the fact. See Rosh Bechorot 9a
  5. Rav Ovadia in Chazon Ovadia 1:202 citing Perach Shoshan EH 3:2, Kol Eliyahu YD 2:2, Rosh A"Z 2:35
  6. Tosfot Ketubot 9a
  7. Shach Klalei Safek Safeka n. 12. His proof is Tosfot Avoda Zara 38b with regards to Stam Kli Eino Ben Yomo.
  8. Shach 110:27, Taz 110:15
  9. Rama 110:9, Pri Chadash safek safeka 16. See Rashba teshuva 401
  10. Shach 110:28
  11. Rama 96:4 since it might not be cut with a non-kosher knife and the food might not be charif and the knife was eino ben yomo. The knife being eino ben yomo itself is a safek safeka.