Wednesday, April 29, 2009

Caveat enterers!

This past Yud Shvat I made a hachlata (as prompted by my mashpia) to refrain from any sort of untznius posting. Thus far I have stayed on the straight and narrow, but tonight that all comes to an end, because tonight it's time for Klalei Sfeik Sfeikah 2-9! I can tell you're all wildly excited. That's right folks. We're in for a fabulous evening's apocalypse, complete with omelets for everybody!

A warning for those readers of ours who are in possession of a youthful persuasion: the Sifsei Kohen does get a little, shall we say, "explicit", so if you're reading this (aren't you up past your bedtime anyway?) and not of the age of majority then you might wish to reconsider.

All right, on with the show!

A sfek sfekah is when there are two sfekos, two doubts regarding something. One of the classic cases regards a man who comes to his local orthodox beis din and declares, "My wife has had relations with a man other than me!" Upon finding this to be true, does the beis din immediately take her out to killing fields? Of course not.

Who said she had these relations when she was married? And even if she did have them while in a state of marriage, maybe she was raped? This is a case of sfek sfekah, because neither condition is dependent on the other. Even if she wasn't raped (i.e. it was consensual), who says it happened after she was married?

Another classic case of sfek sfekah is when there is a kosher hen and a possibly-kosher hen with one egg among them. (A possibly-kosher hen is one that might be a treifah). The question is, of course, is the egg kosher?

The first safek is that the egg might have come from the kosher hen; even if it didn't, who says that the other chicken isn't in fact kosher?

The question is, since one of the sfekos is on a d'oraisa, why don't we say sfeka d'oraisa l'chumrah? In English, since there's a possible Torah prohibition (if the bird is in fact not kosher), why don't we follow the dictum that whenever there's a possible Torah prohibition we rule stringently?

We answer that in this case, when we look at the egg (whose status we're examining), we find that after the first safek we can assume that the egg is from the kosher chicken. And even if it's not, maybe the other chicken is really kosher anyway?

The same principle can be found in a case where some blood is found on a sheet following marital cord (the opposite of discord, right?). Actually, if I recall correctly, the loshon in the Shach is that a husband and wife were doing there thing.

Once again, there are two sfekos here. Who says the blood is from the woman? Maybe the guy was scratched?And even if the blood is of female origin, who says it's prohibited niddah blood (from the womb)? Perhaps it's from one of the corridors?

By the way, why is a woman every a niddah? After all, it's a always a safek! Well yes, that's true, but it's safek d'oraisa l'chumra. Regardless, in the above case, we can say the same thing as the chickens. We start with the the assumption that there's no problem, that the blood came from the hubbie. And even if it didn't, maybe it was non-niddah blood.

So how about if a possibly-treif chicken gets mixed up with a bunch of kosher chickens? Is there a sfek sfekah, because who says you've got that chicken, and even if this is it, who says it's treif anyway?

Actually, we rule that there is no sfek sfekah here. The reason is that we there are two different sfekos here, one in the body of the chicken itself (whether it itself is treif or not) and one in the mixture (whether you've got the possibly-treif one or not). This is called safek echad b'guf v'safek echad b'taaruvos, and it's not a sfek sfekah. A true sfek sfekah always is on one body, for example one egg, or one woman.

The mateh binyamin does permit this chicken, in fact, in a case where the safek was only recognized later, for example where the chicken's being a safek treifah was only revealed after it had been mixed up. The Shach rules that we can rely on this heter in a case of hefsed merubah (large financial loss) or else when the food is needed for a seudas mitzvah.

How about one last bonus case? It's called "tolin" and it only applies in a public domain.

What if there's two paths and one of those paths has a dead body buried underneath it. Problem is, we don't know which path it is. If someone walks on either of those paths he doesn't become tameh because he can always say that the other path is the impure one.

And what if two people walk on those paths? If they come before a rabbi separately, then they are both pure, because both can say that the other guy is the impure one. However, if they come together, then they're both impure, because one of them is certainly impure, and the safek is only which one it is. Since we say safek d'oraisa l'chumra, they're both impure.

Well, that was fun, I sure hope you all enjoyed it.

30 comments:

Crawling Axe said...

Yes.

le7 said...

F-U-N.

Crawling Axe said...

Frequently Unstable Neuroblasts?
French University of Numismatics?

sarabonne said...

Foundation for Ubiquitous Nonsense

at least that's what google has to say on the subject.

Modeh B'Miktsas said...

So you come to the infamous gavra cheftza issue. I'm duly impressed.

Re the sd"l thing: According to the ktzeis hacheishen in shev shmaysa shmaseh alef perek beis he shtells tzu vi der RAMBAM that mikar hadin safek d'oraisa l'kula.

The Real Shliach said...

I ignore the first 4 comments on grounds of insanity.

Modeh: when was the last time we could take advantage of these m'ikar hadins?

Nemo said...

Finally a worthwhile post on this blog!

Ok, so what if you have a safek treif hen together with a kosher hen and you find the egg lying there and don't know from whence it was laid. Then you slaughter the safek treifa and find out that it's a vadai treifa -- do you lose the sfek sfeika?

Modeh B'Miktsas said...

TTBOK not since the holchei usha at least. THe shev shmaysa is a pilpul sefer. The author explains in the hakdama that pilpul is idiocy (כסילות).
Nemo: I'm not a rabbit like the honorable shliach and as they say in yeshiva when to make am haartzishe teyre sound less so "I'm not in the sugya"but heres my take : before you kill the hen you have a safek that all agree is lchumra because you have no roiv to be mattir (a"s the infamous buthcher shop square) once you slaughter the hen you have a sfek sfeika in the other direction for which there is a technical term which i have since forgotten.

The Real Shliach said...

Nemo: ich vais nisht, but I would assume that it's not a sfek sfekah anymore.

Nemo said...

Not being in the sugya ... is that like not being in the Parsha?

Also, not sure what you're getting at here? According to the local "rabbit," Mr. Real Shliach, the safek d'oraisa here is negated by the fact that it is a sfek sfaika - unsure which produced the egg + unsure if the chicken is a treifa. Now, in my scenario, you've removed the latter safek - can you still rely on it's previous status of sfek sfeka or do you deal with current exigencies and say that, indeed, this is only one safek.

To complicate (or perhaps simplify, considering we're dealing in legal fictions) the matter further, there may be a doubt as to when the hen became treifa. If it was before the egg developed, this egg is certainly treif. But if it was after the egg developed, the egg is muttar. Since we have this doubt, we can likely assume that it's treifus only developed after the laying of the egg, because when the egg was laid, it was still in the status of safek. (A similar postulate is used for making milk kosher when the cow is found to be a treifa upon its schechita)

My advice: just don't kill the chicken and you'll never have to know. Or better yet, don't check the bird, just go by the roiv assumption of birds/animals being muttar.

The Real Shliach said...

Oh, very interesting.

e said...

yeah, yoreah deah is a pain in the backside.

The Real Shliach said...

Strangely enough, this sfek sfekah business has been the most entertaining of the lot. It's great to hear a rabbi say, "I have no clue" several times a day.

e said...

isn't it troubling?

The Real Shliach said...

Why?

e said...

what kind of law is religion, that even the experts can't figure it out?

Crawling Axe said...

The infinite kind?

The Real Shliach said...

Exactly. Just shows you that no one knows everything, which is cool.

Crawling Axe said...

Someone knows everything.

The Real Shliach said...

No one person knows everything.

Nemo said...

I don't get what makes it superior to any other form of law where you can just invent fictions when things get too complicated. Maybe just a little more restraint because Jews think the universe is going to end if G-d forbid they screw it ...

Like, why is it that Shulchan Aruch advises you (the rabbis) to do Pesharah and not go for Din Torah? There's the shalom-making reason, but SA also says that you shouldn't do Din Torah because no body is an expert in it ... is this really so? Isn't it possible to become an expert by learning it well enough and having excellent shimmush? Are we that afraid of a metaphysical blunder that we avoid serving justice?

The Real Shliach said...

So you're saying it's an ego thing.

Modeh B'Miktsas said...

In short yes.

Nemo, in your case there is a sfeka (egg from which chicken) then one of the chickens is a safek treifa. That means you have a sfek sfeika. Then the chicken turns out to be a vadai treifa. One of your sfeikos is now a vadai. And the other one is noteh towards issur. Thus leading us to the technical term which I forgot and also forgot to ask my local genius boki in everything when I spoke to him yesterday.

Nemo said...

I'm saying we need to empower our rabbis with better training, more confidence in their abilities, less unnecessary humility or restraint, and a margin of error, just so they don't have to feel like they'll commit a cosmic wrong if they misapply Halacha. No body has to be perfect, just try to make justice available.

And if that's not enough to put their saintly crowns back on their heads, make a system of appeals/review in case they do something wrong ... which will ensure they do things right the first time.

The Real Shliach said...

Modeh: Nemo's case could still be a sfek sfekah.

Nemo: Spoken like a true law student.

nemo said...

Actually, I used to think like this when I was but a young yeshiva bochur learning Choshen Mispaat (yeah, I did that for a while ...)

The Real Shliach said...

So now how do you think?

Nemo said...

I tend to put this draconian stuff out of my mind.

The Real Shliach said...

Draconian? Is it that bad?

Nemo said...

Sorry, I just took an exam yesterday and must've used the word about six times ... I guess it just slipped again.