80a: How Strong Are Halakhic Assumptions?

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=79b&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

In our last shiur, we began to study the mishna and gemara on 79b-80a that further analyze the central topics of the fourth chapter of Masekhet Kiddushin: yuchesin and chazaka. As we have learned, yuchesin refers to genealogy, specifically genealogical purity. Chazaka refers to a halakhic presumption that a given situation is consistent with the general norm or that a known status quo has been maintained. In the context of our discussion, these concepts are applied as follows: if a woman and children visibly interact in the way that mothers and children normally do, we can legally presume this relationship to exist, barring any indications to the contrary. Thus, if children are being raised by a particular woman and relate to her as their mother, we assume that she is, in fact, their mother, and the halakhic ramifications of this relationship apply; if the woman is known to be of pure genealogy, the children are also considered to be genealogically pure.

The gemara continues by showing just how far we are willing to go in the extent to which we trust chazakot. We are up to eighth line of 80a.

 

 

We stone and burn based on chazakot - like Rabba bar Rav Huna, for Rabba bar Rav Huna said: A man and woman; a boy and girl that they raised in the house - they are stoned one for another and burned one for another. Rabbi Shimon ben Pazi said in the name of Rabbi Yehoshua ben Levi in the name of Bar Kappara: There was an incident with a woman who came to Jerusalem with a young boy carried on her shoulders, and she raised him and he came onto her, and they brought them to court and stoned them; not because he was definitely her son, but because he was "tied to her."

סוקלין ושורפין על החזקות - כדרבה בר רב הונא, דאמר רבה בר רב הונא: איש ואשה; תינוק ותינוקת שהגדילו בתוך הבית - נסקלין זה על זה ונשרפין זה על זה. א"ר (אמר רבי) שמעון בן פזי אמר רבי יהושע בן לוי משום בר קפרא: מעשה באשה שבאת לירושלים ותינוק מורכב לה על כתיפה, והגדילתו ובא עליה, והביאום לבית דין וסקלום; לא מפני שבנה ודאי, אלא מפני שכרוך אחריה.

The gemara here states that the legal presumption established by chazakot is deemed so concrete that we are even willing to implement the death penalty on the basis of such a chazaka. Thus, Rabba bar Rav Huna taught that if a couple raises children in their home, we assume that the parent-child relationship does exist, to the point of applying the death penalty where applicable: if an incestuous relationship would take place, the guilty parties would be executed. The punishment for a relationship between father and daughter is burning, while and mother and son who engage in an incestuous relationship are stoned to death. Thus, if a man and woman raise a boy and girl in their household, they can be stoned or burned based on the relationship that presumably exists.

As a support to this ruling, the gemara quotes an actual incident in which the ruling was applied. A woman emigrated to Jerusalem with a young boy that she raised as her son. Years later, the mother and son engaged in sexual relations and were stoned to death. The gemara emphasizes that this was not because there was objective proof that the boy was actually this woman's son, but because he was "tied to her," meaning that as a young boy he was attached to the woman in the way that children are attached to their mothers. In other words, the relationship was confirmed via chazaka and not through the objective standard of witnessing the birth; nevertheless, the relationship was considered to be fully established and the death penalty could be implemented.  

At this point, the gemara relates a limitation on the strength of chazakot. We are almost halfway down the page on 80a, at the last word on the line.

 

 

And we do not burn teruma based on chazakot - for Rabbi Shimon ben Lakish said: We burn based on chazakot, and Rabbi Yochanan said: We do not burn.

ואין שורפין תרומה על החזקות - דאמר ר' שמעון בן לקיש: שורפין על החזקות, ור' יוחנן אומר: אין שורפין.

As we have mentioned in the past, teruma is a type of sanctified food. Israelite farmers are commanded to separate a part of their produce, declare it to be teruma and give it to a kohen (based on Bamidbar 18:12). Only kohanim can eat teruma, and it must be kept in a state of tahara, ritual purity. If teruma does become tamei (impure), it must be burned. Otherwise, however, it is forbidden to destroy teruma. What if we do not know with absolute certainty that teruma has become tamei, but we do have indications - based on chazaka - that this is the case? Rabbi Shimon ben Lakish - also known as Reish Lakish - rules that we burn the teruma, while Rabbi Yochanan rules that we do not.

 

Is it really possible that according to Rabbi Yochanan we will apply the death penalty based upon chazaka but we will not burn teruma on the basis of chazaka? Think about this question as we continue the sugya...

The gemara continues to expound upon this point:

 

 

And they go according to their reasoning (each is consistent), for it was taught in a mishna: A young child that was found next to a dough and [there is] dough in his hand - Rabbi Meir [says the rest of the dough] is pure, and the Sages [say it is] impure. And we asked about it, what is the reason of Rabbi Meir? He reasons: most young children poke about [and touch contaminated objects] and a minority do not poke about, and the dough has a chazaka of purity; join the minority and the chazaka, the majority is weakened. And the Rabbis? The minority is like it does not [exist]; a majority and a chazaka - a majority prevails. Reish Lakish said in the name of Rabbi Oshaya: This is [the case in which] we burn teruma on it (on the basis of chazaka). Rabbi Yochanan said: This is not a chazaka upon which we burn teruma.

ואזדו לטעמייהו, דתנן: תינוק שנמצא בצד העיסה ובצק בידו - ר"מ (רבי מאיר) מטהר, וחכמים מטמאין, מפני שדרכו של תינוק לטפח. והוינן בה, מאי טעמיה דר"מ? קסבר: רוב תינוקות מטפחין ומיעוט אין מטפחין, ועיסה בחזקת טהרה עומדת; וסמוך מיעוטא לחזקה איתרע ליה רובא. ורבנן? מיעוטא כמאן דליתא דמי, רובא וחזקה רובא עדיף. אר"ל (אמר ריש לקיש) משום רבי אושעיא: זו היא ששורפין עליה את התרומה. ר' יוחנן אמר: אין זו חזקה ששורפין עליה תרומה.

The blanket statement that we learned above, that Reish Lakish claims that we burn teruma based upon chazaka while Rabbi Yochanan disagrees, is consistent with another teaching in which Reish Lakish and Rabbi Yochanan disagree. The presentation starts with a mishna, found in Masekhet Taharot (3:8). A short introduction to the concepts dealt with in this mishna is in order here. Sheratzim are certain types of insects and other small creatures. As recorded in Vayikra (11:29-31), the carcasses (or severed limbs) of sheratzim cause tuma, ritual impurity, to one who comes in contact with them. A person who contracts this tuma can then contaminate food items by touching them. With this in mind, we can approach the mishna quoted in our gemara.

A child is found near a batch of dough, and he himself has dough in his hand, a clear indication that he has come into contact with the dough. The question now (as explained by Rashi, s.v. Semokh mi'uta; see Tosafot s.v. She-darko for a different explanation) is if the child should be considered tamei through contact with a sheretz. The fact is that most children poke about in the trash heaps outside and are liable to have touched a sheretz. On the other hand, there is a minority of children that do not, and are tahor. In addition, the dough itself was originally pure, and should be assumed to remain in that status until we know otherwise. The Tanna'im dispute how we should resolve this dilemma.

Rabbi Meir argues that since the dough itself has a chazaka of being tahor, and, since there is a minority of children who are tahor, it is not certain that the status of the dough has changed, we should continue to assume that the dough is tahor. Even though there is a rov (majority) in support of the change in status, the mi'ut (minority) of children who are tahor combines with the chazaka that the dough is tahor, and overrides the rov. The Rabbis argue that the minority should be discounted; thus, it can be considered a certainty that the dough has become tamei, because the child is considered tamei.

The gemara now quotes the responses of Reish Lakish and Rabbi Yochanan to this mishna. Reish Lakish quotes Rabbi Oshaya's ruling that this would be a situation in which we would burn teruma based upon a chazaka. In other words, if the dough was teruma, we will be so convinced that it is tamei, based upon the assumption that the child is tamei (this is due to the rov, which the gemara here refers to as a chazaka), that we will even burn the teruma. Rabbi Yochanan, however, is concerned about the opinion of Rabbi Meir; therefore, he does not approve of burning the teruma, in case it is not really tamei. Thus, Reish Lakish is willing to burn teruma based upon the chazaka, while Rabbi Yochanan is not.

All of this must be understood in context of what comes next. We are ten lines from the bottom of 80a.

 

 

Rather, upon which chazaka, [according] to Rabbi Yochanan, do we burn teruma? As it was taught in a [beraita]: A dough in the house and sheratzim and frogs lose limbs there, and pieces are found in the dough; if most are sheratzim - it is impure, if most are frogs - it is pure.

אלא איזו חזקה לרבי יוחנן ששורפין עליה את התרומה? כדתנן: עיסה בתוך הבית ושרצים וצפרדעים מטפלין שם, ונמצאו חתיכות בעיסה; אם רוב שרצים - טמאה, אם רוב צפרדעים - טהורה.

The gemara here builds upon its unspoken assumption that Rabbi Yochanan does not negate the possibility of ever burning teruma based upon a chazaka; he simply holds that the previously mentioned chazaka was not strong enough to do so. However, there is another case in which even he agrees that we burn teruma based upon a chazaka.

The gemara introduces the case with the word כדתנן, which always indicates a mishna. However, note the asterisk in the standard page of the printed Gemara, which refers the reader to the inside margin of the page. There, in brackets, it says צ"ל כדתניא, which means that it should say (צריך לומר) the word כדתניא instead, which refers to a beraita. The beraita discusses a case in which actual limbs of small creatures are found in the dough. The question is the identity of the creature from which these limbs emanated. Frogs are not considered sheratzim, but there is one type of sheretz, the tzav, that is quite similar to a frog, and it is difficult to tell if the limbs are from a frog or a tzav. The beraita rules that if frogs are more commonly found in that place, we can assume it is from a frog, and the dough remains tahor; if, however, the tzav is more common, we must assume that the limb is from a tzav, and the dough is considered tamei. This, the gemara says, is a case in which even Rabbi Yochanan would agree that we would burn teruma based upon chazaka.

Why should there be a difference between the different types of chazaka? According to Reish Lakish, it seems as though any chazaka is enough to burn teruma, just as it is enough to apply other applicable halakhot. But according to Rabbi Yochanan, it seems to depend on the specific chazaka at hand; why should that be?

Rashi here (s.v. Im rov sheratzim) explains that this latter case is a rubba de-ika kamman, while the first case is a rubba de-leita kamman. These are the two main prototypes of rov. Rubba de-ita kamman referes to a case in which the possible options are in front of us. For example, if there is a food item that may have come from any one of ten possible stores, nine of which sell only kosher food and one of which sells non-kosher food, that is a rubba de-ita kamman, as all of the options are visibly in our presence. Similarly, in the second case, the frogs and sheratzim are present in the house, and the question is which of them is the source of the limb that has been found in the dough.

Rubba de-leita kamman refers to a case in which the options are not in front of us, but we make an assumption based on statistical projections. For instance, the halakha is that if one kills someone who had certain types of serious internal defects, the death penalty is not applied (since the victim was nearing the end of his life in any case). If so, the gemara (Chullin 11b) asks, how can we ever kill a murderer? Perhaps the victim had an internal defect in the very place that he was injured by his attacker, and which will therefore not show up in inspections! The answer is that since most people do not have these defects, we can assume, on the basis of rov, that the victim also did not have a defect in that place. This is similar to the first case in our gemara: the question is whether this child is or is not tamei, and the assumption is made on the basis of statistical projection, without the presence of tangible options in front of us.

Apparently, according to Rashi, Rabbi Yochanan assumes that rubba de-ita kamman is more likely to be relied upon than rubba de-leita kamman with regard to establishing that a batch of teruma has become tamei. Therefore, we will burn teruma that has been established to be tamei on the basis of a rubba de-ita kamman but not if its tuma has been established through a rubba de-leita kamman.