Shiur #11b: Understanding "Sefeik Sefeika" Part 2
Translated by David Silverberg
In the previous shiur, we discussed various ways to explain the halakha of sefeik sefeika. According to the Rashba sefeik sefeika is based on the idea of rov. Admittedly, we are not dealing with a statistical rov, but with a theoretical one based on a majority of possibilities. In addition, we noted the position of the Ra'a, who bases the halakha of sefeik sefeika on the clause sefeika de-rabbanan le-kula (a doubt regarding rabbinic prohibitions is decided leniently).
Extracting Money with a Sefeik Sefeika
However, we find several positions taken by the Rishonim that seem difficult to explain according to these understandings of sefeik sefeika. Tosefot (9b) question the Gemara's assertion that a husband's claim of petach patu'ach suffices for her to lose her ketuba payment. Tosefot claim that with respect to the ketuba, his claim creates no more than a sefeik sefeika. First, the husband may not have the knowledge necessary to confidently establish that his bride was not a virgin. Secondly, even if he can make this confident claim, if she had been raped she does not lose the ketuba payment. Therefore, since this is a case of sefeik sefeika, we should not accept the husband's claim and reduce her ketuba. Tosefot add that one cannot answer that even in a situation of sefeik sefeika the woman loses her ketuba, because we must maintain the status quo - and the payment remains in the possession of the husband - until proven otherwise. This implies that although the husband currently holds the money in question, the wife can extract full ketuba payment on the basis of her sefeik sefeika.
Clearly, we cannot explain Tosefot in light of the Ra'a's position, that the sefeik sefeika works on the grounds of safeik de-rabbanan le-kula. Here we deal with a monetary issue, and one cannot extract money from another without bringing conclusive evidence supporting his claim ("ha-motzi mei-chaveiro alav ha-re'aya"). In addition one cannot speak in terms of "chumra" and "kula" (stringency and leniency) in the context of a monetary dispute; a stringency towards one litigant is a leniency for the other. But even if we accept the Rashba's theory, that sefeik sefeika operates through the mechanism of rov, it is difficult to understand Tosefot's view: a fundamental halakhic principle establishes that "ein holekhin be-mammon achar ha-rov" - the consideration of rov does not come into play in monetary proceedings. The Shev Shemateta who accepted the rov theory indeed suggests a different reading of Tosefot.
In order to justify the extraction of money from its presumed owner, it appears that we must explain sefeik sefeika in such a way whereby we have no question whatsoever concerning the obligation of payment. Thus, Rav Lichtenstein explained that in a situation of a sefeik sefeika, we have no "leidat ha-safeik" whatsoever; meaning, we consider the doubt as never even presenting itself. When we ask whether the bride had engaged in relations before or after her betrothal, no clear prohibition results when we resolve this question, since the possibility remains that she had been raped. Likewise, when we ask the question of whether she engaged in relations willingly or was coerced, no clear ruling will result, since whatever occurred may have taken place before her betrothal. Therefore, we have no specific point of doubt that potentially leads to a prohibition and thus requires a halakhic resolution. In other words, rov and chazaka are ways to resolve, or provide halakhic guidance regarding, a question once it arises. In the case of sefeik sefeika, the question never arises and thus does not demand a halakhic resolution. The husband must therefore pay the full amount of the ketuba, since no question ever arose concerning the validity of this obligation.
In masekhet Pesachim (10a), the Gemara cites a debate between Rabbi Eliezer and the Chakhamim regarding a situation of safeik tum'a (a questionable presence of tum'a) in a reshut ha-rabim (public domain), whether or not we must rule that the object is tameh. Tosefot (s.v. safeik bi'a) cite from the Ri and Rabbenu Tam that in truth, according to both opinions we rule the object as tameh in a case of safeik tum'a bi-reshut ha-rabim. The debate between Rabbi Eliezer and the Chakhamim surrounds a case of sefeik sefeika. Although Rabbi Eliezer agrees that we assume a safeik tum'a bi-reshut ha-rabim to be tamei, he rules leniently in a case of sefeik sefeika in a reshut ha-rabim. According to what we have seen, we can explain that in a situation of sefeik sefeika, no safeik arises at all; we thus have no basis to apply the tameh ruling normally associated with reshut ha-rabim. Where, however, we confront a standard case of tum'a in a public domain, we would apply the principle that a safeik tum'a bi-reshut ha-rabim is tamei.
Another instance in which we permit a sefeik sefeika where we would not permit a rov arises in the sugya of "davar she-yeish lo matirin" (Beitza 3b). This halakha involves a case of ta'arovet - a mixture between forbidden and permissible foods. If the forbidden food will, at some point in the future, become permissible, then we do not employ the standard halakhot of bittul - the nullification of a small proportion of forbidden food in the mixture. Instead, one must wait until the forbidden food becomes permissible. The Gemara there establishes that a devar she-yeish lo matirin cannot be nullified in a mixture even if it constitutes a mere one-thousandth of the mixture. Rashi there explains that although Torah law considers an item void when it constitutes the minority, "the rabbis were stringent; since it becomes permissible at a later time, one should not eat it in its state of prohibition through bittul." The Rashba, however, notes that according to Rabbenu Tam, in a situation of sefeik sefeika we allow even a davar she-yeish lo matirin: "From the comments of Rabbenu Tam z"l we learn that every sefeik sefeika, even regarding a davar she-yeish lo matirin, is immediately permissible, for although the berayta said that if it [a davar she-yeish lo matirin] mixes with one thousand [permissible items] they all become forbidden, this refers only to definite [prohibitions]; in cases of safeik, however, this is not the case. The reason is because anything subject to a sefeik sefeika is considered totally permissible. Therefore, even if it will become permissible, why must one wait? Hence, even a berya [a complete creature] which [normally] does not become nullified, and something normally counted [which likewise is not subject bittul] - whenever there arises a sefeik sefeika it is permissible, even though we cannot allow it based on rov."
According to our approach, Rabbenu Tam's comments are perfectly clear. The clause of davar she-yeish lo matirin establishes that we refrain from resolving the question at hand since we can wait until the mixture will become definitively permissible. Therefore, this clause does not apply in a situation of sefeik sefeika, where no halakhic doubt arises and hence no halakhic resolution is required to permit the given mixture.
Alternatively, one could draw a distinction that in the case of a davar she-yeish lo matirin, we do not rely on bittul b'rov, by which the prohibited item (issur) normally transforms into something permissible (heter) when overwhelmed by the heter. Sefeik sefeika, however, may operate on the basis of rov but clearly differs from the notion of bittul; the concept of sefeik sefeika allows us to assume that the given item came from the majority (which is heter) and is therefore not forbidden at all and need not be transformed into heter. Only the halakha of bittul is suspended by the preference that we wait until the issur becomes naturally transformed into heter. This distinction becomes particularly compelling in light of the famous view of the Ran (Nedarim 52a), who explains the provision of davar she-yeish lo matirin as based on the position of Rabbi Yehuda that bittul does not apply when issur is mixed with heter of its own kind ("min be-mino eino batel"). The Chakhamim, who dispute this view, accept its underlying principle, namely, that the notion of bittul hinges on the inherent difference which leads to a confrontation between the rov and the minority which results in the minority becoming nullified. However, they maintain that issur by definition differs from heter and can thus be nullified. On the other hand, an item that will, at some point, naturally transform to heter is not defined as issur, and we therefore do not apply the rule of bittul. The Ran writes: "It appears to me that the reason of this [halakha] is that we find that the Rabbanan and Rabbi Yehuda argue as to whether bittul works in [a mixture of] different types of food… Rabbi Yehuda holds that the reason why min be-mino lo batil is because anything resembling another item does not overcome it and nullify it; it rather stabilizes it and strengthens it. Rabbi Yehuda therefore maintains that in all issurim, min be-mino lo batil. The Rabbanan do not accept this, since in any event [we have] two different types, since issur and heter do not resemble each other - one is forbidden, the other is permissible; we should not determine status based on their similarity of [physical] properties, but rather their distinction in terms of issur and heter… Therefore, so long as they differ from one another in terms of issur and heter, even if they are both of the same type, [the issur] is nullified, since it is considered [a case of] two different types. We therefore say that regarding a davar she-yeish lo matirin, the Rabbanan, as a measure of stringency, conceded to Rabbi Yehuda. Since this item is not entirely different from the permitted item in terms of issur and heter, for it, too, will eventually become permissible just like it, we say that it does not become nullified by its own type, because if so they would be very similar to one another: first, they are of a similar type [physically], and additionally, they are not entirely different in terms of issur and heter." According to this approach, we can easily refute the proof we drew from Rabbenu Tam's view. Nevertheless, the Rashba, in explaining Rabbenu Tam, wrote, "anything subject to a sefeik sefeika is considered totally permissible," which indeed implies that, as we have suggested, in a situation of sefeik sefeika no safeik arises at all.]
According to our third suggestion, sefeik sefeika requires no source since it is not a method of resolving halakhic questions. Rather, in cases of sefeik sefeika the question never arises and consequently demands no resolution.
Sources for next week's shiur:
"Muchzakut" With Regard to the Ketuba Payment
1. 9b: "Amar Rav Yehuda amar Shemuel… ela mi-divrei sofrim."
2. Tosefot, s.v. le-meitav [until "be-chezkat marei"], s.v. lo.
3. 12b: "Ha-nosei… shema mina"; 15b: "Ha-isha… lo amar"; 75a: "Hayu ba… batar chazaka de-gufa"; 36a: "Ailonit ein la… le-ilem hu" - Tosefot, s.v. ha-chareshet [until "lo itra"].
4. Tosefot Rid, 12b: "Ve-Ri amar… halakha ke-Rabban Gamliel shema mina"; Shita Mekubetzet, end of first perek - "Katav Ha-rav Rabbenu Yehosef Ha-levi… de-ha leika lemeimar migu."
5. Mishna, Sota 24a: "Meitu ba'aleihen… lo notelot ketubatan"; 25a: "Meitu ba'aleihen lo ke-gavuy dami" - Tosefot s.v. Bet Hillel savri.
1. How does sefeik sefeika work?
2. What does Tosafot refer to as a rov mi-derabbanan?
3. Why is it effective regarding certain halakhot and not regarding others?
4. Can a sefeik sefeika be used to extract money from a muchzak?