SHIUR BEKIYUT #8: 73a - b
We saw last week that the Rambam holds that mi-de'oraita, a safek is permitted. The question from our sugya was: what is the need for a special heter for safek mamzer?
1. The Maharit answered that safek mamzer is permitted "be-torat vadai." This was discussed last week.
2. The Pnei Yehoshua (ad loc.) answers that safek mamzer is permitted mi-de'oraita even if there is a "rov" (probability) against it; for instance, if a single woman gives birth and most of the men in town are mamzerim. This is similar to the position of the Prach, who says that safek mamzer is permitted mi-de'oraita even against "chezkat issur," for instance, if a married woman received a safek get (doubtful divorce) and then married someone else. The Shev Shemaita (1:1) rejects both of these answers, disagrees, arguing that in both these cases the child is prohibited mi-de'oraita, even claiming that the Prach never said what the Pnei Yehoshua claims he did.
What is the issue here? There are various rules for resolving doubtful cases. If no other rule applies, then safek de-oraita le-chumra or le-kula. However, there is a prior principle of "azlinan batar ruba" (we follow a rov - a probability). If the rov is le-issur, it is prohibited; le-heter, it is permitted. Similarly, "azlinan batar chazaka." If a given state exists and it has changed mi-safek, we follow the prior state - "al totzi'ena mi-safek" (do not change a status out of doubt). Hence, by these two rules, a child born where there is a more than even probability of mamzerut, or where the mother had a prior certain state of eishet ish, with a doubt about her divorce, should be considered a mamzer, and be prohibited even if safek de-oraita is le-kula. The Pnei Yehoshua claims that the special permissibility of safek mamzer results in heter in these cases as well.
As a matter of fact, the Rashba (73b) already had concluded that safek mamzer is prohibited if there is a "rov" for issur. "If there is a rov of psulim, it is considered like a 'vadai mamzer' (certainty, not a safek), as rov is a de-oraita principle...." What the Rashba is arguing is that the fact the Torah mandates following the majority means that a case with a rov is not a case of safek but one of vadai. The principle, "safek mamzer mutar" does not apply.
The question can be phrased as follows: The Torah says to follow the rov. Does this mean that we CONCLUDE that the side supported by the rov is the correct one and the question has been resolved, or that the Torah permits one to RELY on the probable side of a question as a practical decision, even though there exists a possibility that the other side is correct? In other words, is rov a "mevarer," a decider, or a rule of behavior? The Rashba assumes the first. If there is a rov, there is no safek in our minds. We have decided that the rov represents the correct opinion. Hence, "rov mamzer" = vadai mamzer and is prohibited. The Pnei Yehoshua is apparently assuming the latter opinion. Rov is a rule of conduct, how to act when there is a safek. Since the Torah has permitted safek mamzer categorically, and a rov mamzer = safek mamzer, "rov mamzer" is permitted.
Analyses of the Ran in our sugya indicates that he disagrees with the Rashba, although he doesn't say so explicitly. The gemara states that a woman is believed to state that the father of her child was not pasul, and thereby to legitimize the child, who would otherwise be a shtuki. The Ran states that the reason for this is that in any event, shtuki is permitted mi-de'oraita. Since the prohibition is only rabbinic, Chazal accepted the testimony of a single woman (against the principle of "ein davar she-be'erva pachot mi-shnayim"). Now, Abba Shaul holds that the mother is believed even against a rov (74a), and the Ran mentions this in the same paragraph. Hence, it follows by his logic that the Ran holds that even in a case of rov, shtuki is not prohibited mi-de'oraita.
The Shev Shemaita distinguishes in this respect between two different kinds of rov.
a) Where there is a stable population consisting of kesherim and psulim and we are in doubt to which population a given individual belongs. This is called "ruba de-ita kaman" (a rov which is "in front of us"). We wish to know if the individual who fathered the child belonged to the kasher population or the pasul population. The Shev Shemaita argues that it is wrong to state that in such a case the individual belongs "vadai" to the majority population. The chance that he belongs to the minority is "present before us." The most that one can say is that the Torah instructs us to RELY on the majority. This is a rule of conduct in a case of SAFEK - and hence safek mamzer is permitted.
b) Where there is a statistical rule of probability. "Most children born in a family situation are the sons of their mother's consort." This is called "ruba de-leta kaman." In such a case, he claims, the child is granted the status guaranteed by the rov as a "vadai." There is no safek. Hence, "safek mamzer mutar" doesn't apply. (The Rashba, as we saw, was explicitly referring to the case of ruba de-ita kaman when he stated his position).
[This question, whether rov is a mevarer or a rule of conduct, is central to understanding how rov works, and helps to explicate many other sugyot concerning rov.]
The Noda Bi-Yehuda (EH 1:7) asks a simple question. Every assufi (neither parent is known) is also a shtuki (father unknown). A shtuki is presumably well-cared for by his mother; nevertheless is prohibited (mi-derabbanan). So why is an assufi found in conditions that indicate maternal interest in his welfare permitted? How is he better than a shtuki?
The Noda Bi-Yehuda suggests three answers (these are summarized in the Pitchei Teshuva 4:41).
1. A well-cared for assufi is PROHIBITED. This obviously answers the question. But, you will say, the gemara says that a well-cared for baby "ein bo mishum assufi" (is not an assufi). The Noda Bi-Yehuda suggests this refers only to the law that after a child is declared an assufi, if his parents appear and claim him it is too late. THIS does not apply to a well-cared for baby. It is a shtuki and prohibited; however, if his mother appears later and claims him and states that he is not pasul, she is believed and the child permitted.
The Noda Bi-Yehuda agrees that this extreme re-reading of the sugya is not supported by the Rishonim.
2. The mother of a shtuki is unmarried. (The child of a married woman is always assumed to be her husband's). Since the pregnancy was the result of "znut," a licentious act, Chazal were more likely to have enacted a prohibition because of safek mamzer. The mother of an assufi, on the other hand, is unknown, and therefore may have been a married woman who has abandoned her child for economic or other reasons. Hence, so long as there is no positive indication that he was abandoned because of mamzerut, the Sages did not see fit to enact a prohibition. The Noda Bi-Yehuda is not satisfied with this solution either.
3. In the case of shtuki, our first question concerns the mother, since she is known to us. The question is: with whom did she cohabit? In such a case, since the psulim are "kavu'a" (73a), there is reason to prohibit. Once the status of the mother is decided, the status of the child automatically follows as it is logically dependent on that of the mother. In a case of assufi, where there is no known mother, the original legal question concerns the child directly. Regarding the child himself, it is not a case of "kavu'a," but of "parish." Hence, there is no reason to prohibit, unless there is a positive indication of psul.
The Noda Bi-Yehuda concludes, on the basis of this solution, that if the mother was never questioned by a beit din, and is now dead or unavailable, then even a shtuki will be permitted, since he is no worse than a well-cared for assufi. Since the mother was never the subject of a legal inquiry, the original question concerns the child, and there is no "kavu'a." The Noda Bi-Yehuda was aware - in fact, he explicitly states that this is his motivation - that this ruling comes close to eliminating all cases of shtuki. If the mother says the child is legitimate, she is believed (74a). If she is unavailable, the Noda Bi-Yehuda rules the child is a well-cared for assufi, who is permitted. The only case which will be prohibited is one where the mother is questioned, and she answers that she doesn't know.
The gemara (73b) lists various cases where someone is believed even though he does not meet the appropriate criteria of edut. The case of a father who declares his son a first-born (74a) is based on a special granting of veracity by the Torah (Bava Batra 127b). The case of "chaya" - a midwife - is the most interesting. The Ran (ad loc.; 31a s.v. Ne'emenet) writes that this is a rabbinic law because "generally it is impossible (to determine the truth) in any other way." In other words, because it is not likely that two kosher witnesses will be present at a birth (the assumption is that only women are present), it is necessary to accept the testimony of a single woman. The Rashba, without mentioning this reason, states that the veracity of the "chenvani" - the storekeeper - is similar to that of "chaya.' Since this is a specific rabbinic decree, it is difficult to extend it beyond the boundaries indicated by our gemara. Nevertheless, the Rama (35:14) states:
"[A woman's testimony is not valid], even in a place where it is uncommon to find a male to testify. This is 'mi-dina,' but there are those who say that there is a 'takanat kadmonim' (an ancient law) that wherever it is not common for males to be present ... or in a matter where women are frequent (expert), such as which clothing a woman was wearing, to which a man wouldn't pay attention, in these matters a woman's testimony is believed."
The Gra cites our gemara as a source, and it is conceivable that he feels that our gemara validates the "law" of the Rama; i.e., "chaya" is an example which may be extended. (The Rama apparently is attributing this law to the Geonim or early Rishonim.)
Next week and thereafter:
Since there are only three shiurim left, we are going to do a little skipping in order to cover the remaining topics of yuchsin. The next mishna (74a - 76a), despite several interesting points, especially the definition of "kuttim" (modern-day Samaritans; 75b - 76a), basically covers points we have dealt with elsewhere. The following mishna (76a-b) we are skipping out of necessity. The last three shiurim of this "zman" will deal with:
a) Ein issur chal al issur (77a-b);
b) Issurei kehuna (77a, 77b -78a);
c) Ger likehuna (78a-b).
We will also post mar'eh mekomot for the rest of the perek, for those who will continue to learn over the yomim tovim, but there will be no shiur.
Ein issur chal al issur:
1) 77a "Tanu Rabbanan: almana almana..." (6 lines from the bottom of the page) - 77b "ka mashma lan" (13 lines from the bottom).
2) Ritva s.v. Hai.
3) Ritva s.v. Tani. This is a little long. We are interested in the opinion of the Raavad cited by the Ritva. The main sections are:
a) From the beginning until "...issur bat achat."
b) "VehaRaavad piresh..." - "...issur shebo liheichan halach."
c) Towards the end "Teida...."
There are two basic definitions of "ein issur chal al issur." What are they?