Ein Safek Motzi Mi-yedei Vadai

A. R. Zeira and Rava

The mishna in Pesachim 9a states that no additional precautionary steps are required after the conclusion of bedikat chametz, since the house is considered chametz-free and the possibility of a mischievous rodent coming in from the cold with all of the neighborhood chametz need not be taken into account.

The mishna's formulation, however, that one need not concern himself with unfounded speculation or conspiracy theories, implies that there IS an obligation to perform a repeat inspection if such a scenario is indeed known to have occurred. The gemara, though, questions this ruling; for although the chametz is known to have entered the house, it is not self-evident that it still exists, for it may have been subsequently eaten by the rodent. After all, since the piece of bread was presumably brought there to be eaten, it is eminently reasonable that it indeed fulfilled its purpose and is no more. To back up this claim, the gemara cites a beraita that the house of a non-Jew is not suspected of containing concealed "tum'at met" if pigs and weasels abound, even though it is otherwise treated as the possible burial site of aborted fetuses, since it is presumed that the animals have disposed of the concealed tum'a. Two answers are given by the gemara to this question; the first one, provided by R. Zeira, claims that the flesh, if there was any, was eaten in its entirety, while part of the bread may have been left over and cannot automatically be assumed as non-existent. Rava, on the other hand, points out that in the case of the hidden chametz, the chametz was known to have entered the house and, therefore, it must be established with certainty that the chametz was removed, while the presence of tum'a in the house of a non-Jew is no more than a suspicion (safek) which can be dealt with by means of a corresponding doubt that the tum'a is no more there. Put into halakhic terminology, the case of chametz is defined as "ein safek motzi mi-ydei vadai," since the chametz is "vadai" while its subsequent destruction is only an assumption which cannot suffice to change, without definite proof, the house's status.

Both replies (R. Zeira and Rava) assume that if there is a doubt whether bedikat chametz was effective or not, the house must be re-examined. This line of reasoning, though, raises an obvious question; bedikat chametz is a mitzva mi-derabanan and therefore its safek, like all other cases of sefeika de-rabanan, should be le-kula and not le-chumra. In other words, in case of doubt, a bedikat chametz need not be repeated.

To solve this problem, two separate approaches were adopted by Rishonim. The first, represented by the Tosafot and the Ba'al Ha-Ma'or, accepts the premise of the question that the normal guidelines regarding sefeikot are applicable to bedikat chametz and, therefore, the gemara's discussion, which assumes that the safek is le-chumra, must be limited to instances in which the issur chametz is mi-de'oraita and not mi-derabanan (i.e., chametz which hasn't undergone the mechanism of bitul).

If we accept this approach, the premise of Rava and R. Zeira has to be that the issue involving the chametz is not an issur de-rabanan but rather an issur de'oraita whose safek is le-chumra. Both chametz and tum'a are mi-de'oraita, the difference between them being that chametz is a single safek and le-chumra, while in the case of tum'a there is a sfek sefeka (double/multiple doubt) which decides the case le-kula. The phrase "ein safek motzi mi-ydei vadai" mentioned by Rava need not signify anything more than the determination that there isn't a dual element of safek as in tum'a, since the presence of the chametz, unlike the tum'a, has been established beyond doubt (vadai) and the single safek cannot bring about a kula in a known safek de'oraita.

The Ra'avad, however, explains that doubts regarding bedikat chametz must be decided le-chumra and are not governed by the regular rules of sefeikot which would have been le-kula in a sefeika de-rabanan. For the mitzva of bedika, according to this interpretation, is not only to search for stray pieces of chametz which may cause problems during Pesach, but to positively ascertain that the house is clean. If there is a possibility that there is chametz in the house, the house cannot be declared chametz-free. Although the doubt would normally be disregarded and a heter provided if the focus of our attention was how to act when in doubt (e.g., a safek regarding the validity of an eruv or a question as to eating milk after meat etc.); nevertheless, this state of doubt cannot be considered non-existent and therefore the house cannot achieve the status of a bayit baduk (inspected and certified as undoubtedly chametz-free), and therefore another bedika must be performed.

This approach, which regards sefeikot in bedikat chametz as rendering the bedika worthless since the purpose of bedika is to certify as undisputed and undoubted fact that there is no chametz in the house, doesn't have to burden the sugya with limitations which are not mentioned in it, for although bedika is mi-derabanan, its safek is le-chumra. The meaning of Rava's statement that ein safek motzi mi-ydei vadai is not that the safek is confronted with the severity of a known issur de'oraita, but rather the assertion of this very principle, that in every case of a safek regarding bedikat chametz the possibility of the heter implicit in the safek is meaningless, since the safek cannot confer upon the house the status of an inspected and certified place, and therefore it remains as if no bedika at all has been done (i.e., vadai uninspected). Rava's line of reasoning that chametz is an issur vadai uninfluenced by the rules of sefeika derabanan is based upon the concept of bedika developed by the Ra'avad.

R. Zeira does not contrast chametz and tum'a as vadai vs. safek; the only difference between the two cases is a practical one, rooted in the dietary behavior of the mice and weasels. At first glance, his opinion is highly problematic since Rava's point as to the different starting points of the two sefeikot seems quite obvious. [Indeed, R. David claims that R. Zeira subsequently accepted Rava's opinion and retracted his own; however, he has no textual basis for this claim, aside from his concern with R. Zeira's logic in the face of Rava's distinction.] Therefore, it would seem that R. Zeira, who agrees with Rava as to the status of sefeikot in chametz, should be understood as applying a similar standard to the case of tum'a. In his opinion, the halakha of tum'a in the dwelling place of a non-Jew, though deriving from a suspicion of concealed tum'a, was transformed into an absolute halakha (gezeira) that it is ritually impure, unless otherwise established; thus, its safek, too, is le-chumra and the comparison between it and chametz is in place.

B. Ein Safek Motzi Mi-ydei Vadai

The gemara, after presenting R. Zeira and Rava's claims, embarks upon an examination of Rava's statement that ein safek motzi mi-ydei vadai, testing it against a number of cases which seem to deny this rule and answering them so that the principle of ein safek motzi mi-ydei vadai can be accepted. However, though the sugya confronts the apparent contradictions from other cases, it does not provide us with any parameters regarding the application of this rule nor does it explain the rationale behind it. Simply put, what is the meaning of ein safek motzi mi-ydei vadai? Is it just a fancy way of stating that under certain circumstances a safek is le-chumra; if so, why phrase it in such a manner that seems to indicate an independent precept? Alternately, if indeed it is a separate rule, as seems clear from our sugya, how does it fit into the basic guidelines regarding sefeikot? Is there a rov (majority) le-heter or le-issur or not?

The gemara's formulation the rule, which presents it as a usurping doubt attempting to overthrow an existing state of affairs, seems to indicate that the issue is not based upon the degree of probability supporting each alternative, but rather revolves around the fact that the current status quo is established as such and will remain thus until the situation is proven to have changed. The problem with the safek is not that it is less probable than the alternative of the vadai, for this exactly is the point which is now in doubt, but rather that an established situation is not replaced or considered uncertain by the mere casting of doubt, though, statistically, the odds are equal. In brief, it is a logical-legal rule and not a statistical attempt to ascertain the most probable scenario.

This understanding of ein safek motzi mi-ydei vadai is clearly brought out in the sugya in Yevamot. The gemara there (38a) discusses the various possibilities regarding yerusha (inheritance) in the case of a woman who underwent yibum immediately after her husband's death, without waiting the required three-month waiting period, and bore a child within nine months of her former husband's death. The child is considered a safek, since he may be either the full-term baby of the original husband or the premature one of the brother who performed the yibum. The first case dealt with by the gemara is the inheritance of the child's grandfather. The child demands that he receive half, as the share of the dead brother who he claims was his father, while the live brother retorts that he is his son, undeserving of any share, and that the dead brother's half is his, due to his status as the yavam. The gemara's ruling in this case is that the child doesn't receive anything, because his status as an inheritor is doubtful, while the brother is a definite heir and, therefore, the rule of ein safek motzi mi-ydei vadai applies. However, in the following two cases which the sugya presents, the doubtful child is not engaged in direct dispute with the brother whose position as an heir is unequivocal, but with his children or his father (i.e., the child's grandfather), and the gemara's conclusion in these instances is that the estate should be treated according to the laws governing disputed property. The statistical probability is identical in all three cases; yet, the gemara applies the rule of ein safek motzi mi-ydei vadai in only one of the three, since its point is not to chose the more probable or reasonable claim, but to provide a logical mechanism to deal with these problems. Thus, where there is a conflict between the claim of an established heir and an aspiring one, he who is the safek loses, since the logical method determines that what has been positively established cannot be undermined by doubts or suspicion which have not been proven.

Let us further note two salient characteristics of this case. Firstly, it is more probable that the child is the son of the dead brother; full-term pregnancies are more common than premature babies, as the gemara itself is well aware (Sanhedrin 69a). Moreover, the gemara doesn't hesitate to apply ein safek motzi mi-ydei vadai to a monetary dispute, even though the rules of probability are disregarded in dinei mammonot. Both points (especially the first; the second may require certain qualifications which are beyond the scope of this shiur) point to one conclusion - the ruling that ein safek motzi mi-ydei vadai establishes the vadai as a certainty and not as a preferred course of action in a doubtful situation. Therefore, though the safek may be more probable, it is nevertheless rejected and totally disregarded, since the possibility of the vadai, not to be undermined by the statistical element, is logically determined to be the only possibility. The safek is refused its day in court, thereby paralyzing its possible statistical advantage, and denying it of any status at all.

The Rishonim in our sugya in Pesachim explicitly make this point, that ein safek motzi mi-ydei vadai is applied even in cases where the safek is a common occurrence with a high degree of probability which is relied upon in other areas of hilkhot safek. Thus, Tosafot explain that the possibility that the weasel ate the food is highly probable, thereby suspending the normal regulation that safek tum'a bi-reshut ha-yachid is le-chumra; nevertheless, the rule of ein safek motzi mi-ydei vadai remains in effect. The rationale is simple: safek tum'a recognizes the existence of a state of doubt while ein safek motzi mi-ydei vadai denies this very point. Therefore, though safek tum'a is a guideline for dealing with a safek, it can be offset by other principles regarding proper conduct cases of safek, especially if these are not as arbitrary as the mechanism of safek tum'a. However, ein safek motzi mi-ydei vadai is a logical denial of the state of safek, leaving no possibility for the "probable choice/high likelihood" mechanism of sefeikot to express itself.

If our analysis is correct, the crucial factor in ein safek motzi mi-ydei vadai is the establishment of the initial state of vadai, for it is this state of affairs which is responsible for the eventual outcome. This, inevitably, raises the question of defining an established situation and determining that it functions as a bona fide vadai that need not be concerned with sefeikot which arrive on the scene afterwards. Based upon the fact that we are dealing with an issue of legal process based upon rules of logic which are independent of probability, it would seem reasonable, though not absolutely necessary, to claim that an undisputed factual starting point would not suffice to define a given situation as vadai; this would occur only where a legal entity has been established and a positive halakhic status exists. Therefore, a status reflecting a halakhic concept or entity ("chalot shem") rather than a mere starting point is required to establish and utilize the mechanism of ein safek motzi mi-ydei vadai.

However, though the idea that a pre-existing status is required to make the status quo significant, it is not so simple to reconcile the gemara's subsequent discussion with this line of reasoning. For although the case of chametz can be understood - based upon the Ra'avad's theory - as relating to a legally conferred status of baduk or not baduk, it is much more difficult to make this claim for some of the other cases relating to ein safek motzi mi-ydei vadai which are quoted by the gemara. To be more specific, the case on 9b about the ditch which does or does not have tum'a in it, relates to a factual starting point and not to a halakhic status, since not having tum'a in the basement is, presumably, a fact and not a legal status. Therefore, one of two possible alternatives must be chosen; either we must claim that, indeed, there is a status of non-tum'a which is halakhically significant or that ein safek motzi mi-ydei vadai applies to any case whose starting point was known beyond doubt. Neither is impossible, yet both are not unproblematic.

Actually, these two options may be dependent upon our previous discussion. If the safek relates to the existence of the chametz and is le-chumra due to the fact that there wasn't bitul, the issue at hand is not a question of status determination, but factual clarification as to the whereabouts of the chametz; therefore, ein safek motzi mi-ydei vadai in our sugya is based upon an undisputed factual starting point regarding the initial stage without having to establish an initial status. However, if the focus of the safek is the house and the need to certify it as chametz free, the safek revolves around the status of the house and its relationship to bedika. The concept of ein safek motzi mi-ydei vadai regarding chametz relates to a question of status, and though this doesn't necessarily mean that all the other cases of ein safek motzi mi-ydei vadai are based upon an identical paradigm, it does enable such a concept to be developed in the sugya.

 

NEXT WEEK'S SHIUR will feature a guest lecturer - Professor Moshe Koppel - an eminent mathematician at Bar Ilan University, awill focus on the principle of Kavua in deciding sefeikot.

SOURCES:

1a. Pesachim 9b "Teisha tziburin shel matza ... halakh achar ha-rov."

b. Ketubot 15a "Gufa ... Itmar"

Why is the halakha in the case of parush different to that of kavua ?

2a. Keritut 18a "Amar R. Nachman amar R. Abuha amar Rav ... lo kav'a issura."

Is there a relationship between kavu'a and kav'a issura?

b. Rambam Shegagot 8:2; Chametz u-Matza 2:10-11

What is the Rambam's understanding of kavu'a ?