Ask A Question about the Daf

Previous daf

Kidushin, 73

1) THE RULE OF "SAFEK D'ORAISA L'CHUMRA"

QUESTION: Rava states that, mid'Oraisa, a Shetuki is Kosher. His reasoning is that most men who could have fathered the child are permitted to the woman and their offspring with her would not be a Mamzer (and, if the father was a Nochri or Eved, the child would also not be a Mamzer, since a child from such a relationship is not a Mamzer). Hence, if the man went to the woman, then we apply the principle of "Kol d'Farish m'Ruba Parish," and we assume that the man was Kosher. If the woman went to the man, then we apply the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami," which gives the child a state of Safek, and the Torah says that only a Vadai Mamzer may not marry a normal Jew, but a Safek Mamzer is permitted.

We know that in normal cases of Safek Isur, there is a difference between an Isur d'Rabanan and an Isur d'Oraisa. A Safek of an Isur d'Rabanan is treated leniently, l'Kula, while a Safek of an Isur d'Oraisa is treated stringently, l'Chumra. Is this principle of "Safek d'Oraisa l'Chumra" a Halachah d'Oraisa (i.e. the Torah tells us to act l'Chumra in a case of a Safek), or is it a Takanah d'Rabanan (i.e. mid'Oraisa, one may act leniently in a case of Safek, but the Rabanan enacted that we act l'Chumra in a case of Safek)?

Most Rishonim maintain that the Halachah of "Safek d'Oraisa l'Chumra" is a Halachah d'Oraisa. This also appears to be the view of RASHI (DH v'Iba'is Eima) in our Sugya as well. Rashi says that the reason to be Machmir in a case of a Safek Mamzer is because of the "Torah's warning in the case of a Safek," and he does not say that it is because of an Isur d'Rabanan.

The RAMBAM (Hilchos Tum'as Mes 9:12) maintains that the Halachah of "Safek d'Oraisa l'Chumra" is only a Halachah mid'Rabanan.

All of the commentators on the Rambam question the Rambam's opinion from our Gemara. Why is it necessary for the Gemara to derive through a special Derashah that a Safek Mamzer is permitted? Even without any special verse, we should simply apply the rule that, mid'Oraisa, a Safek is permissible (and we do not act l'Chumra)! Since, mid'Oraisa, a Safek is Mutar, why should the verse give a special Heter for a Safek Mamzer more than it for any other Safek Isur d'Oraisa?

ANSWER: The SHAV SHEMAITSA (1:2) says that even according to the Rambam, there are certain Sefeikos for which we must act l'Chumra even mid'Oraisa. In a case where the Safek is whether or not an Isur exists at all (such as in the case of a doubt whether a piece of meat is Kosher or not), then mid'Oraisa one may act leniently, since there is no reason to assume that there is an Isur until it is proven as such. In contrast, in a case where there definitely is an Isur present, but there is a doubt *where* the Isur is (such as in the case of two pieces of meat, where one is certainly Asur and one is certainly Mutar, but it is not known which is Asur and which is Mutar), one may not act leniently (and eat one of the pieces of meat). Since there is certainly an item of Isur present, one must be wary of it.

A similar situation can exist in the case of a Mamzer. When we know that, in a house with several people, there is a Vadai Mamzer in that house but we do not know who he is, we cannot apply the d'Oraisa rule of "Safek l'Kula," and we therefore need a special Derashah to permit the Safek Mamzer.

QUESTION: Rava states that, mid'Oraisa, a Shetuki is Kosher. His reasoning is that most men who could have fathered the child are permitted to the woman and their offspring with her would not be a Mamzer (and, if the father was a Nochri or Eved, the child would also not be a Mamzer, since a child from such a relationship is not a Mamzer). Hence, if the man went to the woman, then we apply the principle of "Kol d'Farish m'Ruba Parish," and we assume that the man was Kosher. If the woman went to the man, then even though the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami" applies and gives the child a state of a *Safek* Mamzer, and the Torah (Devarim 23:3) says that only a Vadai Mamzer may not marry a normal Jew, but a Safek Mamzer is permitted.

Why does the Gemara need to answer that the reason a Safek Mamzer, in the case of a Shetuki, is permitted is because of the special verse in the Torah? We know that in normal cases of a Safek, a Safek d'Oraisa must be treated stringently ("Safek d'Oraisa l'Chumra;" see previous Insight). However, in a case of a S'fek S'feika, one may act leniently. A S'fek S'feika is a situation in which there is a double Safek, creating two possibilities of Heter. In such a case, even mid'Oraisa one may act l'Kula.

The case of the Shetuki of our Gemara should also be treated like a S'fek S'feika. First, there is a doubt about the identity of the father of the child. Second, there is a doubt about whether the man went to the woman (in which case the child is permitted because of "Rov") or whether the woman went to the man (in which case the child might be Mutar and might be Asur, because of "k'Mechtzah Al Mechtzah Dami"). This is a situation of S'fek S'feika, with two possibilities of Heter: if the man went to the woman, then the child is permitted, and even if the woman went to the man, there is a possibility that the child is permitted. Why do we need a special verse to teach the Heter of a Safek Mamzer?

ANSWER: The RASHBA explains that in such a case of doubt, we indeed do not need the verse to teach that the Safek Mamzer is permitted. However, since there are cases in which this S'fek S'feika does not exist, such as when we know for certain that the woman went to the man (in which case there is only one Safek), the verse is still necessary. The Gemara quotes the verse here only to give a reason why a Safek Mamzer is permitted in *all* cases (even when there is no S'fek S'feika).

However, if it is true that in the case of a Shetuki there exists a S'fek S'feika to rule leniently so that, mid'Oraisa, the Shetuki is permitted to marry a normal Jew, then why does the Mishnah (69a) state that a Shetuki is permitted to may a Mamzer since neither one is considered "Kahal Vadai" (a definite member of "the congregation of Hashem") but only "Kahal Safek?" The Mishnah is referring to all cases of a Shetuki, even when there exists a S'fek S'feika. Why, then, is a Shetuki permitted to marry a Mamzer? For the same reason that the Rashba says that a Yisrael may marry a Shetuki with a S'fek S'feika (since we assume that the Shetuki is not a Mamzer), we should also *prohibit* the Shetuki from marrying a Mamzer! If we assume, because of the S'fek S'feika l'Kula, that the Shetuki is not a Mamzer, then why does the Mishnah call him a "Kahal Safek?" (See PNEI YEHOSHUA.)

The Acharonim answer that the nature of a S'fek S'feika does not create a status of Vadai, certainty, saying that the person is *certainly* permitted. Rather, it merely "eases" the magnitude of the Safek, so to speak. The rule of "Safek d'Oraisa l'Chumra" applies when there are two equal possibilities, one of Isur and one of Heter. In contrast, when there are more possibilities of Heter than of Isur, such as in the case of a S'fek S'feika, then one no longer needs to be concerned for the possibility of Isur. The S'fek S'feika does not tell us that there definitely is no Isur present; rather, it limits the extent to which we must worry about the Isur. When discussing whether or not a Shetuki can marry a Mamzer, a S'fek S'feika will not change the Shetuki's status. The question with regard to marrying a Mamzer is not whether or not we must be concerned that the Shetuki has the Isur of Mamzer. Rather, the question is whether the Shetuki is a Safek or a Vadai, and thus even with the S'fek S'feika, the Shetuki may marry a Mamzer because his status of Safek remains.

73b