Tuesday, August 29, 2006
safeik matnos ani'yim and chezkas marei kammah
Back to meat and potatoes. Chazal darshen on the pasuk “lo tashuv l’kachto” (24:19) by the mitzvah of shikcha that if one has a safeik if the wheat in question belongs to the poor or belongs to the ba’al habayis, the original owner, we assume it belongs to the ba’al habayis (following the GR”As girsa). This seems to contradict a Mishna in Pe’ah (4:11) which tells us if one finds wheat in an anthill and is in doubt if it belongs to the ba’al habayis or is leket and belongs to the poor, we assume safeik leket l’aniyim. The Meshech Chochma (basing himself on the Mahari”t) writes that we can distinguish between the case of the anthill, where the ownership of the wheat is in question, and the case of safeik shikcha, where we know the owner of the wheat was the ba’al habayis, but we question whether it was forgotten or fell and now belongs to the poor – a doubt is not sufficient to break the status quo of ownership, the chezkas marei kammah, in such a case. However, asks the Meshech Chochma, there is another Mishna (Pe’ah 4:7) which tells us safeik olelos belongs to the poor. Olelos are deformed grapes which do not form a proper cluster (see Mishna for the details) on the spine; according to the Rash, the issue in the Mishna is whether the particular case is a al pi halacha considered a normal grape cluster or not. Why do we not use the rule of chezkas marei kammah here and let the owner keep the grapes – why do the poor get to keep them? The Meshech Chochma answers that chezkas marei kammah works like any other chazakah kamaysa – just like in the world of issur v’heter the rule of chazakah tells us to maintain status quo until proven otherwise, so too in the world of dinei mamonos, we assume status quo until proven otherwise. That is well and good if our question is whether a change of ownership occurred or not (a safeik in metziyus). However, in the case of olelos, our safeik is a halachic safeik – do the grapes in question meet the standard of olelos defined in the Torah? Knowing who the current owner of those grapes are based on the status quo of chezkas marei kammah cannot in any way help us address that halachic safeik. This somewhat technical Meshech Chocha slips in almost by-the-way the assumption that chezkas marei kammah is rooted in the same chazakah world that exists by issur v’heter. Whether that is true or not is a major debate among many of the achronim – to be continued bli neder….