Tuesday, May 05, 2009

safeik d'oraysa with respect to kiyum mitzvos

The Chavos Da'as (Y.D. siman beg. of siman 110) has an interesting spin on the Rambam's opinion that sfeika d'orasya l'chumra is just a din derabbanan. Chavos Da'as explains that the reason why m'doraysa it is permitted to eat safeik neveilah or safeik cheilev or enagage in any safeik issur is because the term "neveilah" means that which is vaday neveilah, the term "cheilev" means vaday cheilev, etc. with respect to all other issurim. That being the case, the flipside also must be true: even the Rambam would agree that if one ate matzah which is safeik baked properly or not, one is not yotzei the mitzvah -- the term "matzah" means vaday matzah, to the exclusion of a safeik kiyum hamitzvah, and the same would be true with respect to all other cases of kiyum hamitzvah.

This approach resolves a number of questions raised on the Rambam. For example, the gemara (R"H 13) discusses how Bnei Yisrael offered the korban ha'omer when they first entered Eretz Yisrael. How did they obtain wheat which would satisfy the requirement of "bkutzrichem", wheat grown and harvested by Jews, when the Jewish people crossed the Jordan just days before the korban had to be brought? The gemara answers that they used wheat which had grown less than 1/3 under non-Jewish ownership and then ripened under Jewish ownership in those few intervening days. Asks the gemara, but how could they tell the difference if the wheat was already 1/3 grown yet or not -- there was still a chance that the wheat they harvested was not acceptable!?

If sfeika d'oraysa is permitted under all circumstances, then what is the gemara's question -- true, there was a chance that the wheat was not acceptable, but md'oraysa we don't need to be concerned about a safeik!

Based on the analysis of the Chavos Da'as the gemara makes perfect sense. Only a safeik issur is permitted min haTorah according to the Rambam, but even the Rambam would agree that a kiyum mitzvah can be fulfilled only if done in a way that fulfills the Torah's criteria with certainty.


  1. Tal Benschar8:22 PM

    Depending on how far you take it, this chiddush could have quite far reaching ramifications.

    It means that one cannot fulfill a mitzvas aseh d'oraysa mi safeik. Is that really the case?

    Before the calendar was adopted, the Jews in Bavel kept 2 days of Yom Tov mi safeik. How then did they fulfill the mitzvos deoraysa of Yom Tov -- such as matzoh, shofar and lulav, each of which has to be performed on the first day (or night) of that Yom Tov?

    Or does this rule apply only to what is a Cheftzah shel mitzvah -- not to a zman ha Mitzvah?

  2. Tal Benschar8:31 PM

    Another question. The Mishna states that a koy is a safeik chayah/safeik behema. On therefore does not eat its cheilev but if you shecht it then you do kisui ha dam mi safeik. (Bikkurim 2:8-11)

    Is the requirement to do Kisui ha Dam only a chumrah mi derabban? That is, since the blood is only safeik dam chaya, min ha Torah there is no kiyyum ha Mitzvoth?

  3. You lost me. In the case of Y"T 1) there is no real safeik -- m'doraysa the first day is it (see netziv to vayikra 22:31 ) 2) by observing both days you cover yourself m'mah nafshach -- how is that comparable to the case of the chavos da'as where the is potentially no kiyum at all?

    Re: kisuy hadam -- your case is a safeik chiyuv; the chavos da'as is talking about a vaday chiyuv whose kiyum is uncertain.

  4. Tal Benschar2:46 PM

    I thought the whole point of the Chavos Daas was that for mitsvos aseh the Rambam is the reverse of issurim: unless you have a vadai kiyum, you have no kiyum.

    It's no chiddush to say that if one eat's safeik matzoh, then one might not be yozei on the tsad that it is not matzoh. I think no one would disagree that in that situation one might not be yotzei, and so mi safeik you have to repeat the mitzvah.

    I thought the chiddush was that just like safeik neveilah is, acc. to the Rambam, not within the issur neveilah of the Torah, so too eating safeik matso is not a kiyum at all EVEN ON THE TSAD THAT IT IS MATZOH. Meaning that the mitzvah to eat "matzoh" means "vadai matzo." If one eats safeik matzoh, then on a deoraysa level you have fulfilled nothing.

    That means, if we ignore the Netziv's chiddush for a moment, that one cannot fulfilll the mitsvah of shofar, lulav and matsoh "mimo nafshach." Each act is only a safeik kiyum -- which acc. to this Chiddush should be nothing.

    (Unless one differentiate's between cheftzah shel mitzvah and zman mitzvah, as I suggested.)

    Same thing for koy. Yes I know it is a safeik chiyyuv. But the Mishna tells us to do the mitsvah anyway in case that tsad of the safeik (chayah) is correct. My question is, isn't this a worthless act acc. to the Chiddush you are propounding?

  5. Tal Benschar2:54 PM

    Just to clarify my prior post a bit:

    A good nafka mina is you case of safeik matso. Suppose someone ate a piece of matzo, and it turned out to be safeik matsoh. I think everyone would agree that the person needs to repeate the mitsvoh to be yotzei the safeik. You don't need the Chavos Daas's chiddush for that.

    The question is, what if a person finds himself in a situation where the only matsoh he has on the night of Pesach is safeik matsoh. (Let's assume it is not chameitz.)

    One's initial reaction would be to say: eat it. One might fulfill a mitsvoh, one might not. A safeik kiyum is better than nothing.

    But acc, to the Chavos Daas, there is no reason to -- at least on a deoraysa level, eating safeik matsoh is equal to nothing.

  6. >>> I think everyone would agree that the person needs to repeate the mitsvoh to be yotzei the safeik

    Why would you - sfeika d'oraysa is l'kula on a d'oraysa level? That is exactly what the C.D.'s chiddush is aimed at explaining -- take a look at it inside.