Friday, November 01, 2013

sfeik sfeika l'hachmir by hil brachos

I am sure I am missing something obvious here, but I'm going to post this question anyway because I can't figure it out.  The gemara always to the best of my recollection uses sfeik sfeika as a kula, but sometimes it can lead to a chumra as well.  Whether or not you can apply a sfeik sfeika l’hachmir seems to depend on the machlokes Rambam and Rashba with respect to sfeika d’oraysa l'chumra.  According to the Rambam, sfeika d’oraysa l’chumra is only a din derabbaban.  When you add an additional safeik into the mix (a safeik whether you have a safeik) you really have a sfeika derabbanan l’kula.  By this logic, S”S can only result in a kula, but never a chumra.   However, according to the Rashba, sfeika d’oraysa l’chumra is a din d’oraysa.  The reason sfeik sfeika works is because it tilts the odds -- instead of a 50-50 safeik, a sfeik sfeika creates a 75-25 safeik, which is a rov.  One we are using the principle of rov, sfeik sfeika would seem to work l'chumra as well (Pnei Yehoshua Kesubos 9).

Some of the Achronim bring proof that we pasken sfeik sfeika l’hachmir even by hilchos brachos from the Beis Yosef in hil sefiras ha’omer (489) that if you have a safeik whether or not you counted on one night, you can count the remaining nights with a bracha because of a sfeik sfeika: safeik whether or not you counted at all, and even if you did not count, safeik whether or not each night is its own mitzvah and you can make the bracha anyway.  The sfeik sfeika obligates you to keep counting and to say a bracha.

R’ Ovadya in the Yechaveh Da’as (5:21) brings other Achronim (the Nishmas Adam and others) who reject this proof. They point out that the makor of this Beis Yosef is the Terumas haDeshen, and the Terumas haDeshen writes mefurash that he is assuming that sefiras ha’omer is a din d’oraysa.  You can’t bring a ra’aya from there to sfeik sfeika l'hachmir by a din derabbanan.

I don’t understand the logic. Even if sefiras ha’omer is a din d’oraysa, the bracha on sefira is only a takanah derabbanan!  The proof from the B”Y is not that you can keep counting, it’s that you can keep counting with a bracha.  Again, I'm sure I must be missing something, but I don't see what.

A few other parenthetical points: 1) we once discussed the Aruch haShulchan O.C. 175's proof that the B"Y holds sfeik sfeika l'chumra by brachos.  It's a peleh to me that R' Ovdaya does not quote this mareh makom (it could be he discusses it elsewhere -- he touches on this topic of s"s is other places); 2) we discussed s"s l'hachmir in a different sefirah context here; 3) the proof from hil techumin quoted in that post can be countered with the argument that it's really only one safeik: is the boat in a location that is subject to the issur of techumin or not; 4) abother makor for s"s by brachos -- M"B in O.C. 215 with respect to berya.


  1. You once showed me the Pnei Yehoshua in the beginning of Keitzad Mevorchim that holds that all birkos hanehenin are de'oraysa, and the only reason safek is le'hakeil is because of a concern for shav, which might not be a problem here. Unless Birkas hamitzvos are different, which would be farkert from Rashi by Lo Shachachti by Bikkurim. I know this doesn't answer your question.

  2. you want to turn all brachos into d'oraysas?

  3. Earlier in the same siman of Orach Chayim 489, the Tur cites a puzzling Ravya/Mordechai about repeating the birchas hamitzva on sefira if you were thinking of the wrong day during the bracha. See the Beis Yosef on this, who quotes the Mordechai and explains more explicitly that this is based on a safek in hilchos brachos,and because mitzvas sefira is d'oraysa (according to mordechai/ravya) you must repeat the bracha. The Beit Yosef there concludes that since we hold mitzvas sefira is d'rabanan, we should not repeat the bracha in this case, and so he rules in shulchan aruch.

    This is puzzling including for the reason you mention, but at least now misery has company -- R' Ovadya's critique is consistent with the Beis Yosef's own statement earlier in OC 489 that safek brachos l'hachmir (at least in certain cases) for a birchas hamitzva on a mitzva d'oraysa but not on a safek bracha for a mitzva d'rabanan.

    Truth is, I think that what Rav Ovadya writes is even a bit easier to explain than the earlier Beit Yosef I mentioned. In the part of OC 489 that Rav Ovadya discusses, the safek is about whether you were yotze the underlying miztzva of sefira at all. So clearly safek d'oraysa l'chumra (assuming you hold sefira is d'oraysa) obligates you to repeat sefira; and perhaps chazal enacted the birchas hamitzva such that you should make the bracha whenever you are obligated bottom-line to perform the mitzva.

    Whereas in the earlier part of OC 489 that I mentioned, the safek is seemingly whether you fulfilled the bracha properly, not whether you were yotze counting. How could your fulfillment of sefira depend on which day you were thinking of during the bracha? If interested, see Taz on corresponding siman in shulchan aruch. My own suggestion is that Mordechai/Ravya perhaps held that the bracha of sefira is part of our nusach of counting (see Biur haGra), and so having the wrong day in mind during the bracha is tantamount to having the wrong day in mind in the middle of your actual counting -- and by analogy to hilchos brachos, they believe this therefore creates a safek in whether you were fundamentally yotze mitzvas sefira, not just the bracha. There is a somewhat similar -- but different -- approach in harerei kedem.

  4. >>>So clearly safek d'oraysa l'chumra (assuming you hold sefira is d'oraysa) obligates you to repeat sefira; and perhaps chazal enacted the birchas hamitzva such that you should make the bracha whenever you are obligated bottom-line to perform the mitzva.

    Isn't that sevara at the heart of the machlokes whether a tumtum/androgenus has to say a bracha when they do a mitzvah m'safeik? Rambam holds the two sfeikos are treated separately. Even if sfeika d'oraysa l'chumra obligates performing the mitzvah, it does not follow that you have to say a bracha. (Someone else suggested similar

    >>>How could your fulfillment of sefira depend on which day you were thinking of during the bracha?

    Because counting by definition entails knowledge of what day it is, not simply mouthing a phrase.

    1. On your 2nd comment: exactly, that was part of my answer above and it sounds like you agree. The key additional thing I was pointing out was that the Tur and Ravya are typically understood as meaning that you had the wrong intent while reciting the bracha -- not during the actual counting -- and so my suggested chiddush is that they hold the bracha itself *is* part of the counting. Therefore incorrect intent during the bracha turns the act of counting into "mouthing a phrase", as you say, even if the person remembered the correct day when they recited the actual "hayom XX yamim" part.

    2. The missing part (I think) is this: Why does the Mechaber say (489:2) היום יום אחד and the Ramam adds בעומר ? The answer is that the Mechaber holds the way to count is Baruch ata ... vitzivuna al sefiras ha'omer hayom yom echad. The bracha IS the sefira. Proof is the shita of the Aguda is that the pasuk says tispiru chamishim yom - how are we yotze? Wit hkiddush of Shavuos night. Because the sefira IS the bracha (Heard from Rav Moshe Soloveichik Shlit"A in CHicago) Applying this, So the proof isn't based on Sefira being dioraissa or dirabanan, it is because the count is the bracha.

    3. The way you explain it perhaps sounds similar to the presentation in hareri kedem: "the count is [part of] the bracha". The way I am saying it is different: the bracha is part of our counting.

      I am not sure exactly what the briskers/soleveitchiks have in mind here. But I can explain the way I am trying to say it: because the way we are mekayem the mitzva of counting includes the text of the bracha (like an introduction), having the wrong intent during the bracha in effect means having the wrong intent during part of your counting. By analogy to hilchos brachos, this creates a safek in whether you were yotze counting, and so assuming sefiras haomer is d'oraysa, it is logical to apply safek d'oraysa l'chumra and you have to count over.

      Were you meaning basically the same thing I am saying ("the bracha is part of our counting"), or do you rather mean "the counting is part of the bracha" as it seems they are saying in harerei kedem? If the latter, I would like to understand better how that works. The bracha is still ultimately a din derabanan and is not l'ikuva -- i.e. you are definitely yotze b'dieved if you count without reciting any bracha at all -- so why does spoiling your bracha with the wrong intent necessarily spoil the counting?