Wednesday, May 06, 2015

two cases of sfeik sfeika in sefirah

 Saw the following question from R’ Yehoshua Menachem Ehrenberg (Dvar Yehoshua):

The S.A. paskens that if someone is in doubt whether he counted sefirah on a previous night he can continue counting the current night with a bracha.

The logic is that there is a sfeik sfeika in the person’s favor: 1) maybe he really didn’t miss counting the previous night; 2) even if he did miss, maybe the halacha follows the view that each night is its own mitzvah.

The S.A. also paskens that if someone asks you during bein ha’shemashos what night it is, you should say “Last night was X” because if you say what tonight it, you won’t be able to count with a bracha.  Since sefirah may only be derabbanan, and when it comes to mitzvos derabbanan kavanah to fulfill the mitzvah may not be necessary, therefore just by telling your friend what night it is you may have already been yotzei.

Why in this case, where you told a friend what night it is during bein ha’shemashos, do we not invoke sfeik sfeika in your favor to allow you to say the bracha: 1) safeik whether bein ha’shemashos is really day; 2) even if bein hashemashos is night, maybe mitzvos derabbanan do require kavanah and your count was meaningless?

What’s the difference between these two cases?


  1. Perhaps because by your statement that "Today is 32", you're being machria the safeik in that you're definitively stating that it's 32 (night), rather than 31 (day), somewhat analogous to tosefes Shabbos.

    1. Can a person be machria a safeik in metziyus?
      Tosefes is different -- there you are accepting the kedushas hayom of the next day irrespective of the fact that its still daytime.
      Hypothetical scenario: it's erev shabbos bein hashemashos. A person counts sefirah and then does melacha. Do you say they are now chayav a chatas b'toras vaday for chilul shabbos since they were machria that it is the next day?

  2. Bein hashamshos seems to be more favorable than a mere safek for purposes of sefira. It is common practice for the tzibbur to make a bracha when counting at an "early" (bein hashmashos) ma'ariv minyan. Although SA/Rema suggest the individual preferably count without a bracha and then make a bracha if/when he remembers to count again later, they do not appear to claim that the tzibbur is acting incorrectly by reciting a bracha at the early time -- which doesn't make sense if bh"s were a pure safek for purposes of counting sefira. The Tur even seems to advocate counting early.

    I once heard an explanation suggested that even if bh"s has safek status as to whether it is currently actually the next day yet, it can have vaday status of being a proper time in which to count the next day of sefira -- i.e. your counting refers to the new day, and this is legitimate to do at the point of bh"s even if the new day is really only about to begin shortly.

    In any case, it seems that the status of bh"s is better than a mere safek for purposes of sefira. Therefore if we add the question of mitzvos tzrichos kavana it amounts to a single safek as to whether you were already yotze, not a double safek, and a bracha cannot be made on counting again.

    1. Tos in Menachos says that you are allowed to count l'chatchila during bein hashemashos because you are allowed to put yourself in a situation of safeik when dealing with what is only a derabbanan. So it is a safeik, just for purposes of sefirah (esp given that you need temimos and want to count as early as possible) you are allowed to take the risk.

  3. I read that view in Tosafos differently. Here is what he says:
    זכר למקדש הוא - נראה דבספק חשיכה יכול לברך ואין צריך להמתין עד שיהא ודאי לילה כיון שהוא ספיקא דרבנן. ועוד אומר דאפילו ביום סמוך לחשיכה עדיף משום תמימות כדאמרינן לעיל. ואין נראה

    First he says (a) "ספק חשיכה" is OK because ספיקא דרבנן. Then he adds (b) "אפילו ביום סמוך לחשיכה" -- even more surprising. (Rosh in Arvei Pesachim, siman 40 quotes this in name of R"I and seems to endorse it, and Tur 489 follows (a).)

    Even just focusing on (a), what does R"I mean? Generally, if we have a ספיקא דרבנן then we *don't* make a bracha! E.g. if you aren't sure if you were already yotze a mitzva דרבנן, then you may *not* make a bracha on it. The fact that the mitzva is only דרבנן isn't a reason to make a bracha in cases of doubt, it's a reason *not* to do so! So what does R'I mean?

    The answer (I think) is he means that since sefira is only דרבנן -- in fact only a זכר למקדש -- and since there is a desire for תמימות, therefore the rabannan established that the period of ספק חשיכה -- maybe even a bit earlier, in prong (b) -- is a proper zman lechatichla for performing this mitzva. According to R"I/Tur, you don't fulfill sefira only doubtfully when you count during BH"S, you fulfill it definitely and lechatchila, and this is precisely the reason why you can make a bracha.

    Returning to our original point: The SA (489) is a bit vague about exactly when the proper zman begins. In 489:2 he writes that "medakdekin" wait until tzeys. He only mentions BH"S explicitly in 489:4, which is the focus of your post: the rule that if one inadvertently counted during BH"S he can't repeat with a bracha later. It seems to me this is because SA holds that while we should preferably not rely on the view of R"I/Rosh/Tur lechatchila since other rishonim disagree and it's easy enough to wait, nevertheless their view -- that BH"S is vaday a proper time for counting -- is legitimate. Therefore one may not say a bracha on counting later in the case of 489:4, because there is only a single (not double) safek as to whether he has already fulfilled the mitzva; the single safek being if mitzvos tzrichos kavanna.

    1. >>>Generally, if we have a ספיקא דרבנן then we *don't* make a bracha!

      I have one simple question: how do you know that Tosfos agrees with your rule?

      If you aren't sure if you were yotzei a mitzvah or not, then sfeika derabbanan l'kula would mean you should assume you are patur; therefore, you can't say a bracha.
      When it comes to sefirah, it's the opposite -- the safeik bein hashemashos creates a chezkas chiyuv, not a chezkas ptur. Once you have a chezkas chiyuv, maybe that's enough to allow you to say a bracha.

      By way of analogy, I think the Chayei Adam holds in general that you only say safeik bracha l'hakeil when there is a safeik whether you are chayav in something or not (e.g. Rambam's case of androgenus), but where you have a chezkas chiyuv and the only safeik is whether you are yotzei or not (e.g. you had a safeik whether your lulav is kosher), then you should say a bracha when you do the mitzvah again.

    2. That is a very interesting Chaye Adam, yashar koach! But I don't think it would explain Tosafos(R"I)/Rosh/Tur.

      > the safeik bein hashemashos creates a chezkas chiyuv

      Why would safeik bein hashemashos create more of a chezkas chiyuv than being an androgenus? It seems very much like androgenus: until/unless a new day has begun, no chiyuv to count arises and there is no need to establish a p'tur.

      Also, it's clear from the ruling we're discussing (489:4) that at least SA doesn't accept applying Chayei Adam to sefira in the way you suggest. That is: SA states that if you safek fulfilled counting (i.e. by telling someone what day of sefira it is), you can't count over later with a bracha.

      It seems pretty striking to me that Tosafos (R"I), Rosh and Tur all permit le-chatichila counting with a bracha during BH"S. I think the most reasonable way to explain it is that they hold BH"S is actually vaday a proper time to count. If so, then it also provides a very nice answer to the Dvar Yehoshua's kashe.

    3. >>>Why would safeik bein hashemashos create more of a chezkas chiyuv than being an androgenus?

      Because an androgenus is a safeik gavra bar chiyuva. By sefirah the gavra is vaday obligated to count -- the time is just a tnai in when the mitzvah can be done.