Wednesday, May 04, 2016

putting oneself in a situation of safeik

Tosfos (Menachos 66) writes that one is permitted to count sefiras ha’omer during bein hashemahos (earlier post on this sugya).  Even though bein hashemashos is only safeik night, since sefira is derabbanan one can rely on the rule of sfeika derabbanan l’kula.  There are two chiddushim in Tosfos: 1) sefira is derabbanan; 2) one can knowingly put oneself into a situation of a safeik derabbanan -- sfeika derabbanan l’kula is not just an ex post facto allowance.

I asked my son the following question: the Shulchan Aruch (O.C. 10) writes that if one has 4 cornered garment that is slit open exactly half way, there is a safeik whether it is chayav in tzitzis or not (the garment must be mostly open to create corners that are vaday chayav) and therefore it should not be worn outside on Shabbos.  The M”B quotes the MG”A as saying that not only should it not be worn in a reshus harabim, but it shouldn’t be worn even in a karmelis lest the tzitzis not be necessary and be considered carrying.  
Why not say that since carrying in a karmelis is only an issur derabbanan, you should be allowed to put yourself in the situation of sfeika derabbanan l’kula and wear the garment?
There is, of course, an obvious distinction: the MG”A is speaking about an issur; Tosfos is speaking about a kiyum mitzvah. But why should that distinction make a difference?  If you can put yourself in a situation of safeik, who cares if the root of the safeik is a kiyum mitzvah or a safeik issur?  


  1. I think this is an actual machloqes... There is a stream of Ashkenazi thought in which pesaq isn't enough to fully close a question. Like hanging a mezuzah on the diagonal to fulfill both shitos rather than picking sides. Although that kind of thing is a rarity (I can't think of another case) until the acharonim. The MA and the MB are particularly prone to this kind of thinking. And it underlies the Brisker chumerah as well...

  2. By sefiras haomer, tosfos paskins it's a derabbanan like the shittah of amiemar in maseches menachos who holds that today it's only a zecher l'mikdash. Perhaps Zecher l'mikdash doesn't need to have every pratei hadin of an actual mitzvah.

    1. While it's true that a zecher l'mikdash does not need to follow the same gedarim as the original mitzvah, from the language of Tosfos it does not sound like that is the pshat here. It sounds like Tos is saying a general klal.

      My son suggested that while bein hashemashos is a pure derabbanan, karmelis is an extension of the din d'orasya of reshus harabim and therefore carries more weight.
      Perhaps one can also distinguish between a safeik in din like bein hashemashos and a safeik in metziyus like by tzitzis (assuming that bh"sh is in fact a safeik in din).
      Maybe there are other answers as well...

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