<html><head><title>[Aspaqlaria] Tum'ah in a Private Domain</title><link rel="stylesheet" href="http://www.aishdas.org/asp/wp-content/themes/twentyeleven/style.css" type="text/css" media="screen" /></head><body>Aspaqlaria has posted a new item, '<a href="http://www.aishdas.org/asp/2013/04/tumah-rhy.shtml">Tum'ah in a Private Domain</a>'<br />
<br />
<font size=+1><br />
<p>A central theme in this “<a title="Aspaqlaria - Category: Phenomonology" href="http://www.aishdas.org/asp/category/phenomenology" target="_blank">Phenomenology</a>” category of this blog is an extension of an idea from a responsum by R’ Aqiva Eiger. That extension isn’t really part of this observation, but since I’m revisiting the topic, I’m categorizing it here anyway. To save you looking up <a title="Aspaqlaria: Halakhah and Phenomenology – The Actually Perceived" href="http://www.aishdas.org/asp/2009/04/halakhah-phenomenology-2.shtml" target="_blank">a prior post</a> and me figuring out another way to explain RAE’s position:</p>
<blockquote><p>Rav Aqiva Eiger (<em>teshuvah</em> #136) divides [the laws of cases of ignorance, how to rule when the realia of a situation isn’t known] into two types:</p>
<blockquote>
<ul>
<li>ways of applying the <em>halakhah </em>to an uncertain <strong>situation </strong>and</li>
<li>resolving what to do when the <em><strong>halakhah </strong></em>is uncertain</li>
</ul>
</blockquote>
<p>In other words, the doubt could be about the reality, and now we need a <em>halakhah</em>, or the <em>halakhah </em>could have once been set, but now we don’t know what it is.</p>
<p>Before looking at each category separately, let’s look at the problem Rabbi Aqiva Eiger was addressing. There is an oft quoted <em>beraisa </em>that contrasts two kinds of halachic uncertainty.</p>
<blockquote><p>[A city has] nine stores all of which sell <em>shecht</em>ed meat, and one store that sells <em>neveilah </em>meat (meat killed in other ways). Someone buys from one of them, but he doesn’t know which of them he bought from. His doubt makes the meat prohibited.</p>
<p>But if the meat were just found, one may follow <em>rov </em>(the majority).</p>
<p><em>-<a href="http://e-daf.com/index.asp?ID=660&size=1">Pesachim 9b</a>, <a href="http://e-daf.com/index.asp?ID=1851&size=1">Kesuvos 15a</a>, Chullin 95a, <a href="http://e-daf.com/index.asp?ID=5297&size=1">Niddah 18a</a></em></p></blockquote>
<p>The <em>beraisa</em> contrasts two principles. The first is “<em>kol qavu’ah kemechtzah al mechtzah dami</em>” (anything that’s established is like half against half). It is specitically this rule that we There is no playing odds, a doubt is a doubt whether it’s 50:50 or 90:10. For Torahitic laws we would have to assume the stricter possibility, and for Rabbinic ones, the more lenient side.</p>
<p>The other rule is “<em>kol deparish meirubah parish</em>” (anything that leaves the group [can be assumed to have] left the majority). Here we see that majority is a deciding factor. The first case is called “<em>qavu’ah</em>” (established), the second “<em>parish</em>” (separated). How does “<em>qadu’ah</em>” differ from “<em>parish</em>“? When is majority ignored, and when is it a determining factor?</p>
<p>Tosafos (Zivachim 72b, “<em>Ela amar Rava</em>”) write “<em>qavuah </em>only applies to a thing that is known”. Rabbi Aqiva Eiger explains that the piece of meat bought from the known store had an established <em>halakhah</em>. The buyer knew the state of the meat. We therefore call the <em>halakhah </em>“<em>qavu’ah</em>” — established. However, now it got mixed up, and we don’t know what that <em>halakhah </em>is. The doubt is in the <em>halakhah</em>.</p>
<p>However, if the meat is simply found, then the uncertainty begins one step earlier. We don’t know the state of the meat. The doubt is in the reality, what part of the set this item was <em>parish </em>– separated from.</p></blockquote>
<p>The same distinction appears to underly a dispute in the Yerushalmi, Nazir 8:1 (vilna ed 40a). There is a rule that <em>safeiq tum’ah birshus harabim</em>, a doubt about whether something in the public domain became <em>tamei</em>, we assume it’s <em>tamei. </em><em></em>(And a converse rule that <em>safeiq tum’ah birshus hayachid</em>, where a similar doubt about something in a private domain<em></em>, where we assume it’s <em>tahor.</em>)</p>
<p>This rule is tested in two cases. In the first: “נזיר שנטמא בספק רשות היחיד ואינו בפסח ר’ הושעיא רבה אמר הנזיר מגלח ר’ יוחנן אמר אין הנזיר מגלח.” A case where a <em>nazir</em> may or may not have become <em>tamei</em> when he was in a public thoroughfare. The problem is that a <em>nazir</em> who is <em>tamei</em> has to restart his <em>nezirus</em> in a process that includes shaving all his hair. But, <em></em>if the <em>nazirus</em> is intact, he is not permitted to cut his hair at all! Thus, neither error is “safe”; neither is simply being stringent.</p>
<p>R’ Hoshea Rabba says the <em>nazir </em>should shave his head.</p>
<p>R’ Yochanan says he does not.</p>
<p>The second case, “יחיד שנטמא בספק רשות היחיד בפסח רבי הושעיה אמר ידחה לפסח שני רבי יוחנן אמר משלחין אותו דרך רחוקה.” In the days when there is a Beis haMiqdash, a person got <em>tamei </em>too shortly before <em>Pesach</em> to being the <em>qorban Pesach</em> with everyone else would bring the qorban a month late on <em>Pesach sheini</em>. Again in a case of doubt neither assumption is a pure stringency. If we assume he is <em>tamei</em> and he isn’t, then he both missed the <em>qorban Pesach</em> and on <em>Pesach sheini</em> he brought a non-offering (since he wasn’t obligated) on the altar. If we assume a <em>tamei </em>person isn’t, he would bringing the <em>qorban Pesach</em> in impurity.<em></em></p>
<p>R’ Hoshea Rabba says he waits to <em>Pesach sheini</em>.</p>
<p>R’ Yochanan tells him to avoid the problem — run to a place too far from the <em>Beis haMiqdash</em> to be obligated to come for the <em>qorban</em> and thereby eligible for <em>Pesach sheini </em>either way.</p>
<p>(I couldn’t find a parallel in the Bavli. Anyone?)</p>
<p>As the Penei Mosheh and Qorban ha’Eidah (the <em>acharonim</em> on the sides of the <em>daf</em>) both explain, this is the underlying dispute:</p>
<p>R’ Hoshea Rabba holds that <em>safeiq tum’ah bereshus hayachid</em> renders the person <em>tamei</em> as if we were sure. So, the nazir is definitely a <em>nazir tamei</em> and must shear his hair and restart <em>nezirus</em>. And the person definitely is disqualified from his <em>qorban Pesach</em> on <em>Pesach</em>, and eligible for <em>Pesach Sheini</em>.</p>
<p>In contrast, R’ Yochanan considers <em>safeiq tum’ah brh”y</em> to be a rule for how to deal with a doubt. It is insufficient grounds to permit the <em>nazir</em> to cut his hair because he might be <em>tahor</em> and a haircut would be prohibited. So, he outwaits his <em>nezirus</em>, cuts his hair then, and then, in case he was <em>tamei</em>, starts over. Which is why R’ Yochanan also needs a way to circumvent the <em>Pesach sheini</em> issue. In both cases, he tells the potentially <em>tamei</em> person to worry about both possibilities.</p>
<p>I believe this is the same distinction as the one I generalized from RAE:</p>
<p>R’ Hosheia is saying that safeiq tum’ah brh”h is a rule for dealing with doubt in facts of the ground. The halakhah established in cases of encountering maybe tum’ah, or maybe encoutering definite tum’ah, is that if one is in a public area th<em></em>e halachic state is <em>tamei</em> and in a private area, <em>tahor</em>. A mapping from a doubtful reality to a definite law.</p>
<p>Rav Yochanan holds these are rules in determining the how to act when the din is unknown. We do not establish a definite law, and therefore we need to know what to presume so that we could continue acting — act stringently and assume it’s <em>tamei</em> if the possible contact is in a public area, and leniently when in a private one. But when neither option is more stringent than the other, as in our two cases, Rav Yochanan tells you to be stringent in both ways.</p><br />
</font><br />
<br />
You may view the latest post at<br />
<a href="http://www.aishdas.org/asp/2013/04/tumah-rhy.shtml">http://www.aishdas.org/asp/2013/04/tumah-rhy.shtml</a><br />
<br />
You received this e-mail because you asked to be notified when new updates are posted.<br />
Best regards,<br />
micha<br />
micha@aishdas.org</body></html>