[Avodah] Forms of Bitul

[Chana Luntz]

RMB writes:

>I am not entirely conflating the two, I am considering them subtypes of
>a single general issue. But in any case...

>1- Lemaaseh, we actually hold 1:60 is derabbanan, and that even bishul
>beta'aroves (siman 98 and Chulin 98) only requires a rov deOraisa.

Aruch HaShulchan Yoreh Deah 98:15:  The Tur and the Shulchan Aruch posken
that the ikar of ta'am k'ikar is d'orisa b'min sheaino mino and need shishim
min haTorah. ...

Yalkut Yosef Kitsur Shulchan Aruch 98:1: Ha'ikar l'dina d'ta'am k'ikar hu
min haTorah .. 

Need I go on.


> Which means the derashah from the nazir's shelamim is an asmachta. So if
my
>theory is problematic on these grounds, it's only a problem according
>to a shitah we don't follow.

No see above. Even amongst those rishonim who hold that it is not a drasha
gamura still (most) hold that the requirement for sixty in min b'ano mino is
min haTorah (eg Tosphos).


...
: So, as I have been trying to argue from the beginning, I just don't see
how
: you can bring any proofs or include in the discussion the Yoreh Deah siman
: 98 type case of taste bitul.  At most your discussion would surely have to
: be limited to comparing the Yoreh Deah siman 109 type case of bitul, and
: rov.  And even there, I am not sure you get the same results for a rov
: de'iqah leqaman and deleisa leqaman.

>Why not? Kol deparish applies to both.

And Socrates is a horse.

There are enough differences between d'iqah lequaman and deleisa leqaman (as
between men and horses) to make the fact that a statement might apply to
both cases not enough to make them the same.  

For example, the whole issue in Bechoros regarding the fact that tumas
ma'asah applies even where tumas ma'aga doesn't (which is the basis on which
those rishonim who disagree with the Rosh hold that one cannot eat all of
the three pieces in one sitting) only makes sense in relation to de'iqah
leqaman.

Rabbi Meir's shita of being choshesh l'meuta, in contrast, only applies
where it is deleisa leqaman.

Indeed, I am not sure that kol deparish does necessarily apply to deleisa
leqaman.  The classic case of deleisa leqaman is that rov times a boy does
not turn out to be a saris or a girl an alyanis.  It is not that the boy or
girl separated from anything - it is more a case of a statistical rov being
applied.

: And your linking up to regular forms of safek seems very difficult too.
: Those who understand the principle of safek d'orisa l'chumra to be
d'orisa...
: (the Rashba, the Ran and Tosphos), do not, as far as I am aware, link it
to
: any of the psukim referred to above.  And clearly the majority (according,
: inter alia, to Rav Ovadiah Yosef) who hold that the principle of safek
: d'orisa l'chumra is d'rabbanan basically are holding that once there is a
: safek, according to the Torah the matter is completely mutar ...

>The way I see it, all agree that in a case of rov, it would be assur
>de'oraisa, and in a case of mi'ut, it would not.

As mentioned above, this is not true of min shebeano mino.  It is true of
min shebemino (well not all, Rashi, for example, disagrees, but this is the
position of the majority).

> The question becomes whether the kellal is "assur if rov" or "mutar if
mi'ut", with a nafqa
>mina when the safeiq is kemechtza al mechtza.

But the classic form of safek that you use to illustrate the case is that of
bein hashmashos.  This has nothing to do with rov.  Thus there is yet
another jump from discussions of rov to discussions of classic safek.

>From this way of looking at the world, saying safeiq deOraisa lechumera
doesn't eliminate the notion of safeiq from the deOraisa lexicon. Because
that would deny the whole spectrum, and thus also eliminate rov.

Yes, that is my point.  Your thesis (leaving aside all the other problematic
aspects of it) insists on a position that safek d'orisa l'chumra is a
d'orisa principle, whereas the majority, at least according to ROY, who
poskens accordingly, is like the Rambam that safek d'orisa l'chumra is a
rabbinic principle.  This means that, according to this conception, safek
and rov are entirely different principles, with rov applying in various
limited circumstances, such as min b'mino, as a d'orisa principle.  

: But the esrog's status is rabbinic - and therefore the fact that the
rabbis
: extended it because *we* are not sure, doesn't mean that there is anything
: intrinsically a mixed identity about bein hashmashos, just that we don't
: know what it is.

>But "not sure" means "and therefore say it's both". Whether the
>uncertainty is rabbinic or Torahitic, that's not the way we today (aside
>from Quantum Mechanics) think of "don't know". Chazal treat unknowns as
>a mixture, (1) for both kinds of unknown, and (2) that is entirely alien
>to western culture, ever since Aristo codified the logical principles
>of the Law of Excluded Middle and Law of Contradiction. In any context,
>this is a novel idea worthy of playing out what it say about how chazal
>see the world.

But while you keep asserting that this is the way that Chazal treat
unknowns, I just don't think it is true.

That is why I pointed you in the direction of the discussion regarding
timtum and koi.  Have a look, for example, at Bechoros 41b.

Ta Shma the Torah states "zachar" (to be used as an olah) to exclude a
female, but when it says "zachar" below, what is it coming to exclude? - a
timtum and an androgonous.  Now who is the author of this braisa.  If you
want to say the tanna kama - [that cannot be because] sfeka hu. ... and
similarly further on when it analyses the position of Rabbi Yishmael.

That is, if you understand a timtum and androgonos to be a safek, then, as
Rashi puts it "leka safek kamei shamaya ele vadai beriya bifnei atzmo" - ie
there is no concept of safek to HaShem or the Torah, and thus if the *Torah*
is coming to exclude a timtum or androgonos, then these individuals *must
be* an independent form of creation, a separate gender, and not just a safek
male or female.

The point of this whole gemora is that, when one is dealing with a safek
while *we* may not be sure, klapai shamayim they are sure.  

On Mon, Jan 09, 2012 at 03:33:21PM -0000, Chana Luntz wrote:
: How would you characterise bein hashmashos using Rabbi Bensimon's
typology?
: I would have thought it would have be considered a safek b'etzem...

>It might depend on the nature of the safeiq.

>If you hold that every moment is a safeiq, that the day switches at some
>point in time between sunset and tzeis and we can't tell when, then it
>is a safeiq begeder siba. If it's a safeiq whether the day switches at
>sunset or at tzeis, perhaps that's because it's a sadfeiq be'etzem --
>we know the two moments, we don't know which is halachically meaningful.

Clearly if I am out and about without a watch, and shabbas is approaching, I
am going to have a safek b'geder siba, as I won't have all the information I
need about the point at which the rays of the sun's light stop hitting the
earth, so I will not be able to determine shkia.  This parallels not having
all the information one needs to determine whether a piece of meat is kosher
or not (ie its history).  But in the general case, regardless of whether
every moment is considered a safek or not, the reality is that even if I
have absolutely all the physical evidence and history and scientific
measurements possibly available of the precise angle of the sun and its
movement in relation to the earth, I *still* don't know whether it is day or
night.  That seems to me to be a safek be'etzem, it is inherent in the
nature and creation of the thing, not because of some lack of knowledge on
my part such as history or angle or time that in theory some other person
could bring me (if they had been watching closely).  It is, to use the
language you use below, a safek in how to assign the din (of yom or layla)
to the metzius.

: So I don't think my examples of a timtum or a koi are red herrings.  These
: examples, ie of safek b'etzem are at the heart of the form of safek that
RMB
: wants to utilise to derive his quasi quantum mechanical theology....

>Timtum and koi are sefeiqos in pesaq, not in biology. Even if we gave
>the metumtum a full body MRI, s/he is still begeder safeiq. It's a
>safeiq be'eztzem.

Yes, exactly, and so is shkia.

>The three chatichos are begeder siba, a safeiq because we don't know
>the metzi'us.

Yes, that is right.  And that is why I think that this language RDR brought
is coming to assist me in the argument I was making.  You started by talking
about the three chatichos (ie a safek b'geder siba), but you then jumped to
discussing shkia and sfekos more generally (ie which included sfekos
b'etzem).  The discussion about sfekos b'etzem are centred in the gemora
around the timtum/androgonos and the koi.  My point was that the gemora
deals with these kinds of sfekos, not in the way you appear to explain it,
but in a way that assumes that either HaShem knows whether a person is a
male or female (if indeed we are dealing with a safek), or alternatively
that it is a separate kind of creation, a beria bifnei atzmo, and this is
*not* called safek.


>IOW, I am suggesting that the sevara behind safeiq is a subtype of that for
>mixtures because when a person is in doubt, he entertains both conflicting
>possibilities.

But, as indicated in various places above, I do not believe this matches the
halachic reality.


>So, I can now speak of three kinds of sefeiqos:

>1- The safeiq is on the level of what is the metzi'us. Kol deparish.
>2- There once was a known din, so the safeiq is in what that din is. Kol
   qavuah.
>3- There is a safeiq in how to assign a din to a metzi'us -- safeiq
   be'etzem.

>When I speak of safeiq being a kind of taaroves because safeiq creates
>a mixture of identity in the affected people's minds, I am only talking
>about #1. It's something I'm saying about what "metzi'us" means, and
>therefore doesn't touch sefeiqos in a specific item that was qavua or
>in pesaq on an issue in general.

OK, at least we are getting a bit closer, ie it is not every type of safek
to which this, but just a more limited type of safek (and it excludes sfekos
b'etzem).

But if you look at the literature on safek d'orisa l'chumra and safek
d'rabbanan l'kula - there are many many examples in which the safek is one
of what is the metzius.  If the governing rule was kol deparish, then
regardless of whether the halachic question that arose due to the safek in
metzius was due to a din that is d'orisa or d'rabbanan, the halacha should
be the same, but of course it is not.  Take indeed the case brought by the
Aruch HaShulchan and in the Yalkut Yosef in the simanim I referred to at the
beginning of this posting.  If something, such as a drop of milk, fell into
a meat stew, and it was not known whether or not there was sixty against
that drop of milk, and then, before there was a chance to measure, the whole
tavshil upended, and measurement became impossible, then the tavshil is
assur, even though it is known than there was definitely rov meat to the
milk, because of safek d'orisa l'chumra.  Here is a case of a safek of what
is the metzius - we do not know whether or not there was sixty of meat
against the milk drop (although we do know that there was rov).  And the
principle that is applied is safek d'orisa l'chumra, because the requirement
to have sixty to drown out the taste is from the Torah.  If on the other
hand we were dealing with a safek in metzius where the requirement was
d'rabbanan, then whatever it was would be mutar, because of safek d'rabbanan
l'kula.

>Tir'u baTov!
>-Micha

Regards

Chana