[Avodah] Rishon vs Acharon and other kelalei pesak

[Micha Berger via Avodah]

There are some interesting se'ifim toward the end of AhS YD 242 that touch
on a number of our perennial topics.

Se'ifin 58-62 discuss the din of whether a rav can pasqen on something
that someone else already pasqened on, and if so, is a sho'el allowed
to ask the second rav the self-same question.

In 59 he opines (nir'eh LAD) that the Raavad, Ramban, Rashba, Rosh
and Ran (AZ 7) all say the issue is not the kavod of the first talmid
chakham, but because once he prohibits, chal alei chatichah de'isura
[CACD]. Therefore, if the first TC made an error in a zil qeri bei rav
matter, it's like someone who avoids a piece of shuman thinking it's
cheilev, and there is no CACD. However, ther 2nd TC *may* say "I think
it's allowed, but I will not permit something R' XYZ already prohibited."

If a talmid chakham was matir and no one acted on it, another TC can be
machmir. But if it was acted upon, he can't. I do not see an explanation
why.

Later we learn that a TC of an obviously higher caliber, or a moreh
de'asra in his own town, can indeed overrule an earlier TC's ruling.

Another interesting topic is 35 -- if acharonim disagree with a rishon
whose opinion was available in their day, we follow the acharonim. If
the rishon was not (eg Me'iri), we say that perhaps the acharonim would
have ruledd differently had they seen it. But you cznnot rule against
a ga'on. Yeish omerim you never hold like acharonim against rishonim,
but yesh lehisyasheiv bazeh. However, if the rishon find one position
compelling (yakhol lehachira) he may pasqen as he sees (except against
geonim).

36: Just as it is assur to permit the prohibited, so too it is assur
to prohibit the permitted. Even if there is no hefseid, or the item is
owned by a non-Jew. However, safeiq and being chosheish for the opinoin
of many rishonim is sufficient motive . According to the Shakh this is
because "shelo ya'asu agudos agudos."

In general the AhS refers to the Shakh's qunetrus on kelalei hapesaq
a lot. Even though on a couple of things he holds like the Rama over
the Shakh.

Tir'u baTov!
-Micha

-- 
Micha Berger             Take time,
micha at aishdas.org        be exact,
http://www.aishdas.org   unclutter the mind.
Fax: (270) 514-1507            - Rabbi Simcha Zissel Ziv, Alter of Kelm