[Avodah] Safek Tereifah and Damages

[Micha Berger]

Here's the case...

Someone shechts your cow, and shahah bemi'ut simanim. Now you have a cow
that is safeiq neveilah.

So the Rama writes (CM 306:5) that even though we are nohagim not to
eat it, midinei mamonus, we can't make someone pay for damages. (E.g. if
caused by neglect.) But also, we can't make the owner pay the shocheit.
The AhS (s' 12) says that in cases, chezqas baalim applies.

This is another case of a phenomenon I've asked about before. Such as
the brisker saying that the tzitzis aren't betelim to the beged for
a tallis qatan if it turns out that the Mordechai is right and the
tallis qatan doesn't need tzitzis lehalakhah.

Lemaaseh, this man is wearing tzitzis on his tallis qatan because
he wouldn't wear his tallis qatan otherwise. And that's all yetzi'ah
beShabbos cares about. Bitul to the begged. The fact that he only "needs"
the tzitzis because of safeiq or minhag shouldn't change that. At least,
so it seems to me.

Here too... In the end of it, the man can't eat his meat. Midinei mamonus,
that's all that matters, no?

In fact, the AhS tones this down by saying that someone says (I think
he means the Shakh) that this is only when the minhag not to eat the
meat isn't fully nispasheit, and some still eat it. Vekhein nir'eh ikar.
Okay, I can understand if the person is choosing to be machmir, it shouldn't
be on the shocheit's cheshbon.

But according to the Rama who says nothing about such a limitation... I
don't get it. The shocheit rendered the meat unusable in a manner that
he (qua shomer sekhar) has to pay. Why does it matter that mei'iqar
hadin it might be that the person is allowed to eat it? He has no access
to iqar hadin and we pasten (or minhag hamaqom is) not to eat it. He has
no choice!

Tir'u baTov!
-Micha

-- 
Micha Berger             Every second is a totally new world,
micha at aishdas.org        and no moment is like any other.
http://www.aishdas.org           - Rabbi Chaim Vital
Fax: (270) 514-1507