[Avodah] Street Minyanim/sh'as hadchak

[Chana Luntz]

RSS wrote:

RSZ wrote, re: RnChL:
> I would argue that in all those cases, the fact that we can rely on an 
> opinion in an emergency means that we *really* hold that the halacha 
> permits this, but since there is so much opposition to it we may not 
> rely on it in normal circumstances.  If it is at all possible we 
> should do better than that, and satisfy more opinions.  Only when we 
> have no other choice will we fall back on the basic halacha...

<<That is my understanding, too. In my limited understanding, the Rema, in
his intro to Toras Chatas, his sefer on Yore Deah, on the phrase "k'dai hu R
so-and-so l'smoch alav b'sh'as had'chak" (me: this phrase only appears once
(al pi Sefaria) but perhaps the concept comes up a number of times?), he
asks: what does this mean? Something is either ossur or it isn't. Rema
suggests that perhaps ikkar hadin is like the meikel opinion, but many
instances we are choshesh for the kavod of the machmir opinion, at least
l'chatchila. (Note: (a) I am unsure if the word "kavod" belongs in
there,because: (b) I have not seen this inside).>>

I have not seen this piece from the Rema either, but it seems somewhat
surprising, because the Rema in Shulchan Aruch Choshen Mishpat siman 25
si'if 2 writes:

"and if he is ruling in issur v'heter, and this is a matter from the Torah,
he should go stringently, and if a rabbinic matter, he should go leniently,
and davka if the two that disagree are equal, but we do not rely on the
words of the small one against the words of the one who is greater than him
in wisdom and in number even in a sh'as hadchak, unless there is also a
hefsed meruba, and so if he is an individual against the majority, we go
after the majority in any place (Rashba)"

As mentioned the Rema is quoting the Rashba which is found in Shut HaRashba
Chelek 1 siman 253 where he sets out rules of poskening, and says:

"that we do not say it is appropriate to rely on ploni in a time when there
is one who is greater than him in wisdom and number.  And the halacha pesuka
[CL: is this not the same as ikar hadin?] is that they go after the one
greatest in wisdom and number.  And even in a sh'as hadchak we do not rely
on the small one in wisdom or in number.  And so in a place of disagreement
between an individual and the many unless there is a sh'as hadchak that
there is in it a hefsed meruba or similar to this.  And like that which is
said in the first perek of Nida (9b) [CL This was one of the key sources I
brought regarding sh'as hadchak, see previous post]

... .  That not all poskim and chachamim are equal, and not all places are
equal from the law.  How do we rule the din if with two of the poskim one
forbids and one permits?  If we know that one is greater in wisdom and
number, and it goes out his name so we go after him whether for stringency
or leniency.  If there are two that are equal and we do not know which one
is greater of the two of them.  For Torah we go after the stringent one that
it is like a safek d'orisa and of the rabbis we go after the lenient one and
like it says at the beginning of the first perek of Avodah Zara (7).  And
one who relies on the lenient one when it is from the Torah sins. ... .  But
if there is one Rav in his place, and he teaches them they go after his
words. ..."

And he goes on to discuss the question of giving honour to a Rav in his
place (like Rabbi Yosi hasGalili where they ate chicken with milk, and Rabbi
Eliezer where they cut the trees to make the knives on shabbas for the
bris), but that seems to be where the question of honour comes in in the
Rashba's piece.

Now it is noteworthy that the question of a piece of tahor chatas meat
falling into 100 pieces of tahor chulin meat (which might be the place on
which the Rema you quote is commenting) does come up in the subsequent
discussion of this Rashba.  Because the Bach commenting on this Rema and
hence Rashba derives from the Rashba that he holds that the principle of
sh'as hadchak applies even to a d'orisa, a position that seems proved by the
Rashba's comment on Yevamos daf 91b d'h "chatichas chatas" - talking about
this chatas meat (ie the only reason that sh'as hadchak is not applied there
is because there is only a small loss, not a large one, as it can be sold to
a kohen).  So maybe the Rema in the piece you are quoting is trying to deal
with this question. 

But note that the Shach Pilpul b'hagahos Hora'os b'isur v'heter (at the end
of siman 252) rejects this idea that sh'as hadachak applies to d'orisas, and
rather understands that (as I mentioned previously in the name of the Piskei
Teshuva) sh'as hadchak only applies to d'rabbanans, and gives the
justification of "hem omru v'hem omru" - ie the rabbis in setting up the
system specifically set it up so in a sh'as hadchak situation one could rely
on minority opinions.  So at the very least it seems to me that the Shach
understood the situation with sh'as hadchak as I do, that it is a rabbinic
meta halachic rule that is applied, and not that the halacha is in essence
like the minority opinion (other than in the more general sense of elu
v'elu).

Note also when the Bach is discussing the way the Shulchan Aruch is
structured (in the piece I mentioned above), he describes what the Shulchan
Aruch brings as the stam - as the "ikar" halacha and when he follows it by
"v'yesh mi sheomrim" as that being the "tafel" - with the tafel perhaps to
be relied on in a sh'as hadchak.  It seems to me therefore from the Bach's
description that he too holds that the ikar halacha is the straight Shulchan
Aruch that we are expected to generally follow, and that if we rely on a
minority opinion in a sh'as hadchak ,we are relying on a halacha that can be
labelled the "tafel".

<<R Sholom Rosner asks: Where do we see a source for such an idea? He points
to Demai 3:1 where an oni can eat demai. So, really, ikkar ha'din, demai is
not ossur.>>

Or you can understand that demai is assur (rabbinically), but when the
rabbis banned demai, they allowed for sh'as hadchak situations, of which
being an oni is one of them, and that pushed aside the ikar halacha that
demai Is assur.


-- Sholom

Regards

Chana