יום רביעי, 1 במאי 2013

The Rambam's Shita Of Safek D'Oraysa - Bechukosai 5770



27:32 לב  וְכָל-מַעְשַׂר בָּקָר וָצֹאן, כֹּל אֲשֶׁר-יַעֲבֹר תַּחַת הַשָּׁבֶט--הָעֲשִׂירִי, יִהְיֶה-קֹּדֶשׁ לַירוָה  In Maseches Bava Metzia, Chazal learn from the word Asiri that only Asiri Vadai and not Asiri Safeik is Kodesh. Only the tenth animal that is certain is Koidesh Lashem.  We learned in that Sugya about one animal that jumped back into the corral after already being counted.
The Rambam’s Shittah is that Min Hatorah every Safeik D’oraissa is L’kula. Meaning that the idea that we have that every Safeik D’oraissa is L’chumra is itself a D’rabanan. However, the Din D’oraissa is that Safeik D’oraissa L’kula.
The Kasha that Rishonim ask on the Rambam is, if so why do I need a Posuk to teach us Asiri Vadai V’loi Asiri Safeik? I thought every Safeik D’oraissa is L’kula, not only Asiri Vadai V’lo Asiri Safeik?
The Chavas Da’as at the end of the first volume in Yoreh Dai’a after Siman 110 in the section of Bais Hasafeik explains the Rambam’s Shittah. What is the logic of Safeik D’oraissa is L’kula? When the Torah says to not eat Nevaila and Teraifa it means something that is certainly Nevaila and Teraifa. Something that is Safeik Nevaila is not included in the Torah’s prohibition. That is why the Rambam holds Safeik D’oraissa is L’kula. When the Torah says don’t wear Shatneiz it means don’t wear something that is certainly Shatneiz. Something that is Safeik Shatneiz doesn’t have a prohibition. This that the Gemara Darshuns that Asiri Vadai and not Asiri Safeik, the Chavas Da’as says this is not a special Drasha from an extra Posuk here. It is really the general rule that whenever the Torah expresses something it is only expressed Mitoiras Vadai. By our Posuk only the tenth animal that is certain to be the tenth animal is Koidesh.
This Drasha is true elsewhere as well.  We gain with this Chiddush of the Chavas Da’as that the Rambam’s Shittah that Safeik D’oraissa is L’kula, is only by Issurin and not by Mitzvois. The Torah says take an Esrog, Pri Eitz Hadar. A Safeik Pri Eitz Hadar you might think is acceptable according to the Rambam because Safeik D’oraissa is L’kula. The Chavas Da’as says no. When the Torah says that you must take an Esrog, you must take that which is a Vadai Pri Eitz Hadar. Therefore, the Rambam’s rule only applies to Issurin of Safeik D’oraissa is L’kula and not to Mitzvos that are a Maiseh (you must DO something).

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