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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