Safek D'Rabanan L'Kula

By Rabbi Joshua Flug

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I.

Introduction- This shiur outline is part of the klalei psak series and is adapted from an article I wrote for yutorah.org with some additional mareh mekomos. These issues serve as the underpinnings for many that we face. For example: a. Safek berachos l'hakel (we will discuss further later). b. Doubts relating to c. This topic can also serve as a way of presenting the importance of observing .

II.

What is the Nature of Mitzvos D'Rabanan? a. The Torah states that one must listen to the words of the rabbis. {} b. The Gemara states that this verse is the source for the ability to recite on a .When we fulfill a , we are fulfilling God's commandment because the Torah commands us to listen to the rabbis. {} c. Rambam (1138-1204) quotes earlier authorities who listed certain among the list of 613 mitzvos. Rambam disagrees with this approach and maintains that they should all be categorized under the of }{ . i. Rambam repeats this point in Mishneh Torah when stating that one who violates an violates the prohibition of }{ . ii. Ramban (1194-1270) questions Rambam's position: How is it possible that violating an is a violation of ? If that's the case, there would be no distinction between and . Yet we know that and }{ . Why, according to Rambam, do we make such a distinction? {} 1. R. Shimon ben Tzemach (1361-1444) suggests in defense of Rambam that every rabbinic law has a built in clause that one may be lenient in a case of doubt. {} 2. R. Yosef Shaul Nathanson (1808-1875) writes that the reason why one may be lenient on rabbinic laws is that there must be a distinction between what is biblical and what is rabbinical and is one way to make it distinguishable. {} 3. R. Meir Simcha of Dvinsk (1843-1926) has a different defense of Rambam's position. He suggests that according to Rambam the prohibition of is to defy the words of the rabbis or rabbinic authority. However, the rabbinic prohibitions don't have the status of a biblical prohibition by virtue of . Therefore, regarding matters of doubt, if we are dealing with a biblical prohibition, there is a serious possibility that partaking in the item is something that the Torah doesn't want. If it is rabbinic prohibition, partaking in the item is not

considered an act of defiance because the rabbis never inherently prohibited the item. Therefore, one may be lenient. {} III. Is a Rabbinically Prohibited Item Inherently Prohibited a. According to Rashbetz's interpretation of Rambam, rabbinic prohibitions basically have the same status as biblical prohibitions, just that there is a built in clause of .According to R. Meir Simcha, there is no inherent prohibition. There are two practical differences: b. One practical difference between these approaches is with regards to safek d'rabanan against a chezkas issur. R. David HaLevi Segal (Taz c.1586-1667) writes that if someone is not sure if they performed melicha, one may be lenient because of }{ . R. Shabsai Kohen (Shach 1621-1662) disagrees and maintains that we don't employ in this situation because the meat has a previously established status as being prohibited. {} i. R. Shneur Z. Fradkin (1830-1902), without addressing the particular machlokes, notes that the issue of whether can override a depends on the nature of }{ : 1. If there is an inherent prohibition, one cannot overturn the status quo. 2. If there is no inherent prohibition, there is no status quo. c. This idea also comes up regarding someone who sells prohibited items. i. Shulchan Aruch states that if someone sells a non-kosher item to another individual, the seller must refund the money, even if the buyer already ate the item. However, if he sold a rabbinically prohibited item and the buyer already ate the item, he is not entitled to a refund. {} Why is there a distinction between and ? ii. R. Ya'akov Lorberboim (Nesivos HaMishpat, 1760-1832) suggests that it is based on the nature of . iii. The Gemara states that when it comes to , if we have questions regarding a psak, we must answer the questions before acting on the psak. Regarding , we can answer those questions later. {} iv. Nesivos explains (similar to R. Meir Simcha) that when one violates an ,even by accident, it requires atonement and therefore, one must be sure about the permissibility before partaking of it. However, regarding , one who accidentally violates the prohibition does not require atonement. Therefore, one can ask the questions later. v. The reason why the seller must reimburse the buyer even if the buyer ate the prohibited item is that the buyer didn't benefit at all from the sale because the detriment of eating non-kosher outweighs the enjoyment and sustenance. However, if it is an , there is no detriment because there is no

atonement required. Therefore, the buyer's benefit was worth the cost of the item and he is not entitled to a refund. {} d. R. Yitzchak Schmelkes (1828-1905) takes issue with the contention of Nesivos. He notes that according to Tosafos, lifnei iver applies to causing someone to violate an }{ . If violating an accidentally doesn't require atonement, why is there a prohibition of lifnei iver? R. Schmelkes contends that one must conclude that violating an does require atonement. {} i. R. Shlomo Zalman Auerbach (1910-1995) defends Nesivos' position and suggests that there is a difference between someone accidentally violating a prohibition and someone who was tricked into a violation. If we don't assume this distinction, what would be wrong with telling someone that an item is kosher even though we know it is ? Since we know that you can't do that, we must make this distinction. {} IV. Safek Berachos L'Hakel a. The Gemara employs to someone who is not sure if they prayed. b. R. Yosef Karo (1488-1575) in Beis Yosef presents two reasons for : i. It is based on . ii. It is based on the concern for beracha l'vatalah 1. The Gemara states that one who recites a beracha unnecessarily violates the prohibition of }{ . ' a. Rambam assumes that it is a biblical prohibition to recite a beracha l'vatalah {&}. b. Rabbeinu Tam (c.1100-1171) assumes that it is only a rabbinic prohibition. {} c. Practical Differences between the two approaches of Beis Yosef i. R. Yosef Teomim (P'ri Megadim, 1727-1792) discusses the requirement to repeat Birkas HaMazon if one has a doubt. If is based on , one would be required to repeat Birkas HaMazon which is .If it is based on a concern for , the same should apply to Birkas HaMazon. The fact that we require repetition must be based on the potential mitzvah overriding the potential issur, but if one can find a solution around the problem, one should. {} ii. R. Ya'akov Meshulam Orenstein (1775-1839) suggests that will only be effective if it doesn't overturn a previous status quo. However, if someone is in doubt whether they prayed, there is a previous status of obligation and the doubt would require one to repeat the prayer. It is only because of the concern of that we don't allow repetition. {}

iii. R. Avraham Danzig (1748-1820) discusses whether one may voluntarily recite a beracha in a case of a doubt. In a lengthy discussion he suggests it is contingent on whether is a function of . If it is, then one would be prohibited from reciting a beracha. If it is based on , then reciting a beracha is optional. He then suggests that even Rambam agrees that one only violates for reciting a beracha gratuitously. However, as a matter of halacha, he doesn't permit reciting a beracha voluntarily in cases of doubt. {}

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