This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
This week I will be addressing a question from a previous column – with a new answer.
The pasuk in this week’s parshah (Vayikra 23:14) says, “V’lechem v’kali v’karmel lo sochlu ad etzem hayom hazeh ad haviachem es korban elokeichem – And you shall not eat bread [etc.] on this very day until you bring the offering of your God.” This pasuk teaches us that all of the five grains (wheat, spelt, rye, oats, and barley) are forbidden from the time they are harvested until after the korban omer is brought.
However, if the grain had already taken root prior to the bringing of the korban, that grain is permitted. As we do not have a Beis HaMikdash today and thus cannot bring the korban omer, the new grain is permitted after the day the korban would have been brought. In Eretz Yisrael, that would be after the 16th day of Nissan; chutz la’aretz, it is permitted after the 17th day of Nissan.
The Rama, in Yoreh De’ah 293:3, cites the Tur in the name of the Rush that says that if one has grain and does not know when it grew, it is permitted to be eaten because of a sifek sefeika (double safek). One safek: did it grow entirely before or after Pesach? The second safek: even if it grew after Pesach, perhaps it took root before Pesach and thus permitted to be eaten.
Many Acharonim (Rabbi Akiva Eiger, the Nesivos, the Kraisi Uplaisi) were bothered by this psak. They asked that since this is not two separate sefeikos but rather one safek, was the korban omer brought – thereby permitting this grain? Why does it matter if it grew entirely before Pesach or only took root by then, since in both scenarios the korban permits the grain? Therefore it should not be regarded as a sifek sefeika, and should be forbidden.
The Aruch Hashulchan, in Yoreh De’ah 293:16, suggests the following explanation for the Rama’s psak: He says that if there is a nafka mina (halachic difference) between the two sefeikos, we can still apply the rule of sifek sefeika even if they are essentially one safek. He writes that there is a nafka mina between whether the grain grew last year or if it only took root before the korban omer. If it grew last year we would not be able to use it in the korban omer, whereas if it grew this year and took root before the korban we would be able to use it for the korban. He adds that although this difference is not applicable nowadays, nonetheless it is sufficient to separate the two sefeikos and apply a sifek sefeika.
My rebbe, HaRav Shmuel Berenbaum, suggested that there are indeed two types of sifek sefeikos. One type is when there are two completely separate sefeikos; each permits the issur from different angles. This type of sifek sefeika works with the idea of rov in mind. Since there are two separate sefeikos whereby the scenario can be permitted, a majority of the possible outcomes permits the issur. For example, the Gemara in Kesubos 9a offers the following classic scenario of a safek sefeika: A man was mekadesh a woman but only marries her a year later, and finds that she was mizaneh. It is unclear if the zenus occurred after the kiddushin – prohibiting her from her husband – or prior to the kiddushin – permitting her to be with her husband (provided he is not a kohen).
The second safek is this: was she forced into the zenus – permitting her to be with her husband – or was it performed willingly – prohibiting her to be with her husband? Both of these sefeikos are independent of each other. Therefore we can say that one safek is this: if it happened prior to the kiddushin, and even if it happened after the kiddushin, perhaps it was forced on her. Thus, this sifek sefeika works within the principle of rov. Since the majority of the possible outcomes is that she is permitted to be with her husband, this is the ruling.
Reb Shmuel suggested that there is another type of sifek sefeika. This type does not work by creating a majority of the possibilities that point to permitting the issur. Rather, this type says that if so many steps must be taken in order to prohibit this scenario, it is unlikely that one can assume that the issur occurred. In this type of sifek sefeika all of the doubts stem from one ultimate safek; however, if that one safek is so far removed, we do not have to be chosheis for it. Rashi, in Baba Kama 11a, uses this idea to explain the sifek sefeika in that Gemara.
We can suggest that the sifek sefeika of the Rama is the second type of sifek sefeika. Therefore it is not a problem that both of the sefeikos are essentially one safek. This is because this type of sifek sefeika holds that we are not worried that the many necessary steps that had to be taken in order to prohibit this scenario occurred. In this case we would say that we are not worried that the grain grew this year because: 1) perhaps it grew before the korban omer; and 2) even if it did not grow before the korban omer, perhaps it took root before then. Since two steps had to be taken in order to prohibit this grain, we rule that it is permitted.
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