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Does The Halacha Rewrite The Facts?

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This week’s parshah, Parshas Metzora, discusses the halachos pertaining to a metzora (one who has tzara’as). The Torah details the process of purification, which a metzora must perform after his tzara’as has been healed. The pasuk (Vayikra 14:4) says that he must bring two live tahor birds, one that must be slaughtered and the other to be set free at the conclusion of the purification process. The Gemara, in Chullin 140a, derives from this pasuk that both birds must be kosher.

The Gemara, in Kiddushin 57b, searches for a source to confirm that the bird that is to be set free is permitted to be eaten after the process is concluded. Rava says it is a sevarah (logical). How can the Torah require that a bird that cannot be eaten be sent into the wilderness where another person may innocently find it and unknowingly eat it? Obviously, from the fact that this bird is to be set free, it must be permitted to be eaten.

The Steipler Gaon brought a proof from this Gemara to answer a fundamental question raised on the Rambam’s opinion – which we will soon address.

A man takes ma’aser from his animals by making a narrow opening in a corral and allowing the animals to exit one at a time. Every tenth animal that exits will become ma’aser. The Gemara, in Bava Metzia 6b, cites a braisa that says that safek animals may be entered into a corral in order to take ma’aser from them. The Gemara asks what the nature of their safek is. If it is that we are unsure whether they are bechoros, which are already kadosh, then how can we enter them into the corral for ma’aser purposes when the Torah says that in order to become ma’aser this must be the animal’s first kedushah (Vayikra 27:33)? (This animal may have had previous kedushah.)

The Shev Shemaisa (1:3) says that this Gemara questions the opinion of the Rambam, who opines that a safek mi’de’oraisa is permitted mi’de’oraisa (and only forbidden mi’de’rabbanan). For if a safek is permitted mi’de’oraisa, then why would an animal that is a safek bechor be a problem for ma’aser? According to the Rambam such an animal should be considered as if it is a regular animal and thus be permitted to be counted for ma’aser, the same way that we are permitted to use the animal for any other mundane purpose. The Shev Shemaisa concludes that this Gemara indicates that a safek is forbidden – even mi’de’oraisa.

The Steipler Gaon, in his sefer, Kehilas Yaakov Bava Metzia (8), suggests an answer for the Rambam. It is based on the Gemara in Kiddushin mentioned above. He says that although the Rambam says that a safek is permitted mi’de’oraisa, its original safek nevertheless remains unanswered. In other words, even if we allow a safek bechor animal to be used for mundane purposes it remains a safek bechor. There is always a chance that it was a bechor. The Rambam opines that an animal about which we are uncertain whether it is a bechor may be used for mundane purposes, even though the possibility remains that it may in fact be a bechor.

The Steipler says that we see this from the Gemara in Kiddushin, where Rava says that it is sevarah that the Torah would not command us to set free a forbidden bird (in which the finder would be unaware of its prohibition). The Steipler says that when someone finds such a bird he will surely be able to rely on the Torah’s law of rov, which dictates that this bird is a regular bird that is not forbidden. This rov should permit the finder to eat the bird. So the Steipler asks: What then is the problem of setting it free, even if it is actually forbidden, as the finder will be permitted to eat the bird by applying the halacha of rov? The Steipler says that we see from here that even when the Torah permits something that is a safek, it does not rewrite history and change the safek to one that is now permitted.

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