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This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

In this week’s parshah we read about the individuals who were tamei and thus could not bring the korban Pesach. They approached Moshe Rabbeinu and asked him whether there was anything they could do to bring the korban. Ultimately, Hashem told Moshe that they should bring a korban a month after Pesach, on the 14th of Iyar.

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The wording of the pasuk that describes when they first came before Moshe is: “Vayomeru ha’anashim ha’heimah – and these men spoke.” The Sifri says that we derive from the word “ha’heimah – these” that only the one with the question should ask the question. Seemingly, the Sifri is requiring that one ask a question himself; one should not send the question through another person. However, this explanation is very difficult to understand. Is one not allowed to send a question through another person?

The Panim Yafos explains the Sifri with the following different approach: these men were tamei because, according to one opinion, they were carrying Yosef’s aron. The Gemara in Shabbos 93a says that when several people carry a zav only the one who is holding the majority of the zav becomes tamei. The others remain tahor. This is because they are merely aiding him in the act of carrying, which does not render one tamei. But in this case it was not clear who was carrying the majority of the aron. Therefore it was a safek as to which one of the men was tamei.

Generally, when there is a safek as to which one of several men (more than three) became tamei the halacha states that they should all be tahor. This is based on the halacha of safek tumah, b’rishus ha’rabim tahor. If a safek regarding tumah occurs in a place where there are three or more people, we render the safek tahor. Therefore these men should have been tahor, since the safek occurred in a place where there were more than three people. However, since these men all came together to ask about their status, Moshe Rabbeinu had to rule that they were tamei. The reason for this: had each person come individually to ask about his status, all would have been deemed tahor; when all of the men ask about their status together, they must all be rendered tamei. This is due to the fact that since one of them is surely tamei, we cannot render each one as tahor when they ask together. Thus, they must all be rendered as tamei misafek.

This halacha is drawn from the halacha of shnei sheveilim (two paths), in which one has tumah and the other does not. If two people walk the other down one path, they will both be portrayed as tahor. However, if both come to ask at the same time, they will be tamei. This is because they cannot both be tahor. Thus, they are both deemed tamei misafek.

However, Tosfos in Pesachim 10a says that the halacha that we render them tamei when they come to ask at the same time is only mi’de’rabbanan. Mi’de’oraisa, they would both be classified as tahor. Hence, the explanation of the Panim Yafos is difficult to understand since we are discussing a time period before the rabbanan decreed this halacha. So in Moshe Rabbeinu’s time, the halacha should have been that they were all tahor since they only had de’oraisa-level halachos.

I would like to suggest that although the time period that we are discussing is prior to the time that the rabbanan issued their decree, perhaps Moshe Rabbeinu was aware that one day this would become a rabbinic decree and thus Moshe adhered to it. We find a similar concept in Tosafos (Kiddushin 38a) whereby Tosfos quotes the Yerushalmi that asks why, when the bnei Yisrael entered Eretz Yisrael, they could not eat matzah made from chadash and apply the halacha of assei, doche lo sa’assei. Tosfos answers that there is a rabbinic decree prohibiting this because if one will eat one k’zayis, he may come to eat a second k’zayis. We cannot, therefore, apply the halacha of assei, doche lo sa’assei.

This time period was also before the rabbanan decreed their halachos; yet Tosfos seems to say that the bnei Yisrael nonetheless adhered to their decrees. This can be explained due to the belief that all of the decrees that the rabbanan made were given at Har Sinai – except that they were given as de’rabbanan halachos, and not to be treated the same as de’oraisa halachos. For example, in the case of a safek, a de’oraisa is treated stringently and a de’rabbanan is treated leniently.

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Rabbi Fuchs learned in Yeshivas Toras Moshe, where he became a close talmid of Rav Michel Shurkin, shlit”a. While he was there he received semicha from Rav Zalman Nechemia Goldberg, shlit”a. He then learned in Mirrer Yeshiva in Brooklyn, and became a close talmid of Rav Shmuel Berenbaum, zt”l. Rabbi Fuchs received semicha from the Mirrer Yeshiva as well. After Rav Shmuel’s petira Rabbi Fuchs learned in Bais Hatalmud Kollel for six years. He is currently a Shoel Umaishiv in Yeshivas Beis Meir in Lakewood, and a Torah editor and weekly columnist at The Jewish Press.
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