WHEN DO WE NEED A VERSE TO EXCLUDE A SAFEK? [Safek: mid'Oraisa]
22b - Question (R. Zeira): If one said 'it is Alai (encumbent upon me) to bring an Olah, a pigeon or dove', and he brought a bird at the beginning of yellowing of each species, did he fulfill his vow?
Are we in doubt (if this age is considered young or old), and he fulfilled his vow with one or the other?
Or, is this an intermediate age that is Pasul for both?
Answer (Rava - Beraisa): These exclude the beginning of yellowness, which is Pasul for both.
This is like the latter understanding. If they were Pesulim only due to Safek, we would not need a verse to disqualify this!
Rejection: Really, we are in doubt which is valid. The verse is needed to disqualify a Nirva (a bird with which a man had relations) and a Ne'evad (worshipped).
Question (R. Zeira): If one to bring an Olah of a ram or lamb, and he brought a Palgas (a sheep in its 13th month, did he fulfill his vow?
According to R. Yochanan, clearly he did not;
(Mishnah): If one (was obligated to bring a ram or lamb, and he) offered a Palgas, he brings the Nesachim (accompanying flour and wine offerings) of a ram. He was not Yotzei.
(R. Yochanan): "Or for a ram" teaches that the Nesachim of a ram are also brought also with a Palgas. (This shows that he holds that a Palgas is neither a ram nor lamb.)
66b - Question: Since Kashrus of fish depends on scales, why did the Torah say that it must have fins and scales?
Answer: Had the Torah only written "Kaskeses", one might have thought that the word means 'fins'. It wrote both, for clearly one means fins, and the other means scales.
Bava Metzi'a 6b (Mishnah): If an animal already counted (during tithing) jumped back into the pen and was mixed with the uncounted animals, they are all exempt.
(Abaye): We must say that the Torah requires a definite "Asiri (tenth)". A Safek (perhaps it was already counted) cannot be Ma'aser (even if really, it was not already counted.
Nazir 65b (Mishnah): If a Baheres (a Nega in the skin) has a hair that turned white before the skin did, this is a sign of (Muchlat) Tum'ah. If the skin turned white before the hair, the Nega is Tahor (not Muchlat);
If we do not know which turned white first, it is Tamei;
R. Yehoshua Keihah.
(Rav Yehudah): 'Keihah' means that he was Metaher. He learns from "to be Metaher or Metamei" - the Torah puts Taharah first.
Yoma 74a (Beraisa): "Kol Chelev" forbids Chelev of a Kvi (a Safek Chayah).
Answer: This is an Asmachta. Surely, a verse would not include a Safek!
Rejection: The Tana holds that it is a unique species. The verse forbids its Chelev.
Bechoros 41b (Beraisa): (An Olah must be a) "Zachar", and not a female.
Another verse requires Olah to be "Zachar". It excludes Tumtum and Androginus.
This is unlike the first Tana of our Mishnah. He is unsure about the gender of Androginus. A verse would not teach about such a Safek!
42a (Beraisa): "Ha'Zachar" excludes Tumtum and Androginus (from Erchin).
(Rav Chisda): We must delete "Tumtum" from the text of the Beraisa.
Nidah 28a (Rav): If a Tumtum or Androginus saw Keri or blood, and 'he' entered the Mikdash and touched Terumah, 'he' is exempt. We do not burn the Terumah. If 'he' saw Keri and blood and touched Terumah, we burn the Terumah.
If 'he' entered the Mikdash, 'he' is exempt. "Mi'Zachar Ad Nekevah Tishalechu" commands a definite male or female, but not a Tumtum or Androginus.
Tosfos (22b DH Itztrich): Here we say that a verse is not needed to teach about Safek. In Bava Metzi'a, we say that "Asiri" connotes a Vadai tenth, and excludes a Safek. In Nazir, we say that the Torah first mentioned Taharah, to teach that we are Metaher a Safek. Here is not difficult. The Gemara means that we do not need a verse to disqualify birds due to Safek, but if one brought both of them, he was Yotzei. Regarding Ma'aser, all of the Safek animals are Vadai exempt. They are not just Safek exempt. Likewise, when we are unsure which turned white first, R. Yehoshua is Vadai Metaher. However, in Yoma, we say that since a verse would not teach about a Safek, it must discuss a different species, and not a Safek. Why don't we say that the Torah forbids its Chelev Vadai? The Gemara says similarly about a Palgas. We can say that any Safek that cannot be resolved, e,g. Tzara'as or Ma'aser, for sometimes it is one way and sometimes it is the other way, a verse could exclude it. Here, the Safek could be resolved. The beginning of yellowing is always the same. Hash-m knows whether it is considered big or small. Likewise, a Kvi or Palgas is always the same. A verse would not exclude it, for Hash-m has no Safek about it. In Bechoros, we say that the Tana who is unsure about the gender of Androginus would not need a verse to teach about such a Safek. This is because all Androginuses are the same.
Tosfos: Rav holds that Androginus is a Safek, for he is Metamei an Androginus who saw blood or Zivah (Nidah 28a). In Yevamos (83a), he rules like R. Yosi, who says that Chachamim did not decide if he is a male or female. R. Yosi says that he is a special creation, but this is not really so. Even so, Rav expounds "mi'Zachar Ad Nekevah Tishalechu" to exclude a Tumtum or Androginus. This is because there are two exclusions. One excludes Tumtum. The other excludes Androginus, because (whether he is a male or female) he is unlike others of his gender. In Bechoros we asked because if we excluded Androginus from "Zachar" because he is different from other males, this is unlike the Tana who was unsure. A Beraisa expounded "ha'Zachar" to exclude Tumtum and Androginus. Rav Chisda said that we must delete "Tumtum" from the text, presumably because we do not need a verse to exclude a Safek. This is because if he is a male, he is like all males, so it is more reasonable to exclude only an Androginus. Even though there are two exclusions regarding Erchin, both are needed for Androginus. Had the Torah written only "Zachar", we would have thought that an Androginus is no worse than a female (and has the Erech of a female).
Tosfos: We find a verse that is written in order that we not err, even though it is clear to Hash-m! The Torah wrote fins and scales, for had it written only "Kaskeses", one might have thought that the word means 'fins'. This is because Kaskeses connotes something that the hand gets caught on; one could think that this is fins.
Avnei Nezer (CM 128): Whenever the Torah permitted a Safek, even two contradictory Sefekos are permitted. It is considered Vadai Heter, like the Maharit (YD 2:1) says. In Shabbos (136a), we permit Milah on Shabbos even if the baby is a Safek Nefel, for even if it is a Nefel, one merely cuts (dead) meat. The Gemara said that "Orlaso" forbids a Safek, but Tosfos said that this is an Asmachta. Really, the verse forbids one born circumcised and an Androginus. It does not discuss a Safek.
Tosfos (Yoma 74a DH Itztrich): The Gemara expounded verses to teach about Safek Ma'aser Behemah (Bechoros 58b) and a Safek whether or not a Nega (Tzara'as) preceded the white hair, and did not ask why the verse is needed! A Kvi is different, for it is always the same. If the Torah came to teach about it, it should teach what it is!
Question (Maharit DH v'Iy): The Rambam holds that the Torah permits Sefekos. Why did the Gemara ask why a verse forbids Chelev of a Safek?
Answer (Maharit): Tosfos answered that this Safek is different, for it is always the same. Tosfos holds like the Rambam. He did not distinguish Sefekos in which we would need to be stringent without a verse. He must agree that mid'Oraisa, all Sefekos are permitted. Tosfos asked why we need a verse to exempt a Safek male from Korbanos Re'iyah. He cannot do Semichah, lest he is a female! Really, the Torah permits the Safek. However, if one wants to be Yotzei due to Safek, it is better to be passive and not transgress mi'Safek.
Rebuttal (Pri Chodosh YD 110 Beis ha'Safek DH veha'Ran and DH Emnam): Tosfos (Chulin 22b DH Itztrich) suggested that a Kvi is really a Safek, and the verse forbids its Chelev Vadai, not just due to Safek. This shows that Tosfos holds like the Rashba.