HASRA'AS SAFEK [Hasra'ah :Safek]
(Rav Hamnuna): R. Shimon holds that Oso v'Es Beno does not apply to Kodshim.
This is because he holds that Shechitah that does not permit is not considered Shechitah. Shechitah of Kodshim does not (alone or immediately) permit the animal.
Correction (Rava): Rav Hamnuna meant that R. Shimon holds that one is not lashed for Oso v'Es Beno of Kodshim.
One may not eat a Korban before Zerikah. At the time of Shechitah, it is not known if Zerikah will be done and retroactively validate the Shechitah.
Any Hasra'ah (warning) given to the Shochet is doubtful. (He transgresses only if Zerikah will be done.) Such Hasra'ah is invalid.
86a (Mishnah): If a Cheresh, Shoteh or Katan slaughtered unsupervised, R. Meir permits slaughtering the mother or child the same day. Chachamim forbid this;
Chachamim agree that if one slaughtered the mother or child, he is not lashed.
Makos 16a (R. Yochanan and Reish Lakish): If Reuven swore 'I will eat this loaf today' and he did not eat it, he is not lashed;
(R. Yochanan): He is not lashed because this Lav does not come through an action;
(Reish Lakish): He is not lashed because he cannot receive definite Hasra'ah (perhaps he will eat the loaf later), and Safek Hasra'ah is invalid.
They both explain R. Yehudah.
(Beraisa - R. Yehudah): "Lo Sosiru (do not leave over from the Korban Pesach until morning)... veha'Nosar... ba'Esh Tisrofu (burn what is left over)" - the verse gives an Aseh to fix the Lav, therefore one is not lashed for it.
R. Yochanan infers, had the Torah not given an Aseh, one would be lashed for it, even though the Hasra'ah is doubtful (perhaps he will finish eating before morning)!
Reish Lakish infers, had the Torah not given an Aseh, one would be lashed for it, even though Ein Bo Ma'aseh.
Question: Why doesn't Reish Lakish also learn like R. Yochanan, that Safek Hasra'ah is (proper) Hasra'ah?
Answer: He holds like a different Tana according to R. Yehudah;
(Beraisa): If we are unsure if Reuven is the son of David or Moshe, and Reuven strikes or curses David and Moshe, one after the other or at the same time, he is liable (even though the Hasra'ah is doubtful);
R. Yehudah says, he is liable only if he struck or cursed both at the same time.
Question: Why doesn't R. Yochanan also learn like Reish Lakish, that one is lashed for a Lav she'Ein Bo Ma'aseh?
Answer: He holds like the following teaching;
(R. Yochanan citing R. Yehudah citing R. Yosi ha'Galili): One is lashed for a Lav that is done through an action [and only three Lavim without an action].
Rambam (Hilchos Sanhedrin 16:4): One is lashed only through witnesses and Hasra'ah. If one transgressed a Lav ha'Nitak l'Aseh (the Torah gave an Aseh to fix the Lav), and they warned him and said "do not do this, for if you do it and will not fulfill the Aseh, you will be lashed", and he transgressed and did not fulfill the Aseh, he is lashed. Even though the Hasra'ah is b'Safek, for if he will fulfill it, he will be exempt, Safek Hasra'ah is Hasra'ah.
Rambam (Hilchos Shevu'os 5:1): If Reuven swore that Ploni will do so and so, or not do so... we lash him mid'Rabanan, for he cannot fulfill this Shevu'ah, and it turns out that he causes a Shevu'as Shav.
Rambam (2): Why is he not lashed for Shevu'as Shav? It is possible that Ploni will heed him and fulfill his oath, and it turns out that when they warn him at the time he swears, it is Hasra'as Safek. One is lashed for it only if the Lav is Mefurash (explicit) in the Torah, like I wrote in Hilchos Sanhedrin.
Kesef Mishneh: The Rivash says that according to Rashi, one is lashed for Shevu'as Shav. The Rambam exempts, because his Chiyuv is contingent. If Ploni will fulfill, retroactively the Shevu'ah was fulfilled. Shav is only when it is immediately false. I (the Kesef Mishneh) did not find the Rambam write in Hilchos Sanhedrin that one is lashed for Hasra'as Safek only if the Lav is Mefurash in the Torah. Perhaps he means that there he wrote that sometimes one is lashed for Hasra'as Safek, and here he explained that it is only if the Lav is Mefurash in the Torah. This requires investigation, what is his source for this distinction?
Lechem Mishneh: Here, it is a Safek whether or not he will transgress. In Hilchos Sanhedrin, he Vadai transgresses the Lav, but it is a Safek whether he will fulfill the Aseh and exempt himself.
Rama mi'Pi'ano (26 DH Al ha'Shenis): Surely we hold like R. Yochanan that Hasra'as Safek is Hasra'ah. If a Cheresh, Shoteh or Katan slaughtered unsupervised, Chachamim agree that if one slaughtered the mother or child, he is not lashed. Rashi and the Ran say that it is due to Hasra'as Safek. I.e. because the Safek will never be resolved, one is not liable. When one can resolve the Safek, e.g. one took a mother bird from her young, if he later sends the mother he is exempt, and if not, he is liable. Even though it is a Safek at the time of Hasra'ah, it is Hasra'ah, and he is lashed. This explains the Rambam. He wrote in Hilchos Sanhedrin that one is lashed for Shilu'ach ha'Kan because the Lav in Safek is Mefurash (clear; the Safek is about the Aseh). The Lav of Shechitah after a Cheresh, lunatic or child is not Mefurash; perhaps they did not do Shechitah. If one swore not to sleep today if he will sleep tomorrow, there can be a clarification, so lashes apply.
Merkeves ha'Mishneh (Chalama): He is lashed only when witnesses warned him and he said that he does not want to fulfill the Aseh.
Noda bi'Yehudah (2 EH 77): We hold that Hasra'as Safek is Hasra'ah. This is only for something that is b'Yado, and it is a Safek only to the witnesses who warn him whether or not he will transgress. In this we say that since in the end he transgressed the warning and transgressed the Lav, the warning takes effect retroactively, even though it was b'Safek. However, something that depends on others, and it is not b'Yado, and he himself is unsure whether or not he will transgress, logically, it is not Hasra'ah. Shamai (who says that there is Shali'ach l'Devar Aveirah for murder) cannot hold that he is killed for this. He himself does not know for sure that the Shali'ach will obey! However, the Rambam connotes that if the Lav were Mefurash in the Torah, he would be lashed even though he is unsure whether or not Ploni will fulfill, i.e. the Safek depends on others! However, the Rambam is difficult and I did not see anyone resolve it. What Lav is not Mefurash in the Torah? Shevu'as Shav is Mefurash in the Torah! I say that all agree that one is exempt for a Safek that depends on others, unless a Gezeiras ha'Kasuv obligates for it. E.g. "Kol Zar Lo Yochal Terumah" is a Safek; perhaps the Yisrael will undo his declaration of Terumah. The Rambam holds that he can permit it even after the Kohen received it! In Hilchos Sanhedrin (19:2), the Rambam obligates lashes for a Zar who ate Terumah. No verse explicitly obligates for a Shevu'as Shav that depends on others. Even for a Lav not dependent on others, the Rambam obligates lashes only if a verse obligates amidst Safek, e.g. Lav ha'Nitak l'Aseh. Then it is always a Safek whether he will be liable! R. Yochanan learned that Hasra'as Safek is Hasra'ah from Nosar, which is always a Safek if he will transgress. The Rambam did not need to discuss Hasra'as Safek for Misah, since there is no verse that obligates amidst Safek. In such a case even for lashes all hold that Hasra'as Safek is not Hasra'ah!
Rambam (Hilchos Milah 1:2): If one was not circumcised, when he matures he is obligated to circumcise himself. Every day that he does not he is Mevatel a Mitzvas Aseh, but he is not Chayav Kares until he dies Arel b'Mezid.
Ra'avad: There is no reason [not to be Chayav Kares until he dies]. Is it due to Hasra'as Safek that they exempt him from Shamayim?! Every day he has an Isur Kares.
Tosfos (Gitin 33a DH v'Afke'inhu): The Rashbam asked, if [when a husband sends a Get and is Mevatel it not in front of the Shali'ach or his wife,] Chachamim uprooted Kidushin retroactively, how can we kill someone for adultery? It is Hasra'as Safek. Perhaps her husband will send a Get and be Mevatel it! R. Tam said that this is not Hasra'as Safek. We follow the majority, who do not divorce their wives. Also, we leave her on her Chazakah. Until now, she is married. If not, a Nazir who was drinking wine or becoming Tamei, why is he lashed for each warning (Nazir 42a)? It is Hasra'as Safek. Perhaps he will ask to permit his Nezirus!
Maharsha: If the Chacham knows that he transgressed b'Mezid, he will not permit him to exempt him from lashes. However, it is Hasra'as Safek, for perhaps he will ask a Chacham who does not know that he transgressed his Nezirus.
Rebuttal (Taz YD 323:2): If it is proper to permit him, a Chacham will permit him even if he transgressed. If we do not permit one who transgressed b'Mezid, if he asks a Chacham who does not know that he transgressed, his Heter is invalid, like one who did not detail the vow! Rather, we permit him only if he has a Pesach (reason to regret it) due to the vow itself, even had he not transgressed it. This is why Tosfos calls it Hasra'as Safek.
Shulchan Aruch (YD 261:1): If a father did not circumcise his son... and Beis Din did not circumcise him, he is obligated to circumcise himself when he matures. If he did not circumcise, he is Chayav Kares.
Rema: These punishments are every day.
Levush: The Chiyuv Kares is not until he dies, for Chayavei Kerisus are not liable until they are warned, and here witnesses cannot warn him, for it is Hasra'as Safek. Perhaps he will circumcise himself [later]. It is Hasra'as Safek, which is not Hasra'ah. Even so, the punishment of Isur Kares from Shamayim is on him every day, i.e. [he is prone] to die prematurely. The lack of witnesses warning him does not exempt from Shamayim.
Gra (2): This is like it says in Rosh Hashanah (6b) about Bal Te'acher, unlike the Rambam.
Tur: I do not know why the Rambam says that he does not have an Isur Kares every day.
Beis Yosef: The Rambam means that he will not die prematurely, which is one kind of Kares, for he did not yet transgress the Mitzvah. He can circumcise himself until he dies. Hasra'as Safek that the Ra'avad mentioned is a mere allegory. Hasra'ah applies only to Dinei Adam (laws that man enforces). He means that even according to the opinion that Hasra'as Safek is not Hasra'ah, this is only to exempt b'Dinei Adam, but there is a Chiyuv Shamayim on him. The Rambam holds that even according to the opinion that Hasra'as Safek is Hasra'ah, there is different for he overtly transgresses, therefore it is proper that Chiyuv Shamayim is from the time of the first action, but not here, that he is passive.
Rema (324:1): Some say that if Chalah of Chutz la'Aretz became mixed with Chulin, it forbids up to 101 [times its volume]. If there is not 101 to be Mevatel it, and he did not eat the dough, he asks a Chacham and permits [his declaration of Chalah] like a vow.
Taz (2): Hagahos Maimoniyos brings from Semag that a Chacham can permit it. This is difficult. Perhaps Semag permits only he regrets the declaration of Chalah itself [even without becoming mixed], and it was [mistakenly] brought in his name even when he regrets only due to the mixture.
Shulchan Aruch (EH 42:5): One who is Mekadesh with witnesses who are Pasul mid'Oraisa, it is not Kidushin.
Beis Yosef (DH Matzasi): One is disqualified mid'Oraisa only if he transgressed an Aveirah for which lashes are possible, even though they did not warn him. However, Shevu'as Bituy, that he swore to pay and did not pay, it is Hasra'as Safek, for he can say "I still have time to fulfill my Shevu'ah" (so he is not disqualified mid'Oraisa).
Shulchan Aruch (CM 34:2): Who is a Rasha? It is one who transgressed an Aveirah for which one is Chayav lashes, and there is no need to say if one is liable Misas Beis Din.
Tumim: Even though one is not lashed if there is Misah for the Lav, this is not because it is a light Isur [so he is a Rasha]. If there are no lashes due to Hasra'as Safek, the Beis Yosef (EH 42:5) holds that according to the Rambam he is not disqualified. He must discuss when it is not explicit in the Torah, for if not, the Rambam holds that he is lashed! I am unsure if they did not warn him.