This is an excellent question. Why does Rashi in Chulin (91a, DH Hikah) write that if the son, who does not know whether he was a 9-month baby fathered by his mother's first husband, or whether he was a 7-month baby fathered by her second husband, hits both possible fathers one after the other, this is considered a Hasra'as Safek? Why do we not say that since the Gemara in Yevamos (37a) teaches that most women give birth after 9 months, it is considered cetain (according to the Din of the Torah that one follows the majority) that the real father is the first husband and the son was born as a 9-month baby?

I will give an answer that I found in the Teshuvos of the Chasam Sofer (CM, end of #45).

1. The Chasam Sofer answers your question with the help of a rule stated by Tosfos in Yevamos (80a, DH Na'aseh). The Gemara there discusses the case of a young person between the ages of 12 and 18 who has not yet developed pubic hairs (and therefore there is a doubt about whether he is considered an adult), who then develops physical signs of a "Saris" (impotent), and afterwards grows two pubic hairs. Before he developed the signs of a Saris, he ate forbidden fats. Rav maintains that the fact that he developed signs of a Saris proves that he was in fact an adult at the time he ate the forbidden fats (i.e., the lack of hairs was because of his impotency, not because he was immature), and therefore he is liable for this transgression. Tosfos raises the question: How can Beis Din give Malkus for this act? How can witnesses warn him at the time of eating, if it is not possible yet to know whether he is considered an adult? Tosfos answers that since afterwards it was found that he was an adult at the time of eating, it is not considered Hasra'as Safek. Tosfos writes that this is not similar to the case of thte son who hit both of his possible fathers one after the other, which *is* considered a case of Hasra'as Safek, and therefore he is exempt, because in the latter case it will never be known who his real father is. In contrast, it is possible later on to know whether the young person is a Saris or not.

2. We learn from Tosfos that the problem of Hasra'as Safek applies only where one will never know what the reality was at the time that the person transgressed. If, however, one will found out later whether what he did now was in fact against the Torah, there is no problem of Hasra'as Safek.

3. The Chasam Sofer writes that according to the above understanding, it is apparent why the Hasra'ah is considered Hasra'as Safek when he hits the two possible fathers. In this case, one will never know who the real father is. He writes "Ruba d'Ben Tes Lo Asid l'Hisbarer" -- one will never found out whether this son was from the majority of children who are born after 9 months or from the minority born after 7 months. Therefore, even though there is a Rov that most are born after 9 months, at the time the son hits each possible father one cannot adminster a definite warning to him because he will reply that nobody will ever know whether the action he is doing now is in fact the forbidden action of striking one's father.

Kol Tuv

Dovid Bloom

Here is a different answer to your question:

1. The Mishnah in Yevamos (35b) states that if someone performed Yibum with his sister-in-law and afterwards she was found to be pregnant and gave birth, the couple must bring a Korban, because they transgressed the prohibition of Eshes Ach (the man had relations with his sister-in-law) without the Heter of the Mitzvah of Yibum.

2. The Mishnah proceeds to discuss a case of a doubt concerning who the father of the baby is (is he the son of the first husband, and he was born after 9 months, or is he the son of the second husband, and he was born after 7 months?). They also must bring a Korban, but they bring not a Chatas but an Osham Taluy (the Korban one brings when he does not know for sure that he transgressed).

3. In the Gemara (37a), Rava asked Rav Nachman: Why do we not follow the majority of women who give birth after 9 months? By following the Rov, we would be certain that the father is the first husband and, consequently, the couple would bring a Korban Chatas because they certainly transgressed the prohibition against having relations with the sister-in-law without any Mitzvah of Yibum being present. After a discussion, the Gemara comes to the conclusion that with the majority of women who give birth after 9 months, the baby is noticeable already after 3 months. In this particular case, the baby must not have been noticeable after 3 months (because if it would have been noticeable then, we would not possess a doubt now; -Rashi DH v'Zu), and, consequently, the Rov that usually exists that most women give birth at 9 months has been weakened. This means that the Rov of 9 months that usually applies does not apply in this case, but rather it is considered that the chances of whether the baby is a 9-month'er or a 7-month'er are equal and it follows that the couple bring an Asham Taluy.

4. We now have an answer to your question. Whenever there is a doubt about who a person's father is -- is it the first husband and the baby was born after 9 months, or is it the second husband and the baby was born after 7 months -- this is considered an equal Safek (50/50). This is because at the time the mother married the second husband, her baby could not yet have been apparent. Hence, the Rov that most women give birth after 9 months has been weakened (because there is another Rov that most 9-month babies are already recognizable after 3 months), and it is 50/50 doubt whether it is a 9-month or a 7-month baby.

Kol Tuv,

Dovid Bloom

Here is an additional answer to this strong question. This answer is based on Tosfos in Yevamos (37a, DH Rov).

1. Tosfos asks that if one relies on a Rov that the majority of women give birth after 9 months, then why may a woman not remarry within 3 months of her husband's death or her divorce? Why do we not say that it should be sufficient for her to wait one month since, if she would have a baby 9 months after the death of the first husband, we need not be concerned that it is from the second husband, since this would mean that it was born in less than 9 months? Therefore, we should say that it is certainly from the first husband since the Rov of women give birth after 9 months!

2. Tosfos answers that one is forced to say that in any case where there is a possibility that one might come to a question of doubt, the Chachamim were stringent. Therefore, even though mid'Oraisa one could follow the Rov of 9-month babies, mid'Rabanan we are concerned about the minority of 7-month babies and require her to wait a full three months after death or divorce.

3. We now can go a step further and assert that a Rov is not enough to justify receiving a capital punishment. One can adduce proof for this from Tosfos in Gitin (33a, DH v'Afke'inhu). The Gemara there states that sometimes one can annul a marriage retroactively. This would occur where one sent a Get to his wife with an agent and then annuled it not in the presence of the Shali'ach. (Since the Shaliach is not aware that the Get has been annuled, he will hand it over to the wife and she might erroneously remarry on the basis of this nullified Get. Consequently, the Chachamim declared that the marriage was never valid in the first place in order to prevent this eventuality.) Tosfos asks that if a marriage can be dissolved retroactively, then how can one ever administer the capital penalty for an unfaithful wife? The warning she receives will always be a Hasra'as Safek because her husband might send her a Get and afterwards annul it! Rabeinu Tam answers that this is not considered a Hasra'as Safek because the Rov states that and most men do not divorce their wives and do not send a Get and then annul it. Rabeinu Tam adds that there is another reason for why this is not considered a Hasra'as Safek: at the time she was given the warning she was married, and thus we assume that she remains with this Chazakah and are not concerned about the possibility that she will become unmarried.

4. Rav Yitzchak Elchanan Spektor zt'l (in She'eilos u'Teshuvos Ein Yitzchak, volume 1, EH 25:65) infers from Tosfos that the presence of a Rov is not sufficient in order to say that the warning does not constitute a Hasra'as Safek. There must also be a Chazakah to combine with the Rov.

5. Now we can understand the words of Tosfos in Yevamos cited above. Even though the Gemara says that most women give birth to 9-month babies, this Rov is still not sufficient to allow the woman to remarry before three months and, similarly, the Rov is not strong enough to administer the capital penalty on the basis of the Rov alone.

6. To return to our original question: If the child cursed or struck a man who, on the basis of the 9-month Rov, should be considered definitely his father, this is not sufficient proof to determine that he is Chayav Misah, because there is a significant minority of women who give birth after 7 months, and so the real father might in fact be the second husband.

Kol Tuv,

Dovid Bloom

1. Rashi in Chulin (82b, DH b'Vas) explains that when Rebbi Yehudah says that one is Chayav for hitting the two fathers only when he hits them simultaneously, this means that he lifted up both hands and hit one father with one hand and the other father with the other hand. We see from Rashi that if the Aveirah is not done immediately after the Hasra'ah, it is considered Hasra'as Safek. If the son would be warned: "If you hit both of these men, you will be Chayav," then he could say afterwards that the first man he hit was not in reality his father and that by the time he hit the real father he had already forgotten about the Hasra'ah.

2. I see no reason for why we should not be certain that the real father is one of the two. There is no reason to be concerned that a third man is a possible father, because in the case discussed by the Gemara the woman married both men with a perfectly valid marriage, and the only mistake was that she did not observe the requirement of the Rabanan to wait three months between the two marriages. Since both men were her proper husbands, we apply the rule of "Rov Be'ilos Achar ha'Ba'al" -- the relations that a married woman has are presumed to have been with her husband, and therefore one need not be concerned that a third man is involved.

3. Sam, your question about "Yakir" is another very interesting one.

I found a Teshuvah by Rav Shalom Mashash zt'l, the former Sefardi Chief Rabbi of Yerushalayim, who discusses a case in which a woman remarried without waiting three months after the first marriage ended, and had a baby 7 months after marrying the second husband. The first husband claimed that the child is his.

Rav Mashash writes that Yakir does not apply here. This is because Yakir means "he recognizes" while in this case it is impossible for the father to "recognize" because there is no way for him to know whether he is the real father, or whether the second husband is the real father, since the wife was married to both within three months, and nobody can claim to know for certain who the real father is.

Rav Mashash cites a proof for this argument from the Mishnah in Yevamos (100b) concerning a woman who did not wait three months after her first marriage. The Mishnah teaches that if one husband was a Kohen and the other was not, the child born is a Safek Kohen. We see from the Mishnah that one cannot ask either father if the baby is his, because no one can know for certain who the real father is. We see also from the Mishnah that one does not follow the Rov that most women give birth to 9-month babies. We may explain that the reason for this is that this Rov is not sufficiently strong, as I wrote in previous replies.

I think there is still quite a bit of exploring needed on this question of Yakir, but I will close for now.

Kol Tuv,

Dovid Bloom