QUESTION: The Mishnah discusses the various cases of doubtful transgression for which a person is obligated to bring a Korban Asham Taluy.

The fact that the Torah obligates a person, who is in doubt about whether he sinned, to bring an Asham Taluy seems to be a clear contradiction to the opinion of the RAMBAM with regard to a Safek d'Oraisa. The Rambam (Hilchos Tum'as Mes 9:12; Hilchos Avos ha'Tum'ah 16:1) rules that the general rule of "Safek d'Oraisa l'Chumra" is only mid'Rabanan. The Torah itself permits an item that is not certainly forbidden but about which there is a doubt. The Chachamim enacted a decree that whenever there is a doubt about an Isur d'Oraisa, one is forbidden to eat the item. (See Insights to Kidushin 73:1, Chulin 11:3.)

The RASHBA (Kidushin 73a) questions the Rambam from the law of the Torah that requires a person to bring an Asham Taluy in a situation of a doubtful transgression. If the Torah permits a person to act leniently in a case of a Safek, then how can the Torah obligate a person to bring an Asham Taluy if he ate the item in doubt? An Asham Taluy is brought only when a person transgresses a Safek Isur, and every Safek Isur is permitted mid'Oraisa!

(a) According to a variant text of the Rambam (in Hilchos Tum'as Mes 9:12) cited by the KESEF MISHNEH (which does not appear in many editions of the Rambam), the Rambam himself draws a distinction between a Safek of an Isur which is punishable with Kares and a Safek of any other Isur. The Rambam writes, "Nevertheless, a Safek about an act that is punishable with Kares is treated l'Chumra, mid'Oraisa, for we see that one must bring an Asham Taluy."

According to this text of the Rambam, the Rashba's question is answered. An Asham Taluy is brought for transgressing a Safek Isur Kares, which is indeed treated l'Chumra, mid'Oraisa.

(b) The Rambam there (Hilchos Tum'as Mes 9:12) writes, "All Safek Isurim, with regard to Tum'ah or forbidden foods, or even Shabbos or Arayos, are forbidden only mid'Rabanan." This seems to contradict the reading quoted by the Kesef Mishneh which differentiates between a Safek of an Isur Kares and all other Safek Isurim, as Shabbos and Arayos are Isurim that carry the punishment of Kares. (The Rambam, in Hilchos Isurei Bi'ah 1:5, actually equates the word "Arayos" with Kares.)

The MAHARIT (2:1), therefore, writes that the reading quoted by the Kesef Mishneh was an addition written by a mistaken student, and it was not written by the Rambam himself. He concludes that the Rambam rules that even a Safek Chiyuv Kares is treated l'Kula, mid'Oraisa.

Why, then, according to the Rambam, is one ever obligated to bring an Asham Taluy?

The Maharit answers that the obligation to bring an Asham Taluy applies in a special situation: when there were two pieces of food in front of a person, one of Isur and one of Heter, and he ate one but is not sure if he ate the Isur or the Heter. The Rambam rules in accordance with Rav Nachman, who obligates one to bring an Asham Taluy only when there is an established prohibition ("Ikva Isura") in front of him, which is the case when one of the two pieces of food is certainly Asur.

The Maharit points out an argument in the Gemara about whether there is a Chiyuv to bring an Asham Taluy for a doubt when there was only one piece of food in front of the person, or whether the obligation exists only when there were two pieces in front of him. The Maharit says that this argument revolves around the question of whether a Safek d'Oraisa is l'Chumra mid'Oraisa or mid'Rabanan. If a Safek d'Oraisa is l'Chumra mid'Oraisa, then even when there was only one piece in front of him, it suffices to obligate him to bring an Asham Taluy. If a Safek d'Oraisa is only l'Chumra mid'Rabanan, then two pieces are necessary in order to obligate him to bring an Asham Taluy, for only in such a case is one prohibited to eat the pieces due to a Safek.

(c) The DIVREI EMES (quoted by the CHOCHMAS BETZALEL to Nidah 61a) asks a strong question on the Maharit's approach. The Rambam (Hilchos Avos ha'Tum'ah 18:2) rules, "If there was a piece of a human corpse and a piece of an animal corpse, and a shelter was erected over one of them [and one is in doubt which one], the shelter is considered Tahor when it is in Reshus ha'Rabim." The words of the Rambam imply that even when there is an established Isur ("Ikva Isura") in front of the person, the law is still lenient with regard to Tum'ah in Reshus ha'Rabim. However, the Rambam writes elsewhere (Hilchos Avos ha'Tum'ah 16:1) that the only reason to be lenient in Reshus ha'Rabim is the rule that, mid'Oraisa, every Safek is l'Kula! Accordingly, the Rambam maintains that even in a case of "Ikva Isura" the law rules leniently! When, then, according to the Rambam, would a person ever be obligated to bring an Asham Taluy for a Safek transgression?

The Divrei Emes explains that the Rambam requires both conditions to be fulfilled in order for one to be required to bring an Asham Taluy. The first condition is that the Isur which the person is unsure that he transgressed must be an Isur that is punishable with Kares when transgressed intentionally. The second condition is that the doubtful transgression must occur in a situation of "Ikva Isura," where the prohibition was established, such as when he eats one of two pieces that are in front of him, and one of them was certainly a piece of Isur. This resolves the question that the Maharit asked on the reading of the Kesef Mishneh. According to that reading, the Rambam rules that even a Safek Isur Kares is not punishable with Kares when there is no established prohibition. His examples of Shabbos and Arayos apply to cases where there is no established prohibition.

(d) RAV SHIMON SHKOP zt'l in SHA'AREI YOSHER (1:3) takes an entirely different approach to this question. Every Isur in the Torah has two components: first, the "Azharah," the commandment not to do the act; second, the "Cheftza d'Isura," the intrinsic nature of the object as an object that is forbidden.

A Safek does not change the intrinsic nature of an object; it affects only the Azharah. The Torah commands its Azharos only in situations of Vadai, where one certainly will transgress. In situations of Safek, the Torah does not command the person not to do the act in doubt, but rather it leaves it up to the discretion of the individual. However, if the object is, in fact, a forbidden object, the person will be held responsible for eating it. The Torah allows a person to decide for himself whether or not he wants to take that chance. If he does end up sinning, then he is responsible. Therefore, a person who performed an act that might have been a transgression must bring an Asham Taluy.

QUESTION: Chiya bar Rav states that one is Chayav to bring an Asham Taluy only when there were two pieces in front of him, one of Heter and one of Isur, and he ate one and does not know whether he ate the Isur or Heter. This is the Halachah, as recorded by the RAMBAM (Hilchos Shegagos 8:2).

According to this ruling, what is the Halachah in a case in which there were three pieces in front of the person, two of Heter and one of Isur, and he ate one of them and does not know whether he ate the Isur or Heter? Is he Chayav to bring an Asham Taluy?

ANSWERS: Whether or not one is Chayav to bring an Asham Taluy when he ate one piece out of three that were in front of him seems to depend on two issues, each of which are the subject of a Machlokes.

The first issue is whether or not the rule of Bitul b'Rov applies in such a case. Normally, when an Isur is mixed with a majority of Heter, the Isur becomes Batel and the mixture is permitted, even l'Chatchilah. If this principle applies in this case, then certainly there will be no Chiyuv of Asham Taluy, because he was permitted to eat the piece that he ate, since the Isur was Batel in the majority of Heter. This is the approach of the PRI MEGADIM (Pesichah, Hilchos Ta'aruvos).

The ARUCH LA'NER disagrees with the Pri Megadim. He points out that the reason why one is Chayav when he eats "one piece out of two pieces" is that it is "Efshar l'Varer," it is possible to determine which piece was Asur by giving the remaining piece to an expert, as the Gemara later explains (see RASHI, DH Efshar l'Varer Isuro). The same reasoning should apply when one eats one piece out of three pieces as well. Since the expert can determine whether the remaining pieces are Isur or Heter, the pieces in the mixture are identifiable and thus Bitul does not apply (since there is no actual mixture).

It seems that the Pri Megadim maintains that the fact that it is "Efshar l'Varer" does not remove the status of a mixture from the three pieces, and thus Bitul b'Rov still applies. Only with regard to the laws of Asham Taluy does "Efshar l'Varer" apply, by making it possible to bring a Chatas later. With regard to identifying the objects such that there is no Bitul b'Rov, however, "Efshar l'Varer" does not apply. (This is a basic question in Hilchos Ta'aruvos: Do all Hilchos Bitul fall away if it is feasible (by some form of laboratory test) to ascertain where the Isur is, or does it depend on the level of hardship or cost it takes to execute such an investigation?)

The second issue is whether one should be Chayav to bring an Asham Taluy even when it is more likely that the person ate Heter than Isur. When there were two pieces of Heter and one piece of Isur in front of him, the chances that he ate Isur are only one in three, and perhaps an Asham Taluy is brought only when there was an equal chance of eating Isur as there was of eating Heter.

The Aruch la'Ner says that this issue is the subject of a Machlokes Rishonim. The Mishnah here (17a) says that one is Chayav to bring an Asham Taluy if he is in doubt about whether he ate a piece of Isur, or if he is in doubt about whether he ate a k'Zayis of Isur. The RAMBAM (Hilchos Shegagos 8:2) understands that the second case refers to one who knows that he ate a piece of Isur, but he is in doubt about whether he ate a k'Zayis or not. TOSFOS (DH mid'Seifa), however, understands that the second case refers to the same questionable piece as the first case. The doubt is not only whether he ate a piece of Isur, but also whether or not that piece of Isur was the size of a k'Zayis.

The LECHEM MISHNEH explains that the Rambam and Tosfos disagree about whether one is Chayav to bring an Asham Taluy even for a Sfek Sfeika. Tosfos maintains that one is Chayav even for a Sfek Sfeika, and therefore he explains that the Mishnah's case refers to a Sfek Sfeika. The Rambam, however, maintains that one would not be Chayav to bring an Asham Taluy for a Sfek Sfeika.

The Aruch la'Ner writes that according to the Rambam, one would not be Chayav for eating one piece out of three, because, like a Sfek Sfeika, there is a greater probability that he did not eat Isur. According to Tosfos, one would be Chayav for eating one piece out of three, because he maintains that one is Chayav even in a case of a Sfek Sfeika, when there is less likelihood that he ate Isur. (Mordechai Zvi Dicker)