KIDUSHIN 73-75 - Sponsored by the Turkels of NY to merit a Refu'ah Sheleimah for Mindl Adina bas Yentl Yenta Yehudis and Yehuda Leib ben Tzipora Rochel and Avrohom Yeshaya ben Aviva, among the ailing of Klal Yisrael.

1) THE RULE OF "SAFEK D'ORAISA L'CHUMRA"
QUESTION: Rava states that mid'Oraisa a Shetuki is of pure lineage. His reasoning is that most candidates for the child's father are permitted to the woman and their offspring with her would not be a Mamzer. (If the father was a Nochri or Eved, the child would also not be a Mamzer since a child from such a union is not a Mamzer.) Accordingly, if the man left his domicile and went to the woman, the principle of "Kol d'Parish m'Ruba Parish" applies and the man is presumed to have been of the majority group, whose lineage is pure.
If, however, the woman left her domicile and went to the man, the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami" applies, and thus the child has a status of Safek, doubt. The Torah forbids only a Vadai Mamzer from marrying an ordinary Jew (Devarim 23:3). It does not forbid a Safek Mamzer from marrying.
In most cases of a Safek Isur, there is a basic difference between an Isur d'Rabanan and an Isur d'Oraisa. A Safek of an Isur d'Rabanan is treated leniently (l'Kula), while a Safek of an Isur d'Oraisa is treated stringently (l'Chumra). Is the principle of "Safek d'Oraisa l'Chumra" a Halachah d'Oraisa (i.e. the Torah mandates that the doubt be treated stringently) or is it a Takanah d'Rabanan (i.e. the Rabanan enacted that one act stringently in a case of doubt, while mid'Oraisa one may act leniently)?
Most Rishonim maintain that the Halachah of "Safek d'Oraisa l'Chumra" is a Halachah d'Oraisa. This also appears to be the view of RASHI here (DH v'Iba'is Eima). Rashi writes that the reason why one must be stringent in a case of a Safek Mamzer is the "Torah's warning in the case of a Safek." He does not mention that the stringency is based on an Isur d'Rabanan.
In contrast, the RAMBAM (Hilchos Tum'as Mes 9:12) maintains that the Halachah of "Safek d'Oraisa l'Chumra" is only a Halachah mid'Rabanan.
All of the commentators on the Rambam question the Rambam's opinion from the Gemara here. If, mid'Oraisa, a Safek Mamzer may marry an ordinary Jew, why does the Gemara need to derive through a special Derashah that a Safek Mamzer is permitted? Without any special verse, the rule that a Safek is treated leniently mid'Oraisa should apply! Since, mid'Oraisa, a Safek is permitted, why does the verse need to give a special allowance for a Safek Mamzer to marry a Jew?
ANSWER: The SHEV SHEMAITSA (1:2) writes that even according to the Rambam, certain cases of doubt are treated stringently even mid'Oraisa. In a case of a doubt about whether or not an Isur exists at all (such as in the case of a doubt whether a piece of meat is kosher or not), mid'Oraisa one may act leniently since there is no reason to assume that an Isur is present. In contrast, in a case in which an Isur definitely is present but there is a doubt where the Isur is located (such as in the case of two pieces of meat, one of which is certainly forbidden and one certainly permitted, but it is not known which piece is forbidden and which is permitted), one may not act leniently and eat one of the pieces of meat. Since an item of Isur definitely is present, one must take into account the possibility that each piece might be the forbidden one.
A similar situation exists in the case of a Mamzer. When it is known that a Vadai Mamzer is in a house with several other people but it is not known which person is the Mamzer, the Torah's rule of "Safek l'Kula" does not apply, and therefore a special Derashah is needed to permit the Safek Mamzer.
2) THE STATUS OF A "SHETUKI"
QUESTION: Rava states that mid'Oraisa a Shetuki is of pure lineage. His reasoning is that most candidates for the child's father are permitted to the woman and their offspring with her would not be a Mamzer. (If the father was a Nochri or Eved, the child would also not be a Mamzer since a child from such a union is not a Mamzer.) Accordingly, if the man left his domicile and went to the woman, the principle of "Kol d'Parish m'Ruba Parish" applies and the man is presumed to have been of the majority group, whose lineage is pure.
If, however, the woman left her domicile and went to the man, the principle of "Kol Kavu'a k'Mechtzah Al Mechtzah Dami" applies, and thus the child has a status of Safek, doubt. The Torah forbids only a Vadai Mamzer from marrying an ordinary Jew (Devarim 23:3). It does not forbid a Safek Mamzer from marrying.
Why does the Gemara need to explain that a Safek Mamzer, in the case of a Shetuki, is permitted because of the special verse in the Torah? Although in ordinary cases of doubt, a Safek d'Oraisa must be treated stringently ("Safek d'Oraisa l'Chumra"; see previous Insight), a case of a Sfek Sfeika is treated leniently. A Sfek Sfeika is a situation in which there is a double doubt and thus two possibilities of Heter (leniency). In such a case of doubt, even mid'Oraisa one may act leniently.
The case of the Shetuki should also be treated like a Sfek Sfeika. The first doubt is the doubt about the identity of the father of the child. The second doubt is the doubt about whether the man went to the woman (in which case the child is permitted because of "Rov") or whether the woman went to the man (in which case the child's status is in doubt because of "k'Mechtzah Al Mechtzah Dami"). This is a situation of Sfek Sfeika with two possibilities of Heter: if the man went to the woman, the child is permitted, and even if the woman went to the man, there is a possibility that the child is permitted. Why does the Gemara need a special verse to teach the Heter of a Safek Mamzer?
ANSWER: The RASHBA explains that the verse indeed is not needed to teach that the Safek Mamzer is permitted in such a case of doubt. The verse is need only for cases in which the double doubt does not exist, such as when it is known for certain that the woman went to the man (in which case there is only one doubt). The Gemara quotes the verse only to explain why a Safek Mamzer is permitted in all cases (even when there is no Sfek Sfeika).
However, if it is true that in the case of a Shetuki there exists a Sfek Sfeika which permits (mid'Oraisa) the Shetuki to marry an ordinary Jew, why does the Mishnah (69a) state that a Shetuki is permitted to may a Mamzer since neither one is considered "Kahal Vadai" (a definite member of "the congregation of Hash-m") but only "Kahal Safek"? The Mishnah there clearly refers to all cases of Shetuki, even cases of a Sfek Sfeika. If the Shetuki's status is subject to the double doubt of a Sfek Sfeika, why does the Mishnah there permit him to marry a Mamzer? Just as the Sfek Sfeika permits a Yisrael to marry a Shetuki (because it is assumed that the Shetuki is not a Mamzer), it should also prohibit the Shetuki from marrying a Mamzer. Why does the Mishnah refer to a Shetuki as "Kahal Safek" if the Sfek Sfeika gives him the status of an ordinary Jew? (See PNEI YEHOSHUA.)
The Acharonim answer that a Sfek Sfeika does not create a status of Vadai, certainty, and determine that the person is certainly permitted. Rather, it merely "eases" the magnitude of the Safek. The rule of "Safek d'Oraisa l'Chumra" applies when there are two equal possibilities, one of Isur and one of Heter. When there are more possibilities of Heter than of Isur, such as in the case of a Sfek Sfeika, one no longer needs to be concerned for the possibility of Isur. The Sfek Sfeika does not dictate that there definitely is no Isur present; rather, it limits the extent to which one must be concerned about the possibility of Isur. In the case of a doubtful Mamzer such as a Shetuki, a Sfek Sfeika does not change the Shetuki's status of doubt. The question is not whether or not the Shetuki is forbidden as a Mamzer. Rather, the question is whether the Shetuki is a Safek Mamzer or a Vadai Mamzer. Hence, the Shetuki's status of Safek remains even though there is a Sfek Sfeika, and thus he may marry a Mamzer.

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