Doubts Relating to Torah Law

In observing the Torah, it is inevitable that doubts will arise.  One may be in doubt if a certain item is prohibited or permissible.  One may be in doubt if one has fulfilled a certain mitzvah or not.  The general rule expressed by the Gemara, Beitzah 3b, is that one should be stringent on matters of doubt relating to Torah law (safek d'oraita l'chumra) and one may be lenient on matters of doubt relating to rabbinic law (safek d'rabanan l'kula).  In this issue, we will analyze the nature and parameters of the safek d'oraita l'chumra rule.  In the next issue will discuss doubts relating to matters of rabbinic law.

The Nature of the Safek D'Oraita L'Chumra Rule

There is a fundamental dispute regarding the nature of the rule that one must stringent on matters of Torah law.  Rambam (1138-1204), Hilchot Tumat Meit 9:12, writes that on a Torah level, one may be lenient in all cases of doubt.  It was the rabbis who instituted that one should be stringent on matters of Torah law and lenient on matters of rabbinic law.  Rashba (1235-1310) Kiddushin 73a, disagrees and maintains that on a Torah level one must be stringent on matters of doubt.

Rambam presents his opinion to explain why the Gemara rules leniently regarding certain cases of doubt in Torah law.  R. Yosef Karo (1488-1575), Kesef Mishneh, Hilchot K'layim 10:27, further elucidates Rambam's position and states that since the requirement to be stringent on matters of Torah law was instituted by the rabbis, they decided that in certain situations one may follow basic Torah law and be lenient in situations of doubt.

Rashba questions Rambam's position from the concept of asham talui.  The Torah (Vayikra 5:17-19) states that if one is in doubt whether he violated a transgression that requires offering a sacrifice, he offers an asham talui (contingent guilt offering).  How is it possible that one is required to offer an asham talui if the Torah permits being lenient in cases of doubt?  R. Menachem Meiri (1249-1306), Chagigah 4a, answers that Rambam agrees that if there is an item that is established as prohibited and one is in doubt whether one will partake of the prohibited item or a different item, one must be stringent on a Torah level and if one violates that mandate, one must offer an asham talui (if the prohibition normally requires an offering).

R. Shimon Shkop (1860-1940), Sha'arei Yosher 1:3, offers a unique approach to Rambam's position.  According to R. Shkop, even Rambam agrees that the Torah does not endorse partaking of an item that might be prohibited.  Rather, on a Torah level one is permitted to "risk" violating the prohibition and suffering the consequences if the item is in fact prohibited.  It is, nevertheless, prudent to refrain from such an item and for this reason the rabbis prohibited partaking of the item.  The asham talui offering is brought in a situation where one didn't realize that the item was the subject of doubt and would like to atone for the potential transgression if the item was in fact prohibited.

R.  Yisrael Z. Gustman (1906-1991), Kuntresei Shiurim, Kiddushin no. 23, notes that if one does not follow R. Shkop's approach, one must conclude that Rambam is of the opinion that in cases of doubt (aside from those involving an item established as prohibited), the Torah allows one to assume that no prohibition exists.  The Torah endorses leniency on the matter.  R. Gustman then queries whether Rashba takes the exact opposite approach.  Does Rashba assume that matters of doubt are absolutely prohibited or are matters of doubt treated as matters that may be prohibited or permissible and one must be stringent?  One practical difference provided by R. Gustman to explain this query is the case of two people who are obligated to fulfill a mitzvah, one of them is obligated to fulfill the mitzvah because of a doubt and the other is definitely obligated to fulfill the mitzvah.  Can the individual who is obligated because of doubt fulfill the mitzvah on behalf of the individual who is definitely obligated?  If Rashba's opinion is that matters of doubt translate to definite prohibitions/obligations, both individuals are definitely obligated to perform the mitzvah and each can perform the mitzvah on behalf of the other.  However, if the doubt remains a matter of doubt, the individual in doubt may not perform the mitzvah on behalf of the other individual because it is possible that the individual in doubt is not in fact obligated to perform the mitzvah.

R. Gustman notes that his query seems to be reflected in a dispute recorded in Talmidei Rabbeinu Yonah, Berachot 12b, s.v. V'Heicha.  Talmidei Rabbeinu Yonah discuss whether one should recite a beracha when one is in doubt whether he is obligated in a biblical mitzvah.  According to one opinion, it is a doubt relating to a beracha and whenever there is a doubt whether one should recite a beracha, one omits the beracha (safek berachot l'hakel).  The other opinion is that if one is in doubt whether he is obligated to perform a mitzvah, it is tantamount to someone who has not performed the mitzvah at all and therefore, a beracha is warranted.  The first opinion seems to treat doubts as actual doubts and therefore employs safek berachot l'hakel.  The second opinion treats doubts as absolute obligations/prohibitions, therefore warranting a beracha when one is in doubt regarding fulfillment of a mitzvah.

Practical Differences between Rambam's Opinion and Rashba's Opinion

Both Rambam and Rashba agree that from a practical perspective, one must be stringent on matters relating to Torah law.  Does this mean that the dispute between Rambam and Rashba is only theoretical?  R. Yitzchak Yosef, Kovetz Anaf Yosef (Vol. III, pp. 43-79) presents seventy four practical differences between Rambam's opinion and Rashba's opinion.  We will present a few of those discussions.

First, we noted earlier the question of whether one who is obligated to perform a mitzvah based on a doubt can fulfill the mitzvah on behalf of someone who is definitely obligated.  R. Chizkiah de Silva (1659-1698). Likutei P'ri Chadash, Orach Chaim no. 184, implies that this question is contingent on the dispute between Rambam and Rashba.  According to Rambam, the obligation of the individual in doubt is only rabbinic in nature and therefore, he cannot perform a mitzvah on behalf of someone who is biblically obligated to perform the mitzvah.  P'ri Chadash does not directly address Rashba's opinion.  R. Akiva Eger, in his responsa (no. 6) notes that even Rashba may agree that this individual cannot perform the mitzvah on behalf of someone who is definitely obligated because the obligation of the one in doubt is only doubtful and not definitive.  R. Shkop, op. cit., notes that Rashba is of the opinion that one must treat doubts as definitive obligations/prohibitions.  As such, Rashba would allow the individual in doubt to perform the mitzvah on behalf of the individual with a definite obligation.

Second, R. Yosef discusses the law regarding doubts and Noachide law.  Noachides are only obligated to keep Torah law and not rabbinic law.  According to Rambam, if a matter of doubt arises regarding one of the Noachide laws, one may be lenient because the Torah does not demand that one be stringent on matters of doubt.  According to Rashba, the Torah demands that one must be stringent.

Third, in a previous issue, we noted that it is permissible to violate rabbinic laws in order to treat a non life-threatening illness.  Is it permissible to treat such an illness by violating a questionable biblical prohibition?  R. Yosef suggests that according to Rambam, a questionable biblical prohibition is treated as a rabbinic prohibition and one is permitted to violate that prohibition whenever it is permissible to violate other rabbinic prohibitions.  According to Rashba, it is treated as a biblical prohibition and therefore, one may only violate the prohibition to treat life-threatening illnesses.