The Divrei Torah in this section have been translated by Rav Reuven Ungar, Director of Alumni Affairs
Is Clarification Necessary in the Presence of a Rov or Chazaka? Part 2
By: Rav Yechezkel Yakovson
Summary of Part 1: Normally the halacha recognizes a majority (rov) or pre-existing state or behavior (chazaka) to determine the halacha. If a doubt can be resolved via independent verification may one rely on the rov or chazaka? Most authorities derive from a gemara in Masechet Pesachim (4a/b) that one may not rely on a rov or a chazaka when the option of verification exists. Thus, a person who rents a home on the 14th of Nissan must (when possible) inquire of the landlord if the house has been searched for chametz.
The Ran (in addition to other commentators) extends this principle to other realms of halacha. The Ba'al HaMaor and the Ritva disagree. What constitutes the underlying difference of opinion (shoresh hamachloket)?
There are three avenues to explain this difference of opinion.
1. The gemara in the first chapter of Masechet Chulin discusses the sources for rov and chazaka. These halachot are classified in two autonomous fashions. A. Rov or chazaka resolve the doubt at hand- "bayrur". B. One is entitled to act in accordance with the rov or chazaka- "hanhaga". Although on a conceptual level the doubt remains, the halacha instructs us to behave in accordance with the rov or chazaka.
The practical ramification (nafka mina) of these two theories is as follows: Must one independently clarify the doubt when possible? The former view exempts such an undertaking; the rov or chazaka has resolved the doubt. The latter opinion requires the verification. The hanhaga of rov or chazaka is applicable in the existence of doubt; it is preferable to remove the doubt.
Thus the Ran is aligned with view B; the Ba'al HaMaor and Ritva agree with opinion A.
2. Although a rov usually is operative in halacha, it does not function when the prohibited item under question will (or can) become permitted (davar sheyesh lo matirin-DSYLM). An egg that was laid on Yom Tov and subsequently was mixed into a group of other eggs, is not nullified by the majority, because subsequent to Yom Tov the egg will become permitted.
Rashi explains that the eventual state of permission that will occur negates the option of utilizing the rov; instead of being commendable, do not act in a derogatory fashion (mihyot tov al tikray ra). Thus, DSYLM indicates that if the possibility of clarifying the issue at hand exists, one may not rely exclusively upon the rov or chazaka.
However, the Ran in Masechet Nedarim provides an alternative theory for the concept of DSYLM. The laws of nullification (bitul barov) are predicated upon contrasts-according to Rabi Yehuda in the physical realm, and according to the Chachamim in the spiritual realm. In accordance with the proper criteria, a permitted item can nullify a forbidden item. However, a forbidden item that will (or can) become permitted does not constitute a substantial contrast to a permitted item, thus preventing the operation of bitul barov. According to this explanation, DSYLM does not qualify as a precedent to require verification in addition to a rov or chazaka. The Ba'al HaMaor and Ritva would be inclined to adopt this understanding of DSYLM.
3. The Pnei Yeshoshua maintains that the possibility of clarifying a doubt completely removes the status of doubt! A doubt is defined as a situation where the ability to independently verify the status of the issue at hand is absent. The Ran would adopt this view, while the Ba'al HaMaor and the Ritva would differ.
The ramifications of this view are profound. As opposed to the first two explanations, the view of the Pnei Yehoshua mandates the independent verification on a Biblical level. Additionally, this view would require the verification whenever possible; exertion to perform the clarification does not qualify as permission to rely upon the rov or chazaka.
Be'ezrat Hashem next week we will investigate the particular halacha of searching for chametz in context with chazaka and the possibility of independent verification.
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