we're going to discuss on the Gemara, on the Kesubos דף ט עמוד א. Last week we discussed the Gemara, this time we're going to discuss one of the Tosafos here. It's concerning this ענין that's נוגע to a certain פרט in the Gemara, but בפועל what the Gemara says is that if a person after his marriage he realizes that this woman was, he says he realizes that she's not a בתולה. Now if you realize she's not a בתולה, the Gemara says like this, that in a normal case of a regular woman, not a wife of a kohen, a regular case, she would be mutar to continue living with her husband. Why? Because it's a safek sfeika, there is a double safek here. One safek is did it happen תחתיו, אינו תחתיו? Did it happen while she's already married to him, meaning engaged. After she's married completely, he knows where she is. The question here is there was a year between the engagement when she became his wife as an אשת איש till he married her. After he married her, he sees she's not a בתולה, so maybe it happened during that year. If it happened during that year, that's called תחתיו, under him while she was married to him, then she's forbidden to him. But there's another safek, even if it happened under him, maybe it happened be'ones, maybe it happened by force, and then she's mutar. If he is a kohen, then

even by force it's asur. The דין is that if a woman, an אשת איש, even if it's done to her by force, she cannot live with her husband if he's a kohen. So if he's a kohen, there's only one safek. The safek is when did it happen? Did it happen before, did it happen afterwards? But if it happened afterwards during his time, makes no difference by ones or beratzon. So she would be asur because every time you have a safek if something is asur, it's asur. But by a אשת ישראל, by a regular woman, if she's not a wife of a kohen, then there's a safek sfeika, we call a double safek, and she's mutar. There is another case when for sure she's asur, that's if she got קידושין before she was three years old. If she got the קידושין before she's three, so then, and now obviously she must be already a גדולה. So here we have a double double there's one safek, not a double safek. Why? It definitely didn't happen before the kiddushin, before the kiddushin she was still under three. If under three, she would have still been a בתולה, because the fact is that if there is any relations before she's three, the בתולים grow back. The fact that she doesn't have a hasn't בתולים, obviously it means it happened later. Now there's only one safek: Did it happen be'oness? Did it happen beratzon? Did it happen by will, did it happen So it's one safek, and she's asur, but otherwise she's mutar. This is what the Gemara says. Another safek, it could happen by accident. Huh? Could could have happened by accident. What do you mean by accident? Walking in a I mean מוכת עץ, we'll see that. That's something else, that's that's מוכת עץ. We're talking here about בעילה. That'll be we'll get into that. Accidentally know that it was No, you can't you can't know. I mean, she could know, but you can't see if she has no We'll get we'll see that in a moment. So here

Tosafos asks a kashya on this case where it says that by the case of אשת ישראל דקיבל אביה קידושיה פחותה מבת שלש, in the case where she got kiddushin before she was three, and there the safek is, there's only one safek, the Gemara says, was it be'oness, was it beratzon, but it was definitely תחתיו, definitely when she was married, because she got kiddushin before. ואם תאמר, so Tosafos asks a קשיא, אכתי איכא ספק ספיקא. We still have a double safek. Why? Number one, ספק באונס ספק ברצון, whether it safek was done willingly or by force. ואם תמצי לומר ברצון, even if you say it done willingly, ספק כשהיא קטנה ופיתוי קטנה אונס הוא כדיאמרינן בפרק הבא על יבמתו. Now if even if it was done beratzon, maybe it was done to her while she's a קטנה. A קטנה who agrees, the Gemara says in in יבמות, פיתוי קטנה אונס הוא. If someone convinces a קטנה to do an עבירה, it's called oness. She doesn't understand what she's doing. So even though she says yes, it has the same גדר, the same din as an oness. So that's a double safek. So the safek is was it done by force or by will? And even if you'll say it was done by will, maybe it was done while she was still a ketanah, and פיתוי קטנה אונס הוא, and therefore there is a safek sfeika. That's Tosafot's kushya. The na'arah could be considered ketanah in this case? No. Still only one safek. Huh? Still only one safek. Yesh lomar, so Tosafot answers, דשם אונס חד הוא, that it's really like one safek. Because basically the safek is one: Is it ones, is it ratzon? There's just more chances of it being ones, but basically there is one safek: Is it ones, is it ratzon? We just describe it in different ways. Is it done physically by force or done willingly? Even if it's done willingly, maybe it's considered force. So basically the safek is force, ones or ratzon. That's why it's called one one safek. That's Why is it considered a maybe? You said in Yevamot it is considered force. No, but maybe it happened after she was a gedolah. already. Now she's a gedolah. He gave her kiddushin before she was three and didn't marry her till she was 13. Oh. Okay. So we don't know if it happened before, or happened later. So this is Tosafot's kushya, and this is Tosafot's terutz. So Tosafot' whole kushya is based on the fact that the Gemara says in יבמות פיתוי קטנה אונס הוא, that the convincing of a ketanah, or what's without not a better word for פיתוי מן הסתם, what in convincing is a, seduction. Seduction, huh. To seduce a ketanah is really called an ones. Based on that, Tosafot has a kushya, so it's a safek sfeika, and answers it's all one safek. The

Rambam in Hilchot Sotah says like this: that a woman who was מזנה as an אשת איש, as a married woman, ברצון, willingly, she is forbidden to her husband. And the Rambam says even if she was a קטנה. That means that if she was a קטנה married to her husband, and then she went and was מזנה willingly, she is forbidden to her husband, because she's an אשת איש. An אשת איש that was מזנה ברצון, she's asur. Come all the mefarshim and ask the kashya, right, but what if she's a קטנה? פיתוי קטנה אונס הוא, there's a clear Gemara in Yevamot: פיתוי קטנה אונס הוא. That if you seduce a קטנה she's an ones, it's always an ones, so she should be mutar! Unless he's a kohen, but if he's not a kohen, she should be mutar to him. So the Maggid Mishneh on the Rambam answers, and he says that the Rambam holds that even though the Gemara in Yevamot makes it clear that פיתוי קטנה אונס הוא, the Gemara in Ketubot seems to indicate the opposite, and the Rambam פסק'נס like this Gemara. Where does he see it in the Gemara Ketubot? So he says, he brings Tosafot's kashya. He says the Rambam looked at the Gemara, and the Rambam said the Gemara here claims that if the Kiddushin was given before she was three, it's considered one safek. So the Rambam asked himself Tosafot's kashya: if פיתוי קטנה אונס, then there's a ספק ספיקא: number one, was it אונס, was it רצון? Number two, maybe it was done while she's a קטנה, which again is an אונס! Even if it was done ברצון, maybe it was done earlier, which is an אונס! And therefore, since the Gemara considers it one ספק, not two, the Rambam comes to the conclusion that our Gemara holds פיתוי קטנה is not אונס! And for some reason the Rambam pask'ens like this Gemara. A lot of times you can find, just like you find מחלוקת's between תנאים and אמוראים, you find מחלוקת's in סוגיות, that one Gemara goes according to one opinion, one Gemara goes according to another opinion, and then you have to have the כללים which Gemara do you pasken like. So for some reason the Rambam feels that our Gemara argues with the Gemara in Yevamos, and the הלכה is like our Gemara. And it's all based, where is the, the, the ראיה? So the Rambam feels that if פיתוי קטנה would, קטנה would be אונס, then our Gemara couldn't say it's one ספק, it should have been a double ספק. That's what the Rambam holds. So, some come conclude from this from this whole thing here, that the Rambam doesn't accept the כלל of שם אונס חד הוא. That the Rambam does not hold of this כלל, that when you have a ספק ספיקא, and the second ספק is a second ספק, but within the same name as the first, we consider it one. Tosafos here says that why is it not called a safek sfeika, because even the second safek basically is a safek of ones or ratzon, so it's all called one safek. It's a ספק משם אחד we call it, a safek from one name. So even though technically it's a safek sfeika, but in halacha we consider it one safek. If the Rambam would hold like Tosafos, then we have no re'aya that the Gemara holds פיתוי קטנה is not ones. The whole re'aya that the Rambam has פיתוי קטנה is not ones is because otherwise the Gemara is kashya. But there is no kashya! Tosafos's kashya is no kashya, because we have a good teirutz: shem ones chad hu! So obviously what comes out from here is that there's a machloket between the Rambam and Tosafos, according to this peshat, whether we accept this klal, that by a safek sfeika, when you have both of them from the same שם, is it considered a safek sfeika or not? Tosafos holds shem ones chad hu, and if it's one name it's considered one safek. And the Rambam obviously holds that even if it's from one name, but as long as it is technically a safek sfeika, it has the din of a safek sfeika. And therefore the Rambam says this would have been definitely a pure safek sfeika. Obviously we must say that פיתוי קטנה is not ones. So what we have to understand: what are the two sides? The truth is most poskim pasken like Tosafot, that that if it's a safek sfeika from one name, it's called one safek. The Alter Rebbe's Shulchan Aruch in Hilchot Pesach, when it comes to certain sfeikot the Alter Rebbe paskens שם, that if it's a double ספק משם אחד, it's called one safek. The Shach in כללי ספק ספיקא, the Shach paskens that we say that if it's ספק ספיקא משם אחד, it's called one safek. But obviously according to this, these opinions, the Rambam holds that even though it's a שם אחד, it's called a safek sfeika. The she'eilah is what is the machloket? But just before that, I do want to go derech agav, by the way, to explain what is taka the machloket between the Rambam and Tosafot whether we say פיתוי קטנה אונס הוא or not? Which means, we said the machloket is whether this how we learn peshat in this Gemara. But all the machloket's, even if it's based on how we learn peshat in the Gemara or how we don't, it has to have a sevara behind it. There has to be a reason that Tosafot holds that we pasken פיתוי קטנה if you, it's an אונס קטנה or it's an ones, and the Rambam holds it's not. Granted that, it sof kol sof it goes, reverts back to how you have a re'iyah from the Gemara, but what's the logic? So just to explain the the sevara of the machloket, we could explain it like this. The she'eilah is, and I'll just first say some words and then elaborate on it. The question is: is the ones the heter, or is the ratzon the issur? Is the fact that it's ba'ones, that makes it mutar? Or is the fact that it was beratzon makes it asur? Which means like this: you could look one way and say, the din is be'etzem that an אשת איש that is מזנה becomes asur to her husband. That's the fact. If it happened ba'ones, then that is a heter to this issur. Or you could say, no. Lechatchila, the whole issur of an אשת איש as in so is only if it was beratzon. See, the other way we're saying the ratzon is not the reason, the reason is this news. If it happened not to be beratzon, it's a heter. The other way is, no. Lechatchila, the only way an אשת איש as in so- How do you how do you label, who is who is מזנה? You only label it as this, or you label it as- The act. The act is called an אשת איש who did this act. So we could say that the act itself be'etzem makes her asur to her husband unless it was the issur, or you could say the be'etzem act doesn't make her husband doesn't make her, unless it was beratzon, then it's asur. It's not that the issur makes the heter, it's the ratzon that makes the issur. The intent, you know what whether the act- Whether you need intent or not. No, the question is whether the intent makes the issur, or the intent doesn't make the issur, it's the fact that it's ba'ones makes the heter. Now where will we have the difference? On one hand, we could say lechora that the fact that a kohen is asur even if it's ba'ones, a siman that be'etzem ones is also, be'etzem the act is asur. But it's not such a re'aya, you could say no, Kohanim are holier, it's a different din, yes, no ra'ayah. The difference will be if there is such a possibility of not ones and not ratzon, what will be the din? Now lichorah, how is it possible? A קטנה. So that's what I want to say is the case. A קטנה. A קטנה, the machloket

between the Rambam and Tosafot is not whether פיתוי קטנה אונס הוא. Everyone agrees that when you seduce a קטנה, it's not ones and not ratzon. The machloket is what din does it have. But the fact is we can't consider it ratzon, because she's still a baby, she's still, but you can't consider it ones either. The guy didn't force her. Technically he didn't. He spoke to her and she agreed. So so you can't call it ones, you can't call it ratzon. And therefore, depends of the two ways how we'll pasken. If we say be'etzem the act makes it asur, but the ones makes it mutar, so in this case she'll still be asur, because there is no ones to make it mutar. If you'll say farkert, that be'etzem it's not the the act itself doesn't make it asur, what makes it asur is the ratzon, in this case there was no ratzon. So this would be the machloket between Tosafot and the Rambam. Like we find in other places also, that when we have such she'elot, when there is a case where it's neither this nor that, that's when nafka mina will be. The Rogatchover talks about it a lot. I'll just give you one example that the Rogatchover mentions, and the Rebbe brought it many times when he used this logic, is the she'elah that you're not allowed to eat certain things outside of the walls of Yerushalayim. Like ma'aser sheni you have to eat in Jerusalem, a certain korbanot you have to eat within the walls of Jerusalem. So you ask the shaila, is the pshat that you are not allowed to eat it outside of the walls, outside of the city, or must you eat it inside the walls? Now what's the difference? The difference is if it's not outside nor inside. L'mashal, if it's in the wall. Within the wall, I mentioned this not long ago. If the wall let's say is thick and you're and you're in the doorway, now if the din is you can't eat it outside, you didn't eat outside. If you have to eat inside the city, you didn't eat inside either. So this would be the nafka mina. The same thing here. In other words, nafka mina will be when it's not this nor that. Same thing here, nafka mina is when it Is it the ones that makes it mutar, or is it the ratzon that makes it asur? Here where you have נישט אונס and נישט רצון, so it'll depend. If ones makes it mutar, in this case it's asur. If ratzon makes it asur, in this case it's mutar. That's basically the machloket. But this is just by the way sevara just to understand the machloket. But what we're trying to get is that the second thing, that Tosafot holds that when you have a ספק משם אחד, you have two a safek sfeika, I mean, two sfeikot from one name, Tosafot says it's called one safek. And the Rambam will hold obviously that it's called a double safek, and that's why he says here it would have been a safek sfeika unless we hold פיתוי קטנה לאו אונס הוא. So what are the two sides to that? The two sides to פיתוי קטנה we explained. What are the two sides שם אונס חד הוא? Then there's another thing here. Tosafot later on, in the same Tosafot, continues and asks another shaila. What was that? Huh? שם אונס חד הוא was what? That that's in- It it means שם אונס חד הוא. The name of אונס חד is one. That means it's a it's a ספק ספיקא משם אחד. It has one name, it's one concept.

Tosafot asks a kushya here: ואם תאמר, ואכתי, באשת כהן, ובקיבל אביה קידושין, פחותה מבת שלוש לשלוש שנים ויום אחד, איכא ספק ספיקא. He says, even by a wife of a kohen, I have a safek sfeika. Or in the case Earlier, she got kiddushin before three, I also have a safek sfeika. Why? ספק מוכת עץ, ספק דרוסת איש. It's possible that the reason she's not a פסולה because she's a מוכת עץ, she got hurt. She fell, she got hurt, she lost her בתולים, that's also possible. So the first thing will go like this: let's start off like this. By אשת כהן, first of all, a ספק, בכלל was she מזנה or wasn't she מזנה? Maybe she wasn't even מזנה, so she's מותרת. אפילו if you'll say that she was מזנה, maybe it was done before she got married to him. So it's a double safek. Look at the second case, the same thing by if she got kiddushin before she was three. First of all, maybe she wasn't מזנה, maybe she's a מוכת עץ. אפילו if you say she was מזנה, maybe it happened באונס. Here is not a שאלה of תחתיו, because it's for sure under him, but maybe it happened באונס. So, both cases you have a safek sfeika, that's Tosafos's קשיא. And Tosafos answers, and he says, \"Okay, someone might answer that מוכת עץ לא שכיח. It's not common, that's not even a...\" Tosafos says, \"No, we bring a ראיה from the Gemara that מוכת עץ is שכיח.\" Therefore he says, ויש לומר, is \"I have a reason why the Gemara does not consider מוכת עץ as part of the safek, because דאי איתא דמוכת עץ היא, if there would be a possibility that she's a מוכת עץ, הות טענה, she would have said so.\" That was, when do we have a safek maybe this happened maybe not? Because, ay, why didn't she say it? She doesn't want to say it, she's embarrassed. But if she would have been a מוכת עץ, there is no embarrassment, דאין גנאי בכך כמי בביאת אונס. See, why does... let's say we have a safek maybe it was אונס, maybe it was רצון, so you can't say, \"Well, if it was אונס, why didn't you say so?\" She's embarrassed. Therefore she says, \"No, you're a liar.\" But in the case of מוכת עץ, she should have said that. ומידלא טענה, אין להסתפק בכך. Since she didn't say it, obviously that's not even part of a ספק, it's for sure not. So that's not a ספק, that's Tosafos's תירוץ. The שאלה is that the whole ספק ספיקא should not be a real ספק ספיקא. I'll tell you why.

One of the rules that some hold concerning a ספק ספיקא, also the Shach brings it down in Klaley ספק ספיקא, is the ספק ספיקא has to be a ספק ספיקא המתהפך. Ha?? Reversible. A ספק ספיקא that could be reversed also, start the other side. And a ספק ספיקא that cannot start the other side is not a, doesn't have a דין of a ספק ספיקא. I'll give you an example. Take the ספק ספיקא of the Gemara, the regular ספק ספיקא by a regular אשת ישראל. The ספק is like this: did it happen באונס, did it happen ברצון? אפילו if it happened ברצון, did it happen when she was married or not? You can start the other way, too: did it happen under him, or did it happen not under him? Even if it happened under him, was it באונס, was it ברצון? So it's a ספק ספיקא that could start either way. That's called a ספק ספיקא. A ספק ספיקא that cannot start it the other way doesn't have the דין of a ספק ספיקא, it's considered like one ספק. In this case, that's what it is. What are we saying here? ספק מוכת עץ, ספק זנות. Even if it was זנות, that's the case the case of a כהן, even if it was זנות, maybe it was not תחתיו. Now, let's start the other way: maybe it was under him, maybe it was not under him. And even if it was under him, maybe it wasn't זנות. Makes sense? You have to have when you start under him and not under him, we already took into we already assumed that it was זנות! You can't start the other way! You can't say, \"Well, maybe she was מזנה under him, then it's אסור, or maybe she was not מזנה under him, she's מותרת. Even if you'll pick the אסורדיקע side that she was מזנה under him, maybe what? Maybe she was a מוכת עץ?\" You can't say that! So

it's not a ספק ספיקא המתהפך. If that's not המתהפך, how could Tosafot starts off asking this safek sfeika, it's not מתהפך! And the truth is, I don't know. Why do you say that even if you say that she was מזנה under him, it happened... No, that's not safek sfeika. Safek sfeika means even if צד איסור, there's still a צד היתר to it. Safek sfeika means first we have a ספק, maybe this happened, it's mutar, maybe this happened, it's asur. Even if you pick the asurdike side, in that gufa, maybe it happened in a way which is mutar. So you're going to say like this: or it happened not תחתיו, she's muteret, or it happened תחתיו, which means she was מזנה תחתיו and it's asur. If you say the זנות and the issur, and then you say even if she was מזנה תחתיו, maybe she's a מוכת עץ? It makes no sense, you can't do that. So it's not a ספק ספיקא המתהפך. And Tosafot Yeshanim on the עמוד ב׳ here mentions that klal, it has to be a ספק ספיקא המתהפך. It's a case in the Tosafot says לגבי a different I don't want to go into all the פרטים. It's maybe we takeh shouldn't go in. Anyway, so Tosafot brings there, Tosafot asks a kashya. Tosafot says a safek sfeika, and asks why isn't it, and Tosafot gives a terutz, and the Tosafot Yeshanim says, ויש מפרשים, דהכא לא חשיב ספק ספיקא דאינו יכול להתהפך, it can't go backwards. I'll tell you what the safek sfeika there, I'm not going to go into the פרטים. The safek sfeika is there, when he said פתח פתוח, we're a choshesh maybe he doesn't know what he's Not that he's lying, maybe he's mistaking. And it's not פתח פתוח. Then we'll say, even if it's פתח פתוח, maybe it was done באונס. So he says, you can't say the opposite to say למימר ברישא, first you're going to say maybe she was מזנה באונס, maybe ברצון, afilu if she was מזנה ברצון, maybe he doesn't know. You can't say it, so it's not a ספק ספיקא המתהפך. So the same thing here, it's not a ספק ספיקא המתהפך. The she'eilah is, how in the world is this a safek sfeika? So, to answer that, let's understand klal, what is the concept of a safek sfeika? If a safek is asur, then why is a safek sfeika mutar? If the first safek, you have something that has a safek, and the din is safek de'oraita, if you have a safek, you go l'chumra. So why should a safek sfeika be mutar? Now, to explain my she'eilah: concerning safek, the din that when you have a safek by a דין דאורייתא, you have to go l'chumra, that's the klal, safek de'oraita l'chumra, there's a machloket between the Rambam and the Rashba. This din that you have to go l'chumra by safek de'oraita, is it mide'oraita or is it mid'rabbanan? Who said by a safek de'oraita you go l'chumra? The klal is: by de'oraita you

go l'chumra, safeka d'rabbanan you go l'kula. So who said by a ספיקא דאורייתא you go lechumra? So the Rashba says, ספיקא דאורייתא מן התורה לחומרא. The Torah says that you have to go lechumra. The Rambam says, ספיקא דאורייתא מדרבנן לחומרא. The Rabbanan said that you have a safek. So now like this: according to the Rambam, you can understand. When you have one safek, you have to be machmir, and it becomes assur. What kind of issur is it? Is it an איסור דאורייתא, or איסור דרבנן? It's derabbanan. Now when you have a safek in that safek, it's a ספיקא דרבנן. ספיקא דרבנן, you go lekula. Very good. But according to the Rashba, who holds ספיקא דאורייתא מן התורה לחומרא, so when you have one safek, you have to be machmir, and who says you have to be machmir? The Torah! So mid'oraita this is assur. If mid'oraita this is assur, now you have a safek in this, so it's a safek in a דין דאורייתא! What's the din by ספיקא דאורייתא? You have to go lechumra! So why should a safek sfeika be lekula? And the question is even more, even according to the Rambam, who says ספיקא דאורייתא מדרבנן לחומרא, it's not in all cases. Even the Rambam admits that there are many cases, I think we spoke about it once in the shiur, in different cases mid'oraita you go lechumra. The best proof is from אשם תלוי.

There is a din of bringing a קרבן אשם תלוי. What's an אשם תלוי? That when you did an עבירה בשוגג, if you know for sure you did an עבירה בשוגג, you bring a חטאת. If it's a ספק עבירה בשוגג, if you're not even sure you did an עבירה בשוגג, maybe you did an עבירה בשוגג, you have to bring, the Torah says you have to bring a קרבן אשם, אשם תלוי. But ספיקא דאורייתא is לקולא מדאורייתא! So how can you have אשם תלוי? So the Rambam says, that's why the din by an אשם תלוי is only when אקבע איסורא, when there's an established איסור. I explained it once. There are two types of doing a ספק איסור. What happens if there's a piece of fat on the table? Now, there are one kinds of fats which is called שומן, it's kosher fat, and then you have חלב, which is treif fat. And if a person eats חלב, it's חייב כרת. And if you eat חלב בשוגג, you have to bring a קרבן חטאת. What happens if there's a piece on the table and he ate it, and he doesn't know, later someone told him, you know, this might have been, see, if someone comes and tells him, you know, this was חלב, he brings a חטאת, but if someone comes and says, you know, this might have been חלב, you don't bring an אשם תלוי. When do you bring an אשם תלוי? When there are two pieces, one is ודאי חלב, one is ודאי שומן, and he ate one of them, and doesn't know which one he ate. Here you bring an אשם. Why? Because here, אקבע איסורא, for sure there was an איסור here. I just don't know if I ate this. You see, the first case is a שאלה לכתחילה, maybe there was no איסור בכלל, maybe it happened to be שומן. But here, where there was definitely an איסור here, that's when you're חייב. So the Rambam says that even though I hold ספיקא דאורייתא מדאורייתא לקולא, you only go לחומרא מדרבנן, but that's only if there's no אקבע איסורא, but if there's אקבע איסורא, the Rambam himself is מודה that ספיקא דאורייתא מן התורה לחומרא. So obviously the Rambam also holds that not in every ספק you go לקולא מדאורייתא. So the שאלה is, why would a ספק ספיקא be mutar? The first ספק is assur, according to the Rashba אדעתא, according to the Rambam certain times. So one ספק is assur. Now you have a ספק within that ספק, it should also be assur! So there is a teshuvah in the Rashba where the Rashba

says that the reason ספק ספיקא is mutar is because a ספק ספיקא is like rov. We have a כלל אזלינן בתר רובא. We follow the majority. If you have, let's say, 10 pieces of meat here, nine kosher, one treif, and one rolled away and you picked it up, now you don't know whether the kosher came or the treifah came. So we say since the majority over there are kosher, this is kosher. We go בתר רוב. Or ביטול רוב, let's say, when you have a piece of treifah meat falls into a few pieces of kasher, and you can't recognize, don't know, you're allowed to eat them. Ah, you might be eating the treifah. Okay, some say you have to throw away one, you can't eat them together, different כללים. But the idea that it's בטל, we call, because, because we go בתר רוב. So he says the din of a ספק ספיקא is the same concept as rov. We'll explain that in a second. And he says the כלל is that if you have the idea of a rov that indicates one direction, and the chazakah indicates another direction, the כלל is רובא וחזקה רובא עדיף. Rov is stronger. It's even stronger than chazakah. And the Rashba says that a ספק ספיקא is even stronger than a rov. Not only is it like rov which is stronger than a חזקה, and it's a din that we have to follow the majority, safek sfeika is even stronger than רוב. The Shev Shemaata explains, what does that mean? The concept, according to this pshat, the concept of a safek sfeika is that רוב סברות להיתר. Just like you have the majority of objects, and if the majority is mutar, you say whatever, when you don't know, it's mutar. Or when you have the majority of cases, let's say you don't know how something happened, and the majority of cases are a certain way, להיתר, you say it's mutar even though this might be the asur. The same thing when you have majority of sevarot. And the logic is like this: When you have a ספק, you don't know, this is like this or like that. That makes it 50-50. Now when you have, in this ספק you have another ספק, that cuts that second, that that ספק which is the 50% of the bad side, cuts that in half, that the half of that is kasher, so to speak. So you have 75 versus 25. So it's רוב. So it's רוב סברות להיתר. And that's the, that's why safek sfeika is mutar. That's what the Shev Shemaata explains. So why is a double ספק מותר? Because a ספק means it's a sevara, maybe like this, maybe like that. Then you have another sevara within this sevara, so it's a majority of sevarot, so we have to follow the majority. Why is it better than a רוב? He says it's because the Rashba uses the expression it's better than a רוב. He said, \"I'll tell you why. Because by רוב, the the מיעוט is still here. The minority is still here. Just there is a majority. When you have רוב סברות, the minority isn't even here, because the סברות that say this way don't agree with the סברות that say the other way.\" I'll give you an, here's an example: Example of רוב, even though there there's a מחלוקת actually whether we say it, because it's a case of ממון, by ממון there's argument whether we say, but the, but the example happens to be a good example. A guy came to somebody and he bought from him an ox. Brought it home, started working with it, ah, ווילדער אקס, it's wild, it it's a נגחן, it it's goring, you can't use it. Comes back to the owner, he says, \"What you sold me?\" The guy, he answers, \"I thought you're buying it to שחט, לשחיטה, not לרדיא, not to work with.\" He says, \"No, I bought it to work with.\" He says, \"No, I sold it to you לשחיטה, I thought לשחיטה.\" But they didn't make anything up. So the Gemara there says, what happens, we have to look, one opinion, another opinion says we don't follow rov, one opinion says, \"Let's see, what do most people do? If most people buy for work, then the guy who bought it is right, and he has to give him back the money. If most people buy for shechitah, then the other guy is right.\" The other opinion says because it happens to be ממון, אין הולכין בממון אחר הרוב, we don't follow, but, but the logic of rov is there. This is a general, a typical case of rov. In this case, the rov admits that there is a miut. Even though we say that 75% of the people buy it to work with, but there are 25% of the people who buy it lishchitah. So even though there is a rov on one side, the rov agrees to the other, which is, there is definitely a miut. Which, by the way, is the reason for another opinion, why says that we don't follow a rov by miut, you know why? Because you have, you combine the, by by ממון, I mean, you combine the miut with the חזקת ממון. He's coming to him say, \"Give me back my money.\" So this guy has a chazakah, he has the money, so if you combine that chazakah together with the miut, it's stronger than a rov. But this is just, but the bottom line is here we have a rov where the miut also exists. But when you have רוב סברות, there is no miut. If you accept a, if I have a sevara that this is this way, that sevara doesn't say that the other sevara is right. Each sevara holds I'm right. If you look from outside, we say, okay, you have so many sevarot like this, so many sevarot like that. Like you have a בית דין and you have 71 people, and the majority says one way, the other, the rest doesn't. So as far as people are concerned, yeah, there is a majority, there is a minority. But as far as sevarot are concerned, the people with these sevarot don't accept those sevarot. They say your sevarot don't make sense, they're not true, they're not a sevara. And if we follow the rov, that means that those fall off. So a rov which is רוב סברות is like, I mean a ספק ספיקא which is רוב סברות להיתר has a din like rov, and that's the reason we follow, we say by ספק ספיקא it's mutar. That's one way to explain the reason of ספק ספיקא. Then there's another way to explain the reason of ספק ספיקא, and that is not because of din of rov, is because it's, we call it a ספק החלוש. It's a weak safek.

When is the din that when you have a safek you have to make it asur? If the safek is a strong safek. If the safek has a weakness in it, then that's not called a safek that you would rely on in dinim of safek. It's not because of the concept of rov that makes the majority, it's just a din in הלכות ספק. When is there a safek that because of the safek you have to be machmir? When it's a strong safek. But a safek which is weak, we don't do it. This is another way of and this is could be the pshat in the Rashba also. When the Rashba says it's like rov, so the Shev Shema'tata explains it means rov sevarot, you could say it's like the din of, just like by rov we say we follow the heter, if the safek is a weak safek, we follow the heter. Because the safek which is the side of the issur, say 50%, this half is maybe mutar, maybe asur. When so normally we'd say safek, because there is a side 50% asur, it's asur. If that 50% is weak, not because it's rov, stam it's a weak safek, it's not enough to make it asur. One of the differences between these two sides will be that idea whether a safek, a ספק ספיקא משם אחד is a safek sfeika or one safek. A safek sfeika from one שם, like שם אונס חד הוא, the אונס, it's רוב סברות. It is רוב סברות להיתר. The fact is that we do have the majority of סברות להיתר. Like in our case, 50% maybe it happened, maybe the guy forced her, maybe the guy didn't force her. Then even if the guy didn't force her, there's still a סברא that it's מותר. So you have רוב סברות. So if it's רוב סברות להיתר, who cares it's from one name? It's still רוב סברות להיתר. So if the whole מושג, whole concept of ספק ספיקא, why is it מותר based on the concept of רוב, then even if it's שם אחד it should be considered a ספק ספיקא. If you say a different סברא, it's a דין in the הלכה of ספק that this side becomes weak. Now here, this side did not become weak, because the second ספק is still within the same ספק, it's all maybe it's אונס. So we're back to in other words, this is a דין in ספק in the name of ספק. So סוף כל סוף we're stuck with a שאלה אונס or רצון? So it's still called one ספק. That's if you look if it's a weak ספק, it's not a weak ספק. But if you look פשוט technically if it's a majority of סברות, this still should be a ספק ספיקא. Now this

could be the explanation in the מחלוקת between Tosafot and the Rambam. We said Tosafot learns שם אונס חד הוא, and therefore he says which means he says that if it's a ספק ספיקא from one name, it's not a ספק ספיקא. The Rambam we said obviously holds that even if it's from one name, holds that it is called a ספק ספיקא. This is the מחלוקת, and the מחלוקת is: what is the reason behind ספק ספיקא? The Rambam holds the reason behind safek sfeika is because it's a a rov, and רוב סברות in this case is also, and Tosafos says it's not because of rov, it's because it's ספק החלוש and therefore, in this case, it's called one safek and therefore it is not a safek sfeika. Based on this, we could go to answer the second kushya also: why is that a ספק ספיקא המתהפך? What is the reason why is the din of a safek sfeika only if it could be reversed? Why does that mean so? What's wrong if it can't be reversed? Now, one of the expressions it says in sefarim is that when you're going to come and say, \"You know, this must be mutar. Why must it be mutar? Because I have a safek sfeika.\" Someone turn around to you and say, \"You're starting from that side, you have a safek sfeika. Who told you to start from that side? Start from this side, you only have one safek.\" That's the reason why if it's not if it's not a a מתהפך, it's not who said that it's a safek sfeika? הלשון is עד דאתה, עד דאתה מתחיל מצד זה, תתחיל מצד זה, start from that side. But be'emet is lav davka that that's the reason. You could give a different reason why a ספק ספיקא המתהפך is no good, not called a safek sfeika. And the two reasons, this one and the other one, will be based on the two peshatim in safek sfeika. Because מתהפך helps to a rov, because if it's not מתהפך, then it's not a rov anymore? Oh. If you hold safek sfeika is מטעם רוב, then why do we need מתהפך? Because otherwise it's not rov. Not because who told you to start this side or that side, that's not a like I caught you! It's not, like I say, it's not rov. I'll tell you why it's not rov, I'll explain it to you. You have two sfeikot. Isn't each safek a separate, independent safek? Why is it rov? Why mix the two? You have one safek of one thing, one safek of another thing. That's not a safek sfeika. Give you an example. Most poskim hold ספק אחד בגוף, ספק אחד בתערובות is not called a ספק ספיקא. Let me explain what I mean. If you have a ספק in the thing itself and a ספק in a mixture, it's not ספק ספיקא. Lemashal, you have a piece of meat which is a ספק it might be kasher, it might be tereifah. You don't know, you don't know which came from this animal, that animal, and it could be it's a piece of tereifah meat. That's a ספק. Now this piece of meat got mixed in with other with another piece. Not in three, not in in a rov. This got mixed with another piece of meat. So why, so lichorah, we could say here it's a ספק ספיקא. If we take one piece of meat: first of all, maybe it's not that, not that piece of meat. Even if it's that piece of meat, maybe it happens to be kasher. Is that called a ספק ספיקא? Because the two ספיקות don't mix, they have nothing to do with each other. A ספק בכלל makes something 50, 50% kasher, 50% tereifah. You have two ספיקות and each one is 50/50. It's not like one makes the other one weaker. What's the mixture between, why is it weaker? We have a ספק, did this come from the tereifah meat or not? The fact that it got mixed with another makes that ספק, makes that ספק different? Makes that ספק a lesser ספק? Or the same thing here, we don't know if it's this piece of meat or not. What does that got to do, that's a ספק. Is that a weaker ספק, maybe it's the tereifah one, because it may be that that meat happened to be kasher? Each ספק is independent, and what should you do? It should be not a ספק ספיקא. And that's like in the din, most poskim hold. ספק אחד בגוף, ספק אחד בתערובות, it's a ספק on the thing, and the other ספק is in the mixture, here it's not called a ספק ספיקא. It's still one ספק. You have two ספיקות, but not a ספק... ספק ספיקא means ספק בתוך ספק, it makes it too weak, but it's not a ספק בתוך ספק. So, the same thing here, why would it be considered רוב סברות? In the case that I gave with גוף and תערובות, there's no רוב סברות. There, there's a safek here, a separate sevara, there's a separate... What, רוב סברות? The same thing, if you have a safek sfeika that's not מתהפך, you don't have רוב סברות. They're two sefeikot. One safek is like this, one... If it's מתהפך, that means you're starting from both sides, so each time you have each safek, you have another safek, too. Take our example in the Gemara which is a מתהפך. The case is: ספק תחתיו ספק אינו תחתיו, ספק אונס ספק רצון. When you have the safek, maybe it's באונס, at the same time there is a safek maybe it's תחתיו. So, there is, the sefeikot go together. The same time you're thinking maybe it's, it's not תחתיו, you have at the same time, yeah, and maybe it's אונס. They, they two sefeikot go together. מה שאין כן, if you're going to start from one side, then it's, it's not רוב סברות. So, that is the reason, one way to say, that if you hold safek sfeika is מטעם רוב, it's logical why you need a safek sfeika to be מתהפך, because if it's not מתהפך, you don't have רוב. If you hold the other way, it's not מטעם רוב, it's just ספק הקלוש, then who cares if it's not רוב? Then what's the problem with a safek sfeika if it's not מתהפך? It doesn't have to be רוב, it's not רוב. So, if it's not needed to be רוב, then what's wrong if you can't start the other way? You know what's wrong: because who told you to start this way, start the other way! Start the

other way, you won't have a safek sfeika, but not because it's a problem in the רוב, it's just, I have a kashya! I have a kashya on you! Which, if you want to put it in a different language, different סגנון, according to the first way, a safek sfeika that's not מתהפך is not a safek sfeika. In order for it to have the גדר of a safek sfeika, it has to be מתהפך. Because the whole geder of safek sfeika is rov, and if it's not מתהפך, it's not a safek sfeika. It doesn't have the quality of a safek sfeika. According to the second way, it's not like that. It is a safek sfeika, but the problem is it's a safek sfeika that I have a kashya on, and therefore I can't use it. Not that it's not a safek, it is a safek sfeika. There is a safek sfeika because if you start this side, you have a safek sfeika, because it doesn't have to be rov. So, if you start the other way, you have a weak safek, because, the only thing is, who told you to start this way? Start the other way. So, it's a safek sfeika with a kashya on it, and the kashya is a good kashya, and therefore I can't use it. If you want to use fancy words to it, the first way, if it's not מתהפך it's העדר, and the second way, if it's not מתהפך it's שלילה. What's the difference between העדר and שלילה? העדר means... שלילה is... Huh? No, העדר is missing. Something lacking. Something is not there, it's missing, and שלילה means you're taking it away. You're destroying it. Give an example: at night, it's העדר האור. During the day when you close the shutters, it's שלילת האור. A candle burns out, it's העדר. When you extinguish it, it's שלילה. In other words, העדר means it's not there to begin with, you don't have it. And שלילה means it's there, but there is something that's, something wrong with it, it takes it away. And we find a lot of times, cases where you're missing something in a certain din, if this is the main thrust of the din, then if it's missing, you don't have the din. Sometimes it's not the main thrust, so the din is still there, but because of a certain point, you can't use it. Same thing here,

according to the first way, there is no safek sfeika without it being מתהפך, because the whole concept of safek sfeika is rov, and rov is only if it's מתהפך. According to the second way, it's a safek sfeika, because if you do start this way, you do have a safek sfeika, the only thing is, I have a problem, maybe start the other way, and who says you shouldn't? So, mimela you can't use that safek safeka. What will be the difference between these two sevarot? Sof kol sof, the bottom line is the same: you have to have a ספק ספיקא מתהפך in order to be a safek safeka. The difference would be, one of the differences would be: what happens in a case where you cannot start the other way? See, usually, and many times, the peshat is you should be able to start, but technically you can't. But sometimes the whole safek safeka here requires you to start from one direction, not from the other. I'll give you an example, but before that, the difference would be: if it's not a safek safeka at all without mit'hapech, so who cares that this requires to start one way? But sof kol sof, since it doesn't start the other way, so the two safekot are separate, so there's no safek safeka. But if the problem it is a safek safeka, the problem is I have a kushya, why didn't you start the other way? I have a good terutz: you can't start the other way. Not you can't make a safek safeka, you can't start the other way. See? Oh, I still have to explain myself. ספק ספיקא אינו מתהפך means that you could start from one side, but you just can't go to the second safek. Now I'm saying now what happens if you cannot start lechatchila the other You must start the other way. That's a different type of ספק ספיקא אינו מתהפך. There, according to the second peshat in safek safeka, it wouldn't be a problem. Sometimes you could start with one safek, and because of the situation you can't start you can't bring the second safek in.

Here's an example. This thing is an example of safek safeka. It says if you find after the shechita the wing broken of a chicken. So if you find it before, it's a safek it could be tereifa. Why? Because maybe when it breaks, it punctured the lungs. That's what That's the reason. So it's a safek, we don't know, and obviously you can't see it. If you find after the shechita, so you have a safek: did it happen before the shechita, did it happen after the shechita? Maybe take it broke, but it broke afterwards. So here like this: if you're going to start like this: maybe it broke after the shechita. Even if it broke before the shechita, maybe it didn't puncture the lung. Now start the other way: maybe, let's say, did it puncture the lung or did it not puncture the lung? No, if you're going to start we start like this: maybe it broke before maybe it broke before, maybe it broke after. Even if it broke before, maybe it didn't puncture. Now let's start the other way: did did it break before, or did it break after? Did it puncture or not puncture? Even Even if you did, what are you going to say? Even if it punctured the lung, but that's not a safek because afterwards, it's puncturing, not puncturing is the same thing. There's no such thing as puncturing afterwards. So it's not a It doesn't make a safek in it. It's nothing. So you could start that side, but it's not mit'hapech. But what happens if you can't start the other way? I'll go back go to our case. You can't start the other way. Our case is like this: Huh? No, that one is not mit'hapech, so you can't use it. Huh? So you can't use that safek safeka, because it's not mit'hapech. I want to say in a case where it's not mit'hapech, but you can't start the other way, then it's okay according to the second way only. I'll give you an example, and I want to say this is our case. Our case is: maybe it's muktze, maybe zenut. Even if it's zenut, maybe it's be'oness. Let's say let's use this Let's use באונס. Start the other way: maybe it was maybe this זנות was באונס, maybe ברצון. Who told you it was זנות בכלל? In order to start with that, you gotta first say that it was זנות. So you gotta first think, maybe it was זנות, maybe it was muktzeh. You cannot start you must start with this safek. You can't start by coming over and saying, maybe it was באונס, maybe ברצון. Who says? Who Who says בכלל it was? Okay, so let's think. So here where you have to start thinking first, was it זנות or was it not? So it's not מתהפך, it's true, because if you're going to start the other way, was it זנות באונס or was it זנות ברצון, you can't go further. But you can't start the other way. You can't start, was it זנות באונס You must first have established it was זנות. So you gotta first discuss, was it זנות or not. So here it's not מתהפך, but it can't start the other way. So if you're going to learn that if it's not מתהפך, you don't have a safek sfeika, so in this case, too, even though you can't start the other way, but sof kol sof it's not a safek sfeika. If it's not a safek sfeika, then you can't use it. But if you're going to say that the reason is not It is a safek sfeika, and just you have a problem, the problem is why start this side, start the other side, I have an answer: I can't start the other side, because you must first start talking if it's a זנות or not. And in this case, it's still a safek sfeika. Now, so in other words, if we hold that the reason of safek sfeika is not the rov, but the other way, then it is a safek sfeika. We said before that Tosafot holds שם אונס אחד, that if it's from one name, it's called one safek. And we said why does Tosafot hold like that? Then in a case where it can't start the other way, it doesn't have to be מתהפך. That's exactly what Tosafot does. That's why Tosafot asked the kashya. Tosafot asked the kashya here, it's not the it it's a safek sfeika, and we asked a kashya on Tosafot: what do you mean it's a safek sfeika? But it's not מתהפך!

According to Tosafot, it doesn't have to be מתהפך in this case. And it has a din of ספק ספיקא. Then he has a different terutz why it's not, because מכת עץ is not a ספק, something else, because she would have said it. But in the logic Tosafos learned, this would have been a ספק ספיקא. This is a ספק ספיקא. Ai, it's not מתהפך, because it can't be מתהפך, because you cannot start the other way. So לפי זה it'll come out, if this is true, that the Rambam who holds that by ספק ספיקא משם אחד it's still called a ספק ספיקא, so the Rambam will hold that in this case it also has to be מתהפך. Now, I don't know if it's so or not, that we get, but I'm just saying it'll come out that these two things are talui one in the other. The only thing, the only thing is it seems like the Tosafos Yeshanim will not agree to that, because in the case of the Tosafos Yeshanim, it's also a case where you cannot start the other way. What's there? The case is like this: ספק is he בקי, or he says