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Shiur #05: Resolving a Safek that can be Further Clarified

  • Rav Moshe Taragin
The halakhic system provides an assortment of tools to help decipher uncertainties or sefeikot. Many of these tools, such as rov and chazaka, are mi-de’oraita, while others were introduced by the Chakhamim. Can these tools be employed if an alternate option exists to collect actual factual evidence? This shiur will explore the question of “efshar le-varer,” the scenario of a safek in which an option for further inquiry exists.
The gemara in Chullin (12b) assumes that people who perform shechita are almost always trained to do so. Hence, at least according to the base halakha, meat that is identified as “shechted” (ritually slaughtered) based on physical evidence is assumed to be kosher, even if we do not know the aptitude (and in some cases, even the identity) of the shochet. This is an application of “rov” or reliance upon the halakhic tool of “rov.”
The Rif (Chullin 3b in the pagination of the Rif) applies a condition. We can rely upon this rov – the assumption that most shochetim are trained – only if the shochet in question is unavailable for questioning. If we can identify the shochet and he is local, we must query him about the shechita, rather than relying upon the rov to determine that his shechita was legitimate. If the safek can be further investigated – efshar le-varer – we cannot rely upon a rov.
This idea is reinforced by a gemara in Pesachim (4a), which discusses the case of someone who rents a house proximate to Pesach. May the renter assume that the owner already performed bedikat chametz, or must the renter perform his own? The gemara assumes that if the owner is available, he must be questioned as to whether he performed a bedika. In this instance, we cannot assume that most owners perform bedikat chametz. This reflects the Rif’s opinion that we cannot rely upon a rov assumption for a safek that is efshar le-varer.
Presumably, the logic behind this qualification of rov is based upon a general policy which mandates, when applicable, more strict behavior in resolving a safek. A scenario in which the safek can be further clarified demands stricter behavior and disallows reliance upon an assumption/rov, which, though compelling, is certainly not indisputable. Rov may be employed if we posses no alternative option in clarifying the uncertainty. If, however, the option of further inquiry exists, Halakha may demand a more strict policy, in which rov cannot dictate behavior.
A self-understanding of the efshar le-varer rule may surround how the safek is defined. If information is available, perhaps the situation cannot be deemed a true safek, even if the individual in question (the person who finds the meat or the renter of the home) isn’t currently aware of that information. Perhaps a halakhic safek only exists if no one possesses that information, and not if the information exists but is currently unknown to the individual facing a halakhic decision. Efshar le-varer doesn’t merely impose stricter standards; it redefines the halakhic situation into one that is not considered a safek and is not compatible with halakhic safek-resolution policies.
The question of how to understand the qualification of efshar le-varer may have several interesting nafka minot. Tosafot (Pesachim 4b, s.v. lav) suggest that it may be sufficient to ask a katan whether bedikat chametz was performed, instead of asking the owner of the rented home. Usually katan or minor cannot provide halakhically meaningful evidence, yet Tosafot claim that his testimony may be sufficient to satisfy the demands of efshar le-varer. Evidently, Tosafot maintain that efshar le-varer does not radically alter the definition of the safek; rather, it imposes a demand to not rely upon a rov and to be more diligent in gathering information.  As long as “some” effort was taken – even by gathering the non-halakhic testimony of a katan – those demands have been met. If efshar le-varer redefined the case as a non-safek, disallowing reliance upon a rov and demanding actual evidence, the testimony of a katan would not be acceptable. It is unclear whether Tosafot ultimately adopt this policy, as they raise this logic within a preliminary stage of the gemara, which may not be the gemara’s final conclusion.
A second question surrounds a situation in which theoretical information exists, but no one has actual current access. Tosafot in Beitza (16b) claim that most eggs do not contain blood, and therefore can be eaten without prior checking. Tosafot adopt this position even though the eggs can be inspected, and the situation resembles the spirit of efshar le-varer. In theory, it is possible that this Tosafot does not accept the Rif’s general position about efshar le-varer. However, it is also possible that Tosafot accept the general efshar le-varer requirement, but do not apply it to the situation of eggs. A classic case of efshar le-varer concerns a situation in which someone has information – just not the person facing the safek. In this instance, no one has acquired the information about a particular egg, even though it can be easily accessed through inspection. If the efshar le-varer clause demands more scrupulous measures, since the eggs can be inspected, they should not be consumed based upon rov, even if no one currently has that information. However, if efshar le-varer redefines the situation as a non-safek since someone already knows the halakhic reality, perhaps this case would still be deemed a safek. As if no one has discovered this information, the case is still defined as a halakhic uncertainty.
A third question concerns the ability to rely upon halakhic decision-mechanisms that may be more powerful than a classic rov / assumption. Several gemarot discuss an assumption that reputable fruit sellers (chaverim) have already attended to the teruma and ma’aser obligation before they sell fruit. The gemara never assumes that these sellers must be consulted even if they are available. Tosafot (ibid) claim that this assumption about fruit sellers is overwhelming. As they know that their customers will immediately eat their produce, the sellers are extremely diligent in attending to the teruma responsibilities. In contrast, people who rent out houses are less attendant to the bedikat chametz issue, since the potential issur isn’t immediate. Tosafot assume that strong assumptions can be relied upon even in an instance of efshar le-varer.
Similarly, the Ramban (Milchamot Hashem on the Rif) claims that the assumption that all shochetim are capable is not overwhelming, and thus cannot be relied upon in a situation of efshar le-varer. The Ramban implies that if the rov assumption is, in fact, overwhelming (referred to as mi’ut she-eino matzuy), the rov can resolve the safek even in a situation of efshar le-varer.
Clearly, these two opinions view the efshar le-varer qualification as a demand for stricter halakhic procedures. A classic rov is too risky to be relied upon if alternate options exist. A more overwhelmingly compelling rov, however, may be convincing enough to decide the safek even if alternate options exist. If the situation of efshar le-varer redefined the safek as a non-safek, presumably no rov – no matter how convincing – would be applicable. Once the case is no longer defined as a safek, none of the halakhic principles can be applied.
A final application concerns a safek that can be clarified, but only through significant effort. The classic situations – inquiring of the shochet or the renter, or checking the eggs – are cases in which alternate forms of resolution are straightforward and relatively easy. What if a safek posed efshar le-varer options, but only through significant tircha (effort)? One such example surrounds the aforementioned case of a renter who is uncertain about the chametz status of his rented home. Some Rishonim (see Maharam Chalava) claim that even without the availability of the owner, the safek can be reconciled through the alternate option of actually performing a bedika. Even if the owner is unavailable for questioning. Why should the renter rely upon a rov that most owners deliver their rented houses in an already cleaned state when they can perform their own bedika? Yet other Rishonim reject this option, presumably because this extra bedika would entail significant effort.
Again, this question may stem from the original question as to how to understand the qualification of efshar le-varer. If this is merely a responsibility to act more meticulously, perhaps the existence of any other option renders the case as efshar le-varer. Even if the alternate option entails some exertion, the situation still demands more strict behavior. However, if the option of acquiring alternate evidence renders the case as a non-safek, perhaps we redefine the case only when the information is easily accessible. If the alternate option includes significant complication, perhaps the case isn’t redefined; it remains a safek, which can be resolved through the application of a classic rov.