Tosafos asks why a safek 9 year old should pasul from terumah (if he is pasul and has bi'ah with a bas yisroel or kohenes). We have a chazaka that he is less than 9 and a chazaka that she is kasher, so m'safek his bi'ah should not passul. Tosafos answers that we are speaking in a case where now he is 9 years old, so the chazaka d'hashta destroys the chazaka d'meikara (both on him and her) and creates a safek d'oraysa.
2 points:
1. Where do we find that the chazaka d'hashta overpowers chazaka d'meikara? We always assume that a mikvah with a chazaka d'meikara of kashrus, would pasken that one who was tovel yesterday is tahor even though today it is found to be less than 40 se'ah! I have written down to see sha'ar hayosher (2:4) - something along the lines that when we pasken on him, it is true that chazaka d'meikara is stronger, but when we pasken on her, his chazaka d'meikara doesn't help her, and his chazaka d'hashta ruins her (i don't have the sefer here).
2. Rashash points out that acc. to tosafos if the safek 9 year old would come to beis din before his ninth birthday, we would go with chazaka d'meikara to be machshir her to terumah. It would come out that until he is definitely 9 we will be machshir her temporarily, but after he is definitely 9 when we have a chazaka d'hashta we would passul her! It must be that we go after the time he came to beis din and pasken that if now he is still a safek, we would be machshir her forever.
6 comments:
Isn't it because here it is a chazaka ha'asuya l'hishtanos; he will get older. By mikvah, that doesn't apply.
avrumi, on the contrary, from this tosfos the ברכת אברהם proves that even חזקה העשויה להשתנות is a chazaka, this is another support for the opinion of the שב שמעתתא ש"ג פ"ט against the מהרי"ט
BTW he has a way out of this proof,
Reb avi's Q is also found there and he struggles with it.
Yossie, I understand, and I wrote like that here Daf Notes - Chazakah, but in regards to Avi's question, we can still say that this is why the chazakah d'hashta overrides the m'ikora, since it is not such a strong one.
In other words, if it would still be a safek now, we would use the chazakah even though it is asuyah l'hishtanos, but now that we have a chazakah d'hashta, that overrides and wins.
it is no dimyon to mikvah where the chazakah m'ikora is strong.
Does this make sense?
קען זיין, interesting!
i know very little about chazakos...
We will catch the sugya again iy"h on daf 88a
Post a Comment