Thursday, November 02, 2006

Beitza 7b - Safek Davar Sheyesh Lo Matirin

The Gemara says that an egg laid when no rooster is around, and we are not sure if it was laid before yom tov or on yom tov, is mutar misafek (it is only assur if you checked before yom tov and didn't find it). Tosafos explains that even though it is a non-fertilized egg, it is more likely that it was laid by day before yom tov, so you can be lenient (rashi seems to imply the same). The Ran is still bothered that we don't use "rov" to be mevatel by a davar sheyesh lo matirin, so why should we assume it is from before yom tov, even though it is more common. He explains that when there is definite issur present, we don't allow bitul b'rov, but to go after rov and assume that what is more likely to happen actually happened, is followed even by a davar sheyesh lo matirin.
This answers another question. Earlier the gemara implied that it was possible to hold we would be lenient misafek by yesh lo matirin, even though we would not rely on bitul b'rov. In a case where an assur egg falls into 2 kosher eggs they are all assur, even though each one is only a safek if it is the assur one. By definition when we don't allow bitul, we also are machmir misafek! The answer is that certainly a safek created by a mixture which is ischazek issura would be assur without r' ashi. When we thought that safek is more lenient than bitul that is only bec. it is not ischazek issura; whereas bitul is always in a situation when it is ischazek issura. Therefore, even R' Ashi who is mechadesh that safek is assur even when it is not ischazek issura; but if there is a greater chance of it being born before yom tov than on yom tov, we follow the greater chance to be lenient because we follow rov when it is not ischazek issura.

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