Monday, September 10, 2007

Kesubos 9a - 2 Hearos on Sfek Sfeika

1. In the previous post I mentioned Tosafos question that the safeik of mukas eitz should count to turn the safeik by eishes kohen and less than 3yrs, into a sfek sfeika. R' Shlomo Eiger in his comments on sfek sfeika (y.d. 110) proves from Tosafos that even a sfek sfeika that is not "mis'hafech" - cannot be switched around, would still qualify as a sfek sfeika. The safeik of mukas eitz or through relations with a man, can only be posed prior to the safeik of o'nes or ratzon, but if we begin with the safeik of o'nes or ratzon, we can't entertain anymore the possibility of mukas eitz - yet Tosafos asks that it is a sfek sfeika, clearly implying that it does not have to be "mishafech" to be a sfek sfeika.
2. Tosafos 9b asks that we should have a sfek sfeika to allow her to collect her kesuba, safek if he is correct regarding pesach pasuach (because at this stage we are thinking that he would not be believed to assur her, indicating that we are not convinced that he knows what he is talking about), and safeik o'nes safek ratzon. Tosafos answers that it does not qualify as sfek sfeika because the safeik of o'nes would only be an argument to give her a kesuba if the o'nes occurred after the marriage, but if the o'nes occured prior to the marriage, she would still not be entitled to a kesuba. Some achronim explain that what Tosafos actually means to say is that we can create a sfek sfeika working against her, safeik maybe she was mezaneh b'ratzon, and even if it was o'nes she was mezaneh prior to marriage. Since we have contradictory sfek sfeikos, we can't use the logic of sfek sfeika to allow her to collect her kesubah.

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