1) KILLING ALL OF THE ANIMALS IN THE HERD
QUESTION: The Mishnah (70b) discusses the law in a case in which an ox that was sentenced to death became mixed with a group of animals that were set aside as Korbanos. The Mishnah states that "they all must die." The Gemara explains that an animal is an item that is intrinsically significant ("Chashuv") and therefore is not Batel in a mixture.
The Gemara presents a similar ruling in a case of a ring used for Avodah Zarah that became mixed with other, permitted rings. All of the rings in the mixture become prohibited. Rav, however, rules that if one of the rings in the mixture falls into the sea, the rest of the rings become permitted. The reasoning for this is that all of the rings in the mixture are now only a "Safek Isur" (since it is possible that the ring that fell into the sea was the ring of Avodah Zarah), and a "Safek Isur" is Batel in the mixture, even if it is a Davar Chashuv.
The Acharonim ask that Rav's ruling seems to contradict the Mishnah. The Mishnah (70b) says that all of the animals must be put to death. Why must they all be put to death? Once the first animal is killed, all of the others become a "Safek Isur" which is Batel in the mixture, and thus they should be permitted!
ANSWER: The CHIDUSHEI HA'RIM answers that in the case of Rav, there was never a ruling that all of the rings are intrinsically forbidden. The reason why one may not use any of them is that he might end up using the forbidden one; the status of the mixture remains, however, as Heter mixed with Isur. Therefore, if one ring falls away, the status of the mixture becomes Heter with a Safek Isur mixed with it, in which case the Heter of Bitul applies.
In the case of the Mishnah, the prohibited item that became mixed with permitted items is an animal that is Chayav Sekilah (see Sanhedrin 80a). Accordingly, the verdict of Sekilah must be applied to all of them. We cannot issue a ruling to permit all of the other animals in the herd through Bitul by removing (i.e. killing) one of them, because doing so would constitute deliberately causing an Isur to become annulled, and it is forbidden to deliberately cause an Isur to become annulled ("Ein Mevatlin Isur l'Chatchilah"). Therefore, the ruling is that all of them must be killed, and this ruling cannot be altered after one of the animals has been killed (and the others left in the herd are all only a Safek Isur). The verdict of Beis Din that all of them are Chayav Sekilah must be fulfilled. This is why the Mishnah does not contradict the ruling of Rav. (Mordechai Zvi Dicker)
2) A "SFEK SFEIKA" IN THE CASE OF AN "ISUR" THAT IS NOT "BATEL"
QUESTION: The Gemara discusses the question of whether a secondary mixture (a Sfek Sfeika) with an item of Isur which normally is not Batel in a large amount of Heter is permitted or not. The Gemara suggests that this is the subject of a Machlokes Tana'im in a Beraisa. The Beraisa discusses a case of Rimonei Badan (one of the six items listed earlier (72b) which are not Batel even in a large amount of Heter) of Orlah or Terumah which fell into ten thousand permitted Rimonim, and then one Rimon from that mixture fell into another group of ten thousand permitted Rimonim. Rebbi Yehudah says that all of the mixtures are forbidden, even the second mixture. Rebbi Shimon ben Yehudah says in the name of Rebbi Shimon that only the original mixture (the first ten thousand Rimonim into which the original Isur fell) is prohibited. If, however, one Rimon from that mixture fell into three other permitted Rimonim, and then one Rimon fell from those four into another group of Rimonim, the third group is permitted because of a Sfek Sfeika: perhaps the one that fell from the ten thousand was not the Isur, and even if it was, perhaps the one that fell from the second group was not the Isur.
Why does Rebbi Shimon need to mention a third step of one Rimon that falls from the second group of Rimonim? He still could teach his law of Sfek Sfeika in the case in which one Rimon fell out of the first group into a second group; each Rimon in that second group is permitted because of a Sfek Sfeika!
(a) TOSFOS (DH Piresh) and the ROSH (Chulin 7:37) explain that a third step is mentioned in order to show that there is a difference between the third group and the second group. The three Rimonim in the second group may not be eaten all at once, but only one at a time. The Rimonim in the third group, on the other hand, may be eaten all at once. The reason for this difference is that the second mixture is permitted because of a Sfek Sfeika that perhaps the one that fell from the ten thousand was not the Isur, and even if it was, perhaps the one that one is eating now is not the Isur. The second Safek of this Sfek Sfeika will not exist if one eats all of the Rimonim in the second group at once, because one definitely will be eating the Rimon that fell from the first mixture (which has only one Safek). The Rimonim in the third mixture, however, may be eaten all at once, because it has a different Sfek Sfeika: perhaps the one that fell from the ten thousand was not the Isur, and even if it was, perhaps the one that fell from the second group was not the Isur. Thus, there are two Sfeikos that say that the Rimon that fell into the third mixture is not the Rimon of Isur.
(b) RASHI (DH Rebbi Shimon) writes that when one Rimon from the mixture falls into three other permitted Rimonim and then one Rimon from those four falls out, the Sfek Sfeika permits the three remaining Rimonim to be eaten. Rashi clearly requires that one of the Rimonim in the second mixture fall out of the mixture in order to permit the Rimonim of that group to be eaten. Rashi follows his own view expressed in Avodah Zarah (74a), that in order to permit an Isur in a mixture, one must first throw out one of the items. Here, too, in order for the Sfek Sfeika to permit the Rimonim in the second mixture, one of the Rimonim first must be removed from the mixture (BI'UR HA'GRA YD 110:10). This is why Rebbi Shimon mentions the third step.
(c) The RA'AVAD (Hilchos Avodah Zarah 7:10) maintains that only the third mixture is permitted, like the straightforward reading of the Beraisa. He maintains that there is no valid Sfek Sfeika to permit the Rimonim of the second mixture.
(d) The RAMBAM (Hilchos Avodah Zarah 7:10) rules that even the second mixture is permitted. However, elsewhere (Hilchos Ma'achalos Asuros 16:10), when the Rambam discusses a Davar Chashuv which is not Batel b'Rov, he rules that only the third mixture is considered a Sfek Sfeika, as the Ra'avad rules.
The KESEF MISHNEH understands this to be a contradiction in the Rambam. He therefore rules in the Shulchan Aruch (YD 140) that only the third mixture is permitted, and not the second mixture.
The BI'UR HA'GRA (YD 110:10) reconciles the two contradictory rulings of the Rambam as follows. When the Gemara teaches that a ring of Avodah Zarah is not Batel b'Rov, the Gemara does not mean that it is so important that it is not Batel. Rather, it is a stringency, a Chumra, in the laws of Avodah Zarah that an item that is a Safek Avodah Zarah remains Asur. If, however, an additional Safek is involved, such as a second mixture, then the mixture is permitted because a Sfek Sfeika of Avodah Zarah is Mutar; the stringency of "Safek Avodah Zarah Asur" does not extend to a Sfek Sfeika. In contrast, when the reason why an item is not Batel b'Rov is because of its importance (it is a "Davar Chashuv"), the Chachamim decreed that the first mixture into which it falls is Asur because it is considered a Vadai Isur. The Chachamim view it as though the Davar Chashuv stands by itself and is not mixed with the other pieces of Heter. Only when one item from the first mixture falls into a second mixture is there a Safek whether or not the Davar Chashuv is in the second mixture. Since there is only a single Safek, the Davar Chashuv is not Batel b'Rov. Only when one item from the second mixture falls into a third mixture are the items in that mixture permitted, because now it is considered a Sfek Sfeika. Accordingly, with regard to Avodah Zarah, the Rambam rules that a ring of Avodah Zarah (which is not a Davar Chashuv) is Batel in the second mixture. In contrast, in Hilchos Ma'achalos Asuros the Rambam rules that a Davar Chashuv becomes permitted only in a third mixture. (Mordechai Zvi Dicker)
3) "HE FOLLOWS THE VIEW OF REBBI ELIEZER"
QUESTION: The Gemara (74a) asks which Tana does Shmuel follow when he says that an item of Avodah Zarah is not Batel even in a secondary mixture where there is a Sfek Sfeika, but any other item of Isur is Batel in a secondary mixture. The Gemara answers that he follows the view of Rebbi Yehudah (who says that a Sfek Sfeika does not permit a type of Isur that is not Batel b'Rov) with regard to Avodah Zarah, and he follows the view of Rebbi Shimon (who says that a Sfek Sfeika does permit a type of Isur that is not Batel b'Rov) with regard to all other Isurim.
The Gemara then quotes the words of Rebbi Shimon in the Beraisa and asks why the second group into which one of the items from the first group falls must contain three Rimonim. Even if it falls into a group of two Rimonim, there is a Rov of Heter in the mixture! The Gemara answers that when the Beraisa says that one Rimon from the first group falls into "three" Rimonim, it means that it falls into a group of two Rimonim such that after it falls it is now a mixture of three Rimonim.
The Gemara offers an alternative answer and says, "v'Iy Ba'is Eima, Savar Lah k'Rebbi Eliezer...." The straightforward meaning of the Gemara is that it is giving a second answer for the question that it asked immediately before (why does the Beraisa say that the Rimon from the first mixture fell into three, and not into two, Rimonim). The Gemara answers that the Beraisa follows the view of Rebbi Eliezer, who maintains that when a prohibited item becomes Batel in a mixture, one is permitted to use only two of the items at a time, but not one item (see Rashi to 77b, DH Ela Shenayim, who explains the reasoning behind this). Therefore, the Beraisa gives a case in which all of the Rimonim in the second mixture will be able to be used (that is, there is an even number of Rimonim after the questionable Rimon falls in), and that is why it says that one Rimon falls into a group of three, and not into a group of two (in which case one Rimon would be left unusable). This is how RASHI undertands the Gemara in his second explanation, which TOSFOS endorses.
Rashi, however, explains that the Gemara is giving an answer to its earlier question of which Tana does Shmuel follow. The Gemara is saying that Shmuel follows the view of Rebbi Eliezer when he says that a Sfek Sfeika of an Isur of Avodah Zarah is Asur, while a Sfek Sfeika of any other Isur is permitted. In Avodah Zarah (49b), Rebbi Eliezer says that when a piece of wood of Avodah Zarah becomes mixed with other wood, and then a piece of that mixture becomes mixed with other wood, the subsequent mixture is prohibited. Rashi says that this is the preferred explanation of the Gemara.
Why does Rashi deviate from the straightforward flow of the Gemara, which clearly implies that this is a second answer to the Gemara's question of why the Beraisa mentions three Rimonim and not two? (See TOSFOS, who asks a number of other questions on Rashi's explanation.)
ANSWER: RAV ZAFRANI shlit'a (in VA'YIZRA YITZCHAK) explains as follows. Rebbi Eliezer's allowance to use two items of the mixture at once, as expressed earlier (74a; see also 77b), was said only in a case in which one item from the mixture has been removed (it fell into the sea or, in the case of animals designated as Korbanos, it was offered as a Korban). The Gemara here is discussing a different case -- the status of the second mixture into which an item from the first mixture fell. Rashi explains that in the first case (when one item fell into the sea), the Heter to use the remaining items is not due to a Sfek Sfeika, but rather because it is assumed that it was the Isur that fell into the sea, and the remaining items are permitted. Since this Heter is based on a leniency, Rebbi Eliezer necessitates using the items in pairs, so that at least one of them will be one that certainly is permitted. In contrast, in the case that the Gemara now discusses, the Heter is due to an ordinary Sfek Sfeika, and thus there is no reason to necessitate using the items in pairs. Therefore, Rashi here explains that the Gemara refers to the view of Rebbi Eliezer in Avodah Zarah, and that the Gemara is addressing the earlier question of which Tana does Shmuel follow.
Tosfos, however, follows the second explanation. Why does Tosfos not explain like Rashi, that there is a difference between the Heter of Rebbi Eliezer earlier and the Heter of Sfek Sfeika here? The answer is that Tosfos understands that also in the earlier case the Heter is based on a Sfek Sfeika: perhaps the Isur fell into the sea, and even if it was not the Isur that fell into the sea, perhaps the item that is being used now is not the item of Isur. Even though the Heter is based on a Sfek Sfeika, Rebbi Eliezer still necessitates using the items in pairs. Therefore, Tosfos understands the Gemara in its most straightforward sense. The Gemara is giving an answer for why the Beraisa mentions three Rimonim and not two, and it is teaching that even in a secondary mixture (which is permitted because of a Sfek Sfeika), the items in the mixture are permitted only when used in pairs.
Rav Zafrani points out that the RASHBA also seems to understand, like Rashi, that the earlier Heter (of a mixture from which one item fell into the sea) is not due to a Sfek Sfeika. The Rashba (in TORAS HA'BAYIS HA'AROCH) rules that when one item from the mixture falls into the sea, all of the remaining items may be eaten at one time. However, if the Heter is based on a Sfek Sfeika, then by eating the entire mixture at one time there is only a single Safek (perhaps the item that fell was the Isur), and the mixture should be prohibited! It must be that the Rashba understands that the Heter is based on a special leniency which allows one to assume that the item that fell out of the mixture was the item of Isur.
The ROSH in Chulin (7:37) quotes the RI who argues with the Rashba and clearly prohibits eating the entire mixture at once. He understands, like Tosfos here, that the Heter in the case of the item that fell into the sea is due to a Sfek Sfeika that perhaps it was the Isur that fell out, and even if it was an item of Heter, perhaps the item that one is eating now is not the item of Isur. Accordingly, one is prohibited to eat all of the items left in the mixture at one time. (Mordechai Zvi Dicker)