i admit in advance that i haven't thought this through to the end, and shouldn't really ask you a question without first analyzing the situation properly, but you are so helpful that i cannot overcome my yetzer horoh to present my thoughts even at this stage.
the mishnah talks about when tumas hatehom cancels the nezirus (soser) and when it does not. it seems to me, however, that this only relates to the question of "soser" but not to the question of the tumah itself which is determined by the ordinary rules (tumas hatehom, safek tumah bireshus harabim, bireshus hayachid, etc.). thus, the nazir is tamei mes but not soser in certain situations (not only here but also with regard to reviis dam beohel etc.). indeed, the beginning of the mishnah uses the words soser and aino soser. however, when the mishna explains (i.e. "keitzad") the mishna uses the terms tamei and tahor and not soser or eino soser. now, i understand that the mishna can mean tamei for nazir purposes and tahor for nazir purposes (although the person is tamei for tumas mes purposes). however, then the mishna justifies its answer by relating to chezkas tamei and chezkas tahor, which are relevant concepts if we are talking about tumah and tahara, but not -it seems to me !
!- if we are talking about setirah. i know that at the end of the day the issue is halacha lemoshe misinai and that the rishonim try to explain the relationship between the logical analysis and the halacha lemoshe misinai. but my question is that i don't understand the relationship between the logical analysis (which relates to tumah and tahara) and the issue at hand (which relates to soser and eino soser). i think that my point applies whether we learn the sugya like tosafos or the rambam. i know the shev shematsa discusses this sugya but i haven't had a chance to look at it yet. actually the fact that the shev shematsa deals with this hints that he views this as a rule of chazaka etc (the subject of his sefer) which is my question -i.e. the jump between actual tumah and tahara to the subject of soser and not soser (even if the person is tamei in the rules of chazaka and tumah).
in any case, if my question makes no sense, i apologize in advance, since as i said i am giving in to my yetzer horoh by submitting this question at this stage of learning the sugya. if the question makes no sense, then please do not post the answer on the web.
thank you.
have a nice day.
dmartin, raanana,eretz yisroel
1) The Gemara here (63a), too, when it cites the Beraisa about the corpse resting to the width of the road, states that for Nazir and for doing Pesach he is Tahor. The word "Tahor" is used, not the phrase "not Soser."
2) On the contrary, the Shev Shmaisa (5:2, DH Ela) says that Tum'as ha'Tehom does not work through Chazakah:
a) The Shev Shmaisa writes that even though the end of the Mishnah states that the reason why the Nazir who went down to the Mikveh to become Tahor from Tum'as Mes and found a corpse sunk at the bottom is Tamei is because of Chezkas Tum'ah. This does not in fact work with the rules of Chazakah.
b) The Shev Shmaisa learns his explanation from the words of Tosfos on 63a, DH Meshuka. Tosfos explains why "Chezkas Tamei is Tamei" -- because when do we learn the Halachah l'Moshe mi'Sinai that Tum'as ha'Tehom is permitted? This is only for a person who did not have a Chazakah of Tum'as Mes.
c) Tosfos explains the last two words of the Mishnah, "she'Raglayim l'Davar." This phrase is very difficult to translate into English, and also difficult to explain in Hebrew. Tosfos writes that it means there is a "great reasoning" ("Ta'am Gadol") that since this Nazir has a Chazakah that he was Tamei, it follows that Tum'as ha'Tehom was not permitted for him.
d) The Shev Shmaisa writes that according to Tosfos it is not working with Chazakah; rather, it is working with logic. The Mishnah stated this Din through a Sevara. We know that the Din of Tumas ha'Tehom is a Halachah said to Moshe Rabeinu on Har Sinai, and is not something that we could have said with our own logic; it is only the Chidush of the Torah that could teach us that if the Tum'ah is unknown then it is not Tamei, and this Chidush itself is stated for a only Nazir and for somebody bringing the Korban Pesach. For all other Tum'os, it makes no difference whether the Tum'ah was revealed or unknown. However, once the Halachah has been stated, we can use our faculties of reason to determine how far the Chidush can reach. Since the whole Din of Tum'as ha'Tehom is a Chidush, it is logical to say that this Chidush was stated only for a person without a Chazakah of being Tamei. But he is not Tamei because of the rules of Chazakah; he is Tamei because when the Torah gives us a Chidush we try to use our logic to limit this Chidush. Here, logic tells us that the Halachah l'Moshe mi'Sinai was stated only for someone who is further away from Tum'ah and does not possess a Chazakah of Tum'ah.
3) Now, to get back to the original question. I do not think we can make a distinction between Soser and Tamei. If the Nazir is Tamei, it automatically follows that he is Soser his Nezirus. But if it is Tum'as ha'Tehom, where the Halachah l'Moshe mi'Sinai says that he is Tahor, then it follows that he is not Soser. That is why the Gemara (63a) states that when he finds the corpse spread along the width of the road, for Nazir and Oseh Pesach he is Tahor, as Tosfos (DH la'Nazir) writes that this refers to Tum'as ha'Tehom.
4) Back to the Shev Shmaisa: This is indeed a Sefer about Chazakos, and the reason he cites our Sugya is because the Teshuvos Maharit (1:82) understands that Tum'as ha'Tehom does depend on Chazakah, and he and derives rules about Chazakah from our Sugya. The Shev Shmaisa disagrees with him and cites proofs that our Sugya is not working through Chazakah, and therefore we cannot derive rules about Chazakah from our Sugya.
5) There appears to be support for Shev Shmaisa from the Shitah Mekubetzes here (end of DH v'Nimtza) who writes that when the Mishnah states "Raglayim l'Davar," this is Lav Davka. It does not literally mean "Raglayim l'Davar," because in reality Tum'as ha'Tehom is a Halachah l'Moshe mi'Sinai. Rather, what the Mishnah means is "Ketzas Ta'am l'Davar" -- there is "some reason for the matter." Since this Nazir has a Chazakah of Tum'as Mes, the Halachah l'Moshe mi'Sinai is not applied to give the Nazir the status of Tahor.
This seems to mean the same as what the Shev Shmaisa writes -- that it is a Sevara. If somebody has a Chazakah of being Tamei we do not apply the Halachah l'Moshe mi'Sinai, which anyway is a Chidush, in order to make him Tahor.
6) The Rambam learns that Tum'as ha'Tehom works through Chazakah:
a) The Shev Shmaisa (5:3) believes very strongly that Tum'as ha'Tehom does not work through Chazakah. He cites a number of proofs for this. However, in Shmaisa 5, chapter 3, he is forced to admit that the Rambam, in Perush ha'Mishnayos to our Mishnah, learns that Tum'as ha'Tehom does operate because of a Chazakah. He cites the words of the Rambam from which one sees clearly that it depends on Chazakah.
b) The Shev Shmaisa (5:3, DH v'Chen) also cites the Rambam in Mishneh Torah, Hilchos Korban Pesach 6:11, where the Rambam says that if we know for sure that someone touched the Tum'ah, then he becomes Tamei even if it is Tum'as ha'Tehom. This is consistent with what the Rambam writes, in Perush ha'Mishnayos, that it works through Chazakah. This is because Chazakah applies only when there is a doubt concerning what happened, but if the Tum'as ha'Tehom was surely touched, no Chazakah can help us avoid the Tum'ah. The above Rambam discusses someone going along the road and finding a corpse that stretches along the width of the road. If it is Tum'as ha'Tehom, the Rambam writes that he is Tahor and may bring the Korban Pesach. The Rambam adds that he can do the Pesach until he knows for sure that he became Tamei through this. In addition, the Rambam writes that the above Din applies only to somebody walking along the road since it is possible that he might not touch the corpse, but if he is riding on an animal or bearing a load he is Tamei because it is impossible that he did not touch, or move, or lean over the Tum'ah. We see that according to the Rambam, the Heter of Tum'as ha'Tehom does not apply if he certainly touched the Tum'ah.
c) Rav Shimon Shkop zt'l, in Sha'arei Yosher 2:20, writes that he is amazed with what the Shev Shmaisa wrote that, according to the Rambam, if he for sure touched it, then Tum'as ha'Tehom is also Metamei. This is because this is not consistent with what the Rambam writes in the next Halachah, in 6:12. There, the Rambam writes that if somebody brought a Korban Pesach with the understanding that he was Tahor and then found out that he was Tamei from Tum'as ha'Tehom, he does not need to bring the Korban Pesach Sheni. He adds that if he found out that he had become Tamei with known Tum'ah, then he must bring the Pesach Sheni.
d) The Sha'arei Yosher writes that it is impossible to argue that in 6:12 the Rambam is discussing a scenario where there is a doubt if he touched Tum'ah, because if it is possible that he did not touch Tum'ah, then even if it was known Tum'ah, he would not bring the Pesach Sheni. The Sha'arei Yosher concludes that we see that the Rambam is also discussing a scenario where he certainly touched Tum'ah, so we learn that Tumas ha'Tehom applies even when he surely touched Tum'ah, unlike what the Shev Shmaisa writes.
Kol Tuv,
Dovid Bloom