1) PERMITTING A WOMAN WHEN THERE ARE TWO "ROV'S"
QUESTION: In the Mishnah, Rebbi Yosi quotes Rebbi Yochanan ben Nuri who rules that if a girl was raped and the identity of the offender is unknown, and most (Rov) men in the area are not Pesulim, she remains permitted to marry a Kohen. The Gemara says that the Mishnah refers to a case in which there are two Rov's -- most (Rov) of the men in the city are Kesherim, and most (Rov) of the men who travel to the city from outside of the city to on the day of the market are Kesherim. The two Rov's are valid grounds to permit her to marry a Kohen.
RASHI (end of 14b, DH Amar Lei) explains that according to this explanation of the Mishnah, the Mishnah follows the opinion of Rebbi Yehoshua who says that with a single Rov she would not be permitted to a Kohen, but with two Rov's she is permitted.
The Gemara (end of 15a) says that the Halachah follows Rebbi Yosi in this Mishnah. Earlier, however, the Gemara (14a) says that the Halachah follows Raban Gamliel, who says that a woman is believed when she says that she had relations with a person who does not invalidate her to Kehunah. If the Halachah follows the Mishnah here, and the Mishnah here is the view of Rebbi Yehoshua (as Rashi says), how can the Halachah also follow Raban Gamliel who argues with Rebbi Yehoshua?
(a) The Mishnah discusses a case in which the girl makes no claim about who had relations with her, and thus she has no "Ta'anas Bari." The Gemara earlier (14a) says that Raban Gamliel does not permit a woman when she has no "Ta'anas Bari" (even when there are two Sfeikos, such as in the case of "Almanas Isah"). Since the woman is not permitted in the case where she is silent and makes no claim, even according to Raban Gamliel, the two rulings (that the Halachah follows Raban Gamliel and that the Halachah follows the Mishnah here) do not contradict each other.
However, if Raban Gamliel agrees that the woman is not permitted when she makes no claim, why does Rashi write that the Mishnah here follows the view of Rebbi Yehoshua who says that she is permitted when there are two Rov's in her favor? The two Rov's should permit her according to Raban Gamliel as well!
The RASHBA answers that Raban Gamliel maintains that just as two Sfeikos do not permit the woman when she has no "Ta'anas Bari," so, too, two Rov's also do not permit her.
(b) TOSFOS (14b, DH k'Man) explains that we rely on Raban Gamliel only when a Rov supports the woman's claim of "Bari." When the Gemara here rules like Rebbi Yosi, it means that l'Chatchilah we should be stringent to require not just one Rov, but two, as Rebbi Yehoshua rules. The Halachah follows Raban Gamliel only in a situation of b'Di'eved. The Halachah as stated here, on the other hand, is the ruling l'Chatchilah.
(c) The BA'AL HA'ME'OR gives a different explanation of the Gemara. He explains that according to Raban Gamliel, even one Rov should be enough to permit her, and even without a "Ta'anas Bari," because the Rov takes the place of a "Ta'anas Bari" (see the Gemara at the beginning of 16a). Why, then, does the Gemara say that the Mishnah refers to a case in which there are two Rov's (and it follows the opinion of Rebbi Yehoshua)? It should say that the Mishnah refers to a case in which there is a single Rov and it follows the opinion of Raban Gamliel!
The Ba'al ha'Me'or answers that the Gemara understands the Mishnah in the context of the rest of the Mishnayos in this Perek, which discuss a woman who has a "Ta'anas Bari." When she has a "Ta'anas Bari," Raban Gamliel does not require even one Rov. The Mishnah, which explicitly states that she is permitted only when there is a Rov, must therefore follow the view of Rebbi Yehoshua (and is discussing a case in which there are two Rov's). Even though Rav Chiya bar Ashi rules like Rebbi Yosi, we do not rule like Rebbi Yosi because we rule like Raban Gamliel who says that a single Rov is enough when there is no "Ta'anas Bari" and no Rov is needed when there is a "Ta'anas Bari." We rule like Rav Chanan bar Rava who says that the ruling in the Mishnah was a Hora'as Sha'ah that required two Rov's, but normally a single Rov suffices where she has no "Ta'anas Bari." (This is also the way Rabeinu Chananel learns as quoted by Tosfos, DH Man.)
2) THE GROUNDS FOR LENIENCY IN A CASE OF "SAFEK NEFASHOS"
QUESTION: The Gemara discusses a case of "Palga u'Palga" in which the perpetrator cannot be punished because of the principle of "Safek Nefashos l'Hakel." RASHI (DH Safek Nefashos) explains that the basis for this principle is the verse, "v'Hitzilu ha'Edah" (Bamidbar 35:25). The RASHBAM (Bava Basra 50b) also cites this verse as the source for ruling leniently in a case of Safek Nefashos.
Although this verse indeed is used to acquit a person suspected of murder in a case in which there is a possible way to vindicate him, the verse should not be necessary to exempt a person from a Chiyuv Misah in the case of a Safek. In the case of a Safek the reason why the person cannot be punished is simply that Beis Din does not know for certain that he is a murderer! This is the reason for leniency in all cases of Safek Nefashos. Even in cases of monetary matters, Beis Din does not make a person pay money when there is a doubt. Certainly Beis Din may not execute a person when there is a doubt in a case of Dinei Nefashos! Why does Rashi not give this simple reason? (TOSFOS to Bava Basra 50b, DH Safek)
(a) RAV ELCHANAN WASSERMAN, Hy'd, in KOVETZ SHI'URIM (Bava Basra #223) answers that the Rashbam there (and Rashi here) do not mean to say that the person is exempt mi'Safek, out of doubt, merely because Beis Din is unsure whether he deserves punishment. Rather, he is Vadai Patur -- he is definitely exempt, as if there were no Safek, because the Torah says that in a case of doubt in Dinei Nefashos the person is definitely exempt from Misah. This is what the verse, "v'Hitzilu ha'Edah," teaches. (This is similar to the Torah's Gezeiras ha'Kasuv that a Safek Tum'ah in Reshus ha'Rabim is deemed definitely Tahor.)
Why is it necessary for the Torah to give the person a definite exemption from Misah? Even without a definite exemption from Misah, he would be Patur from Misah because of the general principle that a person cannot be executed out of doubt!
Rav Elchanan says that there are several ramifications of whether he is Patur mi'Safek or Patur b'Vadai. In the case of a Shor ha'Niskal, an ox that must be put to death because it killed a person, the rule (based on a Hekesh) is that the ox is put to death only in a situation in which a person would have been put to death had he committed the same act. In a case where there is a Safek whether the Shor needs to be killed, does Beis Din kill it or not? If a person, in a case of a Safek Dinei Nefashos, is exempt from Misah only because Beis Din cannot administer the Chiyuv Misah out of doubt, then Beis Din could kill the Shor out of doubt because -- in contrast to executing an innocent person -- there is no prohibition of murder per se involved in killing an innocent Shor if the Shor is not deserving of death. If, however, the Torah teaches that a person is exempt b'Vadai in a case of Safek Nefashos, the Shor should also be exempt because of the Hekesh.
Another difference whether a person is Patur mi'Safek or Patur b'Vadai is whether the principle of "Kam Lei bid'Rabah Minei" applies in a case of Safek. The principle of "Kam Lei" states that when a person becomes liable for two punishments (such as Misah and a monetary payment) at one time, he receives only the larger, more severe punishment. If a person becomes Chayav to pay money at the same time he becomes Safek Chayav Misah, if his exemption from Misah is only because of a Safek, he remains exempt from paying money because mi'Safek Beis Din cannot make him pay (because perhaps in truth he is really Chayav Misah, which would exempt him from the payment, and thus the person to whom he owes the money must bring proof that the alleged perpetrator is definitely exempt from Misah). A Safek Chiyuv Misah is enough to exempt him from payment. If, however, he is definitely exempt from Misah, then he should have to pay the money because there is no punishment of Misah, not even mi'Safek, to exempt him.
Perhaps Rashi finds it necessary to mention the verse, "v'Hitzilu ha'Edah," here because of the question of Tosfos. Tosfos (DH v'Safek) asks that according to the opinion that holds "Hasra'as Safek Shmah Hasra'ah" -- a Hasra'ah given to a person when what he is about to do is a Safek Aveirah is nevertheless a valid Hasra'ah (to make him liable to punishment) -- the person should be Chayav in this case (since it is clear that a Jew actually was killed, even though the perpetrator was in doubt about who would be killed at the time that he threw the rock).
Rashi may intend to answer this question when he says that since there is a definite exemption of "v'Hitzilu ha'Edah," the Hasra'ah here is not considered a Hasra'ah at all since no Aveirah was done, even according to the opinion that says Hasra'as Safek normally is a valid Hasra'ah.
(b) This approach, however, is problematic. First, this approach does not explain why the Rashbam in Bava Basra needs to mention the verse of "v'Hitzilu ha'Edah" in that Sugya. There it would suffice to say that Beis Din may not punish a person with Misah out of doubt.
Second, in the case of Shor ha'Niskal, why would Beis Din kill the Shor mi'Safek? The owner of the ox has a Chezkas Mamon which should tell Beis Din not to kill the ox mi'Safek, and since it is not killed it should not be prohibited to derive benefit from it. Moreover, even if a man's exemption from Misah is mi'Safek, there is still reason to say that the Hekesh exempts the Shor from Misah in a similar case of Safek, because the Hekesh says that whenever a person is exempt, a Shor is also exempt!
Third, the case of "Kam Lei" also should not be affected by whether the person is exempt mi'Safek or whether he is exempt b'Vadai. According to those who say that one who killed inadvertently (and is thus not Chayav Misah) is nevertheless exempt from monetary payments because of "Kam Lei," why is the Gemara's case of a Safek Chiyuv Misah different from a case of one who killed inadvertently? This case also should be treated like a Safek; although he is definitely Patur from Misah, the very fact that he killed should exempt him from paying!
According to the opinion that one who killed inadvertently is not exempt from paying (because that opinion maintains that "Kam Lei" does not apply when the Aveirah was done b'Shogeg), it is obvious that he should be Chayav to pay even if the Petur from Misah is only mi'Safek because "Kam Lei" exempts a person from paying only when Beis Din applies a punishment of Misah; it does not exempt him from payment if the Chiyuv Misah cannot be applied in practice.
In the case of the Gemara here, the verse of "v'Hitzilu ha'Edah" cannot be applied to exempt a person from Misah according to the opinion that Hasra'as Safek is a valid Hasra'ah. "V'Hitzilu ha'Edah" is only a Petur from punishment when Beis Din is unsure that the person killed someone; it does not make the Aveirah of throwing a rock into a crowd of people any less of an Aveirah if it turns out that it caused someone's death. The Aveirah is the same Aveirah; the perpetrator is just exempt from Misah. Since, in this case, Beis Din knows that his act eventually killed someone, "v'Hitzilu ha'Edah" cannot exempt him from Misah because the Hasra'ah was a valid Hasra'ah according to the opinion that Hasra'as Safek is a valid Hasra'ah!
Rashi in other places makes similar statements concerning the reason why a person is exempt in a case of Safek. Rashi in Yevamos (99b, DH Ein Sofgin) writes that if a Safek Kohen becomes Tamei for a Mes, he does not receive Malkus because the Hasra'ah was a Hasra'as Safek. Why does Rashi there not say that the reason the person is exempt from Malkus is because Beis Din cannot punish a person when it is not known for certain that he committed a sin?
Rashi makes the same statement about Chiyuv Malkus in a number of places in Chulin (23b, end of DH Ela d'Rebbi Yehudah; 80a, DH Hasra'as Safek; 86b, DH she'Eino Sofeg).
Apparently, Rashi learns that the principle that "Safek d'Oraisa l'Chumra" (in a case of a doubt regarding a Torah law one must act stringently), is a rule d'Oraisa, as many other Rishonim explain (see Rashba to Chulin 9b, and Shev Shemaitsa 1:1). (This is in contrast to the view of the Rambam, who maintains that "Safek d'Oraisa l'Chumra" is d'Rabanan.) In a case of a Safek in a monetary case the law does not require that the person pay mi'Safek, because it is not known for certain that he owes money. The same law should apply in a case of Dinei Nefashos when it is not known for certain that the person killed (for example, there is a doubt whether this person killed or another person killed). The person is exempt from Misah because Beis Din does not know for certain that he is guilty. However, when the person committed an act which he knew was an act of a Safek Aveirah, perhaps he is considered to have committed a definite Aveirah; the law that a Safek Aveirah mid'Oraisa is forbidden mid'Oraisa may mean that it has the same status as a definite Aveirah. The Mitzvah in the Torah which tells him not to do an Aveirah when it is Vadai is the same Mitzvah that tells him not to do an Aveirah when it is a Safek. Consequently, he should be punished for the Safek Aveirah that he committed (even though it was a Safek at the time he did the act), since he committed an act which he knew was prohibited by the Torah. This is why Rashi writes that in the case of Malkus, the person is exempt from punishment because of Hasra'as Safek, while in the case of Safek Nefashos (the case of the Gemara here) he is exempt because of the verse, "v'Hitzilu ha'Edah."
One question is left unanswered. Why does Rashi here need to write the new reason of "v'Hitzilu ha'Edah" and it does not suffice to say that the reason is because of Hasra'as Safek? The answer cannot be that there is an opinion that says Hasra'as Safek is not a Hasra'ah, because this type of Hasra'as Safek is not a Hasra'ah according to everyone (even Reish Lakish, who says that a normal case of Hasra'as Safek is a valid Hasra'ah). Why, then, does Rashi give a new reason ("v'Hitzilu") and not the reason of Hasra'as Safek?
It seems that Rashi learns from the wording of the Gemara, "Safek Nefashos l'Hakel," that the Petur here is a specific exemption in the laws of Dinei Nefashos (and does not apply elsewhere, such as to exempt a person in a case of Malkus). Why, though, does the Gemara itself give a new reason to exempt a person from Misah in the case of a Safek Aveirah? Why does the normal reason of Hasra'as Safek, which exempts a person in a case of Malkus, not suffice to exempt him here as well?
Apparently, the reason of Hasra'as Safek cannot exempt a person from Misah because there is a difference in the nature of the Hasra'os for Misah and for Malkus. Rashi in Shevuos (20b, DH v'Azharasei) writes that the witness who gives the Hasra'ah must mention the verse in the Torah which the sinner is about to transgress. When the witness gives Hasra'ah for Misah, does he also need to mention the prohibition in the Torah which prohibits the act that the person is about to commit? The Gemara in Sanhedrin (8b) says that he must mention only what the punishment for the act is; it does not say that he must mention the specific verse in the Torah which prohibits the act. It could be that when it comes to a punishment of Misah, the purpose of the Hasra'ah is only to relate what the punishment is, but not the verse that describes the prohibition. The only reason he must mention the prohibition when he gives Hasra'ah for Malkus is that he needs to show where the punishment of Malkus is written in the Torah for the act that the sinner is about to commit. (The Malkus for every Lo Ta'aseh is derived from "Lo Tachsom." By mentioning the verse of the Lo Ta'aseh that the person is about to commit, one thereby shows that its Malkus is derived from the Lo Ta'aseh of "Lo Tachsom.") Since he must mention the verse of the prohibition in the case of a Lo Ta'aseh, and the Aveirah that the person is doing is only a Safek, the verse (which prohibits a Vadai Aveirah) that he mentions for the Hasra'ah does not refer to the act that the sinner is doing (which is a Safek Aveirah). Hence, it is a Hasra'as Safek and the sinner cannot be punished for it. In contrast, when one gives Hasra'ah for a Chiyuv Misah, in which he does not mention the prohibition in the Torah but only the punishment, it is not a Hasra'as Safek because he will certainly get the punishment if he commits the Aveirah! That is why it needs a separate Petur of "v'Hitzilu ha'Edah."