Friday, April 1, 2011

Tazria - Chazakah in tzara'as, when can we assume that things have not changed?

The passuk says at the beginning of this week’s sedrah;
וְרָאָה הַכֹּהֵן אֶת הַנֶּגַע בְּעוֹר הַבָּשָׂר וְשֵׂעָר בַּנֶּגַע הָפַךְ לָבָן וּמַרְאֵה הַנֶּגַע עָמֹק מֵעוֹר בְּשָׂרוֹ נֶגַע צָרַעַת הוּא וְרָאָהוּ הַכֹּהֵן וְטִמֵּא אֹתוֹ
“The cohen will see the disorder in the skin and hair in the disorder has turned white and the appearance of the disorder is deeper than the surrounding skin. It is a plague of tzara’as and the cohen shall see it and declare him tameh.”

If there are a minumum of two white hairs in the white skin area, then the person is declared a metzorah. The hairs have to be of a minimum shiur (length), as discussed in the mishna in Niddah (52b);
שתי שערות האמורות בפרה, ובנגעים, והאמורות בכל מקום כדי לכוף ראשן לעקרן, דברי רבי ישמעאל. רבי אלעזר אומר, כדי לקרוץ בצפרן. רבי עקיבא אומר, כדי שיהו נטלות בזוג.
“The two black hairs that are stated regarding parah adumah, and with tzaraas, and that are stated in any place have to be long enough so that you can bend their top to their base, these are the words of Rebbi Yishmael. Rebbi Elazar says, they have to be long enough to take hold of them with your fingernails. Rebbi Akiva says, they have to be long enough so that they can be pulled with fine hair-tweezers.”

The gemara says (Eruvin 4a and Succah 5b) that all shiurim, such as a kezayis or kedei achilas pras, are a ha’lachah lemoshe misinai (given to Moshe at Har Sinai). Here the tanaim argue concerning which shiur for hair was that was given to Moshe. The gemara concludes that as we do not know which tanna is correct, we always assume the strictest shiur in each situation;
אמר רב חסדא אמר מר עוקבא הלכה כדברי כולן להחמיר
“Rav Chisda said in the name of Mar Ukva, the halacha is like all of them lechumra.”

The Rambam explains (Hilchos Tumas Tzaraas, 2:1) that the shortest measurement for hair in the mishna is that it should be able to be pulled with tweezers;
שיער לבן שהוא סימן טומאה בצרעת אין פחות משתי שערות וכמה יהיה אורכן כדי שיהיו ניטלות בזוג
“White hair which is a siman tumah in tzara’as, cannot be less than 2 hairs. And how long do they have to be? So that they can be taken with a tweezers.”

If someone has two hairs of this length in a white patch of skin, he is declared a metzora.

Safek Tzara’as
The Mishneh Le’melech in Hilchos Tumas Tzara’as (Perek 2, halacha 1) asks; How can the gemara say that we are machmir for the shortest hair measurement?

If the hairs are long enough to be pulled by tweezers (Rb Akiva’s shiur), but they are not long enough to be grabbed with fingernails or bent in two, then according to Rebbi Yishmael and Rebbi Elazar, this disorder is not tzaraas. Since we do not know which tanna stated the correct measurement, this is a safek tzaraas, which is tahor. As the mishna says at the beginning of the 5th perek of negaim;
כל ספק נגעים טהור
“Whenever we have a safek in negaim we declare the person to be tahor.”

The Mishneh Le’melech explains that the reason that a safek nega is tahor is because the person who has the nega has a chazakah that he is tahor. This means that before he saw the disorder in his skin, he was definitely not a metzorah. Now that he sees a nega, he remains tahor until we can absolutely prove that he is a metzorah. If there is a safek whether the nega is a tzara’as or not, he remains tahor until proven otherwise.

If so, asks the Mishne Le’melech, how can the gemara say that we are machmir for the shortest measurement of white hair? If we have a safek if the hair is long enough then we should say that the person remains tahor because they have a chezkas taharah?

Different types of doubt
The Mishneh Lemelech answers as follows;
ואפשר לומר דלא שייך לומר אוקי גברא אחזקתיה אלא בספק דמציאות דאמרינן אוקי גברא אחזקתיה אך בודאי נעשה המעשה ומספקא לן מילתא היכי אגמריה רחמנא למשה לא שייך לומר לומר אוקי גברא אחזקתיה והכי אגמריה דאטו מפני חזקתו של זה משתנה מאי דאגמריה רחמנא למשה
“Possibly we can answer that we only say that the person maintains his previous status (chazakah) in a case where we do not know what happened. However, if an action definitely occurred, but we do not know what Hashem told Moshe at Har Sinai, it is not possible to say that the person keeps their original status, and that this is the halachah that Hashem taught Moshe. If we did say this, this would imply that we are changing what Hashem taught Moshe because of this person’s chazakah!”

According to the Mishneh le’Melech, we cannot use chazakah in the case of a sfeika de’dina (case where the halachah is unclear). Doing so would imply that we know that the halacha is such that nothing changes in this case, which means that we have determined the halacha.

Rabbi Shimon Shkop z”l (Shaarei Yosher, shaar 2, perek 9) asks that according to the Mishneh le’Melech, you also ought not to be able to use chazakah in the case of a safek metzios (doubt as to what transpired).

We cannot use chazakah in the case of a sfeika de’dina, as this would imply that we have determined the halacha, which is impossible. If so, we ought not to be able to use chazakah in the case of a safek metizios, because this would mean that we have determined what transpired, which is also impossible?

For example, the gemara says in Chullin (10b);
מנא הא מלתא דאמור רבנן אוקי מילתא אחזקיה אמר רבי שמואל בר נחמני אמר ר' יונתן אמר קרא (ויקרא יד, לח) ויצא הכהן מן הבית אל פתח הבית והסגיר את הבית שבעת ימים דלמא אדנפיק ואתא בצר ליה שיעורא אלא לאו משום דאמרינן אוקי אחזקיה
“From where do we know that we can rely on things not having changed? Rebbi Shmuel bar Nachmaini said in the name of Rebbi Yonasan, ‘The passuk says (Vayikra 14:38), “The cohen should go out from the house to the entrance to the house and he should lock up the house for seven days.” Maybe, after the cohen left the house the tzara’as shrank and he no longer needs to lock up the house? Rather you see this is because we rely on chazakah to say that the tzara’as did not change.’”

According to the Mishneh Le’melech, we should say that you cannot use chazakah in this case because that would mean that we know that the nega didn’t change, which we don’t. Rather it seems that chazakah means that we just assume that it hasn’t changed. Chazakah does not mean that we know anything definitely, it simply means that we are entitled to act in accordance with a previously determined status until it is proved that things have changed. If so, asks Reb Shimon Shkop z”l, we should also be able to rely on chazakah in the case of a safek in halachah, because here we also have no proof that anything has changed?

It would seem that the explanation of the Mishneh Le’melech is as follows;

Chazakah relates to physical phenomena. This means that the Torah said that if we have measured something, then we can continue to rely on our measurement without having to remeasure the thing every time that we want to rely on our measurement. If we had to remeasure the thing every time we wanted to rely on our measurement, this would be very inconvenient. For example, if a cohen measures a nega habayis, he can exit the house and declare it tameh even although the nega may have shrunk in the meantime. We assume that a mikvah remains at 40 se’ah, we assume that a person who has sent a get is still alive, and so on, until it is proven otherwise.

However, in a case where we have a safek in halachah, we cannot rely on chazakah. Chazakah only says that we do not need to remeasure things, but it can never be better than if we were watching something the whole time. Even if we were watching the hair the whole time, we would still not know whether or not the hair is tzaraas or not.

In other words, in the case of a safek in halacha, we are not considering a change in physical circumstances, we are considering what the halacha is. As we do not know the halacha, there is no way to clarify our doubt. Therefore anything whose status depends on the doubt also becomes a safek.

We do not know if the white hair which is only long enough to be taken with a tweezers is tzara’as or not because we do not know if this is a shiur for tzara’as. Our doubt does not relate to a physical object that we measured previously and that may have changed, rather our doubt relates to the halachah for the shiur of hair. There is no way to determine this, and if we paskened that the person was tahor that would mean that we are saying we know what Hashem told Moshe at Sinai, which we don’t. Therefore, as a consequence of the doubt concerning the hair, the person becomes a safek metzorah.


Barzilai said...

So why are we someich on chazakos like mikva shenimdad, or chezkas eishes ish by safek karov lah? It's not an issue of remeasuring, it's a question what the metzius was.

Barzilai said...

I forgot my more important he'ara- nice job writing a serious piece every week.

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