Siman 439

If there were nine piles of matzah and one of chametz lying before us, and a mouse came before us, and we saw that it took a loaf from one of the piles and entered a house that had already been searched; and we did not know if it took chametz, and one must return and search the house, or if it took matzah, and one does not need to search; even though the majority is matzah—we do not follow the majority, and he is obligated to search. For anything fixed is considered as half and half, since we saw that the mouse took from the place of the fixed objects. But if the loaf separated from its fixed place, and from there the mouse took it—he does not need to search, for we follow the majority. And this is according to the law of nine shops in Yoreh Deah siman 110, see there. And "fixed" is a decree of the Torah, as is explained there.

In the opinion of our teachers, the authors of the Tosafot (9a, starting with "Hainu"), this is only when he did not nullify, which is a Torah obligation; however, when he nullified, which is a rabbinic obligation, and since it is like half and half—a rabbinic doubt is ruled leniently. And such is the opinion of the Ra'avad in the second chapter, law 9, and so wrote the Tur, see there. And according to this, it appears to me that even if there are nine piles of chametz and one of matzah, when we saw that he took from the fixed location and entered a checked house—it does not require checking when he nullified. For we say kava'u whether for leniency or for stringency, as is explained in Yoreh Deah there.

Our teachers, the authors of the Tosafot, themselves wrote that even without nullification, there is no law of kava’at here at all regarding the requirement for a search when a mouse enters a searched room. It is not similar to the case of nine shops, for there is no presumption of permissibility there. However, in a searched room, there is a presumption of permissibility, and that is the presumption of the search. Therefore, they explained that this law does not concern the search, but rather whether it is permitted to eat this loaf; see there. And according to the Ra'avad and the Tur, and likewise according to the Rambam and other poskim who explained this law regarding the search, it appears to me correct to say that since in a case of kava’at we do not follow the presumption, just as we do not follow proximity. As we explained in Yoreh Deah there from absolute proofs, that the Torah decreed not to follow proximity in a case of kava’at; see there. And so too, we shall not follow the presumption. And it is a decree of the Torah that every case of kava’at is like half-and-half, whether near or far, whether there is a presumption there or there is no presumption there.

The Rambam in the second chapter ruled this law even when he has nullified it, for so it is from the implication of his words, and the entire chapter there deals with when he has nullified it. The Maggid Mishneh wrote the reason in the name of the Ra'ah: since the sages ordained the search for chametz based on a doubt, they were more stringent regarding this doubt than all other doubts of their words, see there. And even though regarding all the doubts in the Gemara, concerning a mouse or a snake and all the laws explained in the previous siman, the Rambam was lenient in a case of doubt, as I wrote there; that is when there is a doubt regarding the law—certainly we follow the lenient view, for the search remains in its place. But in a doubt regarding the matter itself, it is considered as if the search has not yet been performed according to its ordinance. For since the search is regarding the doubt of the matter, whether there is chametz there or not, and there is still this doubt in the essence of the matter—we are stringent in this, which is not the case regarding a doubt in the law (Lechem Mishneh and Mishneh LaMelech ibid.).

The Tur wrote that if the loaf is small—even without nullification one may be lenient. And we say that it ate it based on the reasoning of a double doubt: perhaps it took matzah, and if you should say it was chametz—perhaps it ate it. And even though regarding a mouse entering and a mouse exiting in the previous siman we were not lenient with a small loaf based on this double doubt—namely, perhaps it ate it, and if you should say it did not eat it, perhaps this second mouse removed it—this is because the two doubts are of one type, meaning: there is a doubt whether the chametz remained in the house or not. And what does it matter to me if it did not remain because it ate it, or because it removed it? Ultimately it is one doubt, for so it is explained in the rules of double doubt in Yoreh Deah siman 110. But here, the first doubt is perhaps it is not chametz at all but rather matzah, and if you should say it is chametz—perhaps it ate it, and it is a complete double doubt (Magen Avraham subsection 3).

And know that in the rules of sefek sefeika in Yoreh Deah there, we require that the two doubts come as one. But if they come one after the other – it is not a sefek sefeika, see there. And if so, here they come one after the other, for when the mouse entered the house – there is a doubt as to what it entered with, whether with chametz or with matzah; and there is not yet a doubt here whether it ate it, for it is whole before us. And afterwards the second doubt arose, perhaps it ate it. And this is not a sefek sefeika, for it is not so, for here the matter concerns all the days of Pesach, and upon the arrival of the days of Pesach – both doubts have already taken effect (see Magen Avraham there). And furthermore: for as long as the loaf is in the mouth of the mouse – there is no doubt here. And when was the doubt born to require bedikah? After we did not see it in the mouth of the mouse, and behold then both doubts had already taken effect (ibid.). And besides this, the doubt of eating is a doubt close to certainty, and we join it to a sefek sefeika in all manners (Mekor Chaim subsection 3). For so wrote the Tosafot there (Pesachim 9a) regarding the matter of tumah, where we say sefek sefeika, and they asked: does a doubt of tumah in a private domain not benefit from a sefek sefeika? And they answered that eating is superior to other doubts, for it is a common doubt and close to certainty, see there. (And this is not a complete proof, for there it deals with meat, and the Gemara distinguishes there between meat and bread. And perhaps according to Rava there is no need to distinguish, see there carefully. And be precise and you will find it easy.)

And all this is according to the opinion of the Tur. However, according to the Rambam, who was stringent regarding bedikah even in matters of rabbinic law, one could say that he was stringent even in cases of many doubts; and even with a small loaf—one must return and perform bedikah. And so it is implied from the words of our teacher, the Beit Yosef, that according to the Rambam there is no distinction between a large loaf and a small one (and so wrote the Graz). For the reasoning of the Rambam is that there must be a clear bedikah, as such was the enactment of the sages. (And the Taz, subsection 1, raised a difficulty against the Tur, that if so, even with a large loaf there is a double doubt, perhaps it called to other mice to eat, as the Tosafot wrote in HaMafkid 40a in the name of the Yerushalmi, see there. But this is not a valid comparison, for if they said this regarding the extraction of money, and in a pile of grain where many mice are common—shall we say so regarding one loaf and one mouse, and regarding a matter of prohibition. Examine carefully and you will find it simple.)

And behold, according to the laws that have been explained, if there was here one basket of a mixture of chametz and matzah, and a mouse came and took—we follow the majority. For if the majority is chametz, he must search, and if the majority is matzah, he does not need to search. For as long as the permitted is not recognizable on its own and the forbidden on its own, it is not considered kava. And even though in Yoreh Deah in siman 110 it was explained that if the mixture was of large pieces fit to be served to guests, we apply to it the rabbinic law of kava; nevertheless, here this is not applicable, for regarding mixtures of forbidden items there are other reasons, as is explained there.

Two piles, one of chametz and one of matzah, and two houses are before us, one searched and one that is not searched; and two mice came, this one took chametz and this one took matzah, and it is not known into which house the one that took the chametz entered; and similarly, two searched houses and one pile of chametz, and a mouse came and took it, and it is not known into which house it entered, or if he knew that it entered one of them, and he entered after it and searched and found nothing; or if he searched part of the house and found a loaf – he does not need to return and search. So the Rambam ruled in the second chapter, and the reason: since we are dealing with after bitul – it is a rabbinic doubt and we are lenient. And even though regarding kava’u the Rambam was stringent in a rabbinic doubt, as has been explained, nevertheless, in a matter where it is possible to attribute that there was no prohibition here at all – we are lenient even regarding the search for chametz. For this attribution that I say we find regarding terumah and stains, and therefore here too we attribute that the one with chametz entered the one that is not searched. And in two searched houses – each one attributes it to the other, even though regarding terumah and stains we do not attribute it in such a manner when both are equal in one degree. And in truth, the Tur distinguishes here between if they came to ask at the same time, for then both require searching, and if one after the other they do not require it, like that case of the two paths known in the Shas, see there. And the Rambam does not distinguish in this, and his opinion appears to be that since in each house there is a doubt if the mouse entered here at all, and a doubt of entry does not remove from the certainty of the search, and every doubt of entry regarding the search for chametz in a searched house, and after bitul we attribute leniently, which is not the case in kava’u where it is a certainty of entry – therefore we are stringent even in a doubt. (And even though in the Gemara 10a it is compared to the two paths, the Rambam would explain that it is dealing with when he did not perform bitul. And nevertheless, it requires investigation, who forced him to this? And already the Maggid Mishneh, the Kesef Mishneh, and the Mishneh LaMelech have toiled over his words. And the Mishneh LaMelech brought proof from Ketubot 27, that regarding rabbinic matters we do not judge like the two paths. However, that which he wrote that he is lenient in a doubt of entry – one must say specifically in two houses, for in one house he is stringent, as will be explained in section 12. And the words of the Tur are like the discussion of the Shas. And see Taz subsection 3, and Mekor Chayim, and according to what I have written it settles well. And be precise and you will find it easy.)

The Tur wrote: If one left nine loaves and found ten—he must search for all nine. Similarly, if he left ten and found nine—he must search for all ten. For we say: what he left—was taken, and these are others. And even if he nullified. And that which we say regarding one who left ten and found nine, that he must search for all ten—this is specifically when they are tied together. But if they are not tied together—he only needs to search for the one. Thus far his words, and it implies: that in a case where he left nine and found ten, even if they are not tied together—he must search for all nine. However, the commentators wrote that his intention refers to both of them. (Bach and Maharalach. But the Magen Avraham, subsection 7, wrote according to our words.)

The Rambam, in chapter two, law 7, wrote: If one searched on the night of the fourteenth and left ten loaves and found nine—he must be concerned, and he must search a second time. For a weasel or a mouse certainly dragged it away. Thus far his words. And later in law 12 he wrote regarding one who left nine and found ten—he must search, and he included it in the law of one who left them in this corner and found them in another corner. And it appears clearly from the fact that he divided them into two places that they are not similar to one another; for in the case where he left ten and found nine—he only needs to search for the one that is missing. But regarding the surplus, where he left nine and found ten—we say that they are entirely different ones, as in the case of one who left them in this corner and found them in another corner, and he must search for all of them. And he did not mention "tied together" at all. Our teacher, the Beit Yosef, in section 3, who brought the opinion of the Rambam, also wrote regarding one who left ten and found nine that he must search for all ten; see there. And I do not know why, for if so, the Rambam should not have divided them into two places. Furthermore: for in Beitza (10b) it establishes the case as being "tied together," for then one must search for all of them. But when they are not tied together—he does not need to. And he did not mention "tied together" at all; rather, it is certain that he only needs to search for one. Therefore, according to what I wrote in section 10, that in the case where he left nine and found ten even the Tur admits that he must search for all of them—the Rambam and the Tur do not disagree. And so it appears primary. And there is no difference in these laws between whether he performed bitul or did not perform bitul.

The Rambam wrote: If one placed the chametz in this corner and found it in another corner, or if he placed nine loaves and found ten, or if a mouse came and took the chametz and it is a doubt whether it entered this house or did not enter—in all of these one must search. Thus far his words. And so it is implied in the Gemara: that a doubt regarding a doubt, whether it entered or did not enter, requires searching; see there. But if so, why was he lenient regarding two searched houses where the mouse entered with the chametz into one of them, as I wrote in section 9? And it must be said that he distinguishes between one house and two houses. But it is not understood what the difference is between this and that? Therefore, it seems to me that there as well, what the Rambam wrote—and similarly two searched houses and a pile of chametz, and a mouse came and took it and it is not known to which house it entered, or it is known that it entered one of them, and he entered after it and found nothing, or he searched and found a loaf...—this "and he entered after it" refers also to the first case of two searched houses. But otherwise, it would require searching, just as here in the case of a doubt regarding a doubt, whether it entered or did not enter. And although the commentators did not explain it so, nevertheless it seems to me that this is the essential point (and everything they questioned is answered).