Siman 110

The laws of significant items, living creatures, fixed items, and a double doubt; and it contains 136 sections: Just as a creature and a piece worthy of being served to guests are not nullified even in a thousand because of their significance, so too any significant item and living creatures are not nullified. And what is a significant item? It is well known throughout the entire Shas that an item that is counted is not nullified; that is to say, anything that, due to its significance, is counted one by one, and is not sold in bulk by estimation but rather one by one, is not nullified. And only regarding this is there a dispute in the Shas [Yevamot 82a], for one said "anything whose way is to be counted," meaning anything that is sold by count for the most part, even if sometimes it is sold by estimation, nevertheless it is not nullified. And one said "that which its way is to be counted" specifically, meaning that it is always sold by count and it never happens that it is sold by estimation, it is not nullified; but anything that is sometimes sold by estimation, even if for the most part it is sold by count, does not have such significance and is nullified by a majority in a dry-in-dry mixture if it is not a piece worthy of being served to guests.

And this is the opinion of most of the poskim and the Tur, who wrote that the halacha follows R. Yochanan who said: "That which is its way to be counted" we learned, meaning that they never sell it except by count; but things that are sometimes sold by estimation are nullified in a majority. Thus far his words. And so ruled our teacher, the Rema, in section 1, who wrote: And there are those who say that anything of count, meaning that it is its way to be counted always, is not nullified, and so we practice. Thus far his words. And behold, this law is famous in the Shas in several places, and according to this, the words of the Rambam in chapter 16 of Ma'achalot Assurot, law 3, are astonishing, as are the words of our teacher, the Beit Yosef, in section 1, who followed in his path, as will be explained with the help of Heaven:

This is their wording: An important item is forbidden in its own kind in any amount, and they are seven items, and these are they: Perekh walnuts, Badan pomegranates, sealed barrels, beet shoots, cabbage stalks, Greek gourds, and a householder's loaves, etc. Any item that is important to the people of a specific place, such as Perekh walnuts and Badan pomegranates in the Land of Israel in those times, it forbids in any amount according to its importance in that place and at that time; and these were only mentioned because they forbid in any amount in every place, and the same law applies to anything similar to them in other places. Thus far his words. The commentators wrote that his reasoning is that because in the third chapter of Orlah we learned that Rabbi Meir forbids "that which is its way to be counted" as sanctified, meaning it forbids, and the Sages say six items, and Rabbi Akiva says seven, and these are they, etc. And he ruled like the Sages and like Rabbi Akiva. And even though it is proven in the Shas that the halacha is like Rabbi Meir, since the Amoraim argue according to his view, he did not concern himself with it [Kessef Mishneh]. And I am very wondered, for this would be relevant if the Shas said so in one place, but behold, in many places in the Shas it is stated that "an item that is counted" is not nullified, and how is it possible to reject this from the halacha? And furthermore, according to their explanation, that which the Rambam wrote, "but other items, even though it is their way to be counted, are nullified," his intention is that even "that which is its way to be counted" is nullified, and so they explained his words [Shach subsection 9 and so it is implied in the Taz subsection 1]. And according to this, since the main point comes to inform us that even "that which is its way to be counted" is nullified, how did he write plainly "even though it is their way to be counted," which implies everything whose way is to be counted? And furthermore, if so, how did he write that any item that is important in a specific place forbids in any amount? Behold, the Sages only enumerated these, and if it is because an important item is "that which is its way to be counted," behold, according to their words, he rejected this from the halacha [see Kessef Mishneh who was very pressed in this].

In my humble opinion, it appears clear that the Rambam holds that the dispute in the Gemara regarding the view of Rabbi Meir—whether we learned "anything whose way is to be counted" or "that whose way is to be counted"—is to be explained as follows: According to the one who says "anything whose way is to be counted," Rabbi Meir and the sages disagree on the core principle. However, according to the one who says "that whose way is to be counted," they do not disagree at all, for the sages also hold that "that whose way is to be counted" is not nullified. Rather, they say that in their days there were only seven things that were of "that whose way is to be counted" regarding matters of orlah and kilayim of the vineyard, and Rabbi Meir holds there are more than these. There is clear proof for this matter from the Yerushalmi there [halacha 4], which says: Rabbi Yochanan and Rabbi Shimon ben Lakish—one said the words of Rabbi Meir are that ten things sanctify, and one said the words of Rabbi Meir are that all things sanctify. Thus far his words. And in our Talmud, Rabbi Yochanan and Resh Lakish also disagree, as Rabbi Yochanan said "that whose way is to be counted" and Resh Lakish said "anything whose way is to be counted." Behold, it is explicit in the Yerushalmi that the one who holds ten things sanctify is the one who holds "that whose way is to be counted," and even so, only ten things sanctify. According to this, the dispute between Rabbi Meir and the sages is only whether seven things sanctify or ten things, but everyone agrees that "that whose way is to be counted" sanctifies. They disagree in this: that Rabbi Meir holds that the three additional ones are also of "that whose way is to be counted," and the sages hold that only seven are of "that whose way is to be counted," but the three additional ones are not included in this. It turns out that everyone holds that "that whose way is to be counted" is not nullified. And regarding the details of the matter, he ruled like the sages and ruled like the one who holds we learned "that whose way is to be counted." Therefore, he wrote: "But other things, even though their way is to be counted, etc.," meaning "anything whose way is to be counted" is nullified. And for this reason he wrote that in every location, a thing that is important in that location, like Perech walnuts and Badan pomegranates in the Land of Israel—meaning they are of "that whose way is to be counted"—is not nullified. According to this, the Rambam does not disagree with all the poskim. I found support for my words from his commentary on the Mishnah in orlah there, see there [and according to this, the words of the Rema and the words of the Beit Yosef, which are the words of the Rambam, are one and the same according to what we explained, even though they themselves did not understand it so; and examine this].

And behold, according to the words of the Tur and Shulchan Aruch, in any event, only "that which is its way to be counted" is not nullified, but "all that which is its way to be counted" is nullified. If so, a terefah egg that was mixed among kosher ones is nullified by a majority, for so it is stated in the Gemara [Beitzah 4b] that an egg is among "all that which is its way to be counted." And there are some of the great authorities who wish to be stringent like the one who holds that "all that which is its way to be counted" is not nullified, and also an egg and all such cases are not nullified [Bach, and Shach subsection 9, and Taz]. And behold, even though it is also written so in the Sha'arim [section 24], nevertheless they are only individual opinions, and the majority of our teachers ruled like the one who holds "that which is its way to be counted." And the Tur, who cited the opinion of the Ittur who prohibits in the case of an egg, and similarly our teacher, the Beit Yosef, in siman 86 who ruled that an egg is not nullified, it is not due to it being a "thing of count" but rather due to it being a beriyah, for such is the opinion of the Ra'avad that an egg is called a beriyah. However, in siman 100 they wrote that it is not a beriyah, and we have already explained this in siman 86, section 15, see there. And since the entire essence of this prohibition is rabbinic, it appears to me that one who relies on the majority of the poskim has upon what to rely, and especially in a place of some loss [see there Pri Megadim siman 50].

The seven items that were explained, which are nuts of Perekh and pomegranates of Badan—these are the names of places where the nuts and pomegranates were more significant than in other places. And some say that nuts of Perekh are not named after a place, but rather mean nuts whose shells are soft and are crushed [nifrakhin] by hand [Bartenura on the Mishnah in Orlah there]. And sealed barrels; but open ones, their significance is nullified, even regarding wine of idolatry. And some forbid wine of idolatry even in open ones [see Shach, subsection 5]. And some say that specifically large barrels are significant, but small ones, even sealed, have no significance, and one in two is nullified even regarding wine of idolatry, as was written in siman 134 [ibid. subsection 4]. And there is one who disagrees on this and holds that even small and open ones have no nullification regarding wine of idolatry [Pri Chadash, subsection 4]. And stalks of beets are leaves from the ribs of beets [Bartenura]. And some say they are the roots of the beets that are left in the ground so that others will grow in their place [ibid. in Ukzin chapter 1]. And cabbage stalks are the heads of the cabbage from which tangled sinews emerge [ibid.]. And loaves of a homeowner, which are large and significant; but those of a baker are small, and consequently, in a place where the loaves of a baker are large, they are not nullified. And Greek gourd, because there the gourds are good, fenced, and significant. [And that which they ruled according to Rabbi Akiva regarding loaves and not according to the Sages, it can be said simply that in the place of the Sages all the loaves were small and they do not disagree at all; see Kesef Mishneh. And it requires further study, for it can be said as I wrote. And the measure of large and small regarding loaves and barrels, it appears to me that this is according to the common parlance of people, and delve into this.]

And know that regarding what they wrote, that a significant item prohibits its own kind in any amount, the intention is not specifically its own kind, for the same applies to that which is not its own kind. Rather, it is because in that which is not its own kind, you do not find a mixture except in small crumbs, for with large items, can he not recognize and select them? And consequently, this is not a significant item. Similarly, "in any amount" is not literally any amount, for if so, it is not a significant item; rather, it means in any amount of the mixture that could be, even in several thousands, it is prohibited [Shach, subsection 2]. According to this, if a significant item was mixed, a kind with that which is not its own kind, and he crumbled it intentionally in order to nullify it, and it is not nullified, as is written in siman 99, the entire mixture is prohibited. There is no difference between prohibitions of eating and prohibitions of benefit, and in a prohibition of benefit, the entire mixture is also prohibited for benefit [ibid.]. All our teachers agreed that in all prohibitions of benefit, he may sell the mixture to a gentile, excluding the value of the prohibited items within them [ibid.]. This is specifically when there is no concern lest he return and sell it to an Israelite. And if it is effective to cast the benefit into the Dead Sea regarding other prohibitions as with idols, there is a dispute regarding this, for the Ra'avad, of blessed memory, in the Hassagot, chapter 16, permits, and our teachers the Tosafists in Zevachim [73a] prohibit [and see Shach, subsection 2, and in the Levush, Orach Chaim siman 445, and the Magen Avraham there, subsection 6, his opinion is for prohibition, and even to sell to a gentile he does not agree, see there].

That which an important item is not nullified is only by rabbinic decree, like a creature or a piece worthy of being served to guests, and one follows the lenient path in its case of doubt. That is to say, if there is a doubt whether it is an important item or not, one follows the lenient path. This is not a doubt of a lack of knowledge, since importance is not equal for all people; there is one for whom a small thing is important, and there is one for whom even a large thing has no importance, and who can determine the will of the majority of people? Therefore, it is a complete doubt. And so, even if it is certainly an important item and there is a doubt if it fell into the permitted substance, one also follows the lenient path [Pri Megadim, subsection 10]. However, even in this there are doubts where one follows the stringent path, and it will be explained in this siman with the help of Heaven.

It has already been explained in siman 101 that a piece [of meat] fit to be served to guests and a living creature, when they were cut or crushed unintentionally, they are nullified. And so too regarding any significant item the law is such. And so too regarding living creatures, when a forbidden living creature is mixed among many living creatures, they are all forbidden and it is not nullified even in a thousand, for a living creature is significant and is not subject to nullification. The Tur and Shulchan Aruch wrote that if they were slaughtered, their significance is nullified and they are nullified, even if they were slaughtered after the mixture became known and they were forbidden. And specifically when they were slaughtered inadvertently, without the intent for nullification. And one should not ask that there should still be no nullification for this because it is a piece fit to be served to guests and an item that is counted; for granted that regarding "fit to be served to guests" it is not difficult according to what was explained in siman 101, that a lamb in its hide and a chicken in its feathers were not considered a piece fit to be served to guests, but nevertheless it is still an item that is counted. For it can be said that this applies to small living creatures that are not significant after slaughtering to be among items that are counted [see Taz subsection 2, and Shach subsection 13, and Chavat Daat]. And it was already explained in siman 101 that when one from the mixture was crushed, that which was crushed is permitted in any case, see there. And the same law applies when one of them was slaughtered. And if one of them was lost or one of them was eaten, it will be explained later with the help of Heaven in section 56, see there.

It is a settled halacha that anything fixed is considered like half and half, whether for stringency or for leniency [Ketubot 15a]. This is a decree of the Torah, and our Sages, of blessed memory, learned it from the verse, "and he lies in wait for him and rises up against him," as is explained there. The explanation of the matter is as follows: that which the Torah said, "incline after the majority," and we follow the majority, this is when the forbidden item is not recognizable in its place, as the forbidden and the permitted are mixed together; for then it is nullified in the majority, and even according to the Sages if it is not a significant item such as a biryah, or a piece fit for guests, or a living animal, or an important item, in which the Sages were stringent as has been explained. However, when the forbidden item is recognizable in its place and the permitted item is recognizable in its place, but one took from them and it is not known if he took from the forbidden or if he took from the permitted, even if there are a thousand places of permitted and one of forbidden, we do not follow the majority, but rather it is like half and half and is forbidden according to the law of a doubt in a Torah matter, where we follow the stringency. And so too for leniency, if there were a majority of places of forbidden and one of permitted and one took and it is not known from which place he took, we do not follow the majority to judge it as a certain prohibition, but rather as a doubtful prohibition. Therefore, if it was a rabbinic prohibition, we follow the leniency, such as nine heaps of chametz and one of matzah, and they nullified the chametz—for according to the Torah a mere nullification suffices, but according to the Sages it requires searching as is found at the beginning of Pesachim—and they took from one place and it is not known if they took from chametz or from matzah, it is a rabbinic doubt and we follow the leniency and it does not require searching. And so too in any similar case [Pri Chadash, Orach Chaim, siman 439]. And also regarding capital cases it is so, as is found in Ketubot ibid., see there, and see what I wrote in siman 114, section 23.

And this is what the sages taught [ibid.]: Nine shops sell slaughtered meat and one sells nevelah meat, and he bought and does not know from which of them he bought, his doubt is forbidden; but in the case of a find, follow the majority. And the explanation of the matter is that kava is only when it separated before us from the place of establishment, where the doubt arose at the place of establishment; in this case it is like half and half. But if it did not separate before us, but rather meat was found before these shops and it is not known if it is from the kosher ones or from the treif one, we do not judge this with the law of kava, since the doubt did not arise at the place of establishment, and we follow the majority and the meat is permitted. And even if it was found close to the treif shop, nevertheless we follow the majority, for in a case of majority and proximity we follow the majority, even in a case of proven proximity [Bava Batra 23b and see Tosafot ibid.], for even though proximity is also from the Torah, as it is written, "And it shall be that the city closest to the corpse, etc.," nevertheless majority is superior [ibid.].

And there is a great question regarding this, for if so, in a case of kavua where it separated in our presence—where we do not follow the majority—let us follow the proximity. And if this piece that separated in our presence is near a kosher shop, we should permit it by reason of proximity, since there is no majority here that overrides the proximity [Pleiti, subsection 7]. And the answer is: since kavua is superior to a majority, and a majority is superior to proximity, it is an a fortiori argument that kavua is superior to proximity [ibid.]. And if so, in every case we judge it as half and half. However, this is not sufficient, for who is to say that kavua is superior to a majority? The Torah said that in kavua the minority has power equal to the majority, and it is like half and half. And if there truly were half kosher and half treifot, would proximity not decide between them? And a proof for this is from the broken-necked heifer, for the Torah said: "And it shall be that the city closest to the corpse shall bring a broken-necked heifer," and it deals with a case where the two cities are equal in number, as is stated in the Gemara there, and the proximity decides. And if so, the same applies to all matters. And what relevance is there to saying that kavua is superior to a majority? Behold, the kavua gives power to the minority so that it shall be like half and half, and of necessity we must judge this according to the law of half and half, and the proximity shall decide.

Therefore, it appears to me that from the essential law of kava’u we learned that we do not follow proximity in this matter. For since we hold [Bekhorot 18a and Tosafot Eruvin 5b s.v. vesafek] that in matters of Heaven it is impossible to be exact—meaning, any matter where man does not intend to be exact is considered as being by the hands of Heaven [ibid.]—if so, how did the Torah say that regarding kava’u, when it separates in our presence, it is like half and half? For it must be that it is closer to one place than to another since it is impossible to be exact, and the Torah should have commanded that in kava’u we follow the closer one. Rather, it is certain that the Torah decreed that in kava’u we follow neither the majority nor the proximity. And regarding the eglah arufah, where we follow the proximity, it is because there it did not separate in our presence, for the slain person is found in the field and it is like "found," where one follows the majority; therefore the Torah said that when both are equal, we follow the proximity, and this is because there is no kava’u here. But in kava’u, it is always like half and half.

There is a further question regarding this according to the opinion of the Rambam, that a doubt regarding a Torah law is lenient by Torah law: how can one find the law of kava’u by Torah law? For since the Torah said "anything fixed is considered as half and half" and it is a doubt, if so, it should be lenient by Torah law. The answer to this is that the Rambam admits in a case of at-chazak issura, for if not so, you would not find the law of asham talui even regarding one piece from two pieces. From this, all the poskim agreed that the Rambam admits in a case of at-chazak issura, as will be explained in this siman with the help of Heaven. And here too, regarding every kava’u of the Torah, it is a case of at-chazak issura, since the prohibition is fixed in its place [Pri Megadim, subsection 14]. A proof for this is that the Rambam himself, in the eighth chapter of Shegagot where he explained there the laws of asham talui, wrote there that the obligation is because the prohibition is fixed, see there; and all the more so regarding the essence of the law of kava’u. [And one should not raise a difficulty from Kiddushin 73a regarding a shetuki: "What do you say? Perhaps she went to them, and it is kava’u, and 'anything fixed is as half...' etc., and the Torah said a definite mamzer shall not enter, but a doubtful mamzer..." etc., for the primary derivation of the Rambam that a doubt regarding a Torah law is lenient by Torah law is from this passage; if so, we see that regarding kava’u itself we follow the lenient path. For it can be said that there the doubt did not occur during the state of kava’u, and the doubt is after many years when the shetuki comes to marry; rather, we deliberate whether there was a majority or minority of prohibition here, and it is rightly lenient, for now the prohibition is not fixed. This is unlike every fixed prohibition where the doubt is born in the place of its fixedness, which is at-chazak issura; and examine this carefully].

And there is one who is uncertain regarding the law of kavua, whether there is a chazaka for permission in the place of establishment. For example, regarding pure items that touched a place where there is a majority of pure items and a minority of impurity, but they are established in their place, and it is like half and half—whether we establish the pure items on their chazaka of purity, or do we say that surely a majority is superior to a chazaka, and since the Torah nullified the majority in a case of kavua, all the more so the chazaka should be nullified. And similarly, regarding a sefek sefeka in the place of establishment, there is room for uncertainty. For if the sefek sefeka came afterward, such as if it later became mixed, we certainly say sefek sefeka if it is according to the rules of sefek sefeka, as will be explained with the help of Heaven. However, if the sefek sefeka is in the place of establishment—for example, nine shops sell slaughtered meat and one sells a doubtful treifa, and it was separated before us—do we say that since there is a sefek sefeka it is permitted, or perhaps since according to most poskim a majority is superior to a sefek sefeka, or at the very least they are equal, and since the Torah removed the majority in a place of kavua, all the more so it removed the sefek sefeka [Pri Megadim]:

And in my humble opinion, it appears that there is no doubt here according to what I wrote in section 12, that kava is not superior to a majority; there is no superiority in this, rather that in kava the Torah gave power to the minority just as to the majority, and it is like two opposing majorities, and automatically it is like half and half. But the Torah did not say that the power of the majority is completely nullified in kava. And if so, when there is a chazaka for permissibility or a sfeik sefeika where there is no other power against them, we certainly say so. However, according to the opinion of the Rambam that a doubt regarding a Torah law is permitted by Torah law, you will not find the law of kava at all in the sfeik sefeika that we wrote regarding a doubt of terefot, for there is no Torah prohibition here at all, but rather a rabbinic prohibition. Nevertheless, even when the essence of the prohibition is rabbinic, we adjudicate in this the prohibition of kava, and from the nine heaps of matzah in the first chapter of Pesachim there is proof that we so adjudicate, see there, and as I wrote in section 10, unless we distinguish between a certain rabbinic prohibition and a doubt regarding a Torah law, as will be explained in section 52, see there.

There are some among the Rishonim who raised a difficulty: how is it possible to say that everything "fixed" (kavuah) is considered as half-and-half? For the primary principle of following the majority is derived from "incline after the majority," where if two say "pure" and one says "impure," or "liable" and "exempt," or "forbidden" and "permitted," we follow the majority; and yet the Sanhedrin are fixed in their place. They answered that the speech emerging from their mouths is not "fixed," and we are judging their speech and not their persons [Mordechai, chapter 1 of Chullin]. Furthermore, kavuah only applies when there is a doubt from which place it was taken, and regarding this the Torah said that it is as half-and-half; but not when we know from which place it was taken, and here in the Sanhedrin we know that this one says thus and this one says thus, and we properly follow the majority [ibid.]. Furthermore, kavuah is derived from "and he lies in wait for him and rises up against him," and regarding this the Torah said that in the essence of the act of the forbidden and the permitted, or the liability and the exemption, or the impure and the pure, the minority has power equal to the majority. But that which is not in the essence of the act, such as the Sanhedrin who judge the acts, what connection do they have to kavuah? And granted that the fact that we follow the majority is learned from them, this is from the perspective of logic, as is understood; but kavuah, which is a decree of the Torah, you have only its specific novelty regarding the essence of the act and not regarding anything else [it appears to me].

There are further ones from the early authorities who inferred that if "everything fixed is considered as half and half," then all of the Land of Israel should be forbidden for plowing and sowing due to the "strong valley" of the eglah arufah, regarding which it is stated, "it shall not be worked and it shall not be sown," and it is fixed in its place. They answered that "fixed" only applies when the prohibition is known in its place, like the nine shops where we knew the treif shop, but the doubt is from where they took the piece; however, regarding the strong valley, the prohibition is not known to us as to where it is, and "fixed" does not apply to this at all [Pri Chadash subsection 13 in the name of the Rash of Chinon, see there]. And according to this, if we knew its place, that which is sown within it is forbidden, and if they took the produce and it is not known if it is from it or from another place, it is forbidden [ibid.]. However, I do not know of any place where it is explained that the produce sown in a strong valley is forbidden for consumption; is it more stringent than kilayim of seeds, which are permitted for consumption? This requires further study [and see the Pri Chadash].

In a case of kavuah where it separated in our presence, it is forbidden even if the piece is not fit to be honored, for it is a doubt regarding a Torah prohibition. However, the opposite is also true: when it did not separate in our presence, such as when it was found before the shops—as was explained in section 11—we follow the majority, and it is permitted. Even when it is a piece fit to be honored, it is permitted [Beit Yosef and Shach, subsection 16], for regarding a found object we say it certainly separated from the majority. And that which the sages forbade regarding a piece fit to be honored in a mixture, that is because they said an important matter is not subject to nullification; but here, we do not permit it because of nullification, for it is a single entity, and "whatever separates, separates from the majority." Furthermore, regarding an inhabitant of kavuah, they did not follow importance at all, but rather whether it separated in our presence or did not separate in our presence. And even though it will be explained that regarding a rabbinic kavuah prohibition they forbade a piece fit to be honored and any important matter, this is because they were concerned lest one take from the kavuah since the prohibition is not recognizable in its place—which is a rabbinic kavuah, as will be explained with the help of Heaven. But when the prohibition is recognizable in its place—which is a Torah kavuah—they were not concerned lest one take from the kavuah, for we are not dealing with wicked people. And it is not a wonder that a matter would be forbidden in a rabbinic kavuah and permitted in a Torah kavuah, for "go after the reason." Thus wrote the Rishonim, of blessed memory.

Regarding nine shops that sell slaughtered meat and one sells terefah meat, and one took three pieces from three shops, there is one who says that we follow the majority in this, and if they are not pieces worthy of being honored, the prohibition is nullified by the majority, and if they are worthy of being honored, it is not nullified [Pri Megadim]. And seemingly it appears so, for it is known to us that there are certainly two of heter here, and why should the third not be nullified? Is it superior to a certain prohibition? Nevertheless, this does not appear so to me, for each piece that he took, the Torah decreed that it be like a doubtful prohibition, and even with one piece there is a majority for heter, yet the Torah decreed that it be like a doubtful prohibition; and if so, what difference is there to me between one piece and three pieces? However, one could say that the Torah only decreed in a place where, according to a remote reality, it is possible that the piece is prohibited, such as with one piece where it is possible that he took it from the minority; but with three pieces from three shops where it is impossible that all of them are prohibited, the Torah did not decree, and it requires further study. And know that what has been explained, that with a found item one follows the majority and it is permitted, this is according to the essential law; but the sages have already prohibited meat that was hidden from the eye, as is written in siman 63, for they prohibited all meat found in the market. However, if in a place where meat hidden from the eye is permitted according to the details explained there, it is permitted in a case of separation on its own when a person did not take from the fixed location, and in such a case one should uphold this rule that with a found item one follows the majority.

Our teacher, the Rema, wrote in section 3: And that which we say, "anything that separates, separates from the majority," this is only when it did not separate before us; but if it separated before us, or if one sees when the idolater takes it, it is as if he took it from there with his hand. Thus far his words. And it must be understood what he is coming to teach us, for is this not the primary law of kavua—that when it separates before us [it is kavua], and when it does not separate before us, it is not kavua? And what novelty did he innovate for us in this? However, in truth, he has informed us of a great matter in this. For behold, it is common in the mouths of all the poskim that kavua is according to the Torah even if he did not take with his hands from the kavua, but only if it separated before us. And seemingly, since we learned its essence from "and he lies in wait for him and rises up against him," and there he performs an action with his hand; and so it is implied from the plain meaning of the Baraita of the ten shops that we learned: "he took from one of them and does not know from which of them he took," etc. And such is the wording of the Rambam in chapter 8 and the wording of the Shulchan Aruch in section 3. However, we find in the first chapter of Pesachim regarding "a mouse came and took" that we judge this with the law of kavua, see there. Behold, it is explicit that even if he did not take with his hands, we judge this with the law of kavua. And so too from the end of the passage of the nine shops that we learned, "and in the case of a find, follow the majority," it is implied that even without taking with his hand it is kavua; for if it were not so, let it teach us a greater novelty—that even if we saw at the time it separated from the kavua, it is permitted.

However, there are some among the great Rishonim who hold this way, that kavua by Torah law is only when he took it with his hands [the Ran in the chapter "Kol HaBasar" on the sugya of meat that was hidden from the eye, see there]. But if he did not take it with his hands, even if we saw that it was taken from the kavua, it is only kavua by rabbinic law. And in Pesachim regarding the mouse, it is indeed not kavua by Torah law [ibid.]. According to this, it must be said that that which was taught, "and in the case of a find, follow the majority," is because in such a case it is permitted even by rabbinic law. And it is clear that his reasoning is because since kavua is a legal innovation, you have only its innovation, like that verse "and he lay in wait for him," etc., that he performed an action with his hands. But from the words of all our teachers it does not appear so, and they hold that the Torah was not particular about whether he took it with his hand; rather, the main point is because the doubt was born in the place of the fixed status. And this is what our teacher, the Rema, informed us, that if it separated before us or if he sees that a gentile took it, it is as if he took it from there with his hands, thus far his words; meaning to say, that this too is kavua by Torah law [as mentioned above].

And know that we have learned at the beginning of the eighth chapter of Zevachim: All sacrifices in which one of the "sin-offerings destined for death" or a "stoned ox" became mixed, even one in ten thousand, they shall all die. And the Gemara asks: Let them be nullified by the majority? And it answers: Living creatures are significant and are not nullified [73a]. And it says there that to draw one from the mixtures and say "whatever is separated is separated from the majority" is forbidden because it is a case of kaveua, and "anything that is kaveua is considered as half and half." And it asks: Let us force them to move? Meaning, to compel them to scatter, and we shall say "whatever is separated is separated from the majority." And it answers: Because of kaveua, meaning that we decree lest one take from the kaveua. And Rashi and Tosafot agreed there that this is not kaveua according to the Torah, for kaveua according to the Torah is only when the forbidden item is recognizable in its place, like "nine shops," but regarding a forbidden item that was mixed with a permitted item, there is no Torah kaveua in this and it is nullified by the majority; rather, it is a rabbinic kaveua. For anything that the sages said is not nullified due to its significance, such as living creatures, or a piece fit for honoring, or a creature, they gave it the status of kaveua. And so all the poskim agreed.

And our teachers, the authors of the Tosafot, wrote there regarding the challenge, "and let us press them down so they move and we may say they separated from the majority," that the intention is when they did not separate in our presence from the place of permanence; for if they separated in our presence, they are forbidden as if he took them from the place of permanence, see there. And this is based on the foundation that we wrote, that we do not require that he take it by hand, but rather whenever the doubt was born in the place of permanence, it is as if he took them by hand. And even though one could say that since this is only a rabbinic permanence, the sages were not so stringent in this that separation in our presence would be considered taking by hand, nevertheless, it was not pleasing to our teachers to say so. And according to this, it must be said regarding all the laws that will be explained in this siman, that if one of the mixtures was lost, or fell into the sea, or was eaten, it permits the entire mixture, as will be explained with the help of Heaven—this is all when the separation was not in our presence, for in our presence it is like permanence and is like half and half. And more will be explained regarding this with the help of Heaven.

The Rishonim asked: Since we say regarding a rabbinic kavyua that it is a decree lest one take from the kavyua, and they forbade it when one of them separated because of this decree, if so, all the more so regarding a Torah kavyua. How then did they say that in the case of a find one follows the majority? For there should be a decree lest one take from the kavyua. They answered that, on the contrary, regarding a Torah kavyua where the prohibition is recognizable in its place, they did not decree lest one take from the prohibition with his hands, for we are not dealing with wicked people. It is only regarding a rabbinic kavyua where the prohibition is mixed with the permitted that they decreed lest one take from the kavyua, for people do not treat it as strictly, as they might think the prohibition is nullified in the majority of permitted matter. According to this, in all things that are not nullified, such as a biryah, or a piece fit for presentation, or a significant item, or a living creature—when one of these things was mixed into a thousand permitted items and they were all forbidden—even if one of the mixture separated and did not separate before us, and we should have said "whatever separates, separates from the majority," and it is an a fortiori argument from a Torah kavyua, nevertheless, because of the decree lest one take from the kavyua, it is worse than a Torah kavyua. The Rosh, the Tur, and most of our teachers agreed to this, and this is the approach of Ri, the author of the Tosafot. According to this, when one animal that is a suspected derusah was mixed into a herd, there is no permission for the entire herd, and even if one of them separated, it is forbidden.

And there are some of our teachers who do not hold so, and they said that only regarding kodashim did the sages decree lest one take from the kava; but not regarding chullin. And even if we do not distinguish between chullin and kodashim, nevertheless there is no proof from there, for that which they said, "a decree lest one take from the kava," is only regarding living creatures where one desired to permit them by manually suppressing them to separate them—in this, it is well said that if you permit him to separate them manually, he too will take with his hands from the kava. But in a case where he did not separate them manually, but rather they were scattered on their own or by a gentile and not in our presence, and similarly in any mixture where they are not batel even in a thousand, when it separated from the mixture not in our presence, we say "whatever separates, separates from the majority," just as with kava according to the Torah. And this is the system of Rabbeinu Tam and the She'iltot, and the Rashba, of blessed memory, agreed to this [all of this is explained in Tosafot Zevachim at the beginning of page 73].

And this is what the Tur wrote, and this is his wording: And that which we permit when one of them separated from the majority is specifically similar to nine shops where the prohibition is known and recognizable in its place; but living creatures and other significant things that were mixed with the permitted, which are not nullified even in a thousand, even if one of them separated from the majority it is forbidden, for since the prohibition is not recognizable in its place, we fear lest he take from the kava. And the Rashba wrote specifically when he separated them intentionally, but if it separated on its own it is permitted. And my father, the Rosh, of blessed memory, wrote that even if it separated on its own it is also forbidden. Thus far his words. For the Rashba holds like Rabbeinu Tam, that they only stated this decree regarding that which he said that with his hands he causes the separation, and for this he ruled that when he separated them intentionally it is forbidden, but on its own it is permitted. And the Rosh follows the system of Ri, the author of the Tosafot, that in a rabbinic kava they were stringent even in that which separated on its own.

Our teacher, the Beit Yosef, in section 6 ruled like the Rashba, who wrote that pieces of meat and other significant items that were mixed with permitted items are not nullified even in a thousand; even if one separated from the majority after the mixture became known, it is forbidden, provided that he separated it intentionally, but if it separated on its own, it is permitted. Thus far his words. Many wondered about the Tur, for here he brought the dispute between the Rashba and the Rosh, and in any event, even according to the Rashba it is forbidden when he separated it intentionally, so how did he write at the end of siman 57 regarding a clawed animal that was mixed with others that there is a remedy by pressing them so that they move, and "whatever separates, separates from the majority"? See there. For behold, this is forbidden even according to the Rashba, and certainly according to the Rosh, and this is only according to one who distinguishes between consecrated items and non-consecrated items, as I wrote in section 26. And likewise at the end of siman 16 regarding "it and its offspring," he wrote so, that we should press them so that they move. And it is even more wonderous that the Rosh also wrote so in the name of the Bahag in the fifth chapter of Chullin, siman 4, regarding the matter of "it and its offspring," and our teacher, the Beit Yosef, also ruled so above in siman 16, see there.

And all our teachers labored in this matter. There is one who wrote that the Tur did not write this as halacha [Beit Yosef at the end of siman 57, and it requires further study from siman 16, and examine it closely]. And there is one who wrote that the opinion of the Rosh and the Tur is that according to the letter of the law it is permitted, and we do not fear that perhaps he will take from the fixed location, but rather that in this siman they spoke merely as a stringency, that it is proper to be stringent [Bach]. And who does not see this difficulty? And our teacher, the Rema, answered in a different manner, as he wrote in section 6, and this is his wording: And that which is forbidden if he separated them intentionally is specifically where he only separated a few and some of the forbidden items remained in their place, for then we fear perhaps he will take from the fixed location as well; but if they were all separated together and did not remain in their place, and at the time of their removal some of them separated, those that separated then are permitted, and only the last two are forbidden. Thus far his words. And he explained his words in his book Darkhei Moshe, that the Tur at the end of siman 57 and at the end of siman 16 is dealing with such a case, see there. And it appears that he explains that which the sages, of blessed memory, said there, "a decree lest he take from the fixed location," the intention is not regarding another time like all the decrees in the Talmud in this regard, but rather as if to say: if you permit from those that separated, he will go here to the fixed ones; and if so, when all were separated, there are no fixed ones here. And many great authorities have already challenged him, for it is explicitly proven in Zevachim there that there is no distinction, for if not so, why should they all die? Let them do it in this manner, that they all be scattered [Taz subsection 7 and Pri Chadash subsection 28 and Bach]. And so it is explicitly proven in the words of the Tosafot and the Rosh that there is no distinction in this [DuP]. And in the Rashba himself it is clear that he does not hold so, for he wrote in this wording: But when it separated not in our presence, or they were all scattered even in our presence, the status of fixed location has already been nullified and it is permitted. Thus far his words. Behold it is explicit that specifically when not intentional, but when intentional, even if they all separated, they are forbidden [Minchat Yaakov]. And there is one who wishes to settle his words, that certainly ab initio it is forbidden, but if he did so, it is permitted ex post facto [Shach subsection 37].

And it is true that from his wording in the Shulchan Aruch one may infer this, for if not so, his wording is not precise; for he began by saying that this which is forbidden if he separated them intentionally is when he only separated a few, etc., and if so, why did he conclude: "but if they were all separated together," etc.? He should have said: "but if he separated them all together," since it refers back to "intentionally." Rather, certainly this is what he means: that if he separated only a few intentionally, it is forbidden even post facto; but if they were all separated together, etc., meaning unintentionally, it is permitted even ab initio, and intentionally it is forbidden ab initio and permitted post facto. And he did not write this explicitly according to his way of being brief, and also he did not want to explain this explicitly since ab initio it is forbidden. And there is one who wanted to say in this manner: that when some of them were separated, there is no difference between chulin and kodashim, and even in chulin it is forbidden since they still remain fixed; but when they were all scattered, and the decree is only lest he take from the fixed, they were stringent in kodashim and not in chulin [Taz there]. However, regardless, it is impossible to settle the words of the Tur in this manner, as is understood. Furthermore, the essence of this distinction between when all were separated and when some were separated exists regarding saving a life, as is written in Orach Chaim siman 329, and no decree is relevant there; but regarding prohibitions, where the essence is that the sages decreed lest he take from the fixed, how can we learn this from there? And there is one who wanted to answer the words of the Tur at the end of siman 16 regarding "it and its offspring," that because the prohibition is only today and not tomorrow, he is not anxious and will not take from the fixed, and they did not decree [Pri Chadash there]. And behold, even if perhaps there is a reason to say so, nevertheless, from where do the Rosh and the Tur have this to say so? And even if this law stems from the Bahag, nevertheless, he should not have left as undefined a matter that is against an explicit Gemara. And furthermore, that which was said regarding a mauled animal at the end of siman 57 is still difficult.

However, in my humble opinion, the words of the Tur appear clear with the help of Heaven when we examine Zevachim there, where it asks: let us press them so that they move, and let us say "whatever separates, separates from the majority," and it answers: a decree lest one take from the fixed location. The Tosafot there [starting with the words "Rather"] were precise, and this is their wording: From the fact that they decreed because of a fixed location, it would appear that if one takes one from the fixed location it is forbidden by Torah law, etc., but it is impossible to say so, etc., and a fixed location is only relevant in a known matter, such as nine shops, etc. Thus far their words. The explanation of their words is that seemingly, since they were stringent regarding this prohibition when they separated because of a decree lest one take from the fixed location, it implies that this is a Torah prohibition; for if not so, it would be a decree upon a decree, for they forbade when they separated for the reason of "lest one take from the fixed location," and when one takes from the fixed location it is only rabbinic. Rather, one must say that even though it is only a fixed location by rabbinic law, nevertheless the sages saw fit to be stringent in this and to decree a decree upon a decree. According to this, in any event, this is only when there is at least a certain prohibition in this mixture, such as nevela and terefa, or an animal that committed or was the object of a sexual act among consecrated animals. But in a place where there is a doubt regarding the essence of the prohibition, certainly they did not decree in such a case, and it is much lighter than a double doubt, and this is like three doubts, which according to everyone is permitted even in a status of prohibition. Therefore, regarding "it and its offspring," there is certainly only a doubtful prohibition here, for would he eat the entire mixture in one day? And perhaps the mother or the daughter will not happen upon him at all on this day. Therefore, the Rosh and the Tur at the end of siman 16 brought the words of the Behag and did not hesitate at all regarding this, for there is no comparison at all to this siman; for here there is a certain prohibition, and there it is a doubtful prohibition, and one should not be so stringent regarding a rabbinic matter.

And also the words of the Tur regarding a drusa at the end of siman 57 are also precise in this, for this is his wording there: It is written in the Sefer HaMitzvot that a doubtfully drusa that was mixed with others has a side to permit it, for it is a double doubt, etc. And it appears that there is a remedy even for a certain drusa that was mixed with others, that we should press them so that they move, and "whatever separates, separates from the majority," and all of them are permitted except for the last two. Thus far his words. And the explanation of his words in my humble opinion is as follows: that the author of the Sefer HaMitzvot says that a doubtfully drusa has a side to permit it through a mixture, meaning, it is not similar to a certain prohibition in siman 110 because here it is a doubtful prohibition and is like a double doubt. And to this the Tur says that even regarding a certain drusa it is so, according to what he explained previously, that even for a certain drusa there is an examination according to the law—see there—for this is the opinion of the Rambam, the Rosh, and the Tur. And if so, even a certain drusa is only a doubtful prohibition and is not similar to a certain prohibition in siman 110, and therefore they may be permitted by "pressing them so that they move," and it is sufficient that we are stringent regarding the last two. [And on the contrary, this is the main novelty: that because the Tosafot wrote that according to the approach of Ri one must prohibit a doubtfully drusa that was mixed, and the author of the Sefer HaMitzvot does not hold so because a doubtful prohibition is different, and to this he says that according to this reasoning, even a certain drusa is like a doubt; and it is clear with the help of Heaven.]

Our teacher, the Rema, further wrote that if a treifah chicken was mixed among kosher ones and an egg was found among them, the egg is permitted. Even though the chickens are significant and are not nullified, regarding the egg we follow the majority. Thus far his words. For since the essence of the decree is lest one take from the fixed location, we do not decree regarding the egg because of the chicken. And even according to the one who holds that an egg is a thing that is counted, it is nevertheless permitted, for in the case of nine shops it is permitted when it separates on its own even for a thing that is significant [Shach, subsection 38], because the egg is like that which has separated. Therefore, if the chicken laid the egg in our presence, it is forbidden even according to the one who holds that it is not a thing that is counted [Chavat Da'at, subsection 23], for separating in our presence is like taking with one's hands from the fixed location, as I wrote in section 21. Therefore, even according to the opinion of the Rosh, we do not decree from the egg to the chicken.

It has already been explained that regarding a Torah-level kavyua, we do not decree lest one take from the kavyua, since the forbidden item is recognizable in its place, and in this respect it is more lenient than a rabbinic kavyua. Therefore, our teacher, the Beit Yosef, wrote in section 4: If the majority of shops sell slaughtered meat and a minority sell treifa meat, and one bought from one of them and does not know from which of them he bought, and it became mixed with others and is not recognizable, it is nullified in the majority due to a double doubt. Thus far his words. And there is one who challenged him, for his source is from that which the Tur wrote in the name of the Rashba: And it appears to me they only forbade it while it stands alone, but if it was mixed with others and is not recognizable, it is nullified in the majority due to a double doubt. Thus far his words. And he wrote this regarding the law of "separated before us from the kavyua," and "separated before us" is not a Torah-level kavyua but rather rabbinic; however, where one took it by hand, which is a Torah-level kavyua, they did not act leniently [Bach]. And in this, the law is certainly with our teacher, the Beit Yosef, for while it is true that there is one who holds so, that a Torah-level kavyua is only where one took it by hand, as I wrote in section 22, nevertheless most of our teachers do not hold so, and they hold that "separated before us" is also a Torah-level kavyua [Shach, subsection 22], and so is the opinion of the Rashba explicit in Torat HaBayit [Pri Chadash, subsection 20]. However, it is certainly so that even according to the one who holds that "separated before us" is rabbinic, nevertheless it is permitted in a mixture; for even though we wrote that regarding a rabbinic kavyua they were more stringent, that is regarding a kavyua of a mixture of an important item, or a piece fit to be served to guests, or a living creature, because of a decree lest one take from the kavyua. But in "separated before us," where the forbidden item is recognizable in its place and this decree does not apply, it is obvious that one should not be more stringent regarding a rabbinic matter than a Torah matter, and it is simple.

And there are those who challenged him, for the Rashba actually only spoke regarding a rabbinic kavyua that is created through a mixture, such as a treifah that was mixed among many kosher ones and is not nullified due to its importance, where if one of them was subsequently mixed into a majority of kosher ones, it is permitted by reason of a sefek sefeika; but regarding a Torah kavyua, a sefek sefeika is not effective [Taz, subsection 3]. And I wonder at this, for prior to this, this law was not explained in the Tur at all. This is his wording: But if the forbidden item is recognizable in its place, such as nine shops, etc., but meat that is found, etc., but if it separated in our presence, it is as if it is still in the place of the kavyua and it is forbidden. And the Rashba wrote: Therefore, if one found meat in the hand of, etc., but they saw him exiting the butcher shop, at that moment the doubt was born, and it turns out that in the place of the kavyua the doubt was born and it is forbidden. And it appears to me that they only forbade it while it stands alone, but if it was mixed, etc. Thus far his words. Behold, it is explicit that he is referring to a Torah kavyua, and the law of a rabbinic kavyua he explained afterward; see there.

However, they raised a difficulty against him, for he himself ruled in section 9 regarding a doubtful terefah that was mixed in that one should not permit it based on a double doubt, for whenever one doubt is in its essence and one doubt is in the mixture, a double doubt is not effective. And how could he permit in a case of kavua by means of a double doubt of mixtures? For since kavua is like half-and-half, it is exactly like a doubtful terefah. Furthermore, in section 8 he ruled that even in a case of kavua of rabbinic origin that is by means of mixtures, one should not permit except with three doubts. And it is understandable for the Rashba himself, who truly holds that it is permitted with a double doubt as will be explained with the help of Heaven, but our teacher, the Beit Yosef, who requires three mixtures for kavua of rabbinic origin, certainly so for kavua of Torah origin. And they answered that since kavua is a novelty, you have only its novelty, and it is permitted with two mixtures, even with one doubt in its essence and one doubt from the mixture [Shach, end of subsection 22 and subsection 23]. But it is perplexing; for granted that regarding the matter of a doubtful terefah one could say so, but how is it possible to say that kavua of rabbinic origin should be more stringent than kavua of Torah origin? For even though they were more stringent regarding kavua of rabbinic origin concerning that which separated, this was for the reason "lest he take from the kavua," but in matters of mixtures, there is no logic at all to be more stringent in a rabbinic matter than in a Torah matter. Therefore, there is one who rejected his words entirely [Pri Chadash, subsection 20].

And this is the reasoning of our teacher, the Rema, who wrote regarding this: "And there are those who forbid in such a case because wherever the forbidden item is in its place, it is considered like half and half, and since the first doubt is forbidden by the Torah and there is no other doubt here to permit it except for the mixture, it is not called a sfeik sfeika, and such is the custom." Thus far his words. And this is as has been explained, that it is like a doubt of treifa that was mixed in, where a sfeik sfeika is not effective for the reason that will be explained: that any doubt in the object itself and a doubt in a mixture should not be permitted by means of a sfeik sfeika. For how can you say, "perhaps this is not the doubt of treifa, and if you say it is, perhaps it is not a treifa"? Behold, since you forbade it because of the doubt, this is not like a doubtful prohibition but rather like a certain prohibition; for what does it matter to me if its prohibition is the doubt? Ultimately, it is a complete prohibition. And how can you say "perhaps it is a prohibition"? So too here regarding kavua, since it is like half and half, it is like a doubt of treifa, and one mixture is not effective in it to permit it by means of a sfeik sfeika.

And in my humble opinion, it seems possible to resolve the words of our teacher, the Beit Yosef, for kavua is not similar to a doubt of terefah; for there the doubt is in its essence, but in kavua the first doubt is also by way of a mixture, and they are two doubts of mixtures. And it is true that the Torah made the first doubt like half and half and it is a doubt of a prohibition, nevertheless the doubt is by way of a mixture. And the primary reason for the permission of a sefek sefeka is that the first doubt makes it half and the second doubt makes it a majority of permission, and behold this is exactly so in a mixture from kavua. And it is not similar to a doubt of terefah where the two doubts are not of one category, but in kavua they are of one category, which is that of two mixtures, and it is a majority of permission. And also it is not similar to section 8, for a thing that is not nullified due to its importance, two mixtures do not avail; for there the reason is that since the Rabbis decreed that because of importance a majority shall not avail, if so, automatically it is impossible to permit it also by way of two mixtures, for it is like a sefek sefeka, as the reason for sefek sefeka is because of a majority for permission as I wrote, and behold the Rabbis did not want to permit this by way of a majority [the Bach wrote this reason in the name of the Semak at the end of this siman]. But in kavua of the Torah, where the Torah made it like half and half and no more, automatically when there is another mixture it becomes a majority for permission [and according to this, since we say kavua even for leniency, if so this would also be the law in a case of nine shops selling terefah and one kosher and he took from one of them and it became mixed, and see the Pri Megadim; however, for the law we rule like the Rema, and delve into this].

All that has been explained, whether regarding kavua by Torah law or kavua by rabbinic law, is all when one took from the mixture after it became known that there is a prohibition here that was mixed with permitted matter—that is, kavua by rabbinic law—or that there is a shop here selling terefah—that is, kavua by Torah law. However, if one took meat and they did not know at all that there was any prohibition here, and afterwards it became known that there was a prohibition here, there are entirely different laws regarding this, as we will explain with the help of Heaven. For some say that regarding this the Torah did not say "whatever is kavua is considered half and half," since the piece separated before the fixed presence of the prohibition was known. And similarly, in this case the rabbis did not say that a significant thing is not nullified, for behold, there is not yet any nullification here; and when this piece separated beforehand, it did not enter into the nullification at all such that we should say that because of its significance it cannot be nullified. Rather, one must look at the essence of the law after it is revealed that there is a prohibition here: if there is a majority of permitted matter in this place from which the piece was taken, it is permitted, and if there is a majority of prohibited matter, this piece is prohibited. And there are many detailed laws regarding this, and regarding kavua by Torah law there is a dispute regarding this; see section 45.

This is the wording of the Tur in the name of the Rashba: One who took meat from a butcher shop, even a piece worthy of being served to guests, and afterward a terefah was found in the butcher shop, and the pieces of the terefah were not known among the other pieces, and he does not know from which of them he took—everything that they took from the butcher shop before the terefah was found is permitted, for the doubt did not arise regarding them while they were fixed in their place, but only after they were separated. However, it is forbidden to take from there from this point forward. In what case does this apply? To a piece worthy of being served to guests, which is not subject to nullification; but the other pieces are permitted. Yet it is proper to be stringent to forbid all the pieces that remain in the butcher shop, for not everyone is expert in these matters, and if you permit those that are not significant, it is a near certainty that they will err and take even from the significant ones; and so we are accustomed. Thus far the words of the Rashba, of blessed memory.

The Tur wrote concerning this, this is his wording: And I do not understand what he wrote to permit in pieces that are not fit to be served to guests, except that he was stringent to forbid them, for it appears that they are forbidden by the law and not by way of stringency, for anything fixed is considered as half and half, and it is forbidden in everything. And so wrote my father, the Rosh, of blessed memory, that everything they took before the doubt arose is all permitted, and after the doubt became known, everything is forbidden. Thus far his words. And our teacher, the Beit Yosef, wondered about him: Is it not so that here the prohibited item is not recognizable in its place, and there is no Torah status of fixed here, for here the treifot were mixed among the kosher ones, as the Rashba wrote, and the pieces of treifot were not known among the other pieces? And this would be a rabbinic status of fixed, which only applies to a piece fit to be served to guests or other significant things, and the Rashba spoke well. And the Rosh is dealing with a case where the prohibited item is recognizable on its own, which is a Torah status of fixed. Therefore, he wrote in the Shulchan Aruch, section 5, only the wording of the Rashba, of blessed memory; see there.

And there is one who wished to resolve the words of the Tur, that the phrasing "that a terefah was found in the butcher shops and the pieces of the terefah were not known among the other pieces, etc." is all implied in this phrasing, whether the prohibition is not recognizable and also not fixed, or whether the prohibition is not recognizable but it is fixed in a shop, except that it is not known in which shop the prohibition is fixed, etc. [Bach]. And in his opinion, in such a case it is called fixed by Torah law. And they have already refuted him, for even in such a case it is not agreed upon that it would be fixed by Torah law [see Shach subsection 14 and subsection 29]. Furthermore, the wording of the Rashba implies explicitly that it deals with when the pieces were mixed with one another, and so it is in the responsa of the Rosh that the Tur cited, and explicitly there it deals with a mixture of pieces [Pri Chadash subsection 22, and the responsa of the Rosh is in Klal 100, Siman 17, see there].

In my humble opinion, it appears that it certainly deals with a mixture of pieces, and nevertheless the words of the Tur are correct, but the Rashba does not hold so, as we will explain with the help of Heaven. For behold, the Rashba who says that afterwards a treifah was found in the butcher shop and the treifah pieces were not known among the rest of the pieces—his meaning is clear, that all the pieces were already mixed in the manner of butcher shops, where they slaughter many animals, and when it did not enter their minds that there is a treifah here, they mix them all together, both the meat itself and all the internal organs. And if so, one must understand what he means by saying that a treifah was found in the butcher shop; of necessity, it is such as when a certain treifah was found in one of the mixed organs, such as when a perforated hole was found in one of the spleens, or from the omasa and reticula, or in the heart, and similar to these. And behold, it is certain that all the meat and all the organs are mixed with one another; however, this organ in which the treifah was found, is it not a certain treifah? And it is known and fixed by itself. And the Tur holds that this is kavua according to the Torah, for what does it matter to me if we have before us a known shop where it is sold under the name of treifah, or if in one shop there are many kosher pieces lying and one treifah piece known and fixed by itself, or one organ known and fixed by itself? And what does it matter to us that all the meat is mixed? Ultimately, there is one organ that is fixed by itself and known, and regarding this the Torah said: "Anything that is kavua is considered as half and half." And the Rashba holds that since we are not adjudicating regarding the organ, as it has no importance, and we are adjudicating regarding the meat, and the meat is already mixed, this is not kavua according to the Torah. And perhaps you will ask the Tur: if so, how can you find a case that would not be kavua according to the Torah? It can be said that you find it, for example, when they already sold the organs, and one homeowner in his house found a clear treifah in one organ; for this organ is not joined regarding the matter of kavua to all the meat in the butcher shop, since it was already separated from there, and since the meat in the butcher shop is mixed together, this is only kavua by rabbinic enactment. And also the case in the Responsa of the Rosh was so, that one treifah lung was found in the butcher shop, see there, and it is the kavua, and it makes the entire butcher shop kavua according to the Torah.

And know that regarding what the Rashba wrote, that even though by the letter of the law it is only forbidden to take a piece that is worthy of honoring a guest from there, nevertheless it is forbidden to take even a piece that is not worthy of honoring a guest because not everyone is expert in this and they will come to err; and since this is only a mere stringency, therefore post facto if one took a piece that is not worthy of honoring a guest, one should not forbid it even if he did so intentionally [Pri Chadash, subsection 23]. And there is one who says that even post facto it is forbidden [Shach, subsection 30], and it is an excessive stringency. However, this law applies only in a butcher shop where many people buy meat and it is likely they will err, but for an individual in his home with such a mixture, one should not forbid even initially those pieces that are not worthy of honoring a guest, and they are nullified by a majority according to the essence of the law [ibid.]. And similarly in a butcher shop, if there remained there only pieces that are not worthy of honoring a guest and the large ones were already sold before the treif status became known, even in a butcher shop they are permitted, for they only forbade all of them when there are also pieces worthy of honoring a guest, for then it is impossible to forbid these and permit those; but when all of them are permitted according to the law, one should not be stringent [Pri Megadim in Shiftei Da'at, subsection 31].

And behold, regarding a rabbinic kava’u, everyone agrees that this is only when the treifot became known before one took from there, for then it is forbidden even if it separated on its own due to a decree lest one take from the kava’u. But if one took it before the prohibition became known, it is permitted even for the Maharal if there is a majority of kosher ones, and only to take from here on is forbidden, as has been explained. But regarding a Torah kava’u, when one took meat from the shops while it was not yet known at all that there is one treifah shop, and after one took it, it became known that there is one treifah shop, and the shop is known and the treifah is recognizable by itself—which constitutes a literal Torah kava’u—except that one took from there before it was known at all that there is a treifah in one shop, there is a dispute of the Rishonim regarding this. For some say that it is not called kava’u unless the forbidden shop was known before one took, but if the prohibition was not known at the time one took, even though after one took the prohibition was revealed and it became kava’u, we do not say that it should be kava’u retroactively. And if one took meat from the butchers and afterward it became known that there is a treifah there and it is recognizable by itself, which is a complete kava’u, nevertheless what one took previously is permitted if there is a majority of permitted ones. For the law of kava’u, that it should be like half and half, is a novelty, and you have nothing in it except from the time of its novelty and onward, and not before [the Ran in the chapter Gid HaNasheh in the name of the Tosafot, and see Shach subsection 14].

And there is one who does not hold so, and he explained the reasoning: that if there were many shops in the city, all of them established as selling kosher meat, and he took from one of them and does not know from which one, and afterwards it became clear that one of the shops has treifah in it, it is not similar to "separated from a fixed place" which is permitted. For there, the doubt arose at the moment we found it, that it separated from its fixed place, and the treifah shop was known to us beforehand. But here, the doubt is not regarding itself, but regarding the clarification of the shops, as it has now become clear that one of them is forbidden, and through this, a doubt was born regarding that time when it was separated by the hand of the buyer, and the matter was revealed retroactively that at the hour it was separated by the hand of the buyer, its doubt existed [the Ra'ah in Bedek HaBayit, House 4, Gate 3], and he does not hold of this novelty of "fixed." The Rashba, of blessed memory, disagrees with him and holds like the previous opinion, that this is not called "fixed" since he took before it was known at all that there was a treifah shop there [the Shach in section 14 wrote that the Rashba admitted to him, and his words are puzzling as the Pri Chadash wrote in subsection 13, and it is explicitly so in Minchat Yaakov, see there].

Regarding the law, one of the great authorities decided that since the majority of opinions hold that this is not considered kaveua, we follow this [Pri Chadash there]. According to this, when they took meat from butcher shops and afterwards it became known that there is a tereifah there, and the tereifah is recognizable and kaveua on its own, nevertheless, what they took is permitted, just as in a case of kaveua of rabbinic origin involving a mixture of pieces. And so it appears primary, for one should not add to the law of kaveua that which was not explicitly mentioned in the Gemara. And so too regarding a mixture of shops, which is to say that we knew there is one shop here selling tereifot but we did not know which one it is, it appears from the poskim that this also is not called kaveua of Torah origin; since the prohibited item is not recognizable on its own and we did not know the location of the prohibition, this is not kaveua of Torah origin [as is implied from our teacher there, and as is implied from the Pri Chadash, and as is implied from the Shach, subsection 29, see there]. And there is one who wishes to say that a mixture of shops is called kaveua of Torah origin, as I wrote in section 42, but this is not primary, for you have nothing in kaveua other than its original novelty [and so appears the opinion of the Pri Megadim, subsection 14].

There is one who is uncertain according to the opinion of the Rashba regarding a rabbinic status of kava, that when the prohibition became known it is forbidden to take from there and onward those pieces that are fit to be honored, while those that are not fit to be honored are permitted by the law. And as was written in section 40, if there is in the mixture from one animal pieces fit to be honored and pieces that are not fit to be honored, and this is not logical at all that one animal should be part permitted and part forbidden, and for this there is a doubt as to which pulls which: if the permitted pulls the forbidden and all are permitted, or if the forbidden pulls the permitted and all are forbidden. And thus he decided the halacha [Taz, subsection 5]. But the great later authorities took issue with this, for certainly these are permitted and these are forbidden, for these were nullified and these were not nullified, and what of it that they are from one animal [Pri Chadash, subsection 23 and Kereti U-Peleti, subsection 13].

And so too regarding a rabbinic kavour, where the law is that everything taken before it became known that there is treifot here in the mixture is permitted, even if it is a thing that is significant, and after this it is forbidden. If there were two ribs from one animal, and one rib was taken before the treifot became known and the second rib remained in the shop—this was a case in a certain city and the great authorities divided. There are those who forbade it, for since we permit the rib taken previously based on the reasoning that "whatever is separated is separated from the majority," if so, it is clear to us that this animal is permitted, and if so, how can we forbid the one in the shop? And there are those who said the opposite: since the one remaining is forbidden, consequently the previous one is also forbidden, for it is impossible that one animal should be partly permitted and partly forbidden. But some say that this is indeed the primary law: that the previous one is permitted and the remaining one is forbidden, and this is the way of the Torah [ibid.]. And furthermore, regarding this law, it is certainly so, for we always say that it is entirely permitted, and this fact that we forbid the rib in the shop is due to a decree lest one take from the kavour. And it is an argument a fortiori: if when it was separated on its own the sages decreed in a rabbinic kavour as has been explained, all the more so regarding taking by hand, for not everyone is expert [enough to know] that we are taking it because of its half that was already taken [ibid.]. And furthermore, some say that this which the Torah permitted in "whatever is separated is separated from the majority," the Torah did not say that this is a clear permission, but rather said that it is still a doubt, but the Torah did not forbid this doubt [ibid. in the name of Shittah Mekubetzet, first chapter of Bava Metzia]. And if so, consequently the Torah permitted this half of it out of doubt, and did not permit the other half [ibid.]. And even though from the Torah they are all permitted, as this is not a Torah-level kavour, nevertheless, since from the Torah it can be so, it is no wonder if we say so regarding rabbinic law as well. And so it appears primary for the law.

And behold, in all the large cities in our country, they slaughter in the slaughterhouse and inspect there, and they take the internal organs and the entrails and sell them all to the women who sell in the market, and every butcher takes his animal to his butcher shop, which is the shop where he sits to sell the meat. If afterwards a certain terefah is found in one of the internal organs, and it is not known to which animal it belongs, behold the matter is simple: that this is a rabbinic kava'u, for it is a mixture of shops. Since it is not known which shop is the terefah, this is not a Torah kava'u, as I wrote in section 47. And even according to the opinion of those who hold that it is a Torah kava'u, nevertheless, the opinion of most of the poskim is that even in a Torah kava'u, that which they took before the terefah became known is permitted, as I wrote there. And according to this, the law is simple: for example, when they slaughtered five animals belonging to five butchers, and each one brought it to his shop, the first two are completely permitted, for "whatever separates, separates from the majority." And so too the third who took, while two still remained in the slaughterhouse. However, the fourth and the fifth are forbidden. And if it is not known who took first, everything that they sold from the shops before the terefah became known is permitted. And even if it is known who took first, nevertheless, also regarding the fourth and the fifth, what they sold before the terefah became known is permitted. And so too regarding what was sold in the market—the head and the feet and all the internal organs—likewise the law is so, that everything sold beforehand is permitted. However, if there were only two animals and a terefah was found in one of them, they are forbidden in any case, even what was sold beforehand, for in this case "whatever separates, separates from the majority" does not apply, as there is no majority of permitted items here. And so too if one person took three animals together from the five that were slaughtered, they are also completely forbidden in any case, for a majority did not remain in the slaughterhouse, and they are all completely forbidden. However, the meat that was sold from all the shops before the terefah became known is permitted as long as a majority still remains in the shops. And so is the law regarding the internal organs sold in the market. The summary of the matter: the permission for what was sold beforehand is only as long as there are more than two animals that have not yet been sold, but when only two animals remain, they are absolutely forbidden, for there is no majority of permitted items here. And so too regarding the internal organs sold in the market, there must remain more than those of two animals, as is understood. And from this one may judge all types of mixtures.

It appears to me that in all laws of kavua, there is no distinction between a species with its own species and a species with a different species, such as if they slaughtered bulls, rams, and lambs, and a terefah was found in one of the limbs, if it is impossible to recognize from which species it is. However, if it is possible to recognize, only that species enters into the status of kavua. And it is simple that there is no difference whether all the shops belong to one man or to many people. And so too regarding an important item mentioned at the beginning of this siman, and so too regarding all items that are not nullified due to their importance, there is no distinction between a species with its own species and a species with a different species [Shach, subsection 1], and whether it belongs to one or to two, etc.

One must deliberate what the law is regarding kavuah when a doubt of terefot is found. Behold, kavuah of Torah origin certainly does not apply to a doubt; and this is not only according to the system of the Rambam, who holds that a doubt regarding a Torah law is lenient by Torah law, but even according to the system of the Rashba, who holds that it is stringent by Torah law, nevertheless the Torah revealed the law of kavuah regarding a certain prohibition and not regarding a doubtful prohibition, and you have only its novel application. However, regarding kavuah of rabbinic origin, one might say it applies even to a doubt. Yet it seems to me that since in the Gemara we find it only regarding a certain prohibition, from where do we have the authority to say that the law is so even regarding a doubt? And it is not similar to a certain rabbinic prohibition where we say kavuah, as I wrote in section 16. According to this, when a doubt of terefot occurs in a butcher shop, such as through a sircha that is only a doubt of terefot and the like, we do not judge this with the law of kavuah, but rather according to the primary mixture and a sefek sefeka as will be explained later. Thus it appeared to me; but from the Responsa of the Rosh [Klal 20, Siman 17] the opposite is clear, for there it was found among many sheep that were mixed, and a sircha was found on one lung from the lobe to the diaphragm, and he judged it with the law of kavuah of rabbinic origin, see there. And this is the Responsa that the Tur brought and we explained in section 41. Behold, it is explicit that even in a doubt of terefah we judge with the law of kavuah of rabbinic origin. And perhaps there was another basis for permission there, as is written there, that it was a doubt if the sheep were mixed at all, and according to the words of the examiner the sheep were not mixed, only the lungs were mixed by error, and the Rosh declared all the sheep kosher based on the chazakah of kashrut, see there, and he did not need this permission. But if there were no other basis for permission, he would have permitted it for this reason. Furthermore, for the reason of a doubtful prohibition he could not have permitted it because it was a piece fit to be served to guests, as is explained there, and for the reason of a sefek sefeka one should not permit it when there is one doubt in the object itself and one doubt by way of mixture. But in a case where there is room to permit, perhaps he would not have judged it with the law of kavuah, and it requires further study for the practical law, and one must deliberate on this.

And behold, one must wonder about the Rambam, of blessed memory, that he did not bring in any place the law of kavua of rabbinic origin, and it is an explicit Gemara in Zevachim [73a]. And one cannot say that he holds that the decree lest one take from the kavua is only regarding consecrated items, for if so, on the contrary, he should have permitted in all prohibitions by means of "pressing them so they move" and we would say "whatever separates, separates from the majority" according to the opinion of Rabbeinu Tam that we brought. Furthermore, even regarding consecrated items he did not bring this law. This is his wording at the beginning of chapter 6 of Pesulei HaMukdashin: All sacrifices in which one of the "dying sin-offerings" or a stoned ox became mixed, even one in ten thousand, they shall all die, because living beings are significant and are not nullified; and if he offered it, it is accepted, for living beings are not rejected. Thus far his words. And behold, in the Gemara there they did not say that if he threw [the blood] it is accepted according to the one who holds living beings are not rejected, except when they move, so that it should not be like kavua [and the Lechem Mishneh there already wondered about this, see there].

And it appears to me that the Rambam, of blessed memory, had a different approach to all of this. On the contrary, that which is questioned in Zevachim ibid., "And let us press them so that they move, and let us say everything that separates, separates from the majority," this was only because of the loss of consecrated items that it was appropriate to permit through this; but regarding non-consecrated items, it did not enter the mind of the Shas at all to permit through this. And the proof for this is that at the end of tractate Avodah Zarah we learned: These are forbidden and they forbid in any amount, etc., and a stoned ox, and a broken-necked heifer, and the birds of a leper, etc., and the firstborn of a donkey, etc., and the sent-away goat, etc., and they forbid in any amount. And why did the Shas not ask, "And let us press them so that they move, and let us say everything that separates, separates from the majority"? And similarly in Sanhedrin [80a] regarding an ox whose judgment was finalized that became mixed with other oxen, they stone them; why did it not ask so? And it is true that the Tosafot there wrote that there are books that have this version, see there, and in the Mishnah in Avodah Zarah it deals with a stoned ox that was already stoned, where it is impossible to press them, see there. However, in any case, the Rambam did not have this version in Sanhedrin, for even before us this version does not exist; and also in the Mishnah in Avodah Zarah he explains in his commentary on the Mishnayot that they were mixed during their lifetime, see there. And in truth, I am very wondered at our teachers, the authors of the Tosafot, for how is it possible to establish it after it was stoned? This would be fine for all of them, you can find it, but the sent-away goat certainly its mixture is while alive, for if after its commandment was performed, it is permitted for benefit, as is found in Yoma [67b]. And the proof for this is that in Bekhorot [9a] it was taught: A stoned ox, and a broken-necked heifer, and the birds of a leper, and the firstborn of a donkey, impart the impurity of foods; and it does not count the sent-away goat, because the impurity of foods is only after death, and you cannot find this regarding the sent-away goat. And it requires great further study [afterwards I saw in the glosses of the Gra that he deletes "sent-away goat"].

Therefore, the Rambam explains that regarding chullin, this permit does not exist at all, for since the sages forbade them, cleverness does not avail to remove the prohibition. It was only due to the loss of kodashim that the Gemara wished to permit it through this, and it answers that it is due to a decree lest one take from the fixed location, and therefore they forbade it even in kodashim. And he explains that which is said there, "Rava said: Now that they have said we shall not sacrifice, if he did sacrifice, according to the one who says living beings can be rejected, it does not effect atonement, and according to the one who says they are not rejected, it effects atonement," it refers back to the primary text of the Mishnah. On the contrary, this is the explanation: Now that the rabbis forbade it, "we shall not sacrifice"—meaning, if they had said there is a remedy by way of "we shall suppress them so they move," certainly we would not permit it without this even ex post facto, since there is a permissible remedy. But now that they said "we shall not sacrifice," meaning there is no remedy at all, therefore certainly according to the one who holds living beings can be rejected, it is forbidden even ex post facto. But if they are not rejected, if he sacrificed, it effected atonement; even though he transgressed a rabbinic law, nevertheless, due to the loss of kodashim, they did not uphold their words. Therefore, he wrote plainly that if he sacrificed, it effected atonement [and this is clear with the help of Heaven].

Our teachers, the authors of the Shulchan Aruch, wrote in section 7: A thing that is not nullified due to its importance, such as living creatures, a biryah, a piece worthy of being served to guests, or a thing that has the potential to become permitted, which became mixed with others and one of them was eaten inadvertently—whether he himself ate it inadvertently or others ate it inadvertently—or it fell on its own into the sea in a manner that it was lost from the world, all the others are permitted, for we hang the matter on saying the prohibited item has gone away. And specifically when he eats the remaining ones two by two together, for in any case there is one that is permitted; but to eat them one by one is forbidden. And even to eat them two by two, it is forbidden for one person to eat all of them, and even two people may not eat all of them at once. Thus far their words.

The explanation of the matter is that since according to the Torah it is nullified by a majority, and it was only the sages who decreed that it is not nullified, if one of them was lost from the world, we hang the matter by saying the forbidden item was lost. For as long as all of them are in the world, even if one of them separated, it is impossible to hang the prohibition upon it; since you must also judge regarding it, if so, what have you seen to say that this is the forbidden one? On the contrary, let us say that the prohibition is within the majority that remains [Shach, subsection 44]. And regarding rabbinic prohibitions, we always hang the matter on many laws to be lenient, as will be explained in siman 111. Therefore, we also hang the matter here on the one that was lost, for I say the prohibition is what was lost. And even regarding a more severe prohibition such as avodat kokhavim, we also hang the matter in mixtures when one of them was lost upon the forbidden item, and all those remaining are permitted [Zevachim 74a, and see Tosafot there], for in such a case the sages did not decree.

And it is understood of itself that this is specifically when it was lost on its own, such as if it fell into fire or into the sea or into a deep river in a manner that it will never be found; but if in reality it is possible that it may be found, we do not attribute it to this [Shach, subsection 43]. And if it was not lost on its own, but rather he lost it intentionally, it is certainly forbidden, for if not so, what did the sages achieve in their enactment? And consequently, since in a case of intentional action it is forbidden, then even in a case of inadvertence it is forbidden, for they decreed regarding inadvertence on account of intentional action. And in several places in the Shas we decree regarding inadvertence on account of intentional action. And it is not similar to what was written above in siman 99, section 22, regarding the law that one may not nullify a forbidden substance lechatchilah, where in a case of inadvertence it is permitted; for we explained there in section 24 that this is because we do not suspect a person of nullifying a forbidden substance with his hands. However, regarding casting it into fire or water, one must certainly suspect that he might do so intentionally, for it does not appear to people as a prohibition in this case, see there. Therefore, it is necessary to decree regarding inadvertence on account of intentional action. And this is why they wrote "it fell on its own into the sea," meaning that when a person cast it, it is forbidden even in a case of inadvertence.

Therefore, if one of them was eaten inadvertently, all the others are permitted, for in this case it is not relevant to decree on account of a willful act, as no person is suspected of eating a forbidden item willfully; and this follows the law of nullification of a forbidden substance in siman 99. There are those who disagree regarding this because even with eating one must decree that he might feed one of them to a non-Jew or cast it into the sea [Shach subsection 40 and Taz subsection 8]. I am astonished, for their intent is clear that there is no permission unless this Israelite or another Israelite ate it inadvertently, and so it is explicitly explained in the source of the law in Terumat HaDeshen [siman 185, and brought in the Shach and the Beit Yosef]. And if their intent is that he will not obey us, for he will say to himself, "What does it matter to me if I ate it myself or fed it to a non-Jew or destroyed it from the world," we have not found such a decree anywhere. If he will not obey us, he will surely do as he pleases; in any case, if he is a Torah scholar, he will surely understand the reason, and if he is an ignoramus, he knows nothing, and when they tell him that there is no permission except through the inadvertent eating of an Israelite, how could he say that it is not so? Our sages, of blessed memory, only decreed an inadvertent act on account of a willful act and no more [and see Pri Chadash subsection 31 and in Siftei Da'at subsection 109 who agreed with the ruling of the Shulchan Aruch; and that which the Kreiti U'Pleiti questioned, that even regarding one who cooks on Shabbat they decreed an inadvertent act on account of a willful act, the Chavat Da'at answered there, see there and examine carefully].

And know that these permissions that have been explained apply even after the mixture became known, for if it were before the mixture became known, even if they dropped it intentionally it is permitted, as it is not relevant to decree since he did not yet know of the prohibited item at all and there was no intent of permission in this [Shach ibid.]. And similarly, the permissions that have been explained are only when they were all still in the mixture and one of them fell or one of them was eaten, we hang the prohibition on it. But if one of them separated, even if it separated on its own, when it is lost or when it is eaten we do not hang the prohibition on it, and they still remain in their prohibited status; for since it was separated from the mixture, one cannot hang the mixture upon it [ibid. subsection 42]. And there is one who permits in a case of separation before the doubt arose and it was lost, because at the time it separated they were all in a status of permission and therefore it is possible to hang it upon it, which is not the case with separation after the doubt arose, for they are all in a status of prohibition and also the separated one is in a status of prohibition and has no connection to the mixture; consequently, those that remained are in their status of prohibition as before [Pri Chadash subsection 33, and it must be that this is his intention, see there and examine carefully].

And this is why they required eating them two by two, for in any case there is one that is permitted, and we say: since this one is not the forbidden one, this other one is also not the forbidden one [Rashi, Zevachim ibid.]. And regarding the final ones it is said that the forbidden item was eaten among the first ones [ibid.]. According to this, this is only when one piece of forbidden food fell in, but if two fell in, one must eat them four by four, and when three fell in, one must eat them six by six [Shach, subsection 47]. Or perhaps with two it is sufficient that he eats three by three, and with three it is sufficient that he eats four by four, for one needs only one more than the forbidden items [Pri Chadash, subsection 36, for so it is proven from the wording of the Rosh, chapter Gid HaNasheh, section 37]. And regarding that which they wrote, that even two by two one person may not eat them all, and similarly two people may not eat them as one, it is explicitly proven from the words of the Rishonim that there is no concern in this, and also the great Acharonim disagreed with this, and certainly it is only a mere stringency. Nevertheless, Heaven forbid to transgress their holy words.

And know that this which has been explained, that when one of the mixture is lost we attribute the prohibition to it, this is the approach of the majority of the poskim. However, according to the Rambam in chapter 7 of Kochavim, two must be lost. Below in siman 140, this opinion was cited in the Shulchan Aruch in the name of "there is one who says"; see there. And perhaps regarding a severe prohibition he was concerned for it. Similarly, there is one who says that just as when it is lost or eaten we attribute it to it, so too if one of the mixtures was sold to a Cuthean inadvertently, we attribute it to it [Pitchei Teshuva, subsection 7 in the name of Tiferet LeMoshe]. But it is not clear to me, for certainly in this case one should decree an inadvertent act on account of a willful act, for even regarding consumption by a Cuthean we wrote that it is not effective for this reason, all the more so regarding a sale, unless it was sold before the mixture became known. Similarly, there is one who says that if one of the mixture fell into a prohibited substance that does not have enough to effect bitul and it became prohibited, we also attribute it to it, since you do not need to rule upon it. Likewise, if it was a mixture of living creatures and one of them became a definite terefah or one of them died, we attribute it to it [ibid. in the name of Panim Me'irot]. And it is a simple matter that when they said when one of them is lost we attribute it to it, it must be lost entirely; but if half of it or more was lost, as long as some of it still remains—for example, in a butcher shop where the animal was cut into several pieces and many pieces were lost—if even one piece still remains, it is impossible to attribute the prohibition to the lost ones, since there still remains one piece that you must rule upon [ibid.].

The opinion of our teachers, the authors of the Tosafot, in several places is that any significant item that is not nullified in a mixture, if [an item] fell from this mixture into another place, they are permitted when one does not eat all of them at one time, based on the reason of a double doubt. For when one eats from the second mixture, it is a complete double doubt: a doubt whether that which one eats is from that which fell into the second mixture from the first mixture, and if you say it is that, perhaps it is not the [forbidden item] that fell into the first mixture. And even according to those who hold that one doubt regarding the substance itself and one doubt regarding a mixture is not effective, nevertheless, when both doubts are regarding a mixture, it is certainly permitted [Rash, chapter 3 of Orlah; and Tosafot, beginning of Beitzah; and Yevamot, chapter 1; and Sanhedrin 80; and Avodah Zarah 49; and the beginning of chapter 8 of Zevachim].

Most of the poskim agreed with this opinion [Shach subsection 50 and Pri Chadash]. However, some say that the second mixture is also forbidden, for we consider each part of the first mixture as a certain prohibition; and if so, in the second mixture there is only one doubt. It is not permitted unless something from the second mixture fell into a third mixture, for these are permitted due to a sefek sefeika. Their reasoning is thus: for a sefek sefeika is no better than a majority, as will be explained, since the first doubt is fifty-fifty and the second doubt tips the balance to a majority of permission. If so, what does the second mixture benefit with its sefek sefeika? For even in the first mixture there is a majority, and nevertheless the sages forbade it due to its importance. If so, what does the second mixture add? But the third mixture is permitted, for in the second mixture its importance is gone, since it was not the known important prohibition itself that fell there; consequently there is one doubt here, and in the third mixture it rightly becomes a sefek sefeika [as mentioned above to explain the opinion of the Semak, who is the author of this opinion, as written in the Beit Yosef].

And also the opinion of the Rambam in chapter 16 of Ma'akhalot Assurot is so, and this is his wording there in law 10: If one pomegranate from this mixture fell into two other pomegranates of the pomegranates of Badan, and one pomegranate from the three fell into other pomegranates, they are permitted, for the pomegranate of the first mixture is nullified in the majority; but if a pomegranate from the first mixture fell into a thousand, they are all forbidden; "nullified in the majority" was only stated to permit a sefek sefeka, so that if it falls from the second mixture to another place, it does not forbid, and so too anything similar to this. Thus far his words. And this is the opinion of our teacher, the Beit Yosef, who wrote in section 8: A thing that is not nullified due to its importance that was mixed with others, and one fell from this mixture into two others, and one fell from the three into two others, behold these others are permitted, for etc. "nullified in the majority" was only stated to permit a sefek sefeka etc. Thus far his words.

And they have already wondered about the Rambam, for he himself wrote in chapter 7 of Avodat Kochavim, law 10, and this is his wording: A doubt is forbidden, a double doubt is permitted. How so? A cup of Avodat Kochavim that fell into a storehouse full of cups, they are all forbidden because they forbid in any amount. If one cup separated from the mixture and fell into two other cups, these are permitted. Thus far his words. Behold, he permitted the second mixture, and it is a wonder that he was more lenient regarding the prohibition of Avodat Kochavim than regarding other prohibitions. And there are those who wish to say that regarding pomegranates he was more stringent because there it can come to a state of permission, namely when the pomegranates are split, and it is like a thing that will become permitted [Keseph Mishneh]. And I wonder, for regarding a doubt of an egg born on Yom Tov, he was lenient in a mixture even though this is a thing that will become permitted, and also one doubt in its essence and one doubt in the mixture, as is apparent from his words in chapter 1 of Yom Tov, law 2, and as the Maggid Mishneh wrote there, and certainly in a case like this. And so our teacher, the Beit Yosef, in Orach Chaim siman 497 permitted a doubt of preparation on the second day of Yom Tov for the reason of a double doubt; see there. And they further answered that because people distance themselves from Avodat Kochavim, therefore he was lenient in this [Sha'arei Dura], and the difficulty is evident, for on the contrary, in the entire Talmud we are more stringent than in all other prohibitions. Therefore, in truth, our teacher, the Beit Yosef, later in siman 140 ruled not like the Rambam and required three mixtures as he did here; see there. And besides all this, it is impossible to distinguish between one prohibition and another, for the Talmud in Zevachim [74a] raises a difficulty from one to the other; see there.

And there is one who answered that there is a distinction between a prohibition of eating and a prohibition of benefit, for regarding eating one must be more stringent, but regarding idols, which is only for benefit, it is appropriate to be lenient [Shach, subsection 52]. But it is impossible to say this, for the Gemara asks from one to the other as we have written. And some say that the reason is this: that certainly for all prohibitions in the world a sefek sefeka is effective, except for a "significant item" like the pomegranates of Badadan and the like, where the reason it is not nullified is due to its significance; we consider the entire mixture as if it were the prohibition itself. And this is similar to the reasoning we wrote in section 64 [the Gra, subsection 11 and Kereti U-Peleti, subsection 23]. And he had a different version of the text in the Gemara in Zevachim there [ibid.], and it is a great reasoning [and so wrote the Lechem Mishneh there, and it requires further study why the Gra and Kereti U-Peleti did not cite his words]. And in my humble opinion, it appears when we examine his wording, that here he wrote "one pomegranate fell etc." and there he wrote "one cup separated from the mixture and fell etc." For certainly when they are all together, each one has the status of a certain prohibition, and when one falls from the entire mixture to another place, it is like a certain prohibition that fell to another place. This is not the case there, where initially one cup separated from the entire mixture, and automatically, that which separated lost its significance because we say "the prohibition is in the majority," as he wrote there regarding this law when forty separated from a hundred, see there, for he wrote that we hang the status of the prohibition on the sixty, and when these forty fell to another place they are permitted. And all the more so when one separated, for we say "the prohibition is in the majority," and this one that separated is at most only a doubtful prohibition, and automatically in the second mixture there is a complete sefek sefeka [and according to this, it teaches us "not only this, but even that," meaning, not only when one separated, but even when forty separated from a hundred, and examine this well].

Our teacher, the Rema, wrote: And in any case, one person should not eat all of them. Thus far his words. The commentators on the Shulchan Aruch [Shach subsection 53, Taz subsection 10, and Pri Chadash subsection 40] challenged him, for this only applies to those who permit with two mixtures automatically, that one should not eat the entire second mixture, for if you eat it all, there is no sefeik sefeika here. However, according to our teacher, the Beit Yosef, who ruled like the Rambam that three mixtures are required, why should they not eat the entire third mixture? In my humble opinion, his words are justified, for one way or the other: if we say that the entire third mixture is excluded from the category of sefeik sefeika, then why is the third mixture needed at all, as is indeed the opinion of those who hold that only two mixtures are required? Rather, you must say that those who require three mixtures hold that the first mixture is not included in the calculation, as we explained, because due to its importance they treated the entire mixture as a certain prohibition, and the calculation of the sefeik sefeika begins from the second mixture. Consequently, according to this view, the law of the third is like the law of the second according to those who disagree with this view. Therefore, just as there, according to the view of the Tosafot, one should not eat the entire second mixture, so too according to the view of the Rambam, one should not eat the entire third mixture. [And I saw in the Pri Megadim in the Shiftei Da'at there that the Minchat Yaakov challenged the Shach, and he did not cite his reason, but it is clear that he challenged him because of this, and his book is not in my possession.]

And for this reason, I say regarding the ruling of our teacher, the Beit Yosef, who requires three mixtures, and they questioned him [the Taz there and the Gra]: how is it possible to say so, for behold, he himself ruled in section 4 that even regarding a Torah-level kavuah, when it is mixed with others, it is nullified by a majority due to a double doubt, and we explained this in section 34; and how is it possible that regarding a mixture of a significant item, which is a rabbinic-level kavuah, to be more stringent and require three mixtures? And we have already written in section 38 that certainly this is worse, see there. And besides this, there is no starting point for this question for the reason we explained in the previous section: for one way or the other, if the third mixture is entirely permitted, why would we require it at all? Rather, certainly one must say that the sages treated the entire first mixture, each one, as a certain prohibition. And if so, it is obvious that this is more severe than kavuah, for the Torah prohibited kavuah so that it should be like half and half, but regarding this mixture, the sages decreed that it should be like an entire prohibition. And if it is difficult how it is possible to be more stringent in a rabbinic matter than in a Torah matter, this is not a wonder, for behold, also regarding the matter of "separated," they were more stringent, as I wrote in section 25 according to the opinion of the Rosh and the Tur and most of the poskim, see there.

He wrote further, and this is his wording: And specifically when the forbidden item that was mixed in is definitely forbidden, but a doubtful prohibition that was mixed in and [something] fell from that mixture into another place, the second mixture is permitted. Thus far his words. And they questioned him [Shach and Taz there] that from his wording it implies that even in the second mixture of a doubtful prohibition it is forbidden to eat it all as one, just as in the third mixture of a definite prohibition. And in the Issur V'Heter, principle 26, it is not explained thus, and he holds that in a doubtful prohibition the second mixture is entirely permitted. And in my humble opinion, I do not know from which wording they inferred this from his words; on the contrary, from his wording it is more [reasonable] to infer that he also permits the mixture entirely, for he wrote in section 8: A thing that is not nullified due to its importance that was mixed with others, and one fell from this mixture into two others, and one fell from those three into two others, behold these others are permitted, for etc. we do not say it is nullified by a majority except to permit a double doubt etc. Thus far his words.

For behold, it is true that the author of the Issur VeHeter ruled accordingly, but what reasoning is there in it? For granted that a doubtful prohibition is lighter than a certain prohibition, it only descends one degree, in that there is a doubt in the object itself. And granted that in the first mixture it cannot be permitted by way of a double doubt because there is only one doubt in the object itself, and the second doubt is created by the second mixture, nevertheless, why should it be lighter than a certain prohibition in a third mixture? For the advantage of the doubt that exists in the object itself exists in the certain prohibition in the third mixture, and behold, the doubt of a mixture is better than a doubt in the object itself, as I have written. If so, why should the second mixture of a doubtful prohibition be lighter than the third mixture of a certain prohibition? And indeed, I have seen one who rejected the words of the Issur VeHeter from the halacha [Pri Chadash subsection 42 and Pri Megadim subsection 55]. Furthermore, it is simple that a doubt regarding a Torah prohibition is like a certain rabbinic prohibition, as all the great poskim have written [Shach subsection 54]. If so, if you permit eating the entire second mixture together in a case of a doubt regarding a Torah prohibition, perforce it contains something from the first mixture, and behold, we hold that a certain rabbinic prohibition in a "significant item" is not nullified even in a thousand, as I wrote in siman 101. If so, how is it possible to permit the entire second mixture in a doubt regarding a Torah prohibition? [ibid.] However, one could say that the second mixture of a doubtful prohibition, even though it is from the Torah, is lighter than a certain rabbinic prohibition in the first mixture. The reason is that there, in any event, there is a certain rabbinic prohibition in this mixture, but in the second mixture of a doubt regarding a Torah prohibition, who says that this mixture contains the doubtful prohibition? For perhaps the prohibited item in question did not fall from the first mixture into the second. It is also possible to say that it is not comparable to the third mixture of a certain Torah prohibition, for there the sages treated each part of the first mixture as a certain prohibition, as I wrote, and each is considered a certain Torah prohibition; consequently, one may not eat the entire third mixture at once, as we explained. But in a doubtful prohibition, it is impossible to treat it as a certain prohibition. And according to the logic itself, there is a double doubt even in the first mixture, except that we discounted it because one may not combine the doubt of a mixture with the doubt of the object, as I wrote. However, in any event, in the second mixture where there is a double doubt in the mixture, when we also combine the doubt in the object itself, it becomes three doubts. Therefore, it is certainly possible to say according to the opinion of the author of the Issur VeHeter to permit the entire second mixture to be eaten all at once. And regarding this, I say that our teacher, the Rema, saw with his pure intellect that there are arguments leaning this way and that; therefore, he left the matter unspecified [so it appears to me].

He further wrote that some say that for a davar sheyesh lo matirin, one should not permit it by means of a sefek sefeka, and it is good to be stringent if not for a necessity, since it will have a permit regardless. Thus far his words. And according to the reason, it implies that even in a third mixture one should not permit it, and so wrote explicitly the Mordechai at the end of the third chapter of Avodah Zarah, see there. And even though regarding a doubt of muktzah he permitted in Orach Chaim siman 497 on the second day of Yom Tov due to a sefek sefeka, this is not comparable to a sefek sefeka created through mixtures. For this is what the Sages, of blessed memory, were stringent about regarding a davar sheyesh lo matirin, that it should not be nullified even in a thousand because it will come to a state of permission regardless; if so, what difference is one mixture to me, and what difference are two to me, or what difference are more? Ultimately, it is a matter of nullification. But in a sefek sefeka regarding the essence of the law, one may certainly permit even in a davar sheyesh lo matirin. And this matter was explained by the Rosh, of blessed memory, in a responsum, Klal 2, see there. And this is the reason that later in siman 293 our teacher, the Rema himself, permitted a sefek sefeka regarding the prohibition of chadash, even though chadash is a davar sheyesh lo matirin [Shach subsection 56]. And this is also the reason later in siman 122 that they permitted ordinary vessels due to a sefek sefeka, see there, even though it is a davar sheyesh lo matirin, because the sefek sefeka is in the essence of the matter. And more will be explained regarding this with the help of Heaven in the rules of sefek sefeka [Ateret Zahav subsection 11 and Nekudot HaKesef], and see there in section 135.

The Tur wrote: And that which we permit a sefek sefeka is specifically by means of a mixture as I have explained, but a doubtfully treifa that was mixed with others, all are forbidden until there is enough of the permitted to nullify the forbidden if it is of the things that are nullified; for since the first doubt was in its essence, one may not permit it from a sefek sefeka, etc. And it is not clear, for a sefek sefeka is permitted in all prohibitions, even in idols. Thus far his words. Our teacher, the Beit Yosef, in section 9 ruled not like the Tur, but like the opinion of those who forbid in any sefek sefeka where one is by means of the essence and one is by means of a mixture. And this is the system of Ri, the author of the Tosafot, as the Rashba in Torat HaBayit [Bayit 4, Shaar 2] and the Ra'ah there explained his words, as we will explain with the help of Heaven. But the opinion of the Tur, and it is the opinion of Rabbeinu Tam and the Rosh, is that we say every type of sefek sefeka in the world. And their reasoning appears to be that they hold that the first doubt creates a half-and-half status, and the second doubt tips the permitted to a majority, and it is like a majority. And if so, whatever the sefek sefeka may be, ultimately there is a majority for the permitted. And the reasoning of Ri, the Rashba, the Ra'ah, and the Shulchan Aruch will be explained with the help of Heaven in section 77.

Our teacher, the Rema, wrote regarding this law that a doubtfully treifah that was mixed with others is not a double doubt, and this is his wording: And some say the reason it is forbidden is because since the doubt is a Torah prohibition, and we cannot say a further doubt that there is no prohibition here other than that it was mixed with others, it is not called a double doubt and is forbidden. But if there were two doubts whether there was a prohibition at all, and the two doubts became known together, we permit a double doubt in every place, even in a Torah prohibition and the essence of the prohibition, and even if it had a presumption of prohibition, such as a bird that stands in a presumption of prohibition and its wing was broken or dislocated, doubtfully during life or after slaughter, and if you say during life, perhaps the lung was not perforated, it should be permitted by power of a double doubt; even though it is possible to clarify by examining the lung, there is no concern, and see above siman 53. Thus far his words. And the matters require explanation, and this also follows the approach of Ri, the author of the Tosafot, for according to those who disagree nothing is needed as I have written, and only within the approach of Ri himself do the poskim disagree, and we will explain this with the help of Heaven:

For behold, our teacher Isaac, the author of the Tosafot, said regarding that which is at the beginning of Beitzah where it is taught there: If it was mixed with a thousand, all of them are forbidden—that this refers to a case of doubt. That is to say, that even when there is a doubt whether this egg was laid on Yom Tov or on a weekday, it is also forbidden, and we do not permit it by means of a sefek sefeka. The Rashba explained his reasoning because it is one doubt in the substance itself and one doubt in a mixture. And he clarified his words there, that the intention is not that a sefek sefeka in the substance of the matter is ineffective and only a sefek sefeka created through a mixture is effective because in each of the doubts there is a majority for permission; for in the Shas we find several instances of sefek sefeka in the substance of the matter, such as in the sugya in the chapter "Petach Patuach": doubt if she committed adultery while under him, doubt if she was not under him; and if you say she was under him, doubt if it was by compulsion, doubt if it was by will—where both doubts are in the substance of the matter. Rather, the intention is that the two doubts must be either both in the substance or both in the mixture. And he wrote the reason, and this is his wording: For there in the chapter "Petach Patuach" it is different, as it is impossible for this case to come before you except with two doubts, and you cannot be stringent upon her and say, "How shall we permit her when you have already forbidden her?" as you say regarding a doubt of what was born on Yom Tov, which immediately stood before us in a state of prohibition, and afterwards was mixed with others and this second doubt was added in the mixture. And similarly, in that which we forbade due to a doubt of terefah and afterwards it was mixed with others, how can we say "perhaps this is not it, and if you say it is it, perhaps it was not a terefah"? For have you not already spoken from the moment the doubt of terefot arose in it? And how shall we permit what we forbade because it was mixed with others and say that what we forbade was permitted? Thus far the words of the Rashba, of blessed memory.

And seemingly his intention is explained, that we require that the two doubts come simultaneously, and consequently it is like a majority of permission; but when one doubt comes first and we have already forbidden the matter because of the doubt, a doubt that comes after a period of time is no longer effective. And according to this, even in a case of one doubt in the object itself and one doubt in a mixture, if both came as one—for example, a doubt of treifa was born in a chicken and it immediately became mixed with others, such that the two doubts came as one—it is indeed a sefek sefeka. And conversely, in two mixtures, when the first mixture was earlier and we forbade the mixture, and afterwards over the course of time something from this mixture fell into others, the sefek sefeka is not effective since the two doubts did not come as one. And this can be further explained: just as regarding the permission of a majority, the majority comes simultaneously, but if a large amount of forbidden matter falls into a small amount of permitted matter, even if the permitted matter later increases over the forbidden matter, it is not effective after the mixture became known, as our teacher, the Rema, wrote in siman 99, section 5. And although we explained there in section 34 that it is by reason of a penalty and this does not apply if it fell on its own, see there, nevertheless such is the law. And according to the plain meaning of his words there, the increase is not effective after it became known in any manner, and if so, one could say this regarding sefek sefeka as well. And see in section 85.

But if so, the entire essence is missing from the words of the Tur and the Shulchan Aruch, and also the Rashba himself should not have mentioned at all a distinction between the substance and a mixture, but rather should have said briefly that the two doubts must come at the same time. Furthermore, our teacher, the Rema, wrote this law here, that we require that the two doubts become known together etc., and this is not relevant at all to one doubt in the substance and one doubt in a mixture. Rather, the primary intention of the Rashba is this: that the two doubts must be of one type, either both in the substance or both in a mixture. And he explained the reason: that when the doubts are of one type, both doubts proceed at one time, which is not the case when they are not of one type, for it is necessary to divide them since they are not of one category, and automatically with the first doubt the prohibition remains in its strength, and it is impossible to permit it by means of a mixture. And see what I wrote in section 85.

It is explained from the words of the Rashba that he does not hold to distinguish between a Torah prohibition and a rabbinic one, for whenever the doubts are of one type it is effective even regarding a Torah prohibition, and whenever they are not of one type it is not effective even regarding a rabbinic prohibition. There is clear proof for this, as his words concern a doubt regarding an egg born on Yom Tov, which is a rabbinic prohibition. And even though the discussion in the Gemara there follows the one who holds that the prohibition of an egg is due to preparation, and preparation is a Torah prohibition, nevertheless, this is only regarding Yom Tov following Shabbat; but a standard Yom Tov is rabbinic due to a decree on account of Yom Tov following Shabbat, as is explained there in the discussion. And the Rashba is dealing with any Yom Tov, as is explained from his words in his book Mishmeret HaBayit, where he critiqued the Ra'ah who wanted to say that this is a Torah prohibition, and he critiqued him that this is only a rabbinic prohibition, see there [see Pri Chadash subsection 46 who answered the words of the Ra'ah, and for the law he also concludes that there is no distinction between a Torah prohibition and a rabbinic one, although in the words of the Rashba he did not understand it so, and I do not know from where he has this, and such is the opinion of the Taz]:

Nevertheless, there is a great question regarding this: how is it possible to say that two doubts of one type constitute a sefeik sefeika even regarding a Torah prohibition? If so, in the case of two mixtures that the sages permitted, or three mixtures according to the opinions that have been explained, why did they require a majority of permitted substance in every mixture? For even in a case of half and half it should suffice. It is understandable if a sefeik sefeika of a Torah prohibition is not permitted at all, for then it is well-settled why they required a majority so that it would be permitted by Torah law even in the first mixture; but if even regarding a Torah prohibition it is permitted, why did they require a majority?

Therefore, the Ra'ah wrote there that the reasoning of our teacher Isaac is that we do not say a sefek sefeka is permitted as stated except where in the first doubt it is permitted by Torah law but forbidden by rabbinic law, like this case of mixtures; therefore, the second doubt is a rabbinic doubt. But whenever in the first doubt it is forbidden by Torah law, the second doubt is forbidden by rabbinic law, for it is considered only a single doubt. Thus far his words. And according to his words, it is a general rule that if only the first doubt is forbidden by the Torah, we do not say sefek sefeka at all, because in the first doubt it is a Torah prohibition and the second doubt is a rabbinic prohibition. Therefore, in a mixture of half and half, since it is forbidden by Torah law, a sefek sefeka is not effective, and therefore the Gemara was forced to say that it was nullified by a majority, which is permitted by Torah law. According to this, in the second mixture, half and half would have sufficed, as is understood, only since in the first mixture there must be a majority, therefore we say so also in the second mixture. According to this, also in two doubts regarding the object itself, as long as the first doubt is forbidden by Torah law, it is nevertheless not effective. According to this, all the sefek sefeka in the Gemara regarding the object of the prohibition itself, such as in the case of an open entrance and all similar cases, it is necessary to find that the first doubt permits it by Torah law. And the Ra'ah wrote there that in the case of an open entrance, the first doubt permits it by Torah law because she has a presumption of fitness, and so it must be said regarding all the sefek sefeka in the Gemara [and in truth it is a strained approach, and the Rashba already refuted him in the Mishmeret HaBayit there, and so too one may raise difficulties from several sefek sefeka regarding shechitah and regarding a mikveh, and examine it].

And another way was written by the Ra'ah, of blessed memory, and it is straightforward, and this is his wording: And another version according to our teacher, Isaac, of blessed memory, that any sfeik sfeika in the essence of the forbidden object is permitted, and any sfeik sfeika in mixtures, such as two mixtures, is permitted; but a single doubt in the essence, since it is forbidden by the Torah, is not permitted by a second doubt of a mixture for the reason of doubt, except in a matter that has bitul in a single mixture, and this wording is the clearest of all. Thus far his words. The explanation of his words is that certainly a sfeik sfeika is permitted even if in the first doubt it is still forbidden by the Torah, except that if the second doubt is by way of a mixture, then when the first doubt is forbidden by the Torah—whether it is in the essence of the forbidden object or whether it is a mixture of half and half—then the second doubt of a mixture does not permit it.

And these are the words of our teacher, the Rema, who wrote: "And there are those who say, etc., since the doubt is a Torah prohibition, etc., only that it was mixed with others, it is not called a double doubt and is prohibited; but if there were two doubts whether there was a prohibition here at all, etc." Thus far his words. Meaning, in the first doubt which is prohibited by the Torah, whether it is a doubt in the object itself or a doubt of a mixture of half and half, the second mixture does not avail to create a double doubt. But a double doubt in the object of the prohibition itself is a double doubt even if the first is prohibited by the Torah. And the reason, it can be said, is that in a double doubt in the object of the prohibition, the first doubt makes it half and half and the second doubt weakens the power of the prohibition and it becomes like a majority. But when the second doubt is by way of a mixture, nothing new has been created in the object of the prohibition itself, and the permission of the mixture is not of the same matter as the previous doubt. Even if the previous doubt is also by way of a mixture, yet since it is half and half, it is a Torah prohibition and becomes like a doubt of a prohibition of the object, and then the second mixture does not make it a double doubt. But in a rabbinic prohibition, or where the first doubt makes it a rabbinic prohibition, such as a mixture in a majority of permitted substance, the second mixture certainly makes it a double doubt. [So it appears to me in my humble opinion as the explanation of the words of the Rema, and the words of the Shach in subsection 62, and the words of the Pri Chadash; and also what he wrote regarding the intent of the Rashba has not been clarified to me, and the one who delves will understand, and be precise].

And behold, according to the opinion of the Rashba, of blessed memory, it is difficult why the sages required a mixture with a majority as mentioned in section 79. However, the Rashba himself found this difficult in his book there and answered, and this is his wording: And it is difficult to me, for even when there is no majority, is there not in each and every one in the mixture two sefek sefeka? And perhaps they did not say sefek sefeka to be lenient except by way of two mixtures, and this is according to the opinion of Ri, of blessed memory, that we wrote. And one can further say that whenever a certainty of forbidden matter fell here and there is no majority of permitted matter, we view each of these as the forbidden matter itself, for it is forbidden by Torah law, and therefore we do not follow any such sefek sefeka to be lenient. Nevertheless, one must be concerned for the words of Ri, of blessed memory, who did not permit a sefek sefeka except with two doubts that come by power of two mixtures, and the practical difference is for a doubt of a terefah that was mixed with others, that we do not permit them by power of sefek sefeka etc. Thus far his words. And his words require explanation, and one of the great Acharonim explained his intention that this is what he is saying: that they did not say sefek sefeka to be lenient except in two mixtures according to the opinion of Ri, meaning specifically in a mixture of a majority, for those of half and half are a doubt in the forbidden matter itself, and the second doubt that is by way of mixture does not join with this. And one can further say that even according to the opinion of Rabbeinu Tam that we join two doubts however they are, nevertheless the sages were more stringent in a mixture of half and half than a doubt in the forbidden matter itself, for in a mixture of half and half we view each one as the certainty of the forbidden matter itself and we do not follow such a sefek sefeka to be lenient; but a sefek sefeka of the body is lighter, and we join to it the second doubt of mixtures. However, in practice one must be concerned for the words of Ri, not to make one doubt in the body and one doubt by way of mixture [as it appears from the words of the Pri Chadash, siff katan 46, see there].

And behold, the great Acharonim raised a difficulty against our teachers, the authors of the Shulchan Aruch: why did they require all of this? For since they ruled in section 8 like the Rambam, who requires three mixtures, if so, even if we judge a doubtful terefah in a complete mixture, it would be like two mixtures and forbidden according to them. And if so, why did they require other reasons? [Shach, subsection 61 and Pri Chadash there]. And in my humble opinion, it is not difficult at all, for we have already explained that the opinion of the Rambam, who requires three mixtures, is perforce because he equates each first mixture to a certain prohibition and not to a doubtful prohibition, as I wrote at the end of the previous section. If so, there is certainly a reason to be lenient regarding a doubt in the essence of the prohibition from a mixture, even though it was nullified by a majority; for there the sages treated it as a certain prohibition, while here it is only a doubtful prohibition. Therefore, they were forced to provide other reasons.

And behold, our teacher, the Rema, wrote that regarding two doubts in the substance itself where both doubts became known together, we permit even in a Torah matter and the substance of the prohibition, and even if there is a presumption of prohibition, such as a bird, etc. Thus far his words. And behold, it is clear that in a place where a sefek sefeka is not effective, such as one doubt in the substance and one doubt in a mixture, or where the first doubt is from the Torah according to the opinions that have been explained, even if both doubts became known together it is not effective. And so all the great authorities agreed (Shach subsection 63, and Taz subsection 13, and Pri Chadash subsection 47), unlike those who wished to be lenient in this and say that the fact that a doubt of substance and a doubt of mixture is not effective is only when one doubt became known first and it was prohibited and afterwards the second became known; but when both became known as one, even in such a case it is a sefek sefeka (Responsa Meishiv Arayot and the Beit Yosef in the name of Mahari Kohen at the end of siman 57). And this is similar to the things we wished to say in section 76, but all the great authorities disagree on this, and so is the primary ruling, as I wrote in section 77; see there.

Indeed, they raised a difficulty against our teacher, the Rema, regarding what he wrote concerning two doubts involving the object itself where both doubts became known simultaneously, which implies that it is possible they might not become known simultaneously. They asked: regarding two doubts involving the object itself, how is it possible to find a case where they do not become known simultaneously? [Taz subsection 14 and Pri Chadash subsection 48]. They wrote that in truth his intention is indeed that in two doubts involving the object itself, both doubts became known simultaneously [ibid.], and the forced nature of this explanation is evident. However, in truth his words are correct according to their plain meaning, for certainly we find several cases of sfeik sefeika involving the object itself where it is possible that one becomes aware of the first doubt and afterwards of the second. For example, in Pesachim [9a] regarding the mounds of the Cushites, where we are concerned lest there be a fetus and it will cause tumah in a tent, and a marten goes there which eats the fetuses; and there is a sfeik sefeika: perhaps there was no fetus, and if you say there was a fetus, perhaps the marten ate it, see there. If so, it is possible that first one became aware of the doubt of the fetus and afterwards the doubt of the marten. And similarly there regarding the handmaid of an oppressor who cast a possible fetus into a pit, and there is a doubt if a marten ate it; and there is a sfeik sefeika: doubt if it was a fetus or doubt if it was wind, and if you say it was a fetus, perhaps a marten ate it. And why is it impossible for it to be that first one became aware of the first doubt and afterwards the second? And similarly in Niddah [15b] regarding a woman: doubt if she saw [blood] or doubt if she did not see, and if you say she saw, perhaps she immersed, see there; and here too it is possible to find this, as is understood [according to Pri Megadim ibid.]. And so too in all prohibitions it is possible to find this, such as where a doubt of a prohibition became known to us, and afterwards the food became spoiled and there is a doubt if it became disqualified from human consumption, and this doubt was newly created afterwards. And similarly a pot in which a possible prohibition was cooked, and afterwards they cooked permitted food in it, and there is a doubt if the permitted food was cooked within twenty-four hours of the doubted prohibition or after twenty-four hours, and both doubts did not become known simultaneously [see Erekh HaShulchan in the name of Minchat Yaakov]. Rather, certainly his intention is according to its plain meaning: that if both doubts did not become known simultaneously, it would not be a sfeik sefeika.

And from his words it is implied that both doubts must specifically become known together, and if so, even regarding doubts created by two mixtures, they must also become known as one, and if the first doubt became known beforehand, it is not a sefek sefeka. And they wondered about him, for there are clear proofs that even if the first mixture became known beforehand, it is still a sefek sefeka [Taz there in the name of Maharshal]. And it seems to me that our teacher, the Rema, precisely wrote this law only regarding two doubts in the object itself and not those created by a mixture. And there is a great reason for the matter, for regarding doubts in the object itself, when the first doubt became known beforehand, it has already been forbidden according to the law of a doubt regarding a Torah prohibition, and the second doubt is not effective to remove it from its prohibition and it becomes a rabbinic prohibition. But regarding doubts of a mixture, since even in the first mixture there is a majority that is permitted by the Torah and the prohibition is only rabbinic due to it being a significant item or the like, we do not care if the first mixture became known beforehand [and it is possible that even in a mixture it is not effective when known, as I wrote above in siman 99, section 5, that the increase of permitted matter is not effective after knowledge, and here too it is similar; however, we explained there in section 34 that his intention was regarding an increase by hand, see there, and as I wrote in section 76, and examine carefully].

And that which he wrote, that a sefek sefeka is effective even in a case of a chazakat issur, such as a bird which is in a chazakat issur where its wing was broken or dislocated, and it is a doubt whether it happened during its life or after shechitah, and if you say it was during its life, perhaps the lung was not perforated, etc. Thus far his words. His words are perplexing: what kind of chazakat issur is this? For every living creature stands in a chazakat issur regarding shechitah, but not regarding the terefot of the organs. And so our Sages, of blessed memory, said explicitly: An animal in its life stands in a chazakat issur until it is known to you how it was slaughtered; once slaughtered, it stands in a chazakat heter until it is known to you how it became a terefah [Chullin 9a]. And how could he call this a chazakat issur? [And so the Kereti U-Peleti questioned in subsection 32]. Also, regarding the primary law of a sefek sefeka in a chazakat issur, the dispute has increased, and it will be explained with the help of Heaven before us in the rules of sefek sefeka in section 99; see there.

It is known that regarding the fundamentals of doubts, there is a dispute between the Rambam and the Rashba, for the Rambam, of blessed memory, established for us in several places in his work that that which we say "a doubt regarding a Torah law is to be treated stringently" is because the sages were stringent in this, but from the Torah every doubt is to be treated leniently, except in a case where a prohibition was established, such as a doubt regarding a divorce where the prohibition of a married woman was established, or a prohibition was fixed in this place, such as where the Torah required a guilt offering of suspense when there were placed before him a piece of chelev and a piece of fat and he ate one of them and does not know which he ate, for the prohibition was fixed since there was certainly a piece of chelev here and it is like a prohibition was established. But without this, every doubt from the Torah is to be treated leniently. And the proof for this is from that which the Torah said, "A mamzer shall not enter the congregation of Hashem," and we expound in Kiddushin [73a]: A certain mamzer is the one who shall not enter, but a doubtful mamzer may enter. Behold, the Torah permitted a doubt.

The Rashba, of blessed memory, in his book Torat HaBayit [Bayit 4, Shaar 1] rejected his words, for on the contrary, since a verse was necessary for a doubtful mamzer, it implies that all doubts are forbidden by the Torah; for if it were not so, why do we need a verse for a doubtful mamzer? And one cannot say that from this we learn for the entire Torah, for even for doubtful orlah outside the Land we required a Halacha LeMoshe MiSinai that its doubt is permitted, at the end of the first chapter of Kiddushin, and if you were to think that every doubt is permitted by the Torah, why did we require a Halacha? However, there is no proof from there, for there the prohibition was established, since at the beginning of its planting it was certainly orlah. Furthermore, for the one who requires a guilt offering for uncertainty in Keritot even regarding one piece that is either doubtful chelev or doubtful fat, and there certainly no prohibition was established. And according to the Rambam, we shall say that in truth they disagreed on this there in Keritot, and the halacha follows the one who requires one piece from two pieces because of this reason, that with one piece its doubt is to be lenient and does not require a guilt offering for uncertainty. And also the Ran at the end of the first chapter of Kiddushin disagrees with the Rambam, and also the Ra'ah appears to have agreed with the Rashba since he did not critique him. And the Ra'avad appears explicitly to have agreed with the Rambam. And regarding the opinion of Rashi and Tosafot, the great later authorities decided that it is proven from several places in their words in the Shas that they hold like the Rashba, except for the Pri Chadash who decided like the Rambam from the sugya at the beginning of the eighth chapter of Yoma; and see what I wrote in section 93.

And behold, the Rashba brought a proof for his words from Chullin [11a], from the sugya of the majority, as the Shas brought a proof that we follow the majority from the Pesach offering, as it is written: "and you shall not break a bone in it," and let us be concerned lest the membrane of the brain was pierced; rather, it is because we follow the majority, and similarly from the Red Heifer. And according to the Rambam, there is no proof that we follow the majority, but rather because the Merciful One permitted a doubt. And the great authorities wrote that it is a decisive proof, but according to the opinion of the Rambam, one must say that since it is in our power to clarify, we do not say the doubt is judged leniently [the Maharit and the Pri Chadash, and I wonder at this, for certainly from the Torah it is not relevant to say that whenever it is possible to clarify we must clarify, and a proof for this is that it is agreed upon that a double doubt according to rabbinic law is like a single doubt from the Torah according to the Rambam, and we hold that regarding a double doubt, even if it is possible to clarify, one need not clarify, as our teacher, the Rema, wrote at the end of this siman, and so too regarding a Torah matter with a single doubt [and the Minchat Yaakov in Torat Chatat, klal 59, disagrees with the Rema, see there].

However, in my humble opinion, this is no proof, for what is the connection between a positive commandment and a doubt regarding a Torah law? If so, we should also say according to the Rambam that when there is a piece that is doubtfully chametz and doubtfully matzah, one should fulfill the obligation of matzah with it. Rather, certainly it is the opposite: just as according to his view regarding a doubtful prohibition it is not prohibited by the Torah, for the Torah only prohibited a certain prohibition, so too regarding a positive commandment, the Torah commanded to perform a certain mitzvah and not a doubtful mitzvah. For just as a doubtful prohibition is not a prohibition, so too a doubtful mitzvah is not a mitzvah. And when the Torah said to eat matzah, it must be certain matzah. According to this, it follows automatically that when the Torah commanded to bring a Korban Pesach and a Parah Adumah, they must bring a certainly valid Pesach and a certainly valid Parah Adumah, and not one of doubt. Rather, certainly we follow the majority. And should you say that this is certainly valid because a doubtful prohibition is not a prohibition at all—what do you see to follow the prohibition? Let us follow the mitzvah, for the Torah said a certain mitzvah and not a doubtful mitzvah. Rather, certainly we follow the majority [and I found that the Chavat Da'at also wrote in this vein, and with this many difficulties fall away].

And I further say that the dispute is only regarding a situational doubt, such as a piece that is a doubt if it is chelev or fat, a doubt if it is tamei or tahor, and the like. However, a permanent doubt, such as a koy which is a doubt if it is a wild animal or a domestic animal, or bein hashemashot which is a doubt if it is day or night, and the like—these do not belong at all to this dispute. For in these, it is possible that even those who hold that a doubt regarding a Torah law is stringent by Torah law would here concede to the Rambam. For example, regarding the chelev of a koy, the Torah said "all chelev of an ox, a sheep, or a goat," which are certain domestic animals, and a koy is not included in this. And similarly, regarding bein hashemashot, the Torah said "day" and "night," and this is neither day nor night. And one can similarly say the opposite, as is understood. In any event, such matters do not belong to this dispute [so it appears to me, and with this many proofs are removed].

And similarly, matters of tumah are not relevant to this dispute, for all the laws of tumah and taharah are a halakhah given to Moses at Sinai, as is well known in the Shas, and one does not derive rulings from them. And similarly, where there is a chazakah, our teachers do not disagree; for when there is a chazakah toward permission, even the Rashba admits that a doubt is ruled leniently, such as a doubt regarding kiddushin where we establish her status based on the chazakah of being an unmarried woman. And conversely, regarding a doubt in divorce, even the Rambam admits that we establish her status based on the chazakah of being a married woman. And that which they permitted a captive woman to a kohen is because she makes herself repulsive to the captor, and it is like a chazakah toward permission. And that which the Torah forbade a woman of doubtful sotah status to her husband is because there is a basis for the matter, for he had warned her and she was secluded, and it is like a chazakah toward prohibition.

And there are those who brought a proof for the Rambam from the fact that we do not observe two days of Yom Kippur due to doubt like all the festivals, and they answered according to the Yerushalmi that there is danger in fasting two days. And they questioned that they should eat less than the shiur [Kenesset HaGedolah], according to the one who holds that a half-measure is permitted by the Torah; however, even without this, certainly the Yerushalmi does not mean actual danger, for behold many people fast two days, and in the Yerushalmi in Shevuot it is stated that for up to seven days it is within one's ability not to eat. And the danger that the Yerushalmi mentions, the intention is that it is a very difficult matter, similar to danger. And a proof for this is from what is stated in Rosh Hashanah [21a] that Rava would always fast two days, and Rav Nachman was once required to fast Yom Kippur for two days and called out regarding this, "Blood shall be its end," and Rashi explained: I am dying because of you, that you require me to fast two days, etc. Thus far his words. And certainly if the words were according to their plain meaning, Heaven forbid for Rav Nachman to do so, for nothing stands before pikuach nefesh; rather, the intention is that this matter is very difficult and is similar to danger. However, there is no starting point for this question, for the sages of blessed memory already said in Rosh Hashanah [19b] regarding this: From the days of Ezra and onward, we have not found Elul to be intercalated. And the Tosafot explained there that only in the days of Ezra was it intercalated once, and if so, in most years Elul is deficient, and there is no doubt from the Torah as to when Yom Kippur is. Therefore, even at a time when the month was fixed by the great beit din in Jerusalem, those far away did not need to be concerned by Torah law for Yom Kippur. And even according to Rabbi Meir, who is concerned for a minority, this is like a minority of a minority, for behold we see the calendar from the creation of the world now that Elul is deficient, and this is only a remote occurrence. And as for the fact that they were not concerned by rabbinic law to observe two days of Yom Kippur as with all the festivals, for this the answer of the Yerushalmi is sufficient, that it is similar to danger, and in such a case the rabbis did not decree. The general principle of the matter: there is no clear determination in this dispute, and it remains a legal doubt whether the halacha is like the Rambam or like the Rashba.

The matter of a sefek sefeka is that it is like a majority, because in the first doubt it is half and half, and the second doubt tips it to a majority, and according to this it is like a majority. And some say it is superior to a majority, and the proof is that for Rabbi Yehoshua regarding lineage, a majority is not effective, as is found at the end of the first chapter of Ketubot, yet in a sefek sefeka he permits in the case of a "widow of a dough-mixture" there. However, there is no proof from this, for there are many doubts there, and also a majority and a chazaka for permission, and by law there is no need at all for the sefek sefeka, but they made a higher standard for lineage. And we have already explained this in Even HaEzer siman 2, section 21; see there. And also, that which a majority is not effective is due to a decree of kava, as is found there: a decree of the majority of a group on account of the majority of the city, etc., where she went to them, and "everything that separates," etc.; see there [Pnei Yehoshua in the Kuntres Acharon there].

And some say that a majority is preferable to a double doubt, and there is also a proof from a "dough widow" according to Rabban Gamliel, for the halakha follows him, and he holds there that a certain claim is preferable to a double doubt, see there. And a presumption is preferable to a certain claim, for in a case where a prohibition is established even a single witness is not believed, as is written in siman 127, and all the more so the litigant himself is not believed with his own certain claim. And a majority is preferable to a presumption; if so, all the more so a majority is preferable to a double doubt [ibid.]. And this too is no proof, for that which according to Rabban Gamliel a certain claim is preferable to a double doubt is because the certain claim has a presumption and a "since" argument, as is explained there in the Gemara [Yevamot 12b]. And that which in a case of an uncertain claim a double doubt is not effective, this is because they applied a higher standard to matters of lineage and not from the core of the law. And with a certain claim, a higher standard is not relevant to Rabban Gamliel since she says "it is certain to me," but with an uncertain claim a higher standard is relevant, and it is not because a certain claim is preferable to a double doubt.

And it is possible to bring a proof that a sfeik sfeika is superior to a rov, for behold, there are several Tannaim in the Shas who are concerned for a minority; is it to be suggested they do not hold of sfeik sfeika? Rather, it must be that sfeik sfeika is superior to a rov. However, even this is no proof, for regarding a rov, this is the reason: because they hold that we say "join the minority to the chazaka" and the rov is weakened, as is well known in the Shas, that those who are concerned for a minority only do so in a place where there is a chazaka for prohibition. And if so, even a sfeik sfeika in a place where there is a chazaka for prohibition is not effective according to several poskim, as will be explained. And even according to the poskim who hold that a sfeik sfeika is effective in a place of chazaka, there is also no proof, for in every rov there is necessarily a minority, and we join the chazaka to the minority; whereas in a sfeik sfeika there is not necessarily a minority, and only the chazaka remains, and a sfeik sfeika which is in the majority is superior to a chazaka. On the contrary, there is proof that a rov is superior to a sfeik sfeika, for behold, a rov is certainly superior to a chazaka, yet according to several poskim we do not say sfeik sfeika in a place of chazaka. However, one could say that the reason we do not say sfeik sfeika in a place of chazaka is because the chazaka removes the first doubt and there is no sfeik sfeika here, as will be explained. Nevertheless, according to those who hold that in every type of chazaka we do not say sfeik sfeika even in a place where the chazaka does not remove the first doubt, certainly a rov is superior to a sfeik sfeika.

And whether a double doubt is effective in a place of a presumption of prohibition is a dispute among the great authorities, for the Rashba, of blessed memory, wrote in a responsum [siman 401] that it is effective. However, they disagreed regarding his intent: for some say that even in a case of an actual presumption of prohibition that pertains to the essence of the double doubt, we say a double doubt—for example, a double doubt regarding shechitah where the presumption and the doubts are both regarding the matter of the shechitah. And some say that we do not say a double doubt such as this, for since an animal in its lifetime stands in a presumption of prohibition, if so, the first doubt is removed because the presumption nullifies it. But when the double doubt is regarding the matter of a defect of the limbs, such as when the double doubt is regarding the matter of a clawing, where the presumption that it is not slaughtered is not relevant to the double doubt—and on the contrary, an animal does not stand in a presumption of being clawed—we say a double doubt [Taz subsection 15 and Shach note 29]. And similarly when the double doubt is regarding the matter of mixtures [Taz ibid.]. And some say that with three doubts, even in a presumption of prohibition that pertains to the essence of the double doubt, we say a double doubt, for even if you remove the first doubt from here, it is also permitted because there is a double doubt [Shach ibid.]. And there are those who disagree even in this, for since ultimately the presumption removes the double doubt, what difference is it to me if there are two doubts or if there are three [Taz and Pri Chadash]. However, some say that a double doubt is effective in every case, even that which pertains to the essence of the double doubt [Pri Chadash in the rules, note 16]. And the proof for this matter is that all our teachers in responsa regarding the matter of an agunah permit based on a double doubt, and you have no greater presumption of prohibition than this, for she is in the presumption of a married woman. However, from this there is not such a proof, for the presumption that she would investigate and then marry weakens the presumption of being a married woman, as this is the primary reason that the sages believed a woman and a witness based on a witness, as is explicit in the posking and in Even HaEzer siman 17 [and in vain did the Gaon, the author of Pnei Yehoshua, make a clamor in the Kuntres Acharon to Ketubot regarding this, see there].

It appears clearly that this is a legal doubt, as Rashi, the Bartenura, and the Rambam hold that even in a case of a chazaka we also say sfeik sefeika, while the Tosafot hold that in a case of a chazaka we do not say sfeik sefeika. For we learned in a mishnah at the beginning of the fourth chapter of Keritot: If it is a doubt whether he ate chelev or did not eat it, and even if he ate, it is a doubt whether there was a shiur and a doubt whether there was not. Our teachers, the authors of the Tosafot, explained, and this is their wording: And even if he ate from the forbidden substance, it is a doubt whether he ate a kezayit, and it teaches us that even in a case of sfeik sefeika one brings an asham talui. Thus far their words. Behold, they hold that in a place where an issur was established, we do not say sfeik sefeika, for the Tosafot explain that that which we learned in the mishnah, "doubt whether he ate or did not eat, and even if he ate, doubt whether there was a shiur or doubt whether there was not," it is all one thing. Consequently, according to that which we established, that specifically in the case of one piece from two pieces is one liable for an asham talui, as we require that an issur be established, which is like a chazaka of issur, and even sfeik sefeika is not effective; behold, according to the opinion of the Tosafot, we do not say sfeik sefeika in a case of a chazaka [and the Pnei Yehoshua there brought this proof, see there].

But Rashi, of blessed memory, explained in the Mishnah, and this is his wording: And even if he ate, for example, thinking it was fat and afterwards it became known to him that it was chelev, but it is a doubt whether there was a kezayit in it or whether there was not in it. Thus far his words. Behold, he explains that this is a matter unto itself, and so wrote the Bartenura; see there. And it is explicitly clarified, since they did not explain like the Tosafot, it implies that they hold that if there were a sefek sefeika, one is not liable for an asham talui. And so it is clarified from the words of the Rambam, chapter 8 of Shegagot, law 2, and this is his wording: One is not liable for an asham talui until there is a fixed prohibition. How so? He ate chelev and it is a doubt whether it was a kezayit or less than a kezayit, or there were before him a piece of chelev and a piece of fat and he ate one of them and does not know which of them he ate. Thus far his words. Behold, he explains like Rashi and the Bartenura, and he also holds that in a case of sefek sefeika one is not liable for an asham talui because we say sefek sefeika in the place of a chazakah, and it turns out that this law is a dispute of the authorities and is a legal doubt.

And also our teacher, the Rema, who holds that we apply a double doubt in a case of a chazakah of prohibition, it is not a complete chazakah that contradicts the doubt. For he only wrote this regarding a wing that was broken or dislocated, where the chazakah of prohibition has already passed and gone by means of a valid shechitah, and the doubt perforce is that it occurred after shechitah. For if we had seen while it was alive that the wing was dislocated, there would be no doubt here; rather, we saw this after shechitah, and the doubt arose that perhaps it was so while alive as well. And behold, he himself ruled in siman 50 that regarding anything where it is possible to attribute it to having occurred after shechitah, we say "once slaughtered, it is permitted," see there. And if so, on the contrary, there is a chazakah of permission here of "once slaughtered, it is permitted." And that which he wrote here "chazakah of prohibition," his intention was regarding something that had a chazakah of prohibition in it, but regarding something that has a complete chazakah of prohibition, such as a double doubt in shechitah, we certainly do not say so. And in any event, it is a legal doubt as I have written.

Our teacher, the Beit Yosef, wrote in section 10: A treifah lung that was found among kosher lungs, and the checker said that he knew of that sircha and by error that treifah lung was mixed among the kosher ones, and there was no mixing among the sheep—the sheep are permitted. Thus far his words. For wherever a prohibition has not been established, a single witness is believed to permit, as is written in siman 127, and all the more so in this case where the animals were established with a presumption of permissibility. And behold, there is no novelty in this ruling, and it only comes to teach us that you should not say that there is somewhat of a basis for the matter, since the treifah lung was mixed among the kosher ones, presumably the sheep were also mixed; for we see that the checker did not pay attention and did not notice the sircha, for if he had paid attention, he would not have mixed it among the kosher ones. Furthermore, it was not the checker himself who made this known beforehand, but rather other people found the treifah among the kosher ones and afterwards they asked the checker, for so it is explained in the source of the ruling in the Responsa of the Rosh, Klal 20, see there. And I would have said that he is not believed since he did not notice it himself beforehand; and it comes to teach us that since a prohibition was not established, he is believed.

[1] The rules of sfeik sfeika are many, as our teacher, the Shach, of blessed memory, delved into and expanded upon, and after him the geniuses of the world, the Pri Chadash, the Kereti U'Peleti, and the Pri Megadim, followed and strengthened them, and we shall proceed according to the order of their words with the help of Heaven. Behold, it has already been explained that one doubt regarding the substance and one doubt regarding a mixture, or when the first doubt is a Torah prohibition, we do not say sfeik sfeika. And a sfeik sfeika against a chazaka of prohibition is a dispute among the great authorities, and consequently, in a Torah matter we follow the stringent view and in a rabbinic matter the lenient view. However, regarding what one of the great ones raised an outcry about—that they permit an aguna based on a sfeik sfeika even though she has a chazaka of a married woman—we have already written that the chazaka that she will be exacting and then marry weakens the chazaka of a married woman, and also weakens the husband's chazaka of being alive. To what is this similar? To a single witness who is believed regarding shechita; even though it stands with a chazaka of prohibition, nevertheless, since it is in his power through the act of shechita to remove it from the chazaka of prohibition, he is believed. So too here, since it is in her power to investigate, inquire, and be exacting, and she performs an act to marry a man, and if she is not properly exacting she will be forced to leave both of them and the child will be a mamzer, as we learned at the beginning of Ha'isha Rabba, it is like an act that removes it from the chazaka, and one should not cast doubt on this.

[2] A doubt regarding a Torah law is resolved stringently. And where a prohibition was established or a prohibition was fixed—for example, two pieces, one of chelev and one of fat, and a doubt fell upon this—according to all opinions it is stringently from the Torah, for regarding such a doubt one brings an asham talui. However, where it was not established and not fixed, according to the opinion of the Rambam it is rabbinic, but from the Torah one follows the lenient path; and according to the opinion of the Rashba, it is from the Torah stringently. Similarly, matters that are a halakhah le-Moshe mi-Sinai or matters learned through the thirteen hermeneutical principles, their law is like a Torah law [Peri Chadash]. But a doubt regarding a rabbinic law is resolved leniently. And some say specifically where a prohibition was not established, but where a prohibition was established, even a doubt regarding a rabbinic law is resolved stringently [Shach, subsection 20], and all the more so according to the one who holds that we do not say a double doubt in a case of an established prohibition, and a single rabbinic doubt is like a double Torah doubt [ibid.]. And some say that a doubt regarding a rabbinic law is resolved leniently even where a prohibition was established [Peri Chadash, subsection 15]. And although regarding impurity we say so in Eruvin [36a], we do not learn prohibition from impurity. And regarding a doubt in an enactment of the Prophets, one must wonder whether their law is like that of the Torah or like a rabbinic law, for we find in the Gemara that the words of tradition are considered like the words of the Torah. Nevertheless, it appears that one follows the lenient path in their doubt. And so appears the opinion of the Ramban, of blessed memory, in the book Torat HaAdam in the Laws of Mourning, who holds that this is neither a Torah law nor a rabbinic law, but rather from an enactment of the Prophets, and one follows the lenient path in its doubt, see there [see Noda BiYehudah, Yoreh Deah, siman 67].

[3] The majority of opinions tend to be lenient regarding a doubt in a rabbinic matter even where there was a presumption of prohibition [Pri Megadim, letter 20], unless it is a doubt regarding the essence of the act, such as a doubt whether one placed an eruv or not, for in this we follow the stringent view even in a rabbinic matter [Magen Avraham, siman 394, subsection 1]. For since there is a doubt regarding the core of the act, it is more likely that the act was not performed, unless it is a matter that is habitual to perform, such as a doubt whether the meat was salted or not, for in this one should be lenient because the habit is such, and certainly the meat was salted according to the custom of the daughters of Israel [Pri Megadim]. And in siman 69 this was explained, see there. And so too, whenever there is a doubt in a rabbinic matter whether an act was performed to permit it—meaning that the prohibition is certain but an act must be performed to permit it, and there is a doubt whether the act was performed or not—we follow the stringent view [Mishneh LaMelech, chapter 4 of Hilkhot Bekhorot, halakha 1]. And this is also for the reason that has been explained. And see what I wrote below, siman 201, section 207, and it requires further study, and there it will be explained with the help of Heaven.

[4] And specifically a matter whose essence is rabbinic, but a matter whose essence is from the Torah, yet through a development became rabbinic—for example, a Torah prohibition that was mixed one into two, which from the Torah is nullified by a majority, and if the prohibition is of the significant items it is not nullified by rabbinic law—its law is like a doubt in a Torah law, since its essence is from the Torah [Shach, note 19]. However, this is specifically when the prohibition was certainly present there; but if there is a doubt here whether the prohibition is present here at all—for example, a Torah prohibition that fell into one of two pots, for from the Torah even in the pot into which it fell it is nullified and permitted, and only by rabbinic law is it not nullified—and since there are two pots here, it is a rabbinic doubt and we rule leniently, as will be explained in siman 111, for since regarding each pot there is a doubt that perhaps the prohibition is not present there at all, we attribute it to be lenient in a rabbinic matter [ibid.]. However, according to this, in a case of the same species and it was spilled, where we attribute it to be lenient even when there is a doubt if there was sixty because it is a rabbinic doubt, as written in siman 98, yet here there is certainly a prohibition and its essence is from the Torah [Pri Megadim]? And seemingly it is an explicit contradiction. Nevertheless, it appears to me that there is no proof from this, for this also is similar to siman 111, because since it was spilled, one can say that there is no prohibition here at all, for the prohibition was spilled entirely. And even though in a liquid substance there is certainly mixing, and in every single part there is a bit of the prohibition and a bit of the permitted substance, as is proven from Rosh Hashanah [13b], nevertheless, in Zevachim [80a] there is one who holds that even in a liquid substance there is no mixing, see there. And if so, one can say that there is none of the prohibition here at all, and in a minimal cause we say a rabbinic doubt is ruled leniently.

[5] And likewise regarding two separate bodies, even though its essence is from the Torah, we say "a doubt in a rabbinic matter is lenient," as in siman 86 regarding an egg laid by a chicken that is a doubtfully a nevela, where we depend on the lenient view because an egg of a nevela is a rabbinic prohibition even though its essence is from the Torah, since the egg is one body and the chicken is another body, and regarding its egg its essence is rabbinic [Pri Chadash, letter 8]. Nevertheless, the reasons are forced. And what appears to me from the words of Rashi in Eruvin [36a, s.v. "ho'il"] is that this stringency regarding a matter that has an essence in the Torah is only when there is some specific reason for it. For example, regarding immersion for a rabbinic impurity, the sages were stringent even in a case of doubt so that people would not treat a doubt regarding immersion for a Torah impurity lightly, see there, because immersion is a matter entrusted to the masses and not everyone has learned the law to know that this is immersion for a Torah impurity and this is for a rabbinic one; therefore, it was necessary to establish a fence. But regarding private questions where all the masses of Israel ask a scholar and they themselves know nothing at all, and the scholar will distinguish the matters with good taste and knowledge, we do not have to be stringent in a rabbinic matter even in a matter that has an essence in the Torah [according to the Pri Megadim, letter 19, who wrote in the name of the Minchat Yaakov a different distinction, and this is his wording: whenever we are lenient in a doubt of a Torah law to say that because of this it should be "a doubt in a rabbinic matter is lenient," this we do not say, thus far his words; and I do not understand his intention, and the book Minchat Yaakov is not with me, and in my humble opinion it appears as I have written, and it is not similar to several matters where they were stringent in a matter that has an essence in the Torah, for in all of them there is a reason, and delve into this].

[6] Any type of doubt, whether a doubt in the law—such as a question that was not resolved in the Gemara—or a doubt of fact—such as in kiddushin and divorces where he threw her the kiddushin or the get and it is a doubt whether it was closer to him or closer to her, and similarly a witness who contradicts a witness, or even two against two where two testify thus and two to the contrary—from the Torah we establish it upon the chazaka [Yevamot 38a], whether for leniency or for stringency. It is only by rabbinic enactment that it is forbidden in a Torah prohibition and is considered a doubt, and therefore in a rabbinic matter we rely on the leniency [Pri Chadash, letter 1]. From the Torah, there is no difference whether they came at the same time or whether they came one after the other. When there are two doubts that contradict one another, even from the Torah it is forbidden to do both, for he is certainly performing a prohibition. This applies to one man, but for two men it is fine [ibid.]. If another person acted on behalf of two people in a matter that contradicts itself, if the matter is a Torah subject, both actions are void; if it is a rabbinic matter, both actions stand, for in a doubt of rabbinic law we rule leniently [as above from Shabbat 34a, see there].

[7] There is one who says that even according to the one who holds that "a doubt in a Torah matter is resolved leniently" is from the Torah, nevertheless, even from the Torah, when it is possible to clarify the doubt, one is obligated to clarify [Pri Chadash]. We have already written in section 91 that this is not our opinion, see there. And in a sfeik sfeika, even by rabbinic law one is not obligated to clarify, as our teacher, the Rema, wrote, as was written there. Every rabbinic sfeik sfeika is treated like a doubt in a Torah matter. And even though regarding the principle that "most who are found near slaughtering are experts," we established in siman 1 that wherever it is possible to clarify, we clarify, it is different there because most people do not slaughter. Therefore, even though most who are found near slaughtering are experts, nevertheless, since most people are not so, one must clarify. But regarding all types of majorities, we have not found that it is necessary to clarify, and likewise in a sfeik sfeika. Consequently, regarding the Torah law in a single doubt, there is no practical difference in this, since by rabbinic law, even according to the Rambam, a doubt in a Torah matter is resolved stringently.

[8] There is one who says that anything that remains in the Gemara as a teiku, or that which was not resolved in the Gemara, one may not create a sefeik sefeika from it; and even if there are two or three doubts regarding a legal doubt, they are all considered as one and we proceed stringently [Pri Chadash, letter 11]. And I do not understand this reasoning at all, for ultimately it is a doubt, and why should we not combine them into a sefeik sefeika? Behold, the Rif, of blessed memory, wrote in the sixth chapter of Shabbat regarding a query in the Gemara concerning one who fastens [a cloak] over a stone or over a nut and it remained as a teiku, and this is his wording: And we established that any teiku regarding a Torah matter is for stringency, and regarding a rabbinic matter is for leniency. Thus far his words. And automatically, since regarding a rabbinic matter we perform an action for leniency in a doubt of the Gemara, it automatically proves that it is a complete doubt, and in a Torah matter we act stringently according to the law of a Torah doubt. But when there is another doubt to this, why should we not combine it into a sefeik sefeika? And so it is explicitly proven from the words of our teacher, the Beit Yosef, above in siman 59 regarding the law of a geludah, as he wrote in the reasoning of the Rambam there that since the query was not resolved in the Gemara, and for this there is another doubt, it is a sefeik sefeika. And so wrote the Lechem Mishneh in the third chapter of Shechitah, that it is a sefeik sefeika in such a case, for he raised a difficulty there regarding the matter of chuldah, that it is a sefeik sefeika. And so wrote the Acharonim [Pri Megadim in the Mechudashim, letter 4, and so he wrote in the name of Torat HaShelamim, see there]. And similarly, I saw one who wrote that regarding a decision of the Rema against the Beit Yosef, one should not consider the opinion of the Beit Yosef as a doubt, and these are astonishing matters to me. Only a single opinion against many regarding a Torah prohibition should not be combined as a doubt, but in a rabbinic matter and in a time of pressing need, even this is a doubt. And so it is implied in Niddah 6, an incident occurred and Rabbi acted according to Rabbi Eliezer, etc., see there, for it was regarding a rabbinic matter; and look closely.

[9] One does not extract money based on a sefek sefeka, for since a sefek sefeka is like a majority, and we hold that in matters of money we do not follow the majority, the same applies to a sefek sefeka. And even according to the one who holds that a sefek sefeka is superior to a majority, nevertheless, the chazakah of money is superior. However, it could be said that regarding a majority, the possessor can say, "I hold that I am from the minority," as I wrote this reasoning in our work on Choshen Mishpat, siman 82, in the rules of migo; but regarding a sefek sefeka, it is not applicable that there is a clear minority. Nevertheless, we have not found anywhere that money is extracted based on a sefek sefeka. And know that seemingly from the wording of the Tosafot in Ketubot [9b, s.v. "ei"], it can be proven that money is extracted based on a sefek sefeka, for they wrote, and this is their wording: And it is difficult, why should she lose her ketubah, for is there not a sefek sefeka etc. Thus far their words. However, they were precise in their words to say "why should she lose her ketubah," for since she has a ketubah, she is considered like a possessor. And the proof is that his credibility is only regarding the ketubah and not regarding the tosefet, as is written in Even HaEzer siman 68, and only regarding the ketubah did the sages believe him, because they instituted the ketubah and they believed him when he says "I found an open passage" because of the chazakah that a person does not trouble himself with a feast and then ruin it, see there. Otherwise, she would extract money from him with her ketubah, for she is like a possessor. And for this reason they rightly questioned, is there not a sefek sefeka, meaning that a sefek sefeka is superior to a chazakah [see the Beit Shmuel there, subsection 22, who wrote that by means of a migo the document of the ketubah in her hand is strengthened, and all the more so by means of a sefek sefeka; and the Pnei Yehoshua there questioned the Tosafot and was forced to answer based on the reasoning of "certain and uncertain," see there, but this is not necessary, and the matters are clear as I have written, and examine it].

[10] In a case where there is a double doubt to be stringent, even regarding a rabbinic prohibition, we follow the stringency. For example, a woman who brought into her house fatty meat and milk, and it is a doubt in her hand whether she salted them all as one and the meat and fat were forbidden by the milk, or whether she did not salt one thing and cooked the meat. And even though this is a rabbinic prohibition, as blood that was cooked is rabbinic, nevertheless there is a double doubt to be stringent: perhaps you salted them all as one, and if you say you did not salt them all as one, perhaps she left the meat without salting [Pri Chadash siman 69, subsection 44]. And so too in all rabbinic prohibitions in such a case. And the reason for the matter is that just as regarding a Torah prohibition whose doubt is for stringency, when there is a double doubt we rely on it to be lenient because it is like a majority for permission, so too here regarding a rabbinic doubt where we follow the leniency, when there is a double doubt to be stringent it is like a majority for prohibition [Mishneh LaMelech chapter 4 of Bechorot].

[11] The previous law was written by the great authorities, and it also appears so from logical reasoning. However, we did not learn so in Mikvaot chapter 2 regarding a light rabbinic impurity: one who is in doubt if he immersed or did not immerse, and even if he immersed, there is a doubt if it contains forty seah or a doubt if it does not. And the Bartenura explained that there are two points of weakness: perhaps he did not immerse at all, and even if you say he immersed, perhaps there were not forty seah; see there. And so wrote the Tosafot in Eruvin [35b, s.v. safek], and this is their wording: This double doubt was mentioned for the sake of the novelty of the latter clause, that even so, in a light impurity, he is pure. Thus far their words. And so too in Yadayim chapter 2 [mishnah 4]: straw where there is a doubt if work was performed with them or a doubt if it was not performed, a doubt if they have the required measure or a doubt if they do not have the required measure, a doubt if they are impure or a doubt if they are pure—their doubt is pure. And the Rash explained that even if there are all these doubts, he is pure; see there. Behold, it is explicit that regarding rabbinic matters, we do not say even a double doubt to be stringent. And although we wrote that we do not derive a prohibition from impurity, that is regarding Torah law, because all the laws of impurity are a received tradition; but in rabbinic matters, if it were to enter your mind that in all rabbinic prohibitions when there is a double doubt to be stringent it is forbidden, they would not have been so lenient in rabbinic impurities. And even Rabbi Yose who disagrees in Mikvaot there, it is because of the presumption of status, for one establishes the person in his presumption of being impure, as is explained in Eruvin ibid. On the contrary, from the first Tanna there is a proof that in rabbinic matters, even where there is a presumption of a prohibition and even with a double doubt to be stringent, we follow the lenient path. And this requires deliberation [see Mishneh LaMelech chapter 10 of Mikvaot and Noda BiYehudah Tinyana siman 64 who were aroused by all this, and he wrote that it is because of the presumption of purity of the pure items, but it is not clear at all, for in all doubts we only have to judge the matter in which the doubt was born, and if in it there is a presumption of permissibility, we do not care about what will result from this, and so too the opposite; and therefore at the beginning of Niddah the presumption of pure items was not mentioned at all since the doubt is in the woman, and so too in Mikvaot, since this man stands in a presumption of being impure, we do not care about the pure items that will result through his touch. And a proof for this is that Rabbi Yose indeed rules him impure because of the presumption of impurity, and there is no sustenance for the words of the Noda BiYehudah. And also the Mishneh LaMelech retracted there, for so it appears the primary view: the rabbis did not decree in a case of doubt, and even in a double doubt; and so he wrote in the name of Sha'ar HaMelech]:

[12] In any case of doubt where there are grounds for the matter to be forbidden or permitted, it is not called a doubt [Pri Chadash]. Similarly, a common doubt that is close to a certainty is not called a doubt [ibid.]. Likewise, a matter that is uncommon is not considered a doubt [ibid.]. And anything that can be attributed to the permission more than to the prohibition, or to the prohibition more than to the permission, we follow that [ibid.]. This is similar to the matter of "grounds for the matter" that has been explained; that is, according to the perception of the eyes of the teacher, it can be attributed more to permission or more to prohibition, and we follow that, whether to be lenient or to be stringent, whether in a rabbinic doubt or in a double doubt regarding a Torah law.

[13] We learned in a Mishnah in Niddah [29a]: One who miscarries and does not know what she miscarried shall sit for a male, for a female, and for a niddah. Meaning, for a male the days of impurity are seven days and the days of purity are thirty-three days, and for a female the days of impurity are double and the days of purity are double; therefore, she must reckon the days of impurity of a female and the days of purity of a male. Nevertheless, if she sees blood during these days, she shall be as a niddah. Our teachers, the authors of the Tosafot, explained that even though regarding the days of impurity of a female there is a double doubt—a doubt whether there was a fetus here at all, and if you say there was a fetus, perhaps it was a male—nevertheless, since regarding the days of purity it would be the opposite—perhaps it is not a fetus, and if you say it is a fetus, perhaps it was a female—it would be two leniencies that contradict one another. The Tosafot wrote similarly in Bava Kamma [11a]. From this, several of the great authorities learned that if there is a matter of a double doubt that is contradictory, we do not apply the rule of a double doubt. And behold, even though from this there is no clear proof, for in the Gemara there regarding one who is mistaken we are stringent even with many doubts, as the Tosafot themselves wrote there, nevertheless, the logic itself, even without proof, is good and correct.

[14] And in a similar manner, one of the great authorities was precise at the end of the sixth chapter of Bekhorot regarding a tumtum who betrothed a woman and died, that his wife performs chalitzah but does not perform yibbum. Now, a tumtum is a doubt whether male or doubt whether female; and even if he is a male, if he is a saris chamah, his wife neither performs chalitzah nor performs yibbum. And now, behold, she should be able to perform yibbum due to a double doubt: perhaps she is a female and the betrothal is nothing, and if you say he is a male, perhaps he is not a saris chamah and she is permitted in yibbum. And likewise, she should be permitted to the market due to a double doubt: perhaps she is a female, and if you say he is a male, perhaps he is a saris chamah. However, we decree lest she marry into the market and her husband dies and she then marries the yavam, and in any case she would be committing a prohibition; for if he is not a saris chamah, she married into the market under a prohibition, and if he is a saris chamah, she married the yavam under a prohibition [Pri Megadim in the name of the Maharit, see there]. Therefore, even though in one doubt they do not contradict one another—for if she is a female, she is permitted to the market and to the yavam—nevertheless, since against the doubt of saris chamah it is a "contradiction of two sides," we do not say a double doubt. And in my humble opinion, there is no proof from this; for even if we say that in every double doubt, even where it is possible to clarify, one need not clarify, nevertheless, this is certainly in a matter whose way is not to be clarified. But the tumtum, his way is to be clarified by tearing that place, and they know if he is a male or a female, as is found in many places in the Shas: "A tumtum who was torn and found to be a male." And if so, certainly there is an obligation to clarify, and the first doubt is removed. And even if we say that even this is not an obligation, nevertheless, to rely on such a doubt, it is impossible to perform an action, for perhaps it will be torn and it will be revealed that we were mistaken.

[15] We have already written in section 99 that in a place where there is a presumption of prohibition, it is a dispute among the great authorities. Accordingly, it would seem that in a place where there is a definite majority, we do not say sfeik sfeika. However, even in this there is a dispute among the great authorities. For behold, in tractate Avodah Zarah [42a], regarding the handmaid of an oppressor who cast something like a fetus into a pit, and a kohen came and peered in, and the sages declared him pure. Rashi explained that this is due to a sfeik sfeika: there is a doubt whether she cast a wind-fetus or whether she cast a fetus, and if you say she cast a fetus, perhaps mice dragged it away. The Ra'avad wrote similarly at the end of chapter 9 of Tum'at Met, see there. The Rambam wrote another reason there, and the Ra'avad, of blessed memory, questioned him. The Kesef Mishneh answered there that the Rambam does not hold of this sfeik sfeika because the majority of those who miscarry, miscarry something that imparts impurity, see there. This matter is explicitly stated in the Gemara Niddah [29] regarding a woman who miscarried a fetus, and we say there that the majority of women give birth to a viable child. It appears clearly that Rashi and the Ra'avad hold that we say sfeik sfeika even in a place of a majority, and the Rambam does not hold so, and therefore he was clever to explain that they did not permit it based on the reason of sfeik sfeika [and the question of the Mishneh LaMelech is settled, see there]. However, it is possible that they all hold that we do not say sfeik sfeika in a place of a majority, and that which we say sfeik sfeika is because it is a common doubt; the proof is that according to one answer in the Gemara, they permitted it even with one doubt for this reason, see there and in Pesachim [9a]. This appears to be the primary view [see Kereti U-Peleti], for the primary reason for sfeik sfeika is that the first doubt makes it fifty-fifty, and the second doubt tips it toward permission; since there is a majority, it is not fifty-fifty, and even if in the second doubt there is a majority against it, it does not tip it toward permission. This is especially so according to the one who holds that we require a reversible sfeik sfeika, as will be explained with the help of Heaven. This is also proven from the words of the Tosafot in Ketubot [9a, s.v. "Ve'iba'it Eima"], see there, and from there it is explained that as long as it is not a complete majority, we say sfeik sfeika, see there.

[16] Some say that we require a reversible sfeik sfeika, meaning that every sfeik sfeika consists of two doubts and we begin from the first doubt, as in the case of an open entrance in Ketubot [9a], where we say: there is a doubt whether it was under him or not under him, and if you say it was under him, there is a doubt whether it was by compulsion or by will. And likewise, we could begin first from the second doubt and say: there is a doubt whether it was by compulsion or by will, and if you say it was by will, perhaps it was not under him. But if it is not reversible, such as one who found the knife nicked after shechitah, where there is a sfeik sfeika: perhaps it was nicked by the bone of the neck, and if you say it was not by the neck but by the simanim, perhaps it was nicked during the final minority of the cut. And when you reverse it and say: perhaps it was during the final minority, and if you say it was during the first minority, you can no longer say anything else, and there is no sfeik sfeika here. And similarly, if a bone was broken above the joint and skin and flesh do not cover most of it, and it is not known if it was before shechitah or after shechitah, there is a sfeik sfeika here: perhaps it was after shechitah, and if you say it was before shechitah, perhaps it did not protrude outside. But you cannot reverse it and say: perhaps it did not protrude outside, and if you say it did protrude outside, perhaps it was after shechitah, for after shechitah there is no difference between whether it protruded outside or did not protrude [Shach, note 13]. And there are some of the great Acharonim who disagree and hold that we do not require a reversible sfeik sfeika at all, and they brought clear proofs for this [Pri Chadash, note 15, and the Maharit].

[17] However, even the first opinion admits that specifically in a case where it is as convenient to begin with the second doubt as it is with the first, we require it to be reversible, for we say: what did you see to begin with this doubt? Let us begin with the second, and there would not be a sefek sefeka here. But in a place where, according to the matter, it is more convenient to begin with this doubt, we do not require it to be reversible. For example, if the wing of a bird was broken and it is not known if it was before shechitah or after shechitah, and the reason for the treifut is due to the concern of a perforation of the lung, it is certainly a sefek sefeka: perhaps it was after shechitah, and if you say it was before shechitah, perhaps the lung was not perforated. Even though you cannot reverse it and say: perhaps the lung was not perforated, and if you say it was perforated, perhaps it was after shechitah—for after shechitah a perforation of the lung is not relevant—nevertheless, since the defect is in the wing and not in the lung, it is necessary to begin with the wing and not with the lung. And similarly, if the claw of a lion was found on the back of an ox and we did not see a lion enter among the oxen, it is a sefek sefeka: a doubt whether perhaps it did not enter, and if you say it entered, perhaps it did not claw, and this claw was on a wall and it rubbed there and fell upon it. And you cannot reverse it: perhaps it rubbed against a wall, and if you say it was from the clawing of a lion, perhaps it did not enter—for since it is from a lion, it certainly entered. But from the beginning you must judge if it entered at all, and therefore it does not need to be reversible [ibid. in the name of Rema MiPano].

[18] And there is one who decided that according to the Rambam, for whom every doubt is from the Torah for leniency and is only forbidden by rabbinic law, a reversible doubt is not required, for immediately upon the first doubt the Torah prohibition is removed and we do not concern ourselves with its reversal. However, according to the Rashba, who holds that a doubt regarding a Torah law is for stringency, and likewise according to the Rambam in a case where a prohibition was established or fixed, one may only be lenient with a reversible doubt so that there will be a doubt from every side, and afterward a second doubt in order to remove it from a Torah prohibition [Kereti U-Peleti]. But it seems that it is impossible to say so, for behold the Rashba holds that every doubt from the Torah is for stringency, and he himself wrote in his novellae to Chullin [35b] that a hanging adhesion is permitted by reason of a sefek sefeika: a doubt if it is due to a perforation, and if you say it is due to a perforation, perhaps only the upper membrane was perforated, see there. And you cannot reverse it and say: perhaps only the upper membrane was perforated, and if you say the lower membrane, etc., for after the lower membrane is perforated, it is a terefah. And he wrote similarly in Torat HaBayit regarding a clawed animal, and this is his wording: And I wonder, he sits and remains silent while they chirp, why do we concern ourselves with them? For behold, each and every one stands in a sefek sefeika: perhaps he did not claw this one, and if you say he did claw this one, perhaps he clawed it in a place where it does not become a terefah thereby, etc. Thus far his words. And behold, it is simple that there is no reversible doubt here [and the Kereti U-Peleti only mentioned this according to the Rambam in a case where a prohibition was established, but automatically it must be said so according to the Rashba even without an established prohibition, as is understood, and examine carefully].

[19] Our teachers, the authors of the Tosafot, wrote in Ketubot [9a], and this is their wording: And if you will say, there is still a sefeik sefeika—a doubt if it was by force or if it was by will, and if you will say it was by will, perhaps she committed adultery when she was a minor, and the seduction of a minor is considered force. And one can say that the name "force" is one. Thus far their words. Meaning, that the two doubts are one name: a doubt of force or a doubt of will. From this the poskim learned that every sefeik sefeika must be similar to this. According to this, one of the great ones wondered about the Terumat HaDeshen in his rulings [siman 130] regarding a goat where it is not known if it has given birth for the first time or not, and it gave birth to a male and a female, that the male is permitted due to a sefeik sefeika: perhaps it already gave birth for the first time, and if you will say it had not yet given birth for the first time, perhaps the female emerged first. And he wrote in this wording: And our teacher, Rabbi Moshe, asked me about the matter, and he also meant that it is the name of a single doubt, for the latter doubt does not permit more than the first, and I brought him proof that it is properly considered a sefeik sefeika even in such a case. Thus far his words. And how did he not concern himself with the words of the Tosafot? [Kereiti U'Peleiti].

[20] Furthermore, one must raise a difficulty from several instances of sefek sefeika, such as the doubt regarding a needle in the body cavity, which we permit by force of a sefek sefeika: perhaps the needle did not enter the body cavity, and if you say it did enter, perhaps it did not puncture one of the internal organs. Yet, we are only adjudicating regarding the internal organs, and there is only one doubt here: perhaps they were punctured, or perhaps they were not punctured. And what does it matter to me if they were not punctured because the needle did not enter the body cavity, or because it entered but did not puncture? It is all one category. Similarly, regarding a doubt of chadash, we permit it because of a sefek sefeika: perhaps the grain is from last year, and if you say it is from this year, perhaps it took root before the Omer. Yet, it is all one category, for what does it matter to me if it took root three days before the Omer or a year before the Omer?

[21] And so too regarding a lung adjacent to the chest wall, according to the poskim who permit it by force of a sfeik sfeika—perhaps the defect is due to the chest wall, and if you say it is due to the lung, perhaps the lung was not perforated—behold, it is all one doubt: perhaps the lung was perforated, perhaps it was not perforated. And so too in that which the Rashba wrote regarding a lion that entered among oxen, that it is a sfeik sfeika: perhaps it did not claw, and if you say it clawed, perhaps it did not claw against the body cavity—and behold, it is all one category, for since it did not claw against the body cavity, it is like it did not claw at all. And so too in that which we permit ordinary vessels of Cutheans based on a sfeik sfeika: perhaps they are not ben yomo, and if you say they are ben yomo, perhaps they were used for something that impairs the taste—and behold, it is one category, for even that which is not ben yomo is kosher due to the reason of impairment, and what does it matter to me if the impairment is because it is not ben yomo or because it was used for something that impairs the taste. And many such sfeik sfeika can be found that are one category [ibid.].

[22] And there is one of the great authorities who wrote to distinguish in this manner: that in any case where the defect is clear, such as in a case where he did not find her to have virginity and you must remove the defect by means of a sefeik sefeika, it is required that one doubt permits more than the other. However, in a place where there is no clear defect before us regarding the matter we are adjudicating, but rather we are investigating lest there is a defect here, no condition of the conditions of sefeik sefeika is required. If there are merely two sides to say that there is no defect here, it is properly considered a sefeik sefeika [Chavat Da'at, letter 11]. And in all these that we have reckoned, there is no clear defect here, only that we are concerned due to some occurrence. And it is a great reasoning, for whenever the prohibition is apparent but you wish to remove it from the prohibition based on a sefeik sefeika, two separate doubts are required. But whenever we are concerned that perhaps there is a prohibition, as long as there are two doubts whether there is a prohibition here, even though in essence they are one, nevertheless it is a majority for permission; that is to say, that there is no prohibition here, for perhaps the act was thus, and if you say it was not so, perhaps in another manner it was thus, and automatically the majority is decisive to say that there is no prohibition here at all.

[23] And in a case where two names are required, the intent is that one doubt permits more than its fellow, and based on this they are called "two names," since the two doubts are distinct regarding any law whatsoever, even if the law is not practiced in this time. For example, if a woman has a wound in the source and saw blood, and there is a doubt whether it is from the sides or from the source, and if you say it is from the source, perhaps it is the blood of a wound—this is properly considered a sefek sefeka to permit her to her husband. And even though it is one name, nevertheless, since we establish that "the place of the source is impure," meaning that the blood in the source, even if it is the blood of a wound, the blood is nevertheless impure, as the Rambam wrote in the third chapter of Hilkhot Metamei Mishkav, law 9, see there, and the blood of the sides is completely pure, if so, one doubt permits more than its fellow [Noda BiYehuda siman 47, and see Shach siman 187, subsection 28, and examine carefully]. And so too with anything similar to this.

[24] A doubt resulting from a lack of knowledge is not considered a doubt, for had he been a sage he would have known, and it is impossible to include the opinion of fools. For example, if one needs to estimate in a pot whether there is sixty against the forbidden substance, and the pot with the forbidden substance is before us and we do not know how to estimate, this is not a doubt at all, for a sage would have had the ability to estimate. However, if the pot spilled, it certainly would be a doubt. And so too in all places where the poskim have closed the path for us by saying that we are not experts in examination, and even the preeminent sage is not permitted to take action in this matter, then it is automatically considered a doubt. And so too in all similar cases. And see what I wrote in section 8.

[25] It has already been explained that when the first doubt is a Torah prohibition, we do not permit the second doubt by means of a mixture. Similarly, with one doubt in the object itself and one doubt in a mixture, we do not say sfeik sefeika. And some say that even when the two doubts are in two separate objects, we do not say sfeik sefeika—for example, an egg in its shell found in a chicken that had a doubt of being a tereifah. This would be a sfeik sefeika: perhaps the chicken is kosher, and if you say it is a tereifah, perhaps the egg was completed before it became a tereifah. This is because one doubt is in the chicken and the second is in the egg [Shach, subsection 2]. And there are those who hesitate regarding this, for according to the method of Rashi regarding a "widow of a mixture" at the end of the first chapter of Ketubot, the two doubts are in such a case; see there [Kereiti U'Peleiti]. Furthermore, according to the method of Rabbeinu Tam and the Rambam, we say sfeik sefeika even with one doubt in the object itself and one in a mixture, as I have written. And granted that in this we rule like Ri, the author of the Tosafot, from where do we have the authority to add and equate a distant dispute?

[26] According to the first opinion, even if it was mixed with a thousand, all of them are forbidden, for since the one doubt was removed and there remains only the second doubt, it is a sefeik sefeika through an object and a mixture, and this is not a sefeik sefeika. And similarly, if there are two chickens, one treif and one kosher, and an egg is found between them, and there is also a doubt regarding it whether it was completed beforehand and afterwards mixed—since one of them is certainly treif, the one doubt is forbidden by the Torah and all are forbidden. But if the chicken that is a doubt treif was mixed with a kosher one and an egg was found between them, the egg is permitted even if it was certainly without a shell at the time the doubt of treifot arose; since at the time the egg was produced both doubts were produced together, it is permitted. But if there are two eggs that both of them laid, and one of them is a doubt treif, there is a mixture here of one in one and it is forbidden. [Shach according to]

[27] And so too, if a piece of meat is found between two shops, where in one there is a doubt of terefah and one is kosher, and the shops became mixed—even though the doubt of terefah was known from the beginning, nevertheless, regarding the piece there is a sefek sefeika: perhaps it is from the kosher one, and if you say it is from the other, perhaps it is not terefah. This is a complete sefek sefeika in a single entity [ibid. letter 3]. And they raised a difficulty against him: for it has already been explained regarding a doubt of terefah that was mixed with a thousand prohibited ones, that if one of them was subsequently mixed into a majority it is permitted, but one in one is prohibited [Chavat Da'at]. And this is not a difficulty at all; for certainly if there were only a doubt of terefah it would be prohibited, but here, where there was another kosher shop, when we come to judge the found piece, it is a complete sefek sefeika, for both are in the body of the piece. And it is similar to the egg that was explained; and even though the egg comes into the world with a sefek sefeika, whereas the piece, when it was in the shop, was prohibited—for that is the rule of a doubt of terefah mixed one in one—however, this is true when we are judging the shops. But regarding the piece that separated, and we are judging the piece, not by the principle of "separated" but by the principle that we do not need to judge the shop, it is indeed a sefek sefeika [and the difficulty of the Gilyon Rapa"v is also answered].

[28] Therefore, if in truth there are before us only two pieces, one kosher and one a doubtful terefah, since there is no basis here to begin with "perhaps there is no prohibition at all"—for certainly one of them is a doubtful terefah—if so, both are forbidden, as there is no sefeik sefeika [ibid.]. And even if one of the pieces was lost, one should not permit the other, since there was certainly a doubtful prohibition here. And when you wish to say sefeik sefeika, you must say: perhaps this is not the doubtful prohibition, for the doubt was lost; and if you say this is the doubt, perhaps it is permitted—this would be a sefeik sefeika in two bodies [ibid.]. Furthermore, one doubt is of Torah status, and specifically when one was mixed with two, where by Torah law it was nullified, in that case we permit when one of them was lost, but not in a case of one with one.

[29] A doubtful prohibition that was mixed with a majority of permission, and one from that mixture returned and was mixed with another, behold both are forbidden; and all the more so when it separated and stands on its own, it is forbidden. However, if one fell into a pot and they removed the piece, and only the flavor remained, the pot is permitted, for behold the flavor is not fit to be honored and there is a double doubt here. But when they did not remove the piece, if there is a majority of permitted pieces in the pot, all of them are permitted, for behold there is a double doubt of two mixtures here; and when there is not a majority of permission, it is forbidden [Shach, point 10, in the name of the Agur and according to the explanation of the Chavvat Daat, see there and examine carefully].

[30] If there is a double doubt regarding a matter that is permitted by the Torah but forbidden by rabbinic law, and there is a doubt regarding the rabbinic law, it is permitted. For example, a doubt whether impure fish were salted with pure fish is permitted by the Torah because of a double doubt: a doubt whether perhaps they were not salted together, and if you say they were salted, perhaps there is no fat in the impure ones. And even though by rabbinic law the brine of impure fish that have no fat is also forbidden, nevertheless, there is a doubt whether they were salted with them, and a doubt regarding rabbinic law is adjudicated leniently [ibid. letter 16].

[31] A rabbinic prohibition, such as an egg from a nevelah and the like, if it is a significant item or a piece fit to be served to guests, it is not nullified, just like a Torah prohibition. This is with the exception of meat that was hidden from the eye, which is a stringency of the eye; if not for that, it would be permitted even without a mixture. And so too regarding any rabbinic prohibition, even what they prohibited by law, such as an egg from a nevelah and the like, if there is a doubt whether it is an egg from a nevelah or a kosher one, it is permitted, and even if the prohibition was known before the doubt arose. And so too with anything similar to this [ibid. letter 17]:

[32] But regarding cheese where there is a doubt whether it belongs to an Israelite or a gentile, we do not say in this case that a doubt in a rabbinic matter is ruled leniently, because since the sages forbade it due to a concern of a Torah prohibition, it is treated like a Torah matter [ibid. letter 18]. And there are those who disagree regarding this, for even cheeses are called a matter that has no root in the Torah [Pri Chadash letter 14]. However, a matter that will eventually become permitted is not nullified even in a rabbinic matter, and likewise we do not say "a doubt in the object itself and a doubt in a mixture" even in a rabbinic matter [ibid.]. And regarding a matter that will eventually become permitted, we have explained distinctions in this in section 72; see there.

[33] If a rabbinic prohibition was mixed one with one, even if it is not a significant item, and afterwards one was lost from the world, since the prohibition was established in these two pieces, we do not say in this case "a doubt in a rabbinic matter is to the lenient" [Shach, subsection 21]. But if it was mixed one in two, even in a different species where sixty is required, and one of them was lost, it is permitted even if it is still in the world, since it is a rabbinic prohibition; and if it was mixed in its own species, it is anyway nullified by a majority. However, a rabbinic prohibition, or even a doubt of a rabbinic prohibition, that was mixed one with one—if one of them was afterwards mixed into a majority and it is a significant item or a piece fit to be served to guests, it is not nullified, for each one is considered like the essence of the prohibition since the prohibition was established initially in the two pieces [ibid., subsection 24]. And all the more so a Torah prohibition that was mixed one with one—when it is afterwards mixed into a majority, it is not nullified by reason of a double doubt, for each one is considered like the essence of the prohibition; and only when both mixtures are in a majority is it then permitted by reason of a double doubt. And it has already been explained that it is not called a doubt or a double doubt except when the prohibited and the permitted are equal, but if there is more reason to attribute it to the prohibited than to the permitted, and likewise if the prohibited is more common than the permitted, it is not called a doubt nor a double doubt [ibid., subsection 37]. And likewise, one must not create a double doubt with one's own hands. And know that regarding presumptions, the presumption of the mother is effective for the daughter, whether for leniency or for stringency [Kiddushin 66]. And every posek shall be careful to place all the rules of double doubt before his eyes, so that when he sees fit in his mind to apply a double doubt in any ruling, he shall not stumble, and so that it shall be according to all the rules of double doubt that were explained in this siman; "give to a wise man and he will become yet wiser." And there is one who wished to lock all the paths of double doubt from being applied except for those that were explicitly explained, but this was not pleasing to the great later authorities, and the authority is given to judge and to rule regarding every type of double doubt that may occur in any question, provided that they align with all the rules and details that were explained in this siman.