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Safek Lechumra or Lekula

In Devarim, Perek Chof Gimmel, posuk gimmel the Torah commands Bnei Yisroel not to allow a mamzer to marry a Jewish woman.

There is a famous machlokes Rishonim on the concept in halacha that when you have a safek on a d’Oraysa, we pasken lechumra: is this psak lechumra mi’d’Oraysa or it is only mi’d’Rabbonon? The Rashba on Kiddushin, daf ayin gimmel amud bais brings a Teshuvas Ha’Rambam that since the gemara had to teach us that only a mamzer vadai is unable to marry a Jewish woman, but a mamzer safek may do so, we see that safek d’Oraysa is lekula min HaTorah, it is just the Rabbanan that paskened that it is lechumra. The Rashba argues and says the fact that the Torah gave a special limud for mamzer proves that regarding anywhere else a safek will be lechumra min HaTorah.

The above machlokes is regarding a mitzvas lo sa’aseh. What would be the din when a person has a safek on a mitzvas aseh? There are two opposite approaches to this question.

The Maharit Elgazi in Bechoros, Perek Gimmel, siman mem says that the Rambam will hold a safek d’Oraysa min Hatorah lekula only in the case of a lo sa’aseh. However, in a case of a mitzvas aseh, if one is in doubt whether he was mekayem the mitzvah or not, even the Rambam would admit to the Rashba that the safek goes lechumrah min Hatorah. His reasoning is that we find that a mitzvas asseh is stronger than a lo sa’aseh in the fact that we see the concept of asseh docheh lo sa’aseh. Therefore, both the Rambam and Rashba will opine that a safek asseh d’Oraysa is min HaTorah lechumra. The Chavos Daas explains the Rambam in Yoreh Deah, siman kuf yud that the Torah only forbade things that are vadai assur if one is in doubt the Torah did not forbid it; therefore min HaTorah, a safek is lekulah. In contrast to this, if the Torah commands you to do something, an asseh, then one is not mekayem the mitzvah unless he is sure that he did it and a safek would not be sufficient.

There is a different approach brought down in the Pri Megadim in Orach Chaim, Siman Yud Zayin in Eishel Avraham, ois bais that even according to the Rashbawho is of the opinion in a case where one has a safek on a lo sa’aseh that we go lechumra min haTorah, that is only in a case where one is oveir on a kum ve’aseh, where he is proactive. However, in a case where a person is a shev v’al ta’aseh, where he sits back and does nothing, even the Rashba will agree that safek d’Orayseh lekula min haTorah. We find the gemara in Yevamos, daf zayin, amud alef says that a lo sa’aseh is more chamur than an asseh and Rashi explains that is why a person getsmalkus for transgressing a lo sa’aseh. Therefore, the Pri Megadim says that regarding a mitzvas asseh, one would say safek d’Oraysa min haTorah is lekula.

We just need to add that according to the Pri Megadim, the difference would not be whether it is an asseh or a lo Sa’aseh, but rather whether the safek is a kum ve’asseh or a shev ve’al ta’aseh. They both can apply to both an asseh and a lo sa’aseh.

May we be zocheh to see Eliyahu Hanavi who will be poshet all our sfeikos, including this one.