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Making Sense of Sfeik Sfaika

Sfaika d’Rabbanan l’kulah (a Rabbinic law associated with doubt is ruled leniently) and sfaika d’Oraysah l’chumrah (a Biblical law associated with doubt is ruled stringently) are guiding principles in determining halachah. However, in cases of sfeik sfaika (a double doubt), we rule leniently, even for a d’Oraysa.

The Logic of Sfeik Sfaika

Halachic authorities differ on the rationale of sfeik sfaika. Some justify the leniency due to a preponderance of doubt that pushes probability into the realm of majority (whether by improving the odds, or by creating extra halachic leeway when combined)—and majority rules in halachah. Alternatively, since the principle of sfaika d’Oraysah l’chumrah is of Rabbinic origin (according to the Rambam), a sfeik sfaika is essentially a safek in Rabbinic law—and sfaika d’Rabbanan l’kulah.

The Shach (premier 17^th century commentary on the Shulchan Aruch) in his Klalei Dinei Sfeik Sfaika (Principles of the Laws of a Double Doubt) states that the rules of sfeik sfaika are amukim u’rechavim mini yam (deeper and wider than the oceans) and very difficult to understand. Nevertheless, we will examine some rules.

Unsolvable Doubt

The uncertainty has to be a true safeik; if a person is unsure because of chisaron yediyah (ignorance)—they are unfamiliar with the facts or halachos, and someone knowledgeable can remove the “doubt”—sfeik sfaika cannot be employed.

Independent Doubts

Another rule is sfeik sfaika hamis’hapech (the double doubt is multi-directional), which means that the doubts can be in reverse order and still uphold their logic; one safek cannot be the primary factor of another. This is linked to an additional condition: sfeik sfaika mishnei sheimos (a double doubt of independent topics), where each of the doubts need to stem from a different set of rules within the halachah.

Equal Opportunity Doubts

Another important factor in considering a sfeik sfaika, according to one opinion, is the presentation of safek hashakul (an equivalent doubt), meaning close to a 50/50 chance of heter (permissibility) and issur (prohibition)—a remote chance of heter is not great enough to undermine the issur. But not all sfeikos are categorized as such; in some cases (such as, according to some opinions, a naturally occurring uncertainty) even a safek which is not shakul can qualify.

Not a Handy Heter

Ein osim sfeik sfaika b’yadayim (we do not actively abide by a double doubt) is another rule which has extensive implications in applying heter, whereby we should not put ourselves in a situation of sfeik sfaika initially. It is primarily a tool in unraveling a situation we are forced into by circumstances.

There are many more principles of sfeik sfaika. The Shach writes that there are so many conditions for sfeik sfaika and they are so nuanced, that it is almost impossible to follow the rationale of one and apply it to another; we generally rely only on those scenarios (or close copies) that exist within the codification of halachah itself. Even those who argue with the Shach and take a more liberal approach agree that it is essential to be aware of all the conditions and exceptions of sfeik sfaika—and the distinct examples discussed by poskim—before applying the principle in practice.

Due to the space required to comprehensively study the numerous and complex rules of sfeik sfaika, four classic scenarios that further illustrate the subject (featuring a Kohen-carrying mother, a possibly problematic insect, a nicked slaughtering knife and a breached sheep barn) will appear only in the weekly publication with the footnotes. If you cannot access the weekly printed halachos, please email halacha2go@gmail.com with Halachah #688 in the subject line, requesting the additional information.

The Sheretz Application

An object may become tamei (ritually impure) if it comes in contact with a sheretz (one of eight types of small creeping creatures that transfer impurity—some rodents, reptiles or a mollusk). A person owns something that may have come in contact with a small reptile. If the reptile is a verifiable sheretz (like a lizard), the object is tamei: sfaika d’Oraysa l’chumrah. But if the reptile made off before it could be identified—perhaps it was from the frog family—and the object was not actually observed touching the sheretz, then a legitimate sfeik sfaika occurs. There is a non-evolving nature in the doubts (sfeik sfaika hamis’hapech) and they are two completely independent factors (sfeik sfaika mishnei sheimos). It does not matter whether we first take the uncertainty of the type of reptile or the lack of observance of the contact as fact. In addition, both are in the category of safeik hashakul—there is equal chance that the object was contaminated as not, and there may even be a greater likelihood that an innocuous reptile was present, and not an impure one.

The Fetus Might Be a Kohen

Under normal conditions a kohen may not visit a cemetery or enter a funeral home or a hospital that has a morgue. May an expectant mother who is married to a kohen and therefore potentially carrying a kohen fetus, enter the cemetery? Or go for a prenatal checkup at the hospital? The Rokeach, quoted by the Shach and Magen Avraham, says yes—according to the principles of sfeik sfaika. Perhaps the baby is a girl, for whom there are no restrictions. In addition, a fetus is not considered viable—there is the possibility of it being a nefel (not carried full-term or living less than thirty days). These are not interdependent conditions nor do they relate to each other sequentially, two of the issues which would invalidate a sfeik sfaika.*

The Shechitah Praxis

The shechitah (ritual slaughter) knife has to be perfectly straight at the time of slaughter to produce a kosher shechitah. If the knife was found to be pagum (defective) after the fact, there is a safeik when the nick occurred. Did it happen when hitting the neck-bone after the animal was no longer alive? Even if it occurred before, perchance it was after the majority of shechitah had been completed? This twofold doubt is in no way a halachic sfeik sfaika—there is no possibility to reverse the logic of two options that naturally progress from one another; therefore, the second excludes the first.

A Wolf Among Lambs?

A treifah (lit., preyed, i.e. mortally wounded animal) is forbidden by Torah law. There is fear that a wolf entered a sheep barn, but it cannot be confirmed. Even if it had broken in, did it fatally harm some animals or not? Even though these are two sfeikos, it's not considered a sfeik sfaika since they work in sequence. If we consider the possibility that cattle were internally wounded, we must assume the preying animal did indeed penetrate the barn—and there are no two distinct sfeikos.

*It should be noted that not all contemporary poskim consider this a sfeik sfaika in modern times since sonograms have become routine in prenatal care; in addition the issue of ein osim sfeik sfaika b’yadayim may apply. There are other halachic arguments that ameliorate the situation for the expectant mother of a kohen who needs to go to a hospital, funeral home or cemetery. (On the topic of expectant mothers visiting cemeteries in general, see Halachah #222.)