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The classic example of safek de'oraysa le'chumra is when there is an agreement that a de'oraysa exists but there is a debate as to which cases constitute the de'oraysa. In such a debate we paskin le'chumra.

I would like to know about a debate whether a de'oraysa exists altogether or not. Would we say here safek de'oraysa lechumra and paskin that the de'oraysa exists?

My question (essentially) questions what "safek de'oraysa" means. What cases of "safek de'oraysa" do we pasken like the machmir position?

Just to spell it out a little more, I know we say "safek within an already established de'oraysa" lechumrah, but do we say "safek whether there is a de'oraysa or not" lechumrah?

  • "Would we say here safek de'oraysa lechumra and paskin that the de'oraysa exists?" I don't see why saying safek de'oraysa lechumra implies that we must paskin that the de'orays exists. – Double AA Sep 11 '14 at 16:55
  • @DoubleAA I edited my question to explain why (linguistically) I have this question. – Gavriel Sep 11 '14 at 17:16
  • If I am not mistaken, this issue is the crux of the difference between Ashkenazi and Sephardi theology. Ashkenazim hold that it is a Deorita mitzva to go stringent in a case of doubt, Serphardim hold it is a derabannan. – Clint Eastwood Sep 11 '14 at 17:44
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    @ClintEastwood, hard to imagine that it has such theological implications. There are about 4-5 cases (maybe more) that the Rambam et. al. would admit are Torah matters - there is such a thing as an Asham Taluy after all. – Yishai Sep 11 '14 at 19:31
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    If there are three pieces of meat and it is known that one is not kosher, an ashkenazi may eat two of the pieces and the final piece is considered the non kosher one, but for a sephardi, all of the meat is considered kosher. – Clint Eastwood Sep 11 '14 at 20:45
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There is a dispute as to whether beracha me'ein shalosh (al hamichiya etc.) is rabbinic or Biblical. Some Rishonim, for example the Rashba, hold it is Biblical, while others, for example the Rambam, hold it is Rabbinic. So there is a halachic safek about the existence of a Biblical requirement to make a beracha acharona of me'ein shalosh.

The Magen Avraham (O.C. 172:3) is stringent, against the normal rule of safek berachos lehakel, based on this safek. He seems to deal with it as a safek d'oraisa l'chumra.

  • Hmm, maybe he paskens like the Rashba? – Yishai Sep 11 '14 at 19:28
  • Isn't this the first case? We know there is a Deorayta to Bentch, we just don't know if mezonos counts as (sufficiently) bread(-like). – Double AA Sep 11 '14 at 19:52
  • @Yishai he cites it as a יש אומרים. Doesn't seem to be paskening definitively that way. – Y     e     z Sep 11 '14 at 19:52
  • @DoubleAA No - the machlokes about mezonos is not if it is bread. The machlokes is about all shivas haminim, and is about how to read the psukim. See the Rashba on berachos 35a. – Y     e     z Sep 11 '14 at 19:54
  • @YEZ I don't mean conceptually "bread" just something that requires Bentching (I know that's circular). I just mean "there is a debate as to which cases constitute the de'oraysa" so it's the first case, no? – Double AA Sep 11 '14 at 20:05

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