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This question is a followup to these comments

When the Shulchan Aruch brings two opinions as to what the halacha in a given situation is, the first is brought without a name, and the second is brought as a "yesh (omrim, osrim, matirim)," and does not specify which opinion he prefers (like by writing ונראין דבריהם or וכן נוהגין or some similar wording), which opinion should be followed?

  • Chacham Ovadia in Yabia Omer 8:siman 1 CM brings a distinction of stam vyeish by issur vheter and Choshen Mishpat, by CM one can argue the idea of Kim li and establish his opinion like yeish instead – sam Feb 17 '15 at 18:52
  • @sam Why not post that as an answer? – Shokhet Feb 19 '15 at 20:38
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The principle of Stam v'yesh halacha k'stam is itself a subject of dispute.

  • According to Rav Ovadia Yosef and his sons, when you see a stam v'yesh in the Mechaber, you hold like the stam completely, and don't have to be concerned about the opinion of the yesh at all. Some sources: Yabia Omer vol 9 in his notes on Ohr L'Tziyon, Halichot Olam volume 7 Parshat Korach, Yalkut Yosef Issur v'Heter volume 2 at the end, and Ain Yitzhack (R' Yitzhak Yosef's sefer on klallei hora'ah.)

  • According to the Zivchei Tzedek, the Ben Ish Chai, Kaf HaHayyim OC 13:7, and R' Ben Tzion Abba Shaul if the yesh is more machmir, you have to be machmir for the yesh l'chatchilah, but you can rely on the stam b'diavad. (Interesting to note: both the Ben Ish Chai and the Kaf HaHayyim were students of the Zivchei Tzedek.)

Note that every one of the poskim I just listed is originally from Bagdhad (though all of Rav Ovadia's torah education happened in Eretz Yisrael). I don't know how Moroccan poskim or poskim from other Sepharadi edot hold.

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The Pri Migadim in his pesicha to Yoreh Deah in the section Klalim BiHoraas Issur ViHeter #1 brings a Shach from his Kitzur HanHagos Horaas Issur ViHeter found in siman 242 in Yoreh Deah who says stam viyesh, halacha kistam. However, the Pri Migadim has a few stipulations.

1, this is only when there is no proof to the contrary, for instance in a different siman only the yeish is brought without the other opinion, this yeish is the main opinion.

2, this is only true if the first opinion is openly contradicting the second opinion, if it is not openly contradicting it, then one should choose the stricter opinion.

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