7

I am in the middle of מחלוקת with someone as to, if I originally had a חזקה and now there's a ספק to whether that status is still true, whether I maintain that original status or my status changes to something else.

Example: In (נדה דף ב ע״א) it discusses a case where a woman finds blood today (present) but the last time she checked herself was a week ago (past). Do we say retroactively she is considered טמאה from her last examination or do we say she keeps her previous חזקה and from this point on she's טמאה? In short: Is she impure from her last examination (which makes everything she touched since then impure) or is it from now on she's impure?

  • שמאי says she's impure starting now but she's considered pure since her last examination till now since we aren't positive her status changed till this moment.
  • הלל would say she's impure from back then since we have to assume she was impure the second after she examined herself last time (a week ago).

But then the Gemara says, הלל only holds this way because it's normal for a woman to go through cycles and so we have to assume at some point naturally she was going to become impure and therefore we must assume it naturally happened right after her last examination, otherwise – if we can't assume that the status would change naturally at some point – he would hold like שמאי.

This was one example. But I'm looking for more examples that would back up or disprove this notion that you maintain your previous status until we are positive your status has changed. And once we are positive, only from that point on do you have this new status, not retroactively.

Are there other examples of חזקה העשויה להשתנות where even though there's a ספק we hold that he maintains his previous status until we know for sure he fits into a new category?

Does it mention somewhere that this idea is a blanket rule, that we always maintain his original status unless proof that he's for sure the other way around/ something else?

  • perthaps it is חזקה העשויה להשתנות? Hezkass betulim? and rov nashim betuluoth nissaoth?? – kouty Feb 19 '16 at 12:55
  • I recall that there is a gemara that talks about a mikvah of 40 saah and what happens if it is found to have dropped below the required shiur. I am not in a position to look it up now. I think that the gemara discusses the point that you raise. – sabbahillel Feb 19 '16 at 13:15
  • IIRC what @sabbahillel mentions is actually a mishna in Mikvaos. – msh210 Feb 19 '16 at 15:57
  • @kouty that case is different due to water slowly leaving the mikvah over time, if I recall. – huddie96 Feb 20 '16 at 16:35
  • @huddie96 I see you modifyied the question and need a few minutes! – kouty Feb 20 '16 at 16:57
0

If a man throws a marriage writee to a woman, and there is a dispute among the witnesses: one says it landed closer to her -- and thus effects a marriage, and the other is sure it landed closer to him -- and they are not married. Leckhat-chilah (ab initio) she may not marry someone else; but if she did marry, bedi'eved (post facto) we do not compel a divorce. (Tur EhE 47, Shulkhan Arukh ad loc, s' 3.)

She starts out this story with the chazaqah of being single (penuyah). The fact that an event happened to cast doubt on the continuation of this chazaqah is enough to partially break the chazaqah. According to Tosafos (Kesuvos 23a "tarvaihu" and the Tosafos haRosh and Ritva ad loc) this is miderabbanan and thus only lechumerah (a rabbinic rule to rule stringently in case the chazaqah being broken and thus also to assume it was not broken in cases where that would be the stringency).

So, someone who was tamei who went to the miqvah and we do not know if the miqvah had 40 se'ah of water in it at the time or not is presumed to still be tamei. Even though his chezqas tum'ah now has a rei'usa (a flaw, grounds for doubt), here breaking the chazaqah would be a leniency.

Some (Maharit CM 20) say this is only by qiddushin, since both of the parties involved tried to wed and wanted to wed. But someothing that happens on its own, bemiqreh (happenstance) does not break a chazaqah.

Also some (also in the Maharit) say this rule is only when the chazaqah is the presumption of the continuation of a halachic state. As in our case, we are presuming she is still single. Not in the presumption that the physical world hasn't changed while we were looking.

(Mostly from the Encyc. Talmudit.)

  • Working off the first case, are there other cases like that one where someone has a חזקה, something happens that puts that חזקה in doubt, and then we are told how we old (keep original חזקה, lose the חזקה and wait till the doubt becomes clear.. Etc.) – huddie96 Feb 24 '16 at 19:45
0

In the example of Niddah 2a, even according to Shamai who is machmir, that is only miderabbanan and a chumra for taharos, but on a de'oraisa level, she maintains her chazakah until the moment we know it has changed. This is known as a chazakah de'itra, which is still valid for the period before we know that the status of the person/item has changed. Only in a case of tarti le-rei'usa does the original chazakah lose its effect, as discussed in the beginning of Maseches Niddah. (See also Kiddushin 79a regarding whether the chazakah de-me'ikara is effective even on the day which we know a girl becomes a bogeres.)

However, there is another type of chazakah which may be affected by safek--the Rashba in Chullin 43b cites his teacher, Rabbenu Yonah, who maintains that in a case where we are unsure if an animal was attacked in a manner that would cause it to become a tereifah, the original chazakah that the animal was not a tereifah is no longer effective. Tosafos (ibid.) disagree and maintain that the chazakah is effective even in that case. Here, the safek is not about when in the past an event occurred--in that case, the chazakah is effective until the last moment we can maintain that no change took place, because the chazakah maintains the status quo. But in the case of safek tereifos, we know that the animal was mauled, the question is whether going forward it still maintains its non-tereifah status quo. In this case, the Rashba holds that the chazakah is no longer effective, and Tosafos hold that the chazakah works even to dispel this form of safek. (Part of this was heard from Rav Kalman Levine, הי"ד.)

0

You mention the case of Niddah. I think that case has a special ingredient: the condition that naturally changes. I'd like to share my thoughts on that aspect. But first, in all my examples, I think that it's convenient to see the issue in terms of three moments. We know without doubt that certain facts were true at Time 1 but false at Time 3. Some legal issue hangs on the unknown truth or falsity of those facts at Time 2, a time between 1 and 3.

  • The Mikveh. At Time 1, a mikveh held sufficient water. At Time 2, we immersed utensils. At Time 3, the mikveh held insufficient water. Because (a) the mikveh's presumption of sufficiency is weakened by the facts that it naturally and gradually loses water and is now definitely insufficient and (b) the utensils had a previous state of uncleanliness, we see the utensils as now unclean.
  • The Kodshim. At Time 1, a woman examined herself and found no sign of Niddah. At Time 2 she handled foods that must be kept pure. At Time 3 she examined herself and found signs of Niddah. She is seen as pure at Time 2, and the foods can be used. Although (a) this permission depends on the presumption that she was still clean, and this status naturally and gradually ends and is now lacking, (b) we have no contrary presumption arguing for a ruling of impurity, as the foods were pure before she handled them.
  • The Keg. A keg of wine was fresh at Time 1. At Time 2 a man designated part of it as Terumah (in order to permit to himself another supply of wine). At Time 3 the keg was found sour. Because (a) the wine's presumption is weakened by the facts that it naturally and gradually spoils and is now definitely spoiled and (b) the other wine has the previous state of untithed, we see the wine as now untithed.

The cases appear in the following sources, with my usual ArtScroll page references: Gittin 31b1 #8 includes the keg and the mikveh. Kiddushin 66b1 compares the mikveh to two disqualified priests: a defect in parentage (service retrospectively valid) and a defect in physique (service retrospectively invalid). Bava Basra 96a1 includes the keg. Mikva'os 02:02 includes the mikveh.

I think that it is fair to summarize these cases as follows: Where a change occurs naturally and gradually, and we doubt whether the change had occurred by Time 2, we do not have a blanket rule about whether the change had occurred. Instead, we look not at that change at all, but at the object whose status is in question; and we hold that object in its status at Time 1. The utensils immersed in the questionable mikveh remain impure as they were at Time 1 (as if the mikveh HAD already changed by Time 2); the Kodshim remain pure as they were at Time 1 (as if Niddah HAD NOT already begun by Time 2); and the wine remains un-tithed as it was at Time 1 (as if the wine HAD already turned to vinegar by Time 2).

There's another example left as an exercise for the reader:

  • The Engagement. A father had a daughter who was, one would think, immature at some Time 1. At Time 2, a father engaged his daughter to marry Man 1; this engagement is only effective if the girl is immature. At Time 3, the girl engaged herself to marry Man 2; this engagement is only effective if the girl is not engaged to Man 1. At Time 4 the girl is found to be mature. This may appear at Kiddushin 79b. Unfortunately, I don't have the volume at hand, and I don't really remember the disposition.
0

I'll try to help you a little.
First you know surely that Hazokot is one of the spreaded and entangled subjects in the Talmud and that one of the difficulties is to clarify the differences and similarities between the diverse cases.
The gait of the reasoning in the text that you quoted is also far from being trivial.
I suppose that you know that at this stage, the Gemoro did still not reach its conclusion.
You may make a difference between a natural (or inner following one expression of the Gemoro) hypothetical change and a change due to an external event. We can suppose that death is or an inner event or an external event.
I remember חזקת חי ומת לפניך Taharoth (5, 7)

נָגַע בְּאֶחָד בַּלַּיְלָה, וְאֵין יָדוּעַ אִם חַי אִם מֵת, וּבַשַּׁחַר עָמַד וּמְצָאוֹ מֵת, רַבִּי מֵאִיר מְטַהֵר. וַחֲכָמִים מְטַמְּאִים, שֶׁכָּל הַטֻּמְאוֹת כִּשְׁעַת מְצִיאָתָן: ‏

He touched someone at night and doesn't know if this person was alive or dead. At morning he came up and see him dead. Rabbi Meir said that he remained clean and Chachamim said that he became unclean.

The last tosfot in Niddah 2A&B says that such Hazokoth meykara (from the beginning) are not strong enough and that we did learn this stringency from "*Sotah, the paradigm of Sofek Tuma in the private domain**.

In private domain (defined for our issue as a place in which there are less than 3 persons) the Chezkat Tahara does not cancel the doubt, and even not create a doubt of heyter.


It seem's that your intuition is that these Chazokot are impaired by a continual process which began from the starting state. It's like an hourglass that is "Behezkat" full. (the words of the Gemoro "את הגס הגס" describes a continuous process). The text below furnish two cases.

  1. Acidification of wine,
  2. the recess of the mikveh (We do not speak about evaporation which is a continuous process, but about loss of water after each immersion which depends from events. Indeed, the fact that Mikve is destined to bath, did lead us to see successive immersions as a continuous process (internal, continuous) and not as randomal events)
  3. The Chazaka of fullness of the Mikve is considered a priori better than Vesseth, following the first step of the Gemara. But after this step, from the "natural changing" point of view they may be equivalent. I'm afraid my answer is riddled with errors. I apologize and I will be happy to correct.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .