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Friday, September 9

The Weekly Shtikle - Shofetim

There is a well-known precept in halachah that when faced with a safeik d'oraysa, an uncertainty regarding a Biblical decree, we are more stringent whereas with a safeik d'rabanan, an uncertainty regarding a rabbinic decree, we are lenient. There is a further discussion regarding safeik d'oraysa. The very fact that we lean on the stringent side - is that itself a Biblical decree or a later rabbinic institution? Rambam is of the opinion that it is a rabbinic decree but others argue that it is, in fact, Biblical.

A pasuk in this week's parsha seems to shed some light on the issue. We are taught later in the parsha that it is forbidden to cut down fruit-bearing trees for the purposes of a siege. Rather, (20:20) "only a tree that you know for certain is not fruit-bearing you may destroy and cut down."  Apparently, if you were uncertain as to whether or not it was a fruit-bearing tree, you would not be permitted to cut it down. This seems, at first glance, to contradict Rambam's position. If the stringency were only rabbinic, as Rambam suggests, then by Biblical standards we would be permitted to be lenient. We seem to be taught here that this is not the case.

However, points out Malbim, this pasuk is not as simple as it appears. The gemara from just over a week ago's daf yomi (Bava Kamma 91b) interprets this pasuk not to be referring to a tree about which we know nothing. Rather, it refers to a tree which was known to have previously been a fruit-bearing tree. The uncertainty is whether or not it has since lost its status as a fruit-bearing tree. This is a classic case of chazakah, an original prevailing status. When the original status is prohibitive, even Rambam will agree that we are stringent in a case of uncertainty as a Biblical edict. Therefore, this pasuk does not contradict Rambam's stated position in a case where there is no previous status.

Have a good Shabbos.

Eliezer Bulka

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