Thursday, April 12, 2007


The Gemora continues to analyze the braisa. It is understandable why a verse is needed to exclude an androgynous from the mitzva of re’iyah. One might have thought that he should be obligated since he has a masculine side to him; the verse teaches us that he is considered a creature unto himself and is not obligated in this mitzva. The Gemora asks: Why is a verse needed to exclude a tumtum; it is undetermined if he is a male or a female, and a verse should not be necessary to exclude a case of doubt?

Rashi learns: Why would we think that a case of doubt would be obligated in the mitzva.

Turei Even asks: There is a principle that in matters of Biblical law, we rule stringently (safek d’oraysa l’chumra); wouldn’t this explain why we would think that a tumtum should be obligated in the mitzva of re’iyah?

Sfas Emes states: It would be evident that Rashi maintains that this principle is only true Rabbinically. The Torah would rule leniently in a case of doubt; The Rabbis decreed that we must rule stringently in these matters. (This is the opinion of the Rambam and other Rishonim.) This will explain the Gemora’s question. We should not need a verse to rule leniently on a tumtum if the Torah always rules leniently regarding cases of uncertainty.

There are those that are not satisfied with this explanation in Rashi, for Rashi in Kiddushin (73a) seems to hold that in a case of doubt, we rule stringently even from a Biblical point of view.

The Peri Megadim (O”C 17:2) differentiates between cases where one would be transgressing a commandment in a manner where he is committing an action against the Torah and one where he is sitting passively without performing an action against the Torah.

Using this principle, we can reconcile the contradiction in Rashi. (I found this in explanation in Kuntrus Kol Hamesifta.) In our instance, the Torah would dictate that the tumtum is not required to embark on the festival pilgrimage since we are uncertain of his status and the Torah rules leniently in cases of uncertainty and states, “One is not mandated to perform an action,” – only Rabinically, would he be obligated to ascend to the Beis Hamikdosh. However, Rashi in Kiddushin is referring to a case where the Torah rules stringently because there the Torah is instructing him not to perform an action (he is prohibited from marrying a safek mamzeres).