Hilchos Niddah: Lost Bedikos and Kesamim—Safek, Chazakah, and Carelessness

Transcript

Which comes up very often. There's a very big shaila that comes up very often to all moireh horaah. Now, even if you're not a moireh horaah, you know about this because it happened, as the shaila also knows about it. It's a common occurrence that the woman loses a bedikah. She loses it. So the truth is, when a woman loses a bedikah, one of two things could happen: either she doesn't know what was on it, or she knows, but she's not sure. She knows, but she's not sure what she knows. Eh, looks, it sounds, I think. So the question becomes, what happens if she doesn't know? What happens if she thinks she knows? Could we trust her? Those are two shailas. Third shaila, which has to be addressed, that's bedikah. What about a kesem? What happens if there was a kesem and she lost it? Which is a big sugya in Acharonim. And the next shaila that I would deal with after that is what happens if she loses, but she washed it, a kesem, sometimes on the underwear, and she went and she put it in the washing machine, let's say. So what happens in all of the above cases if you're a rav? How do you pasken these shailas? So the truth is, it's interesting that in Shulchan Aruch it's not brought down. It's not dinim in Shulchan Aruch. And if a woman lost her kesem, if a woman lost her bedikah, kani re'eh, it wasn't a davar shechiach. It wasn't a davar shechiach. Women were very careful, especially in those days; it was taharis. Today it's only asur l'bailah, but in those days when they had taharis also. Unless in the time of Shulchan Aruch it was only nogeia to shelo bailah. Not sure why in Shulchan Aruch it's not brought. First person to address is the Chochmas Adam. Chayei Adam addresses neveilah, habdikah, neveilah, kesem, neveilah, habdikah. Since it's d'Oraisa, you have to be machmir. Neveilah, kesem, since it's Rabbanan, safek d'Rabbanan l'kula. This is the Chochmas Adam in klal kuf yud gimmel, se'if chaf tes. It's not in Shulchan Aruch. It's not in Shulchan Aruch. Yes, klal kuf yud gimmel, se'if chaf tes. Right? Sometimes you get these kushyas. Rav Chaim gets it all the time, right? We never learned neveilah, kesem. I learned with you neveilah, kesem. Yeah, famous shaila. I never learned it with you. I never learned it with you. I might have touched on it maybe. But the question is, if let's say she lost it, she lost her kesem, what happens when a woman loses her kesem? So what do you say? What would you say, halachos? No? She comes and says there was a kesem, I lost it. So what you would say, tameiah. Okay. He would say tameiah. What's the pshat? Don't say that. You have to know that if you say that, that means you misunderstood safek d'Rabbanan l'kula. Safek d'Rabbanan means it's a big deal, but the psak is l'kula. Because of a woman, because of a man. No, because it's Rabbanan. Again, so I'm telling you, so the Chachmas Adam says that when it's a bedikah, it's de'oraisa. But when it's a kesem, it's only derabbanan. And safek derabbanan l'kula. Why can't it be a safek sfeika? Why did you want it to be a safek sfeika? Huh? Maybe it's kosher, maybe not. Okay, so let's discuss that. Even the right bedikah, right? So the truth is, we discussed by a bedikah what's called a safek. Remember we discussed this. How serious is the safek? The lashon of the Rambam, is it l'chumra k'de'oraisa, or naktinan that there was hargasha there? Because ein dam, ein pesichas mekor bli dam, mistama. In other words, it's a 99% sure that there was hargasha; she just didn't feel it. Maybe it has to do with that. Either way, the poskim want to say that by a bedikah, de'oraisa, you have to be machmir.

Kesem, which is only derabbanan, you could go be meikel. Shailu meishiv, many other Acharonim argued directly on Mishnah Chachmas Adam, and they say you have to be machmir. Machmir. Why? Why do you have to be machmir? Pashut. They're right. Chachmas Adam, it's a safek derabbanan l'kula. So I have two questions. What is the case? What is the case of safek derabbanan? What's the story? You're mesupak on the girsah, on the size, or you're mesupak on the color? What's the safek that you're referring to? Do you mean that the woman doesn't know? What doesn't she know? Doesn't know anything? That's what I started off actually asking you. Is she lost and she doesn't even know what's there? Or she has a real safek? Neveilah kesem is a real safek, or neveilah kesem is since you don't know, so... And if it's a real safek, what is the safek? Is the safek that she doesn't know if it's a girsah, or the safek is she doesn't know the color? Now, if it's a safek girsah, so then be'etzem the safek is nothing to do with a hora'ah. It's a she'eilah metzius. It's a measurement she'eilah. It's not so much that the chacham has the safek; it's a safek be'etzem. She doesn't know. She can be trusted on measurements, no? Which is a big shayla. When you go to a rav and he has to pasken the kigris, is he paskening yoreh deahdik, or is he paskening a measurement? Take out the ruler. It's math, no? L'choira, technically it's real math. So we can come and say like this: on a safek kigris, not kigris, safek in the metzius, and the pshat is she has a safek in the metzius, so that we can come and say safek d'rabbanan l'kula. But if the safek is in the re'iyas hachacham, since the safek is not a safek what happened, but there was a safek how to pasken, so who says we say safek d'rabbanan l'kula? Safek d'rabbanan l'kula could be when there's a safek b'etzem. But if you have a safek which means— Right, the rav never got to see it, so what kind of safek could there— It's not a safek. You like it? You're thinking. So let's repeat. It's a pashut shayla. Similar case, like let's say there's a garbage can, and you don't know what's inside it. So you can't call it a safek. You have to go see what it is, and then if you see that there's something and you're not sure if it's urine or if it's— then you can say safek d'rabbanan. But you can't come and say that— Well, she cannot see now; she got lost. So what's the safek? Is she ne'eman on her story? Ne'eman of the measurement, if she— So I just asked you, so maybe you didn't hear what I said. If you say that she's mesupek on the measurements, I can hear why it's a safek d'rabbanan l'kula. But if she's mesupek on color, so she's not mesupek; she doesn't know what she's talking about. Well, what do you mean mesupek? What can you be mesupek on? What it means, the chacham never saw it, so it's a chesaron yediah. I mean, what kind of safek? It's not a safek. But I'm going back to is the original shaylah. Is neveilah kesem unknown, and that's the safek? Or neveilah kesem is a story where there's not a safek; we don't know what's there. Let me repeat. Let me repeat one more time to you and Simcha. Maybe there's a few other people sitting at the table. You think I was only repeating because of you? Because I looked at you. Yeah. I don't know. I give up. Now, I went like this, so then you probably thought that... Okay, now, ready? Harav Daniel, baruch. Not till yesterday, b'karishmo Yisrael, Daniel baruch. I think I saw something. I lost it. What would you answer? What's your first thing you have to ask? Was it a pzikah? Was it a kesem? Now you're not going to find it in Shulchan Aruch.

I mean, I do know a little bit why, but right now I don't know the answer. All right? That's such a beautiful answer to tell you. Wait till you see it, see the picture. It's a beautiful, beautiful psak, I'm going to tell you. You ready? It's not in Shulchan Aruch. Why? I'm going to get to this. Al kol panim, let us for the time being say because it wasn't a common thing people should lose. They were from Yidden then, you know what I mean? Today we have work, jobs, ma'ases, women. Women were home. Why would they lose a bedikah? Why should they? Would you lose a gold watch? I mean, what happens if a person lost a gold watch? It wouldn't happen. Today it would happen, right? Kitzur. So that's the shaila. So the first thing is, did you lose the bedikah? Okay. Bedikah is d'Oraisa. Kesem. Ooh, if it was a kesem, oy vey, that's such a big shaila, because since the ... Rabbanan l'kula, so let's just say something. Wait a minute. But I want to know if in general she just lost—she didn't even know what was there, she just lost it. Okay, everything's fine, no problem, have a nice day. Well, we're talking about a case where she doesn't know what's there, meaning she looked at it and she was mesupek what was there. Not pshat she—a kesem, she didn't bother looking, she threw it out and that was it. What does that mean? That means you don't know what was there. That's not a safek; means you didn't look. Maybe, maybe, maybe ... maybe, as long as you didn't see it, okay, it's good enough, finish, have a nice day, I don't know what's there, and have a nice day. But the case of the Chachmas Adam is where you know that there was something questionable there. Now, what's the question? Was the question kigris, or was the questionable color? It's not clear. I could come and say that there's a very big difference. Where it's questionable kigris to her, it's her safek in the metzius. Safek in the metzius, there's no way to be machmir it because it's not here. Where it's a safek in the mareh, means no one even saw it in the first place. It's just, you don't know what's there. It's as if they just didn't look. It's also metzius. I understand, but there it's like no one looked. Would you call a safek if someone says, I had a bedikah, I just did not look here? There's no idea. What happened? It's like putting it away. So you're allowed to put it away, I don't know what it is. Safek, safek d'rabbanan l'kula. Every time she has a kesem, you don't let her not look. Safek d'rabbanan l'kula. So Rebbe's saying that we're not going to even ask about which colors? But I'm trying to tell you it's possible. But the point is, who cares? But she not name it to say which colors? I don't know. Colors. I saw, like, my friend that, you know, that's a sugya. I could come and say I saw it, like my friend. That's already details in colors. But she doesn't know. She, I don't know what I saw. I don't know what it was. You can't come and say—that's what I'm asking. Could a person come and say, I didn't bother looking at the kesem because it's a safek d'rabbanan l'kula? That's what you're telling me, technically. But I don't see the problem. You don't see the problem? So I'll tell you what you could do. Every time she sees a kesem, she should just put it away. I don't know what it was. I don't know. I didn't see it. It's a problem. If you're saying by measurement we have safek, something by color. Measurement, I'm explaining to you, the measurement is a safek in something that she can be machmir. Right, so something she looked at it, she's machmir and she's mesupek. I'm saying something—it can be named by color. What's to be machmir? Only a chacham knows the mareh's tameies and tahores, unless she comes and tells you. And hachanami, it looked like something else. She doesn't know. Looking like something else. And hachanami, it's a sugya, and we learned this. That's what we learned in Shulchan Aruch. She come and say, Kazeh hitir li chacham acher. We spoke about this. But the common say, I don't know what was there. I don't know. I don't know. It looked brown, looked brown. So what? It looked brown. She knows she's tomei, she knows she's tomei. On a kikris, you can come and tell her, Oh, you look like a quarter. She knows what a quarter looks like. She knows how to measure. I'm retarded? I'm saying it's a pashut shailah. Oh. So this becomes a shailah. Should we be mechalek between measurement or color? Let me ask you another shailah. Now, according to this, what happens if the chacham saw it, chacham had a safek and it got lost? We should say safek d'rabbanan l'kula. My shailah, because over here, if the whole taich is that there's a chiluk between the color and we can't say safek d'rabbanan l'kula because she didn't see anything.

So now he saw. He saw, and he had a safek. I'm gonna have to ask another rav. I want to ask somebody else. Then it got lost. What happens? So then we could come and say if he was noitel l'hachmir, it's more than a regular safek. And if he was noitel l'hakel, so it's patur safek. You have to know what the rav saw maybe. So I want to show you an interesting thing. I saw the Darkei Teshuva in siman kuf tzadik sif alef brings down if she normally sees mares tehoros, in kuf tzadik sif alef, if she normally sees mares tehoros, yeah, and she lost the kesem, so then we're gonna be meikel with dafka shelo b'shaas vest. What? She never saw what? She never saw whatever. She doesn't know, because she has a chazakah. Since most of her maros are good, so we could come and say even if she didn't see, מסתמא it was good. But that's dafka shelo b'shaas vest. No, so it could be there's a chiluk. Where you saw and you have a safek is one thing. Where you didn't have a sight at all, maybe the Darkei Teshuva is talking about a case where you didn't see at all, and you lost the whole thing. Now shaila is, what do you say? The answer is, listen, she normally sees. We once had such a story. Somebody once called a rav, can I tell you this? And most of your bedikos are kosher. And I went crazy. What do you mean most of your bedikos are kosher? On a kesem you can say that. You can't come and say most of your bedikos is d'Oraisa. What are you talking about? Kitzur sheloi b'shaas. Oh. Raboisai, in the teshuvos, chelek gimmel, siman kuf chaf hei, paskens like a Divrei Malkiel. Brings down a Divrei Malkiel, chelek daled, se'if zayin. He says, you know, I want to be matir the chochmas adam for another reason also. Why? Because not only is it a safek d'rabbanan l'kula, she also has a chazkas taharah. She has a chazkas taharah, and since she has a chazkas taharah— Okay, so this is just thrown right out of nowhere. He just picked it up and just decided to say it, even though you're talking about the whole inyan of nidah's chazkas taharah. That's the whole sugya. There's a time when she has a chazkas taharah and there's a time when she doesn't have a chazkas taharah. So to come and say there's no such thing as chazakah tzrichah l'hishtanos is really— you really should— I mean, it's like, shows— I don't understand this. Stam, you're stam asking. The whole yesod of nidah's chazkas taharah, that's the whole yesod. But she saw now. That's the whole yesod. The whole yesod is she saw and now she's tahor because she's not supposed to see. I mean, that's the whole idea. I mean, that's the whole yesod. Okay, so this is R' Moshe quoting the Divrei Malkiel. What would be takkeh if in the first three days, where there is no chazkas taharah? So R' Moshe quotes the Divrei Malkiel, it's still good. You know why? Because you have the chazakas. The Divrei Malkiel adds taharah because you have a chazakah plus a safek d'rabbanan l'kula. But that means where there's no chazakah— no, even where there's no chazakah, it would be good. Why? Because safek d'rabbanan l'kula. Okay. Because there's no chazakah. There's no chazkas taharah there. Not tovel b'makvah, there's no chazkas taharah. The teretz is, af al pi kein. One sec. What would be if she went and she put in the washing machine? So you're gonna say, what's the difference? I think there is a difference. Could a person, b'somech on a chazakah, where you yourself went and uprooted, where you yourself moved the bira hadavar? You went and put it in a washing machine. I don't know. Neveilah is nitach. I'll explain to you what I mean. Neveilah is nitach, it never became asur. Never became asur. Maybe it should become asur. It's not here now.

Asur. We could say a safek d'rabbanan l'kula. Where you went and you were ma'apeh b'yadayim — you mean like mat, you matted, but still the issur fell on you. I mean, what do you say, that I'm allowed to take and undo the birurim? Like that, like something like that. A person can't with his own hands change the safek. I'm clear? I don't know. Maybe, yeah, maybe so. So what? What's the difference? And ein hachanami, the nezik you could hear, but b'shogeg maybe there'll be a difference. And I'll tell you why I'm saying this. If you notice, the Darkei Teshuva says, shelo b'Shabbos. The poskim today hold it's even b'Shabbos. I'll tell you why. I'll tell you an interesting cheshbon. Are you supposed to keep a moch dachuk b'Yom HaVest? You know anything about that? There's a very famous Chavos Daas that says — you know the Chavos Daas? Chavos Daas holds you're supposed to keep something the whole day. Chavos Daas paskens on the Yom HaVest, it's not enough to make one bedikah. You have to keep it there all day. You know this, right? Okay. There's also halacha — didn't see it — that day you're supposed to see all day. Chavos Daas. It's a famous Chavos Daas. We don't pasken like that. There's an interesting halacha also. What happens if she washed herself b'Yom Vest, and then she was bodek herself? Maybe she lost. Maybe she lost. She's not supposed to do it. What happens if she did it? But, acharonim say very pashut. The chances on a yom vest that it should be a tipas dam is not shchiach, mamash. Either she sees or she doesn't see. It's not going to be a... At the end of the cycle of bleeding, it drips. But when it comes, it comes with a flow. So if she has it, you can wash from today till tomorrow and get a help you. Chavis das? What? So why are we saying it should not go? What, what, what? But that's not the yom vest. On the yom vest, when it's supposed to come, it comes. What you're talking about, staining, is coming earlier. On the yom vest, when it's supposed to come, it comes. Yom vest. I mean, that's just what you're doing, halacha. Therefore we're not machmir on the chamesh, that's the reason why we're not machmir on the chamesh. Then we can come and say that even if never her kesem, it shouldn't really make a difference on yom vest and not yom vest, because the kesem is really a kesem, it doesn't make a difference. It's the same derabbanan. And if it's the same derabbanan, ilan, therefore, it could even be on the yom vest, neveh. So technically, technically, it should come out that it should all be mutar. But, I want to be very, very clear over here. You go to Rabbanan, they're not going to be matir. He said it before. What? No. They put a knas on the woman. But what, you lose your kesamim? It's very, very, very strict. I heard this many times: teach her a lesson, teach her a lesson. Let's say not in Yom Vest. No, they tell us. It's only... But never her kesem, they answer. It's only Yom Vest. Next time you will be careful. It's only Yom Vest, no? They won't learn their lesson? I'll tell you the truth, they will learn their lesson. Who started this? I don't know, but that's what they do. I'm just telling you the metzius, and I'm thinking to myself that that's the answer to the question why it's not in Shulchan Aruch. Which case is it? Chachmas Adam that comes and says that it's mutar is the pshat is he's taking it apart halachically. Halachically it should be mutar. You're not going to find the Shulchan Aruch because it wasn't mutar. Forget about it. They don't matter. You're not matir when a woman says, It's nothing. Then I could come and say, we can be mechalek between if she did it b'yadayim, she put it into the washing machine, and not. The pshia in putting it into the washing machine is a lot more than it got lost. So now we should ask her, how did she lose it, maybe. You don't say something rabbanan by meizid. That's what I'm trying to say. It was just meizid. I thought it was this underwear and I put the wrong one inside. No. Sometimes I wasn't meizid. It's more of a meizid. It didn't—

Like you put it away and something got happened. You put it in a washroom. Why'd you get lost? Well, you put it in the closet and someone stole it. It gets lost. Something gets lost. Something gets lost. Cleaning lady went and put it away, and something happened. I mean, it happens all the time. The cleaning lady comes and cleans it. Huh? If you went, you yourself put it in a washing machine, it's a difference. It's all different. You went and you did something. This is the sugya: pashtus, it's safek d'rabbanan l'kula. When we put knas, thatוויס? Knas, knas, Rabbanan. No, it should make a difference. That's what I'm trying to tell you. What I'm trying to tell you is, I heard this many times from Rabbi... Never a kesem, they tell you to asser it. I heard it many times. I brought it to Rabbi Yashiv many times in the beginning. What do I do? He says, No, take it to a... All the time. Rabbi Chatz Ruach, all the time. Teacherless. I heard maybe ten times, Teacherless. I was clarifying, where could it come, teacherless? And the answer is because the Shulchan Aruch doesn't matter. There's a makom to come and say, I'm not מוכרח to go make a svara. Like, why is that any case the Shulchan Aruch doesn't mention, we have to say that it's... Maybe, maybe. Maybe. I don't know. Why does the Shulchan Aruch mention cases really aser? Just mention only the things that... Ah, this is good, that's good. What kind of svara is that? Okay, it's not that. If we're going over the case, which is matzui, that people start losing it. Losing a... Oh, so that's what I answered. I started off by saying could be. But start again, start again, start again. Either I told you the pshat is that it wasn't so matzui, so that's the answer to the kasha. What do you mean Nevehdike? So why should be mutar? There's no din. There's no din. What do you want? Nevehdike? What do you want? You want a prize for it? I'm telling you, the fact that the Shulchan Aruch doesn't give a regular, normal case of neveilah, a normal shechitah case, there is no such thing. I'm talking to you, posek talk. This is halachah. This is strictly posek talk. In the yeshiva velt, they would sit there and debate, taste, you're right. Balabatim would say, Who said? A posek has to look and say, why would a Shulchan Aruch, who's haka v'baka, the final analysis of the halachah, why would it not bring down a practical case? It's practical. So either I start off by saying it's not so practical, that's the teretz, because in those days, the meileh the chachmas adam, it became worse in his time. I don't think it's true. That's why I said I'm not ready to tell you more. What I am ready to tell you is that there's a certain pshat. Certain pshat of, what are you coming to the rav while I was careless? So what do you want? I get these phone calls all the time. What do you want? I mean, what, would you lose your diamond ring? What do you want? I don't know what you want. What do you want me to tell you? Certain things you're not allowed to do. Then I don't know. If the rav feels it's a real ones, I don't know. How burned out? Okay, so, if the rav feels it's not her fault, I got to be a chachmasan to be sameach on. What I'm doing is I'm teaching you shprach, language of baal halachah. Language of baal halachah is, Orchos Shulchan would do this. Why would it not be in Shulchan Aruch? That's a conversation. And the answer might be is because it's taka not a conversation. There's nothing what to talk about. You shouldn't be asking such shailas. There's certain shailas that are not shailas. That's the bottom line. You know, they all come and say, How come it's not brought down in Shulchan Aruch, exercise before davening? Right, so the answer is because in our day they didn't exercise before davening. You know what others say? In those days there were not such shailas. What kind of shaila? Exercise before... First thing, you got up, you went to daven. What are you talking about? Who does exercise before davening? Again, I'm not answering the question. I'm not answering the question. I'm just telling you two sides of the coin. Let me ask you: you think the Chassidisher rabbanim ever get such a shaila? I want to know, would a Chassidisher rav ever get, Am I allowed to exercise before davening? I want to know, you think he would ever hear a thing like this? I don't know about... Let the normal regular rabbanim, they would like... they'd think you're crazy. Chas v'shalom. What are you talking about? Let's take a shaila. So that's a shaila. That's a shaila.

If I tell you that there's certain shailas, in those days were just not shailas. I mean, that's why it's not in Shulchan Aruch. Certain things were just not shailas. And the question is, how do you view something which is not in Shulchan Aruch? Do we view it that it's so pashut that it's not a story? Whatever is the case, the case is not so shchiach then, now it's more shchiach. משהו. It's something to think. Okay. I wish you to have a nice day. I'm gonna go now. Okay? Got it?