Q&A: A Question on Sha'arei Yosher – Presumptions, Chapter 5
A Question on Sha'arei Yosher – Presumptions, Chapter 5
Question
Hello Rabbi,
We reached Chapter 5 in the section on presumptions in Sha'arei Yosher, s.v. “and in Tosafot at the beginning of Niddah,” and we ran into an issue we couldn’t understand, so we thought אולי the Rabbi might be able to help.
Regarding the comparison between a case where a ritually pure person touched a person who was found dead in the morning (brought in Eruvin 35b) and a woman who was found to be a menstruant (at the beginning of tractate Niddah):
we are discussing objects that the woman touched since the last time she checked herself and was found pure (ignoring consecrated items), and likewise the person who at night touched someone who was found dead in the morning.
When we analyze the factors, they seem identical to us:
The parallel to the person who was found dead is the woman who was found to be a menstruant.
In both cases there is a presumption based on the present state, that now they impart impurity, and a weakened original presumption (because when a person touches a living person, that touch does not positively render him pure, and similarly when a pure woman touches things, they do not positively become pure).
The parallel to the objects the woman touched is the person who touched him, since in both cases there is a presumption of purity.
If so, it is not clear to us why in the case of the woman, fundamentally the objects are considered pure because of the legal presumption, whereas in the case of one who touched someone found dead, the person remains in doubt. We would be happy for some help.
One more point: Harela studied with the Rabbi, and he told me that the Rabbi has lecture summaries on the first chapter of tractate Ketubot (they do not appear on the site). If the Rabbi has a scan of them (even handwritten), I would be happy if the Rabbi could send them to this email.
Thank you in advance.
Answer
Hello.
I’m happy to hear from you, and even happier to hear that you’re learning Sha'arei Yosher. Warm regards to Aharaleh (I think that’s how one writes his name 
).
As for your question, I wasn’t really able to get fully into the depths of the issue, so I’ll answer off the cuff. Sha'arei Yosher there writes: “In the case of one who touched someone at night, the law is that he is definitely impure, because there the original presumption was weakened, since the doubt does not concern the dead person himself…”
His claim is that the presumption regarding the dead person is weak because in Jewish law there is no discussion about the dead person himself (“among the dead one is free”), but in the case of a menstruant woman there is also a discussion about her herself and not only about the vessels, and therefore perhaps her presumption is not weak. Now the woman’s presumption of purity joins with the presumption regarding the vessels, and therefore they are pure. But in the case of one who touched a dead person, since there is no discussion about the dead person, the presumption that he had been alive is irrelevant (or at least weak). And therefore even when it joins with the presumption of purity of the one who touched him, it creates only a situation of doubt against the presumption based on the present state.
Strength and courage.
All the best,
Discussion on Answer
Hello,
I have a hard time with these long gaps between messages (I barely remember the previous discussion already).
You understood my distinction correctly, and in my opinion it does resolve the cases. There is a discussion regarding the woman because her status is of halakhic interest (Jewish law is interested in her, unlike in the case of a dead person), even if no one had relations with her. The very fact that there could be a discussion about her makes her the subject under discussion. Beyond that, the question whether she is a menstruant woman or not affects her counting of days, so the discussion about her also has practical halakhic implications.
I’m sorry, but I can’t conduct a discussion with gaps like that between responses.
Hello Rabbi,
First of all, thank you very much for the warm answer, and of course the message was passed on to Harela.
I’ll try to explain what my understanding of the issue is and what I understood from the Rabbi’s answer.
When we have a doubt about a certain issue, then there is justification for applying to the matter under discussion its original presumption in full.
For example: in the famous case of a ritual bath and an impure person who immersed in it, if we had an original presumption that the ritual bath was full and we did not know its current condition, and I were discussing the ritual bath itself, then I would have justification to use the bodily presumption of the ritual bath to decide that its status is full and kosher, and consequently the person who immersed would be pure.
In the Rabbi’s explanation of the case of the menstruant woman, as I understood it, the Rabbi is arguing that since there is a practical difference regarding the woman herself—“there is a discussion about her”—there is therefore “justification” to use the woman’s original presumption and decide that she is pure (I’ll come back to that point in a moment).
There is another distinction that Sha'arei Yosher makes in the passage you referred me to, between a positive presumption and a negative presumption.
Example of a positive presumption: when discussing the person in the case of the ritual bath, the presumption regarding the ritual bath can be transferred to the person (in a weaker form—the person has a legal presumption that he immersed in a valid ritual bath, not a bodily presumption), because the ritual bath causes the person to become fit in a positive sense.
Example of a negative presumption: in the case of doubt involving a boy under nine who had relations with a woman, and we discuss whether she remains fit to marry a priest, the presumption of minority of the boy under nine is a negative presumption with respect to the woman’s status. That is, establishing the doubtful boy under nine on his presumption of minority does not mean that the woman is fit for a priesthood marriage; it only means that she was not disqualified by him.
I now return to the original question regarding the difference between touching a dead person and a menstruant woman.
In principle, as I understand it, in order to distinguish between the two cases (touching a dead person and a menstruant woman), there could be two distinctions. The first is to say what the Rabbi said: that in the case of the menstruant woman there is a discussion about the woman herself and not only about the vessels she touched, whereas in the case of touching a dead person there is a discussion only about the one who touched.
Whereas the second distinction would be to say that in the case of the menstruant woman the presumption is positive, while in the case of touching a dead person the presumption is negative.
The thing is that neither of these distinctions works for me, because it is not clear to me what the practical difference is regarding the woman (unless we set up a case where her husband had relations with her or something of that sort), and in both cases the presumption seems to me negative and not positive. In other words, the fact that the woman is pure does not mean that the vessels are pure…
I would be glad to know whether I understood the Rabbi’s answer correctly, and to understand better what the practical difference is regarding the woman now, after we know that she is impure now.
Thank you in advance.