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Nazir, 64


QUESTIONS: The Beraisa says that a Safek Tum'ah Tzafah -- a case where there is a doubt whether an item of Tum'ah that was floating in water touched a person or a Kli -- is treated leniently (even in Reshus ha'Yachid). Another Beraisa adds that if the floating object was being held by a person on a string or in his hand, then the Safek is treated stringently and is Tamei, but if it is "Nizrak," thrown in the air, then the Safek is Tahor.

The Beraisa continues and says that this principle does not apply to a k'Zayis from a Mes, or to a person who is Ma'ahil over a Safek Tum'ah. When a Safek arises with regard to something that was thrown over a k'Zayis from a Mes, the Safek is treated stringently and is Tamei. TOSFOS explains that the rule of Safek Tum'ah Tzafah applies only to Tum'as Maga but not to Tum'as Ohel.

Tosfos (end of 63b) writes that there is a doubt whether the laws of Tum'ah Tzafah refer exclusively to Tum'ah that is floating on water, or even to Tum'ah that is thrown through the air.

(a) How can Tosfos doubt whether Tum'ah Tzafah applies to an object that is thrown over Tum'ah, or an item of Tum'ah thrown over a Tahor object? The Beraisa says clearly that in the case of an object that is thrown, the Safek is Tahor!

Tosfos himself here seems to deal with this question. He explains that when the Beraisa says that a Safek Tum'ah that is held by a string is Tamei, it is referring to a Tum'ah that is held *over water* by a string. Hence, when the Beraisa says that Safek Tum'ah that is thrown is Tahor, Tosfos says that it must be referring to Tum'ah that was thrown along (and touched) the surface of the water. Why, though, should Tosfos take the Beraisa out of its simple meaning and explain that "Nizrak" means that the item was thrown along the surface of the water? He should have explained it in the most simple sense, that it is referring to an item that was thrown even through the air, without mentioning anything about water! In addition, the Mishnah in Taharos (3:1) is clearly Metaher a Safek Tum'ah that involves an object that is thrown, and not just an object that is floating. (The CHAZON ISH was so perplexed by this question that he suggested that perhaps there is a printing error in the words of Tosfos.)

(b) The Tosefta in Taharos (3:8, cited by the RASH in Taharos 3:3) seems to be the source of the Beraisa that our Gemara quotes. However, although the Tosefta concludes that Safek Ma'ahil is Tamei, the Tosefta adds that if a Tahor item was thrown over a k'Zayis of a Mes, then it remains *Tahor*. This seems to be a blatant contradiction to the way our Gemara cites the Tosefta, for it says that when something is Safek Ma'ahil over Tum'ah, it becomes *Tamei*!

Moreover, what logic is there to justify the Tosefta's distinction between Tum'ah that is thrown over a Tahor item which becomes Tamei mi'Safek, and a Tahor item that is thrown over Tum'ah, which remains Tahor mi'Safek? If anything, when the Tum'ah is thrown, we should be more lenient since the Tum'ah itself is moving! (This is indeed the opinion of Rebbi Yehudah in Taharos 3:1 cited by the Rosh here.)

(a) Tosfos seems to have been bothered by the wording of the Mishnah and Tosefta that discusses Safek Tum'ah *Tzafah* -- *floating* Tum'ah. Why does it specifically discuss *floating* Tum'ah, and not Tum'ah that is flying or moving?

Tosfos is answering this question by saying that the Mishnah wants to avoid Machlokes, and that is why it limits its Halachah to Tum'ah Tzafah and does not mention flying Tum'ah. The reason flying Tum'ah is a Machlokes is because there is an opinion which holds that "Kelutah k'Mi she'Hunchah Dami" -- an item that is in the air is considered to be resting on the ground below. According to this opinion, flying Tum'ah will not be considered like Tum'ah Tzafah, but rather like Tum'ah that is resting on the ground (as the MEFARESH mentions in DH Kol ha'Nitlin). The Mishnah in Taharos (3:1) that says that we are lenient in the case of a Safek Tum'ah that is thrown is following the opinion that holds that "Kelutah" is *not* "k'Mi she'Hunchah Dami."

Tosfos explains the Beraisa here as well to be referring only to Tum'ah dragged over water in order to avoid the question of "Kelutah." (It seems that Tosfos did not have the word "v'ha'Nizrakin" in the Beraisa, but rather he was Gores "v'ha'Tzafin.")

(b) The words of the Tosefta are very difficult to reconcile. The RASH in Taharos suggests that the Tosefta holds that anything that is flying cannot be Mekabel Tum'ah. (He seems to write the contrary in Ohalos 8:5.) According to this, the Beraisa of our Gemara might be arguing with that point.

It is possible that there is a printing error in the Tosefta and it should read "Tamei" in both cases. Alternatively, the end of the Tosefta is not referring to Safek Tum'as Ohel, but rather to Safek Tum'as *Maga* that comes from a k'Zayis of a Mes. (However, the Rambam cited by the VILNA GA'ON here writes that even Safek *Maga* of a k'Zayis of a Mes is Tamei.)

From the VILNA GA'ON's comments on the Tosefta, though, we may learn two possible answers to our question.

First, it is possible that the Tosefta argues with our Gemara and indeed rules that we are more stringent regarding a k'Zayis from a Mes that is thrown over an object that is Tahor, than we are regarding an object that is Tahor that is being over a k'Zayis from a Mes. The reason for this has to do with the very essence of the rule that "Tum'ah Tzafah" does not apply to Tum'as Ohel.

The Ga'on suggests that, at least according to the Tosefta, there may be a clear logical basis for this exception to the rule of "Tum'ah Tzafah." The logic is that even when a k'Zayis from a Mes is thrown, it is as if it is lying on the ground because of the rule that Tum'as Mes is "Boka'as v'Yoredes." This rule tells us that wherever Tum'as Mes is, it "pierces" straight down to the ground and down to the depths. What is lying under a k'Zayis of a Mes is therefore considered as though it were touching the k'Zayis. Similarly, because of the rule of "Boka'as v'Yoredes," the k'Zayis from a Mes is always considered as though it were touching the ground, and being dragged along the ground rather than thrown! If Taharah is thrown above a k'Zayis from a Mes, though, it is unquestionably "in the air" and not being dragged along the ground; therefore any Safek that arises judged leniently, like all "Tum'ah Tzafah." (The Ga'on's approach is of course based on the view of most Rishonim, that only *Ohel* of Tum'as Mes is an exception to the rule of Tum'ah Tzafah, unlike the Rambam cited by the Ga'on in our Gemara.)

This answers the logical distinction of the Tosefta. The Beraisa in our Gemara, though, apparently does not accept this distinction. Instead, it maintains that it is simply a "Gezeiras ha'Kasuv" that the rule of Tum'ah Tzafah does not apply to Tum'as Mes b'Ohel, whether the Mes is thrown or the object that is Tahor is thrown over the Mes.

Second, the Ga'on suggests that in the Tosefta's scenario, it is assumed that a person is holding the object that is Tahor, but not the object that is Tamei. If so, when Tum'as Mes is thrown above Taharah, since the rule of "Tum'ah Tzafah" does not apply to Tum'as Ohel (or, according to the Rambam, to Tum'as Mes in general), the object below (in the person's hand) is judged Tamei mi'Safek. However, if the object that is Tahor is thrown above the Tum'ah, it is no longer in a person's hand at the time that the Safek arises -- and neither is the Tum'as Mes in a person's hand, as we already established. Since neither of the objects is in a person's hand, we are Metaher mi'Safek for another reason: it is a Safek regarding objects that are "Ein Bahen Da'as Lisha'el!" The Tosefta is teaching that although a person *threw* provided the force that propels the object that was Tahor above the Tum'as Mes, since the object that was Tahor it is not actually in a person's hand at the time it flies through the air, it is considered "Ein Bo Da'as Lisha'el."

If so, our Beraisa may simply be discussing a situation in which a person is holding the *Tum'as Mes" as the object that is Tahor flies above it. Therefore it is deemed a Safek regarding a *person* ("Yesh Bo Da'as Lisha'el"), and we must rule stringently since it arises in Reshus ha'Yachid (since the entire Sugya is of course dealing with a Safek that arises in Reshus ha'Yachid).


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