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Understanding a Chazaka

Nazir (9:2) | Yisrael Bankier | 13 hours ago

The Mishnah (9:2) discusses a case where a nazir completed his term of nazirut and only after discovered that he was tameh met. The Mishnah teaches that in general it would mean that he would need to restart his nezirut. If however it was tumat ha'tehom -- no one new that a person was buried in that location -- then the person would be ok and not required to restart his nezirut. The Bartenura explains that this law of tumat ha'tehom is a halacha le'moshe mi'sinai. The Mishnah however qualifies this that if the nazir had not yet performed the final shaving, then he would need to restart the nezirut, even if it was tumat ha'tehom.

The Mishnah then continues with an example. If the nazir went to a mikveh during his nezirot and it was discovered that a kezayit from a met was floating there, it would ruin his nezirut. The tumah being exposed in this way, makes it tumat yaduah -- known. If however it was buried beneath the mikveh then it would depend. If the nazir was tahor prior to immersing and he did so simply to cool off, he would be tahor. That is the classic case of tumat ha'tehom. The Mishnah however adds that if he went to the mikveh because he was tameh, then he would be tameh. In other word the law of tumat ha'tehom does not apply in that case. The Gemara explains "chezkat tameh, tameh, chezkat tahor, tahor". In other words, in cases of doubt, we maintain the chazakah -- the last known and established status. The Gemara also adds, "she'ragliam le'davar". The last statement is used in the context of laws in the Mishnayot that follow, implying that there are grounds to make an assumption based on the evidence at hand. We shall try to understand its use in this Mishnah.

The Bartenura explains that the statement "she'ragliam le'davar" is explaining that it makes sense that the halacha of tumat ha'tehom is only when the nazir was tahor prior to issue. This is the opinion of the Tosfot. The Tosfot Yom Tov however finds this explanation difficult, since it does not appear to add to the chazakot that were just described.

The Tosfot Yom Tov therefore cites the Rambam's explanation who understands that regalaim le'davar is the rationale why we follow a chazaka. Were we not to rely on the last established status in halacha, considering the possibilities in either direction we would not what to do. The rule to rely on a chazakah grounds us; it gives us "legs to stand on."

The Beit HaLevi (II 22:8-9) explains that the debate between the Tosfot and the Rambam relates to their different understands of a the law of a chazaka. According to the Tosfot, a chazaka that relies on a future event to maintain the chazaka is not considered a chazaka. (He provides several examples that support this position.) In our case, even though the nazir was tameh before immersing in the mikveh, for him to be tameh after he emerges it would require that he came into contact with that tumat met in the mikveh. Put simply, it requires this additional event to occur. That being the case, according to the Tosfot, it would not be considered a chazaka. Instead, the case depends on whether it is considered a case of tumat ha'tehom. That is why the Tosfot understand that raglaim le'davar relates to understanding the scope of the law of tumat ha'tehom.

The Beit HaLevi continues that the Rambam rules (Nazir 6:20) that "...if he went down to cool off he would be tahor until he knows that he touched the met that was floating in the mikveh". The Beit HaLevi comments that it is clear that the ruling is based on the law of chazakah. Consequently, the Rambam argues with the Tosfot and understands that a chazakah is built on the last known halachic status even if it depends on a later event to maintain that status.

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