By Rabbi Yirmiyohu Kaganoff (RabbiKaganoff.com)
On the evening of the first night of Chol HaMoed in Eretz Yisroel (corresponding to the eve of the second night of Yom Tov in chutz la’aretz), I received a curious phone call:
“Rabbi,” the female voice began, “I am calling on behalf of my friend, Rivkah.” After decades of rabbinic experience, I was convinced that this was the introduction to an embarrassing question. People often prefer pretending that they are asking for someone else — hiding behind the name “of a friend.” But this time, I was wrong.
KIDDUSH OR HAVDALAH?
“Rivkah is a student at Bnos Aliyah Seminary and is uncertain whether she should keep one day of Yom Tov or two. A few weeks ago, she visited a family for Shabbos and mentioned her predicament. The man of the house graciously told her that he answers halachic inquiries and ruled that she need keep only one day of Yom Tov. However, upon returning to Seminary, a teacher told Rivkah that she should not ask her shaylah from just anyone, but must ask one of the seminary rabbis. Rivkah did so, and was told to keep two days. Subsequently, someone told her that she should not have asked the question a second time and must follow the first ruling she received. Now, she is in a dilemma: Should she observe the second day of Yom Tov or not? Is she supposed to find someone reciting Kiddush or Havdalah?”
Although most people do not have a Yom Tov issue like Rivkah did, they could still stumble into a similar predicament by making a query of two different rabbonim. As I understood the shaylah, the answer to Rivkah’s query did not involve analyzing the laws of who must observe two days, but concerned whether she must follow the first opinion or the second. Although the Gemara states that one may not ask the same shaylah twice, perhaps this applies only if someone received a strict ruling that he or she is now trying to overturn. But what happens if someone first received a lenient ruling, and then received a stricter response? In our instance, the first authority told Rivkah that she need keep only one day Yom Tov, which, according to most opinions, is considered a lenient ruling, since she now may perform melacha on the second day (Minchas Shelomoh 1:19:8). (Shu’t Chacham Tzvi #167 contends, for reasons beyond the scope of this article, that keeping one day is the stricter ruling.)
In order to resolve Rivkah’s quandary, we need to discuss the following questions:
1. May one ask again after receiving a lenient answer?
2. If one did, and the second authority ruled strictly, whose reply is binding? Is one still bound by the first ruling, which in Rivkah’s case was lenient, or the second, stricter ruling; or perhaps she should now ask a third authority for a final decision?
3. Was the teacher correct in directing her to ask a second shaylah after she already received a psak?
BACKGROUND INFORMATION
Before focusing on Rivkah’s predicament, we must first understand the general principles of the topic:
The Gemara (Avodah Zarah 7a) teaches that someone who asked a shaylah and received a strict ruling may not subsequently ask the question from a different authority. I will refer to this principle as hanishal lechacham, based on the opening words of the Gemara’s statement (“One who asked a Torah scholar”).
Tosafos (Avodah Zarah 7a s.v. hanishal) inquires, “May one never question the rav’s decision? Let the different authorities debate the issue and perhaps the second will prove to the original authority that his decision was incorrect.” Tosafos concludes that the Gemara prohibits only asking a second rav without notifying him that one has already asked the question. However, if one notifies the second authority that the question had already been asked, the second authority may oppose the decision, if he considers it mistaken. Can he actually overturn the first ruling? This depends, as there are three levels of error:
CLEAR MISTAKE
I. If it is obvious to the second rav that the first rav erred, the second rav may inform the inquirer of the correct practice (Tosafos). This is true only if the first rav‘s ruling conflicts with accepted halachic practice or was based on inaccurate information (see Mishnah, Bechoros 28b). In these instances, the first opinion is totally disregarded, since it is erroneous. Judaism does not accept a doctrine of rabbinic infallibility; on the contrary, the Gemara records several instances where great halachic authorities erred in specific rulings (see Horiyos 2a). For example, Rabbi Tarfon ruled that a cow whose uterus was surgically removed is not kosher, as it will die shortly. The Mishnah records that when it was demonstrated that an animal can survive this surgery satisfactorily, Rabbi Tarfon acknowledged his error (Mishnah, Bechoros 28b).
PROVABLE ERROR
II. If the second rav feels he can prove that the first one’s ruling was mistaken, but the ruling is not an obvious error, the second authority may not say anything directly to the inquirer. Instead, he should contact the first rav to prove that the ruling was flawed. In the true style of intellectual honesty required of a Torah scholar, the first rav should carefully examine the second rav’s approach to see if it has merit. It is now up to the first rav to decide whether to change his ruling (Shu’t Panim Meiros #2; cf. Shach, Yoreh Deah 242:58; Choshen Mishpat 25:14:17). If he still feels that his first interpretation is correct, or, at least, not proven to be in error, he should maintain his original position. According to some opinions, he may retract his position, if he no longer feels it to be correct, even though he cannot prove it wrong (Levush, Yoreh Deah 242:31; Aruch HaShulchan, Yoreh Deah 242:60).
A similar situation could result if the second rav knows that well-accepted authorities rule differently from the way the first rav did, and he suspects that the first rav would accept their position (see Rosh, Sanhedrin 4:6). In this situation, too, the second rav may simply notify the first rav of the variant opinion, and then, it is up to the first rav to decide whether to rescind his original decision.
In all the cases we mentioned so far, the first rav’s ruling is retracted, either because it was clearly erroneous or because he himself withdrew it.
DISPUTE IN INTERPRETATION
III. If the second rav disagrees with the first rav’s conclusion, but cannot prove it incorrect, the second rav should say nothing to the questioner, who remains bound by the original decision. There is no halachic error here, but a diversity of outlook, and the first rav’s verdict cannot be overturned. Even if the first rav himself subsequently reconsiders his decision, most authorities contend that he cannot alter his own original ruling, since the original approach cannot be disproved (Shach, Yoreh Deah 242:58 and Choshen Mishpat 25:14:17; Shu’t Panim Meiros #2; Divrei Chamudos, Chullin 3:24). (However, note that the Levush, Yoreh Deah 242:31, and the Aruch HaShulchan, Yoreh Deah 242:60, rule that he can change his mind. They feel that the second rav should engage the first rav in debate, because this might change the first one’s mind.)
How long does the ruling remain binding?
The Rama (Yoreh Deah 242:31) rules that the rav’s decision is binding only on the specific instance just asked. However, if the same shaylah recurs, one may re-ask the shaylah from either the same or a different rav. The same rav himself, and certainly any other rav, may rule differently when the question recurs. Therefore, if someone asked whether one may perform a certain activity on Shabbos, was told that it is forbidden, and subsequently discovers that the consensus of poskim permits this activity, he may be lenient in the future. Similarly, a rav who ruled one way and subsequently discovered that most poskim dispute his conclusion, may conclude differently the next time he is asked this question.
WHAT IF THE FIRST SCHOLAR WAS LENIENT?
So far, we have assumed that the first rav decided strictly. What happens if the first rav ruled leniently, and the questioner would like to ask someone else? This issue is germane to Rivkah asking her seminary rabbi about observing two days of Yom Tov after the first rabbi permitted her to keep only one day.
The answer to this question depends on why one may not ask a shaylah from a second authority. Here are two reasons given:
Reason #1: CONSIDERING IT PROHIBITED
Most Rishonim contend that when submitting a question to a rav, the inquirer accepts the rav’s decision as binding and must then consider the item either permitted or prohibited (Raavad quoted by Ran; Rosh). This concept is called shavya anafshei chaticha de’issura, considering something as prohibited. I will clarify this principle with a case that I discussed in a different article.
A man believed himself to be a kohen, even though there was insufficient evidence for his assumption. Since most Jews are yisroelim and not kohanim, his halachic status is a yisroel, and he has none of the rights of a kohen — he may not duchen, redeem a bechor or receive the first aliyah to the Torah. However, since he considers himself a kohen, he must assume the stringencies that result from that esteemed status: he may not come in contact with corpses, nor marry a woman forbidden to a kohen. Since he believes that he is a kohen, he is shavya anafshei chaticha de’issura, he must consider himself prohibited to do these things, as if he is a kohen.
The Rishonim mentioned above maintain that asking a shaylah means accepting the rav’s opinion as binding halacha; if he rules stringently, I must accept his verdict, and therefore I may not re-ask the question. (The exceptions mentioned previously where the ruling can be retracted are because the decision is considered an error and therefore not a valid decision.)
This approach rules that the principle of hanishal lechacham applies only when the first rav ruled stringently. If he ruled leniently, I am permitted to follow his ruling, but not obligated to, and therefore I may re-ask the shaylah from a different rav (see Tosafos, Avodah Zarah 7a s.v. hanishal). Thus Rivkah may ask her shaylah from the seminary rabbi, notwithstanding the first ruling she received. We will soon discuss whether she is obligated to keep the second day of Yom Tov, once she received this second ruling.
Reason #2: RESPECT FOR A TALMID CHACHAM
Other authorities explain that re-asking a shaylah from a second rav affronts the respect due the first rav by implying that one is questioning his competence (cited by Ran to Avodah Zarah. See there that he also quotes an additional reason.) This rationale forbids re-asking a question, even if the first rav ruled leniently, as it is still offensive to the rav’s honor. Following this approach, Rivkah should not have asked the seminary rabbi, once she had already asked someone qualified to answer her shaylah.
SHOULD HER TEACHER HAVE TOLD HER TO ASK THE SHAYLAH AGAIN?
Certainly, her teacher should have asked her own shaylah as to whether to instruct Rivkah to ask her shaylah again.
Do any other differences result from the dispute as to why one may not re-ask a shaylah? Indeed, they do.
A BRACHA DISPUTE
Many halachic issues are not matters of being strict versus lenient, but simply questions regarding correct procedure. For example, whether or not to recite a bracha in a certain instance, which bracha to recite, or whether to repeat a tefillah are all instances where there is no “stricter” or “more lenient” side of the question. Both sides of the question involve a stringency, and therefore the principle of shavya anafshei chaticha de’issura is not applicable.
Those who ban re-asking a question because of shavya anafshei chaticha de’issura should therefore permit re-asking any question of this type, in order to receive a more accurate or authoritative response. On the other hand, those who ban re-asking a question because it is offensive to a scholar’s honor should prohibit it in this instance, too, since it implies a lack of competence on the part of the first rav asked.
Before resolving Rivkah’s dilemma, we need to explore one other fascinating point:
A DISPUTE BETWEEN THE TALMUDS?
When the Gemara Bavli (Avodah Zarah 7a) cites the prohibition of remaking a halachic inquiry, it refers only to cases where the first rav answered stringently, but mentions no cases where the first rav ruled leniently. This implies that the Bavli explains the reason for this prohibition like the first approach – that one has accepted the prohibition of the rav.
However, the Yerushalmi (Shabbos 19:1) quotes the following anecdote:
Rabbi Simon permitted something which Rabbi Ami subsequently prohibited. Rabbi Simon was upset; is it not said that if one sage permitted something, a second sage may not prohibit it?
This Yerushalmi appears to rule that one may not re-ask a question, even if one received a lenient ruling, which is impossible according to the first approach. Thus, the Yerushalmi appears to understand that the reason one may not re-ask a question is the talmid chacham’s honor, the second approach cited. This would imply that the two Talmuds dispute the exact question upon which our dear Rivkah and her teacher stumbled!
The Rishonim prefer to avoid saying that the two Talmuds disagree, suggesting different approaches to resolve this contradiction.
AN ALTERNATIVE READING
Tosafos (Avodah Zarah 7a s.v. hanishal) suggests reading the last statement of the Yerushalmi rhetorically, as opposed to being a support for Rabbi Simon’s position. The passage now reads:
Rabbi Simon permitted something which Rabbi Ami subsequently prohibited. Rabbi Simon was upset. The Yerushalmi now questions the validity of Rabbi Simon’s reaction:
“Does it say anywhere that if one sage permitted something, a second sage may not prohibit it?”
Following Tosafos’ approach, the Yerushalmi rules, exactly as the Bavli implies, that the prohibition to re-ask a question applies only when the first scholar decided stringently. However, when he ruled leniently, a second scholar may rule freely on the case.
On the other hand, the Rosh explains the Yerushalmi as I explained originally, that Rabbi Simon objected to Rabbi Ami’s strict ruling as halachically objectionable, after he (Rabbi Simon) had permitted the matter. The Rosh quotes this approach as definitive halacha, meaning that hanishal lechacham is prohibited because of the honor of the first rav. The Rosh appears to contend that both reasons are true, the Bavli emphasizes one reason, and the Yerushalmi the second. This approach maintains that one may indeed not seek out a second rav’s opinion (without telling the second rav that he already asked someone), whether the first rav was lenient or strict.
How do we rule in this dispute?
Most halachic authorities rule that the law of hanishal lechacham applies only when the initial ruling was strict, but if it was lenient, one may indeed re-ask the shaylah (Shach, Yoreh Deah 242:59; Gra). However, there are some who rule, like the Rosh, that hanishal lechacham applies whether the initial ruling was strict or lenient and therefore forbid re-asking a question, even if one received a lenient ruling (Rama, Yoreh Deah 242:31). According to the first approach, there was nothing wrong with Rivkah re-asking her question.
CONCLUSION
Now that Rivkah already re-asked the question, must she keep one or two days of Yom Tov? According to those who rule that hanishal lechacham is because one has accepted the stringent opinion, once Rivkah re-asked the question she is bound to follow the second, stricter, ruling. Since most authorities rule this way, one who re-asks the question from a second authority will be obligated to follow his opinion, if he is stricter. No matter how many people one asks, one will be always obliged to follow the strictest ruling. Thus, Rivkah should celebrate two days of Yom Tov this Pesach.
The final psak Rivkah received applies only to the question she asked about Pesach. When Shavuos arrives, she may ask again whether to observe one day Yom Tov or two. May she direct her question to a particular rav, knowing what answer she wants to receive? That is a topic for a different article.
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