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Thought for the Day: Understanding Shulchan Aruch -- I Say and Some Say vs Some Say and Some Say

I am going to apologize right up front about this one.  I know that normal human beings won't find this fascinating, but what can I do?  I am fascinated by the precision of the Talmud and Shulchan Aruch; to the point that the way even apparent non-conclusions are expressed really reveal the information needed to come to a psak halacha.

Siman תרכ''ו discusses the details of building a sukkah under a tree.  As we all know; don't do that.  Of course, the Shulchan Aruch wants to cover all bases and presents its conclusion in "יש אומרים/יש אומרים"/"some say... some say" format.  The Biur Halach (d.h יש אומרים :) ) states that according to the well know rule, that means the p'sak halacha is like the second יש אומרים.  I have heard that rule before, but hadn't "seen it inside" till now.  The other format the Shulchan Aruch uses for יש אומרים is where he states a halacha סתם followed by "ויש אומרים", he then means the p'sak halacha is like the his סתם statement.  To beat this to death: סתם...ויש אומרים means, "Here's the halacha, even though I know others say differently"; whereas "יש אומרים/יש אומרים" means, "I know some say azoi, but I pasken in accordance with those who say azoi."  Cool, eh?

For those of you who have not yet rolled their eyes and moved on: I have found something even more cool: the Dirshu (side-note 12, for those of you following along) brings two other places where the Shulchan Aruch uses "יש אומרים/יש אומרים" format, but the Mishna Brura does not note that rule.  In one case he says the Shulchan Aruch means to follow the lenient ruling the situation is דרבנן and the stringent ruling if the situation is דאורייתא.  In the other case, the Mishna Brura simply says the Shulchan Aruch means to decide leniently because the case is a דרבנן.  So what does the the Mishna Brura really hold?  Can you see why I was rubbing my palms together and thinking excitedly "oh boy, oh boy, oh boy" when I read that?  (Don't feel sad for me nor try to change me; just accept it as an expression of HaShem's sense of humor and be happy you don't have to live with me.  You do?  Sorry...)

What follows is my own thoughts about how to resolve the apparent contradiction.

One of the other locations noted by Dirshu is תריב: Hilchos Yom Kippur in discussing how much a healthy adult would have to eat to be subject to the punishment of spiritual excision.  The Shulchan Aruch says: some say the amount is the volume of four eggs and some say it is three eggs.  The Mishna Brura, ס''ק ח, says be strict for a דאורייתא and lenient for a דרבנן.  Why not invoke the rule?  I think it is because in this case the Shulchan Aruch is not deciding an issue of forbidden/permitted; he is telling you a volume.  The small volume could be a stringency -- as it is in the case of eating on Yom Kippur, or it could be a leniency -- as in the case of how much matzah you need to eat.  It could be a דרבנן -- as in how fast you need to drink one of the four cups wine, or it could be דאורייתא -- as in the case of how much matzah you need to eat for the first and last matzos.  Bottom line: this case is outside the venue of that "well known rule".

The second location noted is תקסז: Hilchos Fasting, where the Shulchan Aruch says that some allow you may not wash your mouth with a רביעית liquid at one time, while others say you can even use a רביעית at one time as long as you are confident that you won't swallow.  The Mishna Brura (ס''ק ח) says that since the Shulchan Aruch uses the "יש אומרים/יש אומרים" and doesn't clearly state a prefrence, then since it is דרבנן he means to be lenient.  Why not use the "well known rule"?  I think the Mishna Brura in this case is explaining why the lenient ruling comes last.  Ahiii... you will ask me why, then, does the Mishna Brura bring up the rule in the sukkah halacha?  No problem, I reply, because in that case the Shulchan Aruch put the stricter opinion at the end and the Mishna Brura needed to explain how he knew that the Shulchan Aruch meant to be strict in this case.  (Why is Shulchan Aruch strict in this case even it is is very likely a דרבנן?  Excellent question.)

Ah... rarely have so few felt so satisfied by so little.


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