The Mishnah (9:5) draws similarities between a case of doubt relating to tumat nidah and the following case. There was a pile of stones, amongst which was a kezayit of flesh from a corpse – a source of tumat met. The identity of this tameh pile became confused with two other piles of stones that were tahor. The Mishnah taught that if one or two of the piles were inspected and found not to contain the tumah, then only the remaining pile or piles are deemed tameh. What is the law if all three piles are searched and the missing tumah is not located?
The Mishnah records a debate. R’ Meir maintains that all three are tameh while the Chachamim maintain that all a tahor. Even though the Chachamim effectively agree with R’ Meir in the comparable case concerning tumat niddah, the Gemara (Nidah 61a) explains that in this case they argue that one can assume a crow came and took away the tumah. How do we understand the opinion of R’ Meir?
The Mishnah itself provides the reason: “... R’ Meir understands that anything that has a chazakah of tumah is always tameh until it is known [with certainty] where the tumah went.” Since in our cases the whereabouts of the tumah is unknown all the piles remain tameh.
The Mishnah Achrona questions R’ Meir’s ruling. We have learnt in masechet Parah (9:7) that if regular ash is mixed with eifer Parah (a source of tumah) and the regular ash is in the majority then the mixture is tahor. Here the tameh pile is in the minority. We should therefore consider the tameh pile as annulled (batel) in the majority - all should be tahor! Granted that prior to inspection the laws of bitul do not apply as means of clarifying the doubt are still available, nevertheless after nothing is found the tumah should be batel!94
The Mishnah Achrona provides two different solutions. First we find that bitul does not apply to items that are attached to the ground. For example the Mishnah in Orlah (1:6) teaches that saplings of orlah or kilei kerem that become confused with regular saplings are all assur.95 Consequently perhaps this case of the piles of stones is treated as attached to ground for these purposes.
The second answer of the Mishnah Achrona is as follows. Initially, as was explained earlier, since the piles were not checked, bitul could not be applied. Consequently all the piles were treated as tameh – they had a chezkat tumah. According to R’ Meir once the chezkat tumah is applied, even momentarily, it stays until it can positively be removed.
The Mishnah Achrona adds that the second answer explains a number of points. Firstly we now understand we the Mishnah went at length to explain the opinion of R’ Meir: “... R’ Meir understands that anything that has a chazakah of tumah* is always tameh until it is known [with certainty] where the tumah went.” In other words this chazakah is established and stands in the face of the possibility of bitul b’rov. Furthermore, the same debate between the R’ Meir and the Chachamim could have been recorded regarding a case where tumah was lost in a single pile, searched for and not found. Nevertheless stating the case in the way it does, the Mishnah is able to also teach that according to R’ Meir, bitul b’rov does not help after this chezkat tumah*.
94 He clarifies the question further that the piles are not considered kavua (fixed) such that the principle of rov does not apply. Kavua is only when the location of the issur and heter sources is know and the question is regarding an item that has separated from one of those sources.
95 He also cites Trumot 6:5. Based on the question of the Pri Chadash (YD 110) he explains that this is a rabbinic stringency. See inside for more detail.
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