Shabbat Parashat Toldot| 5765
From the works of Hagaon Harav Shaul Yisraeli zt”l - Marriage Between People From Families with Occurrences of a Serious Disease - Part II
[We continue our discussion about a prospective couple, each of whom coming from a family with two occurrences of a certain, serious disease. We saw a possible distinction to answer an apparent contradiction in the Shulchan Aruch. Two occurrences are enough to indicate a representative trend (chazaka) in the case of a mother or two sisters who gave birth to flawed babies. For more distant relatives, three time are needed.]
We must try to understand the compromise position that chazaka requires only two occurrences but by second-degree relatives three times are required . One can accept or deny the connection of illness between different members of an extended family. But if one accepts it, why should the number that creates a chazaka change?
The Chatam Sofer (Shut, VI, 70) brings an interesting source for this basic distinction. The gemara (Chulin 95b) interprets Yaakov Avinu’s statement of fear that some tragedy might befall Binyamin as follows. As Yosef and Shimon were gone, if something would happen to Binyamin, then there will be a chazaka that would bode danger for all of his sons. Thus, by siblings, chazaka is established after three times. In contrast, Yehuda deemed Tamar to be a dangerous wife after only two husbands died. That is because Tamar’s trend was directly related to one person, whereas Binyamin was just the third member of a family. This source, though, is of little help for us, as we are working with the assumption that siblings should be treated like the person himself, not like the broader family.
In general, we need to understand what it means that two occurrences create a possible chazaka [see last week’s installment]. The gemara (Bava Metzia 106b) seems to treat two occurrences as a full chazaka. The logic seems to be as follows. When an unusual occurrence happens, we assume that normalcy prevails and that the occurrence was chance, namely, that it was caused by some external factor. We may assume that there is no reason to expect that the external factor will cause a recurrence. When the matter arises again, there is a chazaka of sorts. We are now convinced that there is an internal factor which is connected to the phenomenon. However, we have reason to suspect that the occurrences happen only when another factor(s) joins in, and there is not enough evidence to expect that the combination of factors will recur. Since we are not sure if one factor is responsible for the occurrences, which would cause us more concern, or a combination of factors, we treat the situation as a safek (halachic doubt). Thus, we are cautious in cases where we fear for someone’s life but also cautious before extracting money based on doubt. Only after three times do we assume that the cause of the occurrence is directly entrenched in the subject and that the phenonenom is likely to reappear without the need for other contributing factors.
[We now have the basis to complete our discussion next week.]
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