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A Second Opinion

 

 

When faced with a question of halacha, the obvious response is to approach a qualified rabbi for direction. Not surprisingly, in most cases, the one asking has a clear preference as to what he would like to hear from the rabbi. For example, if milk spilled onto one’s cholent pot on Shabbos morning and he asks Rabbi Weiss if it is permissible to eat his cholent, he is naturally hoping for a resounding yes. Let’s say the rabbi forbade him from eating his cholent. Sadly, he goes home and breaks the news to his family and guests that they will have to suffice with gefilte fish. Now let’s say one of the guests pipes up, and confidently declares, “Last week I asked Rabbi Shwartz the same question and he said it was fine. Let’s go ask him because this cholent smells delicious.”

Is one permitted to ask a second rabbi? What could be wrong with asking for a second opinion? After all, Rabbi Shwartz is no less a scholar than Rabbi Weiss and his opinion is no less reliable. Would it make a difference if the Rabbi Shwartz was a greater scholar? In honor of Parshas Shoftim we will explore some of the concepts and the laws of asking questions.

 

A Second Opinion

The Gemora (Avoda Zara 7a) tells us that if a rabbi forbids something we may not approach another rabbi to permit it. The question is, why not? The existence of different opinions and positions is nothing new. Assuming both Rabbis are competent and well-learned halachic authorities, what forces a person to remain faithful to the first answer he receives? The Rishonim differ as to the reasoning of the Gemora. We will present the various opinions and discuss their practical differences.

 

Honor Thy Sages

The Ran (ibid.) offers two explanations as to why one may not ask a second opinion and disregard the first rabbi’s response. In our above case of the milk on the cholent pot, if Rabbi Shwartz were to contradict Rabbi Weiss’s decision, that might undermine Rabbi Weiss’s authority. It is tantamount to saying that Rabbi Weiss unnecessarily forbade someone’s cholent and took away from their kavod and oneg Shabbos, not to mention the financial loss. Chazal concerned themselves with the honor of talmidei chachamim. Therefore, even if a different rabbi might permit such a case, it is nonetheless forbidden to ask. Moreover, even if he did ask out of ignorance, the second rabbi is forbidden to answer out of respect for the first rabbi, if he knows that another rabbi  was asked (Chullin 44b, see Tosfos ibid).

Additionally, the Ran explains that there is an undesirable outcome from presenting the same question to a second rabbi. The query was already addressed and the rabbi forbade it. If a second rabbi permits it, it will appear as if the Torah is inconsistent or, in other words, there is not just one Torah, but two sets of laws.

 

Taking Things Seriously

The Raavad (Avoda Zara ibid) offers another explanation having nothing to do with protecting the honor of the first scholar. Rather, it is rooted in a concept referred to by Chazal as shavya chaticha de’issura, meaning the subject is now rendered forbidden. When a person asks a rabbi, he has decided that he will conduct himself according to the rabbi’s ruling (Rav Yohonson m’Lonil, Rif ibid). That personal commitment is binding. Therefore, when that rabbi declares something forbidden, it is now rendered forbidden, for the one who asked, even if a different scholar, if asked the same question, would have ruled leniently. Accordingly, the Gemora’s reasoning to forbid asking a second rabbi is as follows: The second rabbi is addressing a predetermined case. As such, his opinion on this case is no longer significant.

Obviously, if someone presents his query to a group of scholars who debate the issue, he is not bound to the first one who offers an opinion. Rather only a conclusive answer is binding (Shach Y.D. 242:52).

The Rishonim and Achronim expound the various practical differences between these explanations, as we will see.

 

Concrete Halacha

Halacha encompasses machlokes and varying positions. Often, and perhaps usually, questions asked are not new to the world of halocha. For thousands of years the scholars in every generation have explored and responded to the myriad inquiries that were presented to them. Our annals are replete with cases and precedents that mirror most of today’s inquiries.

However, an important distinction must be made. Halachic decisions fall into several categories. Some are the result of clearly elucidated laws from an authoritative source such as the Mishna or Shulchan Aruch. Should a rabbi mistakenly rule against such a source, it is not surprising to say that the second rabbi can, and must, provide the correct ruling (Rema Y.D. 242:31).

Well-known issues are not subject to limitations in asking a second opinion. For example, if one wishes to know what to do if he forgets bentsching, or if he should be stringent like the Shach in some circumstance, his options are not limited. These are general and obvious questions that have already been answered. The asker has not encountered a unique situation. He has come across an issue that was probably discussed and answered numerous times. In such a case, it is permitted to ask a second opinion since the responding rabbi is not  really giving the results of his personal judgement,  but merely citing the ruling of an earlier posek. (Chut Shani, Nidda 188). Most questions asked today fall into this category. If the rabbi answers by citing a sefer, for example he looks up or remembers the opinion of the Mishna Brura or the Shmiras Shabbos Kehilchosa, a second rabbi may rule differently.

 

Judgement calls – The Bigger the Better?

Though it is forbidden to ask for a second ruling, is this true even if the second rabbi is a markedly greater scholar? In discussing the parameters of this halacha the poskim differ as to its limitations.

Sometimes the rabbi responds with  his personal judgement. For example, after hearing an unusual question, the rabbi delves into the relevant Talmudic discussions. There are various opinions in the Gemora, and the Shulchan Aruch didn’t offer any ruling. The rabbi eventually decides that the stringent opinion is the most valid. This decision is a judgment call, as the authoritative resources of halacha haven’t provided a conclusive and binding ruling (see Chut Shani ibid).

The Rema (ibid) in elucidating our topic states, “A scholar who forbade [something], his friend may not permit it by his own judgment.” The Shach adds that this holds true even if the second scholar is greater than the first. The Shach cites several Rishonim who concur with the Rema. However, the Divrei Chamudos infers from the Maharik (171) that he does not concur with this position. Rather, the term “his friend” implies specifically one on the same level. But a greater scholar may overturn the ruling of a lesser scholar.

 

Changing Sides

Let us say that Rabbi Weiss rethinks the original question, and finds that there is sufficient reason to be lenient. May he reverse his own position? According to either of the Ran’s explanations, there should not be any reason to forbid him from changing his mind. Obviously, reassessment is different from being overruled. The rabbi’s honor is not slighted by his own reevaluation, as opposed to being overruled from the outside which could be quite degrading. Furthermore, since he withdraws his initial ruling, there is no concern of an appearance that the Torah is inconsistent.

However, if the basis for this halacha is that the original ruling rendered the item in question forbidden, can such a status be reversed? The poskim debate the effect of changing one’s mind according to the Raavad’s position. The Shach (Y.D. 242:58, see also Shiltei Giborim Avoda Zara ibid and Divrei Chamudos Chullin ibid, see Ran ibid) posits that according to the Raavad’s explanation the original ruling is irrevocable, assuming that it was error in judgment or logic and not an outright inaccuracy. The original ruling rendered the item forbidden. Now the item’s status is out of the rabbi’s hands. Therefore even the rabbi who initially decided the halacha cannot overrule himself and change the status of the forbidden item unless he changes his mind because he realized that his original answer was objectively incorrect.

According to the Rosh (Avoda Zara 1:3), while one is not permitted to ask for an alternative ruling, he is permitted to speak with a second rabbi about the subject. He can tell him: “I spoke with Rabbi Ploni and he forbids it. Do you concur?” If the second rabbi feels the first rabbi was mistaken, he may approach him and debate the matter. Should the first rabbi concede that he was mistaken, he may reevaluate the issue. Significantly, the Rosh concurs with the Ravaad’s reasoning that this halacha is based on the concept that a ruling renders the subject forbidden. According to the Shach and others, even if the second rabbi convinces the first one that his reasoning was lacking he is nonetheless powerless to change his original decision. If so, asks Rabbi Yehonoson Eibeshitz ztz”l (Tumim 25:13), what would be the purpose of the Rosh’s proposition that second rabbi may debate the subject with the first rabbi? Such a discussion would be pointless. Rather he suggests that even according to the Raavad’s reasoning, if a rabbi rethinks his position on a stringent ruling, he may reverse his ruling.

Though the item was declared forbidden and the asker committed himself to the rabbi’s answer, as explained above, Rabbi Yehonoson Eibeshitz’s reasoning is that the commitment is to be faithful to the rabbi and not to the rabbi’s answer. Accordingly, should the rabbi change his view, the asker is not bound by the initial response.

 

Answering by Tradition

At times a rabbi’s answer is not based on his own conclusions from relevant material, but rather on a tradition or kabbala that he received from senior halachic authorities. The Gemora (Nidda 20b) tells the story of a woman who approached Rabba Bar Bar Chana with a question pertaining to the laws of purity. After the rabbi ruled it impure, she then approached Rav Yitzchak the son of Rav Yehuda who declared it pure. The Gemora questions Rav Yitzchak’s behavior as being seemingly at odds with the halacha that if one rabbi forbids a second may not permit. The Gemora offers two answers. First, she told him that Rabba Bar Bar Chana must not have been feeling well because in general he permits this very same question. The Gemora suggests that at first Rav Yitzchak indeed answered in deference to Rabba Bar Bar Chana. It was only after she attested that in general Rabba Bar Bar Chana permits it, that Rav Yitzchak permitted it. The Gemora infers that with regard to this halacha she may be believed – which is unusual as women’s testimony is not generally valid.

The Gemora explains that Rav Yitzchak relied on what he had learned. Rashi and Tosfos differ as to the Gemora’s meaning. Rashi explains that it was clear to Rav Yitzchak that the question at hand was not impure, and therefore he permitted it. He didn’t actually rely on her account. Tosfos (ibid, Chullin 44b) explains that the prohibition against overturning a previous rendered halacha is limited to when the decision is based on judgment and logical conclusion. But when the ruling is based on a tradition received, it is permissible to overturn an opposing ruling. Thus the meaning of the Gemora, that he relied on what he had learned, means that he answered according what he had learned from his teachers.

The Rema (Y.D. 242:31) writes that when one has a tradition that the first rabbi’s response was incorrect, that is akin to him (i.e. the first rabbi) making a overturn the initial ruling (see Shach ibid 56).

 

Answering Stringently

What if the first rabbi ruled leniently? May a second rabbi tell the recipient of that answer to be stringent? This too depends on the reason for this halacha. According to the Raavad and others that the item in question actually becomes forbidden, in this case there is no concern. The significance of rendering something forbidden is limited to prohibitions. The item in question was permitted before the concern was raised and permitted after the rabbi answered. It never became forbidden. Therefore, a second rabbi, should he see fit, may offer a stringent ruling.

On the other hand, if the reason for forbidding a second rabbi from answering is due to slighting the first rabbi’s honor, this would be equally problematic if the first rabbi responded leniently. The Rema (ibid) writes that if the first rabbi permits a second may not forbid, unless the first rabbi is mistaken as explained above. However, the Shach (ibid 59) disagrees based on his understanding that the halacha is according to the Raavad (see Shach ibid 54).

 

In Summary

  • If a rabbi was asked a new or unprecedented question, and after delving into the relevant sources concluded that the subject is forbidden, a second rabbi may not permit it to the one who originally asked the first rabbi.
  • Some permit overruling lenient decisions.
  • The poskim differ as to whether a rabbi may overturn his own stringent
  • If a rabbi gave a mistaken answer, a second rabbi may overrule his faulty decision. The first rabbi must also align his opinion with the true holocha.
  • Questions which are already established halachic discussions are not subject to this limitation.

I would like to conclude by citing the words of our daily prayer: “May it be Your will that… I not declare tamei – tahor nor tahor – tamei, nor that which mutar – assur, nor assur – mutar… open my eyes and I will see the wonders of your Torah.”

 

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