🙋‍♂️Ask The Rav: How Do We Rule When the Shulchan Aruch Writes a Law as Stam and Then Brings a Second Opinion as “Yesh Omrim”?
Question:
When the Mechaber records one opinion anonymously (stam) and then brings a second opinion as “yesh omrim”, how are we to rule? Do we follow the first opinion completely, with the second opinion being recorded merely for reference? Or must one initially be stringent for the second opinion? If the halacha follows the first opinion, why did the Mechaber mention the second opinion at all? Furthermore, does it make a difference if the Beis Yosef explicitly reveals which opinion he considers primary?
Answer:
The well-known rule cited by many Poskim is that when the Mechaber writes a ruling as stam and then brings another opinion as yesh omrim, the halacha follows the stam opinion. This rule is recorded by the Yad Malachi, Kenesses Hagedolah, Shach, Pri Chadash, and numerous other authorities. However, there is a major dipute among the Poskim regarding what exactly this means.
Opinion #1: The Halacha Follows the Stam Opinion Completely
Many authorities understand the rule literally. Since Maran placed the first opinion anonymously and the second opinion under the heading of yesh omrim, he intended the first opinion to be accepted as the practical ruling. This position is found in the classic rule of stam v’yesh omrim halacha kestam, brought by the Yad Malachi and many other Poskim.
According to this approach, the second opinion is not necessarily brought in order to create a practical obligation to be stringent, but rather to record that another legitimate opinion exists. Some understood this to be the intention of the Rama Mipano, who writes that the Mechaber first presents the more accepted opinion and only then mentions the alternative view. This approach was applied by a number of later Poskim to the case of meat that was salted without a prior washing. Since the Mechaber writes the lenient position stam and only then writes “yesh osrim”, they understood that the Mechaber retracted from the limitation he had written in the Beis Yosef and ruled leniently even absent great loss.
This approach has traditionally been associated with the methodology adopted by many Ashkenazi Poskim. While they accepted the general rule that stam v’yesh omrim halacha kestam, they understood it to mean that the first opinion represents Maran’s definitive ruling and may be relied upon even initially. Among those who followed this understanding are the Eliyah Rabbah and Peri Megadim, and a number of later authorities who understood that once Maran placed an opinion anonymously and recorded the dissenting view only as yesh omrim, the halacha follows the anonymous opinion without qualification. This approach was later championed and popularized within the Sephardic world by Rabbi Ovadia Yosef, who repeatedly argued that the accepted rules governing the Shulchan Aruch should be followed literally and that stam v’yesh omrim means that the halacha follows the stam opinion. Accordingly, he maintained that one need not initially be stringent for the yesh omrim unless there is a separate reason to do so.
Opinion #2: The Halacha Is Like the Stam, But One Should Initially Be Stringent for the Yesh Omrim
The traditional approach of many Sephardic Poskim for generations has been that when Maran records a ruling as stam and then brings a second view as yesh omrim, his intent is not merely to document an alternative opinion. Rather, the very fact that he chose to mention the second opinion indicates that it should be taken into consideration. Accordingly, while the strict letter of the law follows the stam opinion, one should preferably conduct himself in accordance with the yesh omrim whenever reasonably possible, and rely on the stam opinion only in a case of pressing need, substantial loss, or other extenuating circumstance. The Kenesses Hagedolah, cited approvingly by the Chida, writes that when Maran records a second opinion it is often in order to teach that one should be concerned for it. Likewise, the Ben Ish Chai, Maharam ben Chaviv, Maharit, Shulchan Gavoah, Nahpah BaKesef, Levushei Tzedakah, Kaf HaChaim, and many other Sephardic authorities explain that Maran frequently mentions the additional opinion precisely so that one should initially be stringent for it, even though the formal halacha follows the stam opinion. This approach became a central principle of the traditional Sephardic methodology of hora’ah, and in contemporary times is particularly associated with the rulings of Chacham Ben-Zion Abba Shaul, who strongly advocated this understanding of Maran’s intent.
A Major Qualification: When the Beis Yosef Reveals Maran’s True Opinion
Many Poskim write that all of the above rules apply only when we do not know Maran’s actual opinion. However, if Maran explicitly reveals his conclusion in the Beis Yosef, then his comments there override the general rules of stam v’yesh omrim.
This principle is stated by numerous authorities, including:
- Shiyurei Knesses Hagedolah
- Terumas Kesef
- Pnei Yitzchak
- Shaaris Yosef
- Te’alumos Lev
- Simchas Kohen
These Poskim write that if Maran clearly states in the Beis Yosef that he favors the opinion brought later as yesh omrim, then we follow what he wrote in the Beis Yosef and not the technical rule of stam v’yesh omrim.
The Classic Example: Meat Salted Without Hadacha Rishonah
The classic example is Yoreh Deah 69:2.
The Mechaber writes:
“If one salted meat without first washing it, he should wash it and salt it again.”
He then adds:
“And there are those who prohibit.”
On its face, the rule of stam v’yesh omrim would indicate that the Mechaber permits washing and re-salting even without great loss.
However, in the Beis Yosef the Mechaber explicitly concludes:
“For practical halacha, although the Semak prohibits, in a case of great loss or erev Shabbos one may rely on the lenient authorities.”
Accordingly, many Poskim—including the Shach, Kaf Hachaim, Zivchei Tzedek, and others—understand that Maran’s true ruling is that one may rely on the lenient opinion only in a case of great loss.
This case became one of the primary proofs cited by those who maintain that whenever Maran reveals his opinion in the Beis Yosef, that clarification overrides the ordinary rules of stam v’yesh omrim.
Others however, including the Peri Megadim, accept the former approach that the Michaber is completely lenient like the first opinion.
Practical Conclusion
Three approaches emerge:
- Simple Rule: When Maran writes stam and then yesh omrim, the halacha follows the stam opinion even initially.
- Yiras Hora’ah Approach: The halacha follows the stam opinion, but one should initially be stringent for the yesh omrim whenever feasible. The second opinion was recorded for precisely that purpose.
- Beis Yosef Qualification: If Maran explicitly reveals his view in the Beis Yosef, many authorities rule that his comments there define the halacha and may override the normal rule of stam v’yesh omrim
Thus, in practice, one cannot always apply the rule of stam v’yesh omrim mechanically. One must first examine whether Maran clarified his intent in the Beis Yosef and whether the later authorities understood the additional opinion merely as a recorded view or as one that should be respected and followed initially.
The Sephardic ruling today
In conclusion, the contemporary debate within the Sephardic world regarding stam v’yesh omrim largely revolves around these two methodologies. On the one hand stands what many describe as the traditional Sephardic approach, represented by the Kenesses Hagedolah, Chida, Ben Ish Chai, Kaf HaChaim, Chacham Ben-Zion Abba Shaul, and numerous earlier Sephardic authorities, who maintained that Maran recorded the second opinion in order that one should initially take it into account and only rely on the stam ruling in a case of need. On the other hand stands the approach identified with Rabbi Ovadia Yosef, which follows the more literal application of the rule that halacha kestam. Thus, the practical discussion found in contemporary Sephardic halachic literature often reflects a broader debate between the older Sephardic tradition of giving practical weight to the dissenting opinion and the later approach that treats the stam opinion as Maran’s sole binding ruling
Sources:
See Yiras Hahorah 5; Yalkut Yosef 43 p. 290
The general rule that when the Mechaber writes one opinion as stam and a second as yesh omrim, the halacha follows the stam, is cited by: Shach in Y.D. Pesak Hanhagas Issur Viheter end of 242; Shach, C.M. 66:61; Shach, Y.D. 84:12 and 177:38; Yad Malachi, Klalei HaShulchan Aruch 17; Kenesses HaGedolah, O.C. 318, Hagahos HaTur; Responsa Rama MiPano 97; Pri Chadash, Y.D. 50:4, 118:11, and 121:15; Bach, Y.D. 190:34, 198:33, and 220:3; Beis David, O.C. p. 45b; Yad Aharon, O.C. 631; Batei Kehunah, p. 128d; Eliyah Rabbah, end of O.C. 81; Nechpah BaKesef, p. 186b; Chelkas Mechokek, E.H. 1:11 and 21:21; Peri Megadim, rules of Issur VeHeter 1.
The Halacha Follows the Stam even Initially even if no loss: Understanding of some Rabbanim in later statement of Rameh MiPano, Responsa 97; Chida, Machazik Berachah, Y.D. 9:2; Machazik Bracha 69:6; Chida, Shiyurei Berachah, O.C. 61:2 [although writes in both areas that Lechatchila we are Machmir like the Yeish Omrim]; Elya Zutah ; P”M 69 M”Z 1;
Regarding meat salted without the first rinsing, the authorities who understand the Mechaber’s stam as permitting the meat after washing and re-salting—even without a major loss—include: P”M 69 M”Z 1; Machazik Bracha 69:6; Yabia Omer, Vol. 6, Y.D. 5; Chelko Shel Yedid; Misgeres HaShulchan, Y.D. 69:2; Zera Yitzchak, Pilpelet Kol Shehu 14; Zera Emes, Vol. 2, 24; Mizrach Shemesh, Y.D. 69:2. They explain that the Mechaber may have reconsidered the limitation stated in the Beis Yosef after recognizing that numerous Rishonim support the lenient opinion.
The Halacha Follows the Stam, but Initially One Should Consider the Yesh Omrim: Initial statement of Rama MiPano, Responsa 97 and simple understanding of many that so is his final opinion; Kenesses HaGedolah, quoted in many Poskim; Maharam Ben Chaviv, cited in Ginas Veradim 6; Ginas Veradim C.M. 3:29; Get Pashut 129:97; Halachos Ketanos, Vol. 1, 293; Nahar Shalom 32:18; Maharit, Vol. 2, C.M. 122; Biur Hagra EH. 141; Beis Shmuel E.H. 141; Nechpah BaKesef, Vol. 2, E.H. 20; Chida, Machazik Berachah, Y.D. 9:2; 55:4; Chida, Shiyurei Berachah, O.C. 61:2 that so is conclusion of the Poskim [even though Maran is lenient]; Mamar Morrdechai O.C. 61; 318:16; Mateh Yosef Y.D. 2:2; Shulchan Gavoah, O.C. 32:34 and Y.D. 96:5; Shesilei Zeisim in Hakdama 2; Petach HaDevir, O.C. 253:7; Zivchei Tzedek, Y.D. 69:29; 81:27; 87:56; 94:139; Shut 2:26; Reb Eliyahu Mani in Zichron Eliyahu Y.D. Mareches Samech 3; Shut Maharif Falagi 57; Ben Ish Chai, Year 2, Korach 6; Rav Pe’alim, Vol. 2, C.M. 3; Vol. 2, Y.D. 7; Maharitz in Pe’ulas Tzaddik, Vol. 2, 72; Vayomer Yitzchak, Vol. 1, Y.D., Likkutei Dinim 209; M”B O.C. 320:30; Kaf HaChaim, O.C. 13:7; 649:18; Y.D. 69:39; 81:38; 94:16; 96:10; Kol Yaakov 32:235; Halacha Lemoshe Mareches Samech Nun; Minchas Kohen; Rabbi Ezra Attiya, cited in Be’er Chaim, Bishulei Akum 48, p. 330; Rav Yehuda Tzadka in Koveitz Beis Aaron Veyisrael 8:4; Rav Bentzion Aba Shaul in Shut Or Letziyon 2 p. 5-10; Ruach Chachamah Midrakei Horah 2;
Regarding meat salted without Hadachah Rishonah that Michaber rules that one is Machmir unless Hefsed Meruba, this position is cited in: Beis Yosef 69; Shach, Y.D. 69:12; Zivchei Tzedek, Y.D. 69:28–29; Ben Ish Chai, Year 2, Taharos 14; Kaf HaChaim, Y.D. 69:39 and 45
When the Beis Yosef Explicitly Clarifies the Mechaber’s Position: Shach 69:12; Shiyurei Kenesses HaGedolah, O.C. 188, Hagahos Beis Yosef 17; Yad Malachi, Klalei Sha’ar HaPoskim 17; Terumas Kesef 11; Yad David Di Boton, Y.D. 69, Hagahos Beis Yosef 13; Kefi Aharon, Vol. 2, Y.D. 1; Sdei Chemed, Klalei HaPoskim 13:9; She’eris Yosef, Vol. 3, E.H. 1; Pnei Yitzchak, Vol. 1, C.M. 22, and Vol. 2, E.H. 7; Yad Aharon, E.H. 17; Vayomer Moshe, O.C. 5; Simchas Kohen, Vol. 6, final rules 27; Zichrei Kehunah, Ma’areches Nun 6; Te’alumos Lev, Vol. 3, Klalei Maran.