Shiur #17: The Mechanics of Achieving a Pesak
Yeshivat Har Etzion
Shiur #17: The Mechanics of Achieving a Pesak
By Rav Moshe Taragin
A famous principle asserted by
Several gemarot establish the ineffectiveness of a rov in extracting money from a muchzak, one who has money or property already in his possession. For example, the Gemara (Bava Batra 92a-b) states that if one purchases an ox, which is unable to work, the purchaser cannot claim that, since most people buy oxen for work, the transaction is invalid, and the purchase money should be returned; the seller can offer the counterclaim that, since a minority do buy farm animals solely for food, the fact that the ox is useless for work is irrelevant. Since the seller is the muchzak, he does not have to pay; we do not employ the principle of rov to determine that this sale must have proceeded along typical assumptions. As the Gemara concludes, in the name of Shemu'el, it is only concerning ritual law that we follow the majority, not concerning monetary matters; thus, the court would not act on the basis of a rov to extract money from the current possessor. Bava Kama 27b paraphrases Shemu'el's position in the following way: "Ein holekhin be-mamon achar ha-rov," "We do not follow the majority when it comes to money." Based on this, Tosafot Bava Kama 27b (s.v. Ka mashma lan) question the viability of a split judicial panel in issuing a ruling finding for the plaintiff. After all, we are deciding the disputed event based upon a majority of judicial opinions; does this not conflict with the above-stated stipulation that a rov is immaterial in financial issues?
One approach may be to distinguish between various kinds of rov. Not all majorities are equivalent; certainly, typical consumer patterns may be different from a majority of judges. Firstly, the relative strengths of different types of rov may be different; perhaps a majority of judges is just a stronger and more compelling ratio than generalized consumer trends. Alternatively, we may discriminate between Shemu'el's case and a judicial majority on a qualitative level. A majority of judges may be a "rubba de-ita kamman," "a majority which is before us;" we can observe a specific population (judges), the majority of whom have offered an opinion. We are faced with a majority of opinions as to what occurred versus a minority report. This may be completely different from a "rubba de-leita kamman," "a majority which is not "before us," which is merely a statistic drawn from general human nature. The claim of the purchaser that most people buy oxen for industry is not based on any specific population of purchasers which has been polled; instead, it is an abstract statement of human tendency and may simply be less effective in deciding monetary matters.
This position, though sound, seems to clash with Shemu'el's sweeping rejection of rov for monetary issues. By proclaiming that "Ein holekhin be-mamon achar ha-rov," the Gemara seems to indicate that Shemu'el completely dismisses any form of a majority from determining monetary accountability.
Tosafot in Bava Kama offer an alternative, a theory which is amplified by
Rav Chayim: after a beit din reaches
a majority opinion, all three judges are considered as having rendered THAT
opinion. By inserting a clause
about rov when discussing majority opinions of judges (Shemot 23:2:
"Acharei rabbim le-hatot" "Incline after the many"), the Torah
establishes a new paradigm: the minority view is eliminated and the opinion of
the dissenting judges is legally transformed and merged into one unanimous
version, in accordance with the majority view. After they reach a pesak, all
three judges are considered as having issued ONE opinion. Just as a drop of non-kosher food
becomes kosher once it falls into an overwhelming ratio of kosher food
("batel be-ta'arovet"), similarly the dissenting opinion is converted
into the majority by reaching a pesak. As
Perhaps this question as to whether a majority verdict is based on
hachra'a (allowing the majority opinion to determine the outcome) or
bittul (transforming the legal opinion of the dissenting judges) is
already under debate in a fascinating conversation between Rabbi Yochanan and
Reish Lakish. Reish Lakish asserts
that the document containing the court verdict lists the various opinions of the
different judges; tallying up the yeas and nays will provide the ultimate
verdict. By contrast, Rabbi
Though the machaloket between Reish Lakish and Rabbi Yochanan may relate to Rav Chayim's issue, this is by no means definite. In discussing their machaloket, the Gemara speaks in terms which may indicate that their positions are based on moral rather than legal concerns. Reish Lakish's insistence upon including dissenting opinions in the verdict is based upon the principle of avoiding the appearance of fraudulence (michzei ke-shikra). Rabbi Yochanan's interest in unanimous verdicts is rationalized as a manner to avoid evil speech, lashon ha-ra (by exposing which judges ruled favorably or unfavorably). The Gemara's discussion of this machaloket may render it irrelevant to Rav Chayim's structural analysis of the mechanics of the beit din and its pesak.