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Bava Basra, 24

1) "ROV" VERSUS "KAROV" IN THE CASE OF A "RUBA D'LEISA KAMAN"

QUESTION: The Gemara quotes the Beraisa of Rebbi Chiya in which Rebbi Chiya states that Dam that is found in the "Prozdor" is considered, mid'Oraisa, to be Dam Nidah which came from the "Mekor," because most Dam is located in the "Mekor" (as opposed to the "Aliyah"). The principle of Rov tells us that the Dam came from the "Mekor."

Is this Rov -- which tells us that the Dam came from the "Mekor" -- a "Ruba d'Leisa Kaman" or a "Ruba d'Isa Kaman?" "Ruba d'Leisa Kaman" refers to a majority in *frequency* -- something usually occurs in this manner. The majority is not present and countable, but rather it is a predictable consequence of natural events. For example, we know that there is a Rov that "most animals are not Tereifos." This Rov is not in front of us, but, nevertheless, there exists a fact in the frequency of the occurrence of Tereifah animals that tells us that most animals are born healthy.

"Ruba d'Isa Kaman" refers to a situation in which the Rov is physically present in front of us. For example, when one piece of Tereifah meat became mixed up with two pieces of Kosher meat, the Rov is present in front of us. This type of Rov is considered a more powerful Rov than a "Ruba d'Leisa Kaman."

If the Rov that tells us that the Dam came from the "Mekor" and is Dam Nidah is a "Ruba d'Leisa Kaman," then we can prove from Rebbi Chiya's statement that Rov overrides Karov even when that Rov is a weaker form of Rov, a "Ruba d'Leisa Kaman."

ANSWER: TOSFOS (DH v'Shama, in the "Hagahah," or, according to an alternative Girsa, in DH Hachi Garsinan) says that this Rov is considered a "Ruba d'Leisa Kaman." Tosfos asserts that had this Rov been a "Ruba d'Isa Kaman," Rava would not have said that "we learn from here (from Rebbi Chiya's statement) that the principle of Rov is mid'Oraisa," because it is obvious that the normal form of Rov, "Ruba d'Isa Kaman," is mid'Oraisa -- the verse states explicitly, "Acharei Rabim l'Hatos" (Shemos 23:2)! From the fact that Rava needs Rebbi Chiya's statement to prove that a Rov is mid'Oraisa, it is clear that he is referring to a "Ruba *d'Leisa* Kaman," which we do not necessarily learn from the verse. (See MAHARSHA.)

According to Tosfos who says that Rebbi Chiya's case is a case of a "Ruba d'Leisa Kaman," it follows that when such a Rov is countered by Karov, we still follow the Rov.

(The Acharonim infer from the RAMBAM, however, that he maintains that in a case of a Rov versus a Karov where the Rov is a "Ruba d'Leisa Kaman," we do *not* follow the Rov. The Acharonim explain that the Rambam does not rule in accordance with the statement of Rebbi Chiya (PLEISI #63, ZICHRON YEHOSEF as cited by the PISCHEI TESHUVAH in Yoreh De'ah 48:14).) Why, though, is the case of Rebbi Chiya considered to be a "Ruba d'Leisa Kaman?" Since the Dam of the "Mekor" is more abundant that the Dam of the "Aliyah," it should be considered a "Ruba *d'Isa* Kaman!" The body is present in front of us, and in the body there is a majority of Dam in the "Mekor" and a minority of Dam in the "Aliyah!" (SHEV SHEMAITSA 4:1, CHIDUSHEI CHASAM SOFER)

1. The SHEV SHEMAITSA answers that had this Rov been based on the fact that there is more Dam in the "Mekor" than in the "Aliyah," then, indeed, this Rov would have been considered to be a "Ruba d'Isa Kaman." However, the Rov here is not based on the abundance of Dam in the "Mekor," for if that were the case, then we would not be able to apply the principle of Rov, because here it is considered a case of "Kavu'a" in which Rov does not apply ("Kol Kavu'a k'Machtzeh Al Machtzeh Dami"). Rather, the Rov here is that it is *more frequent* for Dam to flow from the "Mekor" than from the "Aliyah." This Rov is a "Ruba d'Leisa Kaman" (as per our definition above).

The SHA'AREI YASHAR (4:3, DH Lachen) asks that the Shev Shemaitsa's proof that the Rov in this case is not a "Ruba d'Isa Kaman" is not valid. In the case of the Dam, the concept of "Kavu'a" cannot apply, because "Kavu'a" does not apply in a case where the question concerns an event that happened (in this case, whether or not the Dam separated from the "Mekor"). The Sha'arei Yashar agrees, though, that there is a Rov that the majority of Dam comes from the "Mekor" (which is a "Ruba d'Isa Kaman"), and that there is another Rov -- a "Ruba d'Leisa Kaman" -- that it is *more frequent* for Dam to flow from the "Mekor" than from the "Aliyah."

2. The CHASAM SOFER answers that this Rov is considered a "Ruba d'Leisa Kaman" because we cannot be sure that this woman has any Dam at all in her "Mekor," and thus there certainly is no Rov that tells us that a majority of her Dam is in her "Mekor." Rather, the Rov here is that *women in general* have more Dam in their "Mekor." This is a "Ruba d'Leisa Kaman," because the majority is not present and countable, but rather it is a predictable consequence of natural events.

The KOVETZ SHI'URIM adds that the difference between a "Ruba d'Isa Kaman" and a "Ruba d'Leisa Kaman" is not as the Shev Shemaitsa explains. The Shev Shemaitsa understands the difference to be whether the Rov is countable in front of us or not. However, there is another difference between a "Ruba d'Isa Kaman" and a "Ruba d'Leisa Kaman." In the case of a "Ruba d'Isa Kaman," our knowledge of what the majority is comes from knowing each individual detail by itself. We look at all of the individual details and are then able to determine what the majority is. Thus, our knowledge of the general situation of the Rov comes from our knowledge of the details. In contrast, in the case of a "Ruba d'Leisa Kaman," our knowledge of the general situation tells us what the situation is in each specific case. For example, we know that there is a Rov that most animals are Kesheros. That is knowledge of the general situation, which we then apply to a specific situation -- when there is a single animal in front of us, we can assume that it is part of the Rov and is Kosher. According to this, the Rov in Rebbi Chiya's case is a "Ruba d'Leisa Kaman," since our knowledge of the Rov is not based on an actual count of the amount of Dam in the "Mekor" compared with an actual count of the amount of Dam in the "Aliyah." Rather, we have general knowledge that, normally, a majority of Dam is in the "Mekor." (I. Alsheich)

24b

QUESTION: The Mishnah states that one may not plant a tree within twenty-five Amos of the city. If one did plant a tree in that area, he must cut down his tree. If the city was there first, then he does not get reimbursed for his tree, but if he planted his tree first and then the city was settled there, he does get reimbursed for his tree. The Mishnah says that when there is a doubt whether the city was there first or whether the tree was there first, the owner of the tree must cut down his tree and, out of doubt, he does not receive reimbursement for his tree.

The Gemara asks why this case differs from a case in which a person's tree is within twenty-five Amos of his neighbor's Bor, and there is a doubt whether the tree was there first or whether the Bor was there first. In such a case, the Mishnah (25b) says that the owner of the tree is *not* required to cut down his tree.

The Gemara answers that in the case of the tree and the city, the owner of the tree must cut down his tree whether or not it was there first; the only question is whether he receives reimbursement for his tree (and since it is a Safek, he cannot exact compensation without proof that his tree was there first). In the case of the tree and the Bor, the owner does not have to cut down his tree if his tree was there first, and, therefore, out of doubt we do not require him to cut down his tree.

Why does the Gemara here not answer like it answered an earlier question? Earlier, the Gemara explained that there is a difference between an individually-owned Bor and a publicly-owned city; in the case of damage being caused to a publicly-owned city, we are more stringent and require the owner of the tree to cut it down. Why does the Gemara not give this answer here? (GILYON TOSFOS, cited by TERUMAS HA'DESHEN #341)

ANSWERS:

(a) The GILYON TOSFOS writes that the Gemara indeed could have given this answer, but it instead gives a better answer.

(b) The MAHARAM M'ROTENBURG writes that the earlier answer -- that there is a difference between an individually-owned Bor and a publicly-owned city -- cannot be used to answer the Gemara's question here. The Gemara here is asking that in the case of a tree planted near a Bor, when there is a doubt which came first, the owner of the tree is not required to cut down his tree out of doubt, because "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" -- the owner of the Bor must bring proof that his Bor was there first. Why, then, is the Halachah different in the case of a tree planted near a city, when there is a doubt which came first? In this case, too, the owner of the tree should be able to say to the residents of the city that he will cut down his tree (without reimbursement) only when they bring proof that the city was there first. Until they bring proof, he should not be obligated to cut down his tree. That is the Gemara's question.

Consequently, the answer that there is a difference between an individually-owned Bor and a publicly-owned city does not answer the Gemara's question. (I. Alsheich)