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Zevachim, 73

1) "KOL KAVU'A, K'MECHETZEH AL MECHETZEH DAMI"

QUESTION: The Gemara discusses a number of important principles with regard to mixtures of permitted and forbidden items. Two of these principles are "Kol d'Parish, me'Ruba Parish," and "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami."

The rule of "Kol d'Parish, me'Ruba Parish" teaches that when there is a doubt as to the source of a certain item (i.e. from where it comes or to which group it belongs), we may resolve the doubt by assuming that the item came from the majority group. This rule is slightly different than the general rule of "Bitul b'Rov." Although both rules are derived from the verse, "Acharei Rabim l'Hatos" (Shemos 23:2), the rule of "Bitul b'Rov" teaches that the Isur becomes Batel in a majority of Heter, such that the Isur is entirely annulled (while this is the Halachah, this does not seem to be the view of the Rashba, as discussed in the following Insight). "Kol d'Parish," in contrast, teaches that the item in doubt came from the group of permitted items, and the prohibited item is still in its original place. For example, if a piece of meat is found lying on the street (or in the hands of a Nochri in the street), and most of the meat in the town is kosher, it can be safely assumed that the meat in doubt is Kosher, while the prohibited meat is still in its place of origin (the non-Kosher shop).

(That there is a difference between "Bitul b'Rov" and "Kol d'Parish, me'Ruba Parish" is evident from the fact that the Gemara earlier (71a) asks that the prohibited animal should be Batel b'Rov when it becomes mixed with the permitted animals. The Gemara answers that it is not Batel, either because objects sold by count are not Batel (Reish Lakish), or because living animals are not Batel (Rav Ashi). However, the Gemara later (73b; see following Insight) asks that we should make the animals in the herd spread out, and then take one at a time, permitting each one based on "Kol d'Parish, me'Ruba Parish." If this rule is the same as that of Bitul b'Rov, then what is the Gemara's question? The Gemara earlier teaches that Bitul b'Rov does not apply to a living animal! The answer is that "Kol d'Parish" differs from Bitul b'Rov in that we do not need the item of Isur to become Batel, but rather we say that the item in question is an item of Heter, and that the item of Isur was left behind in its original place.)

The rule of "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami" applies when the status of the item is in doubt while it is still "in its place" ("Kavu'a;" that is, it was not separated from the other items of its kind). In such a case, we do not follow the majority. Instead, we remain in doubt as to the status of the item. For example, if a person buys meat and then forgets whether he bought it at a Kosher or non-Kosher store, we cannot assume that the meat is Kosher just because most of the stores in the town are Kosher, since we are questioning its status while it is still in its proper place ( the store) before it was separated from the other pieces of meat in the store. Accordingly, if a person eats a piece of meat in such a situation, he is considered to have eaten a Safek Isur and can be obligated to bring a Korban Asham Taluy.

The rule of "Kol Kavu'a" is a Gezeiras ha'Kasuv, derived from a case in which a Jew throws a rock into a crowd of people comprised of nine Jews and one Nochri, intending to kill one of them. The Torah teaches that in such a case, the perpetrator is considered as though he did not know whom he was killing (and is exempt from punishment), even though most of the people in the crowd were Jews. This is because the item in doubt (i.e. whom he intended to kill) is in its place of origin at the time of the doubt.

RAV ELCHANAN WASSERMAN (in KOVETZ BI'URIM on SHEV SHEMAITSA #41) asks that in the case of a piece of meat that separated from nine other pieces of meat, how can we assume that this piece came from the majority? The other nine pieces are left in their original location, and thus we should say that they are all Halachically in question, because of "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami." It should be as if there is no Rov at all! Consequently, the piece of meat that became separated from the others should be viewed as having come from nine *questionable* pieces, and not from a Rov!

ANSWER: RAV ELCHANAN WASSERMAN quotes RAV MOSHE SOLOVEICHIK who answers that the principle of "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami" does not mean that there is no Halachic Rov in the original location of the items. Rather, there is a Rov, but we do not follow the Rov to resolve the doubt; the Torah does not apply its rule of "Acharei Rabim l'Hatos" in such a case. Thus, it is as if there are an equal number of permitted items as prohibited items ("k'Mechetzeh Al Mechetzeh"). In contrast, in a case in which the doubt began later and not in the item's place of origin, we *may* rely on the Rov; in such a case, the verse of "Acherei Rabim l'Hatos" tells us that the item in question fell from the Rov and is thus permitted. (M. Dicker)

73b

QUESTION: The Mishnah (70b-71a) says that when an animal that may not be offered as a Korban becomes mixed with other animals that are designated as Korbanos, the prohibited animal does not become Batel in the majority (Rov) of permitted animals. The Gemara (73a) says that we cannot simply take one animal at a time from the herd and permit it based on the principle of "Kol d'Parish, me'Ruba Parish," because taking one animal from the herd constitutes taking it from its place of origin where the doubt arose ("Kavu'a"), and thus the principle of "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami" applies and prohibits it. The Gemara here (73b) suggests that we should force the animals to spread apart from each other, thus leaving their place of origin and enabling us to take one animal at a time and permit it to be offered as a Korban based on "Kol d'Parish, me'Ruba Parish."

Rava first answers that we do not permit the animals in this manner, because there is a concern that a number of Kohanim will take a majority of the animals that were in the herd, slaughter them, and then offer their blood and Eimurim at the same time. Consequently, a Rov of the animals that were in doubt will be offered at the same time, and we must assume that the prohibited is in the Rov that is being offered now.

The Gemara rejects this answer, asking how can it be that once each animal became permitted (since they left their place of "Kavu'a" and each one was taken separately, based on the allowance that it was "me'Ruba Parish"), its blood in the contained should become prohibited? Once each animal became permitted because of Rov, we should be permitted to offer all of them together!

What is the Gemara's question on Rava's answer? The fact that each animal is considered to have come from the Rov and is permitted does not eradicate the Isur of the animal that was mixed in the herd. That animal is still Asur and still exists somewhere. The principle of "me'Ruba Parish" merely permits us to take one animal at a time, apply the rule of Rov to it, and assume that it is not the prohibited animal. We should not be permitted to offer all (or a Rov) of the animals simultaneously, since the animal that is prohibited is still present!

ANSWERS:

(a) The SHITAH MEKUBETZES (#3) proves from here that if an item of Isur becomes Batel in a Rov of permitted items, one indeed is permitted to eat *all* of the items at once. This is also the opinion of the ROSH in Chulin (7:37), which the SHULCHAN ARUCH (YD 109:1) follows. The Rosh explains that the reasoning behind this is that the Isur indeed turns into Heter due to the Rov, and thus there is no reason to attempt to evade the Isur.

(b) The RASHBA, on the other hand, maintains that one may not eat the entire mixture at one time, because we view the mixture as still containing the Isur, and by eating all of it one is definitely eating an item of Isur. One may eat some of the mixture because we may assume that the part that is being eaten right now is not the Isur. How, then, does the Rashba understand our Gemara, which implies that the Isur is completely annulled?

The YOSEF DA'AS offers a simple answer. The Gemara here only permits offering *most* (Rov) of the animals at the same time, but not *all* of them. (It is permitted to offer most of the animals at one time because, first, each animal already was presumed to be permitted by itself because of "Kol d'Parish, me'Ruba Parish," and, second, we may assume that the prohibited animal is not among the ones being offered now. We may be lenient in this case particularly in light of the way the Acharonim explain the Rashba. The Rashba agrees that mid'Oraisa the Isur is entirely Batel and the entire mixture may be eaten at once; the Rabanan, though, prohibited, since it *appears* as though one is eating Isur. In this case, when only a Rov, and not all, of the animals are being offered, this Isur d'Rabanan does not apply.) (See also CHEMDAS DANIEL.) (M. Dicker)