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Chulin, 11

1) THE SOURCE FOR "ROV"

QUESTION: After deriving the source for the concept of Chazakah from the verses discussing the Bayis ha'Menuga (Vayikra 14:38), the Gemara proceeds to inquire about the source in the Torah for the concept of Rov.

TOSFOS (DH Mena Ha Milsa) is bothered by the Gemara's question. We know that there is a rule that in a case in which a Rov counters a Chazakah, the Rov prevails (Yevamos 119b, Kidushin 80a, Nidah 18b). If it is obvious to the Gemara that a Rov is more powerful than a Chazakah, then why do we need a source for the concept of Rov once we have a source for Chazakah?

ANSWERS:

(a) TOSFOS answers that the Gemara is asking for a source for Rov according to the opinion of Rav Acha bar Yakov, who (on 10b) maintains that we cannot bring proof from the verses regarding a Bayis ha'Menuga for the concept of Chazakah. Since, according to Rav Acha, we have no verse to teach us that a Chazakah is an effective method of resolving a doubt, we need to search for a source for Rov.

The MAHARSHA adds that according to Rav Acha bar Yakov, the source for the concept of Chazakah must be a Halachah l'Moshe mi'Sinai.

(b) Alternatively, Tosfos answers in the name of RABEINU CHAIM that his question is based on a false premise. Rov prevails over a Chazakah not because of a logical reason, but because the Torah teaches this when it teaches the source for Rov. The source for Rov is the Halachah that we may use a Parah Adumah without concern that it might be a Tereifah, since most animals are not Tereifos. This also teaches the power of a Rov. The Parah Adumah is used to be Metaher people who have a Chazakah of being Tamei. This effect of the Parah Adumah is based on the Rov that permits us to use the animal without concern that it is a Tereifah. We see, therefore, that a Rov is powerful enough to override a Chazakah.

The SHITAH MEKUBETZES has difficulty with this proof. If there were both a Chazakah and a Rov in the actual Parah Adumah itself, then we would understand Rabeinu Chaim's answer. However, in the case of the Parah Adumah, the Rov is based in the animal (that it is not a Tereifah), and the Chazakah is in the person (that he is Tamei). Once the Parah Adumah is slaughtered and declared Kosher, that essentially means that the ashes of the Parah Adumah have the ability to remove a Tamei person from his Chezkas Tum'ah. However, it does not tell us that when a Rov and a Chazakah conflict in determining one's status, we should follow the Rov.

(c) RABEINU PERETZ and the RASHBA answer that we know that a Rov is stronger than a Chazakah only once we have a source for Rov in the Torah, just as have a source for Chazakah in the Torah. If we would have no source in the verse for Rov, then we would rule that a Chazakah prevails over a Rov.

The Shitah Mekubetzes has difficulty with this answer as well. How do we determine that a Rov is stronger than a Chazakah? We determine this based on logic. What difference does it make if there is a source for Rov in the verse, if we know that logically it is stronger than Chazakah?

The Shitah Mekubetzes explains that it is possible that this would be similar to the rule of "Dayo la'Ba Min ha'Din Liheyos ka'Nidon" -- it is sufficient to give the Halachah learned from a Kal va'Chomer the exact status of the Halachah from which it was learned, and not a more stringent Halachah, even though there might be reason to say that it should have more stringent Halachos. Similarly, if our only source for Rov was from the fact that we know that Chazakah is effective, then we could not say that it is stronger than Chazakah, even though we have logical grounds to say so. In a case in which a Rov counters a Chazakah, we would have to follow the explicit concept of Chazakah and not the concept of Rov. This is why we need an explicit source in the verse for the concept of Rov. (Y. Montrose)

QUESTION: Rabah bar Rav Shila says that we learn the principle of Rov from the laws of the Parah Adumah. The Torah requires that the Parah Adumah be both slaughtered and burned while it is a Kosher animal and not a Tereifah, and yet the Torah permits us to use a Parah Adumah without concern that it might be a Tereifah, since most animals are not Tereifos. From here we learn that we may follow a Rov in a case of a doubt.

Tosfos (DH Asya) asks that perhaps the reason we are lenient in the case of a Parah Adumah and we are not concerned that the animal is a Tereifah is not because of Rov, but because there is a Chazakah that the animal is not a Tereifah, since the animal has already lived for twelve months. (A Tereifah is defined as an animal that cannot live for twelve months; see Chulin 42a.) How, then, can we learn the source for Rov from the laws of Parah Adumah?

ANSWER: TOSFOS explains that an object has a Chazakah only if there was one moment at which the status of the object was certain. If, at some point in time, we knew that an animal was not a Tereifah, then the fact that it lived for twelve months provides us with a Chazakah that now, too, it is not a Tereifah. However, we cannot retroactively (after twelve months) create a Chazakah by saying that since the animal lived for twelve months, twelve months ago it was certainly not a Tereifah.

Tosfos derives a practical Halachah based on his answer. In a case in which cheese was made from the milk of an animal that was later slaughtered and found to be a Tereifah, there is no pre-existing "Chezkas Heter" that tells us that the animal was not a Tereifah at the time it was milked, and, consequently, the cheese is prohibited.

The RASHBA quotes RABEINU YONAH and other Rishonim who argue with this ruling of Tosfos. It is true that at this point in the Gemara, when the Gemara is attempting to prove the principle of Rov from the laws of Parah Adumah, the Gemara assumes that the animal has no Chazakah that it is not a Tereifah ("Chezkas she'Einah Tereifah"). According to the conclusion of the Gemara, however, after the Gemara has proven that Rov works, there is a Rov that most animals are not Tereifos, and thus we may follow that Rov and assume that this animal also was not a Tereifah at the time of the doubt (that is, at the time that it was milked). Rather, we assume that it became a Tereifah at the latest possible moment, right before it was slaughtered. (The Rishonim all this a "Chazakah ha'Ba'ah Machmas Rov.") Therefore, the cheese is Kosher, since we assume that the animal was not a Tereifah at the time it was milked. (Z. Wainstein)

QUESTION: The Gemara gives several possible sources in the Torah for the principle of Rov. A number of the sources are from laws in the Torah that permit us to eat or use an animal without being concerned that it is a Tereifah, relying on the fact that most animals (the Rov) are not Tereifos. One may eat an animal after Shechitah without being concerned that perhaps at the place where the knife cut there was a pre-existing hole rendering the animal a Tereifah. Similarly, we may bring a Korban Pesach, Eglah Arufah, Parah Adumah, and Se'ir ha'Mishtale'ach without being concerned that the animal is a Tereifah.

This Gemara seems to disprove the opinion of the RAMBAM (Hilchos Avos ha'Tum'ah 16:1, Hilchos Tum'as Mes 9:12). The Rambam maintains that the rule of "Safek d'Oraisa l'Chumra" is mid'Rabanan. The Torah itself permits an item that is not certainly forbidden, but about which there is a doubt, but the Chachamim enacted a decree that whenever there is a doubt regarding an Isur d'Oraisa, it is forbidden to eat the item. (See also Insights to Chulin 9:6.)

According to the Rambam, what is the Gemara's proof that there is a source for Rov in the Torah? Perhaps we indeed have a doubt whether or not the animal is a Tereifah, but since it is only a doubt, the Torah still permits us to eat the animal after Shechitah, because, according to the Torah, a Safek Tereifah may be eaten! It was only the Chachamim who enacted the Chumra not to eat a Safek Isur! According to the Rambam, how does the Gemara prove the concept of Rov from these laws of the Torah? (RASHBA, Kidushin 73a; see also Insights to Kidushin 73:1.)

ANSWER: RAV SHIMON SHKOP (in SHA'AREI YOSHER 1:7) explains that even according to the Rambam, a Safek does not change an Isur into a Heter. If a person eats meat because he does not know whether or not it is Kosher, and it turns out that it was not Kosher, he has violated the prohibition against eating non-Kosher meat. Nevertheless, the Torah only prohibits us from performing an act when that act is certainly Asur; when there is a doubt, the Torah allows us to perform the act, but "at our own risk."

This explains our Gemara according to the Rambam. The fact that the Torah commands us to bring a Korban Pesach and not be concerned that it is a Tereifah *is* a valid source for the principle of Rov. Even if, as the Rambam rules, a Safek d'Oraisa is permitted mid'Oraisa, the Torah would never have *commanded* us to enter into the risk of eating a Tereifah. (Z. Wainstein)

QUESTION: Rav Acha bar Yakov says that we learn the principle of Rov from the laws of the Se'ir ha'Mishtale'ach. The Torah (Vayikra 16:7) requires that the two Se'irim that are brought on Yom Kipur be identical. From this requirement, we learn that the Se'ir ha'Mishtale'ach cannot be a Tereifah, just as the Se'ir la'Shem, that is offered as a Korban, cannot be a Tereifah. While we can examine the Se'ir la'Shem after it is slaughtered to ensure that it is not a Tereifah, how can we know that the Se'ir ha'Mishtale'ach is not a Tereifah? It must be that we rely on the Rov that most animals are not Tereifos.

However, the Gemara continues, "And if you ask what difference does it make if the Se'ir ha'Mishtale'ach is a Tereifah," and it answers that it does make a difference, because the Torah teaches that the Goral (lot) determines which is the Se'ir ha'Mishtale'ach only when *both* animals are fit to be the Se'ir la'Shem.

Why does the Gemara need to give a different source for the requirement that the Se'ir ha'Mishtale'ach not be a Tereifah? Why does the Gemara's previous reason, that the two goats must be identical, not suffice? (MAHARSHA, TIFERES YAKOV)

ANSWERS:

(a) The MAHARSHA answers that the Gemara's intention is to give an alternative source for the requirement that the Se'ir ha'Mishtale'ach not be a Tereifah, in case the verse (Vayikra 16:7) is needed to teach other Halachos (see Yoma 62a).

(b) The Gemara in Yoma (72a) teaches that the requirement that the two goats be identical is only l'Chatchilah. If the animals are not identical, then, b'Di'eved, they may be used. Accordingly, the intention of the Gemara here may be to ask, "What difference does it make if the Se'ir ha'Mishtale'ach is a Tereifah? Perhaps the requirement that it not be a Tereifah is only l'Chatchilah, but, b'Di'eved, a Se'ir ha'Mishtale'ach that is a Tereifah is valid, and we are not relying on a Rov!" (M. Kornfeld)

11b

QUESTION: Rav Mari says that we learn the principle of Rov from the fact that the Torah says that a person who hits his father is punished with death (Shemos 21:15). Why do we not suspect that the man he hit is not really his father, and therefore he is not deserving of death? It must be that we rely on the Rov of "Rov Be'ilos Achar ha'Ba'al."

The Gemara in Kidushin (73a) discusses the Torah's prohibition against a Mamzer joining the "Kehal Hashem" -- "congregation of Hashem" (Devarim 23:3). The Gemara says that the Torah prohibits him from joining a "Kehal Vadai" -- a Mamzer may not marry anyone whose pure lineage is certain, but a Mamzer may marry a person whose pure lineage is in doubt, such as a Shetuki or Asufi. According to our Gemara's understanding that a person's paternal lineage is known only through a Rov, it is apparent that the Gemara's statement in Kidushin concerning a "Kehal Vadai" can mean only a congregation of people whose lineage is known to be pure *only based on a Rov*.

Based on the Gemara here and in Kidushin, the SHEV SHEMAITSA (2:15) questions the words of the SHITAH MEKUBETZES in Bava Metzia (6b). The Gemara in Bava Metzia (6b) discusses a case in which an animal that was already counted as the tenth animal for Ma'aser Behemah jumped back into the pen of uncounted animals and becomes lost among the other animals. The Halachah is that all of the animals become exempt from Ma'aser Behemah, because the Torah requires that Ma'aser Behemah be "Ma'aser Vadai" -- the tenth animal must definitely be Ma'aser for the other animals, and not Ma'aser out of doubt.

The Shitah Mekubetzes asks why the owner is not required to keep counting the animals and separating Ma'aser from them. We should rely on the Rov that most animals in the pen did not leave the pen and should still be obligated in Ma'aser Behemah. The Shitah Mekubetzes answers that whenever the Halachah *requires* that something to be definite, we do not rely on Rov. This is because a Rov, he explains, is not a logical proof to determine the truth and facts about a situation ("Birur"). Rather, a Rov is the way we are supposed to conduct ourselves in a case of doubt ("Hanhagah").

According to the Shitah Mekubetzes, how can there ever be a "Kehal Vadai," as the Gemara in Kidushin mentions? The Torah requires that there be a certainty about the person's lineage (in order to prohibit a Mamzer from marrying that person). If we only know that a person's lineage is pure because of a Rov ("Rov Be'ilos Achar ha'Ba'al"), there should be no such thing as a "Kehal Vadai"!

ANSWERS:

(a) The SHEV SHEMAITSA answers that the principle proposed by the Shitah Mekubetzes applies only to one type of a Rov -- a "Ruba d'Isa Kaman." This refers to a situation in which the Rov is physically present in front of us, as the Gemara earlier (11a) mentions. When there are two possibilities in front of us (for example, the animal being counted for Ma'aser might be from those that were not yet counted, and it might be from those that were already counted), we have no reason to assume that one possibility occurred more than the other possibility (for example, that the animal came from one group and not the other group). Both possibilities are equally as likely to have occurred. In such a case, a Rov tells us only how to conduct ourselves; it does not determine the facts. Therefore, where the Torah requires a certainty, we cannot follow a Rov.

In contrast, the principle of the Shitah Mekubetzes does not apply to a "Ruba d'Leisa Kaman." This 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, such as the 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. The Shitah Mekubetzes agrees that this type of Rov does clarify for us the facts; the statistical likelihood tells us that this is indeed what happened. Consequently, the Rov that "Rov Be'ilos Achar ha'Ba'al," which is a "Ruba d'Leisa Kaman," is able to determine that we have a "Kehal Vadai," as we assume that all fathers are definitely the real fathers of their children.

The KEHILOS YAKOV (#7) says that he was never able to understand the logic behind the Shev Shemaitsa's answer. The reality of a "Ruba d'Isa Kaman" is the same as the statistical determination of a "Ruba d'Leisa Kaman." Both types of Rov have the same chance of clarifying the reality in the situation of doubt! What difference is there between a situation which has physical representation of the statistics (Isa Kaman) and one that has statistical representation alone (Lisa Kaman)?

RAV ELIMELECH KORNFELD shlit'a suggests that the Shev Shemaitsa means that there is an intrinsic difference between the two types of Rov. In the case of the Rov in Bava Metzia (Ruba d'Isa Kaman), we know *for a fact* that there is an animal that has jumped back into the pen and was already counted. The fact that most of the animals in the pen were not yet counted does not remove the doubt that each animal might be the one that jumped back into the pen. However, in the case in Kidushin of determining a "Kehal Vadai" (which depends on a Ruba d'Leisa Kaman), we have no evidence that there is even one person in the entire nation who is not really his father's son. Even if we did, we have no reason to assume that with regard to each particular person there is any doubt that the father is not the real parent of his son. In a case in which there is no doubt in front of us, the Shitah Mekubetzes would agree that a Rov creates a situation of "Kehal Vadai."

(b) REBBI AKIVA EIGER (Teshuvos, 2:108) answers that the Shitah Mekubetzes agrees that when a Rov has already been used to determine other Halachic matters that do not need a definite status (for example, in the case of the Rov that tells us that a father is the real parent of his son, the Rov also tells us that the father is obligated to perform a Bris Milah for his son, and that the son is obligated to honor his father, etc.), the Rov becomes a certainty. He proves this from the case of Ma'aser Behemah itself, as follows. According to the Shitah Mekubetzes, how can we ever perform the Mitzvah of Ma'aser Behemah when it is possible that there is an animal among those counted which is a Tereifah? The answer is that there is a Rov that most animals are not Tereifos. The fact that we rely on this Rov, despite the fact that Ma'aser Behemah needs to be Ma'aser Vadai, shows that even the Shitah Mekubetzes himself agrees that a Rov which establishes itself once turns into a Vadai.

A similar explanation is given by the HAFLA'AH in Kesuvos (15a). We know that we do not apply Rov in cases of monetary judgements ("Ein Holchin b'Mamon Achar ha'Rov"; see Bava Kama 27b). However, we find many monetary cases in which it seems that we do follow a Rov. One example is the case of Ones u'Mefateh (rape and seduction), where the guilty man must pay a fine to the father of the girl involved. Since we know that the girl's father is her real father only because of a Rov, why can the criminal not invoke the principle that we do not apply Rov in monetary judgements and say that he does not owe money to the person claiming to be the girl's father? The Hafla'ah says that the reason is apparently because once a Rov is used, it is considered factual. However, the Hafla'ah adds that it appears that the Rishonim do not agree with this approach. (See Hafla'ah at length. See also Kehilos Yakov 7:3 for an additional answer.) (Y. Montrose)