MISHPATIM - Follow the rov

In this week’s parsha we learn of some of the ways in which Beis Din operates. We find that the p'sak of the Beis Din is determined based on the opinion of the majority of judges. This is learned from the passuk (23:3) "אחרי רבים להטות”. The Gemara in Chullin (11a) derives from this passuk, that we are to determine almost every safek (doubt) by applying the same rule; “Follow the majority”. For example if one finds a piece of meat on the floor, provided that the meat could not have come from anywhere but one of the surrounding ten stores, nine of which sell only kosher and one that sells non kosher, the rule of “Following the majority” dictates that the meat came from one of the kosher stores, and therefore may be eaten.

There are exceptions in which we may not apply the rule of “Following the majority”. R' Yonasan Eibishitz was once pushed into responding to a neighboring priest, who questioned why we as Jews don't follow the majority of the world in their religious beliefs and practices. He answered quite classically, "We follow the majority only when there is doubt".

Another exception is in a doubt pertaining to monetary loss. For example in a certain city where the majority of people understand that there are 13 bagels to a dozen, and a minority of people consider a dozen bagels to be 12. It happened that there was a misunderstanding between a merchant and a customer as to how many were to be sold. The merchant claimed that although he said he would sell a dozen, he meant to sell 12, while the buyer on the other hand, claimed that he was expecting to find 13 in his bag. In which case the rule of “Following the majority” would say that due to the fact that most people refer to a dozen bagels as 13, we should assume that the merchant’s intention as well, was indeed to sell 13. However being that this is a money related issue we cannot apply the rule of “Follow the majority”. Therefore the halacha is the merchant who claims to be from the minority who sell 12 as a dozen, may keep the money given to him.

Tosafos ( ב''ק כז: ד''ה קמ''ל) asks the following fundamental question. As stated earlier, the source from the Torah of the rule of ‘Following the majority” is derived from a law of Beis din, to rule in accordance with the majority of judges. That law of Beis Din applies to all types of cases including monetary related cases. Why is it then that with regard to monetary related scenarios (such as the dozen bagels) we do not apply the rule of “Follow the majority”, while with regard to the majority of Beis Din in a monetary case we do apply the rule of “Follow the majority”? Tosafos answers that Beis Din is different because in the presence of a majority of Beis Din we consider the opposing minority of beis din as if they did not exist, therefore we can apply the rule of “Follow the majority” even on a monetary case. Whereas in the majority of circumstances, the presence of the opposing minority is not overlooked. Therefore in a monetary safek we may not apply the rule of “Follow the majority”.

The answer that Tosafos provides is ambiguous, and the correct interpretation has been a matter of dispute among the achronim for hundreds of years. What is different about the way Beis Din operates? Why do we consider the minority of judges to be non existent, but the minority in circumstances to exist?

Reb Yakov Moshe Shurkin zt”l offers an explanation to aid in understanding the answer of Tosafos. He explains, that in every scenario in which there is a doubt or dispute, and there is a majority that can be used to clarify the unknown, the minority exists as well, and is considerable in the safek. For example, in the case we used above applying the rule of “Following the majority” to say that the merchant meant to sell 13 bagels does not deny the fact that there are some people as well who do refer to 12 bagels as a dozen. However, with regard to Beis Din this is not the case. Since the p'sak of Beis Din is the expression of the true halacha,  one of the opinions must be 'dead wrong' on a halachic level, and completely non applicable in defining the halacha. If we are to determine the p'sak of Beis Din based on the majority of judges that means that the judges in the minority are wrong. Therefore in the case of Beis Din, in applying the rule of “Follow the majority” the minority is inconsiderable, as if it did not exist at all. Being that no minority is left remaining, one may apply the rule of “Follow the majority” even though it pertains to money. That is what Tosafos meant by saying that Beis Din is different, since only in Beis Din do we say that the majority and minority cannot coexist at all.

{R.F.}
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