Wednesday, January 19, 2011

Zevachim 71a - Following Rov against reality

The gilyon maharsha references the teshuvos yad eliyahu (eliyahu bar shmuel from lublin - 18th century) who discusses a very interesting question that is pertinent to splitting recovered losses when only part of the losses are recovered. For example in a situation like madoff where there were billions lost and millions recovered, how are those millions split. Is it split proportionately or is it split evenly? The situation that the Yad Eliyahu deals with is animal hides of Jews that were stolen and some of them were retrieved. Those who owned more claimed that they deserved a proportionate return, whereas those who owned less felt that it should be split evenly which could mean that the 10% owner will be fully compensated and the 50% owner would suffer an 80% loss on his investment.
The Mishna says that if a passul chatas gets mixed with kasher ones, they are all left to die. The gemara explains that they are presently kavua and we can't allow bitul b'rov, but discusses why there isn't a possibility of moving them so that we can allow bitul to take place. Tosafos at the end of d.h. afilu asks on the gemara in sanhedrin 79b that when we have someone who deserves a more lenient form of capital punishment who gets mixed up with those who deserve a stricter form, they are all given the more lenient form. Tosafos asks, why don't we say that the person who deserves the more lenient form is batul b'rov and everyone should get the stricter form? Tosafos answers a few different answers:
1. We don't follow rov to be machmir since we will anyway fulfill the mitzvah of carrying out capital punishment on everyone by giving them the lighter punishement.
2. We don't follow rov to do something that we know is not right. If we were to give everyone the stricter punishment, we would for sure be giving someone a stricter punishment that he deserves - דמשום רובא לא נעביד דבר שהוא שקר ודאי, דודאי יש אחד שאינו בר מיתה כלל לפי שלא נגמר דינו
3. At the moment they are considered kavuah and we can't force them to move so that we can follow rov to be machmir on them.
The Yad Eliyahu explains based on Tosafos second answer that we can't simply split proportionately. The rationale to split proportionately would be that we would follow a rov that says that these extra hides belong to Reuven since he owned more of the hides than Shimon. The only way we can follow rov is if the rov could tell us that ALL the hides belong to Reuven. However if Reuven lost 50 hides and 60 of them were retrieved, we couldn't use rov to say that they all belong to Reuven because that is simply not true. Therefore, we cant follow rov. Rather, on each and every hide we say that all the partners own equal shares in it, until the smaller partners are fully compensated and out of the picture so that the remaining hides would be split by the remaining partners. According to this approach, the smaller partners would suffer much less of a loss than the larger partners. But in truth, the Yad Eliyahu is not talking about partners. When there are partners then Reuven would own 60% of every hide retrieved whereas Shimon would only own 10% and they would split all the hides proportionately. The Yad Eliyahu is talking about a case when they aren't partners just that they all had hides stolen and it is unclear who the one's that were retrieved belong to. It is only in that case that we would say they split equally until the smaller partner is fully compensated and then the remaining partners would continue to split the remaining hides.

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