Sunday, February 14, 2010

Sanhedrin 3b - Following Rov by Monetary Issues

The gemara says that although the pesukim that require us to follow the majority of judges and ignore the minority are speaking by dinei nifashos (capital cases), monetary cases can be learned from a kal v'chomer that we follow the majority of judges and don't require a unanimous decision. Tosafos questions how this fits with Shmuel who holds that by monetary issues we don't follow the majority. Tosafos suggests that even Shmuel must agree that a more powerful rov is acceptable to follow even by monetary issues, and following the majority of judges would be considered a more powerful rov.
R. Elchonon Wasserman (kunteros divrei sofrim, chapter 5) quotes this question from Tosafos in Baba Kama. If Shmuel holds that we don't follow rov by monetary cases, why would he agree that we do follow the majority of judges and ignore the minority? Tosafos explains that we consider the minority opinion of the judges to be non-existent, therefore following the majority is not considered following a rov. This seems to be against Tosafos in Sanhedrin who holds that this would be indicative of following rov, although it may have limitations.
What does Tosafos in Baba Kama mean that the minority of judges are considered non-existent? R. Elchonon cites the gemara in baba metzia about the bas kol that went out siding with R. Elazar, but the Chachamim ignored it based on the principle of following the majority and they were the majority. R. Elchonon understands from this that the concept of following the majority applies even when it is clear through ruach hakodesh that they are wrong. However, when we follow the rov in the context of 9 kosher stores and one treif one, and we don't know which store the meat is from - we would obviously not rely on the rov if we were privy to a navi telling us that the meat that we have is actually from the treif store. Clearly, we see that when following the majority of opinions such as judges or rabim vs. yachid, we are entitled to follow them even though it is against what we know to be true. The din of "halacha k'rabim" is very different from the din "rov". The din of "halacha k'rabim" is not a clarification of the truth, rather a gezeiras hakasuv to follow the majority opinion regardless of the truth, but the din "rov" is just an assumption and only works when we don't know for a fact that the piece of meat is assur. Therefore, even Shmuel who doesn't follow rov in monetary cases, allows us to follow the majority of judges.

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