THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) AN ANIMAL THAT BECAME LOST IN A CROWD
QUESTION: The Mishnah states that "a murderer who became mixed with others"
exempts everyone in the crowd from punishment." Rebbi Yehudah argues with
the Tana Kama and says that all of the people are placed into a "Kipah" (see
previous Insight). The Gemara inquires as to the identity of the others in
the crowd. The Mishnah certainly is not referring to a group of innocent
people, for then it would be obvious that, according to the Rabanan, they
are exempt from punishment. Similarly, according to Rebbi Yehudah it is
obvious that innocent people would not be placed in a Kipah and caused to
suffer a terrible death.
Reish Lakish answers that the Mishnah is not discussing a human murderer,
but rather it is discussing an ox that killed (which the Torah states must
be killed) and that became mixed with other oxen that killed and that are
awaiting their execution through stoning. When an ox that has not yet been
found guilty becomes mixed up with other oxen awaiting stoning, the Rabanan
say that all of the oxen are not exempt from punishment (out of doubt).
Rebbi Yehudah maintains that all of the oxen must be placed into a Kipah.
The Rabanan's logic is that since the procedure of the trial and judgement
of an ox must be similar to that of a human who killed, the ox must be
identifiable at the time of the sentencing, and if it is not identifiable it
cannot be sentenced. Rebbi Yehudah argues and says that although we cannot
stone all of the oxen, we know that they are all killer oxen and thus they
are all placed in a Kipah to die.
TOSFOS quotes RABEINU YITZCHAK BAR MORDECHAI who questions Reish Lakish's
explanation of our Mishnah from a Mishnah in Zevachim (70b). The Mishnah
there discusses the law regarding a case in which an ox that was sentenced
to death became mixed in with a group of animals that were set aside as
Korbanos. The Mishnah states that they all must die. According to Reish
Lakish, how is that ruling to be reconciled with the view of the Rabanan of
our Mishnah who state that even when *all* of the oxen in the group are
killers, we let them live?
(a) RABEINU YITZCHAK answers that there is a Girsa in old manuscripts in
which the Gemara states that the case of the Mishnah is when an ox that was
not yet sentenced to death became mixed with a group of tame, innocent oxen
that never killed. Since it cannot be proven which ox is the killer, they
are all freed. Rabeinu Yitzchak asserts that this must be the proper Girsa
of our Gemara. The Mishnah in Zevachim is discussing a case of a killer ox
which has been sentenced to death and thus cannot be offered as a Korban. In
that case, therefore, out of doubt he whole group of oxen must die.
The MARGOLIYOS HA'YAM points out that according to this explanation, it is
difficult to understand Rebbi Yehudah's opinion that all of the oxen should
be left to die naturally. If none of these oxen are forbidden from being
slaughtered and eaten, then why should we not at least slaughter them and
use their meat instead of having them all die by themselves?
(b) RABEINU TAM argues that the text in our Gemara is correct. First, he
says, the Mishnah states that they are "all exempt." This implies that there
is a reason to kill them, but they are exempt from death. Second, Reish
Lakish is saying that our case does not involve a human murderer, as Rebbi
Avahu explained the Mishnah, but rather it involves oxen. This implies that
Reish Lakish's explanation is similar to that of Rebbi Avahu, but that Reish
Lakish replaces all of the people in the case with oxen. Since Rebbi Avahu's
explanation was that *all* of the people were murderers, it must be that in
Reish Lakish's explanation, all of the oxen are murderers! If a killer ox
(that had not been sentenced) became mixed with innocent oxen, then the law
would be that they are all permitted based on Rov (once they have separated
from each other and are no longer in the group; see Zevachim 73b).
How, though, does Rabeinu Tam answer the question from the Mishnah in
Zevachim? He explains that the case of the Mishnah there is an exception, as
the Gemara there (73b) discusses. The Gemara there states that there really
should be no problem with taking animals from that group and offering them
as Korbanos. This is because of the rule that any animal taken from the
group would have the status of the majority of animals in the mixture (which
are valid for being offered as Korbanos). Rava explains that the reason they
must die is because of a Gezeirah to eliminate the possibility of all (or
most) of them being brought as Korbanos at the same time, which would take
away the leniency of Rov.
Rabeinu Tam further states that our Gemara sheds light on a Gemara in Avodah
Zarah (74a). The Gemara there states that any mixture involving an ox which
receives stoning ("Shor ha'Niskal") is forbidden. How are we to understand
this stringency in light of the leniency of Rov mentioned above? Rabeinu Tam
explains that it is obvious that the meaning of "Shor ha'Niskal" is an ox
*that has been stoned,* and not an ox that is destined to be stoned.
Therefore, in the case of our Gemara and in the case of Zevachim (if not for
the Gezeirah), mixtures involving such animals are permitted.
The ARUCH LA'NER points out that there is a secondary benefit to the logic
of Rabeinu Tam's explanation. The Gemara in Bava Kama (29b) states that
there two things which are not in a person's possession but which the Torah
considers to be in his possession. They are a pit that a person digs in the
public domain (which is considered to be in his possession in that he must
pay for damages that the pit causes), and Chametz after the sixth hour on
Erev Pesach (which is Asur b'Hana'ah, and thus not technicality in his
possession, but yet the person transgresses the prohibition against owning
Chametz). The SHITAH MEKUBETZES asks why the Gemara does not include a Shor
ha'Niskal, a killer ox, in this list, as it is also Asur b'Hana'ah.
According to Rabeinu Tam, the omission of Shor ha'Niskal from the list is
understandable. While the ox is alive, it is *not* Asur b'Hana'ah. Since it
is only Asur b'Hana'ah as a Shor ha'Niskal after it is dead, there is no
relevance in telling us that it is considered to be in his possession even
though it is not really in his possession.
(c) The ME'IRI reconciles Reish Lakish's explanation of our Mishnah with the
Mishnah in Zevachim in a different manner. He quotes a view that says that
the Mishnah there does not really mean all of the animals must be left to
die, but rather it means that they are forbidden for anyone to derive any
benefit from them, and thus they are considered as if they were dead.
The Me'iri questions this view. If no benefit may be derived from the
animals, then what difference does it make if they are dead or alive? They
are as good as dead, and thus the Mishnah there still contradicts Reish
Lakish's explanation of our Mishnah.
The Me'iri explains that perhaps the advantage of the animals being alive is
that they made be used to mate with other animals that are not in the
category of Isurei Hana'ah. Since the Halachah is that the offspring of two
animals has the Halachic status of the "better" parent (due to the general
principle of "Zeh v'Zeh Gorem, Mutar"), these animals may be used for
mating. (Y. Montrose)
2) APPLYING THE PRINCIPLE OF "ROV" IN CASES OF CAPITAL PUNISHMENT
QUESTION: The Mishnah (79b) records two opinions with regard to a case in
which one group of people -- who were sentenced to be killed with Sekilah --
became mixed with a larger group of people who were sentenced to be killed
with Sereifah (see Rashi on the Mishnah). Rebbi Shimon says that the entire
combined group receives Sekilah, since Sereifah is a more severe form of
death (and out of doubt we may not give the more severe form of death to
those who might not be deserving of it). The Rabanan argue and say that the
entire group receives Sereifah, since they hold that Sekilah is more severe
TOSFOS quotes RABEINU YITZCHAK who asked RABEINU TAM the following question.
The Gemara in Chulin (11a) states that we use the principle of Rov,
following the majority, even in cases of Dinei Nefashos, capital punishment.
Why, then, does Rebbi Shimon not follow the Rov and give everyone in the
group *Sereifah*, since a majority of the people in the combined group were
sentenced to Sereifah?
(a) RABEINU TAM answers that when the Gemara in Chulin says that we apply
Rov to cases of Dinei Nefashos, it is referring only to cases in which we
know that one person killed another person, but there is an external factor
creating a doubt as to whether the killer is Chayav Misah. For example, we
do not know the state of health of the victim at the time he was killed. We
use the principle of Rov to determine that the victim was not a Tereifah
(deathly ill; if he was a Tereifah when he was killed, the killer would not
be Chayav Misah), since *most* people are not deathly ill. Beis Din is able
to convict a murderer of killing a healthy person even though we do not have
absolute proof that the victim was healthy.
In contrast, if a person did not do an act that warrants a more severe death
penalty, we cannot give him that more severe penalty simply because of Rov.
Rabeinu Tam's answer is difficult to understand. If the rule of Rav applies
to Dinei Nefashos, then why can we not use Rov to determine that this person
is one who was prosecuted for an Aveirah which warrants the more severe
The SHEV SHEMAITSA (4:8) answers this question based on a principle that he
suggests to explain when we apply the principle of Rov in cases of Dinei
Mamonos and in cases of Dinei Mamonos.
The Gemara in Bava Kama (27b) says in the name of Shmuel that we do not
follow Rov in cases of Dinei Mamonos, monetary matters. Why should we not
follow Rov for monetary matters? The Torah teaches that we follow Rov with
regard to all questions of Isur, and even with regard to questions of Dinei
Nefashos (Chulin 11a, Sanhedrin 69a). Why should Dinei Mamonos be different?
(TOSFOS there, DH Ka Mashma Lan, and TOSFOS Sanhedrin 3b, DH Dinei Mamonos)
TOSFOS in Bava Kama there answers that with regard to monetary matters, a
Chezkas Mamon (of the person who is presently in possession of the money)
cancels out the Rov of the person trying to take the money.
The Shev Shemaitsa asks in the name of his brother why we do not apply the
same logic to Dinei Nefashos, since the person who is being judged has a
Chezkas ha'Guf that he is alive and thus deserves to continue in that state,
which counters the Rov that says that he is Chayav Misah. The Shev Shemaitsa
answers that we apply the principle of Rov equally in Dinei Mamonos and in
Dinei Nefashos. In both types of cases, we use the Rov to determine what
happened, but we do not use the Rov when it does not clarify the
circumstances of what happened. For example, if we are not sure whether or
not the murdered person was a Tereifah or not, then we apply the Rov to
determine that he was not a Tereifah. Once we apply the Rov, then we
consider the victim to have been healthy without a doubt. The reason for
this is because of the principle expressed by the RAMBAM (Hilchos Edus) that
even though a single witness cannot obligate a person to receive Malkus,
nevertheless once a single witness determines that an object is Chelev, we
*do* give Malkus to a person who eats it, because we have already determined
that the object is Chelev. It is not considered as though the single witness
is obligating the person to receive Malkus, but rather the witness is
determining what the object is. Once we know that the object is Chelev, we
are no longer in doubt as to its nature, and we can obligate a person who
later eats it to receive Malkus.
The Shev Shemaitsa applies this to Rov as well. Once we have determined,
based on Rov, that the victim was a healthy person, it is no longer the Rov
that is killing the murderer, but rather it is the known fact that the
victim was healthy that causes the murderer to be Chayav Misah. The Shev
Shemaitsa says that such a Rov would apply in cases of Dinei Mamonos as
well. For example, if an ox gores a person and kills him, we do not exempt
the ox from death because the victim might have been a Tereifah. Rather, we
say that it was already determined that the person was healthy because of
the Rov, and thus the ox killed a healthy person. Since the Rov determines
the status of the person before he was killed, it is not the Rov that is
pronouncing the verdict on the ox.
The case in which we do *not* apply Rov for Dinei Mamonos is when a person
purchased an ox and we are uncertain whether he purchased it for the sake of
plowing with it or for the purpose of slaughtering it. Even though most
people buy oxen for plowing, we cannot determine any pre-existing
circumstances based on this Rov, since even if a person purchased an ox for
plowing yesterday, he might purchase one for slaughter today. In such a
case, Rov cannot obligate a person to pay in a monetary case (according to
This is what Tosfos means to say here as well. In the case of our Gemara, we
want to use the Rov to pronounce upon a person a Chiyuv of Sereifah, because
most of the people in the mixed group are Chayav Sereifah. Rov cannot be
applied in Dinei Nefashos in such a manner; it can only be applied *prior*
to the Halachic ruling, to determine the physical circumstances of what
Tosfos questions Rabeinu Tam's explanation from the Gemara. Rav Yechezkel
taught that the case of the Mishnah is when a group of people who were
Chayav Sereifah became mixed with a larger group of people who were Chayav
Sekilah. His son, Rav Yehudah, asked about this way of reading the Mishnah:
why should Rebbi Shimon explain that the combined group receives Sekilah
because Sereifah is more severe? He should say simply that since a majority
of the people in the group were sentenced to Sekilah, that is the punishment
that they all receive, based on Rov! Rav Yehudah therefore explains that the
case is that the larger group was Chayav *Sereifah* (as our text of the
Mishnah reads). If Rabeinu Tam's answer is correct, why does the Gemara say
that the principle of Rov should play a part in determining the death of
people who never killed (i.e. the group that was Chayav Sereifah)?
Tosfos answers as follows. According to Rav Yechezkel, why should Rebbi
Shimon be discussing a case in which most of the people in the mixed crowd
were Chayav the more lenient form of death? There is no point in choosing
such a case, since the fact that most of the people were Chayav a more
lenient form of death does not make the Halachah more of a Chidush; if that
is the case of the Mishnah, then the Mishnah is not teaching us anything
new. The Gemara concludes that it must be that the case of Rebbi Shimon is
one in which most people in the crowd were Chayav *Sereifah*, the more
severe form of death. Rebbi Shimon is teaching a Chidush by saying that even
though most people in the crowd were Chayav the more severe form of death,
we do not make the people in the crowd move and leave their place of Kevi'us
in order to enable us to follow the principle of Rov. Rather, we let them
stay there and we apply the rule of "Kol Kavu'a k'Mechezteh Al Mechetzeh
Dami," and thus, out of doubt ("Safek Nefashos l'Hakel"), they receive the
more lenient punishment (Sekilah, according to Rebbi Shimon). ("Lo Gara" in
Tosfos means that Rov does not make the case a bigger Chidush; it does not
give any more reason to execute the people with Sekilah.) (M. Kornfeld)
(b) TOSFOS in Chulin (11b) gives a different answer to this question. Tosfos
there quotes Rabeinu Tam as saying that we simply do not apply Rov when
dealing with two different forms of death penalty. The ARUCH LA'NER explains
what Tosfos means as follows. He cites the RAN in Nedarim who says that
something which will eventually become permitted ("Davar she'Yesh Lo
Matirin") does not assume the status of the majority in a mixture.
Similarly, when two things are forbidden and they become mixed up, the
mixture does not assume the identity of the larger quantity that is in the
mixture, because both things are forbidden and there is no need to assume
one identity over the other. Only where there is a mixture of a permitted
item and a forbidden item do we say that the mixture has to take on one
identity (and Rov determines that identity). Similarly, the case of our
Mishnah involves one group of people who were sentenced to a lenient form of
death, and one group of people who were sentenced to a severe form of death.
This is similar to a case of two forbidden items that became mixed with each
other, where we do not apply the law that one group assumes the identity of
the other. This is what Rabeinu Tam means when he states that we do not
apply Rov when dealing with a mixture of people sentenced to different types
The MARGOLIYOS HA'YAM points out that the Aruch la'Ner's approach answers a
strong question on the words of Tosfos. RAV TZVI HALBERSTAT asked a question
on Tosfos' assertion that we do not invoke the principle of Rov when
choosing what form of death to give a person. We know that a daughter of a
Kohen who is promiscuous receives a special death penalty. Unlike other
adulterous women, the Bas Kohen is killed with Sereifah. Rav Tzvi Halberstat
asked that this is based on a Rov: it is only due to a Rov that we know that
this woman is the daughter of a Kohen -- the Rov that most claims of
fatherhood are accurate! According to Rabeinu Tam, how can a Bas Kohen be
punished with Sereifah based on a Rov? Rabeinu Tam asserts that we do not
choose a type of death based on a Rov!
According to the Aruch la'Ner, this question is not a question at all.
Rabeinu Tam is only discussing two groups of people mixed together when he
says that we do not let one group's status override the other group's status
based on Rov. However, when we are dealing with a single entity (a Bas
Kohen) and we must determine the penalty that she receives, Rabeinu Tam
agrees that we can do this based on Rov. (Y. Montrose)