Talmud Tips

For the week ending 25 November 2023 / 12 Kislev 5784

Bava Kama 23-29

by Rabbi Moshe Newman
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Following the Majority?

“This teaches that we do not follow the principle of majority in monetary case.”

The gemara states on our daf that this is a halachic principle that we are intended to learn from the two different terms our mishna uses interchangeably: kad (small vessel) and chavit (large vessel). Despite there being a factor of “majority” that we would think should determine which size vessel was intended in the transaction (see the gemara), the mishna changes the word that describes the vessel “seamlessly” in order to teach that they are considered as “equal,” and we are not to follow the “majority factor” that exists.

We certainly follow the majority of judges who decide a case involving a monetary claim, as is explicit in the Torah: “Decide according to the majority” (Ex. 23:2). However, if the majority is not a majority that can be clearly counted, but is rather a majority based on logic or solid assumption, we are taught in our gemara not to rule according this type of majority in a monetary case.

Tosefot asks: “Why not?” We find in other places in Shas (Chullin 11a, Sanhedrin 69a) that we do in fact follow a majority based on logic to decide whether something is permitted or forbidden, or even to decide if a person is deserving of capital punishment for certain transgressions. Why not rule with this type of majority in monetary cases as well?

Tosefot answers that this type of majority is not “strong enough” to overcome a “chezkat mamon”, the assumption that when money is in the possession of a certain person it should remain with that person unless clearly proven to not belong to him. A majority based on logic is not sufficient grounds to allow the claimant to take the money from the person currently in possession of it.

There is still a question: If this type of majority constitutes enough “proof” to take away a person’s life and lead to a ruling that he deserves capital punishment, isn’t this type of majority all the more so sufficient proof to take away his money? One answer the commentaries offer is that although a person is considered to be in possession of his money, he is not actually “in possession” of his life. He is alive, but does not “own” his life. It is something that the Creator owns and puts into a person according to the Will of the Creator.

Bava Kama 27b

Watch Where You’re Going!

“It is not the way of people to look carefully down at the road.”

This statement, by Rabbi Aba to Rav Ashi in the name of the Sages of Eretz Yisrael, is taught in order to explain why the mishna on 27a teaches that if a person trips on a vessel belonging to someone else that was put on a public road, and breaks it, he is exempt from payment for the damage he caused to the vessel.

The gemara asks: “Why is he exempt? He should have looked where he was going, and is therefore negligent and should be responsible to pay damages!” A number of answers are offered in the gemara to explain his exempt status, such as “it was dark” or “the vessel was just around the corner”. In other words, the mishna is speaking about a “special case,” in which the person who tripped acted without negligence.

A drastically different approach that the Sages of Eretz Yisrael were quoting as teaching is that the breaker is exempt from payment since: “It is not the way of people to look carefully down at the road.” One interesting way to view this is that the nature of a person is that he is a being with a spiritual nature, a “thinker”, and his thoughts are often lofty and connected to the “Above”, as opposed to an animal which is purely physical, and therefore was created (in general) with his eyes facing downward, facing the physical world below. (See Tosefot and Tosefot Rabbeinu Peretz.)

Bava Kama 27b

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