Q&A: We Do Not Follow the Majority in Monetary Matters — What Kind of Majority?
We Do Not Follow the Majority in Monetary Matters — What Kind of Majority?
Question
Hello Rabbi,
Following the recent series of lectures in Ra’anana on majority in Jewish law and in general, I was reminded of a question that has been waiting with me for a long time regarding the Talmud in Bava Metzia 22b:
Rav Aḥa the son of Rava said to Rav Ashi: Since Rava’s opinion was refuted, how do we eat these wind-fallen dates? He said to him: Since there are insects and creeping creatures that eat them, the owner gives up hope of recovering them from the outset. What about orphans, who are not capable of waiving their rights? He said to him: We do not presume that the whole valley is land belonging to orphans. What if it is known to be in their possession? What about in a walled city? He said to him: They are forbidden.
And Rashi explained there:
“We do not presume that the whole valley is land belonging to orphans” — we are not to treat the entire valley as though it is presumed to be the land of orphans, and forbid all the dates because of the doubt that they may come from the land of orphans; rather, we follow the majority.
But that is difficult, since we do not follow the majority in monetary matters. Maybe this is somehow connected to the distinctions you made in the recent lectures between a majority that is present before us and one that is not present before us?
Best regards,
Answer
It is connected. As is well known, there are several approaches regarding following the majority in monetary matters: some distinguish between a majority that is present before us and one that is not present before us. Some say that according to Shmuel we do not follow the majority, except for a majority in a religious court, which is an exception (Tosafot, Bava Kamma 27). Some say that it is specifically in the case of the majority for plowing that we do not follow the majority (Tosafot, Sanhedrin 3), and there is much more.
But note that it is explicit in the Talmud that there are situations in which we do follow the majority, and this of course must be accepted by all the approaches. For example, when a person claims that he repaid within the term, we extract money from him (Bava Batra 5). But is there not a minority that repays within the term? It seems to me that I explained there the difference between majority and presumption. A presumption is a majority that has a mechanistic explanation at its root. And according to that, we do follow it even in monetary matters. This is explicit in quite a number of passages.
Another example is in Ketubot 16b: most virgins who marry have publicity surrounding them, and we follow that. Tosafot there indeed explains that this is only according to Rav, but other medieval authorities (Rishonim) (such as the Ba’al HaMaor and others) say that this is also according to Shmuel. And there are many more such examples.
Discussion on Answer
I don’t think there is an agreed-upon answer to that. The decision about repayment of debts follows the order of the loans and liens, and the decision to arrange matters for the creditors is made by a religious court. Insolvency and arrangements, insofar as they have any source at all (for example in the passage about three people who contributed to a common purse), are also determined by Jewish law and not by the creditors.
If there are sources in the responsa literature and among the halakhic decisors, that would depend on the reasoning of one decisor or another, and in my opinion it has no halakhic status (at most as custom). You could look for that in Otzar HaPoskim.
Hello, I am studying with Adv. David Shapiro, creditor arrangements and insolvency, including responsa from the 15th century. My question is: is this the majority of the debtors or the majority of the capital owed? In civil law there is a combination of 50% of the debt plus 75% of the creditors, so that the majority can force an arrangement on the minority of creditors.