Two Comments on the Presumption of a Mu'ad Ox (Column 308)

Since we are already on a roll dealing with the truly important matters (lamdut), let us add another column in this series. In doing so we will also prove to the Iranians (who attacked the site yesterday in a cyberattack – they have finally understood where Israel’s true power lies) that “the Eternal of Israel will not lie”. 🙂

In the previous column I dealt, among other things, with testimony regarding a three-year chazakah. The Gemara and the Rishonim state that this chazakah is related to the three-times presumptions that appear frequently in the Talmud, and in particular to the presumption of an ox becoming mu'ad. Therefore I was reminded here of two interesting points in the logic of the discussion about the presumption of mu'ad, and I shall now address them one after the other.

A. Saying “Mashiv Ha-ruach”: Mu'ad as a Sign or as a Cause

Three-times presumptions: a mu'ad ox

There are several examples in the Talmud of presumptions that are created after three occurrences.[1] The time at which a woman sees menstrual blood, a mu'ad ox, and more (see an extensive discussion of many of them in Keilot Yaakov, Taharot §47, and here on the site in my shiurim on the third chapter of Bava Batra). The main Talmudic sugya that deals with this matter is found in Yevamot 64b. In that sugya, Rabbi and Rabban Gamliel disagree about whether the presumption is already established on the third time, or whether it is formed only on the fourth (after there have already been three occurrences). At least regarding those matters that are common in halachah, the halachah is that the presumption is formed on the fourth time.

In that sugya we see that this is a very interesting and self-aware process of scientific generalization. The assumption is that when we see events that recur, we always look for the fixed law that underlies them. Sometimes the generalization that emerges is odd and seems unreasonable, but there is an underlying assumption that almost any generalization will be more reasonable than the alternative that the cases are random (that is, not based at all on some fixed law). Therefore the Gemara searches for the least unreasonable generalization, even though at times it comes out strange.[2] But it will always be preferable to the thesis that there is no law at all.[3]

At the beginning of the third chapter of Bava Batra, the Gemara itself alludes to the connection between the three-year presumption in land and the general halachic principle of a three-times presumption:

Rabbi Yochanan said: I heard from those who go down to Usha who would say: From where do we know that there is a three-year chazakah? From the mu'ad ox. Just as a mu'ad ox, once it has gored three times, leaves the presumption of being tam and stands in the presumption of being mu'ad, so too, once a person has eaten (from the field) for three years, it leaves the seller’s possession and stands in the buyer’s possession.

If so, just as a mu'ad ox is not liable to pay full damages until the fourth goring, so too here, the field should not stand in his possession until the fourth year! How can you compare? There, from the time it has gored three times it is already a mu'ad, and the fourth, if it did not gore, what would there be to pay? Here, once he has eaten for three years it stands in his possession.

There is an interesting dispute among the Rishonim that connects this principle to saying “Mashiv Ha-ruach” in the prayer. My first remark will be about that.

The dispute among the Rishonim about saying “Mashiv Ha-ruach”

The Mishnah in Bava Kamma 23b records a dispute among the Tannaim:

Mishnah: What is a tam and what is a mu'ad? A mu'ad is any (ox) concerning which testimony has been given about it for three days, and a tam is one that reverted (to not goring) for three days – these are the words of Rabbi Yehuda. Rabbi Meir says: A mu'ad is one concerning which testimony has been given about it three times, and a tam is any such that children can keep touching it and it does not gore.

And in the Gemara there:

What is the reason of Rabbi Yehuda? Abaye said: “Yesterday (temol)” – one, “the day before yesterday (mitmol)” – two, “the day before that (shilshom)” – three, “and it hath been testified to its owner” – we have come to the fourth goring. Rava said: “Yesterday and the day before yesterday (temol mitmol)” – one, “the day before that (shilshom)” – two, and if he does not guard it today – he is liable. And what is Rabbi Meir’s reason? For it is taught: Rabbi Meir said: If when it distanced its gorings it is liable, then when it brought its gorings closer, all the more so.

That is, according to Rabbi Meir, three gorings suffice even on the same day, but according to Rabbi Yehuda it becomes mu'ad only if it gored on three different days and not on the same day.

Now, the Tur cites a dispute among the Rishonim regarding saying “Mashiv Ha-ruach” that is hung on this same tannaitic dispute. In the background one should remember the law that if a person is in doubt whether he said the correct wording in the prayer (in winter “Mashiv Ha-ruach” and in summer “Morid Ha-tal”), if thirty days have elapsed he may assume that he said it correctly, but before thirty days he must go back and say the correct wording. Here too there is a chazakah, though not of three times but of thirty days (about ninety times, assuming about three prayers a day). The question about which the Rishonim disagreed is the law of a person who said all ninety times in a single day (he intentionally repeated, in his free time, ninety times “Mashiv ha-ruach u-morid ha-geshem”). This is how it is brought in the Tur, Orach Chaim §114:

The Yerushalmi: One who is praying and does not know whether he mentioned (the phrase) or not – before thirty days, the presumption is that he says what he is used to; from then on, he mentions what is required. Until thirty days, if he is in doubt whether he mentioned it or not, he must go back, for presumably he did not mention it. And so too thirty days after Pesach, presumably he mentioned (Morid Ha-tal), and he must go back. And Maharam of Rothenburg was accustomed to say on Shemini Atzeret the blessing “Ata Gibor” ninety times until (the words) “Mashiv ha-ruach u-morid ha-geshem”, corresponding to thirty days in which he says it three times every day, and now if he was in doubt he would not need to go back. And his proof is from the chapter “Keitzad Ha-regel” (Bava Kamma 24a), where it says regarding a mu'ad ox: If he distanced his gorings he is liable – if he brought his gorings close, all the more so. So too here: since after thirty days, if he is in doubt he need not go back, then all the more so for ninety times in one day. And Rabbeinu Peretz, of blessed memory, wrote: I have not seen the elder rabbis of France act so, for the case is not comparable to the proof. For there (by the ox) the reason is because he has been established as a goring ox, and if he was established through three distant gorings, then all the more so through three close ones. But rain, which was instituted in the prayer and depends on the habituation of the tongue, we do not say so. And our master the Rosh, of blessed memory, inclined to the view of Maharam.

As noted, from the words of the Rishonim here it appears that this too is a three-times presumption, only that here a single “time” is thirty recitations (three prayers on ten days, or one prayer over thirty days). Maharam of Rothenburg learned from the laws of establishing an ox as mu'ad that here too, if he brought his recitations close together, he may assume that he said it correctly and need not go back. If over thirty days he gets used to it, then with ninety times in one day he certainly gets used to it. Rabbeinu Peretz, by contrast, holds that one cannot learn from the mu'ad ox to us, since there it is about the ox’s nature, whereas here it is about human habituation. I shall explain this more below.

The conventional explanation of the dispute

Simply put, it appears that Rabbeinu Peretz claims that in establishing the ox as mu'ad, the gorings are indicators of its nature: if it gored three times, that is an indication that it has a goring temperament.[4] By contrast, in mentioning “Mashiv ha-ruach” it is about the habituation of the tongue. After he says it enough times, he becomes accustomed to it. In the first case the presumption is a sign or piece of evidence indicating the ox’s nature, whereas in the second case the presumption creates that “nature”. Therefore Rabbeinu Peretz says that Rabbi Meir’s logic – that closeness improves the presumption – was said only about three cumulative pieces of evidence, not about three actions that bring about habituation. What does Maharam hold? In the yeshivah world people usually explain that according to him, even in establishing the ox as mu'ad, the gorings are actions that accustom it and turn it into a goring ox, and not, as one might simply understand, that they are evidence of the ox’s nature.

Thus, many Acharonim understand that the dispute between Rabbeinu Peretz and Maharam is about whether the gorings in establishing the ox as mu'ad are habituation or evidence. In Keilot Yaakov there he discusses all the three-times presumptions, and he considers whether these are evidential presumptions or presumptions of habituation, and in his discussion he likewise assumes that this is the explanation in the dispute between Rabbeinu Peretz and Maharam. We shall see below that if there is any dispute here at all about the nature of establishing the ox as mu'ad, the opinions are precisely the opposite.

Two additional explanations

In Beit Yosef there, subsec. 9, he brings two explanations of Rabbeinu Peretz’s view. The first is that of Abudarham:

And Maharam, of blessed memory (Tashbetz Katan §225), was accustomed to say on Shemini Atzeret the blessing “Ata Gibor” ninety times, etc. So wrote the Semak (§11, glosses, letter 13). And R. David Abudarham (p. 109) wrote that Rabbeinu Peretz’s reasoning is that rain is different, for the matter depends on the habituation of the tongue. And even though he habituated his tongue to say from the beginning “Ata Gibor” until “Mashiv ha-ruach” alone, without the first blessing of “Magen”, this is not a presumption of habituation when he begins to pray in the proper order of the blessing “Magen” and afterwards “Ata Gibor”.

According to Abudarham, Rabbeinu Peretz’s logic is that a person does not get used to saying “Mashiv ha-ruach” unless he does so within the full blessing. If so, this is not because he understands establishing the ox as mu'ad as evidence, as the Acharonim thought, but because it is a different type of habituation. On the contrary, according to Abudarham it is quite clear that he too sees the establishing of the ox as habituation; otherwise there would be no need to propose a different distinction. If so, contrary to the conventional understanding of the dispute, it seems that according to him both Rabbeinu Peretz and Maharam of Rothenburg understood the presumption of mu'ad as habituation and not as evidence. Alternatively, perhaps neither of them sees a reason to distinguish between an evidential presumption and a presumption of habituation, and if in one we say that closeness improves the presumption, then so too in the other.[5]

The second explanation brought in Beit Yosef is that of R. Yosef Abuhav:

And our great teacher, Mahari Abuhav, of blessed memory, wrote that Rabbeinu Peretz’s reasoning is that it is not comparable. There, dealing with a bad nature, that this ox is a goring one, behold, when it does the goring in close succession this shows that this trait has been firmly embedded in it, which would not be the case if it did so with much time in between, for we could say in each case that it was incidental. But here, the matter depends on the habituation of the tongue, and the tongue is not so habituated when one does a given thing at very close intervals.

It is not entirely clear what R. Yosef Abuhav means. Does he mean that according to Rabbeinu Peretz, mu'ad is evidence that it has a goring nature (“a bad nature, that this ox is a goring one”), or that it is habituation (“this trait has been firmly embedded in it”)? On the face of it, it seems that his intent is evidence rather than habituation, and according to this, Maharam’s view is that it is habituation, and thus he compares the two laws. If so, R. Yosef Abuhav explains in line with the conventional understanding.

But one could also understand that Rabbeinu Peretz holds that this is habituation, and even so there is no learning from it to the habituation of the tongue, for in speech, doing something in close succession does not habituate us so well. If so, then according to him as well this is a different explanation from the conventional one, since according to him both Rabbeinu Peretz and Maharam of Rothenburg hold that establishing the ox as mu'ad is habituation.

Now the Beit Yosef explains the Rosh’s view:

And the Rosh inclined to the view of Maharam, and it appears like his words, for the habituation of the tongue is only from the side of the nature with which a person is habituated, and it is like a goring ox. And since our rabbi wrote that the Rosh inclined to the view of Maharam, and in the Semak he cited only Maharam’s view, this is what we follow.

The Beit Yosef understands that the Rosh inclines to Maharam because habituation of the tongue is tied to human nature. It seems that he holds that even “Mashiv ha-ruach” is a question of human nature and not of habituation (the saying is a sign or evidence, not a cause). According to this, his intention is to say that if a person said “Mashiv ha-ruach” ninety times, certainly among them there were times when he was not concentrating, and if he saw that nonetheless he did not err, that is a sign that his nature is to become habituated quickly (and this was not a coincidence). The saying expresses something in his nature. This is also how he rules in the Shulchan Aruch, Orach Chaim §114:9.

That is, according to the Rosh, in both contexts it is an indication of the nature of the person or the ox (a sign and not a cause). According to Abudarham, it seems that in both contexts it is about habituation. Only according to R. Yosef Abuhav can we understand the dispute in the conventional way found in the yeshivot.

The difficulty with these inferences

The problem with this analysis lies in the fact that the halachah is like Rabbi Yehuda. The Rambam, in Hilchot Nizkei Mammon 6:1, rules:

Which ox is a mu'ad? Any for which they have testified about it on three (different) days. But if it gored in one day, or bit, or lay down, or kicked, or butted, even a hundred times, this is not a mu'ad.

Indeed, in the Shulchan Aruch, Choshen Mishpat §389:5, he does not spell this out, but the poskim adopt Rabbi Yehuda’s view.

This raises a question about the entire discussion of Maharam and Rabbeinu Peretz’s dispute. For Maharam bases his proof on Rabbi Meir’s view, despite the fact that this is not the halachah. This is surprising, since apparently Rabbi Yehuda disagrees with him on precisely this point. What is even more puzzling is that Rabbeinu Peretz, who rejects Maharam’s argument, does not base himself on the fact that his proof is based on Rabbi Meir while we rule in practice like Rabbi Yehuda. It seems that he rejects Maharam’s inference on its own terms, as a matter of reasoning. If so, the entire analysis of the dispute now needs to be reconsidered, for we must see how Maharam and Rabbeinu Peretz understood Rabbi Yehuda’s view.

“We do not multiply disputes”

The analysis that follows is based on two assumptions: (a) Each of the poskim stated his view in a manner that is consistent with his understanding of Rabbi Yehuda’s position (for the halachah is like him). (b) The lamdut principle that appears in slightly different formulations in several places: “We do not multiply disputes” (“afushei machloket lo mafshinun”; see the note and my brief discussion of it here). This principle says that if there is a point of disagreement between two Tannaim, Amoraim, or Rishonim, it is reasonable to assume that this is the only one. It is unlikely that there are two entirely separate points of dispute between them (that are not dependent on one another).

Many halachic proofs are based on this principle, relying on an opinion that was not accepted as halachah, just as in our case. Note that one can bring proof to a conclusion X from an opinion that was not ruled in practice, if the assumption is that the opposing opinion also accepts the assumption X and disagrees on some other point Y. Moreover, at times there is no need to prove that it is specifically Y that is the more reasonable point of disagreement, for even if there are two plausible possibilities for explaining the dispute, we have still proven X from opinion A, and regarding the author of opinion B we have no proof that he rejects X. Therefore doubt cannot dislodge certainty: for opinion A, X is clear, and for opinion B there is no proof that not-X is true, and thus, so long as nothing else has been proven, we may assume X. This is, of course, on the assumption that the two ways of explaining the dispute (as concerning X or concerning Y) are roughly equally plausible. Furthermore, there is another assumption here, namely that conclusion X is not itself very novel (or contrary to common sense). Otherwise the burden of proof lies again on one who asserts X, and so long as we have not proven that opinion B, which is accepted as halachah, also accepts X, it is difficult to rely on it.

Now we can see that this principle turns the conventional picture upside down.

A further discussion of the dispute: reversing the conclusions

As noted, we questioned Maharam’s proof from the mu'ad ox to saying “Mashiv ha-ruach”, which is based on Rabbi Meir’s view, whereas the halachah is like Rabbi Yehuda. In light of the rule “we do not multiply disputes”, we can now explain that Maharam held that from Rabbi Meir we can prove his general rule, and so long as it has not been proven that Rabbi Yehuda disagrees with him at this point, doubt cannot dislodge certainty. Therefore the conclusion is that Rabbi Yehuda too accepts this rule (that closeness strengthens the presumption).

It follows from this that according to Maharam, both Tannaim agree that goring is a matter of habituation, and so too, mentioning “Morid ha-geshem”. According to this, we must now explain the Tannaitic dispute: why does one hold that frequent gorings strengthen the presumption and the other not? It appears that the dispute hinges on whether habituation is better achieved when acts are close together or when they are spread out. And here Rabbi Yehuda holds that it is not (improved by closeness), whereas Rabbi Meir says that it is. If so, then in practice, since we follow Rabbi Yehuda, ninety recitations of “Mashiv ha-ruach” at once should not help. How then can Maharam maintain that they do help in halachah?

There is no choice but to assume that according to Maharam, Rabbi Yehuda holds that habituation is better achieved when actions are close together (assumption (a) above). And what is it, then, that in establishing the ox as mu'ad this does not help, in his opinion? Apparently because in his view, in that context it is specifically a matter of evidence and not habituation. Therefore he disagrees with Rabbi Meir there. Rabbi Meir disagrees with him and holds that in establishing the ox as mu'ad we are dealing with habituation, and therefore in his view closeness helps even more. If so, according to both of them, habituation is better achieved when acts are close together, and their disagreement is about whether establishing the ox as mu'ad is habituation or evidence. The conclusion is that Maharam indeed could bring proof from here that habituation is better achieved in high frequency, because this is true both for Rabbi Meir and for Rabbi Yehuda. Here, then, is our first surprising conclusion: Maharam actually understands that establishing the ox as mu'ad (according to Rabbi Yehuda) is evidence and not habituation – the opposite of what the Acharonim wrote.

Let us now consider Rabbeinu Peretz. Our assumption is that he too must stick to Rabbi Yehuda’s position, which was ruled in practice (assumption (a) above). According to this, Rabbeinu Peretz holds that according to Rabbi Yehuda, one does not become habituated through actions done in close succession (as he explicitly writes; see the quotation from the Tur above). It follows that for Rabbi Yehuda, establishing the ox as mu'ad is a matter of habituation, and therefore the closeness does not strengthen the presumption.

And what about Rabbi Meir? One might have said that in his opinion establishing the ox as mu'ad is a matter of habituation, and he disagrees with Rabbi Yehuda and holds that closeness does help habituation. But then we would expect Rabbeinu Peretz to reject Maharam by saying that his words follow Rabbi Meir, who is not accepted as halachah. Yet Rabbeinu Peretz rejects Maharam’s reasoning itself, from the outset, and from this it follows that he does not accept his view even in Rabbi Meir’s opinion. If so, according to Rabbeinu Peretz, Rabbi Meir too agrees that habituation is not better achieved through closeness. If so, what he says about the gorings must be because in his view establishing the ox as mu'ad (according to Rabbi Yehuda) is habituation and not evidence. And here is our second surprising conclusion: according to Rabbeinu Peretz, establishing the ox as mu'ad (according to Rabbi Yehuda) is precisely habituation and not evidence – again, contrary to the conventional understanding among the Acharonim.

Our conclusions regarding the two Tannaim according to the two Rishonim can be presented in the following table:

	Rabbi Meir	Rabbi Yehuda
Maharam (for everyone, habituation is helped by closeness)	Habituation	Evidence
Rabbeinu Peretz (for everyone, habituation is not helped by closeness)	Evidence	Habituation

The Acharonim ignored the fact that Maharam’s words are based on Rabbi Meir’s view and that Rabbeinu Peretz does not attack him on that point at all. From this it follows that they analyzed the dispute between Rabbeinu Peretz and Maharam while looking at the right-hand column of the table (which describes Rabbi Meir’s view according to the two Rishonim). But in practice we rule like Rabbi Yehuda, and therefore we ought to look at the left-hand column of the table, and remarkably the results are actually reversed. Therefore, according to the Acharonim, Maharam holds that this is habituation and Rabbeinu Peretz holds that this is evidence, but according to our analysis it is precisely the opposite: Maharam holds that this is evidence and Rabbeinu Peretz holds that this is habituation. Incidentally, here is a third surprising conclusion: there is another mistake in the analysis of the dispute. According to each of the Rishonim, his own understanding (whether closeness helps a presumption of habituation or not) is agreed upon by both Tannaim.

At the margins I shall just add that all this is said assuming the Acharonim’s premise that the Rishonim’s dispute concerns the question of habituation versus evidence. But we saw that according to Abudarham and the Rosh this is not the dispute at all: Abudarham holds that for everyone it is habituation, and the Rosh holds that for everyone it is evidence. Apparently they mean in Rabbi Yehuda’s view, for it is he who is accepted as halachah.

A possible explanation of the reasoning in the dispute

We saw that according to Maharam, for a presumption of habituation, density (closeness) habituates better. And for a presumption of evidence, density does not improve it. It may be that in his opinion many events in a short time can be interpreted as a momentary “attack” which proves nothing. Precisely their spread out over the time axis shows that there is something essential here and not merely a momentary outburst.

According to Rabbeinu Peretz, we saw that for a presumption of habituation, density does not improve the presumption as much as spreading it out over time. By contrast, for a presumption of evidence, density is better evidence. The reasoning is simple: if the presumption is clarificatory, then the underlying assumption is that three occurrences are not a coincidence (R. Chaim’s argument regarding the signs of a shoteh). But when there is a great interval between the occurrences, it could still be a coincidence. Even a rare event can happen from time to time, if one waits long enough (the length of time increases the statistical probability).

We thus learn that a systematic analysis of the dispute leads to conclusions exactly opposite of what is commonly accepted in the yeshivot and among the Acharonim: it is actually Maharam who holds that the gorings are evidence, and it is Rabbeinu Peretz who holds that they are habituation. And according to both of them, this point is not at all a point of dispute between the Tannaim.

Let us now move on to the second remark.

B. Specific and Alternating Mu'ad

Conceptual introduction: specific mu'ad and alternating mu'ad

We have seen that the presumption of establishing an ox as mu'ad is one of the examples of the principle of a three-times presumption. An ox that gored three times moves from the presumption of being tam to that of being mu'ad. After it is mu'ad, if it does not gore three times, even though relevant animals pass before it, it reverts to the presumption of tam. What is the halachah if it always gores only camels? Then it is considered mu'ad for goring camels but not other animals. This is specific mu'ad. Regarding the others, it is a tam. And if it gores only on even-numbered days, and on the other days it does not gore even when relevant animals pass before it? In that case it becomes mu'ad to gore on even-numbered days. This is alternating mu'ad.

What is the law if it gored once a camel, once an ox, and once a donkey? Here there is a doubt: either it is mu'ad to gore all animals, and these were simply three incidental animals that happened to be before it; or it is mu'ad to gore specifically these three species.[6] It turns out that the Rishonim disagreed on this. In practice, all rule (Bava Kamma 37a) that in such a case it becomes mu'ad for all three (i.e. for all three species), but from the Rambam it appears that it is mu'ad only for these three species and not for all species. The Raavad, however, holds that in such a case it is mu'ad for all species. This, indeed, is how the simple reading of the Gemara sounds.

The case about which I wanted to remark is one in which both specific and alternating mu'ad appear together.

Specific and alternating mu'ad: the difficulty

The halachah in which this law appears is Rambam, Hilchot Nizkei Mammon 6:9–10:

9. If it gored an ox today, a donkey tomorrow, and a camel on the third day, it becomes mu'ad for all of them. If today it saw an ox and gored it, and the next day it saw an ox and did not gore it, and on the third day it saw an ox and gored it, and on the fourth day it saw an ox and did not gore it, and on the fifth day it saw an ox and gored it, and on the sixth day it saw an ox and did not gore it – it becomes mu'ad in an alternating pattern for oxen. And similarly in all such cases.

10. If today it saw an ox and gored it, and the next day it saw a donkey and did not gore it, and on the third day it saw a horse and gored it, and on the fourth day it saw a camel and did not gore it, and on the fifth day it saw a mule and gored it, and on the sixth day it saw a wild donkey and did not gore it – it becomes mu'ad in an alternating pattern for all of them, and if on a day on which it is mu'ad it gores one of those three species that it gored in an alternating pattern, it is mu'ad.

The Rambam rules that gorings in an alternating pattern create mu'ad in an alternating pattern. But if the alternating gorings are of three different species, and on the days in between, three other species pass before it – different from the three it gored – then it becomes mu'ad in an alternating pattern only for those three species. The Raavad (on halachah 12 there) holds that it becomes mu'ad in an alternating pattern, but for all species and not only for those three.[7]

In Keilot Yaakov, Bava Kamma §20, he challenges the Rambam with a “mimah nafshach” dilemma: if it is mu'ad only for these three species, then why is its mu'ad status alternating? After all, if it is mu'ad only for these three, then its not goring on the days in between is because there were other species there, which it does not gore at all, and not because it is not mu'ad on odd days. And vice versa: the assumption of alternating mu'ad states that it is mu'ad for all species, and therefore its failure to gore those that it saw on the odd days is due to the days and not the species. In short, the assumption that its mu'ad status is specific excludes alternating mu'ad, and the assumption that its mu'ad status alternates excludes the assumption that it is specific. How, then, can the Rambam conclude from here that the mu'ad status is both specific and alternating? The two components of the mu'ad status in this case (alternating and for only three species) seem to contradict one another.

Specific and alternating mu'ad: Keilot Yaakov’s explanation

The Keilot Yaakov there claims that this is indeed the logic of the Raavad. Therefore he rules that the mu'ad status is alternating but for all species (and not only for these three). The assumption underlying this logic is that the process of establishing the ox as mu'ad is an evidential process (a sign and not a cause). After it has gored three times, it has become clear to us that its nature is to gore. This is, in fact, the simple explanation of the mu'ad ox. But the Rambam holds that the process of establishing the ox as mu'ad is a formative one and not an evidential one (the goring is a cause of the mu'ad status and not a sign of it). That is, the fact that the ox gored three times creates in it a goring nature (“after the actions, the hearts are drawn”), and does not reveal its goring nature, as the Raavad understood. Therefore the Rambam holds that a mu'ad status that was formed through goring three species in an alternating pattern is simply formed in that way.

Specific and alternating mu'ad: an alternative explanation

In my view there is no need for this at all. It is possible that the Rambam too holds that establishing the ox as mu'ad is an evidential process (the gorings are signs and not causes). However, if the ox gores in an alternating pattern three species, and on the days between them it does not gore three other species, then, because of the two interpretive possibilities that we presented (either it is mu'ad for the three species every day, or it is mu'ad for all species in an alternating pattern), we have no evidence for either of these interpretations. Therefore we can only assume the minimum that has been proven in the process of establishing it as mu'ad and rule that it is mu'ad only for these three species in an alternating pattern. This is what is certain. Anything beyond that is doubtful (the interpretation of alternating mu'ad for all species is doubtful, because perhaps the interpretation of specific mu'ad for all days is the correct one, and vice versa).

Moreover, one could say that precisely because the gorings are evidence of a mu'ad status (a sign and not a cause), we must conclude only about a mu'ad status for which we have good evidence. As noted, we have no evidence for more than this “self-contradictory” conclusion, and therefore the conclusion is that the ox is presumed to be tam regarding all the other cases (that is, regarding goring other species on all days, or goring all species on the other days).

A homiletic note on the connection to the previous column

Beyond the fact that the previous column dealt with land chazakot which the Gemara compares to the chazakah of establishing an ox as mu'ad, that column reminded me of these remarks because of another aspect as well. There we saw the argument of Netivot Ha-mishpat regarding the probabilistic consideration in combining witnesses in monetary cases. The Netivot argued that in order to decide whether to accept testimony, one must examine the alternative: what is the probability of the opposite assumption, namely if we rule against the testimony. In this sense, in the case of Keilot Yaakov here, I took a similar path. When I examine the presumption of mu'ad, I examine the alternatives: what happens if we assume there is no mu'ad status – do we have a reasonable explanation for the gorings or the abstentions from goring? According to that, we determine the presumption.

This was the connection to my second remark here, but one can add, beyond this, a connection also to the first remark in this column. Combining two witnesses builds the ruling (or the truth), or else it is an indication of it. According to R. Shimon Shkop, it builds the truth, and according to the Netivot, it is only evidence that constitutes a sign of it. Therefore, at the end of the previous column I qualified the Netivot’s words to cases in which the two witnesses testify about the same event. This is in the category of “brought his gorings close together”. Here the assumption is that closer testimonies are better. A falsehood with widely separated testimonies can reasonably be a coincidence. By contrast, R. Shimon Shkop assumes that there is no difference, and the probabilistic consideration applies also to distant testimonies. Perhaps he understands this in line with his view that testimony is a cause of the truth and not a sign of the truth, as I explained at the end of the first remark above about the dispute.

Perhaps all this is a psychological drush on myself, but this really is what reminded me of these remarks…

[1] See at length on this in my shiurim on the third chapter of Bava Batra, lesson 2 and on. My comments in this column appear there in lesson 3.

[2] There are exceptions in which the generalization is so unreasonable that we nonetheless conclude that there is no fixed law and that it is apparently a random recurrence. See, for example, Mekor Chaim, Orach Chaim §467 subsec. 5.

[3] In the background, of course, stands the mode of thinking attributed to R. Chaim of Brisk (see here, chapter 2), who explained in this way the sugya of the signs of a shoteh at the beginning of Tractate Chagigah (3b).

[4] In my shiurim there I discussed why, according to this understanding, the third goring does not make it mu'ad from birth.

[5] In my shiurim there I pointed out that apparently this entire “chakirah” is based on dichotomies that are not at all necessary. It is quite plausible that the statement that three times create a chazakah is a formal statement (for we need to draw a line somewhere to set a clear halachah), and therefore there is no reason to distinguish between evidence and habituation. Once they established that three is the line, that is the line. And according to this, it is quite possible that in the question of closeness versus remoteness we are dealing with a formal claim and not a substantive one.

[6] There is, of course, another logical possibility: that it is a tam ox. After all, it did not gore any species more than once. I will not go into this here.

[7] Although some wanted to claim that when it gored three species the Raavad indeed holds that it becomes mu'ad for all, but in alternating gorings it becomes mu'ad only for these three species.