Ketubot, Chapter 2, Lesson 10

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[Rabbi Michael Abraham] We’ll see in a moment. The Talmud says there that in a monetary court, a court of three, when two are against one in monetary cases, we follow the majority. Okay. The Talmud asks: why? It makes an a fortiori argument from capital cases. After all, in capital cases too we follow the majority—true, it has to be a majority of two—but we do follow the majority, so in monetary cases too we follow the majority of the judges. Right, the majority of the judges. So Tosafot says: this is difficult, because at the beginning of the chapter “One Who Sells Produce,” that’s the passage we just saw in Bava Batra, since Shmuel said that in monetary matters we do not follow the majority. So why not derive it by an a fortiori argument from capital law, as is said here? So how can Shmuel say…

Actually, you can raise this in two ways. First, it’s difficult on Shmuel. Shmuel says we do not follow the majority in monetary matters, but even in capital cases we do follow the majority—so in monetary cases not? A fortiori. Second, Shmuel’s statement contradicts the passage here. Leave aside the logic—that’s a logical difficulty on Shmuel. Beyond that, there’s just a plain contradiction between passages. The passage in Sanhedrin 3 takes it as obvious that in monetary court we follow the majority, and it doesn’t present it as depending on a dispute between Rav and Shmuel. So how do we explain that? What? Court is one thing and this is… No, these are not two different things, because the rule of following the majority—“incline after the many”—is something else, something written for us in the Torah.

Exactly, and there it’s talking about following the majority. That’s where they derive “incline after the many” from. But from there they derive the law of following the majority, not specifically in court. Where do we learn the rule of following the majority from? From “incline after the many”—the Talmud in Hullin says this explicitly. Hullin 11: “From where do we know that we follow the majority? From where do we know that everywhere we follow the majority? As the verse says: ‘Incline after the many.’” From the majority in court we derive the general principle of following the majority. What? A majority present before us. A majority present before us—and at the end the Talmud doesn’t find a source for a majority not present before us, and Rashi says it comes from the same verse, or it’s a law given to Moses at Sinai—it doesn’t matter. But clearly it’s about majority. That’s what is being discussed; that’s where we learn it from. So what’s going on here? In a moment we’ll get to the difference between a majority present before us and one not present before us.

So Tosafot says: fine, then why in Sanhedrin do we follow the majority, while Shmuel says we do not follow the majority in monetary matters? And Tosafot says: one cannot answer that in capital cases themselves we only follow the majority when the majority is present before us, but not when it is not present before us. Tosafot itself makes that distinction, or suggests making that distinction. Maybe in capital law, and by an a fortiori argument in monetary law too, we do follow the majority—but only when it is a majority present before us. But when it is a majority not present before us—and that’s our case—we don’t follow it. Right? The majority in court is a majority present before us, and regarding that the verse says “incline after the many.” But a majority not present before us—as the passage in Hullin apparently does not derive from there, although Rashi says it does—there perhaps we do not follow it, neither in capital nor in monetary matters, and that is what Shmuel claims.

And then it turns out that for a majority present before us, not only in court—but notice, not only in court; in any majority. For example, most stores. Suppose most of the stores in town belong to so-and-so—nine out of ten stores—and the tenth belongs to someone else, and the non-kosher one belongs to that other person. We found a piece of meat in the market, and I ask: to which of the two people does this piece of meat belong? Not a question of kashrut; apparently this is a question of following the majority in monetary matters—and that is a majority present before us, not a majority not present before us.

[Speaker B] Right?

[Rabbi Michael Abraham] A majority present before us. And if regarding a majority present before us we do follow the majority, then here is the practical implication according to this suggestion of Tosafot: even Shmuel would agree that in such a situation we would follow the majority and return the piece of meat to the owner of most of the stores.

[Speaker B] First of all, is that really so—so according to Shmuel too we do follow it? Even Shmuel agrees?

[Rabbi Michael Abraham] That’s what Tosafot says. It presents this as though it were obvious—it’s really not obvious at all. Tosafot offers it as an initial suggestion and then rejects it itself. Tosafot says that maybe with a majority present before us, yes, fine, okay? It may be correct. And then what follows? The implication would be that if we found a piece of meat, that’s a case of a majority present before us in monetary matters, and Shmuel agrees that we follow the majority. Everything he says—that we do not follow the majority in monetary matters—would apply only to a majority not present before us.

Tosafot says you can’t say that, because at the beginning of the chapter “The Wayward and Rebellious Son” it brings a passage, and from that passage it sounds like in every place we follow the majority in capital law too, such as: most women give birth after nine months, and most people who are pregnant are not exactly precise in calculating the month of pregnancy, and so on. So Tosafot says: we have several proofs, several passages, from which it seems that in monetary matters—and apparently in capital matters too—we do follow the majority, whether it is present before us or not present before us. Then the question comes back: so how can it be that in court, in monetary cases, we do follow the majority?

[Speaker B] And they learn it from a verse, yes.

[Rabbi Michael Abraham] Good question. Okay, that’s what Tosafot asks. So Tosafot answers like this: “One must say that the majority that people buy for plowing is not considered like those other majorities; therefore we do not rely on that majority in monetary law.” What is a statistical majority? What is it? Tosafot says: the majority of buying for plowing—that’s the passage in Bava Batra 92b—is a different kind of majority. What Shmuel said, that we do not follow the majority in monetary matters, applies only to a majority of that type, okay? But not to a majority of the type we have with judges. Wait, wait, I’ll explain. Not a majority of judges as such, but a majority that resembles the “buying for plowing” majority. Tosafot does not explain what is so bad about that majority of buying for plowing; that’s just what it says.

For our purposes—I’ll explain it further on—but for now, what does Tosafot say? What it says is that according to Shmuel we do follow the majority in monetary matters.

[Speaker B] In what kind of monetary matters?

[Rabbi Michael Abraham] In an ordinary majority. “Buying for plowing” is some sort of defective majority; there Shmuel said we do not follow the majority. Basically, yes, we do follow the majority in monetary law—even Shmuel agrees. Meaning, everything Shmuel said applies only to a certain kind of majority, some weak majority for some reason. Now, of course, that opens up a completely new possibility in our passage. We need, of course, to examine what is weak about the majority of buying for plowing. Once we understand that, we’ll have to go back and examine our passage: maybe in our passage this is a good majority, and then even Shmuel agrees here that in principle we should follow it. And that would be what the Talmud is asking here: according to both Rav and Shmuel, why don’t we follow the majority? Then we wouldn’t need to get to HaMaor, or Rashi, Tosafot, Nachmanides—all that would be unnecessary. According to Tosafot in Sanhedrin, we can read our passage straightforwardly. The Talmud here asks according to both Rav and Shmuel, because even Shmuel agrees that in monetary matters we do follow the majority. Everything he says—that we don’t follow the majority in monetary matters—applies only to a certain kind of majority, a weak majority.

Now, of course, in order to say such a thing—and this is only according to Tosafot in Sanhedrin—we need to examine two things. First, in what sense is the majority of buying for plowing weak? We have to define why it is weak. Second, we have to examine whether the majority that most women marry as virgins belongs to the weak kind of majority or to the strong kind. If it belongs to the strong kind, after we explain why the other one is weak, then it opens the possibility of explaining our passage in a third way—not like HaMaor and Rashi, and not like Tosafot and Nachmanides, but a third way: that our passage challenges according to both Rav and Shmuel, because here even Shmuel agrees that we follow the majority, since this is a good majority, and on a good majority he does not disagree.

[Speaker C] Does the Talmud there explicitly say something that weakens the majority?

[Rabbi Michael Abraham] Because there is another majority. I’m talking about the basic majority, obviously. I’m talking about the initial stage, when we knew there was only the majority that most women marry as virgins. So at first glance the Talmud says that we follow the majority. Yaakov. Right. And then it says more than that—even in the conclusion, after we say there is another majority that offsets it, that’s only because it offsets it. But if there were a situation—as I said earlier—where there were only the first majority and not the offsetting one, then even in the final law we would follow the first majority. And that remains true in the conclusion; it’s not just an initial assumption.

[Speaker B] Now that also explains the term: if two witnesses come, that weakens the first majority.

[Rabbi Michael Abraham] No. If two witnesses come, then two witnesses are a knockout. Two witnesses don’t weaken anything; they just wipe everything off the table. No, the Talmud says false witnesses.

[Speaker B] No, the Talmud says there in the initial assumption—we were talking about—

[Rabbi Michael Abraham] That was in the previous class—

[Speaker B] the previous class, just—

[Rabbi Michael Abraham] In the initial assumption, what does “false witnesses” mean? The witnesses are against a majority, so the majority goes; the witnesses are more credible. So the question is whether all women marry as virgins or most women marry as virgins.

[Speaker D] This is monetary law, this is doubt, this is a halakhic majority, while here it’s a factual majority regarding monetary law. Regarding monetary law it’s a factual majority—what reality says. And this is a majority not present before us.

[Rabbi Michael Abraham] What’s monetary law and where is it not?

[Speaker D] In a court of twenty-three it’s a halakhic majority—the Jewish law is that we go—

[Speaker F] according to the majority in court.

[Rabbi Michael Abraham] But the majority there too is a majority of judges, so it’s factual too—what do you mean? The majority of opinions in reality are those opinions.

[Speaker F] Jewish law rules that if there is such a reality, then the law is such-and-such.

[Rabbi Michael Abraham] Jewish law always rules what to do in a situation where there is a factual majority and minority. Why? I don’t see the difference. And by the way, it’s not just between capital cases either; it’s monetary matters too. Monetary and capital, according to Tosafot, are the same. So that is Tosafot’s view in Sanhedrin, and I still haven’t explained what is bad about the majority of buying for plowing—we’ll come back to that in a moment. But that is Tosafot’s approach in Sanhedrin, and it means there is some approach here that says the dispute between Rav and Shmuel is relatively narrow. It was stated only about problematic kinds of majorities. But regarding an ordinary majority, even Shmuel agrees that we follow it. And if that is so, then once we understand why it is weak and what happens in our passage, we can read our passage in a third way: that our passage really speaks according to both Rav and Shmuel, because our majority is an ordinary majority, and even Shmuel says we follow an ordinary majority. Okay? Opposed to that stands Tosafot in Bava Kamma 27. Look at the second source in front of you.

[Speaker B] So there are different kinds of majorities like that—not only present before us and not present before us, but also subcategories. Right.

[Rabbi Michael Abraham] Tosafot in Bava Kamma 27 says this: “It teaches us that we do not follow the majority in monetary matters.” Difficult: why do we not follow it? Let us derive it by an a fortiori argument from capital law, as we say in the first chapter of Sanhedrin—as we saw there, that it’s an a fortiori argument from capital cases. Rabbi Yoshiyah derives it by an a fortiori argument from capital law: if in capital cases, which are more severe, the Merciful One said to follow the majority, then in monetary law all the more so. And even a majority not present before us we follow in capital law, as we say at the beginning of “The Wayward and Rebellious Son.” Like Tosafot in Sanhedrin, right? The same thing. It rejects the possibility of distinguishing between a majority present before us and one not present before us.

And Tosafot in Bava Kamma says—the question is similar, though you can also be more precise about it—but the answer is the opposite. Tosafot in Sanhedrin said that basically even Shmuel agrees that we follow the majority in monetary matters, and the passage in Bava Batra 92 is the exception; there there is some more problematic majority. Okay? Tosafot here says the opposite: the exceptional passage is the one in Sanhedrin. “One can say that there, regarding judges, it is different, because their minority is considered as if it were not there; and there one cannot say, ‘leave the money in the possession of its owner,’ because the court removes it from him. But regarding other property, where there is a minority and a presumption of ownership, we do not follow the majority.”

Tosafot in Bava Kamma says that Shmuel really holds that we do not follow the majority in monetary matters. The fact that in court, even in monetary cases, we do follow the majority—that is a special case. It applies only in court. Why only in court? Never mind, we’ll see in a moment. But it is only in court. Meaning, in principle, everywhere outside of court we really do not follow the majority in monetary matters. That is what all the medieval authorities (Rishonim) in our passage assume, right? All the medieval authorities in our passage assume that according to Shmuel, here too in monetary matters we do not follow the majority.

[Speaker B] That’s Shmuel’s view. So that undercuts the a fortiori argument we discussed earlier—the one that derives it from capital law to monetary law.

[Rabbi Michael Abraham] So he says it doesn’t undercut the a fortiori argument. We do not follow the majority in monetary matters. The difference is judges. And even regarding the majority in capital law.

[Speaker B] Why not? If by the a fortiori argument you can also get to monetary law. Yes, in judges. But not outside court.

[Rabbi Michael Abraham] No, you learn the a fortiori argument… from monetary law to capital law only because the minority of the judges is considered as if it does not exist. Only because of that. There it’s a separate scriptural section.

[Speaker B] What does that mean? The Mishnah says eight judges—so what?

[Rabbi Michael Abraham] The medieval authorities say—and the later authorities (Acharonim), you’ll see, explain this in different formulations—there’s Rabbi Shimon, and there’s Rav Shmuel, and there’s Rav Chaim. Rav Chaim is brought at the end of your page. The Torah says that in monetary law you need three judges, and in capital law twenty-three. Okay. Now suppose two judges are against one in some case; the opinions are divided, two judges against one. If we follow the two against the one, it turns out that we ruled only on the basis of two and not on the basis of three.

[Speaker C] It has to be an odd number.

[Rabbi Michael Abraham] Yes. Beyond the fact that there have to be three, the question of whether it has to be odd is another issue—that’s a dispute in the Talmud there—but there have to be three.

[Speaker C] So—

[Rabbi Michael Abraham] Rav Chaim says there’s no choice. We must say that if we follow the majority, that means the minority is considered as if it were not there, and it joins the majority, and the ruling is issued by three judges, not by two. But that is a special rule said only in court. By the way, from here they also derive the rule of nullification by majority. The later authorities explain: after all, the rule of nullification by majority—we also learn that, as most medieval authorities say, from “incline after the many.” But “incline after the many” is the rule of following the majority. So where do we learn nullification by majority? Not to mention “its majority is like the whole,” which the later authorities also say is learned from there. So Rabbi Shimon and Rav Chaim explain it from here.

Since the Torah requires three judges in monetary law, and when I follow two against one I really have only two judges, since the ruling was made on the basis of two while the Torah wanted three, we must say that the minority is nullified as if it were not there, and the minority joins the majority, and now all three judges sign the ruling. And that is a ruling issued by three. And that is the proof that there is also a law of nullification by majority, not only of following the majority. Okay?

[Speaker B] And there’s no nullification into the minority? He’s saying it doesn’t just disappear entirely? You nullify the third and add him to the two. How? That’s nullification.

[Rabbi Michael Abraham] So the minority that was nullified—did it just go off to the side?

[Speaker B] Is it as if it isn’t there?

[Rabbi Michael Abraham] No. Nullification makes it belong to the side of the majority; it doesn’t merely eliminate it. By the way, this is a dispute among later authorities how to understand nullification: does nullification remove the prohibition, or does nullification turn it into permission? Exactly. It becomes like the majority. Here, take the second possibility. Nullified—did he absorb it into himself? One possibility. A second possibility: no, it becomes like the majority. It is nullified into the majority. The understanding here is apparently similar to the rule that the majority is like the whole. We really view the court as one unit. Now we need to ask ourselves: what did the court say? I’m not asking what Judge So-and-so said or what Judge Someone-else said; I’m asking what the court said. The court said what the majority says. Right? Good. So if that’s the case, then the court—that is, the three judges—said what the majority says. Three judges said it. Halakhically, of course, not factually. Factually, there is one who disagrees, but halakhically we view it as though the court, in a collective voice, is really saying this ruling, and everyone signs below.

By the way, there is also the prohibition “Do not go about as a talebearer among your people”: the minority judge is forbidden to say, “I was among those who acquitted.” He has to join the ruling of the majority. And therefore the clear-minded people of Jerusalem would check who sat with them at a meal. You don’t sit in judgment with two judges whose ruling you are not prepared to sign even though you disagree with them. If you think they’re two fools and you’re unwilling to join their ruling even though they’re the majority and you’re the minority, then don’t sit with them. If you do sit with them, that means you are taking into account the possibility that you’ll be in the minority, and you are prepared to join their ruling because you trust that they are good judges, even if you disagree with them on the specific point in this specific case.

That means that the ruling really comes out of the whole court, not from this judge or that judge. So if that’s the case, all three judges really stand behind that ruling. Because you checked beforehand, and that’s the meaning of it—it’s not just aggadic literature. Not aggadic literature, as was said. Meaning, this isn’t some nice aggadic statement that the clear-minded people of Jerusalem would check who sat with them at a meal. It’s a halakhic statement. You sit in court with two other judges—know that you may have to stand behind a ruling you oppose. Take into account that these are two judges you are prepared to give that credit to. If you are not prepared, don’t sit with them in judgment. Okay? You need to check who is sitting with you in judgment. Don’t wake up afterward, when suddenly you are in the minority, and say, “No, no, I don’t recognize you, you’re fools.” No. If you sat in judgment with them, you recognized that they are competent judges whose judgment you trust even where you disagree. Fine? You disagree, but that’s what they think, and from your standpoint that is entirely legitimate—they are Torah scholars and they know what they said. So you sign the ruling together with them.

If you sign the ruling together with them, that means that from the standpoint of Torah law in court, there is no minority. The minority is as if it were not there. Therefore there we follow the majority. That’s what Tosafot says. Basically, according to Shmuel, in monetary matters we do not follow the majority except in court, because there the minority is as one who is not there. The minority is as if it were not there; that’s an exception. There, “incline after the many”—there we do follow the majority.

[Speaker B] But why isn’t that true of every majority? In every majority you could say the minority is as if it were not there.

[Rabbi Michael Abraham] In every majority? What? There is no nullification. In nullification I really do say that. What? Not in following the majority—in nullification I say that. Majority—most people sell for plowing; let’s go back to the passage—that’s the dispute, right? So? It’s statistical. You have most people here—do you have a mixture? Those who sell for plowing and those who sell for slaughter, are they mixed together? No. There’s no question of nullification here. There’s a question of following the majority. In following the majority there is no nullification. Nullification is when the thing is inside a mixture; there is some whole that contains a minority and a majority, and you ask what the character of the whole is. So a court is a kind of whole. It contains two judges who say this and one judge who says that. I ask: what does the whole say? The whole says what the majority says. No, no, this is neither a mixture nor a compound; they’re not together at all.

[Speaker B] Then say that those for meat join in, and there’s no dispute here at all. Maybe they’re for plowing.

[Rabbi Michael Abraham] I didn’t understand. But who is “everyone”? They are not together in one mixture. The mixture has to combine them; they have to be in the same pot. When you have pieces of meat in one pot, or three judges in one room, in one judicial panel, then you can ask: wait a second, who nullifies whom, what is the character of the whole? But with transactions there is no single whole made up of transactions. It’s just a defined group. There are many transactions taking place in all sorts of places and times. A certain transaction comes before us, and I ask: what is it? I’m not asking about the nature of all transactions in the universe.

[Speaker B] Why do you say that? I’m relating to the majority.

[Rabbi Michael Abraham] I relate to the majority as clarifying the nature of this transaction. For me, the majority is a means of clarifying the nature of this transaction. I’m not asking about the nature of all transactions. There is no issue of nullification here.

[Speaker B] I don’t see a difference between that and two judges and a court.

[Rabbi Michael Abraham] Listen again and you’ll see the difference. I’m saying nullification applies only where all the pieces are in a mixture and create some sort of collective. For example, pieces of meat in a pot. With pieces of meat in a pot, I can ask what the status of this dish is, not what the status of one piece is. If I take one piece and ask whether it is kosher or not, that is not a question of nullification; it is a question of following the majority. If I ask what is the status of the dish in the pot—what is the status of the dish in the pot—that is a question of nullification, because I am asking about the character of the collective, not about one specific piece.

When I take one piece and ask, what about this piece here, that is following the majority, not nullification by majority. I say: since most of the pieces are kosher pieces, then the piece in my hand is also most likely kosher. No problem. But that is not a statement that there is some mixture here in which the minority is nullified. Rather, there is a statistical determination in favor of the majority, that’s all. That is the difference between following the majority and nullification by majority. These are two completely different laws in Jewish law. Now, judges are a whole, a collective. There are three judges here forming a panel.

[Speaker B] Why is that different? I don’t see it. This is nullification and it’s basically the same thing. No, if I took a small piece from that dish, then I say let’s say there are two and they’re kosher, so it is kosher.

[Rabbi Michael Abraham] Right. So? It is kosher. I didn’t say the whole mixture is kosher. Rashba’s position, after all, is that you may not eat the other two pieces. Rashba’s position is that you may not eat the last two pieces, you know? You take one piece after another—you have to leave the last ones. Fine, I’m talking about Rashba now. It’s not an isolated view; there are several.

[Speaker B] You can eat them all at once.

[Rabbi Michael Abraham] I’m saying when you eat piece by piece—exactly, that’s the difference—when you eat piece by piece you are asking about the status of the piece, so you are not asking about the status of the whole mixture. If you eat them all together, you can eat everything. Why? Because there there is nullification. But if you take one piece at a time, that is a question of following the majority, not of nullification by majority. In following the majority, you use the majority to clarify the nature of a particular piece you are asking about. There is no nullification of the minority there. There is a minority and a majority; the question is only whether this piece belongs to the minority or the majority. But when you ask about the status of the entire mixture, then it is not a question of where it belongs—it doesn’t belong anywhere; it is all inside it. You ask: what is this mixture—prohibition or permission? So here there is one answer only: either it is prohibited or it is permitted. If Jewish law says it is permitted, that means we ignore the prohibited component in the mixture. The whole mixture is considered permitted from our standpoint.

Rav Chaim says that’s what Tosafot means here. When I have a court, there are three judges here. The question is not what this judge says and what that judge says; the question is what the court says. That is a question about the whole. In that situation there is not only following the majority, but also nullification by majority. Therefore the minority is as if it were not there. Nullification means the minority is nullified. In following the majority, the minority remains; every piece that comes before me I assume comes from the majority and not the minority, but the minority remains—the minority is not nullified in any way. I am not asking a question about the minority at all; I’m asking about a specific piece that comes before me. Nullification simply doesn’t apply. It has no connection to nullification.

[Speaker C] Following the majority.

[Rabbi Michael Abraham] Yes, that is following the majority. Okay? So that is essentially what Rav Chaim says, in different formulations. You can formulate it in various ways, but that is why Tosafot says that in court there is somehow a special kind of majority, a stronger one, and there Shmuel agrees that even in monetary matters we follow the majority. But with any ordinary majority outside of court, Shmuel says we do not follow the majority in monetary law. Tosafot in Bava Kamma and Tosafot in Sanhedrin represent two opposite conceptions.

According to Tosafot in Sanhedrin, Shmuel holds that in monetary matters we do follow the majority—that yes, we follow the majority in monetary matters. The exception is the majority of “buying for plowing” in Bava Batra, which is a weaker majority for some reason, and that is the exception. But the normal case—an ordinary majority—even according to Shmuel, in monetary law we follow the majority.

[Speaker C] Is the majority that most women are virgins not nullification?

[Rabbi Michael Abraham] Wait, we’ll see in a moment, we’ll see. Tosafot in Bava Kamma says the opposite. The exceptional majority is the one in Sanhedrin. An ordinary majority—Shmuel says we do not follow it in monetary matters. In Sanhedrin it is the special case, where the minority is as if it were not there. That’s all. But in principle, Shmuel does not accept following the majority in monetary matters; we do not follow the majority in monetary law. All the medieval authorities we saw in our passage follow Tosafot in Bava Kamma, because they assume that according to Shmuel here he too would not accept the rule of majority, right? Unless there is a bodily presumption or something else, but on its own the rule of majority does not extract money according to Shmuel. Meaning, the assumption is that Shmuel disagrees with Rav; according to his view we do not follow the majority in monetary matters. It’s not that this is some exceptional case like “buying for plowing.” That is what they assume.

According to Tosafot in Sanhedrin—I haven’t proven it yet—but according to Tosafot in Sanhedrin the possibility opens up to say otherwise. Because according to Tosafot in Sanhedrin there is—not just there may be, but there is—a certain kind of majority that is an ordinary majority, not a weak one, where even Shmuel agrees that we follow the majority. If I really show that the majority that most women marry as virgins is of that kind, then the possibility opens to read our passage even according to Shmuel. Fine? But that is only according to Tosafot in Sanhedrin, not according to Tosafot in Bava Kamma. And even according to Tosafot in Sanhedrin I still have to show it—that is, explain the difference between a weak majority and a strong majority, and show why the majority that most women marry as virgins is really a strong majority and not a weak one.

So let’s see how we understand this issue. The next source in front of you is Rabbi Shimon Shkop. You see it in Sha’arei Yosher? He explains Tosafot’s intention in Sanhedrin. There he is discussing in general whether money follows the majority, but among other things, the passage I brought is one that explains Tosafot in Sanhedrin. I remind you again: that is the Tosafot that interests us. That is the Tosafot that can open for us the option of explaining our passage differently. So let’s see how he explains it. “One can say”—yes, why is the majority of buying for plowing a weak majority? That’s what you asked earlier. What is special about it? Why is it a weak majority such that specifically there Shmuel says we do not follow the majority in monetary matters?

“One can say that the reason is based on Nachmanides in Milchamot in the second chapter of Kiddushin, and as brought in Shev Shema’teta, fourth section, chapter six, who wrote concerning the majority of those who send gifts and then betroth.” A short introduction. He explains this according to Nachmanides. What does Nachmanides say? There is a Talmudic passage in Kiddushin 50. The Talmud discusses what happens if someone betrothed a woman with less than the value of a perutah. Then he sent her gifts—the gifts the groom sends the bride. It could be that with those gifts, since they are worth a perutah, he intended to repair the betrothal. Then in effect he did betroth her and she is betrothed. If he didn’t do that, then less than a perutah is not valid betrothal. Fine?

The Talmud ties this to the question whether a person normally sends gifts before betrothal or after betrothal. There is a dispute among the medieval authorities exactly how to understand the Talmud there; the details aren’t all that important for us. Bottom line, the Talmud says: if this is a place where people first send gifts and then betroth, then there is no concern that he betrothed her. Because when he sent gifts, those gifts were before the betrothal, so he didn’t betroth her. Fine? Maybe later he will, but for now he didn’t. If in that place people send gifts after betrothal, then there is reason to be concerned that maybe he betrothed her and then sent her gifts, and therefore we have to suspect that perhaps she is betrothed.

[Speaker B] How can you complete it like that? The truth is that at the time of the betrothal you have to give her—

[Rabbi Michael Abraham] I said, it depends on the positions of the medieval authorities. There are two approaches there. Some say it has nothing to do with a perutah at all; the question is whether the gifts themselves function as the repair of the betrothal—that’s Rashi; that’s how I presented it earlier. And some say no, it has nothing to do with the perutah, before or after. If gifts are always sent after betrothal, then once you sent gifts, apparently there had already been a betrothal beforehand. Because, after all, gifts are always sent after betrothal. But that’s not important for us. The point is that it depends on the character of the place—what the custom is in that place. Okay?

But the Talmud says there: what if this is a place where usually people first betroth and then send gifts, but there are also some who don’t? Fine? So Nachmanides asks there: why don’t we follow the majority there? The Talmud says that we do not follow the majority there, and we also take the minority into account. Nachmanides asks: why don’t we follow the majority there? We should follow the majority that she is betrothed. Yes, and then Nachmanides asks why we don’t follow the majority and suspect that she is betrothed. Fine? So Nachmanides says… “And it is difficult: why are we concerned because of the gifts and do not follow the majority?” And this is his language: “But the reason is that this majority is not similar to the dispute between Rabbi Meir and the Sages. There the majority is an inherent and natural pattern, and it cannot really be otherwise. But here it is only a custom, and many times a person acts according to the minority custom. Therefore, in a matter of the prohibition of a married woman, they were stringent.” End quote.

From his words it is evident—now I’m back to Rabbi Shimon—that by Torah law such a majority is effective even regarding the prohibition of a married woman, except that the Sages were stringent. But in principle, fundamentally, it works. And therefore the majority that people buy for plowing is also not an intellectual majority, because if this person needed it for slaughter, that does not at all go against the laws of nature and ordinary human behavior. Rather, it is a Torah majority, but it does not help in monetary law; and in capital law, for those reasons we wrote, it does help—because regarding money we certainly need an intellectual majority, as we wrote, since the issue is logical; and regarding capital law, because of “the congregation shall judge,” as we wrote.

What is he saying? He says like this. You can really understand this in two ways. The plain sense of his wording seems to distinguish between an intellectual majority and a factual majority. What does that mean? I remind you again of the distinction I made in the previous class between a majority and a presumption. Remember? For example, the presumption that a person does not repay before the due date. So I said: why isn’t that a majority? Most people do not repay before the due date. How does a majority turn into a presumption? So I said that maybe this is a case where the majority is a rational majority—someone who doesn’t act like the majority is puzzling, he has to explain to us why he did that. Logic says: keep the money with you as long as you can; why would you just give up money for nothing? You owe us an explanation. There are a few people who do that, but when they do, they have some explanation behind it. So here the majority is much stronger, because it is a majority such that if someone acts unlike it, and instead like the minority, that calls for explanation. It’s something not logical. That is what he calls an “intellectual majority.”

As opposed to that, there is another majority: most women marry as virgins. If a woman is not a virgin and she marries, is that a question on her—why are you marrying even though you are not a virgin? She wants to marry; she wants a partner. That is not a question. It is true that most women in the world who marry are virgins. That is factually true; statistically it is true. But if someone now claims, “I belong to the minority of women who married not as virgins,” is that some strange claim? Would we demand an explanation from her—what on earth made you do that? What on earth? Women who are not virgins also marry. But in the world, most women who marry are virgins—that is the statistical reality. There is nothing strange when the woman says, “I acted like the minority and not like the majority.”

One way to understand Nachmanides is like this. What does it mean? Sending gifts before the betrothal or after the betrothal—so in a certain place the custom is one way or the other, so what? I acted like the minority—what’s the problem? Therefore, Nachmanides says, we do not follow the majority. Because in a case like this, the minority is not something strange. I acted like the minority—sorry, what exactly is the problem?

[Speaker B] What? Is that a presumption? What?

[Rabbi Michael Abraham] It’s a majority and not a presumption. Therefore we do not follow the majority. In a place where the majority… What is a strong majority? A strong majority is a majority that turns into a presumption. A presumption, yes—the language of presumption. And then Shmuel says that for such a majority, even in monetary matters we follow it.

[Speaker B] Meaning—

[Rabbi Michael Abraham] The kind of majority we do not follow is only a majority that is not intellectual, but merely statistical. Rabbi Shimon Shkop says that is also true of the majority of buying for plowing. Most people buy for plowing, they buy an ox for plowing. If someone buys an ox for slaughter, is that a puzzling act? Of course not. People buy for slaughter. It’s just that factually, usually the transactions are for plowing because most people simply need oxen for plowing, not for slaughter. That’s just how it comes out. But someone who buys an ox for slaughter is not doing anything strange. He does not owe me explanations. It is a majority; it is not a presumption. About such a majority Shmuel says we do not follow it in monetary law, because it is a weak majority. But if there is an intellectual majority, a majority where being in the minority is not logical, then even in monetary law we follow it.

[Speaker B] That’s what Rabbi Shimon Shkop claims.

[Rabbi Michael Abraham] Exactly. Therefore, most buyers for plowing is a non-intellectual majority, a statistical majority, and we do not follow it. That is one possibility. According to that possibility, what would happen in our passage?

[Speaker C] In our passage it would remain only a statistical majority, right?

[Rabbi Michael Abraham] It is not a strong majority; it is a weak majority. And then it turns out that Shmuel would not follow such a majority, right? And then all the medieval authorities in our passage are right when they say that with Shmuel it does not work out. Shmuel, regarding a majority like this, should not really follow it. So what is the problem in the passage? If I understand Tosafot in Sanhedrin this way, then even according to that view there is no possibility of reading our passage in a third way. He too would join all the medieval authorities we saw, that according to Shmuel this Talmudic passage does not proceed on that basis—or if it does, it does so because of a bodily presumption. But in principle, this majority is one that Shmuel does not follow in monetary law.

There is another possibility. I can explain—I’ll give you an example—and I think you can understand Nachmanides about the gifts differently. Look, suppose you have a box of little balls, and in this box there are one hundred balls. Ninety-five are red and five are blue. Fine? Now I put my hand into the box and pull out a ball. What is the chance that I pull out a blue ball? Five percent, right? So if I need to guess which ball the person will take out, the guess is red, right? If it makes a difference for Jewish law, we would say here that in monetary matters we follow the majority, because it is most likely red—ninety-five percent. Fine?

What happens if the person does not reach in blindly and take out a ball? He can choose.

[Speaker C] He doesn’t look—whatever comes out, comes out.

[Rabbi Michael Abraham] He can choose. Now I don’t know what he likes. He took out a ball, and he claims he took out a blue ball. And I say: impossible, ninety-five percent of the balls are red; it’s not reasonable that you took out a blue one. He says: fine, you’re right, but I like blue balls, and I checked there, I sorted through them, there are blue balls there after all. I took out a blue ball, because that’s what I wanted. So do I have any claim against him when I say, “Yes, but most of the balls there are red”? If he had taken it out blindly, then that’s a statistical process, a random process, and then I have a claim against him: most likely it would be red, right? But if it’s a process of choice, then it’s not random. A process that is not random is not something you do statistics on. The statistics are irrelevant, since I choose which ball I want.

Now if I claim that I want blue balls, nobody can say against me, “But most of the balls there are red.” But I like blue. As long as this is an action that depends on human choice, you can’t apply statistics to it. That is the claim. Now notice, this is not the previous explanation; it is another explanation. The question whether to send gifts before betrothal or after betrothal is a human decision. A person can say: in most cases people around here send gifts before the betrothal. I like to send gifts after the betrothal. What’s the problem? It’s my choice. This is not a random process; it is the result of a person’s decision. Just a second—when it comes to a person’s decision, you cannot apply statistics. He says: my preference is to send gifts after the betrothal. So what if most people here do not do that?

Now wait, wait, just a second. Now notice: this too is a possible explanation of Tosafot’s approach in Sanhedrin and of Nachmanides’ approach about the gifts. But it is different from the previous explanation, because here I do not make it depend on whether this is an intellectual majority or a probabilistic majority. I make it depend on whether it is a human choice or a random process. If it is a random process, then even if the majority is not an intellectual one but only a probabilistic one, according to this explanation Shmuel would still follow it.

Let’s return to our passage.

[Speaker C] In our passage—

[Rabbi Michael Abraham] In our passage we say: most women marry as virgins. Okay.

[Speaker C] The question is what he wanted, what he chose—that the marriage contract was lost. What did the husband choose when he got married? Maybe his preference was to marry a widow?

[Rabbi Michael Abraham] No. I’m saying: here, here there is a subtle point. At first glance there is definitely room to say that here Shmuel would follow the majority. Why?

[Speaker C] Because there was a choice that he made.

[Rabbi Michael Abraham] What did he choose? A woman. She claims that she was married as a virgin, because most women are married as virgins. And he says to her: you were married as a non-virgin. So they say to the husband: what do you mean? There is a majority against you, since most women are married as virgins. Here Samuel would say that yes, we do follow the majority. Why? Because it’s not that the woman chose to be a virgin and the husband chose that she not be a virgin; that’s not the point. Rather, the question is what the reality was. Meaning, if we were saying that most people choose virgins to marry, that’s not the point. If that were the point, then indeed there would be room here to say that here too we do not follow the majority. But the point is that the question is what happened, not what people choose. And here that really is a statistical question. It’s not something that depends on human choice. Because the dispute is not about the question of what we chose to do; the dispute is about the question of what was. The woman claims: I was a virgin. The husband says: she was not a virgin. He brings in his favor, and she brings in her favor, the proof that most women who enter the wedding canopy are virgins. So here it is not really a dispute about what I chose; the dispute is about what was. In such a situation the majority is relevant; here too, even according to Samuel, they would follow the majority in monetary matters. According to the second explanation in Rabbi Shmuel, in Rabbi Shimon, and in Nachmanides there regarding gifts sent to a fiancée, there is room to read our passage in a third way. Our passage is speaking even according to Samuel, and here too Samuel would agree that we follow the majority in monetary matters. Then the difficulty has to be raised, and there is an answer that the second majority weakens the first majority, and everything is read straightforwardly. Meaning, if I accept Tosafot in tractate Sanhedrin, and if I explain here like Rabbi Shimon, like Nachmanides explains there in the case of gifts sent to a fiancée, and if I explain Nachmanides and Rabbi Shimon in the second way, then… then there is room to say that in our case too Samuel holds that we follow the majority in monetary matters; our passage also goes according to Samuel.

[Speaker E] But in the case of the oxen, he knows that in fact we follow the majority when he chooses for himself. The fact that ninety-five percent are for plowing won’t cause him to choose one more. But in the case of the riding animal and the bench, where there is a majority of people who buy for riding, then you have to guess what a person means. I would guess that he likes what most people like.

[Rabbi Michael Abraham] Right, the person chooses to buy for slaughter. What is the difference between that and gifts sent to a fiancée? Most people—what does “most people” mean? But I—I’m telling you what I am. I’m telling you that I chose for slaughter. What’s the problem?

[Speaker E] The problem is that you have to guess what he will do. I’ll guess, assume, like most people…

[Rabbi Michael Abraham] No, not at all. That’s not true. This is an act of choice. Why do I decide to buy?

[Speaker E] If most people like red more than blue, and now I gave him

[Rabbi Michael Abraham] the choice, then—

[Speaker E] what?

[Rabbi Michael Abraham] He can still say, I’m among those who like blue.

[Speaker E] It could be that with blue there’s a greater chance he’ll choose red.

[Rabbi Michael Abraham] What are you talking about? That’s not true. It says nothing about the person. No, you’re assuming that that’s his character, that by his character he likes blue or likes red. I’m not asking what his character is; I’m asking what he decided, not what his character is. It’s a question of where you focus—what did he do? I’m six foot five. You don’t believe me because most people aren’t that height. But I am that height—what do you want from me?

[Speaker E] That’s not a good example. Here a person walks into the room—

[Rabbi Michael Abraham] You don’t know how tall he is. After he says six foot five, that’s his statement. Just as you would assume what his height is, but if he says I belong to the minority, he has the right to claim that; he is believed. He says, I decided differently. Why are you guessing when I can provide you with the information? Why are you guessing? I’m giving you information about what is true—why are you guessing? I claim that I belong to the minority that buys for slaughter; you can’t say, I’m guessing because I don’t know. What do you mean you don’t know? Here, I’m telling you. Now you do know.

[Speaker B] How are you mixing this issue of choice with doubt and majority?

[Rabbi Michael Abraham] In a place where it is a person’s decision what to do, you can’t apply statistical tools.

[Speaker B] Right, so then it has nothing to do with majority at all. How does the parameter of majority come in?

[Rabbi Michael Abraham] What do you mean? That’s exactly what I’m saying—it has nothing to do with majority. That’s the practical question.

[Speaker B] It has nothing to do with majority; when there is choice, then the concept of majority falls away.

[Rabbi Michael Abraham] That’s exactly what I’m saying. You’re putting a question mark there—I don’t understand why. That’s exactly what I’m saying. In the case where most women are married as virgins, even though apparently this too is a human action—they decide to marry and choose a woman, a spouse, and so on. But that isn’t the point of their dispute. The dispute between them is not about the question of what we did, what we chose, what our taste is. Whether my taste is for virgin women or non-virgin women is not the point. The question is what happened. Where the question is what happened, there is room to say that the majority determines it. And then the majority determines it. If the dispute were about my taste, then here indeed there would be room to hesitate. And the husband could say, my taste is for non-virgin women, not virgin women, and I chose a non-virgin woman. She of course says it’s not so, and then we would have to understand whom to follow. But that’s not the point. The point is the question of what was, not the question of taste. The woman, for example, does not choose to marry as a virgin or to marry as a non-virgin; the question is what she is. After all, both get married: virgins get married and non-virgins get married. The whole question is what was. Now once the question is what was, then here Samuel says: here we follow the majority in monetary matters as well, because this is a statistical majority. Here it is relevant to apply statistical tools. Therefore here Samuel too will say: even according to my view, we will follow the majority, even though this is a monetary case. Everywhere that we do not follow the majority is where—

[Speaker G] where the person says, I chose like the minority, so why are you applying

[Rabbi Michael Abraham] statistical tools to me?

[Speaker G] In the case of gifts sent to a fiancée, is it also talking about a case where he is not present? Again— in the case of gifts sent to a fiancée, is it specifically talking about a case where he is present and claims, I intended to betroth her?

[Rabbi Michael Abraham] Obviously. That’s what it’s talking about; otherwise what is the discussion? After all, the dispute is between the husband and the woman over whether she is married or not.

[Speaker G] Maybe it’s just a case where he sends gifts, and then the question is what he intended—whether she is a betrothed woman or not betrothed.

[Rabbi Michael Abraham] Then that is something else. It could be that according to this explanation there really would be a difference. In a place where the husband does not claim, I belong to the minority, but you simply have to guess, as Zechariah said earlier, then sure, maybe we really would guess according to statistics. That would be a practical consequence of this explanation in that passage. It could be.

[Speaker C] But how does that fit with the oxen? Since the buyer claims, after all, I chose it for plowing—it’s not the seller, it’s not the buyer, it’s the choice. The choice belongs to both of them. What do you mean?

[Rabbi Michael Abraham] If I go to buy something—

[Speaker C] then I determine what I’m buying.

[Rabbi Michael Abraham] And I know what you bought. Not true. But I’m selling a goring ox. So I know that I’m selling it for slaughter; I chose to sell it for slaughter because I know that such an ox is not suitable for plowing. I also choose; we both choose. It has to be, you know, a fusion of horizons. Meaning, they have to meet one another in this transaction. Okay?

[Speaker C] And the feeling there is that there was deception, because he can claim that he was misled. The buyer.

[Rabbi Michael Abraham] Of course—that’s what he claims. Not “he can claim”; that’s what he claims. And I say he was not misled, because the sale was for slaughter. The seller’s intention?

[Speaker C] Yes—what do you mean by the seller’s intention?

[Rabbi Michael Abraham] That was also the buyer’s intention. We spoke to each other, and you asked for an ox for slaughter, and that’s what I sold you. You are lying now when you say that you wanted it for plowing. And I intended to sell it for slaughter, and it was clear to me that it was a goring ox, and for slaughter that is fine, no problem. Understand?

[Speaker B] Not only do you not get the ox and the money—you’re also a liar!

[Rabbi Michael Abraham] Yes, and because you’re a liar, you don’t get it. Yes—you both ate the fish and got thrown out of the city. So in short, what I want to argue is that if we go according to Tosafot in tractate Sanhedrin, that what Samuel says—that we do not follow the majority in monetary matters—is specifically regarding the majority for plowing, because the majority for plowing is weak. But in principle, Samuel also agrees that we do follow the majority in monetary matters, as we see in religious court. And if I accept the explanation of Samuel’s view—that this is Nachmanides’ explanation, like in the case of gifts sent to a fiancée—and if I interpret that explanation in the second way and not in the first of the two ways I presented here, then one could read our passage in a third way. Not like Rashi and the Baal HaMaor, and not like Nachmanides and Tosafot, but rather this goes according to Samuel as well, even without the reinforcement of the presumption of bodily status; rather, here we are dealing with a type of majority such that even Samuel agrees that we follow the majority in monetary matters, and the Talmud raised the question even according to Samuel and answered that the second majority offsets it, and everything is fine. Okay.

[Speaker B] So then how do you explain this a fortiori argument from capital cases to monetary cases and so on?

[Rabbi Michael Abraham] That belongs to the a fortiori argument from monetary cases to capital cases. With a majority that we follow in monetary matters, we also follow it in capital cases. With a majority that we do not follow in monetary matters, we also will not follow it in capital cases. Same thing. With this weak majority too, in capital cases we also will not follow it. That is what comes out. That’s what is written in Rabbi Shimon. He says—look, look at the line before the end. He says: “And for that reason they concluded that the majority of purchases are for plowing is not a decisive majority, for if this person needed it for slaughter, that does not at all depart from the laws of nature and common practice; rather it is only a Torah-level majority, and it is not effective in monetary law or in capital law for the reasons we wrote.”

[Speaker B] There’s no difference between monetary cases and capital cases. This majority is weak, and it is not effective—

[Rabbi Michael Abraham] Right, it is not effective in either monetary cases or capital cases. The a fortiori argument from monetary cases to capital cases remains intact; it’s a valid a fortiori argument. It’s just that in capital cases too we do not follow this majority, because it is a weak majority, and therefore not in monetary cases either. All right? So the a fortiori argument remains in place as it is. There is a long discussion about whether we follow the majority in capital cases and where we do; Rabbi Shimon has a long treatment of that matter. Anyway, that is the passage for our purposes. I think we’ll stop here. Rav Chaim you can read afterward; he explains Tosafot in Bava Kamma 27, but that is less important for our purposes.

[Speaker B] Why on earth is this talking at all about his having betrothed her? He brings the gifts. So what do betrothal have to do with anything? He’s bringing her presents—I don’t understand.

[Rabbi Michael Abraham] Exactly! And therefore we are not concerned that there was betrothal. What’s the question? That’s the explanation why we are not concerned. Okay.