See also here (it seems that Elikim raised Oren’s suggestion, or at least something very close to it, though in less sharp wording)
https://www.bhol.co.il/forums/topic.asp?topic_id=3155006

Regarding the case of the stores, one could explain that the case is talking about a person who forgot what his intention was at the moment he entered the store. But at the moment of entry he was aware that there were kosher and non-kosher stores, and he chose to enter one of those options (that is, there is a 50% probability that he chose to enter a kosher store). After the fact he forgot which type of store he intended to enter.

A proof of this from the Jerusalem Talmud, where it says as follows:
Jerusalem Talmud (Vilna), Shekalim, chapter 7
Nine stores sell slaughtered meat and one sells carrion meat; if they became confused for him, he must be concerned, but regarding meat that was found, we follow the majority.

From the phrase “became confused for him,” it sounds like at the moment he entered the store he was aware that there were two types of stores (non-kosher and kosher), and only afterward forgot whether he had entered the kosher type of store or the non-kosher one. If it were talking about a situation where he forgot that there were non-kosher stores, the phrase “became confused” would not fit here.

Not at all necessary. “Became confused” means that he cannot distinguish between them. That is how it is used in Chagigah 20a and in several other places.

Recently I came across an article by Professor Jonathan Omen, Professor Israel Omen, and Shem Briss, titled “The Method of the Chida in Fixed Status and Separation.” It seems that they really do propose explaining it as I suggested above. Here is a link to the article:
https://www.machonso.org/hamaayan/?gilayon=57&id=1690

I’m attaching a summary of the article from ChatGPT:

The article analyzes the Chida’s approach in explaining the famous halakhic rules:
“Anything fixed is considered half-and-half” and “Anything that separated is presumed to have separated from the majority”, focusing mainly on the reasoning behind them and not only on their status as a scriptural decree.

### 1. The starting point – nine stores, fixed status and separation

The article opens with the topic of nine stores (nine selling slaughtered meat and one carrion):

* If one took from a store and does not know from which – this is called fixed status, and the doubt is forbidden.
* If meat was found lying in the marketplace – this is separation, and then we say, anything that separated is presumed to have separated from the majority, and permit it.

The question is: why does Jewish law distinguish between fixed status and separation? Is it only a scriptural decree, or is there also a logical rationale?

### 2. The Chida’s approach – the difference between intentional choice and random separation

The Chida (in Ein Zokher) offers a beautiful logical explanation:

* When an item separates randomly from a group (for example, the wind blows away one of 10 balls, 9 red and 1 multicolored) – it is more likely that the item that separated belongs to the majority. This is a case of separation, and therefore one follows the majority.
* When an item is chosen by intentional choice (a person, or even a mouse, choosing something, or a customer choosing a store) – the result of the choice depends on the chooser’s desires, habits, or other considerations, and not on the numbers. Once the choice is not random, the majority has no probabilistic significance at all, and therefore Jewish law treats it as half-and-half. This is a case of fixed status.

Therefore:

* Separation = a completely random process, with no reason to prefer a particular item → one follows the majority.
* Fixed status = there is room for choice/preference, or there are markers that distinguish between the items → no statistical preference → half-and-half.

The article sharpens the point that the “randomness” has to be objective: not just “it seems random to me,” but something inherent in the nature of the process, where there is no way to assign a higher probability to a particular item.

### 3. Applying the approach to various Talmudic passages

The article goes through a long line of passages in the Talmud and shows that each one fits nicely into the Chida’s approach:

* Throwing a stone at a group (Ketubot, Bava Kamma, Sanhedrin) – the thrower intends a particular person within the group. Deciding who the target was depends on the thrower’s choice, not on the majority – therefore it is a case of fixed status.
* Nine frogs and one creeping creature (Niddah) – if he knowingly touched one and does not remember which, that is a choice and is similar to fixed status. If a creeping creature was found in the area, that is separation, and one follows the majority of creeping creatures / frogs.
* A mouse that took leavened food (Pesachim) – if the mouse chose one pile out of ten, there is a “choice” here, and therefore fixed status applies and one must search again. If a piece of food had first separated randomly from the piles and only afterward the mouse took it, that is similar to something found in the marketplace: separation.
* Meat left unsupervised (Chullin) – a distinction between meat seen falling from a particular person (there is information about its owner) and meat simply found in the marketplace. The first resembles fixed status; the second, separation.
* Sacrifices that became mixed up (Zevachim) – the Talmud speaks of “let us draw one” (a person draws one sacrifice) versus “let us press them so that they move.” Tosafot explain that fixed status applies only when there is a distinguishing mark between the prohibited and permitted items; this connects to the idea that choice only “breaks” the randomness if there is a meaningful difference that can be noticed.
* One who says to his agent, “Go and betroth a woman for me” (Nazir) – the agent chooses a particular woman, or the woman is later chosen in a non-random way; therefore one cannot follow the majority of women, and the man becomes forbidden from all women because we do not know who might be related to the woman the agent betrothed.
* Clearing away a collapse (Yoma) – a discussion of nine gentiles and one Jew: did the collapse occur in a place where we know who lived there (fixed status), or in another place to which people had moved away from their homes (separation)? Samuel introduces the idea that in saving life we do not follow the majority—but the fixed status / separation distinction still provides the framework.
* A young woman who was raped (Ketubot) – a distinction between a case where the rapist came from a passing caravan (he “came to her”—people go to her, random → separation) and a case where she may have approached townspeople whom she knew (she went to them—choice → fixed status). Hence the need for two majorities in questions of lineage (the majority of the town plus the majority of the caravan).
* A child of uncertain paternity (Kiddushin) – a majority of fit men in the city versus a minority of disqualified men; if we assume that the man came to her (separation), one follows the majority and the child is fit. If we worry that she went to him (fixed status), then strictly speaking a doubtful mamzer is permitted to enter the congregation, but the logic of the distinction is still evident.
* A gentile who betrothed a woman (Yevamot) – if we are in places where the Ten Tribes are fixed in place (geographic fixedness and recognizable origin), and a gentile comes and betroths, we are concerned that he may be from remnants of the Ten Tribes; because the choice of the groom there is of the fixed-status type and not separation.
* Judah the Ammonite convert (Berakhot) – after Sennacherib mixed up the nations, the person “separated” from the world’s majority, and he has no control over his origin; that is separation, and therefore we say that what separated came from the majority and permit him to enter the congregation.
* “The majority of thieves are Jews” (Avodah Zarah) – the owner of the barrels did not choose the thief; the thieves “represent” the general population of thieves randomly, and therefore one may follow the majority (most thieves there are Jews).
* The heifer whose neck is broken (eglah arufah) – the Chida cites medieval authorities (Rishonim) that fixed status applies only when the prohibition is recognizable; if we do not know at all where the “harsh valley” is, fixed status does not apply. Again: if there is no indication / distinguishing mark whatsoever, choice does not break the randomness, and therefore one follows the majority.

### 4. The condition: “when the prohibition is recognizable”

The article emphasizes an important principle:
Fixed status applies only when there is some distinguishing mark between the permitted and prohibited items, or at least a theoretical possibility of recognizing which is which.
If there is no possibility of distinguishing at all, then even when someone “chose,” the choice does not dismantle the randomness, and so we remain with the law of separation and follow the majority.

### 5. Summary of the idea

At the end the article summarizes:

* Separation – a situation in which the item left the group through genuine randomness, meaning there is no data and no choice that can tilt the odds. In such a case, ordinary logic says: it is more likely to be from the majority → anything that separated is presumed to have separated from the majority.
* Fixed status – a situation in which the item was chosen or judged through a non-random process (conscious choice, personal relation, mark, distinguishing feature, etc.). In such a case, one cannot assign a better probability to prohibition or permission, and therefore Jewish law treats it as half-and-half → anything fixed is considered half-and-half.

The article shows that the Chida’s approach provides a logical and intuitive framework for all the different Talmudic passages about fixed status and separation, and also nicely reconciles the words of medieval authorities (Rishonim) who say that fixed status is not merely an “innovation” and a scriptural decree, but a law that also has a rational basis.

I would be glad to hear the Rabbi’s opinion on the proposal that appears in the article.

I haven’t read the summary now, but I said exactly this in last Thursday’s lecture: that your proposal is like Omen’s.