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Q&A: We Do Not Follow the Majority in Monetary Matters

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This is an English translation (via GPT-5.4). Read the original Hebrew version.

We Do Not Follow the Majority in Monetary Matters

Question

There is a difficulty: why in capital cases do we follow the majority, but in monetary cases we do not follow the majority?
Maybe the Rabbi can explain the answer to me.
What mainly bothers me is the answer some give, that in monetary cases there is a presumption of possession.
But it is difficult for me that in capital cases too, a person is presumed to have ownership over his own life.
Thank you very much.

Answer

This is a complex topic, and I cannot cover it fully here. In Sha'arei Yosher, gates 3–4, it is discussed at great length. I will address a few points briefly.
First, I completely agree that presumption of possession is not relevant. On the contrary, in general legal systems it is accepted that in monetary law the evidentiary threshold should be lower, since 51% is enough to tip the scale in favor of one side (if we set aside presumptive possession). The explanation is simple: if we do not do this, it turns out that the winner is the one for whom there is only 49% support, which is even less likely. By contrast, in criminal law (punishment, such as the death penalty), proof beyond a reasonable doubt is required, because there is no second party standing opposite the defendant who would prevail in court, as happens in monetary cases.
But the assumptions themselves—that we follow the majority in capital cases, and that we do not follow the majority in monetary cases—are not simple at all. Neither of them is.
Rabbi Shimon Shkop shows that there are contexts in capital law where we do not follow the majority. For example, it is clear that to convict on the basis of majority alone is not enough, since two witnesses are required.
As for monetary law, on the straightforward reading Tosafot dispute this in Sanhedrin 3 and Bava Kamma 27. Both deal with the contradiction between the two passages (since in a religious court we do follow the majority in monetary cases). Some medieval authorities explained that the religious court case is the exceptional one, and in truth we generally do not follow the majority in monetary matters. Other medieval authorities explained that specifically the case of the majority for plowing is the exceptional one, and generally we do follow the majority in monetary matters. Personally, I tend toward the second approach, and the explanation for the uniqueness of the majority-for-plowing case is given by Rabbi Shimon Shkop (based on Nachmanides regarding engagement gifts). His claim is that if a person makes a claim about the way he chose to act, that claim cannot be rejected on the basis of majority, since he has the right to say that he chose to belong to the minority. So, for example, even if most people in my city eat non-kosher food, I can claim that I ate kosher food, because that is what I chose. What depends on my choice and is not a natural process is not determined by majority. So too regarding a person who claims that he sold his ox for slaughter and not for plowing, even though most oxen in the market are sold for plowing.

Discussion on Answer

Oren (2025-07-22)

Regarding the majority-for-plowing case, I thought to add that while it is true that most sales of oxen are for plowing, there is no such majority among people who claim they sold their oxen for slaughter. That is, if we were to conduct a survey among people who claim they sold their oxen for slaughter, and check how many of them really sold their oxen for slaughter and how many for plowing, then there would be room to apply that survey to the Talmudic case in which the man claims he sold his ox for slaughter. In other words, the very fact that the man makes this claim removes him from the ordinary majority in the market.

Michi (2025-07-22)

Correct. That is exactly the claim.

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