OPINIONS: In the Mishnah (19b), Rebbi Yishmael says that when one buys a goat from a Nochri and does not know whether the goat has ever given birth before, if the goat is not older than one year old he may assume that it has never given birth before; the next birth may be assumed to be its first one, and the firstborn male is considered the Bechor and must be given to a Kohen. If the goat is older than one year, then there is a doubt about whether this birth is its first, and the newborn kid is left to graze until it gets a Mum, and then the owner may eat it.

The Gemara asks why Rebbi Yishmael considers the kid born to a goat older than one year to be a Safek Bechor. There is a Rov that states that a majority of goats become pregnant in their first year. The Rov should dictate that this kid is not the Bechor. The Gemara suggests that Rebbi Yishmael follows the view of Rebbi Meir takes into account a minority (Mi'ut). Since a minority of goats do not became pregnant in their first year, one must be concerned that this goat is of the minority, and its kid indeed might be a Bechor.

Ravina suggests that Rebbi Yishmael may follow the view of the Chachamim who are not concerned for a minority. The Chachamim follow the majority only when it does not depend on the occurrence of an action (for example, when a piece of meat is found in a place with a majority of Kosher stores, one follows the Rov because it does not depend on any action). The Chachamim do not follow the majority when it depends on the occurrence of an action -- a "Rov ha'Taluy b'Ma'aseh." In the case of the Mishnah, the majority depends on the goats breeding. One may not assume that an action has taken place based on a Rov.

What is the logic behind this ruling?

(a) The SEFAS EMES suggests that the Torah allows one to rely on a Rov only when there is a doubt about the nature of the object. For example, when one has a doubt such as, "Is this piece of meat Kosher or not," or, "Is this person a Jew or a Nochri," or, "Is this object Tamei or Tahor," the doubt involves the nature of the object in question. In contrast, in the case of the Gemara here, the question is not what the nature of the object is at present, but rather what happened to the object in the past: did this goat give birth once or not? If it gave birth in the past, then today it is no different from any other goat in the flock (physically and legally), and the Rov (that most goats have given birth) cannot dictate anything about this goat. (The Halachic difference is reflected not in the goat itself, but in the next child that it bears.)

(b) The most basic understanding of the Gemara is that a Ruba d'Leisa Kaman is more reliable when its perpetuation is determined by natural events, and not by the intervention of a man or animal. (A "Ruba d'Leisa Kaman" is a majority in frequency -- something usually occurs in this manner. The majority is not present and countable, but is a predictable consequence of natural events, such as the Rov that "most animals are not Tereifos." This Rov is not present, but there nevertheless exists a fact that most animals are born healthy.)

A Rov such as "most animals are not Tereifos when they are born" perpetuates itself without the intervention of a man or animal. When human, or even animal, intervention is required and the outcome of the event in question (such as, did the animal gave birth in the past?) can be determined only by the conscious act of a living being, one cannot assume that the living being in question "made the decision" to become part of the Rov.

QUESTION: Rebbi Chanina of Sura says that the argument between Rebbi Akiva and Rebbi Yehoshua concerns whether "Chalav Poter." Rebbi Akiva follows the majority of female animals, which do not have milk unless they have given birth. Therefore, if an animal is observed to have milk, and afterwards it gives birth to a male, one may assume that this is a subsequent birth and the law of Bechor does not apply to it. Rebbi Yehoshua maintains that since there is a minority (Mi'ut) of animals that have milk even though they have not yet given birth, one must be concerned that the animal in question is of the minority. Consequently, when it gives birth to a male, that calf is assumed to be the Bechor and must be given to a Kohen.

TOSFOS (DH Chalav) cites RABEINU TAM who rules according to the view of Rebbi Yehoshua. Rabeinu Tam concludes that the Halachah is that one must be concerned for the Mi'ut whenever there is a Chazakah that supports the Mi'ut, as in the case of the Gemara here, where there is a Chazakah that the animal has not yet given birth.

Rabeinu Tam cites the Gemara in Chulin (11b) that says that where it is impossible to take into account the Mi'ut, even Rebbi Meir (who is always concerned for the Mi'ut) agrees that the Mi'ut is disregarded. The Gemara there discusses the Halachah that when one cuts the esophagus during Shechitah at a place where there was a hole, the Shechitah is not valid. If Rebbi Meir is concerned for the Mi'ut, then no Shechitah should be valid according to Rebbi Meir, because perhaps the cut was made at a point at which there was a hole! Rabeinu Tam infers from the fact that the Gemara asks only about how Rebbi Meir can eat meat, and it does not ask how we can meat, that the Halachah does not follow the view of Rebbi Meir who is concerned for a Mi'ut even when there is no Chazakah supporting it. However, when there is a Chazakah supporting the Mi'ut, he Halachah is concerned for the Mi'ut.

Tosfos points out that even though there is a Chazakah that supports the Mi'ut in the case of Shechitah (i.e., the Chazakah that until Shechitah an animal is forbidden to be eaten (since it is alive) supports the minority of Shochtim who are not expert), the Rov in that case is much stronger than an ordinary Rov. The majority (Rov) of experts present at Shechitah is very common. Since it is more powerful than an ordinary Rov, there is no need to be concerned for the minority in that case at all.

According to Rabeinu Tam, why does the Gemara in Chulin (11b) not ask its question even according to the Chachamim who disagree with Rebbi Meir? According to Rabeinu Tam, even the Chachamim agree that when a Mi'ut is supported by a Chazakah, one must take into account the Mi'ut! In the case of Shechitah, the Mi'ut (that the knife cut the esophagus at a point where there was a hole in the esophagus) is supported by the Chazakah that every animal is forbidden until Shechitah (since it is alive). Why does the Gemara not ask its question even according to the Chachamim?

ANSWER: The MAHARSHA answers that when an animal is slaughtered correctly, in accordance with the laws of Shechitah, even though there is a possibility that the cut occurred at a place in the esophagus where there was a hole the animal nevertheless does not have a Chazakah of being forbidden. This is because an animal with a hole in its esophagus is a Tereifah animal, and not a Neveilah. Therefore, when such an animal is slaughtered, the Shechitah is considered to be valid insofar as the animal does not render other objects Tamei the way a Neveilah does. It is merely a Tereifah that has been slaughtered properly and has been removed, through Shechitah, from the Chazakah of Neveilah. Since it no longer has the Chazakah of a Neveilah, there is no Chazakah to support the Mi'ut. (There is no Chazakah that it was a Tereifah, because the animal, while alive, was assumed to be a healthy animal.)

The RASHASH points out that the Maharsha's answer is not consistent with the opinion of the RAMBAM. The Rambam (Hilchos Shechitah 3:19) rules that any hole in the esophagus in a place fit for Shechitah renders the animal a Neveilah (and not merely a Tereifah; see Insights to Chulin 42:2), even while it is still alive, and Shechitah would not be effective to change its status. The PRI MEGADIM (Sifsei Da'as 33:5, DH v'Ra'isi, cited by the SHEMEN ROKE'ACH here) also asks this question on the Maharsha's explanation.

The CHOCHMAS BETZALEL to Nidah (23b, page 285) answers this question based on the words of Rava in the Gemara in Nidah. Rava states that when a baby is born with a hole in its esophagus, this is considered a birth and the mother is Tamei just as a woman is Tamei after a normal birth. RASHI there (DH Veshto) explains that Rava maintains that a Tereifah is capable of living more than twelve months, and therefore it is a viable birth. TOSFOS there (DH Amar Rava) also says that a hole in the esophagus is a Tereifah. Accordingly, the Maharsha here is justified in saying that a hole in the esophagus renders the animal a Tereifah, and not a Neveilah. (D. BLOOM)