Shmuel says that we don't go after rov in monetary matters. But the case of the nagchan, where the lokeach tainas I go by the rov that a majority of ox's that are purchased are for plowing. But that ain't lokeach is making is a Rov D'leis d'kman.
Am I right to make the diuk that Shmuel would hold in a rov D'Is'akaman, that we do go after rov in mamon?
Soheil Zaman, Jerusalem, Israel
The Rashbam in Bava Basra (93a, DH d'Hu Gufa Muchzak) writes that we do not follow a Ruba d'Leisa Kaman in monetary matters. Rebbi Akiva Eiger there, in Gilyon ha'Shas (printed at the back of the Gemara in the older editions but on the page of the Daf in the newer ones) writes that one can infer from the Rashbam that one does follow the Rov, even in Mamon, if it is Isa Kaman. However, Rebbi Akiva Eiger writes that from the Rashbam there (92b, DH b'Isura) it seems that one does not follow the Rov even with Ruba d'Isa Kaman. Rebbi Akiva Eiger writes that this matter requires further study.
Wishing you a healthy summer,
Dovid Bloom
I asked the Rav a while back on daf 46a that although we say ein holchin achar rob, that appears to be only for a rov d'les dkaman. How about for a rov d'isd'kaman?
Based on last point, then wouldn't you be posheting Rav Akiva Eiger's question by establishing that we do go after rov in mamon when its d'is dkaman?
And my final point . . . do you remember Rav that I asked you on daf 20a in the sugya of zeh neheneh zeh lo chaser, why is it pashut to the Gemara that in a case of zeh neheneh and zeh chaser the squatter is chayav? Who says the bal chatser could have rented out his courtyard?
Based on your answer above, we can then poshet that shaila also by saying that there is a rov d'is dkaman that would say that house would have been rented and that is sufficient to extract money from the squatter. That's not exactly the answer you gave me, but now that I went back and read it, it does seem that's like what you were saying. Would you agree Rav?
Soheil
Menachem, these are wonderful He'orot!
1) Yes, yours is a strong argument. Rebbi Akiva Eiger cites the Terumas ha'Deshen #314 who writes that we do follow a Ruba d'Isa Kaman even to make someone pay. Therefore, when he pushed down the top ox (on Bava Kama 28a) it is considerably more likely that the ox will die than if he removed the bottom ox, so we make the pusher pay.
2) The Rema (Shulchan Aruch CM 363:6, at the end) writes that nowadays the average house stands to be rented out, so we make the squatter pay. One of the sources cited for this (in the brackets in the Rema) is the Terumas ha'Deshen #317, so the Terumas ha'Deshen seems to be consistent with his Shitah that one follows Ruba d'Isa Kaman to make someone pay. The fact that nowadays most houses are rented out is a Ruba d'Isa Kaman because it does not depend on a law of nature (it is not like the Rov that most animals are not Tereifos, for example, which is a Ruba d'Leisa Kaman) but rather it is based on local practices, so it is considered Isa Kaman.
Kol Tuv,
Dovid Bloom