1) AN ANIMAL THAT BECAME LOST IN A CROWD
QUESTION: The Mishnah states that "a murderer who became mixed with others" exempts everyone in the crowd from punishment. Rebbi Yehudah argues and says that all of the people are placed into a "Kipah" (see previous Insight). The Gemara inquires as to the identity of the other people in the crowd. The Mishnah certainly does not refer to a group of innocent people, for in such a case it would be obvious that, according to the Rabanan, they are exempt from punishment. Similarly, according to Rebbi Yehudah, it is obvious that innocent people would not be placed in a Kipah and caused to suffer a terrible death.
Reish Lakish answers that the Mishnah is not discussing a human murderer. Rather, it is discussing an ox that killed (which must be put to death) and became mixed with other oxen that killed and that are awaiting their execution through Sekilah. When an ox that has not yet been found guilty becomes mixed up with other oxen awaiting Sekilah, the Rabanan rule that all of the oxen are exempt from punishment out of doubt. Rebbi Yehudah maintains that all of the oxen must be placed into a Kipah. The Rabanan's logic is that since the procedure of the trial and judgment of an ox that killed must be similar to that of a human who killed, the ox must be identifiable at the time of the sentencing. If it is not identifiable, it cannot be sentenced. Rebbi Yehudah argues and says that although Beis Din cannot execute all of the oxen, since it is known that they are all killer-oxen they are all placed in a Kipah to die.
TOSFOS quotes RABEINU YITZCHAK BAR MORDECHAI who questions Reish Lakish's explanation of the Mishnah from a Mishnah in Zevachim (70b). The Mishnah there discusses the law in a case in which an ox that was sentenced to death became mixed with a group of animals that were set aside as Korbanos. The Mishnah states that they all must die. According to Reish Lakish, how can that ruling be reconciled with the view of the Rabanan in the Mishnah here, who state that even when all of the oxen in the group are killers, they are left to live and are not put to death?
(a) RABEINU YITZCHAK answers that there is a Girsa in old manuscripts in which the Gemara states that the case of the Mishnah is when an ox that was not yet sentenced to death became mixed with a group of tame, innocent oxen that never gored. Since it cannot be proven which ox is the killer, they are all left to live. Rabeinu Yitzchak asserts that this must be the proper Girsa of the Gemara. The Mishnah in Zevachim, in contrast, discusses a case of a killer-ox which has been sentenced to death and thus cannot be offered as a Korban. In that case, therefore, out of doubt the whole group of oxen must die.
The MARGOLIYOS HA'YAM points out that according to this explanation, it is difficult to understand Rebbi Yehudah's opinion that all of the oxen should be left to die naturally. If none of these oxen are forbidden from being slaughtered and eaten, then why should the owners not be allowed to slaughter them and use their meat instead of having to leave them all to die by themselves?
(b) RABEINU TAM argues that the text as it appears in the Gemara is correct. This is evident from the fact that the Mishnah states that they are "all exempt." These words imply that there is a reason to kill them, but they are exempt from death. Moreover, Reish Lakish says that the case does not involve a human murderer (in contrast to the way Rebbi Avahu explains the Mishnah), but an animal that killed. This implies that Reish Lakish's explanation is similar to that of Rebbi Avahu, and the only difference is that Reish Lakish replaces all of the people in the case of the Mishnah with oxen. Since Rebbi Avahu's explanation is that all of the people in the case are murderers, it must be that in Reish Lakish's explanation, all of the oxen are murderers. If a killer-ox (that was not sentenced) became mixed with innocent oxen, then the law would be that they are all permitted based on Rov (once they have separated from each other and are no longer in the group; see Zevachim 73b).
How, though, does Rabeinu Tam answer the question from the Mishnah in Zevachim? He explains that the case of the Mishnah there is an exception, as the Gemara there (73b) discusses. The Gemara there states that there really should be no problem with taking animals from that group and offering them as Korbanos. This is because of the rule that any animal taken from the group would have the status of the majority of animals in the mixture (which are valid for being offered as Korbanos). Rava explains that the reason they must die is a decree to eliminate the possibility of all (or most) of them being brought as Korbanos at the same time, which would take away the leniency of Rov.
Rabeinu Tam adds that the Gemara here sheds light on the Gemara in Avodah Zarah (74a). The Gemara there states that any mixture involving an ox which must be punished with Sekilah ("Shor ha'Niskal") is forbidden. How is this stringency to be understood in light of the leniency of Rov mentioned above? Rabeinu Tam explains that it is obvious that the meaning of "Shor ha'Niskal" is an ox that has been stoned, and not an ox that is destined to be stoned. Therefore, in the case of the Gemara here and in the case in Zevachim (if not for the Gezeirah), mixtures involving such animals are permitted.
The ARUCH LA'NER points out that the logic of Rabeinu Tam's explanation clarifies another issue. The Gemara in Bava Kama (29b) lists two things which are not actually in a person's possession but which the Torah considers to be in his possession. They are a pit that a person digs in the public domain (which is considered to be in his possession in that he must pay for damages that the pit causes), and Chametz after the sixth hour on Erev Pesach (which is Asur b'Hana'ah, and thus not technicality in his possession, but yet the person transgresses the prohibition against owning Chametz). The SHITAH MEKUBETZES asks why the Gemara does not include a Shor ha'Niskal, a killer-ox, in this list, since a Shor ha'Niskal is also Asur b'Hana'ah. According to Rabeinu Tam, the omission of Shor ha'Niskal from the list is understandable. While the ox is alive it is not Asur b'Hana'ah. Since it is Asur b'Hana'ah as a Shor ha'Niskal only after it is dead, there is no relevance in knowing that it is considered in his possession even though it is not really in his possession.
(c) The ME'IRI reconciles Reish Lakish's explanation of the Mishnah with the Mishnah in Zevachim in a different manner. He quotes a view that says that the Mishnah there does not really mean that all of the animals must be left to die. Rather, it means that they are forbidden for anyone to derive benefit from them, and thus they are considered as if they are dead.
The Me'iri questions this view. If no benefit may be derived from the animals, then what difference does it make if they are dead or alive? They are as good as dead, and thus the Mishnah there still contradicts Reish Lakish's explanation of the Mishnah here.
The Me'iri explains that perhaps the advantage of the animals being alive is that they may be used to mate with other animals that are not in the category of Isurei Hana'ah. Since the Halachah is that the offspring of two animals has the Halachic status of the "better" parent (due to the general principle of "Zeh v'Zeh Gorem, Mutar"), these animals may be used for mating. (Y. MONTROSE)
2) APPLYING THE PRINCIPLE OF "ROV" IN CASES OF CAPITAL PUNISHMENT
QUESTION: The Mishnah (79b) records two opinions in a case in which one group of people -- who were sentenced to be killed with Sekilah -- became mixed with a larger group of people who were sentenced to be killed with Sereifah (see Rashi on the Mishnah). Rebbi Shimon rules that the entire combined group receives Sekilah, because he maintains that Sereifah is a more severe form of death (and out of doubt Beis Din may not give the more severe form of death to those who might not be deserving of it). The Rabanan argue and say that the entire group receives Sereifah, because they maintain that Sekilah is more severe than Sereifah.
TOSFOS quotes RABEINU YITZCHAK who asked RABEINU TAM the following question. The Gemara in Chulin (11a) states that the principle of Rov applies even in cases of Dinei Nefashos, capital punishment. Why, then, does Rebbi Shimon not follow the Rov and give everyone in the group Sereifah, since a majority of the people in the combined group were sentenced to Sereifah?
(a) RABEINU TAM answers that when the Gemara in Chulin says that Rov applies in cases of Dinei Nefashos, it refers only to cases in which it is known that one person killed another person, but there is an external factor that creates a doubt as to whether the killer is Chayav Misah. For example, the state of health of the victim at the time he was killed is not known. The principle of Rov may be used to determine that the victim was not a Tereifah (deathly ill; if he was a Tereifah when he was killed, the killer would not be Chayav Misah), since most people are not deathly ill. Beis Din is able to convict a killer for the murder of a healthy person even though Beis Din does not have absolute proof that the victim was healthy.
In contrast, if a person did not do an act that warrants a more severe death penalty, Beis Din cannot give him the more severe penalty simply because of Rov.
Rabeinu Tam's answer is difficult to understand. If the rule of Rov applies to Dinei Nefashos, then why may Rov not be used to determine that this person is one who was prosecuted for an Aveirah which warrants the more severe punishment of Sereifah?
The SHEV SHEMAITSA (4:8) answers this question based on a principle which he proposes to establish guidelines for when the principle of Rov applies in cases of Dinei Mamonos and in cases of Dinei Nefashos.
In the Gemara in Bava Kama (27b), Shmuel states that Rov does not apply in cases of Dinei Mamonos, monetary matters. Why does Rov not apply to resolve doubts in monetary matters? If the Torah teaches that Rov applies to all questions of Isur, and even to questions of Dinei Nefashos (Chulin 11a, Sanhedrin 69a), why should Rov not apply to Dinei Mamonos? (TOSFOS there, DH Ka Mashma Lan, and TOSFOS to Sanhedrin 3b, DH Dinei Mamonos)
TOSFOS in Bava Kama answers that in cases of monetary matters, a Chezkas Mamon (the Chazakah that the person who is presently in possession of the money is presumed to be the rightful owner) cancels the Rov of the person trying to take the money.
The Shev Shemaitsa asks in the name of his brother, why is the same logic not applied to Dinei Nefashos? After all, the person who is being judged has a Chezkas ha'Guf that he is alive and thus deserves to remain in that state. That Chazakah counters the Rov that says that he is Chayav Misah. The Shev Shemaitsa answers that the principle of Rov applies equally in Dinei Mamonos and in Dinei Nefashos. In both types of cases, the Rov is used to determine what happened, but it cannot be used when it does not clarify the circumstances of what happened. For example, when Beis Din is unsure about whether or not the victim was a Tereifah or not, the Rov determine that he was not a Tereifah. Once the Rov applies, the victim is considered to have been healthy without a doubt. This is based on the principle expressed by the RAMBAM (Hilchos Edus) that although a single witness cannot obligate a person to receive Malkus, once a single witness determines that an object is forbidden as Chelev Beis Din may give Malkus to a person who then eats the object, because it has already been determined that the object is Chelev. It is not considered as though the single witness is obligating the person to receive Malkus, but rather the witness merely determined what the object is. Once it is known that the object is Chelev, there no longer is any doubt about its identity, and thus a person who later eats it will be Chayav Malkus.
The Shev Shemaitsa applies this reasoning to Rov as well. Once Rov has determined that the victim was a healthy person, it is no longer the Rov that makes the murderer Chayav Misah, but it is the known fact that the victim was healthy that causes the murderer to be Chayav Misah. The Shev Shemaitsa says that such a Rov would apply in cases of Dinei Mamonos as well. For example, if an ox gores a person and kills him, Beis Din does not exempt the ox from death for the reason that the victim might have been a Tereifah. Rather, it was already determined that the person was healthy because of the Rov, and thus the ox killed a healthy person. Since the Rov determines the status of the person before he was killed, it is not the Rov that is pronouncing the verdict on the ox.
The case of Dinei Mamonos in which Rov does not apply is when a person purchased an ox and there is a doubt about whether he purchased it for the sake of plowing with it or for the purpose of slaughtering it and eating its meat. Although most people buy oxen for plowing, this Rov cannot determine any pre-existing circumstances, since even if a person purchased an ox for plowing yesterday, he might purchase one for slaughter today. In such a case, Rov cannot obligate a person to pay in a monetary case (according to Shmuel).
This is what Tosfos means as well. In the case of the Gemara here, Beis Din wants to use the Rov to pronounce upon a person a Chiyuv of Sereifah, because most of the people in the mixed group are Chayav Sereifah. Rov cannot be applied in Dinei Nefashos in such a manner; it can be applied only prior to the Halachic ruling, to determine the physical circumstances of what happened.
Tosfos questions Rabeinu Tam's explanation from the Gemara. Rav Yechezkel taught that the case of the Mishnah is when a group of people who were Chayav Sereifah became mixed with a larger group of people who were Chayav Sekilah. His son, Rav Yehudah, questioned this way of reading the Mishnah: why should Rebbi Shimon explain that the combined group receives Sekilah because Sereifah is more severe? He should say simply that since a majority of the people in the group were sentenced to Sekilah, that is the punishment that they all receive, based on Rov! Rav Yehudah therefore explains that the case is that the larger group was Chayav Sereifah (as our text of the Mishnah reads). If Rabeinu Tam's answer is correct, then why does the Gemara say that the principle of Rov should play a part in determining the death of people who never killed (i.e. the group that was Chayav Sereifah)?
Tosfos answers as follows. According to Rav Yechezkel, why should Rebbi Shimon discuss a case in which most of the people in the mixed crowd were liable for the more lenient form of death? There is no point in choosing such a case to discuss, since the fact that most of the people were liable for a more lenient form of death does not make the Halachah a greater Chidush. If that is the case of the Mishnah, then the Mishnah is not teaching anything new. The Gemara concludes that it must be that the case of Rebbi Shimon is one in which most people in the crowd were Chayav Sereifah, the more severe form of death. Rebbi Shimon is teaching a Chidush when he says that even though most people in the crowd were liable for the more severe form of death, Beis Din does not make the people in the crowd move and leave their place of Kevi'us in order to enable the principle of Rov to apply. Rather, Beis Din lets them stay there, and Beis Din applies the rule of "Kol Kavu'a k'Mechezteh Al Mechetzeh Dami." Consequently, out of doubt ("Safek Nefashos l'Hakel"), they receive the more lenient punishment (Sekilah, according to Rebbi Shimon). ("Lo Gara" in Tosfos means that Rov does not make the case a greater Chidush; it does not give any more reason to execute the people with Sekilah.) (M. KORNFELD)
(b) TOSFOS in Chulin (11b) gives a different answer to this question. Tosfos there quotes Rabeinu Tam as saying that Beis Din simply does not apply Rov in a case that involves two different forms of death penalty. The ARUCH LA'NER explains the intent of Tosfos as follows. He cites the RAN in Nedarim who says that something which will eventually become permitted ("Davar she'Yesh Lo Matirin") does not assume the status of the majority in a mixture. Similarly, when two things are forbidden and they become mixed up, the mixture does not assume the identity of the larger quantity that is in the mixture, because both things are forbidden and there is no need for the mixture to assume one identity over the other. Only where there is a mixture of a permitted item and a forbidden item must the mixture assume one identity (and Rov determines that identity). Similarly, the case of the Mishnah involves one group of people who were sentenced to a lenient form of death, and one group of people who were sentenced to a severe form of death. This is similar to a case of two forbidden items that became mixed with each other, where one group does not assume the identity of the other. This is what Rabeinu Tam means when he states that Rov does not apply in a case that involves a mixture of people sentenced to different types of death.
The MARGOLIYOS HA'YAM points out that the Aruch la'Ner's approach answers a strong question on the words of Tosfos. RAV TZVI HALBERSTAT questioned Tosfos' assertion that Beis Din does not invoke the principle of Rov when it chooses what form of death to give a person. It is known that the daughter of a Kohen who is promiscuous receives a unique death penalty. Unlike other adulterous women, the Bas Kohen is killed with Sereifah. Rav Tzvi Halberstat asked that this is based on a Rov: it is only due to a Rov that Beis Din knows that this woman is the daughter of a Kohen -- the Rov that most claims of fatherhood are accurate! According to Rabeinu Tam, how can a Bas Kohen be punished with Sereifah based on a Rov, when Rabeinu Tam maintains that Beis Din may not choose a form of death based on a Rov?
According to the Aruch la'Ner, this question is no question at all. Rabeinu Tam discusses only a case of two groups of people mixed together when he says that Beis Din does not let one group's status override the other group's status based on a Rov. However, in a case which involves a single entity (a Bas Kohen), where Beis Din must determine the penalty that she receives, Rabeinu Tam agrees that Beis Din may apply a Rov to determine the appropriate penalty. (Y. MONTROSE)