Parshas Mishpatim: Acharei Rabim L'Hatos

This weeks shiur was on the sugya of Rov, specifically the sugya of bittul b’rov. There are actually several types of Rov that exist. The Chinuch and the Rambam both explain the mitzvah of “acharei rabiml’hatos” as referring to how a beis din determines a psak. In other words, when a case comes before a beis din, the majority opinion wins. However, there other cases of Rov which the rishonim understand is also a din d’oreisa. For example, there is ruba d’leisa kaman which is a type of statistical majority. One example of this is the klal that “rov b’heimos k’sheirin”, most animals are kosher and are not a traifa. Therefore, we generally do not have to check an animal that is shechted to see if it is treif since most animals are kosher. The exception is the lungs where there is a miut hamatzoi of animals that have treif lungs so we check the lungs. The other type of Rov is “ruba d’isa kaman”. Two examples of this is the classic case of finding meat in front of ten stores, 9 kosher and 1 treif. We follow the majority and say the meat came from the kosher store. The second example is bittul b’rov where 1 treif piece of meat is mixed with 2 kosher pieces. We follow the majority and say you can eat each piece, since the majority of pieces are kosher.

The question is, how do we derive these other cases of Rov from the posuk of “acharei rabim l’hatos” which is referring to beis din. The Sha’ar Yosher in Sha’ar 3 explains that there are two types of cases that beis din can judge on. There is one type of case where all you need beis din for is to clarify the facts. For example, in a dinei mamonos case whether Reuvein owes or does not owe money to Shimon exists without beis din’s psak. Beis din is just there to clarify the halacha. However, there are cases like dinei nefashos or kinasos, where you need a psak din to create the chiyuv. In this second case, the psak din cannot be created unless all the dayanim pasken unanimously. When 20 say chayav and 3 say patur, it is considered unanimous because we view the minority opinion as either not being there or having their vote changed to agree with the majority.

The Sha’ar Yosher explains that from the first case where the majority of beis din is just clarifying the halacha we learn the klal of kol d’parish m’ruba parish. There the rov is just clarifying for us how to act. The second case where beis din creates a psak and the minority opinion turns into the majority, teaches us the din of bittul b’rov that he minority is battul to the majority.

Regarding bittul b’rov, there is a machlokes between the Rosh and Rashba how it works. The Rosh learns that the issur is nehepach l’hetter, it turns into hetter. The Rashba holds there is no nehepach but rather we say that each piece I eat is from the rov and is muttar. The main nafka mina is whether one can eat all three pieces at the same time. The Rosh says you would be allowed to since the issur turns into hetter. The Rashba says you can’t because by eating all 3 at one time you are definitely eating issur.

The truth is that most achronim learn the Rashba really agrees with the Rosh that issur nehepach l’hetter and his shitta is only a chumrah m’d’rabanan. The Pri Migadim in the pesicha l’hilchos ta’aroves as well as the Sha’ar Yosher bring a rayah from lach b’lach. The Rashba says that if min b’mino is mixed lach b’lach then you need 60 times the issur as a chumrah d’rabanan, gezeirah min b’sheino mino. If the Rashba really holds that there is no nehepach, so how is lach b’lach any different then eating all the pieces of a ta’aroves yaveish b’yaveish at the same time. If yaveish b’yaveish is assur m’d’oreisa bvas achas, so too lach b’lach should be assur m’d’oreisa. So from here you see that the Rashba really holds of nehepach, but as a chumrah you can’t eat all 3 pieces together.

Rav Soloveitchik in Shiurei HaRav on Ta’aroves brings another rayah. According to the Rashba if you eat the all the pieces at once you should be chayav a chatas. Also, even if one person eats all the pieces one at a time you should be chayav. From the fact you are not chayav a chatas we see it is only a chumrah d’rabanan.

There is a Tosafos Rid who holds if one person eats all the pieces one at a time you are chayav a chatas. This Tosafos rid must hold there is no din of nehepach. Also, the GR”A understands the Rashba as a d’oreisa. When the Mechabeir brings this halacha in Siman 109 and paskens like the Rashba the GR”A writes that the reason is because we go after Rov and we say each piece I eat is from the majority. If the Rashba really held of nehepach the GR”A should have mentioned that sevara as well.
According to the GR”A and Tosafos Rid, how do you answer the question from lach b’lach? Perhaps you can answer based on a Ra Elchanan in Kovetz He’oros. Rav Elchanan writes that according to Tosafos in Yevamos there is a difference in the bittul of yaveish b’yaveish and lach b’lach. By yaveish b’yaveish, the misbateil isn’t transformed into the item doing the bittul. Its just halachically it has a din heter. By lach b’lach it becomes part of the item doing the bittul. Therefore, lach b’lach has a kula that a real nehepach takes place even in metzius and you would then be able to eat them all together. However, by yaveish it’s a nehepach al pi din but not in metzius. According to the Tosafos Rid, the bittul b’rov by yaveish b’yaveish is that we say each one I eat is the hetter, while by lach b’lach it is a real nehepach and you only need shishim m’d’rabanan