חולין יא

חולין יא

כְּגוֹן דְּקָיְימִי דָּרָא דְּגַבְרֵי וְאָמְרִי: כִּדְקָאֵי קָאֵי.

in a case where there is a row of standing men, from the house to be quarantined to the priest’s house, and they each say to the one standing next to him that the leprous mark remains standing unaltered.

מְנַָא הָא מִילְּתָא דַאֲמוּר רַבָּנַן: זִיל בָּתַר רוּבָּא? מְנָלַן?! דִּכְתִיב: ״אַחֲרֵי רַבִּים לְהַטֹּת״.

§ After discussing the role of presumptive status in determining halakha, the Gemara discusses the role of the majority. From where is this matter that the Sages stated: Follow the majority, derived? The Gemara is surprised at the question: From where do we derive it? Obviously, it is derived from a verse, as it is written explicitly: “After the majority to incline” (Exodus 23:2).

רוּבָּא דְּאִיתָא קַמַּן, כְּגוֹן תֵּשַׁע חֲנוּיוֹת, וְסַנְהֶדְרִין – לָא קָא מִיבַּעְיָא לַן.

The Gemara explains: With regard to a majority that is quantifiable before us, for example, in the case of a piece of meat that was found on the street before ten shops, nine shops selling kosher meat and one shop selling non-kosher meat, one follows the majority and deems that piece kosher. Or when the Sanhedrin adjudicates a case, one follows a majority of the judges in determining the ruling. In these cases, we do not raise the dilemma.

כִּי קָא מִיבַּעְיָא לַן, רוּבָּא דְּלֵיתֵיהּ קַמַּן, כְּגוֹן קָטָן וּקְטַנָּה, מְנָלַן?

When the dilemma is raised to us it is in the case of a majority that is not quantifiable before us, for example, the case of a minor boy and a minor girl. If the boy entered into levirate marriage with the girl, it is permitted for them to remain married, and there is no concern that when they grow older it will be discovered that the boy or the girl never develop sexually. Rather, one follows the majority, that minors develop sexually at puberty. It is with regard to that non-quantifiable majority that the Gemara asks: From where do we derive it?

אָמַר רַבִּי אֶלְעָזָר (סִימָן זְמַן שֶׁבַח מְכַנֵּשׁ):

Rabbi Elazar said an answer to this question. Before presenting his answer, the Gemara cites a mnemonic for the names of the Sages who address this question: Zayin, Rabbi Elazar; mem, Mar, son of Ravina; nun, Rav Naḥman bar Yitzḥak; shin, Rav Sheshet; beit, Rabba bar Rav Sheila; ḥet, Rav Aḥa bar Ya’akov; mem, Rav Mari; kaf, Rav Kahana; nun, Ravina; shin, Rav Ashi.

אָתְיָא מֵרֵישָׁא שֶׁל עוֹלָה, דְּאָמַר קְרָא: ״וְנִתַּח אוֹתָהּ לִנְתָחֶיהָ״, אוֹתָהּ לִנְתָחֶיהָ, וְלֹא נְתָחֶיהָ לִנְתָחִים, וְנֵיחוּשׁ שֶׁמָּא נִיקַּב קְרוּם שֶׁל מוֹחַ? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן זִיל בָּתַר רוּבָּא.

Rabbi Elazar’s answer was as follows: It is derived from the halakha concerning the head of a burnt offering, that one severs it from the animal’s body but does not cut it into smaller pieces, as the verse states: “And he shall flay the burnt offering and cut it into its pieces” (Leviticus 1:6), and it is inferred: The animal is cut into its pieces, but its pieces, including its head, are not cut into pieces. Rabbi Elazar suggested: And since the head is not cut and cannot be examined, let us be concerned that perhaps the brain membrane was perforated, which would render the animal a tereifa and unfit for sacrifice. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

מִמַּאי? דִּילְמָא דְּפָלֵי לֵיהּ וּבָדֵק לֵיהּ, וְאִי מִשּׁוּם ״אוֹתָהּ לִנְתָחֶיהָ״ וְלֹא נְתָחֶיהָ לִנְתָחִים – הָנֵי מִילֵּי הֵיכָא דְּחָתֵיךְ לֵיהּ לִגְמָרֵי, אֲבָל הֵיכָא דְּלַיִיף לֵית לַן בַּהּ.

The Gemara asks: From where is that conclusion drawn? Perhaps the reference is to a case where one splits the head open and examines the brain membrane. And if that could not be due to the inference: The animal is cut into its pieces, but its pieces are not cut into pieces, that statement applies in a case where one cuts the head completely in half. But in a case where the sides of the head remain joined, we have no problem with it. Therefore, no proof can be cited from here.

מָר בְּרֵיהּ דְּרָבִינָא אָמַר: אָתְיָא מִשְּׁבִירַת עֶצֶם בְּפֶסַח, דְּאָמַר רַחֲמָנָא: ״וְעֶצֶם לֹא תִשְׁבְּרוּ בוֹ״, וְנֵיחוּשׁ שֶׁמָּא נִיקַּב קְרוּם שֶׁל מוֹחַ? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Mar, son of Ravina, said: The fact that we follow a non-quantifiable majority is derived from the halakha of the breaking of a bone in the Paschal offering, as the Merciful One states: “Nor shall you break a bone thereof” (Exodus 12:46). Mar, son of Ravina, suggested: And let us be concerned that perhaps the brain membrane was perforated and the animal is a tereifa, as it is impossible to examine its brain membrane since one may not break its bones. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

מִמַּאי? דִּלְמָא דְּמַנַּח גּוּמַרְתָּא עֲלֵיהּ, וְקָלֵי לֵיהּ, וּבָדֵיק לֵיהּ, דְּתַנְיָא: הַמְחַתֵּךְ בְּגִידִים וְהַשּׂוֹרֵף בַּעֲצָמוֹת – אֵין בּוֹ מִשּׁוּם שְׁבִירַת עֶצֶם.

The Gemara asks: From where is that conclusion drawn? Perhaps the reference is to a case where one places a coal on the head and burns through the head, exposing the brain membrane, and then examines it, as it is taught in a baraita: One who cuts the sinews or burns the bones of the Paschal offering is not subject to lashes due to the prohibition of breaking bones. Therefore, no proof can be cited from here either.

רַב נַחְמָן בַּר יִצְחָק אָמַר: אָתְיָא מֵאַלְיָה, דְּאָמַר רַחֲמָנָא: ״חֶלְבּוֹ הָאַלְיָה תְּמִימָה״, וְלֵיחוּשׁ שֶׁמָּא נִפְסְקָה חוּט הַשִּׁדְרָה? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Rav Naḥman bar Yitzḥak said: It is derived from the halakha of the tail of a lamb brought as a peace offering, with regard to which the Merciful One states: “And he shall sacrifice of the peace offering…the fat tail whole, which he shall remove opposite the rump bone” (Leviticus 3:9), meaning that the tail must remain intact and may not be cut. Rav Naḥman bar Yitzḥak suggested: And let us be concerned that perhaps the segment of the spinal column in the tail was severed prior to slaughter, rendering the animal a tereifa and unfit for sacrifice. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

וְכִי תֵּימָא דְּמִתַּתַּאי פָּסֵיק לַהּ, ״לְעֻמַּת הֶעָצֶה״ אָמַר רַחֲמָנָא, מְקוֹם שֶׁהַכְּלָיוֹת יוֹעֲצוֹת.

And if you would say in rejection of that proof that one severs the tail from below the spine, in a place that would not render the animal a tereifa, the Merciful One states: “Opposite the rump bone [he’atze],” the place where the kidneys advise [yo’atzot], This is a location where severing the spinal column renders the animal a tereifa. Consequently, the proof that the majority is followed remains intact.

מִמַּאי? דִּלְמָא דְּפָתַח לַהּ וּבָדֵיק לַהּ, וְאִי מִשּׁוּם ״תְּמִימָה״ – הָנֵי מִילֵּי הֵיכָא דְּחַתְכַהּ לִגְמָרֵי, אֲבָל הֵיכָא דְּלַיִיף – לֵית לַן בַּהּ.

The Gemara asks: From where is that conclusion drawn? Perhaps the reference is to a case where one splits the tail and examines the spinal column. And if that could not be, due to the requirement that the fat tail remain “whole,” that statement applies in a case where one cuts the tail completely in half. But in a case where the sides of the tail remain joined, we have no problem with it. Therefore, no proof can be cited from here.

רַב שֵׁשֶׁת בְּרֵיהּ דְּרַב אִידִי אָמַר: אָתְיָא מֵעֶגְלָה עֲרוּפָה, דְּאָמַר רַחֲמָנָא: ״הָעֲרוּפָה״ – כְּשֶׁהִיא שְׁלֵמָה תֶּיהְוֵי, וְלֵיחוּשׁ דִּלְמָא טְרֵפָה הִיא! אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Rav Sheshet, son of Rav Idi, said: The principle of following a non-quantifiable majority is derived from the halakha of the heifer whose neck is broken when a person is found killed in an area that is between two cities and the murderer is unknown (Deuteronomy 21:1–9). As the Merciful One states: “And all the elders of that city…shall wash their hands over the heifer whose neck was broken, in the valley” (Deuteronomy 21:6), from which it is inferred: Other than its neck being broken, the heifer should remain in a state where it is whole. And if one does not follow the majority, let us be concerned that perhaps the animal is a tereifa. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

וְכִי תֵּימָא, מַאי נָפְקָא מִינַּהּ, הָא אָמְרִי דְּבֵי רַבִּי יַנַּאי: כַּפָּרָה כְּתִיב בָּהּ כְּקָדָשִׁים.

And if you would say in rejection of that proof that there is no need for an examination, as what difference is there whether it is a tereifa, since it is neither eaten nor sacrificed, didn’t they say in the school of Rabbi Yannai: A term of atonement is written in its regard (see Deuteronomy 21:8), indicating that the halakhic status of the heifer whose neck is broken is like that of sacrificial animals, and a tereifa is unfit for use in that ritual?

רַבָּה בַּר רַב שֵׁילָא אָמַר: אָתְיָא מִפָּרָה אֲדוּמָּה, דְּאָמַר רַחֲמָנָא ״וְשָׁחַט… וְשָׂרַף״, מָה שְׁחִיטָתָהּ כְּשֶׁהִיא שְׁלֵמָה, אַף שְׂרֵיפָתָהּ כְּשֶׁהִיא שְׁלֵמָה, וְלֵיחוּשׁ דִּילְמָא טְרֵפָה הִיא! אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Rabba bar Rav Sheila said: The principle of following an unquantifiable majority is derived from the halakha of the red heifer, with regard to which the Merciful One states: “And he shall slaughter…and he shall burn” (Numbers 19:3, 5), from which it is derived: Just as its slaughter is performed when it is whole, so too its burning is performed when it is whole. And if the majority is not followed, let us be concerned that perhaps the animal is a tereifa. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

וְכִי תֵּימָא, מַאי נָפְקָא מִינַּהּ? ״חַטָּאת״ קַרְיַיהּ רַחֲמָנָא.

And if you would say in rejection of that proof that there is no need for an examination, as what difference is there whether it is a tereifa, since it is neither eaten nor sacrificed, the Merciful One called it ḥatat, meaning purification, just as a sin offering is called ḥatat, indicating that in both cases a tereifa is unfit.

רַב אַחָא בַּר יַעֲקֹב אָמַר: אָתְיָא מִשָּׂעִיר הַמִּשְׁתַּלֵּחַ, דְּרַחֲמָנָא אָמַר: ״וְלָקַח אֶת שְׁנֵי הַשְּׂעִירִם״, שֶׁיְּהוּ שְׁנֵיהֶם שָׁוִים, וְלֵיחוּשׁ

Rav Aḥa bar Ya’akov said: The fact that one follows a non-quantifiable majority is derived from the halakha of the scapegoat, with regard to which the Merciful One says: “And he shall take the two goats…one lot for the Lord and one lot for Azazel” (Leviticus 16:7–8). From the fact that the verse mentions the two goats together, the Sages inferred that the two goats should be equal. But how can it be ascertained that they are equal; let us be concerned

דִּילְמָא חַד מִינַּיְיהוּ טְרֵיפָה הוּא? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

that perhaps one of the animals, the scapegoat, is a tereifa. Since it is not slaughtered, but is rather cast from a cliff while alive, there is no way to ascertain that it is not a tereifa. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals, which are not tereifot?

וְכִי תֵּימָא, מַאי נָפְקָא לַן מִינַּהּ? הָא אֵין גּוֹרָל קוֹבֵעַ לַעֲזָאזֵל אֶלָּא בְּדָבָר הָרָאוּי לַשֵּׁם. וְכִי תֵּימָא דְּבָדְקִינַן לֵיהּ, וְהָתְנַן: לֹא הָיָה מַגִּיעַ לְמַחֲצִית הֶהָר עַד שֶׁנַּעֲשֶׂה אֵבָרִים אֵבָרִים.

And if you would seek to reject that proof and say that there is no need for an examination, as what practical difference is there to us whether it is a tereifa, since it is neither eaten nor sacrificed, and the two goats are fit after the fact even if they are not equal (see Yoma 62a); doesn’t the lot determine the goat for Azazel only with regard to an item, a goat, that is fit for sacrifice to the Lord? And if you would say that we examine the goat after it is cast from the cliff and do not rely on a majority, but didn’t we learn in a mishna (Yoma 67a): The goat did not reach halfway down the mountain until it was torn limb from limb.

רַב מָרִי אָמַר: אָתְיָא מִמַּכֵּה אָבִיו וְאִמּוֹ, דְּאָמַר רַחֲמָנָא קַטְלֵיהּ, וְלֵיחוּשׁ דִּלְמָא לָאו אָבִיו הוּא? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא, וְרוֹב בְּעִילוֹת אַחַר הַבַּעַל.

Rav Mari said: The fact that one follows a non-quantifiable majority is derived from the halakha of one who strikes his father or his mother, with regard to whom the Merciful One states: Kill him (see Exodus 21:15). Rav Mari clarifies: But let us be concerned that perhaps the man that he struck is not actually his father. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority, and the majority of acts of intercourse performed by a married woman are attributable to the husband.

מִמַּאי? דִּלְמָא כְּגוֹן שֶׁהָיוּ אָבִיו וְאִמּוֹ חֲבוּשִׁים בְּבֵית הָאֲסוּרִין! אֲפִילּוּ הָכִי, אֵין אַפּוֹטְרוֹפּוֹס לַעֲרָיוֹת.

The Gemara asks: From where is that conclusion drawn? Perhaps the reference is to a case where at the time he was conceived his mother and father were incarcerated together in prison. Therefore, the fact that it was his father that he struck is based on certainty, not a majority. The Gemara answers: Even so, there is no steward [apotropos] for restraining sexual immorality, and the identity of his father is not based on certainty.

רַב כָּהֲנָא אָמַר: אָתְיָא מֵהוֹרֵג אֶת הַנֶּפֶשׁ, דְּאָמַר רַחֲמָנָא: קַטְלֵיהּ, וְלֵיחוּשׁ דִּלְמָא טְרֵפָה הֲוָה? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Rav Kahana said: It is derived from the halakha of one who kills another person, with regard to whom the Merciful One states: Kill him (see Exodus 21:12). Rav Kahana clarifies: And let us be concerned that perhaps the person that he killed was a tereifa, one who has a wound or condition that will lead to his death within twelve months. One who kills a tereifa is exempt from capital punishment because in that sense, the halakhic status of a tereifa is that of a dead person. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of people, who are not tereifot?

וְכִי תֵּימָא דְּבָדְקִינַן לֵיהּ, הָא קָא מִינַּוַּול, וְכִי תֵּימָא מִשּׁוּם אִיבּוּד נְשָׁמָה דְּהַאי – נִינַוְּולֵיהּ, וְנֵיחוּשׁ שֶׁמָּא בִּמְקוֹם סַיִיף נֶקֶב הֲוָה.

And if you would seek to reject that proof and say that we examine the corpse to determine whether he was a tereifa, wouldn’t the corpse be mutilated through that examination? And if you would say that due to concern for the possibility of an unjustified loss of life of that murderer, we will mutilate the corpse to determine whether the victim was a tereifa, it would remain necessary to rely on the majority, as let us be concerned that perhaps there was a perforation in the place that he stabbed the victim with the sword.

רָבִינָא אָמַר: אָתְיָא מֵעֵדִים זוֹמְמִין, דְּאָמַר רַחֲמָנָא: ״וַעֲשִׂיתֶם לוֹ כַּאֲשֶׁר זָמַם וְגוֹ׳״, וְלֵיחוּשׁ דִּלְמָא הָךְ דְּאַסְהִידוּ בֵּיהּ טְרֵפָה הֲוָה? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Ravina said: It is derived from the halakha of conspiring witnesses, with regard to whom the Merciful One states: “And you shall do unto him as he had conspired to do unto his brother” (Deuteronomy 19:19). If the witnesses testified falsely that a person is guilty of a capital offense, they are liable to receive the death penalty. And let us be concerned that perhaps that person against whom they testified was a tereifa, and they should not be executed for conspiring to have a tereifa executed. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of people, who are not tereifot?

וְכִי תֵּימָא דְּבָדְקִינַן לֵיהּ, וְהָתַנְיָא: בְּרַבִּי אוֹמֵר: לֹא הָרְגוּ – נֶהֱרָגִין, הָרְגוּ – אֵין נֶהֱרָגִין.

And if you would say in rejection of that proof that we examine the corpse of the executed defendant to determine whether he was a tereifa, but isn’t it taught in a baraita that a distinguished Sage [beribbi] says with regard to witnesses who conspired to have a person killed based on their testimony: If the conspiring witnesses have not yet killed the accused with their testimony, they are executed; but if they killed the accused with their testimony, they are not executed.

רַב אָשֵׁי אָמַר: אָתְיָא מִשְּׁחִיטָה עַצְמָהּ, דְּאָמַר רַחֲמָנָא: שְׁחוֹט וֶאֱכוֹל, וְלֵיחוּשׁ שֶׁמָּא בִּמְקוֹם נֶקֶב קָא שָׁחֵיט? אֶלָּא לָאו מִשּׁוּם דְּאָמְרִינַן: זִיל בָּתַר רוּבָּא.

Rav Ashi said: The principle of following a non-quantifiable majority is derived from the halakha of slaughter itself, with regard to which the Merciful One states: Slaughter the animal and eat it. And let us be concerned that perhaps he is slaughtering the animal in the place of a preexisting perforation. Rather, is the reason we are not concerned for this not due to the fact that we say: Follow the majority of animals that are not tereifot?

אָמַר רַב אָשֵׁי: אַמְרִיתָא לִשְׁמַעְתָּא קַמֵּיהּ דְּרַב כָּהֲנָא, וְאָמְרִי לָהּ רַב כָּהֲנָא קַמֵּיהּ דְּרַב שִׁימִי, וַאֲמַר לֵיהּ: וְדִלְמָא הֵיכָא דְּאֶפְשָׁר – אֶפְשָׁר, הֵיכָא דְּלָא אֶפְשָׁר – לָא אֶפְשָׁר.

Rav Ashi said: I stated this halakha before Rav Kahana, and some say that Rav Kahana stated this halakha before Rav Shimi, and the Sage before whom the halakha was stated said to the one who stated it: And perhaps where it is possible to examine the situation it is possible, and the majority is not followed; but where it is not possible to examine the situation it is not possible, and the majority is followed.

דְּאִי לָא תֵּימָא הָכִי, לְרַבִּי מֵאִיר דְּחָיֵישׁ לְמִיעוּטָא, הָכִי נָמֵי דְּלָא אָכֵיל בִּישְׂרָא? וְכִי תֵּימָא הָכִי נָמֵי,

As if you do not say so, then according to Rabbi Meir, who despite the existence of a majority takes the minority into consideration and does not follow the majority, is it indeed true that one does not eat meat due to the concern that there was a perforation in the place that he slaughtered the animal? And if you would say, indeed, according to Rabbi Meir it is prohibited to eat meat,