Shabbat Parashat Mishpatim 5776

Pninat Mishpat: A Split Majority

Case: Reuven sued Shimon for 100 maneh – 50 for direct damage and 50 for expenses to protect property that survived. The opinions of the three dayanim varied. One dayan exempted Shimon. Two wanted to obligate 50 maneh – one because of the direct damage; one because of the expenses. Do we say the majority obligated 50, or do we say that, on each element, a majority exempts?

Ruling: The querying rabbi believes that there is no obligation to pay, based on the following source. The Rama (Choshen Mishpat 25:2) says that when two dayanim agree on a ruling but for different reasons, they are considered a majority. One can infer that when they disagree on the rulings regarding each claim, then even if they have the same bottom line due to the different claims, we cannot obligate payment.  

It seems to me that the obligations on different claims can be combined because they are no worse than eidut meyuchedet. Eidut meyuchedet is, for example, when one witness testifies on one loan of 500 zuz and another witness does so on a different loan of 500 zuz between the same two people. Those testimonies are grounds to determine that the borrower owes at least 500 zuz (Shulchan Aruch, CM 30:2). However, one can argue on the comparison to eidut meyuchedet. There, neither witness argues with the other, but is unaware what happened in regard to the other claim. In contrast, here, where two of the dayanim disagree with each one of the claims, perhaps we should exempt.

Yet, we can still bring a proof to our thesis. The Rama’s source is the Maharik (40), who learned from Chulin 38a, which says that a majority of opinions says that a vegetable upon which blood sprayed during shechita is not fit to become tameh, even though the two opinions disagree regarding the ruling’s rationale. One can question the Maharik’s proof, as the discussion in the gemara (ibid.) is about Rabbinic-level tumah, where leniency is easier. Thus, regarding Torah laws, it is likely that holders of a “majority opinion” need to agree on the ruling’s reason, and this indeed seems to be the Rambam’s view (see Korban Pesach 5:2, with Kesef Mishneh; Temidin 8:19 with Lechem Mishneh; the Ra’avad disagrees).

It is strange that poskim do not quote the Rambam as arguing on the Maharik. How could the Rama rule as he did without a qualifying statement that not all consider it a majority regarding matters of Torah law? It is possible that the differing opinions of live people who rule the same on a matter count as two opinions. The Rambam and Ra’avad can be arguing when the opinions are taken from written sources (admittedly, the distinction should have been mentioned).

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