- Sections
- P'ninat Mishpat
A Split Majority
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?
(based on Shut Noda B’Yehuda II, Choshen Mishpat 2 – by the Noda B’Yehuda’s son Shmuel)
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 zuzbetween 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).
The Rama must have understood that the Rambam agrees that regarding monetary matters, the different opinions count because of the comparison to eidut meyuchedet (some questions of whether something is permitted or forbidden are like monetary matters; others are not). In this case, where the dayanim sit together in judgment on a monetary matter, their opinions can be combined. If they adjudicated on the two matters separately, each would have ended with an exemption. However, since, in this case, the two claims emanate from one situation, they can be adjudicated together, and Shimon should pay 50maneh.
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.

P'ninat Mishpat (658)
Various Rabbis
381 - Counting to Four Generations
382 - A Split Majority
383 - When Is The Debtor Rich Enough to Pay?
Load More
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).
The Rama must have understood that the Rambam agrees that regarding monetary matters, the different opinions count because of the comparison to eidut meyuchedet (some questions of whether something is permitted or forbidden are like monetary matters; others are not). In this case, where the dayanim sit together in judgment on a monetary matter, their opinions can be combined. If they adjudicated on the two matters separately, each would have ended with an exemption. However, since, in this case, the two claims emanate from one situation, they can be adjudicated together, and Shimon should pay 50maneh.

Financial Security for a Partner/Worker?
based on ruling 72092 of the Eretz Hemdah-Gazit Rabbinical Courts
Beit Din Eretz Hemda - Gazit | Adar II 19 5782

Overpricing as a Reason to Nullify a Sale
Various Rabbis | 5769

Aftermath of a Complex Partnership – part I
based on ruling 76096 of the Eretz Hemdah-Gazit Rabbinical Courts
Beit Din Eretz Hemda - Gazit | Iyar 8 5782

A Student Who Broke a Camera
Various Rabbis | Tevet 5768

Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.

Historical View of Rav Mordechai Yaakov Breish (Chelkat Yaakov)
5775

Returning Tuition When a Student Was Expelled – part I
Shvat 5773

Presence of Hashem in the Mind of a Sinner
5773

Under What Circumstances Can One Bless?
5771
A Woman's Obligation to Pray
Rabbi Eliezer Melamed | 5766
The Laws of Torah Study
part 1
Rabbi Eliezer Melamed | 5761

Daf Yomi- Yevamot 87
Rabbi Ephraim Schreibman | Tevet 8 5775

Practices of the Tochacha
Rabbi Yirmiyohu Kaganoff | Elul 16 5776

How Large Is The Kotel?
Rabbi Stewart Weiss | Iyar 24 5782

Dreams Of The Kotel
Rabbi Stewart Weiss | Iyar 24 5782
