Sunday, March 07, 2010


A dayan who says he doesn’t know is regarded as absent.

Our Mishna and Gemora explain that the decision of a beis din is determined according to the majority opinion of the dayanim. The initiator of the method of study practiced in yeshivos, HaGaon Rav Chaim Soloveichik of Brisk zt”l, offered a logical explanation as to why a majority opinion suffices to rule a decision. As stated in the first Mishna in Sanhedrin, financial or property cases are judged by a beis din of three and cases involving a death penalty require a beis din of 23. How, then, can a beis din rule a decision according to the majority opinion if the minority of dayanim objects? In such an instance, the beis din lacks the needed number of dayanim to judge the case! Moreover, we may ask an even more serious question: We have the rule that “the majority is not a determining factor in financial and property cases” so how could they ever be ruled according to a majority of dayanim? (Tosefos, Bava Kamma 27b, s.v. Ka mashma lan).

Rav Chaim then explains that the term majority has two definitions. Sometimes we follow the majority to decide a doubtful case. On the other hand, we sometimes have the definition of “the majority is like all.” A shochet, for example, must cut through certain parts in an animal for the shechitah to be kosher, but if he cuts through most of them, his shechitah is kosher as, in this case, “the majority is like all” and the minor part is also considered as “shechted.” Similarly, when the Torah says, “Decide according to the majority (of dayanim)” (Shemos 23:2), it means we should regard the minority as actually becoming part of the majority and arriving at the same decision and we then have an entire beis din – of three or 23 – with one ruling. (Chidushei HaGaon Rav Chayim al HaShas, p. 127 – see there that this applies to the verdict; the assumption that they reached a correct decision is based on the rule to follow the majority in a case of doubt.)

The concept of “the majority is like all” is constantly expressed in daily life. We must, for instance, choose myrtle branches (hadasim) with clusters of three leaves but if a hadas is mostly covered with such clusters it is kosher for the mitzvah as “the majority is like all.” By the same reasoning, sechach does not have to entirely prevent the penetration of sunlight in a sukkah: it suffices if the sechach creates more shade than sunlight. In his Kehilos Ya’akov (1:2), the Steipler Gaon, HaRav Yaakov Kanievski explains that this halachah stems from the aforesaid rule and, indeed, such a sukkah is regarded as entirely shaded by kosher sechah.

Why don’t the Jews follow the majority of the world?

We conclude with the reply of Rabbi Yehonasan Eibschitz zt”l to a priest who asked why the Jews don’t follow the majority of the world even though the Torah commands us to “decide according to the majority.” Rabbi Eibschitz explained that the command applies only in the case of a doubt. As to their faith, however, Jews have no doubts and in such matters have no reason to follow the majority.

A Rabbi Is Better Than a Doctor

A Torah scholar must not reside in a town lacking any of these ten things.

A poor Lithuanian town lacked both a rabbi and a physician and the community disagreed as to whether they should hire a rabbi or use their meager budget to employ a doctor. Rabbi Yaakov Kaminetzky zt”l heard the different opinions and ruled in favor of a rabbi since, as our sugya explains, a rabbi knows that one mustn’t live in a town without a doctor, whereas a doctor would not demand the presence of a rabbi… Indeed, Rabbi Kaminetzky obeyed this principle. Upon his appointment as the Rabbi of Tzitivan, he discovered that the town lacked a physician. He troubled to find a medical book in Russian and devoted a whole night to its study. Stories were later told about his medical expertise resulting from that night (Rabbi Yaakov, 130, 139).


Adding More Dayanim to a Beis Din

After Beis Din listens to all the claims from the litigants, and any testimony from the witnesses, they send everyone out of the room and precede to deliberate the case. If they all agree as what the halachah should be, well and good, but if they don’t then they follow the majority opinion (Choshen Mishpat 18:1).

In instances where either; a) one dayan says chayav and another says zakkai, while the third abstains from stating an opinion because he doesn’t know, or b) even if both dayanim agree what the ruling should be, but the third does not know what to rule, then two more dayanim are added. Now that there are five dayanim they deliberate once again, and if there is a majority opinion either way, then that is what the ruling would be. If however the same scenario repeats itself that there is an equally divided opinion and the fifth does not know, then an additional two are added (ibid).

It is interesting to note that if there would be a similar case as example b above, where three dayanim rule one way while the fourth disagrees and the fifth abstains, or if four dayanim rule one way and the fifth abstains, then we follow the majority opinion. Even though earlier such an instance would cause us to add more dayanim, here it is different. The difference is because in order to follow the majority opinion of a Beis Din, there obviously needs to be a Beis Din in the first place, and that can only happen when there are at least three opinions. Therefore in the case of three alone, then more dayanim need to be added in order to follow the majority, while in the instance where more were already added, then there are already three that gave an opinion, so we may follow the majority (S’ma ibid).