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Zevachim, 72

ZEVACHIM 71-72 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for the Torah and for those who study it.


QUESTION: The Gemara mentions the Machlokes regarding what type of Davar she'b'Minyan is not Batel, that which is "Kol she'Darko li'Manos" or that which is "Es she'Darko li'Manos." "Kol she'Darko li'Manos" refers to anything that is occasionally sold according to its exact number (and thus does not become annulled when mixed into a larger amount due to its importance). "Es she'Darko li'Manos" refers to anything that is *usually* sold according to its exact number.

When defining the meaning of "Kol she'Darko li'Manos," RASHI says that there are some people who are particular about the number of items being sold, and they sell according to the number of items. Why does Rashi mention both phrases -- people who "are particular about the number" and who "sell according to the number?"

ANSWER: The TOSEFES KEDUSHAH explains as follows. Rashi, at the end of his comment here, concludes that "some people [who are not particular] will add an extra animal for free, or will sell the entire herd at once [without counting how many animals it contains]." We see from here that to be particular means *never* to add an extra item for free, and never to sell the entire lot without counting how many items it contains. Accordingly, when Rashi writes that some people "are particular about the number," he means that they never add any item for free. When he writes that they "sell according to the number," he means that they do not make a group sale without counting.

Rashi's words have an important Halachic application. The PISCHEI TESHUVAH (YD 110:1), in the name of the MINCHAS YAKOV, quotes the TAZ who says that in a situation where a great monetary loss is involved, one may be lenient and apply Bitul b'Rov to a case of a prohibited egg that became mixed with a large number of Kosher eggs.

The TESHUVAH ME'AHAVAH (1:133) and the PRI MEGADIM argue with this and say that the Taz was lenient only if the status of the egg is "Kol she'Darko li'Manos" -- some people are particular to sell them by the count, while others are not. The Taz meant that we may rely on the view of Rebbi Yochanan who holds that "Kol she'Darko li'Manos" is Batel b'Rov. Nowadays, however, no one sells eggs without counting them, and, therefore, eggs are in the category of "Es she'Darko li'Manos" and, according to all opinions, they are not Batel b'Rov.

The Teshuvah me'Ahavah nevertheless concludes that according to the words of Rashi here, there remain grounds to be lenient. Although eggs are always sold according to their count, "in these countries an extra egg is given to the buyer, and therefore it has the status of something that is *not* 'Darko li'Manos.'"

The TAHARAS HA'KODESH cites the SHACH HA'ARUCH on the Tur (YD 110) who understands Rashi's intention the same way. He says that this additional condition (of being an item which people do not add an extra one for the buyer) seems to be the subject of a doubt in Rashi. Rashi in Beitzah (3b) writes that items that are sold according to number will always have the status of "Darko li'Manos." However, Rashi here in Zevachim writes that even items that are sold by number are not considered "Darko li'Manos" if the sellers add an extra one for the buyer. Therefore, "eggs are Ein Darko li'Manos, because it is a common, daily occurrence hat a seller adds an extra egg in our times."

This Halachic application would be relevant today in places where eggs are not sold by the dozen (such as in egg-cartons that contain exactly twelve eggs). In most places, however, eggs are sold by the number, and thus an prohibited egg that became mixed with permitted eggs would not be Batel b'Rov. (M. Dicker)


QUESTION: The Gemara cites several opinions among the Tana'im regarding what type of prohibited item does not become Batel in a mixture because of its importance. According to Rebbi Yochanan, there are four opinions: Rebbi Meir maintains that an item that is always sold by count is not Batel. The Chachamim maintain that only six specific items do not become Batel. Rebbi Akiva adds a seventh item. Rebbi Yehudah (73a), explaining the view of Rebbi Yehoshua, maintains that any item that is sometimes counted is not Batel. Rebbi Yochanan understands that according to Rebbi Meir, an item must *always* be sold by count in order to be considered important; if the item is only occasionally sold by count, then it is not considered important and is Batel b'Rov. Reish Lakish argues and says that both Rebbi Meir and Rebbi Yehudah maintain that an item that is *sometimes* sold by count is not Batel.

The RAMBAM (Hilchos Ma'achalos Asuros 16:3) rules like the Chachamim, in accordance with the principle that we follow the view of the majority opinion ("Yachid v'Rabim, Halachah k'Rabim"). (Regarding whether six items or seven items are not Batel, the Rambam rules like Rebbi Akiva and not like the Chachamim, because there is a Stam Mishnah in Terumos that follows the view of Rebbi Akiva, as the CHAZON ISH in Orlah #10 writes in the name of the Yerushalmi.)

However, many Rishonim argue with the Rambam's ruling. The TUR (YD 110) quotes the RI who rules like Rebbi Meir, according to Rebbi Yochanan's interpretation of Rebbi Meir's view. Why, though, does he not rule like the majority, like the Chachamim? The BEIS YOSEF answers that since Rebbi Yochanan and Reish Lakish argue over the intention of Rebbi Meir, we see that the Halachah must follow his opinion, for, otherwise, they would not discuss his opinion. When we see that the Amora'im deal specifically with the view of one Tana, we may assume that the Halachah follows that Tana, even he argues with the majority. Why, then, does the Rambam rule like the Chachamim?


(a) The YAM SHEL SHLOMO (Chulin 7:70) seems to understand that just because the Amora'im discuss the view of a certain Tana, that does not necessarily mean that the Halachah follows the view of that Tana. Only when the Amora'im argue about very detailed points in the view of that Tana may we then assume that the Halachah follows that Tana.

(b) The CHAZON ISH refutes the claim of the Beis Yosef who says that the Gemara records the discussion of Rebbi Yochanan and Reish Lakish in order to show that the Halachah follows the view of Rebbi Meir. Rebbi Yochanan and Reish Lakish are not discussing the view of Rebbi Meir because they maintain that the Halachah follows his view, but rather because they want to ascertain whether or not the Mishnah can be understood in accordance with the view of Rebbi Meir.

(c) RAV YEHONASAN EIBSHITZ in MATEH YEHONASAN (YD 110) explains the Rambam as follows. Even the Chachamim agree that an item of importance is not Batel. However, they maintain that the fact that an item is sold by count is not evidence of its importance, because perhaps it is simply more convenient to sell it that way. However, when most items in a certain category, such as nuts, are sold in sacks, while a specific item in that category, such as Egozei Perach, are sold by the number, then that shows that the specific item is a Davar Chashuv. This is the case with all of the specific items that the Chachamim enumerate.

According to this, Rebbi Yochanan and Reish Lakish can also be arguing about the view of the Chachamim, and not just the view of Rebbi Meir. What will the Chachamim hold in a case in which most apples are sold by the box, but apples from Egypt are sold *occasionally* by the number? Rebbi Yochanan will say that a prohibited apple in a mixture is Batel, while Reish Lakish will say that it is not Batel. Since Rebbi Yochanan and Reish Lakish argue according to the Chachamim as well, there is no proof that they rule like Rebbi Meir.

This approach answers another difficult point in the Rambam. The Rambam adds (16:9), "It appears to me that any item that is considered important by the residents of a certain place... prohibits a mixture with in any amount." If the Rambam rules like the Chachamim, though, how can he say that this Halachah applies to all items that are considered important in a given place? The Chachamim specifically state that these six items (in their list) "*alone*" are not Batel!

The answer might be that if Rebbi Yochanan and Reish Lakish are arguing about what the Chachamim hold with regard to an item that is occasionally sold by count, then it must be that the Chachamim listed these six items only as examples. That is, when they mention that these items "alone" are not Batel, they meant that of all of the different species of nuts, for example, *only* Egozei Perach are sold by count and are not Batel. There may be, however, other categories of items which contain a specific species which is Chashuv and is not Batel. (M. Dicker)

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