י״ח בשבט ה׳תשע״ז (February 14, 2017)

Bava Batra 23a-b: Majority vs. Proximity

One enigmatic halakha that appears in the Torah is the law of egla arufa – the broken-necked heifer (Devarim 21:1-9). The Torah teaches that when a body is found between two cities and we cannot determine who is responsible for the person’s murder, representatives of the city that is closest come and declare that they played no direct role in the murder, closing the ceremony by breaking the neck of a calf.

Our Gemara discusses this ceremony as a segue from the discussion of the law that is mentioned in the Mishna that discusses how we determine who is the owner of a chick that is found between two dovecotes. This discussion is, itself, a segue from the previous Mishna whose focus was placement of a dovecote near a city or near his neighbor’s property.

Although the pasuk says that the elders of the city that is closest are the ones who come to participate in the egla arufa ceremony, Rabbi Ḥanina declares that the general principle when dealing with unknown ownership (or responsibility) is that rov ve-karov, holkhim aḥar ha-rov – that when the choice is between the majority and what is closest, we follow the majority. He argues that in the case of egla arufa we would only invite the elders of the closest city to participate in the ceremony if the closest city was also the city with the largest population (the rov in this case).

What if we are faced with a choice of choosing between the closest city which is smaller or the larger city which is further? The Ri”d suggests that we cannot hold the ceremony at all, since neither one fulfills the requirement. The Rambam, however, rules that we would have the elders of the larger city do the ceremony (Hilkhot Rotze’aḥ u’shemirat ha-nefesh 9:6).

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