ZEVACHIM 72 (11 Tamuz) -ֲ in honor of the birthday of Yakira Linzer.

1) THE DEFINITION OF "KOL SHE'DARKO LIMANOS"

QUESTION: The Gemara quotes the dispute about which type of Davar sheb'Minyan is not Batel -- that which is "Kol she'Darko Limanos" or that which is "Es she'Darko Limanos." "Kol she'Darko Limanos" refers to anything that is occasionally sold according to its exact number (and thus, according to this opinion, it is considered significant and does not become annulled when mixed with a larger amount). "Es she'Darko Limanos" refers to anything that is usually sold according to its exact number (and thus, according to this opinion, it is considered significant and does not become annulled when mixed with a larger amount).

In his definition of "Kol she'Darko Limanos," RASHI writes that there are some people "who are particular about the number" of items being sold, and "they sell according to the exact number" of items. Why does Rashi mention both phrases, people who "are particular about the number" and those who "sell according to the exact 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]." Rashi's words imply that to be particular means that one never adds an extra item for free, and never sells 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 bulk sale without counting the items.

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 the principle of Bitul b'Rov in 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 disagree with this ruling. They assert that the Taz is lenient only when the status of the egg is "Kol she'Darko Limanos" -- some people are particular to sell them by the count, while others are not. The Taz means that one may rely on the view of Rebbi Yochanan, who rules that "Kol she'Darko Limanos" is Batel b'Rov. Nowadays, however, no one sells eggs without counting them, and, therefore, eggs are in the category of "Es she'Darko Limanos." Hence, 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 Limanos.'"

The TAHARAS HA'KODESH cites the SHACH HA'AROCH on the Tur (YD 110) who understands Rashi's intention the same way. He says that this additional condition (that the item is not the type for which people add an extra one for the buyer) seems to be the subject of a doubt according to Rashi. Rashi in Beitzah (3b) writes that items that are sold according to number will always have the status of "Darko Limanos." However, Rashi here in Zevachim writes that even items that are sold by number are not considered "Darko Limanos" if the seller adds an extra one for the buyer.

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 a prohibited egg that became mixed with permitted eggs would not be Batel b'Rov. (Mordechai Zvi Dicker)

72b----------------------------------------72b

2) LIKE WHICH TANA DOES THE HALACHAH FOLLOW WITH REGARD TO WHAT CONSTITUTES A "DAVAR CHASHUV"?

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"). (With regard to whether six items or seven items are not Batel, the Rambam rules like Rebbi Akiva and not like the Chachamim, because a Stam Mishnah in Terumos follows the view of Rebbi Akiva, as the CHAZON ISH in Orlah (#10) writes in the name of the Yerushalmi.)

However, many Rishonim disagree 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 disagree about the intention of Rebbi Meir, it must be that the Halachah follows his opinion, because otherwise they would not discuss his opinion. When the Amora'im deal specifically with the view of one Tana, it may be assumed that the Halachah follows that Tana, even if he argues with the majority. Why, then, does the Rambam rule like the Chachamim?

ANSWERS:

(a) The YAM SHEL SHLOMO (Chulin 7:70) implies that the Halachah does not necessarily follow the view of a certain Tana just because the Amora'im discuss his view. Only when the Amora'im disagree about very detailed points in the view of that Tana may we assume that the Halachah follows that Tana.

(b) The CHAZON ISH refutes the claim of the Beis Yosef, 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 his view.

(c) RAV YEHONASAN EIBESHITZ 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 number, 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 understanding, Rebbi Yochanan and Reish Lakish may also be arguing about the view of the Chachamim, and not just about the view of Rebbi Meir. What do the Chachamim maintain in a case in which most apples are sold by the box, but Egyptian apples 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 about the view of 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 in any amount." If the Rambam rules like the Chachamim, 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 indeed argue about what the Chachamim rule with regard to an item that is occasionally sold by count, then it must be that the Chachamim list these six items only as examples. That is, when they mention that these items "alone" are not Batel, they mean 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. (Mordechai Zvi Dicker)

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