1) "KOL KAVU'A K'MECHETZEH AL MECHETZEH DAMI"
QUESTION: The Gemara discusses a number of important principles with regard to mixtures of permitted and forbidden items. Two of these principles are "Kol d'Parish, me'Ruba Parish," and "Kol Kavu'a k'Mechetzeh Al Mechetzeh Dami."
The rule of "Kol d'Parish, me'Ruba Parish" teaches that when there is a doubt about the source of a certain item (such as from where it came or to which group it belongs), the item is assumed to have come from the majority group. This rule differs slightly from the general rule of "Bitul b'Rov." Although both rules are derived from the verse, "Acharei Rabim l'Hatos" (Shemos 23:2), the rule of "Bitul b'Rov" teaches that the Isur becomes Batel in a majority of Heter, such that the Isur is entirely annulled (see following Insight). "Kol d'Parish," in contrast, teaches that when one item became separated from the rest, one may assume that the item in doubt came from the group of permitted items, and the prohibited item is still in its original place. For example, if a piece of meat is found lying on the street (or in the hands of a Nochri in the street), and most of the meat in the town is Kosher, one may safely assume that the meat in doubt is Kosher, while the prohibited meat is still in its place of origin (the non-Kosher shop).
(That there is a difference between "Bitul b'Rov" and "Kol d'Parish, me'Ruba Parish" is evident from the fact that the Gemara earlier (71a) asks that the prohibited animal should be Batel b'Rov when it becomes mixed with the permitted animals. The Gemara answers that it is not Batel, either because objects sold by count are not Batel (Reish Lakish), or because living animals are not Batel (Rav Ashi). However, the Gemara later (73b; see following Insight) asks that the animals in the herd should be spread apart from each other, and then one at a time should be taken out, so that each one will become permitted based on "Kol d'Parish, me'Ruba Parish." If this rule is the same as that of Bitul b'Rov, then what is the Gemara's question? The Gemara earlier teaches that Bitul b'Rov does not apply to a living animal! The answer is that "Kol d'Parish" differs from Bitul b'Rov in that it teaches not that the item of Isur becomes Batel, but that the item in question becomes an item of Heter, and that the item of Isur was left behind in its original place.)
The rule of "Kol Kavu'a k'Mechetzeh Al Mechetzeh Dami" applies when the status of the item is in doubt while it is still "in its place" ("Kavu'a"; that is, it was not separated from the other items of its kind). In a case of "Kavu'a," the Torah teaches that we do not follow the majority. Instead, we remain in doubt as to the status of the item. For example, if a person buys meat and then forgets whether he bought it at a Kosher store or at a non-Kosher store, we cannot assume that the meat is Kosher just because most of the stores in the town are Kosher, since we are questioning its status while it is still in its proper place (the store) before it was separated from the other pieces of meat in the store. Accordingly, if a person eats a piece of meat in such a situation, he is considered to have eaten a Safek Isur and may be obligated to bring a Korban Asham Taluy.
The rule of "Kol Kavu'a" is a Gezeiras ha'Kasuv, derived from a case in which a Jew throws a rock into a crowd of people comprised of nine Jews and one Nochri, intending to kill one of them. The Torah teaches that in such a case, the perpetrator is considered as though he did not know whom he was killing (and is exempt from punishment), even though most of the people in the crowd were Jews. This is because the item in doubt (i.e. whom he intended to kill) is in its place of origin at the time of the doubt.
RAV ELCHANAN WASSERMAN (in KOVETZ BI'URIM on SHEV SHEMAITSA #41) asks that in the case of a piece of meat that separated from nine other pieces of meat ("Kol d'Parish"), how can we assume that this piece came from the majority? Even in such a case, the rule of "Kavu'a" should dictate that there will be no Bitul! Since the other nine pieces are left in their original location, they are all in question because of "Kol Kavu'a, k'Mechetzeh Al Mechetzeh Dami." It should be as if there is no Rov of permitted pieces among the nine! Consequently, the piece of meat that became separated from the others should be viewed as having come from nine questionable pieces, and not from a Rov of permitted pieces!
ANSWER: RAV ELCHANAN WASSERMAN Hy'd quotes RAV MOSHE SOLOVEITCHIK who answers that the principle of "Kol Kavu'a k'Mechetzeh Al Mechetzeh Dami" does not mean that there is no Halachic Rov in the original location of the items. Rather, there is a Rov, but we do not follow the Rov to resolve the doubt; the Torah does not apply its rule of "Acharei Rabim l'Hatos" in such a case. Thus, it is considered as though there are an equal number of permitted items as prohibited items ("k'Mechetzeh Al Mechetzeh"). In contrast, with regard to the item which was removed and is not in its place of origin, we may rely on the Rov; in such a case, the verse of "Acharei Rabim l'Hatos" teaches that the item in question fell from the Rov and thus is permitted. (Mordechai Zvi Dicker)
2) PERMITTING THE ANIMALS BY MAKING THEM SPREAD APART
QUESTION: The Mishnah (70b-71a) teaches that when an animal that may not be offered as a Korban becomes mixed with other animals that are designated as Korbanos, the prohibited animal does not become Batel in the majority (Rov) of permitted animals. The Gemara (73a) says that taking one animal at a time from the herd does not permit it based on the principle of "Kol d'Parish, me'Ruba Parish," because taking one animal from the herd constitutes taking it from its place of origin where the doubt arose ("Kavu'a"), and thus the principle of "Kol Kavu'a k'Mechetzeh Al Mechetzeh Dami" applies and prohibits it. The Gemara here (73b) suggests that the animals should be spread apart from each other, thereby leaving their place of origin and enabling one animal to be taken at a time, so that it becomes permitted to be offered as a Korban based on "Kol d'Parish, me'Ruba Parish."
Rava answers that the animals may not be permitted with this method, because there is a concern that a number of Kohanim will take a majority of the animals that were in the herd, slaughter them, and then offer their blood and Eimurim at the same time. Consequently, a Rov of the animals that were in doubt will be offered at the same time, in which case it is assumed that the prohibited animal is in the Rov that is being offered.
The Gemara rejects this answer. How can it be that once each animal became permitted (since each one left its place of "Kavu'a" separately, and became permitted because it was "me'Ruba Parish"), its blood in the container should become prohibited? Once each animal became permitted because of Rov, it should be permitted to offer all of them together!
What is the Gemara's question on Rava's answer? The fact that each animal is considered to have come from the Rov and is permitted does not eradicate the Isur of the animal that was mixed in the herd. That animal is still Asur and still exists somewhere. The principle of "me'Ruba Parish" merely permits one to take one animal at a time, apply the rule of Rov to it, and assume that it is not the prohibited animal. Offering all (or a Rov) of the animals simultaneously should not be permitted, since the animal that is prohibited is still present.
(a) The SHITAH MEKUBETZES (#3) proves from the Gemara here that if an item of Isur becomes Batel in a Rov of permitted items, one indeed is permitted to eat all of the items at once. This is also the opinion of the ROSH in Chulin (7:37), which the SHULCHAN ARUCH (YD 109:1) follows. The Rosh explains that the Isur indeed turns into Heter due to the Rov, and thus there is no need to attempt to evade the Isur.
(b) The RASHBA, on the other hand, maintains that one may not eat the entire mixture at one time, because the mixture is viewed as still containing the Isur, and by eating all of it one definitely eats an item of Isur. One may eat some of the mixture, because it is assumed that the part that is being eaten now is not the Isur.
How does the Rashba understand the Gemara here, which implies that the Isur is completely annulled?
The YOSEF DA'AS offers a simple answer. The Gemara here only permits offering most (Rov) of the animals at the same time, but not all of them. It is permitted to offer most of the animals at one time because each animal already was presumed permitted by itself because of "Kol d'Parish, me'Ruba Parish." Moreover, it may be assumed that the prohibited animal is not among the ones being offered now.
The way in which the Acharonim explain the Rashba's intention provides additional grounds for leniency. The Rashba agrees that mid'Oraisa the Isur is entirely Batel and the entire mixture may be eaten at once; the Rabanan, however, prohibited it, since it appears as though one is eating Isur. In this case, when only a Rov, and not all, of the animals are being offered, this Isur d'Rabanan does not apply. (See also CHEMDAS DANIEL.) (Mordechai Zvi Dicker)