At the conclusion of this week's parsha (27:32) the Torah discusses the obligation to give ma'aser (tithe) from one's animals. The newborn cattle are put into a corral with a narrow opening big allowing for only one animal to leave at a time. As the animals leave they are counted, and every tenth one is marked as ma'aser to be given to a kohen.
The Mishnah in Bichoros( 58b) discusses a scenario where during the counting before the owner had reached number ten, one of the animals that were already counted jumped back in to the corral and he cannot distinguish between the animals. The Mishnah says that all the animals are exempt from ma'aser. The Gimorah in Baba Mitzeia (6b) explains this ruling based on a drasha from the passuk "hasiri yiheye kodesh l'Hashem". The Gimorah explains that the Torah requires that one be certain that the tenth animal is the tenth. If there is any doubt that this animal is the tenth it is not ma'aser (asiri vadai vilo asiri safek). Additionally once an animal was counted it cannot be counted again. Since he cannot distinguish between the animals he might count the animal that was already counted, thereby making it impossible to count with certainty. Therefore all of the animals are exempt from ma'aser since we cannot ensure that any of them will be the definite tenth one out of the corral.
The shita mikubetzes in Baba Mitzeia (6b) cites a R"Ash that asks: why does the Mishnah say that since the animals cannot be counted precisely all of the animals in the corral exempt from ma'aser, why can't we apply the rule of kal d'parish mairuba parish- if something separates from a group we can assume it belonged to the majority of the group? Since the majority of animals in the corral were not counted, as each animal separates and passes through the door of the corral we should assume that it was never counted, thus enabling the animals to be counted properly and be obligated in ma'aser.
The R"Ash answers that although the Torah allowed us to rely on a rov (majority) in most scenarios, nevertheless it remains a safek (doubt). Therefore with regard to ma'aser where the Torah requires that we know with certainty that the tenth animal is the tenth we cannot rely on a rov.
Reb Akiva Aiger (in tishuvos tinyana 108) asks the following question: An animal that is a traifa is exempt from ma'aser. The only way to know that an animal is not a traifa is to rely on the rov that most animals are healthy and not traifos. However according to the Rush that said that even though the Torah allowed us to rely on a rov it still remains a safek how can we ever have an animal that is obligated in ma'aser? We will not know with certainty that it is the tenth since possibly the first nine were traifos. And even though there is a rov that says that they were not traifos according to the Rush that is not considered knowing with certainty.
The Shev Shimaitza (2 :15) answers that there are two different types of rov; ruba dilesa kaman, and ruba dieisa kaman. A ruba dilesa kaman refers to tendencies in nature or habit. For example that most animals are healthy and not tiraifos, or that most babies born are healthy, or that most people who will shecht(slaughter) know how to do so properly. A ruba dieisa kaman refers to the majority of present chances. For example if there are ten pieces of meat of which nine are kosher and one is not and one is selected the rov says it is a kosher piece of meat.
The Shev Shimaitza says that the Rush only said that even after applying a rov it still remains a safek regarding a ruba dieisa kaman such as in the case of the animal that was counted that jumped back into the coral. Whereas regarding a rov such as the rov that most animals are not tiraifa which is a ruba dilesa kaman the Rush would agree that in applying the rov there remains no safek and one can be certain that it will be from the rov. Therefore regarding the doubt if the animals are tiraifos we can say with certainty that they are not traifos and therefore the tenth animal is with certainty the tenth and thus obligated in ma'aser.
Posted By KH to KollelH blog at 5/22/2011 11:02:00 PM