Bava Basra 92
Our Gemara on amud beis discusses a case in which a buyer and seller are in dispute over if the purchased ox was sold for labor purposes or for slaughter. The difference is that if it was found to be an unruly ox known to gore, the purchase would be deemed to have taken place under false pretenses and thus be refunded. However, the seller here maintains that he sold the ox under the presumption that it was for slaughter; thus, the ox’s nature is irrelevant, and the purchase should stand. The Gemara then considers if we may use statistical analysis as evidence. In other words, may we reason that since the majority of oxen are sold for labor, we should give more credence to the claim of the buyer?
Shmuel holds that though it is a general principle that Torah law follows the majority, such as a smaller amount of non-kosher food becoming nullified if mixed into a larger amount, this does not apply to monetary considerations. We cannot use the presumption of majority to prove a certain status that adjudicates a financial obligation or benefit, and so the sale stands. As is classically the case when it comes to financial claims, the burden of proof rests on the claimant.
There have been different lomdishe explanations for this principle that the majority does not nullify the minority in regard to financial evidence. I would like to offer a psychological and spiritual explanation for the function of this principle and what attitude the Torah promotes.
When it comes to practical matters, reality is often about consensus. Is the rectangular box in front of you a small table or a footstool? It makes a difference whether you will eat off of it or rest your feet on it. Yet it is a subjective imposition, and you’ll get along well with others if your subjective reality matches the consensus of others, while you’ll experience much social friction in case you have difficulty making that determination accurately. (“Get your feet off my table” or “Why are you putting food on my ottoman?”)
A good portion of Torah law and prohibitions are about obedience and adherence to norms that promote societal welfare and personal balance of character (see Moreh Nevuchim III:26 and 27.) Therefore, if a Torah prohibition is nullified, it is no longer an apparent act of violation, as the forbidden action or substance is not manifest. This idea also can be used to explain the Rambam’s distinctive position regarding an ambiguous or undetermined prohibition. According to basic Torah law, it is not prohibited to violate an ambiguous or undetermined prohibition, such as eating a piece of meat which it is unclear whether it is kosher or not. The idea that one must err on the side of caution, and strictly abstain from even possible prohibitions of indefinite status is only rabbinically mandated. (See Laws of the Impurity of a Corpse, 9:12.)
On the other hand, money and assets are the epitome of personal subjective rights. After all, the idea that a person can own anything is built on an assertion of the individual over the general reality. Think about it philosophically. Why does anyone have a right to anything? G-d made it all. I don’t own my potatoes, more than my tractor or my eyes and lungs. Yet the Torah allows for this thing called ownership, so as to align with human nature and motivations. Possession is already the personal assertion over the general. Keeping that in mind, it is easier to understand morally and metaphysically why the burden of proof is on the claimant who wants to extract money, and he cannot use statistics or majority as evidence. He cannot use a generality to overcome a subjective individual apprehension.
The Cult Of Self-Care
Bava Basra 93
Our Gemara on amud beis discusses an interesting protocol from Talmudic times:
The baraisa continues: Another great custom that was followed in Jerusalem was that when one made a feast, there would be a cloth [mappah] spread over the entrance to the hall. As long as the cloth was spread, the guests would enter, as the presence of the cloth indicated that there was food for more guests. When the cloth was removed, the guests would not enter any more.
Ben Yehoyada notes that the custom runs against a common sense, non-verbal cue. A cloth over the doorway should indicate a disinvitation, while an open doorway should indicate a welcoming gesture. Ben Yehoyada says it was deliberately enacted via these counterintuitive signs in order to jolt the would-be guest into being attuned to subtle signs. Basically, it’s saying: Don’t assume an invitation is real; perhaps your host felt unduly pressured or obligated but really cannot afford it. Do not just barge in; feel out the situation.
Ben Yehoyada’s idea embodies a particular kind of humility and mindfulness which we might say is part of the Yiddish word eidelkeit. Eidelkeit is a disposition of courtesy, concern for others’ feelings and needs, tact, and other refined qualities. I recall my father telling me a family legend about how when his grandmother was forced to abandon their homestead of hundreds of years due to the World War I battlefront overrunning their shtetl, she swept the floor. “We don’t want the goyim to think we are slobs.” Imagine the internalized sense of nobility and self-respect. A horde of heathens are trampling and stealing your birthright, and what is your first instinct? They shouldn’t think we are slobs. This is the opposite of victimization and self-pity even in the face of a crushing evil empire.
Western culture values assertiveness and self-interest over many other considerations, so our ancient traditions and attitudes of respect and magnanimity toward others can become eroded in the cult of self-care. In the correct proportion, self-care is psychologically vital. However, a form of self-care is also dignity. Excessive focus on self-care leads to self-absorption and unhappiness. We are being sold and promised false goods and false gods.
Many civilized and otherwise moral persons believe that advocating no-questions asked abortions on demand is the height of virtue, assuring the woman’s right to choose her body destiny. The same goes for ideas such as physician-assisted suicide. Yet these are beliefs and actions which are disrespectful of humanity’s divine purpose and value, and they undermine the sanctity of life. This leads to a lack of self-care coming from nihilism and lack of meaning. They wonder, “Why invest in life, the future, and your children if nothing matters?
Don’t Invite A Heavenly Audit
Bava Basra 94
Our Gemara on amud aleph discusses an interesting psychological and legal phenomenon. There are certain thresholds of defects or deficiencies in a purchased item which are tolerated, if not expected. Therefore, while one is not allowed to deliberately adulterate grains or beans, if a minor and typical amount of dirt, sediment, or pebbles, etc. are found in the mixture, the buyer has no recourse. Furthermore, if he finds the product to have a number of impurities over the expected threshold, the buyer may demand that he sift the produce thoroughly. Once attention is devoted to refining the product, the seller cannot merely bring the contaminant level back to below the regulated amount. Instead, he must remove all the foreign matter in the most thorough manner.
This concept that once there is extra scrutiny, there is a reduction in tolerance and forgiveness, is a metaphysical truth and pattern as well. I will quote a number of traditional sources to show the myriad ways this pattern of human and physical nature manifests:
Rosh Hashana (16b):
And Rabbi Yitzḥak said: Three matters evoke a person’s sins, and they are: endangering oneself by sitting next to an inclined wall that is about to collapse; expecting prayer to be accepted, as that leads to an arrogant entitled assessment of one’s status and merit; anyone who passes a case against another to G-d is punished first.
One who passes the judgment of another to Heaven is punished first, as it is stated: “And Sarai said to Abram: My wrong be upon you, I gave my handmaid into your bosom; and when she saw that she had conceived, I was despised in her eyes: The L-rd judge between me and you” (Genesis 16:5).
Likewise, we have a tradition that in times of danger or even unusual good fortune, Satan, in the form of a heavenly prosecutor, arouses the heavenly court to sit in judgment about you (See Rabbenu Yonah Berachos 43a, and Gemara Berachos 54a):
Rav Yehuda said: Three require protection from harm: a sick person, a bridegroom, and a bride. It was taught in a baraita: A sick person, a woman in childbirth, a bridegroom, and a bride require protection from harm. And some say: Even a mourner. And some say: Even Torah scholars at night. [Those whose thoughts are focused elsewhere or are in a weakened physical state require protection, or I wonder if perhaps their scholarship could trip them up by being overly confident.]
There is even an idea that one should be careful to think Torah thoughts during the moments after washing for bread while waiting for the leader to recite the Hamotzi blessing. Since at that time, while waiting for the blessing, he must not be occupied with distractions, this is a time that is devoid of Torah and mitzvos, putting him in mortal danger (Beis Yosef, OC, 98:10:1), as Satan might sieze that time to prosecute him when he has less active merits. This is the spiritual equivalent of an IRS audit. Once you are under scrutiny, they find all kinds of things.
One might ask, granted this kind of unequal enforcement is a practical necessity of fallible human law, but should divine law not be absolute, consistent, and precise? To answer that, we have to consider that divine justice, while absolute, also is related to the subjective, human experience. This can be understood better by what we discussed on Bava Basra 92. There we noted that a good portion of Torah law and prohibitions are about obedience and adherence to norms that promote societal welfare and personal balance of character (see Moreh Nevuchim III:26 and 27.) Therefore, if a prohibition is nullified, a small amount of unkosher food is no longer an apparent act of violation, as the forbidden action or substance is not manifest. This also can be used to explain the Rambam’s distinctive position that according to basic Torah law, it is not prohibited to violate an ambiguous or undetermined prohibition, such as eating a piece of meat that it is unclear if kosher or not (Laws of the Impurity of a Corpse, 9:12.)
