Wednesday, January 04, 2006

Ain holchin b'mamon achar haRov

The gemara in Bava Metziya (22b) asks if we hold that "yeiush shelo m'da'as lo havei yeiush", that a lost item is not considered abandoned until the owner is aware of its loss and gives up hope of finding it, how is it permissible to eat dates that have blown off the orchard trees without the owner's awareness - even if one assumes that all fruit that falls off trees is implicitly abandoned because the owners know it will be eaten by insects before being recovered by them, perhaps the owner is a minor who is incapable of relinquishing ownership? The gemara answers that we are not "machzik" an orchard as having trees owned by minors unless we know otherwise; Rashi explains that this is based on "rov", because the majority of trees are not owned by minors. I was wondering how the gemara can use the principle of rov to resolve this issue - since this is a monetary case, the rule is "ain holchin b'mamon achar harov", one cannot rely on the principle of majority to resolve questions of monetary ownership? More to come on this....

2 comments:

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  2. You are not decidng a mamonos issue based on a rov. All you are doing is saying that based on rov most trees are not owned by minors. It happens to be that the ramification of that is that in this case ytou can keep what you find. But it is not the rov which allows you to keep the money.

    Also, doesn't the gemara say if you find an item in an area which is rov akum you can keep it? Shouldn't that also be a problem of ain holchin b'mammon acher harov. (Based on my hesber it shouldn't be a kasha)

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