Tuesday, January 14, 2020

a classic R' Ovadya

An interesting machlokes that is classic R' Ovadya:

R' Ben Tzion Aba-Shaul held that the authority of the Beis Yosef is based upon "rov" -- since the consensus among the majority of poskim is like the Beis Yosef, we accept his view as the final word in psak.  This approach leaves open the door to there being cases where the consensus proves to be not like the Beis Yosef, and the halacha would accordingly follow other views.

R' Ovadya (Yabia Omer 9 O.C. 104:5) strongly disagrees and writes that the Beis Yosef is correct not because of rov, but rather b'toras vaday, as if there was a halacha l'Moshe m'Sinai (!) telling us that his opinion is correct.

R' Ovadya argues as follows: we have a rule that dinei mamonos cannot be decided based on rov (ain holchin b'mamon achar ha'rov).  Therefore, if I am trying to force you to cough up money, so long as you have even a minority of poskim that support your arguments, I can't get a penny (kim li).

There is an exception to this rule: Achronim write that if the minority opinions stand in opposition to the Beis Yosef, their view has no weight and is viewed as non-existent.

If R' Ben Tzion Aba-Shaul is right and we rely on the Beis Yosef only because of rov, then why when it comes to dinei mamonos, where rov is not sufficient proof, can we not accept minority views against the B"Y?  It only makes sense if we accept the Beis Yosef as 100% accurate, a vaday.

1 comment:

  1. [an orphaned posting? egad!]

    doesn't "kim li" invite the settling of avak sheker, of the dust of falsehood? as Rav Shimon ben Shatach* states in Avos, 'be careful with your words lest witnesses [litigants] learn to lie by them'-- if a Beis Din informs a defendant that a minority opinion exists that upholds his keeping disputed money, said defendant may claim to hold by said opinion; to hold by a ruling, a rationale, that he might not have heard until that moment!

    on the other hand, in the days of Shimon ben Shatach, the right to judge financial cases was withdrawn (Yerushalmi 1:1b). Rabbi Shimon bar Yochai comments there, 'thank G-d, since we aren't wise enough to judge such cases'; we are anything BUT "100% accurate", anything BUT certain!

    *who, though he had a legal argument to keep a precious stone unknowingly acquired with a donkey, nonetheless [and without facing a lawsuit] returned the confused gem to its previous possessor...