Two fundamental principles exist in every democratic government:
- Ruling by majority
- Protecting the minority’s rights
In many countries around the world, including in Israel, there is a vociferous debate as to which principle takes precedence when they clash with each other. This issue is relevant to the world of Halacha as well, where the simple assumption is that on a de’oraita level, we always follow the majority. Nevertheless, in certain situations the Rabbis held that we need to be concerned for the minority as well.
In this article we will focus on one of the cases where Halacha guides us not to decide uncertainties by a majority rule. This is based on the principle of “mi’ut hamatzui,” which could be translated as a “significant minority” or a “minority that exists” (the correct English translation might depend upon the manner in which the Rishonim viewed this rule, as we shall see). Why, in these circumstances, do we not follow the majority, but prefer to take the minority into consideration? We will present two possible ways of understanding this principle and mention some halachic ramifications between them.
The Mi’ut Hamatzui Principle
Although this principle is not mentioned explicitly in the Talmud, it is widely accepted by the Rishonim and is mentioned in the context of many halachot, including tzitzit, mezuzot, shechita, and sofrei stam. In this article we will discuss two examples, both of which appear in this volume of the Tzurba MeRabanan shiurim; one from the halachot regarding bugs and the other from the halacha of the kashrut of animals, which is the main example discussed by the poskim.
Regarding the halachot of bugs, the Shulchan Aruch delineates how to check fruit that might contain bugs. At the conclusion of this halacha, the Rema writes based on the Rashba that a sample checking of fruit that regularly contains worms is not sufficient, rather each and every fruit must be checked. In his Responsa, the Rashba explains that the reason is because the presence of worms in these kinds of fruit is a mi’ut hamatzui and in such cases, we do not rely on checking the majority of fruit, but rather need to check each one.
Perhaps the most famous case of mi’ut hamatzui is quoted regarding the need to check an animal’s lungs for sirchot, or lesions, lest it be a tereifa. Rashi comments that the Torah always follows the majority, both in being stringent and lenient, and the reason that one must be stringent with lesions in animals’ lungs is “משום דשכיח ביה ריעותא,” “ it is common that there is a deficiency.” In other words, Rashi highlights the fact that the phenomenon of a defect in the lungs is a frequent one and this fact requires our attention.
The Ramban also writes that “our ancestors always checked the lungs of animals for lesions because they were very common and caused the animal to become treif, and we do not rely on the majority lechatchila in a case of mi’ut hamatzui.” It seems from his explanation that the reason for the stringency is that the existence of the prohibition is greater than in a normal situation, i.e., greater to an extent that we cannot ignore it. Thus, both the Ramban and Rashi focus on the fact that it is more common and hence one cannot ignore it.
The Rashba understands that the reason to be stringent for mi’ut hamatzui is a different one. Although his words are brief, it seems that the Rashba is saying as follows: For a regular minority, such as the possibility of bugs in a basket of bananas, we are not even certain that any prohibited item exists, i.e., that there are any bugs in any one of the bananas. However, in a case where the percentage of insects is that of a mi’ut hamatzui, such as in a basket of dates, one should view the situation as one where the prohibition exists with certainty, i.e., that there are worms in some of the dates, but we are not sure which dates have worms. The Rashba here is saying that even though a minority of dates have worms, we cannot ignore this fact and eat without checking.
Rabbeinu Yona understands this in the same way and is quoted in the Chiddushei HaRashba as saying that the stringency to check for any lesions in the animal’s lungs is because if we do not check the lungs, it is as if we are “ignoring” the prohibition. In other words, the adhesions in the animal’s lungs are present in front of the shochet, and all he needs to do is check. If he is lazy and does not perform this simple examination, he is disregarding the Torah prohibitions.
Why were the Rabbis stringent regarding Mi’ut Hamatzui?
First Approach – Making a Fence around Torah prohibitions
One explanation for the severity of mi’ut hamatzui is based on the first Mishna in Masechet Avot where the Chachamim rule that one needs to make a סייג לתורה, a fence around the Torah. Chazal and the Rabbis of the generations that followed had to ensure that there was no danger of violating Torah prohibitions, and the way to do this was to forbid actions or items that were similar to Torah prohibitions.
For example, if a certain type of fruit is known to have more than a 50% chance of containing insects, then it is obvious that on a de’oraita level it must be checked to make sure that it is insect-free. The dividing line is extremely thin, because according to the Torah, a fruit that has a 51% chance of having worms must be checked, while a fruit that has a 49% chance of having worms can be eaten without any checking. There is a serious concern that many people might not know the slight difference between the two, and will also eat the fruit with the 51% chance of finding an insect without checking. Another concern could be that in fruit with a 49% chance of finding insects, the percentage may rise to 51% over time and the general population would not be immediately informed, such that many would come to eat fruit that must be checked on a de’oraita level without checking.
In light of these concerns, it is logical that Chazal would institute a rule to check types of fruit that may contain insects and cause this confusion, which would fall under the category of mi’ut hamatzui. According to this understanding, we now have an interesting novelty: There are two types of minorities in halacha. There is an insignificant minority and there is a minority that is close to the majority, and must be ruled in a stringent approach due the concerns mentioned above. It seems that at least two of the leading Rishonim, Rashi and Ramban, accepted this view, as regarding the obligation to check an animal’s lungs for any adhesions, they both focus on the fact that there is an increase in frequency of the prohibition.
Second Approach – A Psychological Approach to the Prohibitions
Another manner of understanding the stringency of mi’ut hamatzui is related to the psychological approach that one expects from a God-fearing person when faced with the possibility that one might be violating a prohibition. Rav Shimon Shkopf explains this idea as follows: If we put a rational person in front of 100 glasses of clear liquid and tell him that ninety-nine of them contain water and one of them might contain poison, any rational person would not drink any of them.
Rav Shimon Shkopf used this analogy to explain why there could be considerations to be stringent even in cases of ספק ספיקא, a double doubt. The same principle could be applied here. Even though the Torah ruled that we follow the majority, there are cases when a God-fearing person cannot continue as normal without taking some action. One of these cases is when there is a chance that he may consume a prohibited item, which is equivalent to a cup of poison, and he is therefore expected to check. This understanding seems to be the basis for the opinion of the Rashba and Rabbeinu Yona.
Until now we have seen two approaches as to why the Sages were concerned with mi’ut hamatzui. There are many practical ramifications between these understandings which are beyond the purview of this article, but we will focus on two.
Practical Ramification 1 -The Measure of “מיעוט המצוי”
One of the most interesting discussions concerning mi’ut hamatzui is whether there is a specific percentage above which the minority is considered matzui (significant or in existence) and if such a percentage does exist – what is it?
The Rivash writes that mi’ut hamatzui is actually a minority that is “very close to one half.” The Beit Efraim quotes the Rivash and explains that one does not need to check the kashrut of an animal unless it is a situation of “מיעוט המצוי”, because in that case it might become a ספק דאורייתא. It seems that this approach correlates with the first opinion we learned above. In other words, mi’ut hamatzui can be defined with a specific percentage (that must still be defined) and below this number the minority is defined as “אינו מצוי” and we can ignore it. But when the percentage is higher than that measurement, it requires us to ensure that we are not dealing with a prohibition that could possibly become a Torah violation.
By contrast, the Mishkenot Yaakov states that mi’ut hamatzui is defined as a prohibition that is found in 10% of cases. Many later poskim, such as Rav Shlomo Zalman Auerbach, have adopted this opinion and hold that one must check in any case where there is a 10% chance of a possible prohibition.
Many other poskim did not accept the opinion of the Mishkenot Yaakov or the opinion of the Rivash. Rav Shmuel Wosner was even more stringent than the Mishkenot Yaakov, stating at least twice regarding the Mishkenot Yaakov’s approach “that the מיעוט המצוי is a case where the minority is a natural occurrence and a given. For example, most animals in the world and in each country do not have adhesions on their lungs, and only a few are considered treif because of this… but we never have a majority of kosher animals without some treif, and the minority are always in existence everywhere and at all times. And this is the proof, that it is a natural existence to raise mostly kosher animals and a minority of treif animals… He also writes elsewhere that “it is not clear to me according to halacha if the majority is dependent on percentages, like the opinion of the Gaon Mishkenot Yaakov… we have proof that it is not dependent on percentages, but on the natural status of the matter, as all kashrut issues have always been accompanied by a minority of tereifot… this is called mi’ut hamatzui.”
Rav Wosner’s approach seems to be totally congruent with the opinions of Rabbeinu Yona and the Rashba that the existence of mi’ut hamatzui is severe because the prohibition exists and we cannot ignore it. In light of Rav Wosner’s opinion, we can state that ignoring a mi’ut hamatzui is problematic especially in species where there is naturally a minority of cases of prohibition that always exists alongside the permitted animals or fruits. Similarly, Rav Asher Weiss writes that “whenever mi’ut hamatzui is common and appears as something routine and not irregular, it is considered mi’ut hamatzui and must be checked; this is not dependent on percentages, but on frequency.”
Practical Ramification 2 – When Checking Causes Significant Effort
To introduce this ramification a bit of background is necessary. The rule of following the majority was actually disputed by the Tannaim. Even though the Chachamim hold that we follow the majority, Rabbi Meir claims that one must also be concerned for the minority and rules regarding doubts that one needs to be stringent. The Gemara spends several pages clarifying the sources of each opinion and towards the end of the discussion Rav Kahana brings a novel opinion. He states that Rabbi Meir is only concerned about the minority when clarification is possible, but when not, he agrees with the Chachamim to follow the majority, even in a case where a leniency results.
What led Rav Kahana to the abovementioned conclusion is the rule of נקב בגרון בהמה הגורם לטריפתה, a hole in the throat of an animal that causes it to become a tereifa. It seems that Rabbi Meir should have avoided eating meat for all of his life, because one can never really know if there was a hole causing the animal to be treif, and even though there is only a minority of animals that have this condition, Rabbi Meir should have been concerned for this minority. And if this is really Rabbi Meir’s opinion, what would Rabbi Meir have done regarding eating the Korban Pesach or other sacrificial meat that was biblically required to eat? Hence, we must say that the entire discussion between the Chachamim and Rabbi Meir is relevant only when one is able to clarify the visible reality. But when there is an uncertainty that cannot be clarified, even Rabbi Meir agrees that we follow the majority.
This opinion is relevant despite the fact that the halacha is not in accordance with Rabbi Meir. The reason is that even in cases where we are concerned with the minority based on the mi’ut hamatzui principle, we must remember that even Rabbi Meir (who was stringent in all minority cases and not just cases of mi’ut hamatzui) was only stringent where the facts could be clarified, but in cases where this is not applicable – we can be lenient.
Sometimes, however, even though it is possible to clarify the situation, it still requires effort. The question is whether the Sages obligated us to check for a mi’ut hamatzui even when effort is required.
The Beit Efraim writes that the reason that the Chachamim did not require checking all eighteen types of tereifot is because even though some were defined as mi’ut hamatzui, Chazal did not want to place too much of a burden on people. However, since it is easy to see the adhesions in an animal’s lungs, they did obligate us to check in that case. The Darkei Teshuva understands from this that in any case of mi’ut hamatzui that requires effort to check, the Chachamim did not require doing so, and even if “he touches and feels that organ, he is not required to turn it over to check.” On the other hand, Rav Moshe Feinstein argues that this is not the intent of the Beit Efraim (though he mentions the Darkei Teshuva’s understanding). Rav Feinstein does obligate one to check even if doing so requires a certain amount of effort. This argument could be dependent on the two understandings that we presented above.
This dispute concerning how much effort one needs to invest could be understood in a few ways: If according to the Rivash (and perhaps even Rashi and Ramban) the concern of mi’ut hamatzui is because of the Torah prohibition that may be violated, then one can say that even if it involves some effort, one must ensure that he is not violating a Torah prohibition. Even though the notion of mi’ut hamatzui is derabanan, the Chachamim equated their rulings to the prohibitions from which they are derived. Consequently, in a standard case of uncertainty with regard to a Torah prohibition, a person must certainly put in the effort to check, and the same is true in the case of a mi’ut hamatzui, which is a safeguard to a Torah prohibition. On the other hand, Rabbeinu Yona and the Rashba hold that we must ensure that people do not ignore the prohibition. However, if the effort required is too burdensome, it stands to reason that the Sages would be lenient. Based on the analogy of Rav Shimon Shkopf, we can also explain that every concern has a “price.” If we were to change the proportions in his analogy and give the person 1 million cups of liquid and tell him that one might have poison, but if he drinks two cups he will receive a million dollars, there is a reasonable chance that most people would be prepared to try their luck, and they would be considered totally rational people. Thus, the circumstances change the approach. The same applies here. Despite Chazal’s desire that we be deterred by the chance of violating a prohibition, they also understood the psychological element of a person who is sometimes prepared to take controlled risks, and they therefore did not require checking where it entails significant effort. However, one could also argue that according to the Rashba, since there is a known prohibition, one has to check even if it involves effort.
Practical Ramification 3 – When There is Doubt
A third ramification that arises between the two possibilities are cases where theמיעוט המצוי is not certain, but only a possibility. With regard to this, the Beit Efraim and Mishkenot Yaakov had differing opinions:
The Beit Efraim writes that “כל היכא שחששו למיעוט המצוי היינו שהמיעוט מצוי שיהיה טריפה ודאי”, “Any time we are concerned about the mi’ut hamatzui, we are referring to a mi’ut hamatzui that there is definitely a tereifa.” On the other hand, the Mishkenot Yaakov writes that one should be stringent even with מיעוט המצוי that if there is a doubt, one should still check, for the reason that “מאי נפקא מינה if the prohibition is certain or in doubt, in any case it is forbidden from the Torah.”
In this aspect of the discussion, it seems that we can place the Beit Efrayim as following in the path of Rashi and Ramban – since the concern of מיעוט המצוי is דרבנן, if there is a prohibition defined as תרי דרבנן or in doubt, in such a case we are lenient. Therefore, according to Chazal who were stringent with מיעוט המצוי, it was specifically concerning a definite prohibition.
On the other hand, the Mishkenot Yaakov continues to loyally represent the opinions of Rabbeinu Yona and the Rashba, who claim that it was natural for Chazal that the psychological approach to avoiding prohibitions is relevant also in cases of doubt, and just like in the analogy of Rav Shimon Shkopf, a person will avoid danger even when he is not 100% sure that they exist, and the doubt causes him to be careful. The same is true in regard to prohibitions; as since the מיעוט המצוי is the Chachamim’s concern for a Torah prohibition, it is natural that the severity of a Torah prohibition will cause a person to be concerned even when there is doubt, because ספק דאורייתא לחומרא.
We have learned that the Rishonim and Acharonim present two different approaches to understanding the stringency of mi’ut hamatzui. One understanding regards mi’ut hamatzui as a case that is close to the majority, and therefore extra precautions were taken so as not to possibly violate a Torah prohibition. The other understanding is based on the fact that when there is a definite prohibition, it is very difficult to ignore it when it can be checked. This opinion focuses on how the Sages educated us to the correct mindset when dealing with possibly transgressing Torah violations.
 Shulchan Aruch, Orach Chaim 8:8
 Shulchan Aruch, Yoreh De’ah 281:9
 Shulchan Aruch, Yoreh De’ah 1:2
 Shulchan Aruch, Yoreh De’ah 39:10
 Yoreh De’ah 84:8
 Teshuvot HaRashba 1:274
 Chullin 12a, s.v. “פסח”
 Chullin 12a, s.v. “ושמענינן”
 Responsa of the Rashba 1:274
 Chullin 9a, s.v. “ומה שחששו”
 Mishnah, Avot 1:1
It must be noted that there are eighteen types of tereifot in animals, but there is no halachic obligation to check them because they are very rare. The unusual requirement is the halachic demand to check for adhesions in the lungs. We will not go into details here concerning the types of adhesions based on their location and shape.
 Responsa of the Rivash, siman 191
 Responsa Beit Efrayim, Yoreh De’ah 6, s.v. “סיומא”
 Yoreh De’ah 17, s.v. “ותרתי אני בלבי”
 Some argue that this is not a true representation of the Mishkenot Yaakov’s opinion and he only mentioned this figure by way of example. But in reality, there is room to be stringent even in cases of less than ten percent.
 Minchat Shlomo Tanyana, siman 63
 Responsa Shevet HaLevi 4:81
 Responsa Shevet HaLevi 8:180
 Minchat Asher on Chumash Vayikra 16:3
 Chullin chapter 1
 Chullin 11b
 Yoreh De’ah, siman 6
 Yoreh De’ah 39:4
 Igrot Moshe, Yoreh De’ah 1:19
 Yoreh De’ah siman 6, s.v. “לכן נלענ”ד”
 Siman 17, s.v. “אבל”