Baba Batra 92 Why we shouldn’t make assumptions about consumers

 Listening to Dr. Elana Stein Hain’s podcast Din & Daf podcast is always worthwhile. “Why we shouldn’t make assumptions about consumers” is her most recent one. I want to share a little bit of her analysis.

The Gemara presents a case where a consumer purchases an ox and later discovers that it is a habitual goring ox. May he return the ox and get his money back is the discussion between Rav and Shmuel. “One who sells an ox to another and the ox is found to be one that habitually gores. Rav says: This is a mistaken transaction, since the buyer can claim that he bought the ox specifically for labor, and an ox that gores is not suitable for this function. Therefore, the seller must take back the ox and reimburse the buyer. And Shmuel says: The sale is not voided, as the seller can say to him: I sold it to you for slaughter, and the fact that it gores is immaterial... And Shmuel could have said to you: When we follow the majority, that is only with regard to ritual matters, but with regard to monetary matters, such as this, we do not follow the majority. Accordingly, there is no basis for voiding the sale.” (Sefaria.org translation) Let’s define the Hebrew word rov (רוֹב) to mean statistically or the likelihood in this case the Hebrew word khazaka (חזקה) to mean the very nature of the person or object.  

The Rishonim provides three different possible rationales why Shmuel should not make any assumptions about the consumer’s intent with regard to monetary matters. All quotations come from Hain’s source sheet.

1. פסקי ר"י argues that statistics alone are not good enough to make the seller return the money. “…Where did Shmuel say that we do not follow presumptions based on the majority in financial transactions? This is only where the defendant is currently in possession of the money, while the plaintiff is trying to extract the money from them, and the plaintiff has no other claim other than the presumption based on the majority of cases. That is where Shmuel says that we do not follow the presumption based on the majority of cases. For when “rov” and possession of money are in contest, possession is determinative: keep the money where it is, and any who wishes to extra money from another must produce evidence. But in a case where the plaintiff has a different winning claim, but there is a disagreement among the judges whether or not it is a good claim, there Shmuel would certainly agree that we follow the majority, as it is written, “to incline after the majority.”” Only when the purchaser has hard and fast proof of an invalid sale does he get his money back.

 

2.    The Bayit Khadash (ב"ח) argues that we don’t know what the majority is referring to. Since we don’t know whether the majority referring to the product itself or is the majority referring to the purchasers, we cannot follow presumptions and return the money to the purchaser. “… and the reason is that even though most flax seeds in the world are planted, there are many people who buy them for other purposes –food, medicine. And for every one person who buys 10 se’ah for planting, there are 100 people who buy one se’ah for food or medicine.” Consequently, the money stays with the seller.

 

3.    The Ritba argues that there is a difference between the intrinsic nature of the person or object and a personal choice. A majority is determined by the very intrinsic nature of those people or objects. For example, the majority of women successfully give birth; consequently, we can base decisions on this presumption. We can never know in advance why any individual will choose to purchase something. “…And you challenge: but we rule like rabanan that we do not concern ourselves with the minority of cases even for the purposes of being stricter? It is possible to say that this is only where the majority must be so by its nature – i.e., it does not depend on someone’s will – like the situation of minors who perform yibum or chalitzah – and we do not concern ourselves with the possibility that they may be incapable of having children, as that is a minority of cases. Or that which we say that most women who are pregnant give birth, and only a minority of them miscarry. However, when a majority presumption is based on people’s choice, sometimes a person might choose to behave like the minority.” Consequently, the seller doesn’t have to return the money to the purchaser.

I just presented Hain’s findings. I highly recommend listening to the entire podcast. https://hadran.org.il/author-post/din-daf-why-we-shouldnt-make-assumptions-about-consumers/