[Avodah] sevara vs. psak

[Micha Berger]

On Thu, Jul 15, 2010 at 09:13:15AM -0400, Rich, Joel wrote:
:> Rather than "supposed SA algorithm" I would instead have written
:> "the SA's sometimes-overridden rule-of-thumb". Pesaq isn't algorithmic,
:> as per RRW and my multi-year going in circles on the subject. (Which
:> turned out to be more misunderstanding than substance.)

: This goes, at least partially, back to my question concerning klalei
: horaah - was Rav vs. Shmuel algorithmic or not. It appears from what
: I have found that it was, either because of area of specialty or sinai
: vs. oker harim as applied to mamonot vs. issurin.

I'm missing how you found evidence of Rav v. Shemuel rules being hard
and fast algorithmic rules rather than a factor to consider that might
in some cases be overridden.

How do you prove the absence of an exception, and even a potential
exception?

Most of the rest of the kelalei hora'ah do have exceptions; cases where
we hold like Beis Shammai or where we follow a majority of amora'im in
following the shitah of a yachid over a rabim in a mishnah. And the case
that brought this thread (as opposed to the one titled "Klalei horaah"
where Rav and Shemuel were discussed) to this topic.... the number
of times the SA doesn't actually follow rov of the 3 codes as he says
he would.

I would want some explicit statement that this particular kelal is itself
the exception to the notion that the kelalei hora'ah have exceptions. (I
think that sentence actually is coherent. It's akin to the old "'There
is an exception to every rule' -- including this one.")

BTW, in that other thread you mentioned the assumption that Rav and
Shemuel lived in different cities. Perhaps it was that each school
centered on a different topic - Rav focused Sura's curriculum on
issurim, and Shemu'el had Neharda'ah center on mamunus. It would be
interesting to track if that distinction carries through to his talmidim
to which amoraim you find in Neziqin vs other sidrei Shas, etc...

In any case, Shemuel's very name is related to dinei mamunus. Medrash
Shemuel (Buber ed 39a) 10 tells of when Abba took an order to buy silk
for R' Yehudah ben Beseira. (How that works on a time-line is beyond me,
as the Benei Beseira are before Hillel, and we're talking about someone
whose son was an amora?) RYbB then refused to pay, saying he was just
talking, and thus there was no binding qinyan. Avuha deShmuel asked him,
"But isn't a talmid chakham's word more sure than money?" And RYbB agreed,
and gave him a berakhah that he have a son like the navi Shemu'el, whom
all of Kelal Yisrael will recognize as a teacher.

And perhaps relevent: Shemuel is the one who said "dina demalkhusa dina".
(Nedarim 28a)

-Micha

-- 
Micha Berger             Zion will be redeemed through justice,
micha at aishdas.org        and her returnees, through righteousness.
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