B. Acharonim – Four Criteria of Precedence
1. The Pri Megadim – Need Based
The Pri Megadim (Orach Chaim, Mishbetzot Zahav, 328:1) very briefly sets forth a central principle. He writes that if there are two people in need of medicine who come before a doctor, the one who is in greater danger receives the medicine. Teshuvos Tzitz Eliezer (9:17:10:5) and Rav Shlomo Zalman Auerbach (Teshuvos Minchas Shlomo 2:86) rule in accordance with the Pri Megadim.
The Pri Megadim does not state the source for this important ruling. This might be since it is obvious from various passages in the Gemara that the one with the greater need enjoys priority. Examples include from the Gemara we quoted above (Sanhedrin 32b) about which ship or camel travels first and also in regard to precedence in regard to Tzedaka allocation. TABC Talmidim Yakov Abrahams, Tzvi Meister and Yossi Sherman note that Sanhedrin 32b accords priority to the boat that is in greater need. Yossi Sherman also notes that in regards to Tzedaka needs priority is extended to the one who is more vulnerable. This also fits perfectly with the Pri Megadim. Yakov Halstuch and Tzvi Meister note that Kiddushin 29b according priority to the Mitzva which is more of a pressing need, also serves as a compelling precedent for the Pri Megadim.
Yakov Halstuch adds that the Pri Megadim does not offer a source since his argument is obvious. As Yakov notes, why would the Pri Megadim’s point not be true? TABC’s Elan Agus notes that often a Makor is not needed since Sevara is a potent argument. Often the Gemara says, “Lamah Li Kera? Sevara Hu,” which teaches that Sevara enjoys the status of a Din De’Oraita. For example, Bava Kama (46b) states (translation from the William Davidson edition of the Talmud):
Rav Shmuel bar Naḥmani said: From where is it derived that the burden of proof rests upon the claimant? As it is stated in the Torah when Moses appointed Aaron and Hur to judge the people: “Whoever has a cause, let him come near [Yiggash] to them” (Exodus 24:14). This is interpreted to mean that whoever has a claim against another should submit [Yaggish] proof to them. According to this interpretation, this verse demonstrates clearly that the claimant is responsible for supplying the proof. Rav Ashi objects to this: Why do I need a verse to derive this? It is based on logical reasoning that one who suffers from pain goes to the doctor. Just as here the individual with the problem has the responsibility to resolve it, so too, someone with a claim against another must bring a proof to corroborate his claim.
Thus, Sevara is a most important source. Indeed, Pnei Yehoshua (Berachot 35a) argues that a Berachah Rishonah constitutes a Torah obligation since the Gemara states, “Sevara Hu Assur Lo Le’Adam SheYehenen Min Ha’Olam HaZeh BeLo Berachah,” “It is logical that it is forbidden for a person to benefit from this world without a blessing.”
The Pri Megadim prioritizing the greater need is reflected in the Bi’ur Halacha’s priorities regarding who enjoys the right to Daven for the Amud (132: Kuntress Ma’amar Kaddishin) and receive an Aliyah (136 s.v. B’Shabbos V’Yom Tov). The greater the need for the Amud and for the Aliyah the greater the priority.
A big question is to what situations does the Pri Megadim apply? Does it supersede the order set forth in the Mishna in Horiyos? In other words does the precedence of someone in greater danger apply only to people in the same category in the Mishna in Horiyos such as two men or two women, or does it transcend the order and hence a woman in greater danger enjoys priority over a man in lesser need? The answer is not clear from the Pri Megadim.
Rav Asher Weiss (Teshuvos Minchas Asher 1:115 and 2:126) and Rav Shmuel Wosner (Teshuvos Sheivet HaLevi 10:167) rule that the Pri Megadim’s rule supersedes the order of the Mishna in Horiyos.