Talmud Tips

For the week ending 25 February 2017 / 29 Shevat 5777

Bava Batra 32 - 38

by Rabbi Moshe Newman
The Color of Heaven Artscroll

Rav Nachman said, “Whoever is stronger wins.”

This ruling is given by Rav Nachman in a question of property ownership, although it may sound — at face value — more like a slogan for an MMA match. However, when we examine the commentary of the Rishonim we see that it is a sensible ruling, and not one in which the Beit Din which litigates the case is telling the contesting parties to decide the case by violence.

The cases in our sugya in which Rav Nachman’s statement applies are either a boat on the river, or a parcel of land, in dispute. Two different people claim ownership of the disputed object, each claiming that it belongs to him, but with neither one having proof to back his claim.

The gemara and the commentaries, here and at the beginning of Masechet Bava Metzia, thoroughly examine why the ruling in the case of the disputed boat (or land) differs from the rulings in very similar cases. Some of the factors that determine the ruling are possession by one or more of the litigants, the possibility of bringing future proof that will definitively prove whose object it is, and other factors.

But, since the ruling in this case is “kol d’alim gavar” (lit. “Whoever is stronger wins”), let us concentrate on trying to understand what this means in a practical manner. Some explain that it means that Beit Din is issuing a ruling of a “non-ruling”. They are in effect saying to the litigants: “Since both of you have identical claims and neither of you has any proof, we are withdrawing from issuing a ruling as to who gets what. We cannot rule on the object’s ownership and award it to one or both of you (divide it), since we have no basis for doing anything. Therefore, you go out from here and deal with it yourselves until one of you can provide proof of ownership, and then we will agree to hear the case.” This would lead to the conclusion that if one is quick to take possession of the object, the Beit Din will not take it from him, since they have no grounds for any act of involvement. (Rashbam)

A very different take on this ruling of “kol d’alim gavar” is that Beit Din is in fact making a ruling as to whom the object will belong, until such time that the other party proves ownership. The person who is “strong” and first takes possession of the object will be considered the “winner” and owner of it, until proven otherwise. And if the other party somehow takes it away from this “winner”, Beit Din will step in to protect its ruling that the object should go to the one who first took possession, and remove the object from the taker and return it to the original winner.

The “driving force” for Beit Din to issue a ruling of ownership is to avoid the possibility of the two parties being in a perpetual “fight” over the object, with one day its belonging to one person who is stronger that day, and the next day belonging to the other party who becomes stronger the day after. This ongoing dispute would be untenable, and therefore Beit Din feels compelled to make a decisive ruling that will last (unless proved otherwise in the future by witnesses, a document, or other such proof of true ownership). There are three logical reasons offered for this ruling that “the stronger wins”:

First of all, it is likely that the true owner will very soon provide proof of his ownership, and therefore the outcome of the first possessor's winning is likely to be short-lived, and basically meaningless, even if the wrong party won initially. Secondly, the true owner is more likely to try harder to be the “winner”, since it’s really his, as opposed to the other party who is just a thief trying to pull a fast one. Thirdly, the one who is lying will not try as hard to win it, since he knows that his victory may very likely be short-lived, ending when the true owner produces proof of ownership. Based on the above logical reasons it is very likely that the correct person will be the “stronger” one and “win” the object in dispute that is truly his. (Rabbeinu Asher)

  • Bava Batra 34b

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