כ״ח בשבט ה׳תשע״ז (February 24, 2017)

Bava Batra 34a-b: Whoever Is Stronger Prevails

Does Jewish law ever recommend to two litigants to “fight it out” between them?

The Gemara on today’s daf appears to offer this ruling when it states kol d’alim gvar – whoever is stronger prevails – in a case where two people each claim a piece of land, and neither of them has a proof that is stronger than the other’s.

The Rosh explains that this ruling is based on the assumption that the one who exerts himself more powerfully is more likely the true owner, and we will work with that assumption unless the other party brings a proof to court. He adds that it is essential for the court to have a mechanism for dealing with cases where two individuals are making claims and neither, apparently, can bring proof-positive of his position; if not, he argues, we will be left with situations of never-ending battles. The Shita Mekubbetzet rejects this ruling and explanation out of hand, arguing that kol d’alim gvar cannot possibly be a court ruling, rather it is an indication that the court cannot make a decision in this case, and that the court therefore recuses itself, leaving a situation where the stronger party will be allowed to take what he claims belongs to him. According to this approach kol d’alim gvar does not solve the problem, it merely postpones a decision, and should the losing party become stronger, he can grab it back, creating the never-ending battle that the Rosh was concerned about.

The Rashbam understands the meaning of kol d’alim gvar as either the person who is stronger takes it by force, or the one who brings the “stronger” proof.

While Rabbeinu Barukh presents the ruling of kol d’alim gvar only in the context of a dispute over a field, the Rashbam suggests that it would apply in any case where two people argue and neither has convincing proof (or, alternatively, their proofs are of equal strength).

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