Shabbat Parashat Ha’azinu | 5770

Tishrei 2 – Tishrei 8, Baba Batra 30-36

This week in the Daf Hayomi, the Gemara (34-35) deals with the question of how a Beit Din should rule in a case where the ownership of a certain property is in doubt. The basic rule is that the burden of proof falls on the one coming to take the property out of the possession of the original owner, but what happens when the property is not in the possession of one of the sides?

We see from the Gemara that there are three possible solutions:

1.       Yachloku- dividing the property equally between the two sides.

2.       Shuda Dedayney- the Beit Din rules as it sees fit.

3.       Kol De'alim Gevar- the Beit Din does not rule and allows the sides to fight it out.

When both sides are holding on to the object in dispute, such as when two people are holding on to a garment, the solution is Yachloku. When the property is not in possession of either of the sides, and it is not possible to find out who the owner is, the solution is Shuda Dedayney. An example of such a case is when each claimant produces a contract of sale for the same land, and both were written on the same date. However, when the property is not in possession of either of the sides, and it is possible that one of the sides will be able to bring proof in his favor, the Beit Din prefers not to interfere and allows them to fight between themselves, thus Kol De'alim Gevar.

The Rosh (3, 22) explains that Kol De'alim Gevar is not just that the Beit Din prefers not to interfere, but rather the Sages saw this as a solution, since the true owner will probably put forth a greater effort to overcome the other. Based on this, The Rosh claims that once one side overcomes the other, the Beit Din will not allow the other to continue fighting and the property will remain in possession of the first. However, the opinion of the Tosafot (Baba Metzia 6a d"h veha) is that, even after one grabbed possession of the item, the other can retake possession.

The Shulchan Aruch (139, 1) rules like the Rosh; that once one side overcomes the other, the Beit Din does not allow the other to retake possession. However, the Shach (ibid 2) quotes the opinion of the Tosafot and other Rishonim who disagree, and he rules that if the second retook possession, we will not remove the property from him (it is possible, however, that ideally, even according to the Shach, a continued fight should be prevented).