Parshas Matos-Maasei 5784
- Torah Tavlin
- Aug 2, 2024
- 3 min read
בבא בתרא דף לד: "כל דאלים גבר"
When 2 people claim they own the same item, but neither is מוחזק in it,ר' נחמן paskens "כל דאלים גבר". The רשב"ם explains that this means whoever is stronger either in כח or ראיות gets to keep the item. This din applies to קרקע and מטלטלין in instances where one litigant doesn’t have any more of a חזקה or עדות than the other litigant. [ההוא] תוס' asks, why should these cases be any different than the case of שנים אוחזין בטלית where one does not have any more of a חזקה or ראיה than the other, yet we pasken יחלוקו and not כדא"ג? Tosfos explains that "אוחזין" is different since we always assume that whichever one is holding is his, if we would pasken כדא"ג, it would be like allowing someone to steal from someone else, so we pasken יחלוקו. However, in the case of the boat and the field, since neither one is מוחזק on the item we say כדא"ג.
The מפרשים discuss two approaches on how to view כדא"ג. Is בית דין stepping aside [סילוק] and letting the litigants deal with it, or is כדא"ג an actual פסק דין? The [ס' כב'] רא"ש says that כדא"ג is a דין. Therefore, says the רא"ש, the first person to be "גבר" gets to keep it until the other one brings a ראיה. If he doesn’t, it remains by the first one and the second person may not grab it back. This is because it is not מסתבר that חז"ל would institute a din where 2 litigants could be in an ongoing מריבה. The רא"ש says that there is a סברא behind saying כדא"ג and allowing the first "גבר" to retain the property until proven otherwise. This is becausewe assume that the rightful owner will ultimately exert more energy and spend more resources in proving the item is his, more so than a thief. The רשב"ם [לה.ד"ה התם] explains that if in any current doubt of ownership, it is possible to ascertain who the rightful owner is [איכא דמיקם עלה מילתא], ב"ד will not pasken יחלוקו or use שודא דדייני, because if at a later time witnesses are brought or the doubt is clarified, it will be a זילזול [מעוות] to בית דין. In these situations, ב"ד will pasken כל דאלים גבר.
The [חו"מ ס' קלט,א] שו"עpaskens like the רא"ש and the first one to be "גבר" gets to keep it until his opponent can bring proof that it’s his. The ט"ז [שם] asks on this svara, from a Gemara that discusses a stream of water that is used for watering the fields alongside it. The field owners upstream want to channel the water into their fields, while the landowners downstream are arguing that the stream should be left to flow and let it reach their fields. The Gemara concludes that since we don’t know how to pasken, we say כדא"ג. Asks the ט"ז, in this situation we are not waiting for someone to bring ראיות, or is there a rightful owner, so how does the svara of the רא"ש fit in? The ש"ך cites many שיטות that say כדא"ג does allow for a back and forth. He therefore says "נראה לדינא" that even after it is grabbed by the first person, his opponent may grab it back.