Kol De-alim Gavar - Resolving Insoluble Cases
Typically halakha allocates numerous 'legal devices' to resolve legal disputes based upon inconclusive evidence. Obviously, the presence of eidim greatly facilitates and expedites the process but often eidim are not available. Various devices such as migu, rov and anan sahadi (commonplace knowledge) allow adjudication even without eidim. When these cannot be applied, we award the disputed monies to the person in whose possession they are found (muchzak); in the absence of any physical possessor we award it to the last known owner (mara kama). What happens if no prior conditions exist and no legal devices are available? In this rare but fascinating instance, the gemara adopts a policy known as "kol de-alim gavar" which means that Beit Din allows the disputants to settle the issue "on their own" (literally, "Whoever is stronger will triumph"). For example - as the gemara in Bava Batra (34b) asserts - if two litigants dispute ownership of a ship anchored in neutral water whose previous ownership is unknown, Beit Din allows the disputants to solve the issue independently.
UNDERSTANDING THE PRINCIPLE
At first glance kol de-alim gavar is a manner for Beit Din to withdraw from the judicial process. In the absence of any evidence or legal devices Beit Din remains helpless and can only excuse itself from this case! Once Beit Din has withdrawn, the two litigants may settle their dispute independently. The Rosh, however, redefines the procedure of kol de-alim gavar. It does not constitute a WITHDRAWAL of Beit Din but rather a different method of achieving pesak (judgment). Beit Din assumes that the rightful owner will invest greater energies in recovering his legitimately owned item. This Solomonic wisdom is employed as a method of arriving at a Beit Din-supervised form of pesak.
There are several details of kol de-alim gavar which may depend on whether it consists of a withdrawal from pesak or constitutes a different method of arriving at pesak. Foremost among these issues is the question of which "methods" may be employed in this "wrestling match." Logically we would presume that the litigant who can muster greater "legal" force should be awarded the item. Even though none of these legal forces are acceptable in court, they may influence a socio-legal conclusion which awards the person with greatest para-legal evidence. This position that only legal force may be deployed - is adopted by the Rosh who not incidentally claimed that kol de-alim gavar was a form of pesak. By contrast, the Rashbam (in his comments to Bava Batra 34b) asserts that a litigant may triumph by displaying superior legal force or even by acting in a stronger physical fashion. The notion that the item may be awarded to the more physically aggressive individual clearly outlines kol de-alim gavar as a non-pesak experience!
A second manifestation of this issue may be the finality of victory. If Reuven victors over Shimon can the latter re-seize the item in a second round of kol de-alim gavar? Or, is the initial victor awarded the item in an irreversible manner. Again, the Rosh claims that the initial victor is awarded final ownership, reinforcing the notion that kol de-alim gavar represents a pesak. Since a verdict has been issued (albeit through non-conventional terms) it cannot be challenged! By contrast, Tosafot (Bava Metzia 6a s.v. ve-ha hacha) claim that a kol de-alim gavar victory may be reversed by continued struggle suggesting that Beit Din has absolved themselves from this issue and waived all legal authority.
A very compelling definition of kol de-alim gavar emerges from a gemara in Gittin (60b). In discussing an argument between Rav and Shmuel regarding water rights of adjacent neighbors, the gemara fails to reach a conclusion. Being that neither neighbor possesses the actual water, the gemara asserts kol de-alim gavar as the solution. In this instance the gemara applies kol de-alim gavar to a legal uncertainty - whether we rule in accordance with Rav or in accordance with Shmuel! The Rosh's aforementioned notion that the true owner will persevere in his efforts cannot possibly apply to a legal uncertainty. When the uncertainty surrounds the evidence, what actually occurred and whodunit, we can logically claim that the true owner will emerge victorious. In the instance of a legal uncertainty we cannot assert this and therefore can not envision kol de-alim gavar as an alternate method of identifying the true owner. Applying kol de-alim gavar in this instance would be more supportive of kol de-alim gavar as a mechanism for resolving disputes by withdrawing from judicial verdicts. Undoubtedly the Rosh would have to allow for two forms of kol de-alim gavar: in situations of empirical uncertainty kol de-alim gavar would function as a form of pesak with the confidence that the true owner would triumph; in cases of legal doubt kol de-alim gavar would entail a fall back position allowing Beit Din to withdraw from issuing a pesak!
The gemara in Bava Batra (34b) raises two additional questions which may further illuminate the nature of kol de-alim gavar. Would Beit Din favor a request from one of the litigants to impound the disputed item thereby allowing more time to deliver testimony and avoid kol de-alim gavar? The gemara cites a dispute between Rav Huna who recommends this policy and
Subsequently, the gemara poses a different question: if Beit Din already impounded an item to allow discovery of evidence (either because this is a normative option according to Rav Huna, or even according to
Interestingly enough, Rav Yehuda, who rejects impounding as an ideal option, also rejects the possibility of releasing the item to kol de-alim gavar conditions. Based upon the above analysis some inconsistency emerges within his position. If indeed kol de-alim gavar is a withdrawal from pesak, as his opposition to the option of impounding suggests, he should not favor releasing the item after initial (halakhically unauthorized) impounding. Evidently,
One option would be to realize his position of not encouraging seizure PRECISELY because he views kol de-alim gavar as a pesak-withdrawal (as evidenced by his position of not releasing a seized item). Kol de-alim gavar as a pesak withdrawal demonstrates that insoluble cases cannot be legally adjudicated; they are impervious to legal adjustment. As kol de-alim gavar is a withdrawal we have no indication that Beit Din may intervene in these incorrigible cases. As part of that non-interventionist stance Beit Din cannot even seize an item to allow evidence gathering for this would be a level of involvement that Beit Din is not authorized to. Viewing kol de-alim gavar as a pesak-withdrawal may have caused