Thursday, October 08, 2009

The Disputed Boat

By: Rabbi Mordechai Kornfeld

The Gemora discusses two cases in which two litigants argue over the ownership of an object (a boat) which neither one of them is holding in his possession. In the first case, one of the litigants asks the court to appropriate the object and hold it until he brings testimony of witnesses to support his claim (so that the other litigant should not seize the object in the meantime and sell it to a third party, from whom the litigant with witnesses will not be able to get it back in court). In the second case, the Gemora asks who is entitled to keep the object when neither litigant asks the court to hold it. In that case, Rav Nachman rules: “Kol d’Alim Gevar” – “whoever is stronger prevails.” The Gemora itself says that the same halachah, “Kol d’Alim Gevar” applies in the first case.

If the same halachah applies in both cases, why does the Gemora change the other details of the case? In the first case, the Gemora says that each of the litigants claims that the boat is his. In the second case, the Gemora says that each of the litigants claims that the boat was his father’s. Why does the Gemora not present the second question as a case in which each litigant claims that the object is his, in which the halachah is still “Kol d’Alim Gevar”?

Perhaps the Gemora prefers to give a case in which it is clear that neither defendant expects to find proof to support his claim of ownership, and therefore neither will request from the court to hold the object. When each one says, “The object is my father’s and I received it as an inheritance,” it implies that he does not know how his father obtained it, but just that he left it as part of his estate. If the claimant does not know how his father acquired the object, he will not to be able to prove his ownership. [Although he might be able to prove that the object was seen in the possession of his father, such proof will not suffice to resolve the case, because -- at the present moment -- the object is in the possession of neither litigant, as Tosfos writes on 33b, DH v’Iy Ta’in.]

In addition, the Gemora asks why the halachah here should differ from that in the case of “Shtei Shtaros” – “two documents,” where the halachah is either “Yachloku” – “they divide it” (or "Shuda d’Dayanei"), and the Gemora answers that “Yachloku” (or "Shuda d’Dayanei") applies only when neither litigant can bring proof for his claim. In contrast, in the case here of the disputed boat, it is possible for one of the litigants to prove that the boat belongs to him. Had each litigant said that “the object is mine,” this answer would have been obvious. The Gemora assumed, however, that when each one says that the object belongs to his father (implying that he has no knowledge about how his father obtained it), one might have thought that the halachah is “Yachloku” (or "Shuda d’Dayanei") since the case will remain unresolved. The Gemora answers that even though, at present, neither litigant expects to find proof to his claim, nevertheless he can search and perhaps find proof of his father’s ownership. Therefore, the halachah in such a case remains “Kol d’Alim Gevar.”

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