Rabbi Meir Orlean
Lag BaOmer had arrived. Piles of wood stood high, ready to honor Rabi Shimon bar Yochai with bonfires late into the night.
In an empty lot, two groups had built tepees of wood for their bonfires. Between them lay a long, heavy log.
One group approached the log to haul it into their fire. As they gathered around the log, the adjacent group called out to them, “What are you doing with that log?”
“We dragged it here yesterday,” the first group replied. “We’re going to add it to our bonfire.”
“What do you mean?” argued the second group. “That log is not yours! We brought it here yesterday.”
“You’re a bunch of liars,” retorted the first group. “The log is ours!” They reached down to take the log.
The second group charged them and started pushing them away. “Don’t you dare take our log!” they threatened.
Voices flared and the two groups began making fists.
Mr. Gruen, who was standing by to supervise the bonfires, quickly came over. “What’s going on?” he asked. “Rabi Shimon would not appreciate violence, not to mention the danger of the fires burning nearby.”
“The log lying here is ours,” both groups shouted simultaneously. “They’re trying to steal it from us!”
“Well, who found it and brought it here?” asked Mr. Gruen.
“We did,” claimed both groups.
“Can either of you prove it?” asked Mr. Gruen.
Neither group could provide adequate proof.
“In that case, let the log stay here meanwhile,” said Mr. Gruen. “Each group should choose a representative, and we’ll go ask Rabbi Dayan what to do about the log.”
Mr. Gruen and the two representatives went to Rabbi Dayan. “There is a log between the two bonfires,” Mr. Gruen said. “Each group claims that the log is theirs. They almost got into a fight over it! What do we do?”
“When two people argue over ownership of an item and neither is in possession or has conclusive proof,” replied Rabbi Dayan, “the Gemara rules, ‘kol d’alim gavar — whoever is stronger wins’” (B.B. 34b).
“Why is that?” asked Mr. Gruen. “Since when does might make right?”
“There are two explanations,” answered Rabbi Dayan. “Rashbam (B.B. 35a) explains that since neither party is in possession or presents conclusive proof, yet the issue may still be resolved should one procure evidence, beis din does not rule, but instead steps aside and allows the parties to ‘fight it out.’”
“Rosh (B.M. 1:1; B.B. 3:22), however, explains that kol d’alim gavar itself is considered a ruling,” continued Rabbi Dayan. “Chazal rely on the presumption that the true owner will more likely succeed; he will make a stronger effort to secure or show his ownership (Sma 139:2).”
“What if the other party subsequently grabs the item back?” asked Mr. Gruen.
“Rosh and Shulchan Aruch write that once one party takes the item, he remains in possession even if the other party subsequently overpowers him, unless the latter brings valid proof,” replied Rabbi Dayan. “This follows Rosh’s explanation that kol d’alim gavar is a ruling that Chazal instituted in the absence of proof or possession (C.M. 139:1; 146:22).
“Shach (139:2), however, cites other Rishonim that if the second party subsequently grabs the item back, he can retain it,” continued Rabbi Dayan. “This seemingly follows Rashbam’s explanation that beis din does not get involved in the case” (Shita Mekubetzes, B.B. 34b).
“It seems inappropriate to rule kol d’alim gavar nowadays,” commented Mr. Gruen.
“Indeed, Shevus Yaakov (2:167) suggests that nowadays it is preferable that beis din divide the item or settle the dispute with a lottery,” replied Rabbi Dayan. “There are strict civil laws about violence, and potential trouble can come from ruling kol d’alim gavar.
“Thus,” concluded Rabbi Dayan, “whoever succeeds in taking the log first can keep it, but if there is concern for violence, an alternate solution should be arranged.”