May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.
This week we learned Bava Batra 35. Here are some highlights.
Bava Batra 35: Would Halacha direct disputants to fight it out even when one is very strong and the other very weak?
Rav Nachman taught that if two litigants come to court, neither possessing the field or boat, this one claims, “It is mine, for it has been in my family for generations and I inherited it,” and the other one claims, “It is mine, for it has been in my family for generations and I inherited it,” the ruling is to let them fight it out. The stronger one will be allowed to keep it. The Gemara challenged the ruling of Rav Nachman from other cases of financial dispute. First it quoted the scenario when two individuals both have a document from the same day stating that they were the recipients of the gift of the field: Rav said they are to divide the field and Shmuel said that the court is to assess who it thinks the giver truly intended to give the field to. Why not direct them to fight it out and let the strongest win? The Gemara answered that in the case of the field that each claims was his ancestors’, the court is leery of dividing it or ruling on the ownership. New information might emerge proving who owned it. However, in the case of the two men who have gift documents on the field, no new information will likely emerge. Therefore, Rav said to divide and Shmuel said to allow the court to assess who is the likely true owner. The Gemara then challenged Rav Nachman from a mishna. The mishna taught that if a man bartered his donkey for a cow, and there is a dispute if the cow gave birth before the donkey was pulled, and then the calf would belong to the seller of the cow, or if it gave birth after the donkey was pulled, and then it would belong to the buyer of the cow, they are to divide the calf. Why don’t we say there “let the strongest man win”? The Gemara answered that in that case, each party certainly had a monetary attachment to the calf. One used to own the cow and one currently owns the cow. Since they each have a monetary bond, the law of division is reasonable. However, in the case of our Gemara, if it belonged to one family it did not belong to the other; therefore, we would not tell them to divide the field, rather the halacha is that they are to fight it out.
How is this halacha to be understood? Why would Jewish law advocate a fist fight? What about if one litigant is very strong and the other is very weak? How is it fair to resolve a dispute by a fight?
Rosh (Perek Gimel Siman 22) provides a rationale for the law of Rav Nachman. “Whomever is the rightful owner will likely bring proof that it is his. Furthermore, the one who is the true owner will give up his life to fight for what is rightfully his. He will fight harder than a person who is a thief and trying to steal. (The thief will not feel as attached to the object.) Furthermore, a thief tells himself, “Why should I risk my life and health for an object that is not mine? Tomorrow the rightful owner might show up in court with witnesses or a document proving it is his and he will then take it away from me.” According to Rosh’s explanations, it seems that if these reasons are not applicable, the law would not direct them to fight it out. If one is very strong, and the other very weak, according to Rosh perhaps we cannot allow them to fight it out. The strong one might fight harder than the weak one, even though the weak one is more motivated for it is truly his. Taz (Choshen Mishpat 139:1) quoted Terumat Hadeshen (Siman 352). Terumat Hadeshen explained that the Sages made the rule of “let them fight it out” even when it does not seem to be fair.
By Rabbi Zev Reichman
Rav Zilberstein explained the logic of the Taz. Halacha sometimes allows a person to take the law into his own hands, avid inish dina l’nafshei. If I am about to suffer a loss by going to court, the halacha allows me to protect my interests and take the law into my own hands. Perhaps, in the cases when halacha rules that disputants are to fight it out, Jewish law has determined that the beit din cannot resolve the issue, beit din removes itself and allows each litigant to take the law into his own hands to save himself from loss. Based on this logic, even if one was strong and the other was weak, in cases such as the case of our Gemara, the court would remove itself and allow the two of them to fight it out. (Chashukei Chemed)
