For the last few pages, the Gemara has discussed scenarios in which two people make a claim to the same property, but neither has solid proof of ownership or sale. In each case, one party has a chazakah, a legal presumption of ownership based on their usage of the land over time. The term chazakah stems from the verbal root chet-zayin-kuf which means to strengthen and also to hold. The legal presumption of possession also contains these two possible meanings: One’s presence on the land strengthens the person’s claim and a strong hold on the property creates evidence for the claimant living there.
A story on today’s daf further explores the role of physical strength and tangible possession in deciding cases of contested property:
There was a certain boat that two people were quarreling about. This one said: “It is mine,” and that one also said: “It is mine.” One of them came to court and said: “Seize it until I am able to bring witnesses that it is mine.”
Do we seize it or do we not seize it? Rav Huna said: “We seize it.” Rav Yehuda said: “We do not seize it.”
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The man went to seek witnesses, but did not find witnesses. He then said to the court: “Release the boat, and whoever is stronger prevails.”
Do we release it or do we not release it? Rav Yehuda said: “We do not release it.” Rav Pappa said: “We release it.”
The halakhah is that we do not seize property in a case where ownership is uncertain, and where it was seized, we do not release it.
One of two contested owners of a boat asks the court to intervene and put the boat in escrow until he can gather witnesses for his claim. The court agrees but the claimant does not succeed in producing proof of his ownership. However, by asking the court to intervene the boat is now no longer in the physical possession of either person, nor does either side have proof of ownership. It is a true tie.
Then, the claimant who asked the court to seize the boat asks something quite brazen: to release the boat and “whoever is stronger will prevail.” Like a referee who throws a jump ball on a basketball court, the court of law is being asked to step aside and let the strongest person wrest the boat away from the other. This seems antithetical to the rule of law, which is supposed to prevent people from violently taking justice into their own hands.
The rabbis on today’s daf debate when it is appropriate to allow a physical fight to supersede legal decision making. The Gemara concludes by ruling in favor of Rav Yehuda: The court should not get involved in a case where there is no legal evidence on either side. This means that yes, the court should allow the natural, conceivably violent, competition between the two claimants to play out. But once the court gets involved, then there is no going back to direct competition.
Over the centuries, the rabbis have not easily accepted the principle that whoever is stronger wins — even in a case when the court has no other information on which to base its ruling. But sometimes “might makes right” is the path forward and, similar to chazakah, means that tangible hold on an object has legal weight. The 13th-century commentator Rabbeinu Asher justifies this practice by asserting that whoever works the hardest to get an object back likely had a stronger claim in the first place. But other commentators worry that this solution is temporary: If the winner takes all, then maybe these two litigants will continue stealing the boat back and forth for the rest of their lives.
Read all of Bava Batra 34 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 29, 2024. If you are interested in receiving the newsletter, sign up here.
