Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In last week’s column, we saw that Chapter Three of Tractate Bava Batra deals with disputes over real estate. The Talmud lays down a rule that anyone who works a plot of land continuously for three years is presumed to be its legal owner. But what happens in a case where two people claim to be the owner of the same piece of land, and neither of them can bring legal proof that he has worked it for three years? That is the situation the Gemara addresses in Bava Batra 34b, which Daf Yomi readers studied this week. In such a dispute, each party bases his claim to ownership on inheritance: “This one says: It belonged to my ancestors and that one says: It belonged to my ancestors.” How can the court decide between them, if neither one has documentary proof or witnesses?

The principle in such cases, the Gemara explains, was established in an analogous dispute over the ownership of a boat. In that case, the rule was that the court takes no action at all: “We do not seize property in a case where ownership is uncertain, and where it was seized, we do not release it.” Then how does the dispute get resolved? The Talmud answers with an ambiguous formula: “Whoever is stronger prevails.” In other words, the parties fight it out, and whoever manages to seize the property keeps it. This is a troubling saying, because it seems to represent an abdication of the whole responsibility of the judges. If the stronger party prevails, then might makes right, and there is no reason to have laws or judges in the first place.

The Koren Talmud explains, in its notes, that commentators have disagreed over just what “whoever is stronger prevails” is supposed to mean. Is it a legal principle, meaning that whoever physically wins control of a piece of property is its rightful owner? If this were the case, then the rabbis would seem to envision the parties in the dispute fighting once and for all. Whoever won the boat, or the land, in the initial fight would thereupon become its legal owner. The rival claimant could not then return later—say, with a group of strong friends—and wrest the boat back, because that would constitute stealing.

Other interpreters of the Talmud, however, have opined that “whoever is stronger prevails” is not a legal dictum, but simply a pragmatic observation. When judges can’t honestly decide between two claims, because no evidence is available, then in practice the stronger party will take hold of the property. But this does not mean that he has legal title to it; and if the rival claimant manages to seize it back at some later date, so be it. If “whoever is stronger prevails” means no more than this, then the two parties have a strong inducement to settle the case to avoid a perpetual feud that would effectively deprive both of them of secure ownership.

Indeed, a little later on, in Bava Batra 35b, the Gemara asks what happens if two parties are fighting over the same piece of property, and the court rules that “whoever is stronger prevails,” and then a third party comes and takes it away from both claimants. Does this qualify as a theft? The answer appears to be no, since “a robber of the public is not called a robber.” In other words, it is impossible to steal a boat that doesn’t belong to anyone. Since neither of the initial claimants could prove ownership, neither has the right to demand the return of the boat if it is taken. This seems to let the third party off the hook a little too easily, and Rav Ashi adds a qualification: “Actually, he is called a robber,” and the property he steals should be taken back from him by the court. But there is still an ambiguity, because the robber would ordinarily have to make atonement to the person he stole from, and in this case he can’t know who deserves reparations.

If the principle of “whoever is stronger prevails” leaves both claimants in a legal limbo, why doesn’t the court simply force the parties to settle? After all, the Gemara observes, that is the procedure followed in similar situations. “In what way is this case different,” the rabbis ask, “from the case where two people produce two deeds of sale that are issued on one day?” If two parties each have a deed bearing the same date, then the original owner must have fraudulently sold the property twice. In that case, the law holds that the parties divide the property (according to Rav), or else that the judges divide it at their discretion (according to Shmuel). Why not do the same in a case where neither party has any deed to show?

However, the Gemara rejects the analogy. In a case where both parties have a deed bearing the same date, “it will not be possible for the court to clarify the matter.” Because the deeds cancel one another out, no further information could ever be found to make the decision easier. (Even if a witness emerged saying that one deed was written a few hours earlier in the day, it might not make a difference, since according to some authorities the date is what governs the contract, not the time.) So the court might as well enforce a judgment based on its present knowledge.

But in a case where neither party can show a deed of sale, it is theoretically possible that at some time in the future, a document or a witness will emerge to prove one claim and refute the other. To make a judgment now, based on inadequate information, might mean committing an injustice. Better for the court to do nothing, the Talmud suggests, then to put an unjust decision on the record.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on Tablet’s complete archive of more than four years of columns, click here.