[Avodah] kol dalim gvar

[Micha Berger]

On Wed, Jan 21, 2026 at 06:27:18AM +0200, Joel Rich via Avodah wrote:
> Is kol d'alim a permanent tug of war as in (Let That Be Your Last
> Battlefield -- Wikipedia) or is whoever prevails first now the
> permanent owner?

The Rosh (BB 3:22) argues that kol de'alim gevar establishes ownership
and the item cannot be grabbed again.

His reasoning:
Kol de'alim gevar only applies when we don't know who would be the
motzi in "hamotzi meichaveiro". We assume that the person with righteous
indignation is more likely to be the "alim", and so the loser would now
be subject to "alav hara'ayah".

Tosafos (BB 34b "hahu arva") and the Shitah Mequbetzes (34:3, citing
the Ri) say that ownership is never resolved.

Their reasoning:
The mechanism for kol de'alim is that the court cannot rule, so it
bows out. Ownership is now in a state of anarchy, with no ajudication.

Presumably: until they agree to arbitration / pesharah. There is a way
out of the Last Battlefield.

Going to halakhah lemasseh:

SA CM 139:1 holds like the Rosh. It cannot be grabbed back.

The Shach (s"q 1) argues in favor of Tosafos.

The AhS se'if 2 holds like the Rosh, that getting it back would require
a ra'ayah.
He also brings up the subject of the other litigant being allowed to
demand a shavu'ah after it was grabbed. And therefor the AhS opines
("nir'eh li") that even according to the Shakh, if the first party
did make that shevu'ah, the second party cannot grab it back. Not
that he pasqens like the Shakh anyway.

Tir'u baTov!
-Micha

PS: I only was able to put your email aside and look up the sources
because this was an email list. I couldn't give an answer like this
on social media. And that's why I keep Avodah limping along even while
most of the eyeballs are looking elsewhere. This kind of discourse is
too valuable to just let die.

-- 
Micha Berger                 A flower does not think of competing with the
http://www.aishdas.org/asp   flower next to it -- it just blooms.
Author: Widen Your Tent                  - Sensei Ogui
- https://amzn.to/2JRxnDF