Dear Kollel Iyun Hadaf,
Thank you for your wonderful and insightful work.
I have a question on " "Kol d'Alim Gavar" - Just because someone is a Mafioso - the Beis Din should side with him?
TOSFOS (DH v'Yachloku) explains that the Halachah indeed would be different if they were not holding the garment. Tosfos bases this assertion on the Gemara in Bava Basra (34b) which teaches that when two people come to Beis Din with a dispute about the ownership of a boat, Beis Din rules "Kol d'Alim Gavar" -- whoever is stronger prevails. Beis Din does not rule that the two litigants split the boat. Tosfos explains that since neither claimant is in physical possession of the boat, there is no positive proof that the boat belongs to one of them. In such a case, Beis Din prefers to let the stronger one prevail, rather than to give half of the boat to each person, a ruling which might cause the rightful owner to lose his boat.
I had a situation where I bought an apartment in a house that had a courtyard. I asked the owner who sold me the apartment, "where can I build my Sukkah?"
He showed me where he built his sukkah every year in the common courtyard and he told me that his chazakah will be transferred to me. Unfortunately, one of the neighbors grabbed my space. Kol d'Alim Gavar? This neighbor told me that a rabbi told him that since the courtyard belongs to everyone - anyone is allowed to grab it! Is this an example of "kol d'olim govar"?
thank you for your thoughtful answer.
Aurel Littmann
Shalom Aurel,
You are asking an excellent question. The Rosh addresses this in Bava Metzia (#1). The concept is based on two principles: (1) that since there is no Muchzak and there are no proper proofs for either side, by rendering a decision the Beis Din may actually be aiding and abetting the wrongful party; therefore, recusal is the path of choice and "Kol d'Alim Gavar" is the result. (2) The second underpinning of this Halachah is that there are three reasons why the outcome is biased for the true owner:
1. Seeing as it is truly his, he will be more aggressive and forceful about retaining his ownership than the usurper.
2. He is more likely to provide the circumstantial evidence which can sway Beis Din and bring a winning decision for him (i.e. not only force is included in the concept of "Kol d'Alim Gavar").
3. The usurper will consider that even if he wins today, the original owner may produce acceptable testimony and Beis Din will take away his hard-earned prize.
You may ask that sometimes the owner is a wimp and the poacher is a bully. True, but remember that Beis Din is not blind and they have the free reign to do as they see fit (Ein l'Dayan Ela Ma she'Einav Ro'os), so there is a built-in safety feature to extreme misuse of "Kol d'Alim Gavar."
About your Sukah, it is true that whatever Chazakos your seller had now belong to you. Unfortunately, the Poskim say that a Sukah is not called a Chazakah since it is not there the whole year. You have two options: (1) ask your seller if he ever had any recognition of his right to the place or gave anything in return (just be very careful from Rechilus not to let him know that somebody has challenged it already; tell him you heard from the Kollel that there is no Chazakah on the Sukah and did he know that?). (2) Alternatively, you might consider speaking to the Rav whom your neighbor asked, explain to him the situation and perhaps arrange some peaceful rotation on the place. Above all, keep peace between the neighbors so that your Sukah should not become a sort of Mitzvah that comes with an Aveirah.
Kesivah v'Chasimah Tovah,
Shimon Brodie
Dear Rabbi Brodie, sh'lita
Thank you for your thoughtful answer to my question.
Re: My sukkah spot.
1) We went to a Rabbi/Rosh Yeshiva/Posek/ Godol HaDor...before my neighbor went to his rabbi (the neighbor was the president of that rabbi's shule). The Gadol HaDor compared our case of the Sukkah spot to one who has a chazokoh on holding the eruv tavshilin in a chotzer. Even though such a chazokoh may not be the strongest - it is brought down that it certainly holds!
2) I offered to redesign the courtyard in such a way so that both of our sukkahs could be accommodated, but, unfortunately, my neighbor refused that offer. By now, this is only an academic question as he moved out of the house and a family with many children moved in and I gave them the spot.
3) This wimp lost and kol d'olim govar - got his way.
Maybe, beis din should grab the boats and give them to the rightful owner or split the value. Then, at worst, the poor wimp would get at least half the value of his property.
Thank you again for your thoughtful answer.
Aurel Littmann
Let me tell you a story I heard many years ago. I don't believe that the story is true, but its lesson is still relevant. A very righteous man had a dream that the Heavenly Beis Din wanted to give him a gift of sorts and asked him what he would like. Since it was almost Pesach, he asked that he would like to see the best Pesach Seder and the worst. The Beis Din granted his request. Suddenly, he could see in his dream a beautiful dining room with a long table set in truly royal fashion. Each place had a silver Becher, the smiling children were all wearing new clothes, the host wore a beautiful sparkling white Kittel and there were even some poor guests at the end of the table. The host gave lengthy explanations on the Hagadah and the rich smell of meat and kugel unmistakably filled the room. This Tzadik was a bright fellow so he got the idea and told the Heavenly Beis Din, "Thank you, now I have seen the best Seder. Could I now see the --," suddenly, the roar of laughter drowned out his words and he realized that all of the Mal'achim were laughing at him. Eventually his guide explained. What you saw now was the worst Seder! This guy thinks he's great, and that he has the best Seder in the world. And his Divrei Torah? He doesn't realize that his hand-picked poor people at the end of the table have not eaten in two days and that one of them is about to pass out from hunger!
The Tzadik nodded his head in understanding. He asked humbly, "May I see the best Seder?"
Suddenly, he saw a small dark dining room with a few candles and a regular Shabbosdik table with an old frail woman sitting at the table. It was about 45 minutes before Chatzos, midnight, and her husband walked in and sat down to make Kidush. "How are you feeling?" she asked, and he replied, "Not a whole lot better, but it's very late." He had a severe headache that made it absolutely impossible to make the Seder and he had gone to lie down right after Ma'ariv and had fallen deeply asleep. He made Kidush, Urchatz, Yachatz, and Magid all at the speed of light, Motzi Matzah, drank a sip of soup, and ate the Afikoman before Chatzos. As he recited Birkas ha'Mazon his eyes were full of tears from beginning to end and his wife asked him, "Is it so painful, should we call a doctor?" to which he replied, "What pain?" She was astonished, he really meant it and she asked him, "But the tears?" to which he replied, "My dear wife, these are only tears of gratitude, joy, and love for Ha'Kadosh Baruch Hu that he gave us the great Mitzvos of Pesach, Matzah, and Maror, and gave me the great gift to fulfill them all even though before I wasn't feeling so well."
"And now," said the Mal'ach, "You have seen this year's best Pesach Seder."
The moral of the story: Be careful about whom you call a "wimp."
Kesivah v'Chasimah Tovah,
Shimon Brodie