Siman 139

Two who disagree over a matter and neither of them is in possession of it—like the incident that occurred regarding a ship over which two people contended, and each one said "it is mine," and the sages ruled that "whoever is stronger prevails" (kol d'alim gevar). And similarly regarding land, if each one brought witnesses that he ate of its produce during the years of chazakah, or if each one brought witnesses that it belonged to his ancestors, the law is kol d'alim gevar. For specifically when both of them are in possession of it, like that case of "two who are holding a tallit," we see the object as being in the possession of both of them, and they shall divide it. But in a matter where they are not in possession, why should we rule to divide it? For it is a near certainty that we would be robbing one of them, and it is better for us to establish it upon kol d'alim gevar. And we may assume that the one to whom it belongs will exert himself to keep what is his in his hand, and the one to whom it does not belong will not exert himself in this, saying, "What gain is there in my overpowering him now, when tomorrow he will bring evidence and take it from me?" And since there is no chazakah here—neither a chazakah of domain as in "two who are holding a tallit," nor a chazakah of the original owner (mara kamma) as in the case of one who exchanges a cow for a donkey and it gave birth, which will be explained in siman 223—and there, even without their claims, the beit din has a doubt, and the beit din searches for whatever chazakah exists in the matter and establishes it upon it. But in this case, where the source of the doubt is not known to the beit din at all and there is no chazakah, we rule kol d'alim gevar.

Since the law is "whoever is stronger prevails," therefore, the one whose hand prevails first, it is his until the other brings proof. However, the opposing party can administer an oath of hesset to him that it is his. Even though he acted within his rights in what he seized, nevertheless, we do not have the power to exempt him from an oath when the other claims that he should swear to him. And if after the oath the second one brought proof that it is his, he takes it from this one, and we pay no heed to his oath. But without proof, even if the hand of the second prevails, we do not allow him to take it from the first whose hand prevailed first, even if he did not swear; for if not so, they would forever be in brawls and quarrels, at times this one prevailing and at times the second prevailing. And there are those who disagree on this, for since that which we ruled "whoever is stronger prevails" is not a clear reason, therefore if the second returned and seized it by force, we do not remove it from his hand [Shach]. However, if the first swore, even according to this opinion, the second cannot remove it from him without proof [it appears to me].

If at the time that both of them are divided over the object another person comes and seizes it with a claim, saying that it is his, we do not remove it from his hand, since he is now the muhzak in it and they were not muhzakim in it, and they have nothing but to make him swear a shevuat hesset that it is his. And if he seized it without a claim, we remove it from his hand since he admits that it is not his. And there are those who say that if the thing he seized is mataltelin, he has no atonement until he returns the object to each one, according to the law of gezeilah where one is obligated to return to the owners; and since he does not know who the owners are and each one says "I am the owner of the object," he has no atonement by merely removing it from his hand until he returns to each one. And if it is land and he ate its fruits, the body of the land is not stolen, and the fruits he pays to each and every one. And there are those who disagree on this [Shach], for this is not like actual gezeilah that he should be obligated to return to each and every one, for behold his intention was not to steal, but rather he thought that since they are divided over it, he is permitted to seize it, and therefore he removes it from his hand and that is sufficient for him.

If one of the two came to beit din and said that they should seize it under their hand until he brings proof, they do not listen to him. The reason is because the beit din would not be permitted to remove it from their hand except with clear proof, and we fear that he is a deceiver and has no proof, while his fellow would be able over the course of time to bring proof; and if the beit din does not seize it, his fellow will exert himself to seize it and he will not be able to remove it from him. Therefore, his desire is that it be under the hand of beit din so that his fellow also cannot seize it, and because his proof will be over a duration of time, he will be forced now to compromise with him in order to take it immediately. If, despite this, the beit din seized it, or if both of them requested that they seize it, they do not remove it from their hand until it is clarified to whom it belongs, for a beit din is not permitted to remove money from their hand without complete proof.

If they are divided over a field and neither of them is established in possession of it—for example, the owner of the field died and two came to inherit him, and each one says, "I am the closer relative who is fit to inherit him," and they have no witnesses—if both are established in possession of it, such as if they are engaged in its labor, they shall divide it. And if both are not established in possession of it, "whoever is stronger prevails." And if one prevailed and consumed its produce, and afterwards the second brought witnesses that he is a relative, even though they do not know if this one who prevailed is a relative or not, we remove it from the one who prevailed. Because he has no witnesses at all and is a "doubtful relative," and the other is a "certain relative," the certain one removes it from the doubtful one. And all the more so if the second brought witnesses that he is a closer relative than this one who prevailed, we remove it from this one and give it to that one, and he must return to him all the produce he consumed. Even if it is not known by way of witnesses that he consumed them but rather by his own mouth, and he has a migo that if he wanted he could have said "I did not consume them," nevertheless, since his claim to the produce is by virtue of his claim to the land—that he is the relative fit to inherit it—and the land is removed from him by law, it follows automatically that the produce follows the land even if he has a migo. And there are those who disagree on this: that while it is true regarding the land he is not believed, nevertheless, at any rate regarding the produce he is believed that he is the one fit to inherit by a migo. Only if he himself does not know if he is the closer relative must he pay for the produce as well even when he has a migo, since for him too it is a doubt, and by law it is removed from under his hand [see Shach, subsection 5].

Our teacher, the Rema, wrote: A matter in which the poskim disagree and neither of them has seized it—if it is a matter where division is applicable, they divide it; and if division is not applicable, "whoever is stronger prevails." Thus far his words. And so too regarding every enactment in the Shas, if both are not holding it, they divide it [Taz]. And when division is not applicable, "whoever is stronger prevails." And there are those who explained that all this applies to a matter where it is impossible to perform a division at all, such as what will be explained in siman 170 regarding water in a river, where it is necessary to say "whoever is stronger prevails." But in a matter where it is possible to perform a division, even if division is impossible in the object itself, the beit din seizes the object, sells it, and they divide the money; for the law of "whoever is stronger prevails" is only in a matter that can be clarified, for perhaps witnesses will come, and therefore the beit din does not attend to a division when both are not holding it, as we have explained. But in a legal doubt where clarification is not applicable, or in a claim of "perhaps" and "perhaps," division is preferable [Levush and Shach and Netivot HaMishpat]. And all this is regarding initially, but seizure is effective in a dispute of the great authorities [ibid.], and such is the primary law. And Maharshal, of blessed memory, wrote in a responsum, siman 1: Reuven who held land for three years or more, and before his death admitted that the land belongs to Shimon, and a creditor of Reuven comes to collect from the land—we hand over the land to Shimon, for after his admission there is nothing. And it appears to me that even the produce that he ate is removed from the heirs if he left property, since he admitted.