(a) The RASHBAM (end of DH Hasam) explains that when it is possible that one
litigant will bring proof to support his case, Beis Din does not rule
"Yachloku" or "Shuda d'Dayani," because Beis Din might need to retract its
ruling at a future time when proof is brought. Therefore, Beis Din does not
get involved, but rather they leave the case alone and let the litigants
contend with each other, and whoever is stronger will overpower the other
until either one can present to the court proper proof of ownership.
The Rashbam's words imply that "Kol d'Alim Gevar" is not a Halachic ruling
that Beis Din issues based on an analysis of the case. Rather, "Kol d'Alim
Gevar" is a mechanism wherein Beis Din withdraws from the case and issues no
ruling.
(b) The ROSH here (3:22), in Bava Metzia (1:1), and in Teshuvos (77:1)
writes that there is some logic to the principle of "Kol d'Alim Gevar." He
explains that, first, the true owner will probably bring proof to his owners
hip soon, as the Gemara explains, and therefore even if one overpowers the
other, justice eventually will prevail. Second, it is probable that the true
owner will overpower his opponent, because he will put more effort into
claiming the object since he knows that it is his by right. The claimant who
is not the true owner will not put forth so much effort to get the object,
because he is afraid that the court will take it away from him later and
give it to the other party based on proof of ownership that the other party
will bring.
The Rosh adds that once one person overpowers the other, Beis Din no longer
allows the two of them to physically seize the object from each other
without sufficient proof of ownership, in order that they not continually be
fighting with each other.
The SHITAH LO NODA L'MI (cited by the Shitah Mekubetzes) questions the
Rosh's explanation. According to the Rosh, why should Beis Din get involved
with the case and protect the rights of the first person who seizes the
object? The Gemara teaches that Beis Din prefers to stay uninvolved with the
quarrel and not pass judgement, and thus even when one litigant seizes the
object, Beis Din should still stay uninvolved and not pass judgement! The
Shitah therefore rules that Beis Din will *not* protect the seizure of the
object by either party, and even after one party has seized the object, the
other can grab it back and take it for himself.
It seems that the Rosh, who argues with the Shitah's view, understands the
principle of "Kol d'Alim Gevar" differently. Rather than being a withdrawal
of Beis Din from the case, Beis Din indeed is issuing a ruling on the case.
As the Rosh himself explains, Beis Din is ruling that the one who overpowers
his opponent is the true owner. Therefore, after one overpowers the other,
Beis Din is entitled to become involved in order to uphold its ruling.
The CHASAM SOFER and CHIDUSHEI RABEINU MEIR SIMCHAH explain, based on this,
a new way of understanding the Machlokes (on 34b) regarding whether Beis Din
is allowed to return the object to the public domain, after Beis Din has
appropriated the object in order to give time to the true owner to bring
proof of ownership, and allow the litigants to fight over the object. Rav
Yehudah, who says that Beis Din may *not* remove the object from the domain
of Beis Din, maintains (like the Rashbam) that "Kol d'Alim Gevar" means that
Beis Din withdraws from the litigation. Beis Din has no right to withdraw,
though, once it has already taken the object into its custody, as the
Rashbam explains there. Rav Papa who argues and says that Beis Din can
return the object maintains that "Kol d'Alim Gevar" is also a form of
justice, and therefore Beis Din may take the object out of its custody and
say "Kol d'Alim Gevar," being assured that justice will be done.
However, there are some questionable points on this understanding of the
Rosh. First, the Poskim cite the Rosh's ruling l'Halachah, even though we
also rule that "Lo Mafkinan" -- once the object is in the custody of Beis
Din we do not take it out of Beis Din's custody and say "Kol d'Alim Gevar."
Second, if the Rosh indeed is proposing a logical reason to explain why the
one who grabs the object is probably the true owner, then why should that
logic not apply after the first time the object is seized by one of the
disputants? If the second disputant later overpowers the first and takes the
object from him, then it should show that *he* is the true owner and not the
first one!
Third, the Rosh himself in Teshuvos (loc. cit.) seems to contradict his
explanation. Although he repeats what he writes in our Sugya, he writes that
"Kol d'Alim Gevar" is *not* a "Din," a formal ruling of Beis Din, but rather
it is merely the withdrawal of Beis Din from the case ("Histalkus"), where
Beis Din declines from issuing a ruling! He proves this first from our
Gemara, which says that the reason we rule "Kol d'Alim Gevar" is because one
defendant might eventually bring a proof, and therefore it is not necessary
for Beis Din to pass a ruling. This implies that "Kol d'Alim Gevar" is the
act of refraining from issuing a ruling. (See also KOVETZ SHI'URIM who asks
this question without citing the Teshuvah of the Rosh.)
In addition, RABEINU CHANANEL (cited by Tosfos and Rashbam on 34b) writes
that we do not apply "Kol d'Alim Gevar" when the disputants are holding the
object, because Beis Din has no right to take the object out of someone's
hands when it does not know who owns the object. This again implies that
"Kol d'Alim Gevar" would *not* determine the identity of the true owner of
the object. The Rosh, based on these proofs, therefore rules that when one
party overpowers the other, the losing party is entitled to force the
winning party to swear with a "Shevu'as Heses" that the object is his.
Based on what the Rosh in Teshuvos writes, it seems that the Rosh here
should be understood differently. The Rosh agrees that "Kol d'Alim Gevar" is
a means for Beis Din to withdraw from the case. However, the Rosh was
bothered by a question: how can Beis Din -- the role of which is to maintain
peace and order in the community (Bava Metzia 96b) -- remove itself from the
case and refrain from maintaining the peace, allowing chaos to prevail? The
Rosh therefore proposes two complementary suggestions. First, the court will
stop the free-for-all after the first seizure of the object, and
consequently peace will be restored. Second, even the first seizure has some
logical basis in determining the ownership of the object, since we may
assume that the one who prevailed over his opponent is the true owner. (M.
Kornfeld)