Sunday, February 26, 2017

Trial by combat in halacha?

Yesterdays daf (Bava Basra 34) discusses the principle of כל דאלים גבר, which seems to be very similar if not identical to trial by combat. The Gemara discusses cases where neither side has definitive proof, for example, Reuven and Shimon each claim they inherited this land (or ship) from my fathers and neither one has proof. The Gemara says that the din is כל דאלים גבר, whoever is stronger should prevail. The Rosh and other Rishonim understands this as trial by combat. The rightful owner of the object will fight harder for it and therefore whoever wins is assumed to be the rightful owner.

Trial by combat went out of fashion about 500 years ago, however, in Halacha this is still on the books. The underlying assumption of the Rosh is clearly not true, might does not make right.

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