Bava Basra 34
Our Gemara on amud beis discusses certain legal situations where both claimants have an equally valid argument, and one has no default assumption of ownership over the other:
There was an incident where two people disputed the ownership of property. This one says, ‘It belonged to my ancestors and I inherited it from them,’ and that one says, ‘It belonged to my ancestors and I inherited it from them.’ There was neither evidence nor presumptive ownership for either litigant. Rav Naḥman said: Whoever is stronger prevails (“Kol de’alim gavar”).
There is some dispute amongst the commentaries and poskim over what is the official stance of the court. Are the judges fully recusing themselves, and thus literally no justice is served? It is simply up to the two litigants to fight it out? Or is it a ruling that the judges allow some kind of process whereby the two individuals fight it out amongst themselves which leads to some demonstration and evidence of ownership? In other words, the person who has the greater will and moral resolve somehow will prevail, be it providentially or through some other means.
There are two halachic implications of this legal-psychological-spiritual concept, depending on how it is understood. If it is merely a withdrawal and recusal of the judges, that would mean that a month from now if the litigant who lost could somehow strong-arm and retake possession, he would have the same rights as the prior winner. Second, even the first litigant who prevailed in this battle of wills is not a true owner, but rather an occupier, and cannot use this possession as part of an exchange that activates a Torah obligation, such as giving it as an object of value to effectuate kiddushin.
However, if the judges allow this ordeal to take place and consider it de facto evidence of ownership, it becomes validated and is considered a court-mandated possession. It would not be reversible even if the second litigant later prevailed and took the property out of the first person’s hands. (See Rashbam on this daf, Tosafos Rid Bava Metzia 2a, Rosh Bava Basra Chezkas Habatim 22 and Rav Elchonon Wasserman Kovetz Shiurim, Kesuvos 55 and Kovetz He’aros 71:2.)
How is this justice? On a simple level, we can understand that the greatest justice arises when the judges and the court are humble enough to understand that they have no ability to get to the bottom of the issue. It might be disturbing and unfortunate that they cannot be agents of justice, but it also is a powerful statement that our abilities end here and therefore we must recuse ourselves. But even further, if we follow the Rosh, this may also be seen as a judicial action, based on a certain evidentiary process. A basic understanding of the Rosh’s position is that the struggle somehow proves the winner is the rightful owner because the thief or liar is ambivalent but the true owner is resolute.
There are deeper psychological and metaphysical aspects to this as well. Likkutei Halachos (Choshen Mishpat, Hilchos Chezkas Metaltelin 1) explains that a person’s possessions have a certain draw and spiritual attachment as an expression of who they are. To the thinking of Likkutei Halachos, the possessions of a person who walks with G-d are divinely ordained. In the world of a person whose soul and self are attuned, he will feel drawn to (or, I suppose, repelled by) objects and experiences. For such a person, even the most mundane object or experience is multivalent. Nothing happens without introspection, mindfulness, and attachment to G-d’s will (as beautifully articulated in Moreh Nevuchim’s (III:51) famous “Palace Metaphor.”
Throughout history, cultures employed various forms of trial by ordeal in the hopes that either the person subjected to the test would be saved because of their stronger conviction of their innocence, or their guilt would lead to self-sabotage, or their innocence or guilt would be divinely orchestrated at that moment of intense danger or truth. The phrase “trial by fire” comes from an ancient practice where authorities would determine a person’s guilt or innocence based on whether they could survive walking through a fire, or how quickly their burns would heal. Similarly, an accused may be tied, weighed down, and thrown in the water, with the presumption that an innocent person would somehow miraculously survive.
The Torah also uses ordeals, at least regarding the Sotah ritual, though the ordeal is strikingly different in expectations. Instead of a test to see if the person is innocent (“let’s see if you don’t drown or burn”), the Sotah ritual is a test to see if one is guilty. There is a big difference here, especially if one humbly holds that a society which employs the ritual must be overall deserving of divine intervention. The Gemara (Sotah 47a) says that the Sotah waters stopped working when adultery began to proliferate.
The point is, in our religion the ordeal relies on a miracle to prove guilt, which is more respectful because nobody dies if there isn’t enough merit for this. Secular ordeals throw the defendant in the fire or water and expect the miracle to save the person. That could be unfortunate for many innocent people who do not merit divine intervention to save them. (It is considered impertinent to “force” G-d’s hand by making demands or tests of faith (see Ta’anis 23a and Rosh Hashana 4a.))
In regard to the ordeal of Kol de’alim gavar, it would seem we are demanding a miracle in the expectation of divine intervention in granting the true owner possession via his victory. Why is that not impertinent? The answer is that even though it is a test, relying on divinely granted inspiration for the true owner to stay in possession, since in this instance technically each person is equally in possession of the property, and there are no dire consequences if there is no merit. Meaning to say, in the secular ordeal, G-d is, so to speak “set up.” We throw the person in water or fire and say, “If he is innocent, G-d will save him.” However, in this case of Kol de’alim gavar, though we are saying, “If it is truly his, G-d will help him, inspire him, or his spiritual sense of his objects will guide him to win the struggle and take possession,” it is still not relying on a on an outright miracle for him to maintain possession. Furthermore, if he does not merit any supernatural inspiration or guidance, he won’t drown, burn, or necessarily lose the object. This is because he currently has equal possession.
Myth and Midrash
Bava Basra 36
Our Gemara discusses a scenario whereby a farmer expends a kor of seed to sow and retrieves only a kor of produce, resulting in a net zero gain. In such a case, the consumption is not sufficient to establish a chazaka. Since he’s not making any profit, it doesn’t raise enough interest on any other potential claimants to make an official objection.
One of the most famous examples of a net zero gain is the “Fox Parable” from Koheles Rabbah on the verse: “As he came out of his mother’s womb, so must he depart at last, naked as he came. He can take nothing of his wealth to carry with him” (Koheles 5:14).
As he emerged from his mother’s womb, so he will return naked, to go as he came, and he will take nothing for his toil that he can carry in his hand” (Ecclesiastes 5:14). “As he emerged from his mother’s womb” – Geniva said: [It is analogous] to a fox that found a vineyard fenced in on all sides. There was one small opening, and he sought to enter through it but was unable to do so. What did he do? He fasted three days until he was thin and weak, so he was able to slip through the opening. Of course the clever – but not too clever – fox gorged himself and grew fat. He sought to exit, but could not squeeze out through the opening. The fox again fasted three other days, until he was thin and weak, and returned to be as he had been, and he exited. When he exited, he turned his face and looked at [the vineyard]. He said: “Vineyard, vineyard, what good are you, and what good are the fruits that are in you? Everything that is in you is good and excellent; however, what benefit is there from you? Just as one enters into you, so he emerges.’ This world is the same: There are many materials things that one can enjoy, but they won’t be able to take it with them.
This is a beautiful and powerful parable. There are records of similar versions of this parable in Greek literature. In Aesop’s Fables, or the Aesopica (around 600 BCE), the following story is told:
It happened that a slender fox had made her way through a narrow crack into a coffer of grain. After eating her fill, she wanted to get back out again but her swollen body prevented her from doing so. At a safe distance the weasel said to her, “If you want to get out of there, you better be as thin when you go back through that narrow crack as you were when you went in.”
This is not the only instance of a Midrashic story that is similar to a secular version. Another example is the story of Choni Hame’agel, who fell asleep for 70 years. (See Ta’anis 23a, and Yerushalmi and Midrash Tehillim on Psalm 126 with small differences.)
The motif of a person falling asleep for numerous years is found in a number of cultures and mythologies. Let us look into its history and possible universal meanings. The famous American story Rip Van Winkle, authored by Washington Irving in 1819, tells of a man who fell asleep and missed the American Revolution. In some way, the falling asleep and waking up motif is an important literary device to help the reader experience and process a sudden change in historical perspective.
Actually, in the Yerushalmi Ta’anis version of the story, a similar process happens, as the protagonist sleeps through the churban (destruction of the Temple), which is only alluded to in the Bavli’s quotation of Psalm 126. The narrative of the person who sleeps through it all and wakes up accentuates the shock and difficulty at the drastic change caused by the destruction of the Temple.
While there are Christian and Islamic versions of this story, that is not particularly interesting because they obviously are knock-offs of the Jewish tradition that preceded them. (There is a Hindu story from their literature but it is not earlier than the Mishna, and the story doesn’t have many similar elements other than a long sleep, so we can assume it to be a completely coincidental and parallel development.) What is more fascinating is when there are records of stories of sleepers that predate Choni’s time, which was in the first century BCE.
The third-century CE Greek historian Diogenes Laërtius recorded in his book, Lives and Opinions of Eminent Philosophers, a story of Epimenides of Knossos, who entered into a cave and fell into a deep sleep for 57 years. Though Diogenes wrote his history in the times of the Gemara, the stories and traditions he reported were about sages of earlier times, and presumably have some validity. In this case, the man being described, Epimenides, reportedly lived several hundred years earlier.
There also is the Greek legend of Narcissus, and the Jewish version. Nedarim (9b) and Nazir (4b) tell us about a pious lad, who upon seeing himself for the first time in a reflection in the water, vows to become a nazir. He is so horrified by the overwhelming feelings of pride in his own handsome looks that he takes immediate action to abstain from hedonistic pleasures, and becomes a nazir in order to tame his lust and arrogance. Compare this to the story of Narcissus:
Once, during the summer, Narcissus was getting thirsty after hunting, and the goddess lured him to a pool where he leaned upon the water and saw himself in the bloom of youth. Narcissus did not realize it was merely his own reflection and fell deeply in love with it, as if it were somebody else. Unable to leave the allure of his image, he eventually realized that his love could not be reciprocated and he melted away from the fire of passion burning inside him, eventually turning into a gold and white flower.
As another example, consider the origin myth of the Roman Empire: Romulus and Remus, two brothers who were abandoned as infants and suckled by a she-wolf, are considered by both the Greeks and the Jews as the founders of Rome (Dionysius, vol. 1 p. 72). This myth is also mentioned in Esther Rabbah 3 and Midrash Tehillim 17.
My good friend Yaakov Shapiro also showed me the Greek myth of Procrustes, who had a bed in which he invited every passer-by to spend the night, and where he set to work on them with his smith’s hammer to stretch them to fit. If the guest proved too tall, Procrustes would amputate the excess length; nobody ever fitted the bed exactly. Compare this to the midrash about the famous “hospitality” of the people of Sodom described in Sanhedrin (109b), “They had beds on which they would lay their guests; when a guest was longer than the bed they would cut him, and when a guest was shorter than the bed they would stretch him.”
And finally, we have Talmudic references to the she-demon, Lilith, who seems similar to the Greek Medusa, both of whom have hair made up of snakes (see Niddah 24b and Eiruvin 100b).
What are we to make of the similarities between the Midrashic or Talmudic stories and the Greek myths? There are various approaches to Midrashic stories, with some Rishonim taking a position that the stories all must be taken as literal, historical fact, while others see them as parables. There are variations on these points of view, such as those who believe the stories are true literally and also have deeper meanings, as well as those who take the stories to be true accounts but experienced in a dream or trance-like state. Finally, there are those who combine approaches and advocate using common sense to understand which midrash is a metaphor and which is literal. For a good discussion of the viewpoints on this, see the various introductions to aggadah found in the printed Vilna edition of Ein Yaakov.
If we consider the Choni story and the story about the nazir as historical fact, the fact that they are repeated in other cultures, mythologies, and traditions does not detract from their validity. One could simply say the stories were copied from us. Or if these stories are parables, then each culture might independently tap into unconscious psychological motifs. It is notable that in both the Greek version of Epimenides and the Choni story, each has a person entering into a cave, which is obviously symbolic for entering into a state of spiritual seclusion and depth. The fox symbolizes a crafty, sneaky person in many cultures, including the Gemara (see Berachos 61b). Therefore, the fox motif in both parables reflects a human truth about arrogance and trying to “have it all” when you cannot. It is a cute extra bit in Aesop’s version that the weasel (who is often a victim of the fox) mocks the fox from a safe distance.
We also might consider that our sages were aware of prior Greek versions of legends, such as Narcissus or Romulus and Remus, and without being concerned of their actual veracity, used the ideas and popularity of the basic themes for their own parables and lessons. The idea of plagiarism or historical accuracy did not exist in the way it does today. Stories were repeated as folklore, and each person who told the story understood it was borrowed. The rabbis may have told these stories with their own Jewish twist, much as we see in modern Jewish culture secular pop songs converted to Jewish verses, or even Savta Simcha’s obvious Hebraization of Mary Poppins.
