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TakehBored 12-26-2012 09:28 PM

Kol d'alim govar
There is a machlokes in the Rishonim if by kol d'alim govar we say that the psak is final, meaning that once one is govar the other cannot be goiver in return, or perhaps that once one is goiver beis din will not forcibly remove the one who was govar, but if the one who lost is goiver in return he gets to keep it.

there is also a machlokes horishonim (i found this in encyclpedia talmudis) if in a case of where the psak would be be kol d'alim govar can one be goiver even without the psak the beis din, or perhaps that is called chatifa sheloi birshus and beis din will remove him.

Now i was wondering, is there a shita that holds that before a psak of beis din if one is goiver beis din will not get involved but the psak is not final and the other guy can be choizer and goiver, however if beis din paskened kol d'alim gvar then whoever was goiver is goiver and there is no change.

what led me to think this was that the hagahos oshri in BM on the sugya of tokfoi kohen brings that by the m'susa if the other one was choizer vtoikef the second guy has it (which is what tosfos writes). and the tiferes shmuel asks on him that licheoira lshitas haRosh this is incorrect since the Rosh holds that once one is goiver the psak is final.

however if we can say my vort that there is a chiluk between before beis din paskened and after, it"s possible to say that he's speaking davka in the case where it did not come to beis din. (and b'emes there is no mashmo'us in the gemara that the case of m'susa ever went to beis din).

This is a shtikel poi'reiach b'avir, but it'll farenfer the hagahos oshri. any commments?

Torah613 12-28-2012 03:24 PM

I don't know the sugya - but why does the הגהות אשר"י have to fit with the Rosh?

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