כיצד אדם עושה דין לעצמו. ובו סעיף אחד:
יכול אדם לעשות דין לעצמו אם רואה שלו ביד אחר שגזלו יכול לקחתו מידו ואם האחר עומד כנגדו יכול להכותו עד שיניחנו (אם לא יכול להציל בענין אחר) (טור) אפי' הוא דבר שאין בו הפסד אם ימתין עד שיעמידנו בדין והוא שיכול לברר ששלו הוא נוטל בדין מ"מ אין לו רשות למשכנו בחובו: הגה מטעם שיתבאר לקמן סי' צ"ז סעיף ו' וי"א דוקא בחובו ממש אבל אם חייב לו בלא הלואה או שא"צ למשכנו כי הוא כבר אצלו בפקדון או מצאו ביד אחר מותר לתפסו (ריב"ש סי' שצ''ו) וי"א דלא אמרינן עביד אינש דינא לנפשיה רק בחפץ המבורר לו שהוא שלו כגון שגזלו או רוצה לגזלו או רוצה להזיקו יכול להציל שלו אבל אם כבר נתחייב לו מכח גזילה או ממקום אחר לא (מרדכי ונ"י פ' המניח) ודוקא הוא בעצמו יכול למעבד דינא לנפשיה אבל אסור לעשות ע"י העכו"ם (ת"ה סי' ש"ד) ומיהו אם עבר ועשה ע"י השרים אם לא היה יכול להציל שלא בענין אחר מה שעשה עשוי (ע' במהרי"ק שורש קס"א) י"א דלא מיקרי עביד דינא לנפשיה אלא כשמזיק לחבירו כגון שמכהו ולכן לא יוכל לעשות אלא א"כ יוכל לברר שהוא שלו אבל תפיסה בעלמא שתפסו למשכון יכול לעשות בכל ענין ויורד אח"כ עמו לדין (מהרי"ק שורש סי' קס"א) וכל זה מיירי ביחיד נגד יחיד אבל יחיד נגד רבים והוא מבני העיר עבדי דינא לנפשייהו אם יודעים שהדין עמהם אע"פ שאין יכולים לברר לפני ב"ד כי אינם יכולים להעיד שכולן נוגעין בדבר (תשו' הרשב"א כ"ז סי' צ"ה) ע' בסי' ז' סעיף י"ב וסי' ל"ז ואם יש חלוקים וטענות ביניהם הקהל נקראים מוחזקים לגבי היחיד וצריך לתת להם משכון קודם שירדו עמו לדין (מרדכי פ' המוכר פירות וס"פ לא יחפור) והא דנקראים מוחזקים לגבי יחיד דוקא בענייני מסים אבל לא בשאר דברים ומ"מ צריך לתת משכון קודם שירדו לדין עמו (ת"ה סי' שמ"א) וכל זה כשאין היחיד ת"ח אבל אם הוא ת"ח שתורתו אומנתו ויש לו דין בזה מחמת מסים א"צ לתת להם משכון וגם אינם נקראים מוחזקים נגדו (מוהר"ם מירזבורג) ומותר לכוף בענייני מסים ע"י עכו"ם ולהפסידו אם אינם יכולים להוציא ממנו המס בענין אחר (מהרי"ק שורש י"ז וכ"ז): A person may take the law into his own hands in order to safeguard his interests.1B.K. 27b: ‘It has been stated: Rab Judah said: A man may not take the law into his own hands in order to safeguard his interests. R. Naḥman said: A man may take the law into his own hands for the sake of safeguarding his interests. Where there is an irretrievable loss pending, all the authorities agree that a man may take the law into his own hands in order to protect his interests. They differ only where there is no irretrievable loss pending. R. Judah holds that a man may not take the law into his own hands in order to protect his interests, for since no irretrievable loss is pending let him go to the Judge; whereas, R. Naḥman maintains that a man may take the law into his own hands in order to safeguard his interests, for since he acts according to the law why should he trouble himself (to go to Court) ?’ The law is decided in favour of R. Naḥman. Thus also Yad, Sanhedrin II, 13. If he sees aught that belongs to him in the hand of another person who robbed it [from him], he may take it from his hand,2B.K. ibid.: ‘Ben Bag Bag stated: Do not enter (stealthily) thy neighbour’s courtyard in order to take aught without his knowledge even if it belongs to you lest you will appear to him as a thief. You may, however, break his teeth and say to him (the alleged offender), I am taking possession of what is mine.’ This deals with a case where the loss is not an irretrievable one and supports R. Naḥman’s viewpoint. Furthermore, we might have thought that the legal principle, ‘a man may take the law into his own hands’ applies only to a case where one comes to seize aught that is in the possession of another individual, in which case, the latter, in order to safeguard his interests may take the law into his own hands, but not so in the case where the article is already in the possession of the offender. Ben Bag Bag, therefore, in stating that a man has a right to say, ‘I am taking possession of what is mine,’ informs us otherwise. and if the latter makes a stand against him, he may strike him3 previous note on Ben Bag Bag’s view and B.K. 27b: Concerning R. Ḥisda’s query: ‘What is the fine to be imposed in the case of one who wounds with the blade of a hoe or with the handle of the hoe? … R. Naḥman asked for the circumstances of the case … There was a well that belonged to two persons, They used it on alternate days. One of them came and used it on a day that was not his. The other said to him: This day is mine! But when the latter paid no attention, he took the blade of a hoe and struck him with it. R. Naḥman replied : He ought to have given him a hundred blows with the hoe.’ Although this case would harmonize even with R. Judah’s view (v. supra n. 1) since it involved an irretrievable loss (for there would be no water left in the well by the time they go to Court), — yet, we see that he was permitted to strike him, whence it follows that even according to the view that one may take the law into his own hands even where no irreparable loss is pending, he may also strike the offender. until he releases it, — if he cannot save [the stolen article] otherwise4Tur — G. Thus also Asheri. Derived from B.K. 27a in the case of the ox that threw himself on the back of another ox with the intention to kill, where it is pointed out that one may not cause damage to a tort-feasant animal if it was possible to save his own chattel otherwise, even where there is an irretrievable loss involved. Much more so in the case of striking an individual in order to protect one’s interests where it is possible to do so without having to resort to bodily injury. — even if it is aught that does not involve an irretrievable loss should he [have to] wait until he takes legal proceedings against him,5B.K. 27b in accord with R. Naḥman (v. supra n. 1). Tur has, ‘and if his opponent is dissatisfied with him and took him to law and they (the Judges) found that the claimant had acted in accordance with the law, they do not try his case again.’ This is explained by ShaK as follows: If his opponent states that he is prepared to go to law with him and to obey the Court’s decision on the condition that the seized article be returned to him and that he will settle the case by making payment in another form, we do not try the case again, since the seizure was found to be legal. provided he can prove that [what] he takes [is] his own in accordance with the law.6Tur and Asheri. Derived from B.K. 117a: ‘Two people quarrelled about a net. One said, It is mine, and the other said, It is mine. One of them ultimately went and handed it over to the Parangaria (a public service) for confiscation. Said Abaye, he should have the right to plead, When I handed over the article it was my own property that I surrendered. Said Raba to him: Is he then believed if he says so? — Raba therefore, said: We impose a ban upon him until he returns the net and appears before the Court.’ It follows that only if he were able to prove that it is his do we apply the principle, ‘a man may take the law into his own hands.’ Otherwise not. , also M.K. 17a where it is stated that ‘a scholar may take the law into his own hands when he is absolutely certain as to the law,’ whence it follows that one who is not a scholar must be prepared to establish that it is definitely his. For if he cannot prove that the article is his, then not only is he forbidden to strike him and seize the article, but he is forbidden to take the article even without resorting to force. This is applicable only if he seizes the article in the presence of witnesses, but if there are no witnesses present, he may seize it, since then he would be believed before the Court on the principle of Miggo (v. supra § 1, n. 50) — M.E., ShaK. Nevertheless, he has no right to seize a pledge for his debt [when it matures].7For if he takes a pledge of him, he transgresses the negative precept, When thou dost lend thy neighbour any manner of loan, thou shalt not go into his home to fetch his pledge (Deut. XXIV, 10). B.M. 113a: ‘One who lends money to his fellow, may take a pledge of him (when the debt falls due) only through the Court.’ Not only is he prohibited to enter the debtor’s home in order to seize the pledge, but even outside of the home it is permitted only for the Court officer to seize it forcibly according to Samuel (ibid.). If, however, the borrower denies the debt, the lender may seize the pledge without witnesses in order that he be believed on the principle of Miggo (v. supra n. 6). For the reason why it is forbidden for him proper to seize the pledge is that he can seize the pledge through the Court, but in this case where he cannot collect it through Court, he may seize it himself (v. infra § 97, 15). Cf. also infra § 61, 6. Thus Sha‘ar Mishpat. K.H. reject this — P.Tesh. Gloss: On account of the reason which will be explained infra § 97, par. 6. Some say [that this applies] only to [seizing a pledge] for his actual debt [which was incurred through a loan], but if he owes him [aught] not on account of a loan,8B.M. 115a: ‘Our Rabbis taught: Thou shalt not go into his house to fetch his pledge: You may not enter his (the debtor’s) house, but you may enter the house of the surety (to seize for a debt), and so it is written, Take his garment that is surety for a stranger (Prov. XX, 16) ; also, My son, if thou be surety for thy friend, if thou hast stricken thy hand with a stranger, thou art snared with the words of thy mouth. Do this now, my son and deliver thyself when thou art come into the hand of thy friend; go, humble thyself and make sure thy friend (ibid. VI, 1-3). Another interpretation: You may not enter his house, but you may enter (to distrain) for porterage fees, payment for hiring asses, the hotel bill etc.’ Hence we see that in the latter cases one may take the law into his own hands and seize even a pledge. or where he [the creditor] does not have to take a pledge, — for it [the pledge] is already in his possession as a deposit — or [in the case where] he discovered it in the possession of another person9 supra n. 7. For the prohibition applies only to entering the debtor’s home and seizing it directly from him forcibly, but if the pledge was already in the hand of the creditor as a deposit, or where he seizes it from another person, not from the debtor, it is permissible. Especially according to Tosaf. (B.M. 113a, s.v. אימא) who write that the prohibition against the creditor seizing forcibly from the debtor, even outside of the latter’s home, is only a Rabbinical measure lest he seize in his (the debtor’s) home. According to Zohar, Bamidbar 119a, it is forbidden to seize even a pledge that was deposited with the creditor (K.H.). R. Menaḥem Azariah da Fano states that if the deposit preceded the loan, it is permissible to retain it — P.Tesh. — he is permitted to seize it.10RIBaSh s. 396 — G. And some say that we apply the principle 'A man may take the law into his own hands in order to safeguard his interests' only with respect to an article [concerning which] it is clearly evident to him that it is his, e.g., where one robbed him,11B.K. 27b in accord with Ben Bab Bag (v. supra n. 2) whence we see that in the case of an article concerning which it is clearly evident that it belongs to him, he may enter and take it by force. It is clear that the article in question was stolen. The principle, ‘a man may take the law into his own hands’ has reference only to a case where the person proper came to inflict damage intentionally, but does not refer to his chattel which does this without the owner’s knowledge — P.Tesh. or one desires to rob him,12e., it is permissible to withhold one from robbing him and if necessary, he may strike him. Derived from B.K. 27b regarding the case of the well (v. supra n. 3). or one desires to cause him damage,13B.K. 28a in the case of the ox and the woman who saved her husband (v. Deut. XXV, 12). supra n. 4. [in which case] he may save that which belongs to him, but if one has become liable to him on account of a [previous] robbery or on account of other grounds, [we do] not [apply this principle].14Mord. and N.Yos. to B.K. III — G. Derived from Ber. 5b: ‘It once happened that four hundred casks of wine belonging to R. Huna turned sour. R. Judah, the brother of Sala, the Pious, and the other scholars … went to visit him and said to him: The master ought to examine his deeds (perhaps your misfortune is a result of some sin). He said to them: Do you suspect me? They replied: Is the Holy One, Blessed be He, suspect of punishing without justice? — He said to them: If somebody heard of anything against me, let him speak out. They replied: We heard that the master does not give his tenant his (lawful share in the) vine twigs. He replied: Does he leave me any? He steals them all! They replied: This is exactly what people say, If you steal from a thief, you also have a taste of it.’ Mord. maintains that the sin of R. Huna was that he took the law into his own hands, and, though, a scholar may act so (v. supra n. 6), yet, it applies only to an article which is absolutely his, but in a case where the claim has to be proved and collection has to be made (מחוסר גוביינא), even a scholar (according to this interpretation) may not take the law into his own hands. And only he alone may take the law into his own hands in order to safeguard his interests, but he is forbidden to do [this] through a heathen Court.15Terumath ha-Deshen s. 304 — G. , infra § 26. However, if he violated [the law] and did [this] by means of the [government] officers, — provided he was not able to save [aught] in another manner, — [the law is that] his act cannot be undone.16 MaHaRIK Rt. 161 — G. Derived from B.K. 117a regarding the case of the net. , supra n. 6 for text. This is in accord with the interpretation of Mord. of Is he then believed if he says so? i.e., he could not prove that it was his. If he were able to save his article by other means but went to a heathen Court through which he obtained his article, and subsequently slanderized the offender, he must pay damages as in the case of an informer — ShaK. Seizing forcibly in a doubtful case is not valid through a heathen Court (R.A.Eger) — P.Tesh. Some say that [the principle] 'a man may take the law into his own hands in order to safeguard his interests' is applicable only when he inflicts injury upon his fellow, e.g., when he strikes him.17And acts as a Judge (v. MaHaRIK ibid.) — ShaK. Consequently, one may [so] act only when he can make certain that the [article in question] is his own, but a mere seizure, [viz., in the case] where he seized a pledge [without having to resort to force — the law is that] one may do [this] in any case and subsequently he goes down with him to Court.18MaHaRIK Rt. 161 — G. Derived from B.K. 27b concerning R. Ḥisda’s query (v. text supra n. 3), whence it follows that the principle, ‘a man may take the law into his own hands’ refers only to a case where the claimant is certain that the article is his and may even resort to force in order to safeguard his interests. Consequently, seizing forcibly a pledge where both the Biblical prohibition Thou shalt not go into his house to fetch his pledge (Deut. XXIV, 10) as well as the Rabbinical prohibition (v. supra n. 9) do not enter, would be permissible under all conditions and would not come under the category of ‘legal adjudication’ (דינא). Hence, the principle ‘a man may take the law etc.,’ would not be applicable in such a case. For ‘seizure’ (תפיםה) without ‘striking’ (הכאה) is not designated ‘legal adjudication’ (דינא). This is substantiated by B.M. 115a (v. text supra n. 8). The latter text would present difficulties even according to R. Naḥman (needless to say according to R. Judah), for as seen above, ‘a man may take the law into his own hands’ is applicable only where the article is intact and is certainly his (the claimant’s), but what is not specifically his does not come under this principle. Consequently, it may be asked how may the claimant enter the home of the surety etc., to take or seize an article which is not specifically his? However, if we say that seizure without striking is not ‘legal adjudication,’ he may enter the home of the surety even against the latter’s will, for this is not a case of taking the law into his own hands. As far as Ber. 5b (v. text supra n. 14) is concerned the vine twigs were taken by R. Huna not as ‘seizure’ (תפיםה), but rather as ‘payment’ (תשלומין), i.e., not with the intention to go subsequently to law. Hence, Isserles states here, ‘and subsequently he goes down with him to Court,’ i.e., he may seize the pledge on the condition that he have the matter dealt with subsequently by the Court. This entire [foregoing ruling] deals with one individual in conflict with [another] individual, but [in the case of] an individual in conflict with an [entire] community,19 M.K. 17a where it is stated that ‘a scholar may take the law into his own hands where he is certain that it is his’ (v. supra n. 6) although he may not be able to prove this before others. An entire community enjoys the status of a scholar in this respect. This is substantiated by B.B. 24b on the principle that ‘a pot that belongs to two partners is neither warm nor cold,’ i.e., since the opinions of an entire community differ and each townsman would rely upon the other, the Rabbis were lenient with them and gave them the status of a scholar even if the individual townsman would suffer thereby. Furthermore, in the case of an entire community it is difficult to ascertain the matter, since they are all interested parties as in the case of a scholar who cannot ascertain his case before others being occupied with his learning. Consequently, the onus of proof rests upon the defendant. Cf. also B.B. 100a. — [the law is that if] he is one of the townsmen,20e., under the same ruler or government to whom they pay taxes (MaHaRIK Rt. 1). In Rt. 2, MaHaRIK states the reverse, viz., that even with respect to an individual who is not one of the townsman, the members of the community are also regarded as ‘actual possessors’ (מוחזקים). It is for this reason that Isserles does not state the law regarding one who is not a member of the community, for it seems that he is doubtful regarding this matter — M.E. ShaK, however, writes that the townmen may take the law into their own hands only with respect to a member of their own community who is in conflict with them, but as far as the townsmen are concerned they are regarded as ‘actual possesors’ even with regards to one who is not a member of their community. , P.Tesh. for conflicting views in this matter. Also with respect to a pledge that has to be given by the individual to the community (v. Gloss anon) before going to Court, the law is that there is no difference between an individual from the same town or not — W.G. they may take the law into their own hands in order to safeguard their interests, [provided] if they know that the law is in their favour, although they are unable to prove [this] before the Court of Law, — for they cannot testify since they are all interested parties in the matter.21RaShBA Resp. 27, s. 95 — G. , § 7, par. 12 and § 37. And if there are differences of opinion and claims between them, — the [members of the] community are called the actual possessors with respect to the individual [who is in conflict with them],22Members of a community are regarded as ‘actual possessors’ only with respect to taxes (v. Gloss anon). Their power is derived from the ruler or governmnt since his security (שעבוד), i.e., that everything stands pledged to the latter, takes precendence over all other securities. This is substantiated by B.B. 55a : ‘If property is purchased by rich landlords (they paid to the government the tax on land, the owners of which were in arrears and thus became the owners of the land) who buy up land from the ruler or his servants and pay the tax on it, the sale is valid. This has reference, however, only to (land) which is transferred to the rich landlords because of the land tax, but if on account of the poll tax, then a purchase from them is not valid, because the poll tax is a personal liability. R. Huna, the son of R. Joshua said that even barley in the pot is seizable for the poll tax. R. Ashi said: Huna b. Nathan told me that Amram found that this view is untenable because if it were so, it would interfere with the law of the double portion to which a firstborn is entitled in the case of an inheritance (Deut. XXI, 17), for all the (inherited) property would thus become ‘prospective’ (since all the property was seizable by the government on account of the poll tax) and (the law is that) a firstborn does not receive a double portion in prospective as in actual assets.’ The Gemara concludes that the father must have paid the land tax prior to his death thereby making his assets actual. Hence, we see that the tax collectors who are authorized by the government are considered ‘actual possessors’ (מוחזקים). , Tosaf. ibid. s.v. אם כן. Thus also according to Yeb. 46a and Tosaf. s.v. כי נפקי. Consequently, the townsmen may say to the individual, ‘Prove your case because it is the claimant that must produce evidence’ (המוציא מחבירו עליו הראיה). And if he cannot produce evidence, they take an oath and are exempt, or if they wish, the individual takes the oath. However, the choice is in their hands as is the law of an ‘actual possesor’ (מוחזק). and he is required to give them a pledge before they go down with him to Court.23Mord. to B.B. VI and II end — G. Derived from B.B. 24b: ‘Trees must be kept away a distance of twenty-five cubits from a town … If the tree was there first, it is cut down but compensation must be given (Mishna). Gemara: Why cannot the owner of the tree say, Compensate me first and I will then cut it down? … A pot with two cooks is neither hot nor cold’ (i.e., each townsman will wait for some other to compensate as a result of which the tree will still remain). Similarly, in the present case, the pledge must be given by the individual to the townsmen and the former becomes the claimant, otherwise the matter will be neglected. The fact that they are called actual possessors with respect to an individual applies only in matters of taxes but not in other cases.24B.B. 24b: In the case of the tree which must be kept away from a town a distance of twenty-five feet cubits (v. previous note), the Mishna states that ‘if the town was there first, the tree is cut down (by the townsmen) and no compensation is given. If the tree was there first, it is cut down and compensation is given. If there is a doubt which was there first, it is cut down and no compensation is given. Gemara asks : Why in the case of pit (ibid. 25b) is it stated that (in the case of a doubt whether the pit or the tree was there first) the tree is not cut down? — With respect to pit it is stated that if the tree was certainly (there first) it is not cut down (contrary to the case of the tree that was there before the town was founded). Consequently, when there is a doubt we also do not say to him, Cut it down. However, in the present case even if the tree was there first it is cut down, consequently, if there is a doubt we also say to him, Cut it down. And should the question of compensation arise, we say to him, Produce evidence that it is yours (i.e., that the tree was there first) and take compensation.’ It follows therefrom that the fundamental reason for cutting down the tree in the case of doubt and not giving compensation is because it is obligatory to remove the tree and since we rule that even if it is certain that the tree was there first, it is cut down, consequently, the doubt remains only regarding the compensation and the townsmen are regarded as the ‘actual possessors.’ Hence, only with respect to monetary matters do they enjoy the status of ‘actual possessors,’ being empowered by the ruler or the government, but not in other matters. Nevertheless, he must give [them] a pledge before they go down to Court with him.25Terumath ha-Deshen s. 341 — G. The pledge must be given by the individual even in a case where the community does not enjoy the status of a possessor, so that the individual should be the claimant. supra n. 23. This entire [foregoing ruling applies only] where the individual [who is in conflict with the community] is not a scholar, but if he is a scholar where the [study of the] Torah is his [sole] profession and he has a claim in this [matter] on account of taxes, he is not required to give them a pledge and they too are not called actual possessors with respect to him.26R. Menaḥem of Merseburg — G. B.B. 8a deals with scholars who are exempt from the burden of taxes and imposts and ibid. 7b it is considered a transgression against the Holy Writings to collect taxes from them. It follows, therefore, that even if the townsmen have a claim against a student of the Torah, they are not regarded as ‘actual possessors’ for a scholar is released Biblically from the ruler’s obligation. It is permissible to compel [an individual to comply] with [the laws pertaining to] matters of taxes by means of a heathen Court and to cause him to suffer a loss if they cannot collect from him the tax otherwise.27MaHaRIK Rt. 17 and 27 — G. Git. 88b. Cf. supra § 2, n. 10.