Taking the Law into One's Own Hands - Rabbi Shema Hillel shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast of Machon Halacha Chabad.

00:09 Speaker 2 Hello, everyone. Our halachic topic today is taking the law into your own hands. In the language of the Talmud, “avid inish dina lenafshei”—when may a person take matters into his own hands? The very phrase is puzzling. The Torah instructs us in Parshas Shoftim, in Devarim: “You shall appoint judges and officers for yourself in all your gates, which Hashem your G-d gives you”; and, “If a matter of judgment is too difficult for you, between blood and blood, between one ruling and another, you shall go up to the place and to the judge who will be in those days, and they will tell you the ruling.” In other words, there is an established system of batei din that enact regulations and judge cases. Back in the wilderness, Moshe Rabbeinu judged the people from morning until evening, until Yisro told him, “You will surely wear yourself out, both you and all these people with you,” and so on. We know there is such a thing as a beis din. A person does not take the law into his own hands. If you have a problem, you go to beis din, to court. So what does it mean to take the law into your own hands? What exactly are we discussing? Still, the concept does exist, and we’ll see in which situations it may be done. First, let’s present a few cases and see how people generally think about them, and what the halachic approaches are. A young man at a certain institution went to take his afternoon nap. He saw another young man enter his room, feel around in the pocket of his pants, and pull out five hundred shekels. He was astonished. He knew the young man; he couldn’t believe it. He pretended to be asleep, and when the afternoon break was over, he approached him and said, “You have to give me back the five hundred shekels you stole.” The other young man replied, “That never happened. What are you even talking about?” Well, a few days later,

02:17 Speaker 2 that young man’s father came to the institution where they studied. He met the victim—the one whose money had been stolen—and said, “Could you give my son a package? I want to send him some cakes and clothes. And please take this envelope too and give it to him. It contains five hundred shekels.” The young man asked himself, and asked a rabbi: May he hold on to the money? Five hundred shekels belonging to the person who had stolen that amount from him a few days earlier had now come into his hands. May he keep the money and take matters into his own hands, or must he go to a din Torah over it? Let’s present another question. Someone’s home was broken into, and several items were stolen—say, a drill or other tools. Some time later, he sees one of those items at his neighbor’s home, whether that neighbor lives nearby or farther away. May he enter the neighbor’s house or storage room and take the item, or must he go to beis din and summon that person to a din Torah, then do as the beis din rules? This question extends to many areas of life. For example, when one partner betrays the other’s trust, and money comes in for the partnership without that partner knowing about it, may the partner who was wronged hold on to the money and, in effect, take matters into his own hands? May he hold on to the money, or to a particular item that has come into the possession of the two partners together? May he keep those items or that money to recover what was stolen from him? Well, we’ll begin our discussion with the Gemara. In Bava Kama, in the chapter HaManiach, on page 27,

04:23 Speaker 2 side b, the Gemara tells an interesting story. “Rav Chisda sent to Rav Nachman”—I’m quoting the Gemara—“Rav Chisda sent to Rav Nachman: The Sages said that for a blow with the knee, the payment is three.” If someone struck another person with his knee, the Sages imposed a penalty of three gold coins. “For a kick, five. For a senokeres”—Rashi explains that a senokeres is not what we might think, but a blow to the cheek with a donkey’s jawbone, which was more humiliating—“the assailant was fined thirteen gold coins, payable to the victim.” Rav Chisda asked Rav Nachman, who was a judge, “What about a blow with the handle of a hoe, or with the hoe itself?” In other words, how much of a penalty did the Sages impose for that? Rav Nachman replied to him—sorry, Rav Nachman sent back: “Chisda, Chisda, are you collecting penalties in Babylonia?” Cases involving penalties cannot be judged in Babylonia. That’s a subject in its own right, but only judges with an unbroken chain of semichah going back to Moshe Rabbeinu could judge such cases, and those courts were in Eretz Yisroel. So you cannot impose a penalty in Babylonia. But he said to him, “From your question, I gather that something happened—that a case came before your beis din. So tell me: What exactly happened?” Rav Chisda sent him the story: “There was a water well belonging to two people.” As we know, many of the world’s wars have been fought over water. Water is life. He wrote, “There was a water well belonging to two people.” They took turns: one drew water from the well to irrigate his fields one day, and the other drew water from it

06:38 Speaker 2 to irrigate his fields the next day. One of them came on the day that was his turn and saw his fellow drawing water. He asked, “What are you doing?” The other man ignored him. So the person being deprived of his turn took the handle of a hoe, which was the closest thing at hand, and struck him. That was the story. Rav Chisda therefore asked Rav Nachman, “How much should I require the man who struck him to pay?” Rav Nachman gave a very interesting answer. He said, “He could have given him a hundred blows with the hoe handle.” “Even according to the one who says”—I’ll translate the Aramaic in a moment—“that a person may not take matters into his own hands, where a loss is involved, a person may take matters into his own hands.” In other words, even according to the opinion that forbids a person from taking the law into his own hands, this is permitted when a loss is at stake. By the time the person whose water is being taken goes to beis din, the other man may draw all his water, or take some of it. That cannot be undone; the water cannot be returned. Therefore, in a case of irreversible loss, a person may take matters into his own hands. At this point, the Gemara begins a discussion of a disagreement between Rav Nachman and Rav Yehudah: What if there is no loss? Say someone stole another person’s drill, or some other object—it doesn’t matter what—and the object still exists. Perhaps he should go to beis din and make a claim, and the person who took it can come and we’ll hear what he has to say. The situation is not irreversible. May a person take the law into his own hands in such a case or not? Rav Nachman and Rav Yehudah disagree. Rav Yehudah says: Don’t take matters into your own hands. There is a beis din. Go to beis din and resolve the problem there with your fellow, with the person who

08:53 Speaker 2 the person opposite you, and all the more so that you do not hit him. According to Rav Nachman, even when the situation is reversible, you may take the law into your own hands. In the Gemara’s words: “A person may enforce his own rights, since he is acting lawfully.” In other words, we are talking about something clear-cut. My drill was stolen. My laptop was stolen. It does not matter what the item is—even my crystal box was stolen. Since I am acting lawfully, and the item is identifiable as mine, I may enforce my own rights; I do not have to go to the trouble of going to beis din. So Rav Nachman and Rav Yehudah disagree on one point. They both agree about the case we described earlier: when the situation is irreversible—in the Gemara’s words, where there is a loss—everyone agrees, including Rav Yehudah, that a person may enforce his own rights. They disagree where there is no loss. The Rambam, the Rif—Rabbeinu Yitzchak Alfasi—and the Rosh—Rabbeinu Asher—are the three pillars of halachic ruling on which the Beis Yosef relied when writing the Shulchan Aruch. All three rule that the halachah follows Rav Nachman: a person may enforce his own rights not only where there is a loss, but even where there is no loss. Since he is acting lawfully, he does not have to trouble himself to go to beis din. As we saw earlier, where there is a loss, they even permitted striking someone, which is a very serious matter. Anyone who raises a hand against another is called wicked. Very harsh things are said about striking and violence. But where there is a loss—that is, where the situation is irreversible, for example, the thief will flee or travel abroad—I may even strike him. And again, we qualify this: only when it is clear beyond any doubt that the item is yours. In such a case, they even permitted striking. But more than that, as we said, even where there is no loss,

11:18 Speaker 2 where it is possible to go to beis din and there is no loss, the Rambam, the Rosh, and the Rif ruled in accordance with Rav Nachman that a person may enforce his own rights even when there is no loss. There is an interesting Gemara in Berachos, page 5b. The Gemara relates: “Four hundred barrels of wine turned sour for Rav Huna.” Rav Huna was a great rabbi, the rabbi of the entire city, of the region. People heard that this great tzaddik’s four hundred barrels of wine had turned sour—a major financial loss. The sages came to visit him, a kind of consolation for the substantial loss Rav Huna had suffered. They told him, “Let the master examine his affairs.” The sages, Rav Huna’s colleagues, were telling him to examine his conduct: perhaps something was amiss. In other words, search your actions; take stock of yourself. He said to them, “Do you suspect me?” Do you think something is wrong with my service of Hashem, in my conduct toward Hashem or toward other people? His colleagues replied, “Do you suspect Hakadosh Boruch Hu of administering judgment without cause?” Do you think Hakadosh Boruch Hu simply caused you such a great financial loss—the souring of four hundred barrels of wine—for no reason? Rav Huna told them, “On the contrary, if anyone knows of something improper I have done, let him come and tell me. I am prepared to correct it.” His colleagues, the sages, told him: People in town are saying that you have a vineyard and employ a sharecropper to work it. After the grape harvest, the vine shoots were pruned for use as firewood, but you did not give him the share you had agreed on. You did not give him his share of the firewood. Rav Huna said to them: You are talking about what I did not give him? He steals from me all the time—he steals grapes from me, and he steals vine shoots from me. What am I supposed to

13:56 Speaker 2 share with him? They said to him, “Steal from a thief, and you taste the taste of theft.” If you steal from the thief because your worker stole from you, you are stealing from him too. Little by little, you get a taste for stealing, and eventually you will allow yourself to steal from here and from there. “Steal from a thief, and you taste the taste of theft”—that is the wording of the Talmudic passage. Rav Huna told them, “I accept upon myself to share the vine shoots, that firewood, with him.” The Gemara relates two views: according to one, a miracle occurred and the vinegar turned back into wine; according to the other, the price of vinegar rose to equal the price of wine, so Rav Huna suffered no loss. That is the story in the Gemara, Berachos, page 5b. The Mordechai asks a question. The Mordechai was one of the great Rishonim and lived about eight hundred years ago. Rabbi Mordechai ben Rabbi Hillel Ashkenazi was a student of Rabbi Yonasan. His work is printed at the end of the Gemara, at the end of the Talmud, and he asks a question about our Gemara in light of the Gemara in Berachos. In our Gemara in Bava Kama, page 27b, as we quoted, Rav Nachman and Rav Yehudah disagree about cases where there is a loss and where there is no loss. Where there is a loss, everyone agrees that a person may take the law into his own hands and enforce his own rights. Where there is no loss, according to Rav Yehudah, a person may not take the law into his own hands. According to Rav Nachman, he may enforce his own rights even in that case. The Mordechai asks a simple question: I do not understand. Apparently, the theft by the sharecropper was clear. Rav Huna’s worker stole from him. If so, according to Rav Nachman, whom the halachah follows, a person may enforce his own rights and take the law into his own hands. What Rav Huna did was therefore proper according to halachah. If so,

16:01 Speaker 2 why was Rav Huna punished from Heaven by having four hundred barrels of wine turn sour? That is the Mordechai’s question. There are several answers to it. He was also a student of the Maharam, and he cites a first answer in the name of the Maharam of Rothenburg: When is a person entitled to enforce his own rights, as Rav Nachman permitted even where there is no loss, where the situation is reversible and you can go to beis din? Only when the specific item is clearly identifiable. That is, you see a thief—or you are told that a thief broke into your home—and certain items were taken from you. Then, the next day, you see those same items in the thief’s possession. You have the right to go and take them, because it is clear that those particular items are yours. Perhaps your name is on them, or they have some unmistakable identifying mark, so there is no dispute that they are yours. In such a case, says the Mordechai in the name of the Maharam of Rothenburg, Rabbeinu Meir of Rothenburg, they permitted a person to enforce his own rights. But Rav Huna’s case in the Gemara in Berachos did not involve those same items. He wanted to offset what the worker had stolen. In other words, the worker stole vine shoots and fruit, and you want to make up for that theft by withholding something else. That was not permitted. Only when the item is clearly yours were you permitted to enforce your own rights, even by striking someone. But if the item itself is not clearly yours and you are merely offsetting a debt, that is forbidden. This is the answer of the Maharam of Rothenburg, as cited by the Mordechai. There is another answer, written by the author of Avi HaEzri, one of the great Rishonim, Rabbeinu Eliezer ben Yoel HaLevi. He is generally referred to by the acronym Ra’avyah. The Ra’avyah, Rabbi Eliezer ben Yoel HaLevi, offers a different answer: Rav Nachman’s permission applies only when, when

18:15 Speaker 2 You do it openly. In other words, you go to the robber’s house, take it, and say, “I’m taking what’s mine.” But if it’s done stealthily, by quietly deducting what you’re owed, that was not permitted. That is why Heaven was exacting with Rav Huna: it was, so to speak, done in secret. He should have done it openly. There is support in the Gemara for this answer. When the Gemara in Bava Kama discusses the views of Rav Nachman and Rav Yehuda—whether a person may take the law into his own hands—it quotes a very interesting baraisa from one of the Tannaim, Ben Bag Bag. We usually know him from the end of chapter five of Pirkei Avos. We encounter him here, too, in the Gemara in Bava Kama. Ben Bag Bag says: “Do not enter your fellow’s courtyard to take what is yours without permission, lest you appear to him like a thief. Rather, break his teeth and say to him, ‘I’m taking what’s mine.’” In other words, Ben Bag Bag is telling us: You see your property with someone else; you do not sneak in like a thief. Are you certain it’s yours? “Break his teeth.” Of course, that is a metaphor. “Break his teeth” means that you go in, and even if you need to apply, so to speak, moderate physical pressure, you are allowed to. Rashi explains “break his teeth” to mean “take it by force.” And you tell him, “I’m taking what’s mine.” This, essentially, is the Raavyah’s answer. The Raavyah says: If you are certain the object is yours, you may take it openly, but you may not do it like a thief in the night. That is why Heaven was exacting with Rav Huna. A third answer, brought by the Raavyah in the name of others, is this: Only when you can convincingly demonstrate to beis din that the object is yours—when it is clear beyond all doubt—were you permitted to take the law into your own hands. Rav

20:19 Speaker 2 Nachman permitted taking the law into your own hands even when there is no potential loss. But when it is not clear that you can prove the theft beyond all doubt, you are not permitted to take the law into your own hands. Go to beis din, summon that person to a din Torah, and the facts will be examined and clarified there. So, according to these other commentators cited in the work of Rabbi Eliezer ben Yoel HaLevi, the Raavyah, Rav Huna could not establish beyond all doubt that his sharecropper had stolen from him. That is why Heaven was exacting with him, to the point that his wine turned to vinegar. That concludes the discussion in the Gemara and the Rishonim. Now we will turn to the halachic discussion. So, we continue with the halachic discussion. What was ruled as halacha in the Shulchan Aruch? What did Maran the Beis Yosef rule? What did the Rema and the later authorities rule? What did the Alter Rebbe rule in Shulchan Aruch HaRav? We will discover some interesting things. In Shulchan Aruch, Choshen Mishpat, siman 4, the heading reads: “How a person takes the law into his own hands.” Interesting—“How a person takes the law into his own hands.” The beginning of Choshen Mishpat deals with the laws of judges; simanim 1, 2, 3, through 27 or 28 discuss the laws of judges. And here, at the very beginning of Shulchan Aruch, Choshen Mishpat, the heading is “How a person takes the law into his own hands.” When can you act as your own judge? I will now quote Maran the Beis Yosef, Rabbi Yosef Karo: “A person may take the law into his own hands. If he sees his property in the possession of someone who stole it from him, he may take it from him.” You see an object that someone stole from you in that person’s possession; you may take it from him. “And if the other person resists”—of course, he may not remain passive—“he may strike him until he lets it go.” The Rema immediately adds in a gloss: “If he cannot recover it in another way.” In other words, you must always exhaust the less violent, less aggressive options first. If

22:51 Speaker 2 you can recover it another way—not by going to beis din, but by using less force—then you must use less force. The Shulchan Aruch continues: “Even if there would be no loss from waiting until he brings him to court.” You do not have to wait. We see that he ruled according to Rav Nachman, following the Rambam, the Rosh, and the Rif, who ruled like Rav Nachman: even when there is no potential loss, you may go to beis din, or you may take the law into your own hands. But he immediately qualifies this: “Provided that he can establish in court that what he is taking is his.” The facts must be clear. You must be able to establish right now that, if you are summoned to beis din, you will have the strongest evidence, including circumstantial evidence, proving beyond all doubt that it is yours. Maran the Beis Yosef adds one more sentence here: “Nevertheless, he has no permission to take collateral for a debt owed to him.” When we are talking about a lender and a borrower, the picture changes completely. We will look at that in more detail shortly. The Rema adds: “And some say that we only say a person may take the law into his own hands with respect to a specific object that is clearly his.” He introduces the Mordechai’s view here: only with a specific object that is clearly his—for example, if someone stole it, or wants to steal it, or wants to damage it—may he protect what is his. But if the other person has already become liable to him because of a theft or for another reason, he may not. In other words, the permission applies specifically to an identifiable object. Here we see the Mordechai’s view: it must be that very drill, that very laptop, that electronic device, or whatever it is—even a gartel—the very same object. You see the stolen object that was taken from you. You see it in the robber’s hands, and it is clearly yours. Only then were you permitted to take the law into your own hands. But if we are talking

25:03 Speaker 2 about a debt arising from a theft—meaning the robber has already sold the object, or something of that sort—and you want to take something else in its place, that was not permitted. We saw this from the story of Rav Huna. Here the Rema brings us an interesting opinion. Let me say in advance that the view we are about to read is that of the Maharik. The Maharik is Rabbi Yosef Colon. He lived about six hundred years ago in France. He authored a collection of responsa called Shu”t Maharik. So, the Rema, in his gloss, quotes the Maharik’s view as follows: “Some say that it is only called taking the law into one’s own hands when he harms his fellow, such as by striking him. Therefore, he may do so only if he can establish that it is his”—meaning that the object is his. In that case, he was permitted to take the law into his own hands. “But merely seizing something as collateral is permitted in any case, and afterward he goes with him to court.” The Maharik is presenting a very interesting approach. He explains that taking the law into your own hands involves striking someone—violence. So when may you use force? Only if you can establish that the object is yours. But merely seizing something without violence—taking an object as collateral, as leverage to get the defendant to come with you to beis din—is different. You are not taking the law into your own hands by taking the object and using it. Rather, you have taken something from him, possibly even money, and are holding it as collateral, as leverage to get the other party to come to beis din. That was permitted: “He may do so in any case, and afterward he goes with him to court.” At first glance, this would seem to be a disagreement between the Mordechai, whom we read and quoted earlier and whom the Rema cites there, and the Maharik. According to the Mordechai, it is permitted only with a specific object that is clearly yours and that you can establish is

27:34 Speaker 2 yours—only then did they permit you to take the law into your own hands, even if you need to use physical force. But when there is another option, it is forbidden. Then the Maharik comes and introduces a new point, apparently disagreeing—on the face of it, he disagrees—and says that in certain cases you may also take something if you want to compel him to come to beis din. You are permitted to take it, and of course you are not using violence in this case, and you can take the law into your own hands in any matter. The author of Nesivos Hamishpat, around... Before we get to the author of Nesivos Hamishpat, on this question of the Mordechai and the Maharik and what the Rema’s words mean: taking something as a pledge can be done in any matter. Of course, we are not talking about seizing something to collect a loan, because, as we said and will explain shortly, that concerns a lender and a borrower—a borrower who has become insolvent and has not made his payments. We are setting that case aside for now, because it is an entirely different discussion. There is a whole section about it in Choshen Mishpat. We will touch on it briefly in a moment. But the statement that one may take a pledge from him in any matter—that can be done in any matter. This gave the later commentators on the Shulchan Aruch a great deal to discuss: Rabbi Shabsai Kohen, the author of the Shach; Sefer Meiras Einayim, whose commentary on the Shulchan Aruch stands alongside the Shach; and many other commentators. The Taz, the author of Ketzos Hachoshen, Nesivos Hamishpat—they all have something to say about this discussion between the Mordechai and the Maharik. For now, I have chosen to discuss how the author of Nesivos Hamishpat explains the intent of the Rema’s words. He argues that there is no disagreement here between the Mordechai and the Maharik. I will read passages from his words and explain them. Rabbi Yaakov of Lissa says—who was the author of Nesivos Hamishpat? He was a rabbi in the city of Lissa about two hundred

29:40 Speaker 2 years ago, one of the great Torah scholars of his generation, and he wrote several works on the Shulchan Aruch. On Even Ha’ezer he wrote a work called Avnei Miluim; on Choshen Mishpat, Nesivos Hamishpat; and on Yoreh De’ah he wrote Chavas Daas. His commentary on the Shulchan Aruch is marked by exceptional clarity. The author of Nesivos Hamishpat, Rabbi Yaakov of Lissa, says: “And this is the intent of the rabbi in his gloss.” At first, the Rema wrote in his gloss that a person is not permitted to take the law into his own hands except with an object that is clearly his. That is, he has a claim to the object itself. My drill is with you; a particular object is with you; my mixer is with you. We are talking about a case where the object itself, which belongs to me, is in the robber’s possession. In that case, the Mordechai permitted him to take the law into his own hands, even using physical force. But the Maharik is talking about something else: when he has no claim to the object itself, but there is a monetary dispute between them, a debt. For example, an employee and employer where the employee did not... the employer did not pay the employee; or a tenant and landlord where the tenant did not pay the landlord and owes him a certain sum. He has no claim to the object itself; he is only holding it against a debt owed to him because of a theft or for some other reason. “For this is not considered taking the law into his own hands.” This is what the Maharik permitted, and it is in this sense that the Rema cited his words and permitted it. Why? Because we view this seizure solely as a means of applying pressure. In the words of Nesivos Hamishpat, “because he seizes it and immediately goes to court.” In other words, he takes the object and tells him: “No problem, I will return it to you, but I want you to come with me to a din Torah. You have been evading me. So now, because of this pledge, this security that I am holding, you will come with me to a din Torah.” But if he does not go to court and keeps what he seized for himself,

32:06 Speaker 2 meaning that he decides to take the object and use it personally, that too is considered taking the law into his own hands and is forbidden, except in the case we mentioned earlier, where he has a claim to the object itself—where the object itself is yours. But using this object to collect the debt, to offset the debt, is strictly forbidden. He may only use it as a means of applying pressure. Now, let us continue with what the later authorities say on this subject. The Alter Rebbe’s position in Hilchos Gezeilah U’Geneivah, the laws of robbery and theft, is very interesting. The distinctions we brought earlier, the words... the contradiction in the Mordechai—sorry, the contradiction between the Gemara in Berachos and the Gemara here in Bava Kama—and the resolution in the Rambam, of course, work only according to the Mordechai’s approach. But the other answers were not brought. Some commentators argue that what happened with Rav Huna was only a matter of going beyond the letter of the law, and that he could, in fact, have made that deduction. He acted as he did because a person on his level needed to respond differently to that theft. The Alter Rebbe presents the matter in almost the same words, regarding the contradiction between Bava Kama and Berachos. I am reading from Hilchos Gezeilah U’Geneivah. I am quoting section 27 of Hilchos Gezeilah U’Geneivah in the Alter Rebbe’s Shulchan Aruch: “If the owner learns that the sharecropper is stealing”—the very story of Rav Huna and his worker, his sharecropper—“if the owner learns that the sharecropper is stealing fruit from the orchard, he may not deduct it from the sharecropper’s portion when they come to divide the produce, except by order of beis din. He must not take the law into his own hands and rob the sharecropper to make up for what the sharecropper stole from him, because it is forbidden to steal or rob, or to steal from a thief or rob a robber, to make up for what he stole or robbed.” You may not do that. Stealing from a thief or robbing a robber is strictly forbidden. You violate the prohibitions against stealing and robbery. Rather, he must bring a claim against him in beis din. “And if

34:25 Speaker 2 he deducts it without an order from beis din, he is robbing him of the share that is due to him from the remaining fruit.” I am skipping a line or two. The Alter Rebbe continues: “And even though the law is such”—that seemingly he could deduct it from his share under the rule that a person may take the law into his own hands—“he may not take the law into his own hands, but must go through beis din. If he wins his case by being able to establish that the sharecropper stole from him, then he may do so; otherwise, he bears the loss.” In other words, the Alter Rebbe understands that what Rav Huna did was not merely a matter of going beyond the letter of the law or anything of the sort. By law, he had to go to beis din and establish the theft. We hear here something of the answer given by Rabbi Eliezer ben Yoel Halevi, the Raavyah: Rav Huna’s problem was that he could not really establish the facts, and that is why his barrels of wine turned sour. So the Alter Rebbe says that, in the case we discussed, he may not take the law into his own hands by making a deduction from the worker’s share—by stealing from the worker—except through beis din. You think the worker stole from you? No problem. Go to beis din and bring a claim against him. You must give him his share of the vine tendrils unless beis din rules otherwise. “If he wins his case by being able to establish that the sharecropper stole from him, then he may do so; otherwise, he bears the loss. And the same applies in all similar cases.” The Alter Rebbe continues in section 28: “When is it said that he may not take the law into his own hands? When he takes something in place of what was taken from him, rather than the very object that was taken from him. But as for taking back the very object that was taken from him, whether by theft or by robbery, he may take it from the person against his will.” Here we see precisely the Mordechai’s approach: when it is clear to you beyond any doubt that this object in Shimon’s possession belongs to you, “he may take back the very object that was taken, whether by theft or by robbery, against the person’s will.” And if it is robbery, you are not even violating

36:24 Speaker 2 The prohibitions “Do not rob” and “Do not steal” do not apply here; rather, this is called saving what is his. And if the other person does not let him take it—being, of course, a robber—he may even strike him until he lets him, if he cannot recover it any other way. He is not required to go to beis din in a case like this, where the actual object that belongs to him is still there. In other words, the object is there, and a person may take the law into his own hands to recover it from someone who robbed him, or who comes to rob him or cause him harm. If someone comes to rob you or harm you, you may respond forcefully by any means that will protect you, even by striking him. The Alter Rebbe concludes—this is still the end of section 28: “Even if he will suffer no loss.” Even when the situation is reversible, not irreversible, and he will suffer no loss if he goes to beis din, he need not trouble himself to do so at all. According to Rav Nachman, a person may take the law into his own hands even when there is no loss, even when the situation is reversible. “But he should not go to the robber’s house to steal his own object.” The Alter Rebbe concludes the section: “But he should not go to the robber’s house to steal.” Don’t go like a thief in the night. He should not go to the robber’s house to steal his own object, lest he appear to be a thief. This is essentially the position of Ben Bag Bag, whom the Alter Rebbe brings here: Do not enter your fellow’s house like a thief—unless there is no other way to recover it. That is a very significant addition the Alter Rebbe makes here. If there is no other way to recover it, you are permitted even to act like a thief and take the object that you know for certain is yours. “When does this apply?” In section 29 we move on: “When does this apply? When he recovers it himself. But to recover it through a non-Jew”—that is, to involve other people, who were generally somewhat violent people—is forbidden

38:33 Speaker 2 under all circumstances. The Alter Rebbe continues: “And all this is when he can prove that the object is his if the other person summons him to beis din.” In other words, it must also be an object clearly established as yours. You know it is yours, and even if you are summoned to beis din, you have proof beyond any doubt that it is yours. “But if he cannot prove it, it goes without saying that he may not strike him, for if he does, he will be penalized by the court. Rather, even without striking him, his act of recovery accomplishes nothing.” In other words, if you cannot prove that this object is yours, you are not permitted to take the law into your own hands. The Alter Rebbe permits it in just one case: “Unless there are no witnesses when he takes it from him. In that case, taking it does help him, for he will be believed under oath when he says, ‘I seized what was mine,’ on the basis of a migo.” Migo is a halachic principle: because he could deny it and say, “I seized nothing,” since there are no witnesses. Perhaps this is not the place to get into the laws of migo; they are longer than the earth and broader than the sea. But in a particular case, you can indeed seize it if, first, there are no witnesses, so that you could claim you did not seize anything at all. There is such a concept as migo; we won’t go into it. “But when there are witnesses, his seizure accomplishes nothing except as collateral.” Here we see the position of the Maharik: in certain situations you are permitted to do this even when the object is not clearly established as yours. The object’s ownership is not clear, and you want to apply pressure to the other party to come to beis din and have the matter resolved. But “when there are witnesses, his seizure accomplishes nothing except as collateral, if the other person admits that he owes him a debt.” That is, there is some debt between them, such as one arising between a renter and a landlord, an employee and an employer, and so on. “And this is provided that the debt did not arise from a loan.” If the debt arose from

40:41 Speaker 2 a loan, he may not take collateral on his own under any circumstances, as explained in the laws of loans. In the laws of loans, the Alter Rebbe rules in section—sorry. In the laws of loans, at the beginning of the section, that when someone lends money to another person and the time for repayment arrives, he cannot take collateral except through beis din. The Torah is very, very strict about this. The creditor must stand outside; an agent of beis din is the one authorized to enter the debtor’s home. That is in the laws of loans. The Alter Rebbe concludes—in section 14 of the laws of loans he writes: “All this applies to a loan.” In that case, you may not apply pressure by taking collateral, entering his home, and so on. “But with another kind of debt, such as payment for renting his animal”—nowadays, say you rented out a car and were not paid—“or his utensils that the other person rented from him, or rent for his house, or wages for his own labor when he was hired by him.” In other words, you worked for someone, did a job for him, whether as an employee or a contractor, and did not receive the money; or there is compensation owed for robbery or theft. As long as it is not a loan, you may take collateral yourself, without going through beis din. You may take the law into your own hands and even enter his home to take collateral, as a means of applying pressure, of course. You are not going to use the object itself. This is the Maharik’s position. You are not going to use the object; you are going to use it to apply pressure so that he comes with you to beis din. But there is a very serious qualification here: “If they converted it into a loan.” In other words, the employee and employer came to an agreement. They settled accounts: “So it turns out you owe me such-and-such, and from now on the obligation between us is X amount of money.” That is called converting it into a loan. The moment it became—those words created a major problem: your relationship changed from employee and employer, merchant and renter, or robber and victim, to borrower and lender. Consequently, you can no longer enter the debtor’s home

43:00 Speaker 2 to take collateral as a means of applying pressure, and so on. One more law in the Alter Rebbe. It is an interesting one, and it also—unfortunately, or rather, not unfortunately—it happens. Someone whose belongings were switched at a house of mourning or at a celebration. It happens at the mikveh: someone switches hats with you, or at the entrance to the mikveh, or at shul someone takes your tallis and leaves theirs. You bought a new tallis for Shabbos or Yom Tov, put it aside for a moment, went to the restroom, and when you come back you cannot find your tallis. You find someone else’s tallis instead, because he made a mistake and took yours. “Someone whose belongings, whose clothes, were switched at a house of mourning or at a celebration.” Nowadays it happens in shul or at the mikveh. You may not use the other person’s tallis. “He may not use them, even if the other person is using his.” Even though the other person may be using the new tallis you bought. “For that would be like robbing a robber.” If you use it, you have stolen. “And he may not take the law into his own hands, except through beis din.” The Alter Rebbe adds here, “as explained above.” Why? Because when were you permitted to take the law into your own hands? Only with an object clearly established as yours. Here, it is not yours, so you may not offset one use against another. We now move to an interesting question that the Ben Ish Chai was asked in his responsa, Rav Pe’alim. I’ll read the question, then we’ll see how he ruled and sum things up. Question: Reuven had business dealings with Shimon, and Shimon took advantage of him and unlawfully took a certain sum from him through the accounts. Since Shimon was a violent man, Reuven could not, in the Ben Ish Chai’s words, “extract what he had swallowed from his mouth.” In other words, Reuven could not get back what Shimon had taken, because Shimon would deny it with various claims, stubbornly and with…

45:12 Speaker 2 To take Reuven’s money. Shimon denied it, and Reuven was unable to recover his money from this violent man. But later, another business matter arose through which some of Shimon’s money came into Reuven’s hands. Could Reuven take from Shimon’s money the amount Shimon had previously taken from him? Could he offset one against the other? Here, someone had sent money to Shimon through Reuven, and Reuven could offset it against what Shimon had taken from him—more precisely, against the money that this violent Shimon had withheld from him and that he could not recover. Shimon would not know what Reuven had taken and would not notice it at all. Reuven came to ask the rabbi—he came to ask the Ben Ish Chai—whether he was permitted to take it without Shimon’s knowledge, against the money Shimon had taken from him. Because if he did not, he would never see that money again. Shimon was a violent man; he would not come to beis din, and Reuven was also afraid to deal with him. So was he allowed to offset the two sums? And here we see something interesting—an interesting question. Until now, we discussed the Mordechai’s position, that this is permitted specifically with an identifiable object. Or the Maharik’s position, that taking an object was permitted specifically as leverage. But the question is: what is the status of money against money? Do we treat money against money like one identifiable object against another, or is it different? The Ben Ish Chai begins his answer this way: “As soon as the questioner came and asked me orally, I answered him orally that, from what appears in the Gemara in Berachos”—where we earlier quoted what the Sages said to Rav Huna—“‘One who steals from a thief tastes the taste of theft.’” So at first glance, says the Ben Ish Chai, I was inclined to answer him that it was forbidden. But when I began looking into it more closely, I found an interesting responsum by—so

47:21 Speaker 2 writes Rabbi Yosef Chaim, the author of the Ben Ish Chai—he found a responsum by the author of the Shoel Umeishiv, Rabbi Yosef Shaul Nathanson. He lived a little less than two hundred years ago. He was the rabbi, I believe, of the city of Lvov, Lemberg. He was a tremendous Torah scholar, and there, in the responsa Shoel Umeishiv, third series, section 371, he discusses a similar question: offsetting money against money. That is, two partners had carried out a certain business deal. One partner stole from the other in the course of the deal, and the other partner wanted to take money from the partnership without the dishonest partner noticing. Was he allowed to do that? The questioner asks Rabbi Yosef Shaul Nathanson in the Shoel Umeishiv whether he may do it. Now, he was unsure whether money counts as an identifiable object—because what difference is there between these bills and other bills? Or must it be specifically the identifiable object, the very same money? That is how the Mordechai ruled in the name of Maharam of Rothenburg. Rabbi Yosef Shaul Nathanson was unsure about this. In that case there was another reason for doubt as well: the debt was not entirely clear; it was something that could be disputed. Rabbi Yosef Shaul Nathanson therefore did not want to permit the offset. But the Ben Ish Chai’s case, in the responsa Rav Pe’alim, was different. I’ll quote parts of it, and we’ll see what he ruled. The Ben Ish Chai says: “In any event, it is evident from the words of the aforementioned Mordechai that with an identifiable object that still exists, anyone may take the law into his own hands and take it when it comes into his possession, even secretly, without the person who took it knowing. But where someone took or stole money,” and here things start to get complicated, “or denied a debt of a known, definite amount, and afterward money belonging to that person who took it or denied the debt comes into his possession,

49:39 Speaker 2 this is what Rabbi Yosef Shaul Nathanson was unsure about.” So although he leaned toward permitting it—toward saying that money against money is equivalent to an identifiable object, and we said that with an object clearly belonging to you, you may take the law into your own hands—the Ben Ish Chai says that in his own case, Rabbi Yosef Shaul did not want to permit it. But the Ben Ish Chai now raises another problem. After all, you are taking it secretly, and we saw that Ben Bag Bag says you may not take it secretly, only openly, because otherwise you violate “You shall not steal.” He also quotes the Semak, section 261, who wrote in the name of Rabbeinu Yonah: “It is forbidden to steal what is yours.” We distinguish here between theft and robbery. Robbery is done openly; theft is done in secret, like a thief in the night. So the Semak writes in the name of Rabbeinu Yonah: “It is forbidden to steal what is yours from the thief, lest you appear to be a thief.” And according to some opinions, you even violate the prohibition of “You shall not steal.” You think it’s yours? Go in and take it. But then, says the Ben Ish Chai, if that is so, we have a problem: this man who came to ask me wants to offset what the violent Shimon owes him, secretly. Perhaps, then, we should permit him to do so only openly. “But it seems that the prohibition,” the Ben Ish Chai concludes, “it seems that the prohibition against entering like a thief applies where one can take the law into one’s own hands and take what is one’s own openly.” They tell you: Don’t go in like a thief; go in broad daylight. “But if the person who took it is a violent man, and it is impossible to get what he has swallowed up out of his mouth openly, or there is some other reason one cannot take the law into one’s own hands openly, everyone would agree that one may take the law into one’s own hands.” That is the Ben Ish Chai’s own reasoning. In fact, the matter is clear in the Alter Rebbe’s Shulchan Aruch. It is surprising

51:43 Speaker 2 that he did not quote it, because he often quotes the Alter Rebbe’s Shulchan Aruch. The Alter Rebbe writes explicitly: “But he should not go to the house of the person who took it to steal his own object, lest he appear to be a thief, unless it is impossible to recover it in any other way.” The Alter Rebbe’s position is completely explicit: when there is no alternative, you may enter like a thief. Laws of Robbery and Theft, end of section 28. The Ben Ish Chai concludes: “We must say, therefore, that in the case of our question, we may instruct the questioner to take his money secretly”—to offset it against the amount Shimon took and then denied owing him. But he sets three conditions for permitting it. The first condition is that the matter is clear beyond any doubt—how much he proved to us, the rabbi, that Shimon took. The second condition—rather, sorry, not that he proved it to the rabbi, but that he himself knows clearly the exact final sum Shimon took. The second condition is that he take money against money. Not an object against money, but money against money. He may not take an object worth the amount of money taken from him, because that is not an identifiable object. The Mordechai limited us to an identifiable object. The third condition is that the person who took his money is violent, or there is some other reason the money cannot be recovered from him. So only under these three conditions—when you know the exact amount of the debt, not an estimate; when you take only money and not objects; and when the person who took it is violent—do we permit, in effect, taking the law into your own hands. So, to sum up everything we have discussed: First, if an object clearly belongs to you and was stolen from you or taken from you in some other way, and your object is in someone else’s possession, you may recover it even by force, if no other means of pressure is possible.

53:51 Speaker 2 You do not need to go to beis din or trouble yourself with legal proceedings. Second, seizing an object to compel payment, as leverage, is permitted for a debt that is not a loan. It is permitted with any such debt—between a tenant and landlord, employee and employer, and so on—provided they have not converted it into a loan by settling the account. If the debt is a loan, it is certainly forbidden. Third, based on what we saw here in the Ben Ish Chai, what is the status of money against money? Does it count as an identifiable object that I am permitted to take, as the Mordechai, the Rema, and the Alter Rebbe permitted? We permit it under three conditions: the debt is clear, and you know exactly how much he owes you; you take only money against money; and it is impossible to recover it another way because this person is violent. An object against money, money against an object, or one object against a different object is forbidden under all circumstances. You may not take one object in exchange for another, an object against a monetary debt, or money against other objects. That is forbidden. Go bring a claim before a beis din, and they will rule on it. Seizing something as leverage is permitted. Thank you very much.