Week Four: Choshen Mishpat 4, Taking the Law Into One’s Own Hands

When we pick up in the middle, we don’t always know the background. Previous simanim, chapters, to Choshen Mishpat 4, discussed the numbers of judges needed for kinds of court cases. Our siman opens with a rule already stated, a random individual is not qualified to be a lone judge, and certainly a litigant cannot be the judge.

Acting For Oneself

And yet. Sometimes, halachah allows a person to act for him/herself, such as if one sees one’s own property in the thief’s possession. [True story: years ago, my mother, a”h, had her car stolen, and a week or two later we saw it parked literally on the next block over. She had once before tried to enlist the police in her cause, to no avail. This time, I went home, got an extra set of keys, and drove it back. She had it from then until it stopped working.]

I find this whole category fascinating, where halachah does not require us to rely on legal authorities for help, explicitly allows us to fend for ourselves. Other examples are where we see the criminal in the process of taking property; refuses to return an item the owner left in his/her care; or is about to damage our property or ourselves. We are within our rights to defend ourselves and our property, AH Choshen Mishpat 4;1 says.

Nor is it limited to where the loss will be irreplaceable should we take the time to go to court, such as if the thief would successfully hide the property meanwhile. For those situations, we are allowed to use physical force to secure our rights. Where nothing is lost by waiting, such as if the person is taking land (which will always be there), Nesivos HaMishpat thought physical violence was proscribed, but we could take it nonviolently, if possible.

The interesting catch comes now: the owner must have ironclad proof it is his/hers. Without, s/he first needs authorization from a court. A catch more significant than we might realize, I think, because one person’s ironclad is another’s arguable. Below, we will see circumstances where being a muchzak, in presumed possession of the property, affects the case. In se’if four, AH cites R. Akiva Eiger to tell us an individual without clear proof cannot claim to be a muchzak, either.

Items, Not Finances

Se’if two registers a key caveat: this is all for a specific item, such as my mother’s car. A Jew may not on his/her own collect money someone else owes, theft or debt, no matter how well documented, nor confiscate money (against the other’s will) in place of an item the other failed to return and then got destroyed. In such cases, we need courts.

Unless the claimant worries the defendant will flee, successfully hide his/her assets, or refuse to obey the court’s verdict. In such cases, the claimant may take collateral. More, if s/he happens to already have some of the defendant’s property, or finds other people who do, the claimant may hold it until a court’s ruling, even without any worry the defendant will flee or otherwise evade payment of a judgment.

I waited until now to note that AH does not source these ideas (beyond the Talmudic discussion). This is all seemingly the Gemara’s assessment of how halachah understood the obligation to use the court system. No Torah law or halachah le-Moshe mi-Sinai, law handed down from Sinai, seems to have defined the issue. I mention it here, because at the end of se’if two AH notes the Zohar opposes holding on to a pikadon--an item the other left with us to watch— for reasons AH does not share but which he thinks a ba’al nefesh, someone careful to act correctly, will choose to follow.

The Zohar thinks the claimant should go to court first. Should the defendant not appear, the court can issue an order for him or a third party to hold onto the item. Of course, this is true in all situations; I think AH is saying that since we have no clear sources on the issue, if the Zohar says something, we might as well live within its dictates.

Group Rights

When the claim comes from a group, such as if a municipality sues an individual for his/her share of the king’s taxes, their certainty they are right permits them to take the law into their hands, and confiscate the money, even if they cannot prove it in court. [A recipe for strife and argument!] A town’s ability to prove its case is hampered by their all being nog’im ba-davar, people with a stake in the matter, who cannot testify. Since the more people who pay, the less each person’s share is, they are interested parties.

Should the city divide over the question (rarely is a person unable to find allies, especially the type of person who will claim an exemption from municipal taxes), and they go to a third-party court, the group is considered muchzak, in presumed possession (even if the defendant has not yet paid), so the individual will have to give collateral, then prove his/her case, because s/he is trying to extract money they have.

Their status led Sema to hold they can invoke kim li, too, another fascinating halachic idea, that one litigant can insist s/he/they accept a particular opinion among halachic authorities, even if general practice follows another one. The person claiming the exemption will have to prove his/her case within that halachic point of view.

Where the Group Are Not Muchzakim

Their legal upper hand came only because they were collecting governmental taxes, and the government is always muchzak, says se’if four. Were the lawsuit to pit a community against an individual on a non-tax issue, or with someone from a different tax zone, they lose their muchzak status as well as their kim li right.

The individual would still have to give collateral, AH says, because groups are very bad at collection; should they win, each member will expect someone else to collect. [This implies that where the group has collection agencies, the right to demand collateral goes away, but he doesn’t say.] They may also go to non-Jewish courts for assistance, if needed, where an individual may not, even if he had the right to act on his/her own.

They also lose their advantage when suing a Torah scholar, because his (her?) responsibility to pay taxes is more complex, in ways I won’t detail here, since they are applied differently in our times.

Escrow is a Good Option

When litigants do not trust each other, AH thinks we put the disputed funds in escrow, because we cannot trust people to accept a verdict, considering courts’ limited means for enforcing their judgments. He says he himself would generally require that, making clear that one’s having given cash does not make the other muchzak, escrow is a neutral zone.

That took longer than I expected, but highlights what I suspect we will find to be true often in Choshen Mishpat: the need to establish law with a paucity of sources. While it is the law as long as it is the law, it also seems to me the kind of law a future Sanhedrin could revisit, with fewer barriers to revamping processes and legal assumptions than in other areas of halachah.

I am tempted to push on, but tafasta merubah lo tafasta, maybe stopping here is the wiser course, giving us a chance to digest, come to Orach Chayyim next time with new eyes.

Adapted from articles previously published on Torah Musings