Taking The Law Into One’s Own Hands
‘Break His Teeth And Tell Him I Am Taking Mine’
(Bava Kamma 27b)
The Sages on our daf disagree as to whether a person who discovers a missing article of his in someone else’s house can simply take it back without asking permission from beis din. The Shulchan Aruch (Choshen Mishpat 4:1) writes that he may.
Several Rishonim maintain that he may not based on a passage in the Gemara (Berachos 5b) which relates that 400 jugs of wine belonging to R. Huna turned into vinegar as punishment (say the Sages) for not having given his tenant farmer the share of grapevines they had agreed upon. Although the tenant farmer had been dishonest (he was appropriating more than his share), R. Huna still was not allowed to withhold his share. This passage seems to imply that one may not regain possession of one’s own property without obtaining authorization from beis din.
Was It Stolen Property?
The Mordechai (on our sugya) distinguishes between the two cases. He writes that one may retrieve one’s stolen article without permission of beis din, but one may not collect a debt without first registering a claim in court. When a person takes money or another article in place of an article taken from him, there is always a concern that he will be inexact in evaluating the article he is taking.
The following case is discussed in Sho’el U’Meshiv, Mahadura 3, siman 371: Two men started a potato supply business. Each partner would take potatoes from his storehouse, sell them at local markets, and then split the profits. Eventually it became clear to one of the two wholesalers that his partner was defrauding him by falsifying the profit reports. He wanted to do the same, taking back what belonged to him without informing his partner. Normally this would be forbidden due to the concern that a person trying to recover what is rightfully his might not make a correct evaluation. In this case, however, the Sho’el U’Meshiv ruled that since the partner was taking his due from the monetary profits of the partnership and knew exactly how much money had been embezzled, he was permitted to “steal” this sum back.
Do Not Appear As A Thief
Rav Pe’alim (Choshen Mishpat 3:5) addresses a similar incident and argues that if a partner has the opportunity to recover his losses openly, he should do so, in accord with the admonition (Bava Kamma 27b) of Ben Bag Bag (an early Tanna): “Do not enter your neighbor’s courtyard in stealth to take what belongs to you without his permission, lest you appear to him as a thief. Rather break his teeth [face him] and tell him, ‘It is my own property that I’m taking.”
Rabbenu Yona (cited in Sha’ar HaMishpat 348) rules similarly, forbidding a victim to recover his property in a way that may look like stealing due to mar’is ayin (an action that, though permitted, may appear to an observer as a transgression).
The Rif (Responsum 133) maintains that it is forbidden to retrieve property in a manner that may look like theft, not only because of mar’is ayin, but also because of the biblical prohibition, “You shall not steal” (Vayikra 19:11).