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 own in someone else’s house can simply take it back or whether he must receive permission from the beth din. According to the Shulchan Aruch (Choshen Mishpat 4:1), he may take it without receiving specific permission from the beth din. Several early halachic authorities (Rishonim) question this ruling based on the Gemara (Berachos 5b) relating an incident in which R. Huna’s 400 jugs of wine turned into vinegar. The Sages told R. Huna that this was his punishment for not having given his tenant farmer the share of grapevines they had agreed upon. Although the tenant farmer had not dealt honestly (see ad loc.: he was appropriating more than his share), R. Huna still was not allowed to withhold his share. Evidently, one may not regain possession of one’s own property without obtaining authorization from the beth din.
Was It Stolen Property?
The Mordechai (on our sugya) resolves this problem, explaining that without permission from the beth din one can take back only an article that was stolen, but it is forbidden, for example, to collect a debt without first registering a claim with the court. When a person takes money or another article in place of the article taken from him, there is always a concern that he will not be exact in evaluating the article he is collecting. The following decision in a case (Sho’el U’Meshiv, Mahadura 3, siman 371) illustrates how this ruling applies.
Two men started a potato supply business. Each partner would take potatoes from their 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 concerns that the person trying to recover what is rightfully his might not do 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, the victim was permitted to “steal” this sum back.
Do Not Appear as a Thief
The Rav Pe’alim (Choshen Mishpat 3:5) also addresses such an incident, arguing 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.’”
Rabbeinu 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 the concept of mar’is ayin (an action that, though permitted, may appear to an observer as a transgression).
The Rif (Responsum 133) adds a fine note to the opinion of other Rishonim when he 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).
