Translation:Shulchan Aruch/Choshen Mishpat/4

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Shulchan Aruch by Yosef Karo, translated from Hebrew by Wikisource
Choshen Mishpat 4

Paragraph 1[edit]

A person may take the law into his own hands in order to safeguard his interests . If he sees something that belongs to him in the hand of another person who robbed it from him, he may take it from his hand and if the latter makes a stand against him, he may strike him until he releases it, (if he can't save the item in another way) (Tur). Even if it is a matter that would not cause a loss if he waits until he takes legal proceedings against him , provided he can prove that what he takes is his own in accordance with the law . Nevertheless, he has no right to seize a pledge for his debt when it matures.

RAMA: For the reason that will be explained later in Siman 97 Seif 6. And there are those who say that this is specifically regarding an actual debt, but if he owes him money for any reason other than a loan , or if he does not need collateral because he already has something in trust or found something belonging to the owner in the hands of someone else , it is permissible to seize it (Rivash, section 396). 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 someone robbed him , or one desires to rob him or one desires to cause him damage, in which case he may save that which belongs to him. 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. (Mordechai and Nimukei Yosef, Perek "HaMeniach"). And specifically he, himself, may take the law into his own hands in order to safeguard his interests, but he is forbidden to do this through a non-Jewish Court. (Trumat HaDeshen section 304). However, if he transgressed and did this through the non-Jewish courts, he cannot save what is his in another manner, what is done is done. (see Maharik Shorsh, 161).

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 and therefore he cannot work unless he can prove that it is his. This is so unless he can prove that it is his. But regarding 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. (Maharik Shorsh, section 161).

And all this is dealing with an individual against an individual. But in the case of an individual in conflict with an entire community, the law is that if he is one of the townspeople 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 favor, 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. (Responsa of Rashba, rule 7 section 25). See Siman 7, Seif 12; and Siman 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, and he is required to give them a pledge before they go down with him to Court. (Mordechai, Perek "HaMocher Peirot" and then end of Perek "Lo Yachpor"). The fact that they are called actual possessors with respect to an individual applies only in matters of taxes but not in other cases. Nevertheless, he must give [them] a pledge before they go down to Court with him. (Trumat HaDeshen section 341).

And all this is 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. (Moharam from Rizkorg). And it is permissible to compel an individual to comply with the laws pertaining to matters of taxes by means of a non-Jewish Court and to cause him to suffer a loss if they cannot collect from him the tax otherwise. (Maharik Shorsh, 17 and 27).