THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Lesson #22 - Composition of the Beth Din - Self-Help in Halacha The Jewish legal system is structured on the assumption that most disputes will be adjudicated in the Beth Din described in the previous chapters. There are, however, situations where a claimant may protect his or her interests without resorting to the Beth Din. That women are included in the law of self-help is stated in Kovetz haPoskim (1969, page 64) The primary source of permitting a person to take the law into his own hands is found in a case in T. Baba Kamma 27b, and eight related cases immediately following it. In the principal case, Reuven and Shimon jointly owned a well, with each party having the exclusive right to use the well on alternative days. On a day that only Reuven had the right to use the well, Reuven discovered Shimon drawing water from the well. Reuven asked Shimon to cease, and when Shimon refused, Reuven struck Shimon with a hoe handle, forcing Shimon to cease. Shimon brought action against Reuven for assault. When the case came before Rav Chisdah, he sent an inquiry to Rav Nachman to ascertain the rule of law to apply in the case. Rav Nachman replied that, in this type of case, Reuven could have struck Shimon one hundred blows without being liable for the assault. Rashi explains that in this case there was irreparable loss to Reuven, either because all of the well water might be consumed or because Reuven might not be able to prove how much water Shimon had used. Rav Nachman further stated that although there is a difference of opinion whether one may employ self-help if he will not suffer irreparable loss by waiting to have his claim adjudicated in Beth Din, all authorities agree that he may use self-help where he will suffer irreparable loss by waiting to have his claim adjudicated. Rav Yehudah holds that where there is no irreparable injury entailed by waiting to go to Beth Din the plaintiff may assert his rights only through a judicial proceeding. Rav Nachman holds that even in these cases the plaintiff may employ self-help. Avi Mori, HaGaon haRav Eliyahu haKohen Quint, explained to me that their dispute is predicated on the fact that Rav Yehudah does not believe that the bother and expense of a lawsuit is an irreparable loss, whereas Rav Nachman holds that the loss of time and money resulting from a lawsuit is as much of an irreparable injury as the loss of a chattel. This perceptive observation helps to explain why the Talmud frames their dispute in terms of vexation, by having Rav Nachman state that the plaintiff should not have to be bothered in retrieving what is legally his. Rav Yehudah holds that if there is no irreparable injury to the chattel, then the plaintiff must undertake the trouble of going to Beth Din while Rav Nachman holds he need not be bothered. The Talmud then cites eight cases to ascertain whether the law is in accord with Rav Yehudah or Rav Nachman. After analyzing the cases and commentaries thereon, four Rules emerge. [1] A person may employ self-help in the first instance against another individual or group, and need not wait for a judicial determination of his rights. This applies whether or not there is irreparable injury to the person employing self-help. When one employs self-help, he obtains absolute title or right of possession of the property seized as if the seizure had been pursuant to an order of Beth Din. The one employing self-help stands in a quasi-official position. [2] The person taking the law into his own hands may use physical force to obtain his objective, but may employ only as much force as necessary. In resorting to self-help, he must minimize the damage caused to the other party, provided that it does not entail extra bother. If he does not minimize damages where he should, then he will be liable for any damage caused. The one using self-help assumes the risk of injury and will not be compensated for injuries thereby occasioned. [3] The one employing self-help must have a clear and recognized right to possession of the personal property over which he is employing self-help. Or he must have the right to freedom of ingress or egress upon his property, which is being restricted, or he must have the right to peaceful enjoyment of his property, which is being disturbed. It is clear that self-help may be employed were one's personal safety or the safety of others is involved. [4] Self-help is subject to judicial review. Self-help is an end in and of itself in that it terminates the controversy between the parties, determines the right to possession and/or ownership of the personalty, and eliminates Beth Din adjudication of the controversy. However, the one against whom self-help was employed may institute suit against the one employing self-help to determine if the self-help was legal. Sometimes self-help may consist of using secular courts to assist in the carrying out of self-help. Hagohoth Asheri (14th century, Baba Kamma, chapter 3, par 3) reports a case that happened in Egypt. A bailor requested the bailee to return his chattel, and the bailee denied the bailment. The bailor thereupon applied to the gentile court for relief, and the court sent officers to retrieve the chattel. In doing so the officers broke down the bailee's door and caused other property damage. The bailee brought suit against the bailor in a Jewish Beth Din to recover for the property damage, the bailor's claim to the chattel not being disputed. The Beth Din held that if the bailor could have recovered the chattel in any other manner then he would be liable for the property damage, since when engaging in self-help plaintiff must minimize damage to the defendant as stated in Rule [2] above. Had the officers of the gentile court not caused property damage, then the bailor would have been justified in using the gentile court if he could not get the same relief from the Beth Din. In a case that came before Rabbi Samuel di Medina (Rashdam, Greece, 1505-1589, responsum Hoshen haMishpat 145) the following were the facts. Reuven, who was a debtor, left a chattel with Yehudah, a craftsman, and then Reuven left the jurisdiction. Shimon, a creditor of Reuven, obtained an order from Beth Din enjoining Yehudah from returning the chattel to Reuven until Reuven's debt to Shimon was fully determined. Thereafter, Levi and Naftali, other creditors of Reuven appeared. Levi and Naftali demanded that Yehudah turn over the chattel to them for their debt. Yehudah answered that all the creditors should agree among themselves as to their share in the chattel. Shimon, not willing to share Reuven's chattel with the other creditors, invoked the gentile court, engaged people to testify falsely and obtained a judgment compelling Yehudah the craftsman to turn the chattel over to Shimon. Levi and Naftali, the other creditors, brought an action in Beth Din against Shimon and in the alternative against the false witnesses. The case came before Rabbi Samuel di Medina for a decision. He ruled that Shimon must return the chattel to Yehudah in order not to gain from his illegal act. The holding as seen by later decisors is limited to the facts that Shimon could have obtained relief in Beth Din where he originally obtained an injunction against Yehudah. To the aforesaid four Rules we can now add a fifth Rule. [5] Even where one may employ self-help, he may not employ the aid of non-Jews or non-Jewish courts. If he does resort to the assistance of gentiles or gentile courts because there is no other way, then his act will not be undone. The aforesaid lesson is just a very short glance at the doctrine of self-help in halachah. A more complete view can be obtained in chapter 4 of A Restatement of Rabbinic Civil Law, Volume I. [The Vaeira Homepage]
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