Lesson # 330 • Self-help in Halacha In our kollel we have a few gentlemen who come from the deep South in the United States, and it is reputed that they still have slaves on their plantations, that they visit once or twice a year. Every time we have a question in the Gemara about slaves we turn to them for guidance. They have neither newspapers nor radio nor television in their plantations so that the slaves do not know that they were freed by President Lincoln. The question arose whether a master can force his slave off his property, whether after his term of servitude was over if he freed the slave in the middle of the term of servitude, or with the advent of the Jubilee year that frees all slaves. The Gemara in Baba Kama (28a) says that the master may employ self-help and forcibly evict the slave if he refuses to leave. That is one of eight cases cited by the Gemara in evidencing the ability, under certain circumstances to employ self-help. The halacha system is structured on the assumption that most disputes will be adjudicated in Beth Din. There are, however, situations where a claimant (whose property it is) may protect her or his interests without resorting to the Beth Din to obtain their property from the one illegally holding it (the “holder”). In this day and age, with modern methods of transportation and communication, there is usually no necessity to employ self-help. Self-help may be employed for the purpose of self-defense, whether one’s person or one’s property is threatened. For example, it may be employed if the claimant sees property that was stolen from him in the hands of the thief. It may also be employed to recover a chattel that was deposited by the claimant as a bailment with another party (the holder) who now refuses to return it. The claimant may seize the property if he fears that the holder of the property will leave the jurisdiction so that he cannot sue him; or the holder will secrete his assets; or that the holder will fail to appear before Beth Din. In all of these and similar situations the claimant, after seizing the property should institute a claim in the Beth Din against the holder and deposit with the Beth Din the assets that he seized. All self-help, whether carried out by an individual or by a community is subject to judicial review upon request of either party, the claimant or the holder. Self-help should be used sparingly. If the free and easy use of self-help were to be permitted, lawlessness in the guise of self-help would be the result. The strong would be in a more favorable position than the weak. Thus the employment of self-help is subject to judicial review. Was it properly used? Was excessive force used? Should the person who employed self-help have waited to go to Beth Din? These and many other questions can be raised by either or both of the parties. Furthermore, once the matter is before Beth Din, the Beth Din may raise many questions of its own. Most important, the Beth Din may not only undo the self-help, but it also has he right to fine and otherwise punish the claimant who used self-help if he overstepped the rules of law. Anyone who employs self-help must realize that there are consequences for it use. The authorities cover the entire spectrum of ideas in the area of self-help. Some are very liberal in permitting self-help. Others would limit it severely, such as to cases protecting the very article that is in the process of being stolen. And many authorities find themselves between the two extremes. It is to be realized that self-help is in derogation of the principle that the judicial system is the arbiter of the law and the method of settling disputes. Thus a legalist may severely restrict use of self-help, while a psychologist might permit the alleged victim of wrongs to use self-help to enhance his self-image, even if the victim might have obtained the same result, if not a more favorable one, in Beth Din. Finally, a system that permits self-help relies to some extent on the principle that might makes right, since the stronger the person, the more likely he is to be successful in availing himself of self-help. Rabbi Karo in the Shulhan Aruch holds that self-help may be employed to seize property only when the seizer has a clear right of claim it. Self-help may not be used to satisfy any other claim, whether exact or not. According to this view, a person may employ self-help only if he has a claim that he can prove in Beth Din. If there are no witnesses to the act of self-help, then the one who has employed it is believed if he claims he seized his own property, even though he is not able to prove it in Beth Din. (He should have been silent since there are no witnesses to the seizure.) Self-help has several aspects. Self-help can be an end in itself; that is, the final action in the dispute between the parties unless either party seeks judicial review of the self-help. There is also the right of a party to seize or to ask Beth Din to seize the property so as to enable the parties to be secure in the judgment to be rendered at the end of the trial. The is also the concept of the Beth Din asking a party to post security to ensure compliance with the judgment of the Beth Din. If an individual, whether a member of the community or not, contests a tax assessment, the community may insist that he post security to ensure compliance with the judgment of the Beth Din. The burden of proof rests with the individual to show that his position was the correct one. The most common type of self-help employed by a community is the seizure of property or money for the payment of taxes when there is a dispute between the community and the taxpayer. The community stands in the position of electing to come forward with irrefutable proof, or it may insist that the individual come forward with his proof, which the community will be able to overcome. The community also has the choice of selecting the law most favorable to its position if there is a choice of various authorities. Also there are times that the community may employ self-help even if it does not have a claim that can be proved in Beth Din. This might occur either because the members of the community are ineligible to testify on the basis of self-interest, since they will derive benefit from their testimony if the community is successful, or because no one in the community wants to undertake the burden of instituting a lawsuit on behalf of the community. The subject matter of this lesson is more fully discussed in volume I chapter 4 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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