Sources and Reasons:
Avid Inish Dina Lenafshei
In the Gemara, Bava Kamma 27b, Rav Nachman and Rav Yehudah disagree as to whether a person may administer justice for himself. Rav Nachman said, “avid inish dina lenafshei,” while Rav Yehudah said, “lo avid inish dina lenafshei.”
Regarding the halachah in this dispute, the Rif, Rambam, and Rosh ruled that the halachah follows Rav Nachman, that avid inish dina lenafshei, for we rule in monetary law in accordance with Rav Nachman. The Shulchan Aruch likewise ruled accordingly in Choshen Mishpat, siman 4, סעיף 1, as follows:
A person may administer justice for himself: if he sees that his own property, which another has stolen, is in that person’s possession, he may take it from him. If the other person resists him, he may strike him until he relinquishes it, even where there would be no loss were he to wait until bringing him to judgment—provided that he can establish that he would be entitled to take it in court.
In light of the above, it would seem that a person whose bicycle or other item was stolen, or who paid in a store for merchandise and forgot it there, may go and take other items equal in value to his own item, since avid inish dina lenafshei.
May One Take Another Item in Place of the Item Taken?
However, on the other hand, the Gemara in Berachos 5b implies that a person may not take something from another as compensation for something else that the other took from him. If he does so, he is considered a thief. The Gemara there relates concerning Rav Huna as follows:
Rav Huna’s four hundred barrels of wine turned sour. Rav Yehudah, the brother of Rav Salla the Pious, and the Sages entered to visit him; others say Rav Adda bar Ahavah and the Sages. They said to him: Let the master examine his deeds. He said to them: Am I suspect in your eyes? They said to him: Is the Holy One, blessed be He, suspect of administering judgment without justice? He said to them: If anyone has heard anything concerning me, let him state it. They said to him: We have heard that the master does not give vine branches to his sharecropper. He said to them: Does he leave me anything of them? He steals them all. They said to him: This is what people say: “He who steals from a thief tastes the taste of theft.” He said to them: I accept upon myself that I will give him. Some say that the vinegar reverted and became wine, while others say that the vinegar rose in value and was sold for the price of wine.
The Gemara teaches that even when a sharecropper stole from the landowner and took from him unlawfully, the landowner has no right to take from the field branches due to the sharecropper in exchange for what he stole. As Rashi explains there, even one who steals from a thief tastes the taste of theft.
At first glance, this contradicts what we rule—that avid inish dina lenafshei, and that a person may extract from another that which is owed to him, even striking him for that purpose.
To resolve this difficulty, the author of She’eilas U’Meishiv, part I, siman 371, wrote that the incident in Berachos 5b reflects an extra measure of piety and applies only to righteous and pious individuals such as Rav Huna. Proof of this is that the Rif, Rambam, and Shulchan Aruch did not cite this incident.
However, the Mordechai, Bava Kamma chapter 3, siman 30, addressed this difficulty and proved from here that the rule permitting a person to administer justice for himself applies only where he sees his actual property in the possession of the other. If he does not see his own actual item in the possession of the other, he may not take a different item in compensation for the item the other took from him.
This is the language of the Mordechai on Bava Kamma, chapter HaManiach, paragraph 30:
We rule in accordance with Rav Nachman that a person may administer justice for himself. Rabbeinu Meir ruled that this applies to an identifiable item known to be his, which the other possesses and refuses to return. But in other matters, where it is unknown whether it is his or not, he has no right [to take it], even if, according to his claim, he would suffer a loss…
The proof is from the first chapter of Berachos, which says: “He who steals from a thief tastes the taste of theft.” Rav Kalonymus asked: Did he not take it lawfully, since we rule that a person may administer justice for himself? The answer is that this applies only to the very item taken from a person; he may take it wherever he can obtain it, similar to the statement of Ben Bag Bag, who said, “He takes what is his.” But here he took different branches, which the sharecropper had not stolen from him. From here Rabbeinu Meir brought proof for his ruling, for Rav Huna certainly knew that the sharecropper had stolen from him—for Heaven forbid that Rav Huna would withhold [the branches] based on uncertainty. This is also implied by the wording: “Does he leave me any of them? He steals them all”—meaning, he steals more than his share.
In Beis Yosef, Choshen Mishpat siman 4, these words of the Mordechai are cited briefly, and the Rema cites them as halachah in his gloss on the Shulchan Aruch. Therefore, in the second case mentioned above, the purchaser may take the items for himself only if he identifies the actual merchandise for which he paid. If he does not know whether these are the items he purchased, he may not take other merchandise in exchange for the merchandise he bought and left in the store. Likewise, regarding the first case, one may not take another cellphone in order to exercise a warranty, even though he is entitled to another cellphone, because it is not his actual cellphone.
Responsa Rav Pe’alim, part III, Choshen Mishpat siman 5, likewise ruled contrary to the author of She’eilas U’Meishiv, who wrote that the Gemara in Berachos reflects an extra measure of piety.
May One Take It Secretly, or Must It Be Taken Openly?
However, Responsa Rav Pe’alim, part III, Choshen Mishpat siman 5, raised a difficulty from the Gemara in Bava Kamma 27b: Ben Bag Bag says, “Do not enter your fellow’s courtyard to take what is yours without permission, lest you appear to him as a thief; rather, break his teeth and say to him, ‘I am taking what is mine.’” Although the Gemara there implies that the halachah does not follow him, Rabbeinu Yonah ruled in accordance with Ben Bag Bag.
He resolved this as follows: It appears to me that they prohibited this where it is possible to administer justice for oneself by taking one’s property openly. But if the robber is a violent person, such that one cannot extract what he swallowed openly, or where there is another reason why one cannot administer justice for himself openly, all agree that he may rescue his own property secretly. We must draw this distinction in order to reconcile the authorities, so that the reasoning of the Mordechai should not contradict that stated above.
See there further, where he explains the Gemara in Moed Katan 17a, that a tzurba merabbanan may administer justice for himself in a matter certain to him. This means that a tzurba merabbanan may take secretly and need not take only openly, because the concern with taking secretly is that everyone may administer justice for himself improperly, leaving no security for anyone. This concern does not apply to a tzurba merabbanan.
May One Take an Item and Retain It Until the Debtor Returns the Money?
Regarding taking an item in exchange for stolen property or for a monetary debt, such as a loan and the like, the Shulchan Aruch, Choshen Mishpat siman 4, סעיף 1, writes that a person may administer justice for himself: if he sees his own property in another’s possession, which that person stole, he may take it from him, etc. Nevertheless, he has no right to seize collateral for his debt. The Rema explains that this is for the reason explained below in siman 97, סעיף 6—that is, because of the prohibition, “You shall not enter his house to take his pledge.” Some say this applies specifically to an actual loan debt, but if he owes him other than through a loan, or if there is no need to seize collateral because it is already in his possession as a deposit or he found it in another’s possession, he may seize it.
It is clear that since the entire prohibition against taking collateral is only because of the prohibition, “You shall not enter his house to take his pledge,” therefore for any debt that is not a loan—such as theft, liability for damage, and the like—or wherever the item has come into his possession and he need not go and take it as collateral, he may seize the item until the other pays what he must pay. Beis Yosef, Choshen Mishpat siman 75, cites Baal HaTerumos, siman 49, that even a deposit may be retained for a debt once it has come into his possession. Responsa Yabia Omer, part VI, Choshen Mishpat siman 1, likewise ruled this way in practice.
Therefore, in the case at hand, the questioner may seize and retain the thief’s watch [provided that it indeed belongs to the thief] until he returns what he stole from the car.
May One Retain a Deposit Against Another Debt Owed by the Depositor?
It is important to note the case in which a person deposited an item with another, and the custodian wishes to take the deposit and retain it until the depositor returns money which, according to the custodian’s claim, the depositor stole. Although the Rema’s words imply that one may retain the deposit in his possession,
Responsa Radbaz distinguishes between an item initially given as a deposit and an item that came into one’s possession for some other reason and was not initially given as a deposit, based on the words of the holy Zohar, Parashas Naso.
This is the language of Radbaz, part III, siman 485:
Although we rule that one who knows that his fellow owes him one hundred zuz and cannot extract it from him because he is violent, or because he fears that he may swear falsely, and his fellow’s money comes into his possession, may retain it—this applies to a loan. But it is not proper to retain a deposit, and one who does so is not called a trustworthy person. I have not seen this stated explicitly in the Talmud, but I saw it in the book of the Zohar, as I recall, concerning the verse, “They are new every morning; great is Your faithfulness”: “Observe and accept that a person does not depart from sleep unless his time to die has arrived. While he is asleep, his soul is returned to him and he awakens from his sleep; afterwards it is taken from him, because while a person sleeps, he entrusts his soul to the Holy One, blessed be He, as it is written, ‘Into Your hand I entrust my spirit,’” etc. From here you learn that a deposit should not be retained for any reason, and one who retains it is not called a trustworthy person and does not follow His ways, may He be blessed. Nevertheless, the poskim wrote that if one retained a deposit for another obligation, it remains retained. But a creditor may retain it for himself if he knows with certainty that his fellow owes him from another source, but not for others. End of quote.
His words teach that although by strict law it is permitted to retain a deposit against a monetary debt, theft, and the like, and if one did retain it it is not taken from him, nevertheless, it is not proper to retain a deposit, and one who does so is not considered a trustworthy person.
Ketzos HaChoshen, siman 4, at the end of se’if katan 1, cites what the Maharshal wrote in Yam Shel Shlomo (chapter HaManiach, siman 5): whoever has collateral or a deposit in his possession may retain it, even initially, against his fellow’s debt or theft. This is not called administering justice for oneself, since he did not seize anything from his fellow but merely withheld what he has through passive inaction. However, Ketzos HaChoshen writes that although the Maharshal wrote that there is no prohibition at all in retaining a deposit in one’s possession, the Zohar, Parashas Bamidbar, indicates that it is an absolute prohibition. This view also has support according to the revealed dimension of Torah, and it is the approach of the Ritva in the chapter HaKosev: whatever came to the custodian as a deposit requires a proper act of return. See also Shach, siman 58, se’if katan 9; therefore, a spiritually sensitive person should distance himself from this. End of quote.
Ketzos HaChoshen also makes clear that a spiritually sensitive person should not do so, though it is permitted by strict law. I saw that Responsa Yabia Omer discusses this at length and cites Rabbi Meir Waeknin in Responsa Vayomer Meir (siman 14), who discusses this extensively and writes that although Ketzos HaChoshen was stringent regarding retaining a deposit based on the Zohar, we follow the poskim who are lenient, holding that whenever the revealed Torah and Kabbalah differ, we rule according to the revealed Torah, for not every mind can bear this.
However, in Birkei Yosef, siman 4, se’if katan 5, he writes concerning the Rema’s statement that if the deposit is already in his possession he may retain it, etc., that this applies where the debt preceded the deposit. But if the deposit preceded the loan and he subsequently lent him money, he may retain it. This is from the Ramak in a handwritten gloss from the Zohar.
This is logical, because the trust placed in him to return the deposit at the time it was deposited, notwithstanding the debt, obligates him to return the deposit. This applies only where, at the time of the deposit, the matter of debt or theft did not yet exist; the custodian did not undertake to return the deposit to its owner on such terms.
In practice, however, this does not affect the case at hand, since the thief’s watch was forgotten in the car and was not initially deposited with the theft victim for safekeeping. Therefore, there is no impediment to the theft victim seizing and retaining the watch until the thief returns the items he stole.
May One Collect the Debt from the Deposit, or May He Only Retain It?
However, we need to know in every case where one may retain an item that came into his possession—such as where it was given to him before the theft or came to him other than as a deposit—whether he may also use the item, sell it, and collect the money due to him from it, or whether he may only retain it until the other returns his money.
On this issue, I saw that Maran Rabbi Ovadia Yosef zt”l wrote in Responsa Yabia Omer, part VI, Choshen Mishpat siman 1, at the conclusion of his discussion, after elaborating on this issue: “The conclusion of the law in our case is that one may collect his debt from an item that came into his possession because its owner forgot it. This is what appears correct to me.” His words seemingly indicate that one may even collect the debt from the deposit itself, namely by selling it and the like.
However, in my humble opinion, this is an error, for in the words of the Rivash himself—the source of the Rema’s ruling in Choshen Mishpat siman 4 that an item may be retained against a debt owed to him—the Rivash himself writes in siman 396 that this applies only to retaining the item until the other pays him what is due, but not to collecting the debt from the item itself.
This is the language of the Rivash in responsum siman 396:
I found written in the Tur, Choshen Mishpat siman 4, that he wrote: Although an individual may not judge, he may administer justice for himself. This means that if he sees his property in another’s possession, which the other has stolen, he may take it from him. If the other resists him and prevents him, he may strike him until he allows him to take his property, etc. This applies only when he comes to rescue his property which was stolen from him, as I explained, or when another comes to steal from him and he stands against him to rescue his property. But he has no right to seize collateral for his debt. End of his words…
What he wrote, “to rescue his property,” does not mean the case of potential loss mentioned in the Gemara, as you understood it. Rather, it means rescuing his property, even when there is no loss and he could have rescued it through Beis Din. This appears to be the intent of Rabbeinu Tam. But for him to collect for himself, definitively appropriate the collateral for himself, or sell it to others without an appraisal by Beis Din—Heaven forbid; let such a matter be eradicated and not said.
The Rivash’s words appear clear: there is no permission to collect the debt from the item, but only to retain it until the other pays the money due, or until he goes to Beis Din, which may rule whether to sell the item. It seems to me that Responsa Yabia Omer likewise did not intend to say that one may collect the debt from the item. He did not address this point throughout his lengthy responsum; rather, the phrase at the conclusion, “collect his debt from the item,” was written inadvertently, and his intention was only that he may retain the item until the other pays his debt.
In addition to all that was stated, in the present case there is reason to be uncertain whether the watch belongs to another theft victim from whom the thief took it, and perhaps that victim has not yet despaired of recovering the watch. In that event, the questioner is obligated to return the watch to its owner. He has no way to fulfill hashavas aveidah, since he does not know where to publicize the watch; nevertheless, using it and taking it for himself is certainly prohibited because of this uncertainty.
Despite all the above, as a practical matter, if the watch is of a type readily obtainable in stores, he may record its present value, or record the watch model and the date on which it was found, so that if its owner is found, or if the thief is found and returns the stolen property, he can return its value to him. He may then use the watch.
This is explained in the Gemara and ruled by the Shulchan Aruch, Choshen Mishpat siman 267, סעיף 21, regarding one who finds tefillin: an item readily available for purchase at any time may be appraised, and one may use it.
Although one could argue that this permission applies specifically to tefillin, which are an object of mitzvah, and whose owners are pleased for the finder to use them or sell them for others to use, as implied by the wording of the Shach and Sema there, the poskim write that nowadays one cannot require a finder to safeguard every item he finds until its owners are located. This is also the current practice regarding every lost item that can be obtained in stores.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
