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 Shabbat Parashat Nitzavim| 5766P’ninat MishpatTaking the Law Into One’s Own Hands - Harav Yedidia Kahane
There are times that one does not want to wait for beit din to hear his case but prefers to act unilaterally to get what he deserves. The gemara calls such an action, when it is justified: “One can make a judgment for himself.” Let us explore if, when, and to what extent one can take such action.
In Bava Kamma (27b) the gemara brings a dispute between Rav Yehuda and Rav Nachman whether one may take the law into his own hands. The gemara points out that in a case where waiting will cause a loss of money, all agree that one can take action. The question is whether one has to go through the trouble of the judicial process if he has another remedy. We actually accept Rav Nachman’s opinion that even without fear of financial loss, one is allowed to act. (This, of course, would be practically allowed only if it did not violate the law of the land.) However, several, important conditions need to be fulfilled before it is permitted for a “litigant” to act unilaterally.
One needs to be able to act in such a way that he will not be subject to suspicion of thievery or the like. The indication that this is true is from the following gemara (ibid.): “Ben Bag Bag says: Do not enter your friend’s courtyard to take that which is yours without permission lest you appear to him as a thief. Rather, ‘break his teeth’ and say to him: ‘I am taking that which is mine.’” In other words, one should not act in a way that makes him look suspicious, even if the action of taking the object itself is permitted.
The gemara (ibid. 28a) also seems to indicate that one needs to be able to prove in court that he had a right to act in the manner that he did. The gemara says: “There was a trap [for animals] about which two people were fighting, each one claiming that it was his. One of them went and gave it over to the king’s officer. Abaye said: ‘He can say that he gave over that which was his.’ Rava said: ‘Does he have such authority?’ ‘Rather,’ said Rava, ‘We put him in cherem (excommunication) until he brings it back and goes to court [over his claim].’” The Gra understands Rava to be saying that since he was not able to prove that the object was his, he had no authority to give it over to the officer, as he desired.
Indeed these approaches are reflected in the Shulchan Aruch’s ruling: “A person can make a judgment for himself. If he sees his object in the hand of someone who stole it from him, he can take it from him. If the other one resists, he can hit him until he allows him [to take it] (Rama- if there is no other way save it). This is even if it is a case where there will not be a loss if he waits until he can summon him to court. However, it is only if he can clarify that it is his that he is taking according to the law (Choshen Mishpat 4:1).
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