(א) הַמַּנִּיחַ אֶת הַכַּד בִּרְשׁוּת הָרַבִּים וּבָא אַחֵר וְנִתְקַל בָּהּ וּשְׁבָרָהּ, פָּטוּר.
(1) [If] one places a jar in a public domain and another comes and trips on it and breaks it, he is exempt [from damage to the jar].
So what does this mishnah seemingly prove?
If another person came and stumbled on it and broke it, he is exempt.: Why is he exempt? He should examine the road and then continue walking.
What is the underlying assumption behind this difficulty?
אמרי דבי רב משמיה דרב בממלא רה"ר כולה חביות שמואל אמר באפילה שנו רבי יוחנן אמר בקרן זוית
The school of Rav said in the name of Rav: This refers to a case where he filled the entire public domain with barrels, Shmuel says: This refers to case where it was dark.
Rabbi Yoḥanan says: This refers to a case where it was a the corner.
There are three different contextualizations of the mishnah here. What qualitative differences are there between them? In other words, what would be the difference in principle behind them? Focus specifically on Rav's statement.
Rav Pappa said: The mishna is precise only according to either the explanation of Shmuel or that of Rabbi Yoḥanan. As, if it were explained in accordance with Rav, why does it specifically say that he stumbled ? Even if he broke it intentionally.
Rav Papa is raising a difficulty on Rav's understanding of the mishnah. What is the underlying basis of this difficulty?
אמר רב זביד משמיה דרבא הוא הדין דאפי' שבר. והאי דקתני נתקל איידי דבעי למתני סיפא ואם הוזק בה בעל חבית חייב בנזקו דדוקא נתקל אבל שבר לא.
מאי טעמא הוא דאזיק אנפשיה.
קתני רישא נתקל
Rav Zevid said in the name of Rava : The same is true even if he broke it intentionally. And the reason it teaches "he stumbled," is because he wants to teach in the last clause: And if he incurred damage due to the vessel, the owner of the jug is liable to pay for his damage. This is specifically when he stumbled, but if he broke it intentionally, he is not required to compensate him. What is the reason? He damaged himself.
Therefore, in the first clause the mishna teaches a case where he stumbled.
Rav Zevid offers a defense of Rav's reading of the mishnah. But then he encounters a problem--why does the mishnah teach "stumbled" and not "broke intentionally?"
So in the end what is the rule if he stumbled and broke the vessel? If he intentionally broke the vessel?
Rabbi Abba said to Rav Ashi that this is what they say in the West, in the name of Rabbi Ulla: Because it is not normal for people to examine the roads.
There was an incident in Neharde’a and Shmuel deemed him liable. A similar incident took place in Pumbedita, and Rava deemed the person liable to pay.
Note how the amoraim do not seem to follow the ruling found in the Mishnah.
Granted, Shmuel ruled in accordance with his halakhic opinion. But with regard to Rava, shall we say that he holds in accordance with Shmuel’s.
How does Shmuel's ruling accord with his reading of the Mishnah?
Rashi:
בשלמא שמואל כשמעתיה - דמוקי למתניתין באפילה הא באורה חייב:
Rav Pappa said: This incident happened at the corner where there was an olive press [de’atzera]. Since they were acting with permission, he should examine the road and then continue walking.
With this resolution in mind, how does Rava's opinion differ from Shmuel's?
By this point in the sugya there seem to be several different opinions? What are they? What are the variables that impact whether the one who breaks the jug is liable?
שלח ליה רב חסדא לר"נ הרי אמרו לרכובה שלש ולבעיטה חמש ולסנוקרת שלש עשרה. לפנדא דמרא ולקופינא דמרא מאי
§ Rav Ḥisda sent to Rav Naḥman: They said: The penalty for kneeing [rekhuva] is three sela; for kicking, five; and for punching [velisnokeret], thirteen. The Gemara asks: For hitting him with the handle of a hoe [demara] and for hitting him with the top [ulkofina] of a hoe, what is the payment?
The fine here seems to be for embarrassment, which is one of the five payments a person is obligated to make if he injures his fellow. The assumption is that striking a person with different objects can be more/less embarrassing.
He sent him : Ḥisda, Ḥisda, are you collecting a fine for humiliation in Babylonia? Tell me how the incident itself transpired.
According to the Talmud, rabbis in Babylonia do not have the authority to collect "fines" which is usually defined as payment beyond the actual damage.
He sent him in response: There is a certain cistern belonging to two people, so that every day one of them would draw from it in turn. It happened that one of them came and was drawing water on a day that was not his turn. His co-owner said to him: This is my day. He did not pay attention to him. He took the handle of a hoe and struck him.
א"ל מאה פנדי בפנדא למחייה אפילו למ"ד לא עביד איניש דינא לנפשיה במקום פסידא עביד איניש דינא לנפשיה
He said to him: He should have hit him even a hundred times with the hoe. Even according to the one who says that a person may not take justice into his own hands, in a case where there would be a loss, a person may take justice into his own hands.
Where there is a loss, everyone agrees that a person may take justice into his own hands. They disagree only when there is no loss. Rav Yehuda says that a person may not take justice into his own hands, because since there is no loss, he should go before the judge . Rav Naḥman says that a person may take justice into his own hands. Since he is acting lawfully, he need not trouble himself.
Note how this stammaitic comment recontextualizes Rav Yehudah's statement.
Rav Kahana raises an objection: Ben Bag Bag says: Do not enter another person’s courtyard secretly to take what is rightfully yours without permission, lest you appear to him as a thief trying to steal his property. Rather, break his teeth, i.e., take it by force, and say to him: I am taking what is mine.
Who is Rav Kahana raising a difficulty on?
א״ל עמך בן בג בג יחידאה הוא ופליגי רבנן עליה
He said to him: Does this seem correct to you. Ben Bag Bag is an individual, and the Rabbis disagree with him.
How does R. Yehudah avoid the difficulty? Why doesn't he cite a source to substantiate his claim?
Note that in the lines that come, this line seems to be ignored.
Rabbi Yannai says : What does Break his teeth mean? In judgment.
Why does Rabbi Yannai offer such a non-literal interpretation of the phrase "break his teeth?"
If so, "And say to him," should have stated: And they, the court, say to him. "I am taking what is mine," should read: He is taking what is his. This is indeed a difficulty.
R. Yannai's understanding of the baraita is rejected. On what grounds?
ת"ש שור שעלה ע"ג חבירו להורגו ובא בעל התחתון ושמט את שלו ונפל עליון ומת פטור. מאי לאו במועד דליכא פסידא
Come and hear. An ox that climbed on the back of another ox to kill it, and the owner of the ox on the bottom came and removed his ox, and the ox on top consequently fell and died, he is exempt from paying for the dead ox. Is this not a case of an ox that is an attested danger, where there is no loss.
Background info: An ox that is an "attested danger" is one that has injured another ox three times. The owner of the ox is liable to pay full damages. Thus in this case, even if the upper ox killed the lower ox, the owner of the lower ox would not lose any value for he would be fully compensated.
With that in mind, what is the Talmud trying to prove from this baraita?
No this refers to a case where the attacker is an unattested danger where there is a loss.
If the attacking ox is an unattested danger, the owner will pay only half damages. How does this effect the overall argument about "a person can take justice into his own hands"?
If so, what about the latter clause: If he pushed the one on top and it died, he is liable. And if it is referring to an unattested danger, why is he liable?
The Talmud here cites the second half of the baraita. Think about the baraita in its entirety. What is its simple meaning?
How is this a difficulty on the previous resolution? Why does the Talmud think that if the ox is an unattested danger then the owner he pushed him and caused him to die should not be liable?
Because he should have pulled his ox out, and he did not pull it out.
Where does the Talmud currently stand in terms of the question of whether a person may take justice into his own hands?
Come and hear: One who fills another’s courtyard with jugs of wine and jugs of oil, the owner of the courtyard may break his way through them and exit or he may break his way through them and enter his courtyard.
What does this source prove with regard to the overall question of whether a person may take judgment into his own hands?
Rav Naḥman bar Yitzḥak said: He may break the jugs and exit to court, and he may break the jugs and enter his house to bring proof of his rights.
What does R. Nachman b. Yitzchak hold with regard to the question of whether one can take justice into one's own hands?
ת"ש מניין לנרצע שכלו לו ימיו ורבו מסרהב בו לצאת וחבל ועשה בו חבורה שהוא פטור ת"ל (במדבר לה, לא) לא תקחו כופר לשוב לא תקחו כופר לשב
Come and hear: From where is it derived that a Hebrew slave who had his ear pierced but whose days of servitude have now ended; and his master is urging [mesarhev] him to leave; and the master struck him and inflicted an injury on him, that the master is exempt? To counter this, the verse states: “You shall take no ransom…that he should return” (Numbers 35:32). You shall take no ransom for one who is returning.
Background info: A Hebrew slave who wants to extend his term of servitude can have his ear pierced. In such a case he will serve until the Jubilee year. But at the Jubilee year he loses his option of continuing to serve. He must go free.
In this baraita the slave does not want to go free. The master strikes him in order to get him to leave his house. The baraita rules that if the master injures him, he is exempt.
What does this prove with regard to the question: "Can a person take justice into his own hands?"
With what are we dealing here? With a slave who is a thief.
Why does it matter if the slave is a thief?
And according to this line, if he is not a thief and the master injures him in an attempt to get him to go free the master is liable. Why?
עד האידנא לא גנב והשתא גנב עד האידנא הוה אימתיה דרביה עליה השתא לית ליה אימתא דרביה עליה
Until now he did not steal, and now he will begin to steal? Until now the awe of his master was upon him. Now he does not have the awe of his master upon him.
The assumption is that the slave was not a thief during his term of servitude, for if he had been a thief all along, the master would have kicked him out long ago or at least punished him accordingly. So how come he suddenly turned into a thief now?
Rav Naḥman bar Yitzḥak said: The baraita refers to a slave whose master provided a Canaanite maidservant to him. Until now, it was permitted for him have sex with her, but now that he is free, it is prohibited.
How does this effect the overall argument?
Rashi comments:
איסורא - ורשאי להלקותו ולהפרישו דהאי דינא לאו לנפשיה הוא:
[She is] prohibited [to him]: And he [the master] may strike him to separate him from her, for this "justice" is not for his own sake.
Again, what does R. Nahman b. Yitzchak think about taking justice into one's own hands? When is it allowed, and when is it not?
ת"ש המניח את הכד ברה"ר ובא אחר ונתקל בה ושברה פטור. טעמא דנתקל בה הא שברה חייב
Come and hear: One who places a jug in the public domain and another person comes and stumbles on it and breaks it, he is exempt. The reason is that he stumbled on it. But if he broke it intentionally, he is liable.
What does this prove?
Rav Zevid said in the name of Rava : The same is true even if he broke it intentionally. And the reason it teaches "he stumbled," is because he wants to teach in the last clause: And if he incurred damage due to the vessel, the owner of the jug is liable to pay for his damage. This is specifically when he stumbled, but if he broke it intentionally, he is not required to compensate him, for he damaged himself.
Therefore, in the first clause the mishna teaches a case where he stumbled.
ת"ש (דברים כה, יב) וקצתה את כפה ממון. מאי לאו בשאינה יכולה להציל ע"י דבר אחר?
לא שיכולה להציל ע"י דבר אחר
Come and hear: “Then you shall cut off her hand” (Deuteronomy 25:12). This refers to monetary restitution. Does this not refer to a case where she cannot save him by any other means.
No, the verse is referring to a case where she can save him by other means.
Background information: The verse here refers to D'varim 25:11-12:
If two men get into a fight with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by his genitals, you shall cut off her hand; show no pity.
The rabbis interpret "cut off her hand" to mean that the woman owes money.
The question is whether she could have stopped the assailant in any other way. How does this effect the overall question of whether a person may take justice into his own hands?
But if she cannot save him by other means, is it possible that she is exempt?
If so, instead of teaching in the latter clause: “And extended her hand” (Deuteronomy 25:11), this excludes an emissary of the court, let the baraita distinguish and teach within the baraita itself: In what case was this statementsaid? It is in a case where she can save her husband by another means. But if she cannot save him by other means, she is exempt.
The baraita itself makes a distinction. What is that distinction? What is the logic lying behind it and what implications would that have on the overall question of "can a person take justice into his own hands?"
The Talmud seems to offer a different distinction. What is that distinction?
So what then is the difficulty the Talmud is raising on the previous line?
That is also what the baraita is saying: In what case is this statement said? It is said in a case where she can save him by other means. But if she cannot save him by other means, her hand is rendered like an emissary of the court, and she is exempt.
What does this imply concerning taking justice into one's own hands?
ת"ש הרי שהיתה דרך הרבים עוברת בתוך שדהו נטלה ונתן להם מן הצד מה שנתן נתן ושלו לא הגיעו ואי אמרת עביד איניש דינא לנפשיה לנקוט פזרא וליתיב
Come and hear: In a case where a public thoroughfare would pass through one’s field, and he appropriated it and instead gave the public a route on the side of his property, the route that he has given, he has given [and they may use it]. But his property [that which he appropriated] has not reached him [is not his]. And if you say that a person may take justice into his own hands, let him take a stick [pazra] in his hand and sit by the side of the road [and prevent people from entering].
How does this source prove that one may not take justice into one's own hands? In order for this to work, what assumptions does the Talmud have to make.
The following is Rashi's commentary:
לנקוט פזרא וליתיב - יקח מקל וישב על דרך הראשון דהא דינא הוא דהא אמרת מה שנתן נתן אלמא חילוף מעליא הוי
Let him take a stick and sit by the original road. For he has acted justly, for the baraita said that the path he gave to the public belongs to them. Therefore, it is a legitimate exchange.
Rav Zevid said in the name of Rava: It is a decree, lest he give them a circuitous route.
What is the "decree" here? How does this effect the overall argument?
If it is only a "decree" then what does the baraita imply with regard to taking justice into one's own hands.
Rav Mesharshiyya said: This is a case where he actually gave them a circuitous route.
If the mishnah refers only to a case where he gave them a "circuitous" route then what would be the rule if he gave them a straight path? Would he be able to guard the path that he seized with a stick? Would one be allowed to take justice into one's own hands?
Rav Ashi said: Any route on the side isa circuitous route, as it is close for this person, and it is far for that person.
אי הכי אמאי שלו לא הגיעו? לימא להו שקולו דידכו והבו לי דידי
If so, why has his property [that which he seized] not reached him? Let him say to them: Take your original route and give me back my property.
This is really a question about the imbalance in the ruling in the baraita. If that which he gave the public belongs to them, then why does he not get to keep the property that he seized?
It is due to Rav Yehuda’s statement, as Rav Yehuda says: A path that the masses have taken possession of, it is prohibited to destroy it for them.
So why can't he take his property back?
ת"ש בעל הבית שהניח פאה מצד אחד ובאו עניים ונטלו מצד אחר זה וזה פאה. וא"א עביד איניש דינא לנפשיה אמאי זה וזה פאה לנקוט פזרא וליתיב
Come and hear: The owner of a field who left a corner for the poor on one side of the field, and poor people came and took from another side, this and that are considered pe’a.
And if you say that a person may take justice into his own hands, why are this and that both considered pe’a? Let him take a stick and sit [and chase away the poor from the side he did not giv.
So what does this mishnah seem to prove?
Rava said: What is meant by: This produce and that produce are both considered pe’a? With regard to exempting both portions of produce from tithes.
Background info: Peah, and any "gifts to the poor" are exempt from tithes.
Thus Rava says that the other side is not really "peah" in the sense that it belongs to the poor. Rather, it is "peah" only in the sense that it is exempt from tithes. But the owner can prevent the poor from taking from the side that he did not allocate.
As it is taught in a baraita: In the case of one who renounces ownership of his vineyard and arose early in the morning and harvested it, he is obligated to leave the individual fallen grapes left for the poor [peret], and to leave the incompletely formed clusters, and to leave the forgotten clusters and to leave pe’a. But he is exempt from tithing.
This source explains why the corner of the field that he set aside as peah is exempt from tithes. It is like ownerless property, which is also exempt from tithes, even if the owner reclaims it.
This is the end of the sugya. What do you think the final resolution is? Before you look ahead see if you can anticipate how rishonim will rule.
והלכה כרב נחמן א דקי"ל (כתובות דף יג.) הלכה כרב נחמן בדיני:
(יב) יֵשׁ לְאָדָם לַעֲשׂוֹת דִּין לְעַצְמוֹ אִם יֵשׁ בְּיָדוֹ כֹּחַ הוֹאִיל וְכַדָּת וְכַהֲלָכָה הוּא עוֹשֶׂה אֵינוֹ חַיָּב לִטְרֹחַ וְלָבוֹא לְבֵית דִּין אַף עַל פִּי שֶׁלֹּא הָיָה שָׁם הֶפְסֵד בִּנְכָסָיו אִלּוּ נִתְאַחֵר וּבָא לְבֵית דִּין. לְפִיכָךְ אִם קִבֵּל עָלָיו בַּעַל דִּינוֹ וֶהֱבִיאוֹ לְבֵית דִּין וְדָרְשׁוּ וּמָצְאוּ שֶׁעָשָׂה כַּהֲלָכָה וְדִין אֱמֶת דָּן לְעַצְמוֹ אֵין סוֹתְרִין אֶת דִּינוֹ:
(12) One may take the law into his own hands, if he has the power to do so. Since he acts according to the law, he is not obligated to take the trouble of coming to court, even if no material loss would result if he were to postpone action and come to court. Accordingly, if his legal opponent has protested and taken him to court, and after careful investigation it has been found that the defendant has acted lawfully on his own behalf, his own verdict is not nullified.
(א) יכול אדם לעשות דין לעצמו. אם רואה שלו ביד אחר שגזלו יכול לקחתו מידו ואם האחר עומד כנגדו יכול להכותו עד שיניחנו (אם לא יכול להציל בענין אחר) (טור) אפי' הוא דבר שאין בו הפסד אם ימתין עד שיעמידנו בדין והוא שיכול לברר ששלו הוא נוטל בדין מ"מ אין לו רשות למשכנו בחובו: הגה מטעם שיתבאר לקמן סי' צ"ז סעיף ו' וי"א דוקא בחובו ממש אבל אם חייב לו בלא הלואה או שא"צ למשכנו כי הוא כבר אצלו בפקדון או מצאו ביד אחר מותר לתפסו (ריב"ש סי' שצ''ו)
וי"א דלא אמרינן עביד אינש דינא לנפשיה רק בחפץ המבורר לו שהוא שלו כגון שגזלו או רוצה לגזלו או רוצה להזיקו יכול להציל שלו אבל אם כבר נתחייב לו מכח גזילה או ממקום אחר לא (מרדכי ונ"י פ' המניח)
ודוקא הוא בעצמו יכול למעבד דינא לנפשיה אבל אסור לעשות ע"י העכו"ם (ת"ה סי' ש"ד)
ומיהו אם עבר ועשה ע"י השרים אם לא היה יכול להציל שלא בענין אחר מה שעשה עשוי (ע' במהרי"ק שורש קס"א)
י"א דלא מיקרי עביד דינא לנפשיה אלא כשמזיק לחבירו כגון שמכהו ולכן לא יוכל לעשות אלא א"כ יוכל לברר שהוא שלו אבל תפיסה בעלמא שתפסו למשכון יכול לעשות בכל ענין ויורד אח"כ עמו לדין (מהרי"ק שורש סי' קס"א)
וכל זה מיירי ביחיד נגד יחיד אבל יחיד נגד רבים והוא מבני העיר עבדי דינא לנפשייהו אם יודעים שהדין עמהם אע"פ שאין יכולים לברר לפני ב"ד כי אינם יכולים להעיד שכולן נוגעין בדבר (תשו' הרשב"א כ"ז סי' צ"ה) ע' בסי' ז' סעיף י"ב וסי' ל"ז
ואם יש חלוקים וטענות ביניהם הקהל נקראים מוחזקים לגבי היחיד וצריך לתת להם משכון קודם שירדו עמו לדין (מרדכי פ' המוכר פירות וס"פ לא יחפור)
והא דנקראים מוחזקים לגבי יחיד דוקא בענייני מסים אבל לא בשאר דברים
ומ"מ צריך לתת משכון קודם שירדו לדין עמו (ת"ה סי' שמ"א)
וכל זה כשאין היחיד ת"ח אבל אם הוא ת"ח שתורתו אומנתו ויש לו דין בזה מחמת מסים א"צ לתת להם משכון וגם אינם נקראים מוחזקים נגדו (מוהר"ם מירזבורג)
ומותר לכוף בענייני מסים ע"י עכו"ם ולהפסידו אם אינם יכולים להוציא ממנו המס בענין אחר (מהרי"ק שורש י"ז וכ"ז):
(1) 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 lets go (if he cannot save it in another manner) even if it is something that does not involve an irretrievable loss should he [have to] wait until he takes legal proceedings against him. This is true if 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]. Gloss: On account of the reason which will be explained infra § 97, par. 6. Some say [that this applies] only to [seizing a pledge] for his actual debt [which was incurred through a loan], but if he owes him [aught] not on account of a loan or [in the case where] he discovered it in the possession of another person it is permissible.
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 one robbed him, or one desires to rob him, or one desires to cause him damage, he may save that which belongs to him, but 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]. And only he alone may take the law into his own hands in order to safeguard his interests, but he is forbidden to do [this] through a heathen Court.
However, if he violated [the law] and did [this] by means of the [government] officers, — provided he was not able to save [aught] in another manner, — [the law is that] what he has done is done.
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. Consequently, one may [so] act only when he can make certain that the [article in question] is his own, but 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.
This entire [foregoing ruling] deals with one individual in conflict with [another] individual, but [in the case of] an individual in conflict with an [entire] community, [the law is that if] he is one of the townsmen, 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 favour, 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.
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.
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.
This entire [foregoing ruling applies only] 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.
It is permissible to compel [an individual to comply] with [the laws pertaining to] matters of taxes by means of a heathen Court and to cause him to suffer a loss if they cannot collect from him the tax otherwise.