Moszér / önbíráskodás

A person may take the law into his own hands in order to safeguard his interests. If he sees aught 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 releases it, — if he cannot save [the stolen article] otherwise — even if it is aught that does not involve an irretrievable loss should he [have to] wait until he takes legal proceedings against him, provided 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 where he [the creditor] does not have to take a pledge, — for it [the pledge] is already in his possession as a deposit — or [in the case where] he discovered it in the possession of another person — he is permitted to seize it. And some saythat 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, [in which case] 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] his act cannot be undone.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., § 7, par. 12 and § 37. 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.

Where there is an imminent loss that will be suffered if the injured party does not take action, everyone agrees that a person may take justice into his own hands. They disagree only when there is no imminent loss that will be suffered. 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 to have him enforce the law. Rav Naḥman says that a person may take justice into his own hands. Since he is acting lawfully, as he is clearly in the right, he need not trouble himself to go before the judge to have him enforce the law.

A person may execute judgment himself if he has the power to do so. If he acts according to the dictates of our faith and according to law, he is not obligated to take the trouble to come to the court. This applies even if he would not suffer any financial loss if he would delay and bring the matter to the court.
Consequently, should the other litigant lodge a complaint against him and bring him to court, if the court investigates and discovers that he acted according to law, i.e., the decision which he arrived at was true, we do not abrogate his decision.

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§ The Gemara returns to the matter of one who showed another’s field to thugs. Rav Huna bar Yehuda happened to come to the town of Bei Abiyonei and came before Rava, who said to him: Did any legal incident come to you for judgment recently? Rav Huna bar Yehuda said to him: There was a case of a Jew whom gentiles coerced and, as a result he showed them property belonging to another, which the gentiles later seized. He came to me for judgment, and I deemed him liable to compensate the owner for the loss.

Nonetheless, no contemporary halachic authority regards the rules of moser as entirely null and void in Western democracies, even in those countries, such as the United States, that have often shown incredible kindness to Jews. Even Rav Schachter (in a brief essay titled “Regarding Mesirah”, 2007, available at www.torahweb.org) voices concern that a Jew would unduly suffer from other inmates in certain prisons (Rav Schachter distinguishes between federal and state prisons) or that lingering anti-Semitic attitudes would cause an offender to receive a punishment beyond what he deserves. Rav Schachter writes that if such concerns are indeed relevant, then turning in such an offender would be considered mesirah.

As noted earlier, although litigants may not voluntarily accept the jurisdiction of non-Jewish courts, nor may they agree that their disputes be adjudicated by a Bet Din on the basis of civil law, there are areas in which the particular provisions of Jewish law may be incorporated either explicitly or impliedly in a contract and made binding upon the parties. For example, Jewish law provides that rent is not due until the conclusion of the rental period. That provision is subject to variance by explicit agreement of the parties. In a locale in which it is common practice to pay rent in advance, the presumption is that the parties intend to be governed by the accepted practice. Unless otherwise stipulated, the minhag ha-soḥarim, or common trade practice, becomes an implied condition of the contract. Any dispute with regard to the existence or nature of an accepted trade practice must, of course, be adjudicated by a Bet Din. At times, the practice arises because of provisions of the legal system that are binding upon the society at large. Such laws, in effect, give birth to an accepted practice which, in turn, becomes an implied condition of contracts executed in jurisdictions in which those laws are binding.

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