Siman 4

Even though an individual is disqualified from judging, and all the more so the litigant himself, nevertheless, there are times when a person may take the law into his own hands. For example, if he sees his object in the hand of another who robbed him or stole it from him, or who now desires to rob him, or who does not wish to return his deposit to him and the deposit is extant, or who desires to cause him some damage to his property and all the more so to his person—he does not need to go to beit din. Rather, he himself may seize it from his hand. And it is not only necessary to say this regarding a matter where he will suffer a loss if he waits until he goes to beit din, such as movable property which the robber might hide and the like, for then it is permitted for him even to strike him if it is impossible for him to rescue it in another manner; but even in a matter where he will not suffer a loss if he waits until he goes to judgment, such as land and the like, where it is then forbidden to strike him [Netivot HaMishpat], nevertheless, he may rescue it from his hand without the permission of beit din. And this is specifically when he is able to clarify that the thing is his; but if it is not in his power to clarify, it is forbidden for him to take it without the permission of beit din, even though he says that he knows it is his. Since it is impossible for him to clarify this, let him go to beit din and let the law pierce the mountain between them [see Moed Katan 17a, and delve into this].

And all this is specifically regarding the clarified object that is his, as has been explained. However, if he is already owed money from another source due to some robbery, theft, deposit, debt, wages, or the like, he has no permission to take the law into his own hands and seize money or objects from him in exchange for what is due to him; rather, he must sue him in beit din. Regarding a debt, there is an additional prohibition when he takes it himself, as will be explained in siman 97. If the claimant fears that by the time he sues him in beit din the defendant will leave this place and he will not find him, or that he will hide all that he has and he will not find anything from which to collect when he wins the judgment, or perhaps he will not obey the law if he is not in possession, then he is permitted to seize from him as a mashkon until he stands with him in judgment. So too, in a place where there is no need to seize from his hand—for example, if he found the money, vessels, or merchandise of this defendant in the hand of others, or if he himself holds some object of the defendant as a deposit—he may withhold it in any case until he stands with him in judgment, even if there is no concern that he will flee. The Zohar is stringent regarding a deposit, that he should not withhold it himself, and a person of spirit should be concerned for this; therefore, he should go immediately to beit din and sue him in judgment, and if he does not obey the law, the beit din will command that he withhold it or that others withhold it for him. The primary law of attachment will be explained in siman 73 with the help of Heaven.

And all this is specifically regarding an individual against an individual, but when the many sue an individual from their city regarding matters of the King's tax, if they know that the law is with them, they may take the law into their own hands. And even though they cannot clarify before a beit din that justice is with them because no man can testify since they are all interested parties, nevertheless, since they themselves know that justice is with them, they may take the law into their own hands. And if there are disputes between them and they must descend to litigation, the many are called the possessors, and the individual must give them a mashkon before they descend to litigation. And they say to the individual: "Clarify your proofs," for the burden of proof is upon the one who seeks to extract from his fellow, and the many are called the possessors. And the choice is in the hands of the many: either some of them shall swear and be exempt, or they cast the oath upon the individual. And they can also say "kim li" in a place where there is a dispute among the poskim [Sma].

And this is specifically against an individual from their city and regarding tax matters, and the reason is because the tax is given to the government, and the government is always called "the possessor" and "acts to execute judgment for itself," and therefore the community that comes from its power also has this law. However, against an individual from another city, or even against an individual from their city not regarding tax matters, they are not called "possessors" and do not "act to execute judgment for themselves." But a security must be given, because since they are many, they will be lazy in its claim, as each one will rely on his fellow, for "a pot of partners is neither hot nor cold," and therefore a security must be given beforehand. And against a Torah scholar, they are not called "possessors" in any case, even in tax matters. And the community has the power to compel in tax matters even through secular courts if it is impossible in another manner. But the individual, in a place where he is permitted to execute judgment for himself as written in section 1, is forbidden to do so through this, and if he did so, some say that if it was not possible for him to do so in another manner, what he did is done. And regarding seizing in a case of legal doubt, it is not effective through this for him to be called "the possessor" [Rabbi Akiva Eiger].

Now, there are times when two people wish to go to litigation, and one says to his fellow, "I will not go to litigation with you until we deposit securities for the fulfillment of the ruling as it shall emerge from the beit din," and the second does not want this, saying, "Let us go to litigation and we will presumably fulfill the judgment." It appears to me that the law is with the first one. Since now we have no reinforcement for the fulfillment of the judgment, and for one who does not want to fulfill it there is no one who can protest against him, the second can say, "I do not believe you, and you also should not believe me; let us deposit it in the hand of a third party, and the third party will fulfill it according to the judgment." And so we are accustomed to instruct. And a proof for this is from what was written in the previous section, that the individual must give a pledge beforehand because the public will be lazy in his claim; all the more so now, that if he does not want to fulfill the law it will be of no use, certainly the second can say so. Nevertheless, even when both deposited, and one deposited cash or its equivalent, the second is not called "the possessor" because of this, and also regarding seizing in a case of doubt, it is of no benefit through this, as was written in the previous section.