Reuven rode his brand-new bicycle to school one day, only to discover the lock sawed off and the bicycle gone. Stolen. Reuven investigates and finds out that Shimon had stolen it. He later sees his exact bicycle in Shimon’s possession.
Can Reuven use force to take it back?
The Starting Point – The Gemara in Bava Kamma
The Gemara in Bava Kamma (27b) says that when one suffers a loss, one may “judge his own judgment” to take what is rightfully his. This rule is called adam dan dina l’nafsheih. This rule is quoted by the Rashbam in Bava Basra (99b) as the consensus opinion.
What if someone did not suffer a loss but would still like to take matters into his own hands to avoid unnecessary delays?
This is a debate between Rav Yehuda and Rav Nachman. Rav Yehuda rules that we do not say adam dan dina l’nafshei when a loss wasn’t incurred. Rather, the person should go to beis din to have his judgment adjudicated.
Rav Nachman disagrees. He rules that we do say adam dan dina l’nafshei, even when the “victim” didn’t incur a loss.
We follow the opinion of Rav Nachman that one may judge his own dinim even when there’s no loss. This halacha is quoted in Shulchan Aruch (Choshen Mishpat 4:1).
The Mechanism of Adam Dan Dina L’Nafsheih
The Darchei David quotes the Rosh (Bava Kamma 1:20) that implies that Adam Dan Dina L’nafshei works on a Torah level. How? Through what mechanism?
The Darchei David explains that there’s a general rule that beis din has authority over monetary matters to remove an item from its current owner – this rule is known as hefker beis din hefker. The Gemara in Gittin (36b) presents two sources for this ability.
As beis din has the power to remove ownership, if someone knows that an item is rightfully his, he can act as an emissary of beis din to remove that item from the thief’s possession and then claim it as his own. (See Gittin 88b for the source allowing emissaries to act on behalf of a beis din.)
Are There Any Limitations?
So you’re telling me Reuven is free to grab his bike back?
Not so fast.
There are limitations to the rule of adam dan dina l’nafsheih, including the below:
The Exception of the Rosh – You Need Proof
The Rosh (Bava Kamma 3:3) and the Nimmukei Yosef (Bava Kamma 27b) rule that one may only judge dina d’nafsheih if it’s something he can prove in court. The Mordechai argues that this must be true as if not, everyone will grab anything they want and claim it is rightfully theirs. The Shulchan Aruch rules like this opinion.
The Collateral Exception
The Shulchan Aruch rules that one cannot use adam dan dina l’nafshei to take collateral from someone – you have to take back the item that is actually yours. The Be’er Hagolah notes that violating this and taking a collateral would actually be a Torah violation.
The Exception of Ben Bag Bag – If We Hold of It….
The Gemara in Bava Kamma (27b) quotes the opinion of Ben Bag Bag that one should not enter another person’s house to take what is rightfully his, as he appears like a thief. Rather, he should take the item forcibly, in public. This opinion of Ben Bag Bag is quoted by the Smak (who rules that it’s Rabbinically forbidden) and the Smag (who rules that it’s forbidden on a Torah level).
However, the Minchas Chinuch notes that the Rambam and Shulchan Aruch do not quote Ben Bag Bag’s opinion. They learn that it was a minority opinion that the Rabanan did not agree with. Hence, they do not quote it as halacha.
More Exceptions
The Rema (4:1) lists other exceptions to the rule of adam dan dina l’nafsheih, as well as exceptions to the exceptions listed above.
Nuance is definitely required here, especially in light of dina d’malchusa dina. Bottom line, if Reuven would like his bicycle back without the need for beis din, he should consult with his local rabbinic authority on the best way to do so.
Ben Bag Bag’s Opinion – The Real Reason Behind the Debate
As mentioned, Ben Bag Bag holds that a robbery victim should not enter a thief’s house to take back what is rightfully his while the Rabanan disagree.
What is the rationale behind this debate?
R’ Moshe Feinstein (Igros Moshe Choshen Mishpat 3) gives the following insight:
There’s a prohibition against striking another Jew derived from the verse “lo yosif – do not add (to the number of lashes received by someone deserving of lashes)”. The Gemara in Kesubos (32a – as explained by R’ Moshe) notes that this would have even applied to a beis din meting out a punishment, were it not for a specific allowance made for beis din.
Therefore, the Rabanan hold it’s better for someone to try to take back what is his privately rather than confronting the thief publicly and attempting force, as confronting the thief with force may lead to violating the prohibition of lo yosif.Ben Bag Bag argues that the prohibition of lo yosif would not apply here, as the intent of the victim is not to quarrel with someone else but merely to force the thief to give up the stolen item. Therefore, it’s better to attempt to forcibly take back the item than sneaking into his house and looking like a thief.