Halakha 2 Samuel 23:21: Shulchan Arukh, Choshen Mishpat & Sefer HaChinukh

[With respect to] cattle that injured man, — [the law is that] Judges who are not duly ordained in the Land of Israel²⁸, supra par. 1, n. 1 may not collect payment for his injury because it is a matter that is not of frequent occurrence.²⁹, B.K. 2b where it is stated that ‘man is cautious’ and Rashi explains that it is more difficult to injure a man than an animal since he possesses foresight. However, a man who caused damage to his fellow-man's cattle pays full damages everywhere.³⁰Whether in or outside the Land of Israel. As in the case of one who tears his fellow-man’s garment or breaks his vessels or mutilates his shoots. Likewise, cattle that caused damage by means of Tooth and Foot, since [with respect to the latter] it is regarded as Mua'd ab initio, this is considered a matter of frequent occurrence, and Judges who are not duly ordained in the Land of Israel²⁸, supra par. 1, n. 1 may order the payment thereof.³¹Yad, Sanhedrin V, 11-12. Derived from B.K. 84a-b in the case of the ox that chewed the hand of a child and Raba ruled, ‘Go forth and value the child as if it were a slave,’ and after a lengthy discussion in the Talmud (ibid.), Raba’s dictum, viz., that payment may be collected in Babylon where chattel was damaged by cattle, is explained to have reference to damage done by Tooth or Foot which is considered Mu‘ad ab initio. For Mu‘ad v. Glos. Thus also, [with respect to] one who stole or robbed³²This refers to the unlawful acquisition of chattels by violence. Cf. Lev. V, 23; II Sam. XXIII, 21. [an object], they may collect from him the principal only.³³Yad, Sanhedrin V, 1 , B.K. 84b where it is concluded that in matters of a penal nature we do not act as agents of the former authoritative Judges of Israel. Hence, only the principal may be collected. , also B.K. 115a where such cases were dealt with in Babylon and B.K. 96b in the case of the man who misappropriated a pair of oxen and B.K. 21a in the case of a certain person who built a villa on the ruins that belonged to orphans and when R. Naḥman advised the defendant to make a peaceful settlement with the orphans, he refused to do so, whereupon R. Naḥman confiscated the villa. Cf. also ibid. 37a and 4b. In the latter reference it is stated that theft (גניבה) and larceny (גזילה) involve civil liability. A difficulty, however, presents itself, viz., in the Mishna San. I, 1 and Gemara ibid. 3a we are told that cases of larceny are dealt with by Mumḥin Judges only, which contradicts the present ruling. Tosaf. (ibid. s.v. שלא; B.K. 84b s.v. אי נמי; Git. 88b s.v. אי הכי) explain that the Mishna ibid. refers to cases of larceny by means of injury inflicted (גזילות ע״י חבלות), in which case only Mumḥin Judges may adjudicate the matter. Hence, in such cases of larceny we nowadays cannot act as the agents of the former authoritative Judges, since this is a matter of infrequent occurrence, but cases of larceny where no bodily injury resulted we may act as the agents of the former. Thus also Kes. Mish. and B.Yos. N.Yos., however, removes the above difficulty as follows: Caro’s ruling that we may order the payment of the principal in cases of larceny refers only to matters of frequent occurrence, such as, one who denies a deposit (v. Gloss anon), but actual larceny is of infrequent occurrence. Hence, it is not adjudicated today (v. D.M. a.l.). ShaK advances a different opinion, viz., that in San. ibid. we deal with the adjudication of fines, e.g., the repayment of the double amount, the four and five-fold restitution, which require only Mumḥin Judges (v. supra par. 1 and notes), but the actual principal is recoverable even by laymen Judges (this is however, a stained interpretation, since the payment of the double etc., refers to cases of theft but not to larceny — Ba’er Heteb). ShaK also writes that the increment (שבח) of the misappropriated article prior to the owner’s resignation, is also recoverable today contra BaḤ. RaN and N offer an altogether different explanation in removing the above difficulty, viz., that as to San. ibid. that requires Mumḥin in cases of larceny, it has reference only to the period when such Judges were available, but if, as today, Mumḥin are no longer available, even laymen Judges may deal with such matters. Thus also Nethiboth, K.H. and Tummim. Otherwise, the earth will become full of violence — A.H. Gloss: And some say [that this applies] only to cases of larceny that are of frequent occurrence, e.g., [a guardian] who denies [having received] a deposit and the like, but actual larceny is not [considered] of frequent occurrence and they do not adjudicate [this] unless the robbed object is [still] intact, [in which case] they order [him] to return it.³⁴N.Yos. to B.K. 84b — G. , previous note.

To not rob: To not rob — meaning to say, to not take with strength and force and publicity that to which we do not have a right, as it is stated (Leviticus 19:13), “and you shall not rob.” And the explanation came about it (Bava Kamma 79b), that the expression, “robbery (gezelah)” relates to one that grabs something from the hand of his fellow or takes it out of his domain against his will by way of force and in the open, like the matter that is stated (II Samuel 23:21), “and he robbed the spear from the hand of the Egyptian.”