Halakhah sa Deuteronomio 22:8: Shulchan Arukh, Choshen Mishpat, Mishneh Torah, The Chosen Temple, Mishneh Torah, Rest & Mishneh Torah, Murderer and the Preservation

Although [the law is] that Judges that are not duly ordained in the Land of Israel²⁸, supra par. 1, n. 1 cannot order the payment of fines,⁴³ supra par. 1 and notes [nevertheless], they may place him⁴⁴The injurer. under the ban until he appeases his litigant [with money],⁴⁵Yad, Sanhedrin V, 17 and Alfasi to B.K. VIII on the authority of the Yeshiboth presided over by the Geonim. Thus also Tur. The injurer is placed under the ban only in the case where he or his chattel caused injury, because the injured person does not receive more than the damage incurred, and should we not adopt this stringency one would feel that he is free to injure his fellow-man and be entirely exempt. This, however, does not have reference to cases which involve the payment of the double amount or the four or five-fold restitution — M.E., ShaK, RaShaL. ‘Ir Shushan writes that when the defendant is placed under the ban, which is lifted only after he appeases the plaintiff by compensating the latter for the damage, such compensation must include not only an approximate amount of the actual damages suffered but also of the payment of the double and the four and five-fold restitution. M.E. rejects this ruling because as stated above the injurer is placed under the ban only in the case where there is no additional payment of fines. and as soon as he⁴⁴The injurer. gives him an amount which appears reasonable [to the injurer to be given] to him, they release him⁴⁴The injurer. [from the ban],⁴⁶This does not refer to an exact amount corresponding to the damage but rather to an approximate amount. Thus also Tur on the authority of R. Sherira Gaon, Asheri and Alfasi. This explains the words, ‘they release him (from the ban),’ i.e., although the injured person demands full payment. This also follows from the Gloss of Isserles, ‘whether his litigant was appeased etc.’ The following words, however, ‘if the injured person seized an amount etc.,’ refers to seizure of the full amount. The latter statement has reference to a seizure that also compensates the injured person with respect to the payment of the double amount or the four or five-fold restitution. Biblically, one who admits an act with which a fine is connected, is exempt from the fine (מודה בקנס פטור v. Ket. 43a). But the admission must be made in the presence of a Court duly ordained (v. supra par. 1, n. 1). Hence, nowadays the defendant’s admission would not exempt him from the additional fine also seized by the claimant, save that the following distinction should be borne in mind, viz., that if the defendant admitted that witnesses were present during the time that the damage was done, he is still held responsible and his admission does not exempt him, but if no witnesses were present at that time, the claimant’s seizure of the additional amount corresponding to the fine is not valid — Nethiboth. If the injurer died, we do not place his heir under the ban, for the main purpose of the Geonic enactment (v. supra n. 45) was that violent men should not be on the increase. Hence, the injurer only is placed under a ban but not his heir in the case of the former’s death — Nethiboth and Tummim. whether his litigant was appeased [thereby] or whether he was not appeased. And likewise, if the injured person seized an amount, [viz.,] whatever is proper for him to take, they do not reclaim [it] from him.⁴⁷Conclusion reached in B.K. 15b; Ket. 41b. This ruling applies even if the plaintiff seized an amount corresponding to the fine as well, for the law is that had we been permitted to adjudicate this matter today, the defendant would have paid an amount corresponding to the actual damage plus the fine. Consequently, the plaintiff’s seizure is considered valid. So also Asheri and Tur (infra § 349 end). , also Isserles infra § 348, 4 Gloss. Caro and Isserles state the law here without making a distinction as to whether the seizure was made at the time the damage was suffered or subsequent to that, or whether the chattel that caused the damage was seized by the injured person or other possessions of the injurer. R. Tam in Tosaf. to B.K. and Ket. ibid. s.v. ואי תפס holds that the plaintiff seized the animal that caused the damage, i.e., before it reached the owner’s hand. Thus Hag. Maim. to Yad ibid. This is substantiated by Ket. 84b according to which R. Tarfon maintains that the seizure of a man’s produce by a creditor is valid after the latter’s death, provided, — as Rab and Samuel explain — it lies in a heap in a public domain, i.e., in a place where Meshikah is possible. In other words, before it passes into the hands of the heirs. , Hag. Derisha u-Perisha. But other chattels cannot be seized by him. For if so, the plaintiff will continue to seize thereafter other items too, and we would not be able to dispossess him thereof, since this comes under the category of ‘fines’ which are not adjudicated today. Asheri on the other hand, maintains, that even other chattels, not necessarily the animal that caused the damage, may be seized. Should he seize more than his damage we may dispossess him of the surplus which does not come under the category of ‘fines’ since the adjudication will be for the surplus seizure which is permissible to be dealt with by the Judges. , also RIDBaZ to Yad ibid. who writes that were R. Tam’s explanation correct, the text should have stated ואי תפסיה i.e., ‘he seized it’ and would be referring to the tort-feasant animal or the like (v. B.K. and Ket. ibid.). Furthermore, the law is that the nuisance, in this case the animal, must be abated, as R. Nathan said, ‘Whence is it derived that a man should not breed a bad dog in his house? — From the text, That thou bring not blood upon thy house (Deut. XXII, 8).’ Hence, we see that Caro and Isserles in stating the law here adopt the opinion of Asheri. Mord. writes that if the damage was caused through ‘Horn’ we follow R. Tam, and in other cases of damage (e.g., cattle that caused damage to man even through ‘Tooth’ and ‘Foot’ which are of infrequent occurrence. Thus K.H.) we adopt the opinion of Asheri. In the case of an ‘innocuous animal’ (Tam. , Glos.) that caused damage, some say that the seizure is valid only if the plaintiff seized the animal proper, for the owner of such an animal pays only half-damages and the payment is made out of the body of the tort-feasant animal (v. Mishna B.K. 34a) — Nethiboth. The seizure spoken of here refers to one made in accordance with Jewish Law but not if carried out through non-Jewish Law (RaShaL) — ShaK. R.A.Eger, however, writes that only ‘in the first instance’ (לכתחילה) is it forbidden to seize through a non-Jew, but if already done (דיעבד) the seizure is considered valid (thus implied in RaShaL, the source of this ruling. Cf. infra § 4 Gloss) — P.Tesh. If a guardian advances the plea of theft in the case of an article which was entrusted with him for safekeeping and took the ‘guardians’ oath’ (שבועת השומרים) after which it was discovered that he himself had stolen the deposited article, — the law is that if the plaintiff seized an amount including the payment of the double amount or the four or five-fold restitution, since nowadays one is not required to pay the latter, the reason being that the oath must be taken before a duly ordained Court comprised of Mumḥin, — the seizure is not valid — ShaK, Nethiboth. Gloss: And if the injured person should say,⁴⁸To the Judges. 'Assess for me my damage so that I should know up to how much I should seize,' he is not obeyed,⁴⁹For otherwise it would mean that we adjudicate penal cases. But whatever he is instructed to return to the injurer does not come under the category of penal matters, since he had already seized it himself. RaShaL rules in accord with Alfasi that with respect to anything which is of a civil and not of a penal nature save that it is of infrequent occurrence, we do obey him and assess the damage for him — ShaK. save that if he had already seized, they assess for him [his damage] and instruct him, 'So much you may keep [as your own] and so much you must return [to the injurer].'⁵⁰Tur on the authority of Asheri to B.K. VIII and to B.K. I end — G. This is contra MaHaRIW who maintains that all that was seized by the claimant must be returned. Isserles, as can be seen, adopts the opinion of Asheri that only the surplus should be restored. Asheri and Tur also rule that if the plaintiff does not produce witnesses that he is entitled to the amount seized, he must return whatever he seized. Isserles, however, writes that this applies only if he seized in the presence of witnesses, but if the seizure was not in the presence of witnesses, and the defendant denies having incurred any damage, the claimant is believed on the principle of Miggo (a legal rule according to which a deponent’s statement is accepted as true on the ground that if he had intended to tell a lie, he might have invented one more advantageous to his case, viz., he might have said, ‘I did not seize at all’). , infra § 87, 30. This principle applies not only to claims of civil liability but also to those of a penal nature (Mord. to B.K. III; Tur infra § 399; Isserles and ‘Ir Shushan) — M.E. R. Mordekai ha-Lewi (cited by Tur ibid.) states that the principle of Miggo is not valid in penal cases. Thus also N.Yos. to B.K. III end; Mag. Mish. to Yad, Nizke Mamon IX end. In the case where the injurer died, the seizure of the orphans’ money or chattels is not valid in penal cases, for legally movable property of orhpans does not become mortgaged to a creditor save that the Geonim decreed that they become mortgaged. But this Geonic decree certainly does not apply to penal cases — Nethiboth, A.H. If the injured person seized an amount which also corresponds to the fine, after which the injurer reseized the fine, the Judges nowadays cannot order this fine to be returned to the injured person, for if so, it would mean that they adjudicate fines — Nethiboth. R.A.Eger, however, states that the amount corresponding to the fine may be restored to the injured person, for once the latter seized this amount it became his personal property and no longer falls under the category of fines — P.Tesh. And all this⁵¹That nowadays Judges have no authority to adjudicate fines. [applies] only to fines stated [in Biblical Law], but [as to] fines which the Sages come [from time to time] to impose of their own accord with respect to [one who does not observe] their ordinance[s],⁵²e., ordinances decreed by the Sages for the sake of safe-guarding the Torah laws — A.H. they may collect everywhere³⁰Whether 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. as will be explained in § 2.⁵³Mord. to Git. IV end — G. Mord. also writes that although we do not order the payment of fines nowadays, we should however, adjudicate these matters in accord with the ‘seven representatives of the town’ (שבעה טובי העיר). , Meg. 27a. In the Decisions of Isserlein it is recorded that one who does not heed the decisions of the Court may be penalized — M.E.

...The Sanctuary that the descendants of the exiles built was 100 cubits by 100 cubits

One may rebuild a garden wall that fell in an amateur way or make it into a fence with reeds or papyrus or that which is similar to them. And likewise if he made a parapet for the roof, he must build it in an amateur way. But he may build the wall of a courtyard that fell in his customary way. And if it was leaning, he may demolish it because of the danger; and [then] build it according to his usual way.