Your neighbor has borrowed your ladder and kept it for a long time. Your frequent pleas for its return have been met with silence. You come home one night after dark and notice that your neighbor has left their garage door open and, lo and behold, leaning up against the wall is your ladder. Should you grab it?
At the end of yesterday’s daf, we were introduced to a beraita which contains some rabbinic advice for a person in this situation:
Yohanan ben Bag Bag says: Do not enter another person’s courtyard secretly to take what is rightfully yours without permission, lest you appear to them to be a thief. Rather, break their teeth, and say to them: “I am taking what is mine.”
There is no question that you have a right to reclaim your ladder. But Ben Bag Bag’s initial warning makes a lot of sense: Sneaking into your neighbor’s garage to reclaim your ladder is indeed thief-like behavior and could therefore be dangerous. In light of this concern, where he goes next is surprising. Rather than advising you to knock on the door and ask nicely one more time, or call the authorities, or have your attorney draft a stern letter, he suggests ringing the front doorbell, punching your neighbor in the mouth, and declaring: “I’m taking back my ladder.” Don’t sneak, he argues, take a more direct and forceful approach instead.
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Ben Bag Bag’s teaching finds its way into the middle of a dispute between two Babylonian amoraim (rabbis of the Gemara) Rav Nahman and Rav Yehuda. The former declares:
A person may take justice into his own hands. Since he is acting lawfully, he need not trouble himself to go before the judge to enforce the law.
Rav Nahman says it’s OK to steal back the ladder. Rav Yehuda, on the other hand, holds that, except in cases where a loss is imminent and preventable, a person should rely only on the civil authorities for enforcement.
Rav Yehuda (an amora) seems to contradict Yohanan ben Bag Bag (a tanna). As a general rule, however, amoraim are not supposed to overrule the tannaim, who are earlier. So Rav Yehuda explains himself: Ben Bag Bag’s opinion, he claims, is an individual one and he (Rav Yehuda) sides with the rest of rabbis who disagree with him on this matter.
Rabbi Yannai has a different resolution to the conflict between Rav Yehuda and Yohanan ben Bag Bag, suggesting that they are actually on the same side of this dispute. When the latter recommends breaking a neighbor’s teeth, posits Rav Yehuda, he does not mean literally. In fact, the phrase “break his teeth” means “break his teeth with the law.” That is, sue. Therefore, Rav Yehuda’s opinion is supported by Yohanan ben Bag Bag and Rav Nahman’s is not.
If this reading seems like a stretch to you, it does to the Gemara as well, which finds the following fault with Rabbi Yannai’s line of reasoning: If Yohanan ben Bag Bag is recommending legal action, wouldn’t the beraita have ended by saying “they can take what is theirs,” a judgment in the voice of the court (third person), rather than “I am taking what is mine” (first person), a declaration in the voice of the individual who was wronged?
On matters of property law, we follow Rav Nahman, whose position is further strengthened in this case by its alignment with Yohanan ben Bag Bag. And so, it’s no surprise that the Shulchan Aruch (Choshen Mishpat 4:1) codifies that position into law:
“A person may take the law into their own hands in order to safeguard their interests. If they see that which belongs to them in the hand of another person who stole it, they may take it from the other’s hand, and if the latter makes a stand against them, they may strike him until he releases it.”
Yosef Caro, the author of the Shulchan Aruch, was a Sephardi legal authority. At the same time that he was writing his code of law, Rabbi Moshe Isserles, an Ashkenazi authority, was also writing an all-inclusive law code. When Caro’s work came out first, Isserles was impressed. He abandoned his work and instead added glosses to the Shulchan Aruch where Ashkenazi tradition differed from Sephardi tradition.
In this case, Isserles added the following to the passage cited above:
“… if he cannot save [the stolen article] otherwise.” In other words, one may resort to violence to reclaim one’s property, but only as a last resort.
With this small phrase, Isserles revives Rav Yehuda’s opinion and reverses the law. In doing so, he removes Yohanan ben Bag Bag’s advice from the list of standard operating procedures and limits its applicability to the last resort. So, it’s probably a good thing that you paused to read today’s Daily Dose of Talmud before ringing your neighbor’s doorbell and delivering a left hook to the jaw. You’ve got a number of better options for reclaiming your ladder — give those a try first.
Read all of Bava Kamma 28 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 30th, 2023. If you are interested in receiving the newsletter, sign up here.
