Give Me Back My Bicycle

The Use of Force to Recapture Chattel According to American Law and Jewish Law

 

  1. Introduction

Reuben buys an expensive new bicycle and rides it all over town. Simon eyes the bicycle enviously and makes plans to steal it. When Reuben locks the bicycle to a tree outside the ice cream store, Simon jumps at the opportunity. Using his bolt cutters, Simon cuts the lock and mounts the bicycle, leaving the bolt cutters on the ground. At that moment, Reuben comes out of the store and sees Simon sitting on his bicycle. Hoping to prevent Simon, whom he recognizes from the neighborhood, from riding off with his new bicycle, Reuben picks up the bolt cutters and hurls it at Simon. The bolt cutters hit Simon directly on the head, leaving him unconscious on the ground. Reuben retrieves his bicycle and rides off, noting the need to get a better lock for his bicycle. Simon is taken to the hospital and suffers numerous injuries from the hit.

Self-help in the law is often defined as “legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong.”1 The above anecdote discusses one potential self-help scenario: Reuben retaking his stolen item on public property by use of force, absent any physical danger to Reuben. Yet, this “legally recognized alternative or substitute for a judicial remedy . . . may become unlawful when a self-helper oversteps the limits of the privilege.”2 It is thus incumbent on all legal systems to “identify potential self-help situations and the legal boundaries of appropriate self-help responses.”3

Further contemplation of the Reuben and Simon anecdote helps underscore the need for these legal boundaries. Is Reuben criminally liable for throwing the bolt cutters at Simon? What if he had killed Simon? Must Reuben pay Simon’s medical bills? Can Reuben wait until the next day to attack Simon and retrieve his bicycle? Assuming that Simon escaped with the bicycle, could Reuben legally keep the bolt cutters in lieu of the bicycle? These are only some of the many self-help questions with which every developed legal system must grapple.

Thankfully, “self-help is by no means a nascent legal phenomenon.”4 Rather, “in various forms, self-help has been a familiar remedy in society since the initial stages of civilization.”5 In fact, almost “every legal system addresses itself to the issue of self-help.”6 The American legal system and the Jewish legal system, or “Halacha,” are no exceptions. Both of these systems have extensive laws regarding the self-help privilege, albeit with important differences. Studying these discrepancies, especially ones related to the limitations and justifications of the privilege, helps better our understanding of the complex legal theory behind this doctrine.

This Article discusses the American and Jewish legal systems’ diverse views on the specific issue of retaking an item on public property by use of force, in the absence of physical danger to the self-helper. Part II of this Article details the history of American law in relation to the self-help privilege and gives the current state of the law in many jurisdictions. It focuses primarily on the American legal system’s limitations and justifications of this privilege. Alternatively, part III of this Article examines the Jewish law’s perspective on the self-help privilege. Examining the Talmud and its classical commentators, the section focuses on the Jewish system’s limitations and justifications of this privilege. Part IV of this Article analyzes the discrepancies and identifies two observations.

 

  1. American Law
  2. Self-Help Privilege

“Self-reliance, perseverance, ingenuity, and the noble notion of rugged individualism have been pervasive themes in the American lifestyle since the precolonial era.”7 As such, an organized judiciary exists “despite its apparent contravention of American wherewithal and human nature, partly because the courts and laws provide an adequate and efficient alternative for redressing wrongs.”8 Yet, “the American legal system also owes its durability to its effective incorporation of a significant number of the common individual methods of dealing with others that predate the system’s refinement to its current dignity.”9 “American courts were sophisticated enough to recognize that self-help was an efficient alternative to traditional judicial remedies, and it was later codified into various diverse areas of the law.”10 By adopting these lawful self-help privileges, the founders of America effectively alleviated “the long-standing tension between the imperatives of an established system of laws and the individual needs and desires to avoid and remedy injury as effectively and efficiently as possible.”11

One of these privileges “recognized” in American law is “the privilege of an owner dispossessed of his chattel to recapture it by force against the person.”12 While reception of chattels is merely a small part of self-defense and defense of property law, many cases over the last two hundred years have developed this privilege quite extensively.13 Since peaceful legal recourse is usually available through the judicial system, numerous conditions must be present for a self-helper to use force to recapture chattel, thereby severely limiting the use of self-help force.14 “A self-helping . . . owner who cannot meet these prerequisites runs a risk of liability because the privilege to recover . . . will not have attached.”15

 

  1. Limitations on Recapture of Chattel
  2. Wrongful Taking

“Courts view tortious dispossession . . . as a threshold requirement for recovering property.”16 Tortious dispossession occurs “without a claim of right” or taking “with a claim of right, but by force or . . . fraud.”17 Thus, an owner may use force to recover a stolen item, as the thief took it “without a claim of right.”18 Accordingly, force could be used against a third party who acquires the stolen goods, so long as the third party knows of the illegal origin of the goods.19

The parameters of recapture of an item taken from the self-helper “with a claim of right, but by force or . . . fraud” are less defined.20 Although “actual violence” is unnecessary, there must be a “fraudulent misrepresentation made by the other” that “induces” the self-helper to give up the item.21 Thus, courts were initially hesitant to allow a seller to forcefully retake goods from a buyer after a default, as this did not constitute “fraudulent misrepresentation.”22 Recent cases, on the other hand, have indicated that such force would be privileged.23 It is certainly clear though, that a creditor may never use force to collect collateral from a debtor.24

 

  1. Entitlement

Force is only privileged when the self-helper “is entitled as against the other to the immediate possession of the chattel.”25 “Since the actor must be entitled to immediate possession as against the other, an erroneous belief that he is so entitled, due to a mistake of law or fact, however reasonable, does not create the privilege.”26

 

  1. Timeliness

“Courts also require that the attempted recapture occur immediately after dispossession or upon ‘fresh pursuit’ of the wrongdoer.”27 While the meaning of “fresh pursuit” has never been defined by the courts, it is clear “that it is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel thereafter.”28 An “undue lapse of time during which it may be said that the pursuit has come to a halt” would seemingly be outside the scope of the privilege.29 Notably, some leeway has been given.30

Additionally, “not only must the retaking be promptly made after discovery by the actor of his dispossession, but his discovery must be timely.”31 Therefore, “if by reasonable diligence he could have known of it at an earlier time,” force is not privileged, even when “he acts promptly after he knows of his dispossession.”32

 

  1. Demand/Warning

“A resort to any force at all will not be justified until a demand has been made for the return” of the item.33 The self-helper must “first request the other to give up possession” of the item.34 An exception to this condition exists where the self-helper “correctly or reasonably believes a request to be useless, dangerous to himself or a third person, or likely to defeat the effective exercise of the privilege.”35

 

  1. Proper Purpose

Force is only privileged if “used for the purpose of regaining possession of the chattel.”36 Using force to simply prevent an escape after the goods are already retrieved is not protected.37 In other words, this self-help privilege only exists where “the emergency justifies the risk of a breach of the peace.”38

 

  1. Amount of Force

The force used must be “reasonable under the circumstances.”39 If the item can be retrieved “without the use of force against the other,” such force “is unnecessary and therefore unprivileged.”40 Consequently, “if the chattel is upon the other’s table, and the actor, even though the other is present, can retake it without touching the other, he must do so unless the other interposes to prevent the taking.”41 However, “if the dispossessor forcibly resists, the person attempting recapture can exercise the privilege to meet and repel such force.”42

“Force which causes a breach of the peace is unreasonable.”43 Deadly force is never allowed, because it is never reasonable to protect a property interest.44 A noteworthy exception is if a life-saving “bottle of medicine” is stolen, “deadly force to regain possession of the medicine” may be used.45 Also, if the dispossessor forcibly resists, the self-helper may apply “any force required to defend his own person.”46

 

  1. Justifications

“The chief historical justification for the privilege of recapture was the significance that the common law placed on physical possession as a determinate of ownership.”47 Since “the rightful owner needed a swift and effective cure for wrongful possession lest he lose his claim to the property because of a lack of adequate proof of ownership,” using the court system was not an option.48 “Courts rarely would compel the return of specific property, instead opting to award damages.”49 Further, “the judicial process was slow and the rightful owner suffered deprivation of his property for the length of the proceedings.”50

Yet, in modern times “courts no longer consider physical possession the principal determinant of ownership, and they increasingly are more willing to use the remedy of specific performance.”51 Unfortunately, “the judicial remedy still may be slow . . . but delay alone is not a sufficient rationale for self-help because it would justify self-help in practically all cases.”52 Currently, “the present judicial remedy . . . does not evince the same degree of inadequacy” as previous remedies, leaving scholars searching for new justifications which may necessitate the self-help privilege. 53

Perhaps privileged recapture continues to be recognized because “such a privilege comports with fundamental notions of fairness and ‘the frailties of human nature.’”54 Many people find it natural to try and regain property wrongfully taken from them, and “judicial imposition of liability on the wronged person for the results of such natural behavior arguably is inequitable.”55

Resorting to “the frailties of human nature” to justify the use of force when recapturing an item is logical in light of the many limitations placed on this privilege. Specifically, recognizing “the natural impulse to pursue the taker of one’s property” helps explain the “fresh pursuit” limitation, “since a delay obviously would allow the ire of the wronged party to subside, thereby negating the natural impulse justification.”56 Further, it is quite understandable that deadly force cannot be used to retake an item, as “the frailties of human nature” would surely never justify murder. Finally, it makes sense that only a “wrongful taking” invokes this privilege, as only such tortious dispossession stirs the ire of a self-helper.

 

III. Jewish Law

  1. Talmudic Passage

To understand Jewish law’s view on retaking an item through the use of force,57 a lengthy passage of the Talmud must be dissected.58 In Tractate Bava Kama,59 the Talmud tells a story:

Rabbi Chisda dispatched [the following query] to Rabbi Nachman: . . . what is the [penalty] . . . for wounding with the blade of the hoe or with the handle of the hoe? . . . [Rabbi Chisda explains the background of the query]: There was a well belonging to two persons. It was used by them on alternate days. One of them, however, came and used it on a day not his. The other party said to him: ‘This day is mine!’ But as the latter paid no heed to that, he took a blade of a hoe and struck him with it. Rabbi Nachman thereupon replied: No harm if he would have struck him a hundred times with the blade of the hoe. For even according to the view that a man may not take the law in his own hands for the protection of his interests, in a case where an irreparable loss is pending he is certainly entitled to do so.

It has indeed been stated: Rabbi Yehudah said: No man may take the law into his own hands for the protection of his interests, whereas Rabbi Nachman said: A man may take the law into his own hands for the protection of his interests. In a case where an irreparable loss is pending . . . [all agree] that he may take the law into his own hands for the protection of his interests; the difference of opinion is only where no irreparable loss is pending. Rabbi Yehudah maintains that no man may take the law into his own hands for the [alleged] protection of his interests, for since no irreparable loss is pending let him resort to the [court system]; whereas R. Nachman says that a man may take the law into his own hands for the protection of his interests, for since he acts in accordance with [the prescriptions of the] law, why [need he] take the trouble [to go to court]?60

Seemingly, from this detailed story in the Talmud emerge three opinions. Rabbi Chisda believes that one can never use force to retake an item, even if using the court system instead will lead to irreparable loss.61 Alternatively, Rabbi Yehudah believes that one can only use force to retake an item if using the court system instead will lead to irreparable loss.62 Finally, Rabbi Nachman believes that force can be used to retake an item even if using the court system will not lead to any loss.63

The Talmud elsewhere establishes that whenever there is a dispute between Rabbi Nachman and others concerning judiciary matters, the ruling follows Rabbi Nachman’s opinion.64 Consequently, almost all codifiers of Jewish law rely on the rule according to Rabbi Nachman, permitting the use of force even if using the court system will not lead to any loss.65 Presumably, Jewish law is no different than American law, since “the privilege of an owner dispossessed of his chattel to recapture it by force . . . [is] recognized.”66

 

  1. Rabbi Nachman Reexamined

The opinion of Rabbi Nachman, however, is not as clear as it may seem. Closer introspection of the above Talmudic passage reveals that Rabbi Nachman only explicitly allowed force in the story about the water in the well. In that case, going to the courts would have caused the rightful owner irreparable loss of production in his field; there would be no more water in the well to irrigate the produce by the time the courts issued an injunction against the thief.67 Although the courts would require the thief to pay for the stolen water, they would not have required him to pay for the incidental loss of the produce in the field.68 However, when use of the courts would not lead to irreparable loss, Rabbi Nachman merely stated, “a man may take the law into his own hands for the protection of his interests.”69 Thus, without irreparable loss, no permission to use force to retake chattel is explicitly given.

This omission helps form the novel interpretation of Maimonides on self-help in this context. Maimonides writes:

A man may take the law into his own hands, if he had the power to do so, since he acts in conformity with the law and he is not obliged to take the trouble and go to court, even though he would lose nothing by the delay involved in court proceedings.70

In codifying our Talmudic passage, Maimonides not surprisingly follows the opinion of Rabbi Nachman, that “even though he would lose nothing by the delay involved in court proceedings,” a person “may take the law into his own hands.”71 Yet, eerily absent from Maimonides is the privilege to use force to retake his item.72 Thus, Maimonides apparently understood Rabbi Nachman’s opinion as only allowing nonviolent self-help in cases where going to court will not lead to irreparable harm.73

 

  1. Limitations

Despite Maimonides’ novel understanding, the majority opinion in Jewish law interprets Rabbi Nachman as recognizing a privilege to use force to recapture chattel, even when using the courts will not lead to any irreparable loss.74 As in American law, this privilege to use force is not carte blanche. After bringing the above opinions, the Talmud continues to debate these opinions through extensive analysis of eight scenarios where self-help is used.75 The results of this discourse and the concomitant scholarly interpretations are numerous limitations on the opinion of Rabbi Nachman.76

 

  1. Limitations Analogous to American Law

Similar to American law, Jewish law requires that force only be used by the person who is entitled to the item.77 It is not enough that the self-helper believes that the item is rightfully his; he must be “certain” of this fact.78 A mistaken belief will lead to the self-helper being liable for the force used.79

Additionally, Jewish law agrees with American law that if the item can be retrieved “without the use of force against the other,” such force is “unprivileged.”80 The self-helper may only use force if there is no other peaceful way to retrieve the item. Likewise, a warning must be issued before force is used.81

Finally, force may only be used to recapture the taken item.82 Once the item is safely in the self-helper’s hands, the privilege no longer exists. Force as retribution or as future deterrent is equally forbidden.83

 

  1. Dissimilarities to American Law

A few of the limitations in American law are not mentioned in Jewish law, presumably because they are not required for the use of force. Specifically, the need for “fresh pursuit” is notably omitted from the Jewish law sources on this privilege.84 In all likelihood, Jewish law allows a self-helper to use force even after his ire has already diffused. Additionally, as there is no requirement to use force “reasonable under the circumstances,” perhaps even deadly force or serious bodily harm would be privileged.85 However, deadly force would only be privileged if it was the least amount of force necessary for the recapture — a highly unlikely scenario.

Lastly, many scholars think that Jewish law does not contain a “wrongful taking” limitation.86 While it concurs with American law that a creditor cannot use force to collect collateral, the reason for this law is not because of a lack of “wrongful taking” by the debtor.87 Rather, Jewish law only allows force to recapture the same item that was taken; money or collateral cannot be recaptured through the use of force.88 Where the self-helper only recaptures the exact item taken, force may be used even if the perpetrator received the item without fraud or with a claim of right. Thus, force by a seller recapturing his own goods after a buyer defaults,89 or force by a lender recapturing his item that was never returned would be privileged.90

 

  1. Justifications
  2. Maimonides

While Jewish law commentators provide numerous justifications for the self-helper’s use of force to recapture chattel, it is important to reiterate Maimonides’ contrary view, prohibiting force where going to court would not lead to irreparable loss.91 Possibly, Maimonides finds no justification for force in this scenario, as the force is unnecessary, for going to court can recoup all the loss.92 Maimonides’ logic is very strong. If one is required to use the least violent approach, violence should never be privileged, as the option of using the courts is always the less violent approach!

Hence, justification for the majority view of Jewish law, that force can be used even when going to court would not lead to irreparable loss, must be identified.93 Fortunately, two creative, distinct approaches for this justification have emerged.

 

  1. First Approach: Reparable Loss as Irreparable Loss

The first approach explains the use of force with no irreparable loss in consonance with force by irreparable loss.94 Since a perpetrator may flee the country or destroy the item, complete recourse through litigation is never assured.95 Thus, every recapturing chattel scenario is one of potential irreparable loss.96 Since force can definitely be used by irreparable loss, force can also be used where the reparability of the loss is in doubt.97

Another version of this same approach views the litigation costs and incidental losses associated with litigation, i.e., lost work, travel expenses etc., as irreparable loss.98 In fact, even if this loss is not monetary, but merely the loss of inner peace due to the pressures and drama of litigation, it is considered irreparable loss.99 Accordingly, a self-helper may use force to prevent this loss associated with litigation, just as he may use force to prevent bona fide irreparable monetary loss.100

 

  1. Second Approach: Separate Right or Power

Significantly, a major difficulty of the first approach exists in its interpretation of the Talmudic passage quoted earlier. As the first approach views reparable loss simply as a doubtful irreparable loss or a non-monetary irreparable loss, the Talmud’s distinction between “reparable loss” and “irreparable loss” is quite puzzling.101 In truth, force can only be used by reparable loss because it has some irreparable loss quality.102

The second approach thus attempts to resolve this textual difficulty by permitting a self-helper to use force by reparable loss for its own, separate right or power. While the precise nature of this right or power remains vague, many compare this right to the power of the court to use force.103 In viewing the self-helper as an extension of the court itself, the self-helper is no different than a judicial officer, empowered by the court to use force to enact justice.104

Others view this right as an inherent power in an individual with regard to one’s own items.105 This inherent power is premised on the secondary role of a court system in Jewish law.106 For that reason, this power does not emanate from the courts, but rather from every individual’s responsibility in “the administration of justice.”107

Some proponents of this approach look outside the monetary dispute framework to justify the privilege to use force by reparable loss. Rather, the right to use force stems from the social responsibility of every individual to prevent others from doing bad deeds.108 In other words, a self-helper can use force to recapture an item from a thief solely to prevent the thief from violating the prohibition of stealing.109

 

  1. Observations
  2. First Observation: Justification Explains Limitation

As previously noted,110 scholars explain the “fresh pursuit” requirement by the use of force to recapture chattel in American law by looking at the justification of this privilege. Since the justification for this privilege is based on the “frailties of human nature,” this privilege logically only applies when the self-helper is still very upset over his loss. Further, the non-deadly force and “wrongful taking” requirements are easily understood in light of this justification.

Apparently, the lack of these limitations in Jewish law can be explained through Jewish law’s unique justifications of this privilege. Not requiring “fresh pursuit,” a “wrongful taking,” nor non-deadly force makes perfect sense according to either of the two approaches used to justify the use of force in Jewish recapture law. According to the first approach, that the privilege to use force by reparable loss stems from its connection to irreparable loss, surely a “fresh pursuit” requirement would be ridiculous. Since force is privileged in order to prevent potential irreparable loss or definite non-monetary/incidental loss, it can be used any time. Whether there was a “wrongful taking” is further irrelevant, so long as there are potential irreparable losses at the current time.111

Similarly, according to the second approach, that the privilege to use force by reparable harm stems from a separate right or power, the lack of a “fresh pursuit” or “wrongful taking” limitation is reasonable. If viewed as an extension of the court system, courts can use their force whenever and on whatever they deem necessary. If viewed as an inherent power emanating from the individual, all that is essential is that the self-helper’s ownership is being challenged.112 Either way, the omission of “fresh pursuit” and “wrongful taking” requirements is not troubling.

 

  1. Second Observation:
    Inherent Good of the Individual

American law emphasizes an elaborate court system designed to prevent a “breach of the peace.”113 An individual’s ability to use force can exist only through a special exception based on the “frailties of human nature.”114 In contrast, Jewish law favors the right of an individual, even to the detriment of the public welfare.115

“Self-help” is a good example of this outlook, as the omission of the “frailties of human nature”116 justification reflects Jewish law’s “fundamental trust in the individual.”117 By giving a self-helper the privilege to use force to recapture chattel, Jewish law assumes that the self-helper “would not take the law into his own hands unless it were justified and that, even then, he would act with restraint.”118

 

  1. Conclusion

Current events have brought self-help/self-defense laws to the public forum, sparking intense media discussion about their continued viability in modern society.119 Further, “widespread publicity emphasizing the high cost of litigation” has set off much scholarly debate in the legal field surrounding the benefits and detriments of self-help remedies.120 However, balancing the need for a strong court system with the need for protection of individual rights has long been the task of developed legal systems. Two legal systems that grapple with this balancing task are the American and Jewish legal systems, albeit with different results. Specifically with regard to recapturing chattels through the use of force, American law restricts the right of the self-helper more severely than Jewish law. The distinct justifications in each of these legal systems highlight the complex legal theories underlying this delicate balance. Thus, Reuben should think carefully before hurling bolt cutters at Simon’s head to retrieve his bicycle. It is not a simple decision.

 

 

Journal of International Law, Gonzaga University, May 15, 2013, www.law.gonzaga.edu

Reprinted with permission of the publisher

 


Endnotes

1 Douglas Ivor Brandon, et al., Special Project: Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vand. L. Rev. 845, 850 (1984).

2 Id.

3 Id; see generally Gregg v.Georgia,428 U.S. 153 (1976).

4 Brandon et al., supra note 2, at 850; see also René David, 11 Int’l Enc. Comp. L. 2-192 (1984).

5 Craig Dolly, The Electronic Self-Help Provisions of UCITA: A Virtual Repo Man?, 33 J. Marshall L. Rev. 663, 668 (2000).

6 Neil Hecht, Shimshon Ettinger, “Self-Help,” v. 6, Selected Topics in Jewish Law, Open University of Israel Publishing House (1994) [published under the auspices of the Institute of Jewish Law, Boston University School of Law].

7 Brandon, et al., supra note 2, at 849.

8 Brandon, et al., supra note 2, at 849.

9 Brandon, et al., supra note 2, at 849-50.

10 Dolly, supra note 6, at 671. One area where self-help is still being debated is electronic self-help. Id. (“The use of self-help, specifically electronic self-help, has become a highly contested area”).

11 Brandon et al., supra note 2, at 850.

12 W. Page Keeton et al, Prosser & Keeton on Law of Torts, § 22, at 137 (5th ed. 1984); see also Restatement (Second) of Torts § 100 (stating “[t]he use of force against another for the sole purpose of retaking possession of a chattel is privileged if . . . all the conditions stated in §§ 101-106 exist”).

13 See Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. Econ. & Pol’y. 1, 29 (2005).

14 W. Page Keeton et al, supra note 13, § 22, at 138; see also Restatement (Second) of Torts § 101-106. Importantly, where judicial remedy is unavailable, the necessity of these conditions is undeveloped in American law. See Restatement (Second) of Torts § 100 cmt. b; W. Page Keeton et al, supra note 13, § 22 n.7 (“Where these conditions are unfulfilled, it is unclear if the owner may still resort to self-help force to prevent destruction of the item or to prevent its removal from the jurisdiction and from legal recourse.”).

15 Brandon, et al., supra note 2, at 864.

16 Id.; see Restatement (Second) of Torts: How Possession Obtained by Other § 101 (stating “[t]he use of reasonable force against another for the purpose of recaption is privileged if the other … has tortiously taken the chattel from the actor’s possession without claim of right, or under claim of right but by force or other duress or fraud. . . .”).

17 Restatement (Second) of Torts: How Possession Obtained by Other § 101.

18 W. Page Keeton et al, supra note 13, § 22, at 138; see also Restatement (Second) of Torts: How Possession Obtained by Other § 101 cmt. d, illus. 1 (“A finds B’s automobile parked in the street. Knowing it to be B’s, he enters it and is about to drive away with it when B comes up. B is privileged to use force to retake the automobile”).

19 Viley O. Blackburn, Note, The Right of Recaption of Chattels by Force, 34 KY. L.J. 65, 65 (1945).

20 Restatement (Second) of Torts: How Possession Obtained by Other § 101.

21 Restatement (Second) of Torts § 101 cmt. c.

22 W. Page Keeton et al, supra note 13, § 22, at 139; see also Kensinger Acceptance Corp. v. Davis, 269 S.W.2d 792, 794 (Ark. 1954).

23 erromet Resources, Inc. v. Chemoil Corp., 5 F.3d 902, 904; see also Restatement (Second) of Torts: How Possession Obtained by Other § 101 cmt. d., illus. 4.

24 People v. Reid, 69 N.Y.2d 469 (1987); People v. Green, 5 N.Y.3d 538 (2005).

25 Restatement (Second) of Torts: Actor’s Right to Possession of Chattel § 102.

26 Restatement (Second) of Torts: Actor’s Right to Possession of Chattel § 102 cmt. a.

27 Brandon, et al., supra note 2, at 864; see also Restatement (Second) of Torts: Timeliness of Recaption § 103 (“The actor is not privileged to use force against another for the purpose of recaption unless he acts promptly after his dispossession or after his timely discovery of it.”).

28 W. Page Keeton et al, supra note 13, § 22, at 138.

29 W. Page Keeton et al, supra note 13, § 22, at 138. With the widespread usage today of automobiles and airplanes, older case law is not that helpful.

30 W. Page Keeton et al, supra note 13, § 22, at 138; see also Restatement (Second) of Torts: Timeliness of Recaption § 103, cmt. b, illus. 1-4 (allowing a leeway of a few days).

31 Restatement Second() of Torts: Timeliness of Recaption § 103, cmt. a.

32 Id.

33 W. Page Keeton et al, supra note 13, § 22, at 138; see also Dyk v. DeYoung, 24 N.E. 520 (Ill. 1890).

34 Restatement (Second) of Torts: Necessity of Demand § 104.

35 W. Page Keeton et al, supra note 13, § 22, at 138.

36 Restatement (Second) of Torts: Purpose of Actor § 105.

37 Hatfield v. Gracen, 567 P.2d 546, 550 (Or. 1977).

38 W. Page Keeton et al, supra note 13, § 22, at 138.

39 W. Page Keeton et al, supra note 13, § 22, at 138; see also Restatement (Second) of Torts: Amount of Force Permissible § 106 (stating “[t]he use of force against another for the purpose of recaption is not privileged unless the means employed are (a) not in excess of those which the actor correctly or reasonably believes to be necessary to effect the reception, and (b) not intended or likely to cause death or serious bodily harm”).

40 Restatement (Second) of Torts: Amount of Force Permissible § 106, cmt. b.

41 Id.

42 Brandon, et al., supra note 2, at 864; see also Hodgeden v. Hubbard, 18 Vt. 504, 507 (1846).

43 Brandon, et al., supra note 2, at 864.

44 W. Page Keeton et al, supra note 13, § 22, at 138.

45 Restatement (Second) of Torts: Amount of Force Permissible § 106, cmt. e.

46 . Page Keeton et al, supra note 13, § 22, at 138.

47 Brandon et al., supra note 2, at 863.

48 Id.; see also Adam B. Badawi, Self-Help and the Rules of Engagement, 29 Yale J. on Reg. 1 (2012).

49 Brandon, et al., supra note 2, at 863.

50 Brandon, et al., supra note 2, at 863; Blackburn, supra note 20, at 65.

51 Brandon, et al., supra note 2, at 865.

52 Brandon, et al., supra note 2, at n.104.

53 Brandon, et al., supra note 2, at 865.

54 Brandon, et al., supra note 2, at 866; see also Blackburn, supra note 19, at 65.

55 Brandon, et al., supra note 2, at 865.

56 Brandon, et al., supra note 2, at n.106.

57 The Babylonian Talmud: Baba Kamma, 27b-28a, at 143-49 (E.W. Kirzner, ed. & Isidore Epstein, trans., 1935) [hereinafter Baba Kamma] (Self-help in Jewish law is known in the Talmud by the Aramaic phrase “Avid Inish Dina Linafshei,” loosely translated as “doing justice for oneself by oneself.”).

58 Before such a foray, Michael J. Broyde offers some context to Jewish law generally:

[a] brief historical review will familiarize the new reader of Jewish law with its history and development. The Pentateuch (the five books of Moses, the Torah) is the elemental document of Jewish law and, according to Jewish legal theory, was revealed to Moses at Mount Sinai. The Prophets and Writings, the other two parts of the Hebrew Bible, were written over the next 700 years, and the Jewish canon was closed around the year 200 before the Common Era (“B.C.E.”). The close of the canon until year 250 of the Common Era (“C.E.”) is referred to as the era of the Tannaim, the redactors of Jewish law, whose period closed with the editing of the Mishnah by Rabbi Judah the Patriarch. The next five centuries were the epoch in which scholars called Amoraim (“those who recount” Jewish law) and Savoraim (“those who ponder” Jewish law) wrote and edited the two Talmuds (Babylonian and Jerusalem). The Babylonian Talmud is of greater legal significance than the Jerusalem Talmud and is a more complete work.

The post-Talmudic era is conventionally divided into three periods: (1) the era of the Geonim, scholars who lived in Babylonia until the mid-eleventh century; (2) the era of the Rishonim (the early authorities), who lived in North Africa, Spain, Franco-Germany, and Egypt until the end of the fourteenth century; and (3) the period of the Aharonim (the latter authorities), which encompasses all scholars of Jewish law from the fifteenth century up to this era. From the period of the mid-fourteenth century until the early seventeenth century, Jewish law underwent a period of codification, which led to the acceptance of the law code format of Rabbi Joseph Karo, called the Shulhan Arukh, as the basis for modern Jewish law. The Shulhan Arukh (and the Arba’ah Turim of Rabbi Jacob ben Asher, which preceded it) divided Jewish law into four separate areas: Orah Hayyim is devoted to daily, Sabbath, and holiday laws; Even HaEzer addresses family law, including financial aspects; Hoshen Mishpat codifies financial law; and Yoreh Deah contains dietary laws as well as other miscellaneous legal matter. Many significant scholars—themselves as important as Rabbi Karo in status and authority—wrote annotations to his code which made the work and its surrounding comments the modern touchstone of Jewish law. The most recent complete edition of the Shulhan Arukh (Vilna, 1896) contains no less than 113 separate commentaries on the text of Rabbi Karo. In addition, hundreds of other volumes of commentary have been published as self-standing works, a process that continues to this very day. Besides the law codes and commentaries, for the last 1200 years, Jewish law authorities have addressed specific questions of Jewish law in written responsa (in question and answer form). Collections of such responsa have been published, providing guidance not only to later authorities but also to the community at large. Finally, since the establishment of the State of Israel in 1948, the rabbinical courts of Israel have published their written opinions deciding cases on a variety of matters.

—Michael J. Broyde, The Foundations of Law: A Jewish Law View of World Law, 54 Emory L.J. 79, 97

59 See generally Baba Kamma, supra note 58, at 27b, 143-45.

60 Babylonian Talmud: Tractate Baba Kamma, Come-and-Hear.com, available at http://www.come-and-hear.com/babakamma/babakamma_27.html [hereinafter Come-and-Hear.com] (last visited Mar. 31, 2013).

61 See Yisroel Zev Gustman, Bava Kama, BK Kuntrasai Shiurim 15 (understanding Rabbi Chisda as an opinion and not merely as a questioner).

62 Come-and-Hear.com, supra note 61.

63 Come-and-Hear.com, supra note 61.

64 The Babylonian Talmud: Kethuboth I, 13a, at 68 (E.W. Kirzner, ed. & Isidore Epstein, trans., 1935).

65 See Yechiel ben Asher, Choshen Mishpat, 15 Tur: 4:1 (Machon Yreschalayim, ed., 1994); Joseph ben Ephraim Karo, Choshen Mishpat, CM1 Shulchan Aruch 4:1 (Leshem, ed., 2004). The notable exception is Ephraim ben Shimshon, who follows the opinion of Rabbi Yehudah. See Rabbeinu Ephraim. His reasoning, that self-help through force is not a judiciary matter, is discussed later in this Article.

66 W. Page Keeton et al, supra note 13, § 22, at 137.

67 Shlomo Yitzhaki, Bava Kama 27b, 12 Rashi (Vagshal, ed. 1999)

68 See Asher ben Yechiel, Bava Kama, Rosh, 27b (Vagshal, ed., 1999).

69 Baba Kamma, supra note 58, at 27b, 144-45.

70 Maimonides, Laws of Sanhedrin, Mishneh Torah 2:12, available at Extraordinary Remedies: Extrajudicial Remedies, Jewish Virtual Library, http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0006_0_ 06189.html.

71 Id.

72 Vidal of Tolosa, Laws of Slaves, 10 Maggid Mishneh 3:7 (Frankel, ed., 1990) (quoting Shlomo Ben Avraham Hacohen, Maharshach). Importantly, Abraham diBotem, disagrees with this reading of Maimonides. Instead, he posits that Maimonides’ addition of the phrase “if he had the power to do so” indicates that force could be used. Laws of Sanhedrin, Lechem Mishneh 2:12. This is also the understanding of Maimonides according to Joseph Karo. Choshen Mishpat, Shulchan Aruch 4:1.

73 Vidal of Tolosa, supra note 73, 3:7 (quoting Shlomo Ben Avraham Hacohen, Maharshach). Further proof of Maimonides’ opinion is gleaned from his statement in the Laws of Slaves, “When a servant whose master gave him a Canaanite maid-servant and whose ear was pierced does not desire to leave his master’s domain when the Jubilee year arrives . . . his master . . . is permitted to strike him, because at that time, the servant becomes prohibited to have relations with a maid-servant.” Maimonides, Laws of Slaves, Mishneh Torah 3:7, available at Chapter Three, Chabad.org (trans. Eliyahu Touger), http://www.chabad.org/library/article_cdo/aid/1363806/jewish/Chapter-Three.htm. Maimonides permits the owner to hit the slave “because at that time, the servant becomes prohibited to have relations with a maid-servant.” Vidal of Tolosa, supra note 73, 3:7 (quoting Shlomo Ben Avraham Hacohen, Maharshach). If Maimonides allows one to “take the law into his own hands” through the use of force, he would have referenced the concept of self-help, instead of discussing prohibited relations. Vidal of Tolosa, supra note 73, 3:7.

74 See Asher ben Yechiel, supra note 69, at 27b; Joseph Habiba, Bava Kama, 12 Nimukei Yosef, 27b (Vagshal, ed., 1999); see also Yechiel ben Asher, supra note 66, 4:1; Joseph ben Ephraim Karo, Choshen Mishpat, Shulchan Aruch 4:1.

75 See Bava Kama, supra note 58, at 27b-28a, 143-49.

76 Ettinger, supra note 7, at 14.

77 See Asher ben Yechiel, supra note 69, at 27b.

78 See Asher ben Yechiel, supra note 69, at 27b. According to many, he must be able to validate this certainty in a court. See Yisroel Zev Gustman, supra note 62, at15 (proving from here that the power to use force stems from the fact that the self-helper is an extension of the courts).

79 Joseph ben Ephraim Karo, supra note 75, 4:1.

80 Restatement (Second) of Torts: Amount of Force Permissible § 106, cmt. b; see Bava Kama, supra note 58, at 28a, 145-149.

81 See Otzar Miforshei Hatalmud (Bava Kama 28a, n. 28) (stating a warning must be provided at the time the chattel is recovered).

82 Joseph ben Ephraim Karo, supra note 75, 4:1.

83 Ettinger, supra note 7, at 14.

84 See generally Asher ben Yechiel, supra note 69, at 27b; Joseph Habiba, supra note 75, at 27b; Yechiel ben Asher, supra note 66, 4:1; Joseph ben Ephraim Karo, supra note 75, 4:1; but see Menachem Meiri, 5 Bava Kama 27b (Zichron Yaakov, ed., 1976) (implying a “fresh pursuit” requirement by stating that force can only be used before the item is actually taken from the self-helper’s possession).

85 See Joseph Habiba, supra note 75, at 27b (allowing the self-helper to hit the perpetrator “even one hundred times). The permissibility of using deadly force fits nicely with the second approach discussed later, that the power of the self-helper stems from an extension of the court system. Just like a court officer can mete out punishment of death, so too can a self-helper. See generally Yisroel Zev Gustman, supra note 62, at 15.

86 Isaac ben Sheshet Perfet, 2 Rivash (Machon Yerushalayim, ed., 1993); Moses Isserles, Choshen Mishpat CM1 Rama 4:1 (Leshem, ed., 2004); see also Yehoshua Falk HaKohen, Sefer Me’irat Einayim (Sma)(Choshen Mishpat 4:1); cf. Joseph Colon Trabotto, Maharik (quoted in Rama, Choshen Mishpat 4:1).

87 Asher ben Yechiel, supra note 69, at 27b; Joseph Habiba, supra note 75, at 27b.

88 Isaac ben Sheshet Perfet, supra note 87; Moses Isserles, supra note 87, 4:1; see also Yehoshua Falk HaKohen, Choshen Mishpat, Sma 4:1; cf. Joseph Colon Trabotto, Maharik (quoted in Choshen Mishpat, Rama 4:1).

89 Isaac ben Sheshet Perfet, supra note 87; Moses Isserles, supra note 87, 4:1; see also Yehoshua Falk HaKohen, Choshen Mishpat, Sma 4:1; cf. Joseph Colon Trabotto, Maharik (quoted in Choshen Mishpat, Rama 4:1).

90 Yechiel Michel Epstein, Choshen Mishpat, Aruch Hashulchan 4:1.

91 See supra text accompanying notes 69-72.

92 See generally Yaakov Lorberbaum, CM1 Nesivos Hamishpat 4:1 (Leshem, ed., 2004) (using this logic as a proof against the use of force).

93 See supra text accompanying notes 73-76.

94 See generally Yisroel Zev Gustman, supra note 62, at 15 (querying if reparable loss is similar to irreparable loss).

95 Yaakov Lorberbaum, supra note 93, 4:1.

96 Yaakov Lorberbaum, supra note 93, 4:1.

97 Yaakov Lorberbaum, supra note 93, 4:1. Accordingly, in the case of recapturing real property, where there is no potential for irreparable loss through fleeing or destruction, force would not be privileged.

98 Emanuel B. Quint & Neil S. Hecht, 2 Jewish Jurisprudence 94 (1986). The author of this Article thinks that the language of Asher ben Yechiel, Rosh (Bava Kama 27b), comports nicely with this interpretation.

99 Id.

100 Id

101 Moshe Gnizi, Bava Kama, Moreshes Yaakov 27b (Gnizi, ed., 1978).

102 Id.

103 See Asher ben Yechiel, supra note 69, at 27b; Joseph Habiba, supra note 75, at 27b.

104 Joseph Habiba, supra note 75, at 27b (comparing self-helper to a judicial officer); see generally Yisroel Zev Gustman, supra note 62, at 15 (querying the extent of this comparison and power).

105 See Yisroel Zev Gustman, supra note 62, at 15 (entertaining this approach). The author of this Article thinks that this understanding can be gleaned from the language of Asher ben Yechiel, Rosh (Bava Kama 27b), as well. See also Aryeh Leib Malin, Siman 75 (suggesting this interpretation within the view of Maimonides according to Lechem Mishneh).

106 See Ettinger, supra note 7, at 16.

107 See Ettinger, supra note 7, at 16.

108 Meir Auerbach, Choshen Mishpat, 2 Imrei Bina 9 (Belchotovksi, ed., 1900).

109 Id.; but see Elchonon Wasserman, Bava Kama, 2 Kovetz Biurim (E. S. Wasserman, ed. 1989) (doubting such an explanation based on Aryeh Leib Heller-Kahane, Ketzos Hachoshen, that there is no need to prevent the prohibition of stealing after the item is already stolen)

110 See supra text accompanying notes 56-58.

111 Similarly, deadly force may be allowed as well, as reparable loss is no different than irreparable loss.

112 Perhaps even deadly force can be used, as this relationship to one’s item is very strong.

113 See Badawi, supra note 49.

114 See supra text accompanying notes 55-56.

115 See Ettinger, supra note 7, at 16.

116 See supra text accompanying notes 55-56.

117 See supra text accompanying notes 55-56.

118 This belief is especially seen in the second approach given as a justification. See supratext accompanying notes 100-108.

119 See, e.g., Geoffrey Corn, A Learning Opportunity in Trayvon Martin Case, HOUS. CHRON., Apr. 21, 2012, http://www.chron.com/opinion/outlook/article/A-learning-opportunity-in-Trayvon-Martin-case-3498736.php; Eric Zorn, Trayvon Martin and the Problematic Timeline, Chi. Trib., Apr. 18, 2012, http://blogs.chicagotribune.com/news_ columnists_ezorn/2012/04/trayvon-martin-and-the-problematic-timeline.html.

120 Brandon et al., supra note 2, at 925; see also Celia R. Taylor, Self-Help in Contract Law, 33 Wake Forest L. Rev., 839, 847 (1998).

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