Chovel uMazzik - Chapter 8

I.e., although he did not actually destroy the property, since he was the direct cause of its rightful owner’s being deprived of its use, it is considered as it he had destroyed it.
The fact that the owner has the right to collect his due from the moseir’s heirs indicates that he is considered to be liable according to Scriptural Law. Note the contrast to the Rabbinic obligations imposed in Chapter 7, Halachot 1-3 (Maggid Mishneh).
The Ramah (Choshen Mishpat 388:2) differs and obligates the moseir’s heirs only when the moseir was convicted by a court before his death. This indicates that he considers the moseir’s obligation Rabbinic in origin. See Sefer Me’irat Einayim 388:15.

This term is the subject of the majority of this chapter. It refers to a person who endangers the life or property of a fellow Jew by giving information to lawless Jews or gentiles.

If, however, they compelled a person to show them resources that he himself owns, and instead he showed them resources belonging to a colleague, he is liable (Tur, Ramah, Choshen Mishpat 388:2).

The Ra’avad objects to the Rambam’s ruling, maintaining that as long as he does not violate the prohibitions against murder, adultery or incest and idol worship, a person may do anything to save his life. The commentaries justify the Rambam’s ruling, explaining that although a person is entitled to save his life by using property belonging to a colleague, he is obligated to reimburse him for it.
The Shulchan Aruch (Choshen Mishpat 388:4) quotes the Rambam’s ruling, but the Siftei Cohen 388:24 argues on behalf of the Ra’avad’s position.

The Siftei Cohen 388:20 states that this applies in an instance when the king makes an arbitrary demand, and not when he issues a tax that is incumbent on all inhabitants of the country.

Sefer Me’irat Einayim 388:12 states that the expression “is not liable” indicates that at the outset, one should not sacrifice a colleague’s property under such circumstances. Kin’at Eliyahu maintains that the person must consider the amount of suffering and danger involved.

The person who showed the property to the lawless person is not liable, for the reasons mentioned in the previous halachah. The person who transported the property is not liable, for the reason the Rambam continues to explain.

And so, the fact that afterwards the moseir or another Jew brought the property to him is not significant. It is considered as if the lawless person had taken possession of it previously.

See the Ramah (Choshen Mishpat 388:5) and the Siftei Cohen 388:26, who debate whether or not such a person is considered a moseir.

I.e., the lawless person, for we assume that he will not heed the instructions of a Jewish court.

I.e., a lawless gentile seized one Jew and exacted payment from him for money that he claimed was owed to him by another Jew.

Since the money was taken without legal process, the debtor can claim that he would have found a way to avoid paying the debt.

The commentaries explain that the same laws also apply with regard to standard property tax, income tax or sales tax.

This is a standard tax that every inhabitant of the country is required to pay. Therefore, if one Jew is imprisoned (because the king has charged him with responsibility for collection of all the taxes, or arbitrarily, in order to collect those taxes), he must be reimbursed for money taken from him on behalf of any delinquent taxpayer.
Note the Hagahot Maimoniot and Kessef Mishneh, who mention that the Rambam’s intent is with regard to the taxes immediately due. With regard to taxes due from previous years, different laws apply.

I.e., when a king or his soldiers visit an outlying city, the inhabitants of that city are required to pay for their hospitality.

This excludes a general fine exacted because of delinquent taxpayers as a whole, even when the person in question was himself delinquent.

If, however, there are no witnesses, the defendant can free himself from liability by taking a Rabbinic oath that he did not give his colleague’s property to the lawless person (Sefer Me’irat Einayim 388:20).

If, however, the defendant admits informing about property to a lawless person, but claims not to know the extent of the loss he caused, he is required to pay the plaintiff’s entire claim. The rationale is that he is required to take an oath but is unable to, as explained in Chapter 7, Halachah 19. (See Maggid Mishneh, Siftei Cohen 388:31.)
The above represents the Rambam’s position. The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 388:7) also mention that there are authorities who do not accept this ruling and maintain that even if the witnesses do not know the value of the property that was given to the gentiles, the person whose property was taken has the prerogative of taking an oath.

According to the Rambam, this law applies even when witnesses observe that the property was seized (Maharshal, Siftei Cohen 388:32).

This matter is the subject of an unresolved difference of opinion among our Sages (Bava Kama 62a). Therefore, as in all cases of this nature, the Rambam rules that whoever has the property in his possession at the time the matter is brought to court is entitled to maintain possession. Thus, if the plaintiff seizes the defendant’s property, he is allowed to keep it. The Tur and the Ramah (Choshen Mishpat 388:7) do not accept this premise and require that the property that was seized be returned.

Circumstantial evidence and/or an oath taken by the plaintiff are not sufficient to create a Jegal obligation.

This term refers to an oath taken while holding a sacred object (a Torah scroll or tefillin), whether the oath is of Scriptural or Rabbinic origin.

This refers to a more lenient Rabbinic oath, which does not require holding a sacred article.

The Ramah (Choshen Mishpat 388:8) quotes opinions that maintain that even when a person merely threatens to inform about a person’s property to a lawless man, he is disqualified as a witness. There are, however, dissenting views.

Causing him either to suffer corporal punishment or to be executed (Hilchot Teshuvah 3:12).

ln the present age, when Rabbinic courts do not have punitive powers, there are conditions that allow a person to seek redress from a colleague by employing a gentile or secular legal system. Before doing so, however, he must consult a Rabbinic court and obtain license from them. If he does obtain such license, he is not considered a moseir for appealing to the secular courts.

Bava Metzia 83b relates that Rabbi Eleazar ben Rabbi Shimon apprehended thieves and handed them over to the Roman authorities. Rabbi Yehoshua ben Korchah rebuked him: “How can you hand over the nation of God to be killed?”
“I am only pruning the brambles [the wicked] from the vineyard [Israel],” Rabbi Eleazar protested.
“Let the owner of the vineyard [God] prune His own vineyard,” Rabbi Yehoshua replied.
Similarly, Gittin 7a relates that Mar Ukva complained to Rabbi Eliezer that certain men were disturbing him and asked him whether he should inform upon them to the gentile authorities.
Rabbi Eliezar answered, citing Psalms 39:2: “I will guard my mouth... even when a wicked man stands in front of me.” The verse implies, he told Mar Ukva, that even when a person’s adversary is wicked, he should guard his tongue.
Mar Ukva complained that it was difficult for him to endure their presence. Rabbi Eliezer instructed him to increase his own Divine service, and soon they were apprehended without his intervention.

I.e., even in the diaspora.

Although capital punishment as prescribed by the court was ended 40 years before the destruction of the Temple, this execution of a moseir in protection of one’s own interests is allowed in all ages. Thus, Bava Kama 117a relates that Rav Kahana killed a moseir in Babylonia. Similarly, in recent generations - e.g., to escape Nazi and Soviet persecution - such measures were occasionally advised by our people’s sages.

The Ramah quotes the Teshuvot Maimoniot as saying that if it is possible to prevent the moseir from informing without killing him, one is obligated to use that alternative.

In the instance mentioned above concerning Rav Kahana, he killed a moseir for informing about another Jew’s straw.
We fear that once a person becomes entangled with gentiles with regard to financial matters, he will never free himself, and ultimately they will seek to ruin his entire livelihood, and perhaps endanger his life (Bava Kama, loc. cit.).

The Maggid Mishneh (quoted by the Ramah, loc. cit.) cites an incident concerning Rav Shilah (Berachot 58a) from which it appears that if one does not have time to warn the moseir, one may kill him nevertheless. The moseir is considered as threatening the person’s life and the laws concerning a rodef apply.

Sefer HaChinuch (Mitzvah 236) interprets this as indicating that the moseir must acknowledge the warning.

I.e., not only is killing him permissible; it is desirable.
The halachic basis for the permission to kill a moseir is the principle of rodef discussed in the following halachot and in Hilchot Rotzeach, Chapter 1 (Sefer Me’irat Einayim 388:29).

I.e., not only the person who is himself endangered, but any neutral party may kill him.

This expression indicates a ruling made by the Rambam on the basis of his own analysis, without an explicit Talmudic or Rabbinic source.
The Maggid Mishneh affirms the Rambam’s ruling, noting that none of the instances in the Talmud speak of killing a moseir after he performed his threat. He also cites the principle of rodef, in which the law is that once the rodef has killed or raped, it is forbidden to kill him arbitrarily. Instead, he must be brought to court.

The Shulchan Aruch (Choshen Mishpat 388:15) states that if a person informs on a colleague three times, he may be killed. The Tur and the Ramah differ and maintain that one is allowed merely to be an indirect cause of the moseir’s death, but not actually to kill him. The Siftei Cohen 388:66 substantiates the ruling of the Shulchan Aruch.

Our translation follows the manuscripts and early printings of the Mishneh Torah. This version is also reflected in the rulings of Shulchan Aruch (loc. cit.: 11,15). The standard printed text of the Mishneh Torah reads “punished.”

I.e., Spain.

Note the Shulchan Aruch (Choshen Mishpat 388:16), which states that the funds necessary for the community to deal with informers should be collected by taxation of all the members of the community.

This is also an emendation of the standard text, based on authoritative manuscripts and early printings.

The Beit Yosef (Choshen Mishpat 388) quotes one of the Rashba’s responsa, which states that it is forbidden to have mercy on such individuals, and one must prosecute them severely. For “mercy to them is cruelty to all the people in the generation.”

This is also an emendation based on authoritative manuscripts and early printings. The standard text of the Mishneh Torah states “imprison him.”

This refers to pain and irritation, but not actual financial loss (Sefer Me’irat Einayim 388:30). Alternatively, it applies after the fact (Siftei Cohen 388:60). For, as mentioned in the previous halachah, one may even kill a person if he threatens to inform on an individual.

There is a difference of opinion concerning this question in Bava Kama 62a. The Rambam’s ruling is based on the principle that the moseir’s heirs have not done anything to warrant the destruction of their property. Indeed, it is possible that they will be righteous, and then, to paraphrase Job 27:17: “What is prepared by a wicked person will be eaten by a righteous man” (Bava Kama, op. cit.).
The Ramah (388:13) quotes opinions that state that although it is forbidden to destroy a moseir’s property, one may take it as one’s own. Apparently, those opinions maintain that this is forbidden because of the prohibition against bal tash’chit, destroying valuable entities. Therefore, if one takes it as one’s own, this does not apply.
Note also the Siftei Cohen 388:62, who states that if ruining a moseir’s financial resources will make it impossible - or more difficult - for him to inform on Jews, it is permitted to destroy them.

Rodef means “pursuer,” and as the Rambam states, refers to a person who is pursuing another Jew to kill or rape him or her. License is given to kill the rodef - as stated in Hilchot Rotzeach, Chapter 1 - before he carries out his desire.

This refers to an incestuous, adulterous or homosexual rape.

Therefore, we follow the principle stated above (Hilchot Geneivah 3:1), that whenever a transgression involves both a financial penalty and capital punishment, the person is not liable for the financial penalty.

Thus, just as he is allowed to kill the rodef, he may destroy his property as a deterrent.

Pausing to be sure that he does not break any utensils.

The Rambam explains that our Sages were concerned that a person would worry about the possibility of becoming financially indebted as a result of his efforts to save a colleague. This might cause him to desist entirely - or at least to proceed slower - in his efforts to save his fellow Jew.

Although he willfully destroyed property belonging to others, he is not liable, for the reasons the Rambam proceeds to explain. Instead, the loss is borne equally by all the people who own cargo on the ship, as reflected in the Rambam’s rulings, Hilchot Gezelah Va’Avedah 12:14. If, however, if only one person’s cargo was jettisoned, he should be reimbursed by the others.
The above follows the interpretation by Sefer Me’irat Einayim 380:9. This explanation resolves the objections of the Ra’avad, who understands the Rambam as maintaining in this halachah that the person whose property was jettisoned must bear the loss alone.
The Maggid Mishneh and Kessef Mishneh resolved that objection by stating that in this instance, the Rambam is referring to a person who loaded his cargo on the ship last and overloaded the ship beyond its capacity. Since his cargo alone is the source of danger, it is correct - they maintain - that he suffer the loss alone.