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Fines

FINES (Heb. קְנָסוֹת, kenasot) are distinguishable from *damages in that they are not commensurate with the actual amount of damage suffered, whether such damage has been sustained by tortious act or by breach of contract or by an offense (see also *Obligation, Law of; *Torts). However, in cases where for a particular tort only half of the sustained damage is recoverable, or where the law prescribes more than the full damage to be paid (e.g., in case of theft: Ex. 21:37), such payment is classified as a fine (Maim. Yad, Nizkei Mamon 2:7–8). Of the four instances of fines prescribed in biblical law, three are liquidated amounts (30 shekels of silver: Ex. 21:32; 100 shekels of silver: Deut. 22:19; 50 shekels of silver: Deut. 22:29), and one is unliquidated ("silver in proportion to the bride price for virgins": Ex, 22:16), The Talmud asserts that while the payment of damages commensurate to the damage caused is rational by law (min ha-din) the imposition of fines was something novel (ḥadash) decreed by heaven (Ket, 38a, Rashi ibid.), so that fines are not to be regarded as law proper but rather as royal (divine) commands (ibid.). Not being the normal compensation for the actual damage suffered, fines have a quasi-penal character ("penalties"), and hence can only be recovered on the evidence of two witnesses, and not on the *admission or *confession of the defendant (Ket, 42b–43a; Shev. 38b; Yad, loc. cit. and Genevah 3:8). Another consequence of the quasi-penal character of the fine is that it is merged in any graver penalty prescribed for the same act since not more than one penalty can be inflicted for the same offense; where *capital punishment or *flogging are prescribed for any offense, these alone will be inflicted and no fine imposed (Mak, 4b; Ket. 32b, 37a; BK 83b), The only exception to this rule is the case of wounding, where the payment of a fine and damages is to be preferred to any other punishment (Yad, Ḥovel u-Mazzik 4:9).

In talmudic law, the sanction of fines was introduced for a multitude of causes: e.g., where the damage is not visible to the eye (as where A ritually defiled B's food) and is not liable according to the law of the Torah (Git. 53a; Yad, loc. cit. 7:1–3); where it is doubtful which of several claimants is entitled to stolen goods (Yev. 118b; Yad, Gezelah ve-Avedah 4:9); for the alienation of immovables which cannot be the subject of theft (TJ, BK 10:6,7c); for selling slaves or cattle to heathens (Git. 44a); for *slander (BK 9 la; Yad, Ḥovel u-Mazzik 3:5–7); where a tortfeasor is not liable in damages because of a supervening act of a third party (TJ, Kil. 7:3, 3 la; see *Gerama and Garme); et al. In some cases, the amount of the fine is fixed by law (e.g., in certain cases of slander and assault: TJ, BK 8:8, 6c; BK 8:6; for rape: Deut. 22:29; Ket. 3:1); in most cases, however, it is left to the discretion of the court in the exercise of its expropriatory powers (see *confiscation; MK 16a; Yad, Sanhedrin, 24:6; ḤM 2:1 and Rema ad loc.). Even where the amount had been fixed by law, instances are recorded in which the courts imposed heavier fines, e.g., on recidivists (BK 96b). Fixed tariffs have the advantage of assuring equality before the law (Ket. 3:7); and even where the amount of the fine was to be assessed according to the dignity and standing of the person injured, a great jurist held that all persons were to be presumed to be of equal rank and status (BK 8:6).

Contractual fines (see *contract) which a person undertook to forfeit in the event of his default were enforceable unless tainted by *asmakhta (BB 168a). While formal jurisdiction for the imposition of fines ceased with the destruction of the Temple (see *bet din), it was in post-talmudic law that fines became the standard sanction for minor (i.e., most) criminal offenses. Opinions are divided as to whether the present jurisdiction extends only to fines not fixed in the Bible or in the Talmud (Hagra to ḤM ln. 1) or whether fines fixed in the Talmud are included in this jurisdiction (Piskei ha-Rosh to Git. 4:41; Rema to HM 1:5); but there is general consensus that in matters not covered by biblical and talmudic law, courts have an unfettered discretion to impose fines (cf. Resp. Rosh 101:1) – a talmudic authority being invoked to the effect that fines may be imposed not only by virtue of law but also by virtue of custom (TJ, Pes. 4:3,30d).

A few examples of the many newly created offenses for which fines were imposed are: resisting rabbinical authority (Resp. Rosh 21:8–9); accepting a bribe for changing one's testimony (ibid. 58:4); refusing to let others use one's books (ibid. 93:3); instituting proceedings in non-Jewish courts (Resp. Maharam of Rothenburg quoted in Mordekhai, BK 195); frequenting theaters and other places of public entertainment, as well as *gambling (S. Assaf, Ha-Onshin Aḥarei Ḥatimatha-Talmud, 116 no. 126); taking a dog into a synagogue (ibid., 95, no. 12); and many similar contraventions. But fines were also imposed for receiving stolen goods (ibid., 137, no. 163), fraudulent business transactions (ibid., 133 no, 157), and unfair competition (ibid., 127, no. 141). Fines were also the alternative punishment for floggings, where these could not be imposed or executed (Rema to ḤM 2:1; Darkhei Moshe ad loc., n. 5; resp. Ḥatam Sofer ḤM, 181), as, conversely, flogging was imposed where a fine could not be recovered – although the standard sanction for the nonpayment of fines was *imprisonment (Zikhron Yehudah 36).

The greatest reform in post-talmudic law in respect of fines however concerned the nature of the payee. While both in biblical and talmudic law it was the person injured (or, in the case of a minor girl, her father) who was entitled to the fine and no fines were payable into any public fund, later courts ordered fines to be paid to the injured person only where he insisted (Yam shel Shelomo BK 8:49), but normally would order fines to be paid to public charities, at times giving the injured person a choice of the particular charity to be benefited (Resp. Maharyu 147). More often than not, the charity was left undefined, and the fine was then recovered from the debtor by the community treasurers in charge of collecting for general charities (cf. YD 256:1). But there are also instances of fines being imposed for named charities, such as the study of the Torah (Resp. Rosh 13:4); the maintenance of Torah students (haspakah; Takkanot Medinat Mehrin, 46 (no. 139), 47 (no. 140)); the poor of Jerusalem or of the Holy Land (ibid. 39, no. 117). A frequent destination of part of all fines recovered was the governor or government of the city or country in which the Jewish court was sitting. In many such cities or countries, the privilege of internal jurisdiction was granted to Jewish courts only on condition that part of all fines recovered would be paid into the official treasury (ibid. 39, no. 117; Resp. Rosh, 21:8–9). Whatever the destination was, however, it was the strict rule that the courts or judges were not allowed to appropriate any fines to themselves (Assaf. loc. cit., p. 43); and there are detailed provisions for accounts to be kept and published of the disposition of all fines imposed, recovered, and distributed (Takkanot Medinat Mehrin, 24, no. 74). Whether or not the fine was paid to the injured person, the court always insisted that the defendant did everything in his power to pacify him-even to the extent of proclaiming a *ḥerem on him until he did so (Rif, Halakhot BK 187; Piskei ha-Rosh BK 2; Yad, Sanhedrin 5:17; Sha'arei Ẓedek 4:1,19). This rule applied even where the fine was irrecoverable owing to lack of jurisdiction; and where a man had possessed himself of a fine he could not recover in the courts, he was held entitled to retain it (BK 15b).

Bibliography:

M.W. Rapaport, Der Talmud und sein Recht (1912), 2–69 (third pagination); S. Assaf, Ha-Onshin Aḥarei Ḥatimatha-Talmud (1922), index, S.V. Kenasot Mamon: Gulak, Yesodei, 2 (1922), 15–17; J.M. Ginzburg, Mishpatim le-Yisrael (1956), 378 (index), S.V. Dinei Kenasot; ET, 1 (19513), 168–72; 2 (1949), 168–74; 3 (1951), 49–50, 162; 7 (1956), 376–82; 10 (1961), 98, 106f.; 12 (1967), 733f., 740; Finkelstein, Middle Ages, index S.V. Fines. MEDIEVAL AND MODERN TIMES: S. Assaf, op. cit., 17ff.; Neuman, Spain, 1 (1942), 126–9; Baer, Spain, passim; Halpern, Pinkas, passim; idem, Takkanot Medinat Mehrin (1952), passim; Baron, Community, index; J. Marcus, Communal Sick-Care in the German Ghetto (1947), index; I. Levitats, Jewish Community in Russia (1943), index; M. Wischnitzer, Historyof Jewish Crafts and Guilds (1965), 215, 271. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:8, 10, 20, 26, 30, 65, 97, 132, 332, 338, 387, 423, 496, 498, 504, 523, 540, 548, 558, 566, 567, 570, 579, 581, 592f., 599, 608, 610f., 621ff., 637, 646, 648, 657, 659, 665f., 693ff., 702, 704, 720; 2:885; M. Elon, Jewish Law (1994), 1:8, 9, 21, 28, 33, 72f., 109, 148f., 398, 406, 469; 2:516, 533, 604, 607, 614, 637, 658, 667, 679, 688,689, 700, 713, 714, 732, 741, 752, 754f., 768, 789, 800, 802, 813, 815, 822, 846, 856ff., 869, 888; 3:1079; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:334–35; B. Lifshitz and E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah, 321; R. Erusi, "Dinei Kenasot be-Vatei ha-Din le-Mamonot ba-Zeman ha-Zeh," in: Teḥumin 25 (2005) 233.