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).

See also *Extraordinary Remedies.

[Haim Hermann Cohn]

Middle Ages and Early Modern Times

The power to fine – an important feature of Jewish *autonomy – was exercised by the *Councils of the Lands and *synods, the local *community, the law court, or the *ḥevrah. According to talmudic law (i.e., before the fifth century when *ordination ceased), only a court of fully ordained judges was empowered to impose the fines prescribed for bodily injury. However, the principle was gradually established that the Jewish community had the right to decide fines and confiscate property as a deterrent or punishment. The proceeds of these monetary penalties went variously to *charity, the kahal heads, the court, the association, the guild, or the injured party, several of these very often sharing the sum. Fines were frequently imposed with other sanctions, or as a consequence of them, for instance, as the corollary of a *ḥerem.

To prevent self-seeking by judges, the Lithuanian Council (see *Council of the Lands) adopted a resolution in 1662 that "no rabbi shall share in any way in the revenue from amercements he will impose himself or jointly with the leaders of the community." In some countries a portion or all of the fines were set aside for the royal or seigniorial treasury, either by demand or in order to act as a powerful impetus to their enforcement. From the 10th or 11th century there is reference to fines imposed by a *guild; it is stated: "each and every one of us [the injured members] will be free to give this fine to any ruler or official of his choice" (*Judah b. Barzillai al-Bargeloni, Sefer ha-Shetarot, no. 57). In the 13th century a synod of the Rhine communities decided; "Whoever transgresses any of these *takkanot shall be under the excommunication of all the communities, and if he remains obdurate for a month, his property may be denounced to the king" (Finkelstein, Middle Ages, 249). The minute books of the many organs of self-government abound in statutory and penal fines of all kinds, imposed for various reasons, serious or petty. In 1563 the Lithuanian Council threatened the heads of the communities with heavy fines for the benefit of the poor of Ereẓ Israel, since they had failed to make proper collections for this fund. The Moravian Council in 1650 set an amount to be paid into the regional treasury by anyone whose appointment to a community office was secured on the order of the feudal lord. Fines imposed by Sephardi communities in the West on members refusing to undertake communal duties led in early modern time to desertion from the community, as in the case of Isaac *D'Israeli. The ḥevrot were particularly prone to controlling their members through a system of statutory fines for violation of the rules – a Mishnah ḥevrah in a Russian township adopted an ordinance that "if a member is in town and does not report to a class, he is to be fined one Polish grosz per day, unless he has an adequate reason." Guilds were equally strict with their members and exacted money payments for charity for violation of rules.

[Isaac Levitats]

Fines during the Period When There Is No Ordained Bet Din (Semikhah)

The fines established as punishments for various offenses detailed above were imposed by virtue of the authority invested in the court (bet din) or in community leaders to impose monetary punishments, whether by expropriation of an individual's assets on behalf of the community or by requiring payment of a fine to the injured party. By contrast, as stated above, these courts were not authorized to impose the fines stipulated by the Torah or those established in talmudic or geonic times. This point requires further detail.

The rule cited in the Babylonian Talmud is that cases involving the imposition of fines may not be adjudicated by anyone other than judges who have been ordained as judges (semikhah) (see *Bet Din). During the period of the Babylonian Talmud, there were still some remaining sages in the Land of Israel who had received semikhah, whereas in Babylonia they no longer received it. Thus, in cases involving the requirement to impose a fine to be paid for damages caused by one party to another person, such as cases of "half-damages" (see torts), the courts in Babylonia could not adjudicate or impose the appropriate fine. There were two solutions to this problem. One was for the injured party to bring suit against the tortfeasor in Ereẓ Israel and, if the defendant failed to appear in court, a ban would be imposed on him (see *ḥerem). The second solution was for the injured party to seize some of the tortfeasor's assets, and the court would refrain from confiscating them from him (BK 15b). The significance of the seizure remedy is based on a dispute among decisors and commentators in the post-Geonic era. According to Rabbenu *Tam (Tos. to BK 15b), the injured party may only seize the particular asset of the tortfeasor used by him to inflict the injury, but if he were to seize any other of the tortfeasor's assets, the court should wrest it from him. Rabbenu *Asher, however, was of the opinion that the injured party could seize any of the tortfeasor's assets, and if the property seized was of greater value than his losses, the court, after adjudication, could require the injured party to forfeit the additional amount. The rationale for this is that the seizure itself is a rabbinic enactment; accordingly, judicial deliberation regarding the value of seized property vis-à-vis the value of the damage does not constitute adjudication of a fine, but adjudication of a seizure under the terms of a *takkanah. The Rif goes even further. In his opinion, the court may adjudicate the original suit for damages and assess the value of the damage, without any requirement to wait until after the aggrieved party's seizure of the other's property.

In practice, during the post-talmudic period, when there were no judges with semikhah even in the Land of Israel, the geonim enacted that, even though fines could not be collected in Babylonia, a tortfeasor could be subjected to a ban (see *ḥerem) until he settled accounts with his victim, whether by payment or by agreement, or until he repaid the value of the damage (Rif on BK 30b). The rationale is that "a sinner should not be rewarded, nor damage-doing rampant among Israel" (Piskei ha-Rosh, BK 8.3, in the name of Rav Natronai Gaon).

*Maimonides ruled that the imposition of a ban is not only in order to exert pressure to pay for damages, but also to encourage the tortfeasor to go with the injured party to Ereẓ Israel for adjudication, as specified in the above-cited talmudic passage (Yad, Sanhedrin 5.16). In Maimonides' day, unlike the talmudic period, there were no longer ordained judges. Consequently, there are those who explained Maimonides' statement to mean that because, in his opinion, the semikhah of judges could theoretically be reinstituted at any ordination time, this is sufficient to argue that a court is empowered to order the banning of the tortfeasor should he refuse to litigate the case in court, thereby pressuring him to indemnify the injured party (Bet Yosef, Tur, ḤM, 295). By contrast, Rabbi Eliezer Waldenberg, one of the outstanding decisors of our times, rules on the basis of Maimonides' statement that, even in our day, courts in the Land of Israel may adjudicate cases in which the punishment is a fine, despite semikhah having fallen into desuetude (Resp. Ẓiẓ Eliezer 15.69).

Rabbi Joseph *Caro, in Shulhan Arukh ḤM. 420.41), provides a detailed list of standardized payments for bodily damages, all of which are fines. Further on, he cites the monetary values of those payments in the currency of his time. It may be inferred from this that, even though in his opinion one cannot adjudicate cases requiring the payment of fines in the absence of judges with semikhah in Ereẓ Israel, a court is not entitled to refrain from adjudicating cases in which questions of damage arise for which recourse is the imposition of a fine, but must instead impose a ban until the tortfeasor pays the injured party the appropriate amount, or allow the seizure of the former's property by the injured party (Sh. Ar, ḤM, 1.5).

[Menachem Elon (2nd ed.)]

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.


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