CONFISCATION, EXPROPRIATION, FORFEITURE

Confiscation is mentioned once in the Bible as a quasi-criminal sanction against disobedience to lawful orders (Ezra 10:8). Relying on this precedent, the rule was enunciated that courts are empowered to expropriate (hefker bet din; Git. 36b, Yev. 89b); and the power of the courts to impose pecuniary penalties – apart from fines, the amounts of which are already prescribed (e.g., Ex. 21:32; Deut. 22: 19, 29) – is derived from this general power of expropriation (mk 16a). This power was regarded as necessary, as the authority given to Ezra and his courts to impose pecuniary punishments (Ezra 7:26 – rendered in the av as punishment of "confiscation of goods") is presumed to have derived from Persian and not from Jewish law. Thus, even legally prescribed penalties were already increased by talmudic courts in severe cases, e.g., for recidivists (bk 96b); and in post-talmudic times ample use was made of this expropriatory power in the judicial campaign against lawlessness and violence (Maim. Yad, Sanhedrin 24:6; Ḥm 2). A talmudic source seems to indicate that semi-confiscatory powers for punitive purposes could also be vested in non-judicial authorities, e.g., a Temple inspector who found a guard asleep on duty was authorized to burn his clothing (Mid. 1:2), an authority said to be derived from the expropriatory powers of the courts (Piskei ha-Rosh, ibid.). In later times it was held by some scholars that the townsfolk (benei ha-ir) or the seven notables (shivah tuvei ha-ir), exercising both legislative and quasi-judicial functions in the prevention of and fight against crime, were by virtue of this expropriatory power also customarily authorized to impose pecuniary sanctions (RemaḤm 2).

Judicial expropriations were not, however, confined to criminal or quasi-criminal sanctions. They were also used for public utility purposes on the authority of Joshua and the elders of his time who redistributed the land among the tribes and families (Josh. 19:51). Such redistribution presupposed not only the power to divest an owner of some of his property, but also the power to vest that property in someone else – while punitive confiscations need not, according to some scholars, result in the confiscated property being vested in anybody else (Shitah Mekubbeẓetbk 100a). But while punitive confiscation presupposes some guilt or blameworthiness on the part of the owner (Tos. to Yev. 90a), public utility expropriations could also lawfully deprive innocent persons of their property (Resp. Akiva Eger 105). In the perspective of legal history, the most important use made of the expropriatory powers of the court was quasi-legislative. This use is best illustrated by some examples: thus, the legal rule that a lost chattel is to be returned to the claimant although he cannot formally prove his ownership, provided he satisfies the finder as to his bona fides by means of tokens (distinctive marks, simanim), was explained as an expropriation by the court of any rights in the chattel in favor of the claimant (bm 27b and Rashi ibid.). Also, a disposition by a son of his father's property before the latter's death, in payment of his father's debts or other responsibilities, was validated as an authorized disposition of money expropriated by the court for these purposes (bm 16a). Dispositions by infants of property in their hands were – if they were to their benefit – validated as authorized dispositions of expropriated property vested in the court, where the infants were legally incapable of disposing of their own property (Git. 59a and Tos. to Git. 40b s.v. וכתב). Hillel's famous law reform, the Prosbul, which made all debts recoverable notwithstanding their remission under biblical law (Deut. 15:2), was later sought to be explained and justified by the expropriatory powers of the court (Git. 36–37). In all these (and many similar) cases, the expropriatory powers of the court were invoked in theory only, by way of legal fiction, and mostly ex post facto: the rules were not established by their actual exercise by any given court but were explained and justified by the mere existence of those powers, which, had they actually been exercised in any particular case calling for the application of the rules, could have brought about the desired result (see also *takkanot).

These powers were also used to do justice in particular and individual cases: for instance, by purporting to expropriate an amount of money from a defendant and vesting it in a plaintiff, the court exercised a jurisdiction based on law, even where there was no law under which the plaintiff could have claimed that money (cf. Maim. Yad, Sanhedrin 24:6). Or, marriages lawfully contracted which could not (but should) otherwise be dissolved – as, e.g., the marriage of a girl abducted from under her canopy (see *Abduction) – were invalidated by retroactively expropriating from the bridegroom the money (the ring) with which he had married the bride (Yev. 110a, cf. Yev. 90b). Similarly, it was sought to validate the will of a wife, if she bequeathed her estate to a third party, by retroactively expropriating the husband's right to inherit from his wife (Resp. Asheri 55:10). A judgment already enforced, though founded on an error, was upheld because of the special circumstances of that case, on the strength of the expropriatory powers of the court (Tummim 25; Milḥamot Yev. 37b). The same consideration may have led the court to leave a widow in undisturbed possession of her husband's estate, which she had unlawfully but in good faith appropriated to herself (tj, Ket. 9:3, 33a and Kid. 1:3, 159d).

Finally, there are expropriatory powers vested in the king (or other head of the state; cf. Ezek. 45:8 and 46:18). According to biblical law, these powers appear to have been unlimited (cf. Eccles. 2:4 and 8; i Sam. 8:14), whereas under talmudic law they were limited to the king's military and road-building requirements, although the king alone decided what these requirements were (Sanh. 2:4). The story that Ahab could not buy Naboth's vineyard without the owner's consent and had to have recourse to unlawful means to attain it (i Kings 21) is explained by some scholars to the effect that since he could not purchase the land, as was his desire, in view of the refusal of Naboth to sell, he exercised his legal right of confiscation (Haggahot Maimoniyyot to Melakhim 4:6). Nevertheless, the claim of the king to the vineyard after Naboth's death could not be based on the royal right to forfeiture of lands and goods of persons executed by royal decree, because Naboth was executed by judicial process and as such his lawful heirs inherited (Sanh. 48b). The claim of Ahab is therefore made to depend on the fact that as a nephew of Naboth, he was in fact such an heir (Tosef., Sanh. 4:6). The law was eventually codified to the effect that the king was not allowed to confiscate money or goods (and, a fortiori, lands) without paying compensation for them, and if he did confiscate without this, it was sheer plunder (Maim. Yad, Melakhim 3:8); for everything that he expropriated he had to pay fair compensation (ibid., 4:3, 6).

In modern legal terminology, "confiscation" and "forfeiture" usually indicate expropriations without compensation (such as smuggled goods), while the term "expropriation" is normally reserved for acquisitions for public purposes against payment of compensation.

bibliography:

S. Assaf, Ha-Onshin Aharei Hatimat ha-Talmud (1922), nos. 141, 150, 157, 163; S. Zeitlin, in: jqr, 39 (1948/49), 6f.; et, 3 (1951), 173; 8 (1957), 343; 10 (1961), 95–110; J.M. Ginzberg, Mishpatim le-Yisrael (1956), 39f., 85–87; H. Cohn, in: Essays in Jurisprudence in Honor of Roscoe Pound (1962), 65–68, 77f.; idem, in: Divrei ha-Congress ha-Olami ha-Revi'i le-Madda'ei ha-Yahadut, 1 (1967), 185–8, English abstract 267.

[Haim Hermann Cohn]