Confiscation And Forfeiture.

By: Marcus Jastrow , S. Mendelsohn

Appropriation of private property to the public use or treasury. Confiscation of the property of peaceable aliens in Palestine who belonged to a nation at war with Israel, is not mentioned in either Biblical or rabbinical literature. Biblical history, on the contrary, records instances where such people as chose to remain in Israel's midst were left unmolested in possession of their estates, paying only the usual tribute to the country (Josh. xvii. 13; Judges i. 28 et seq. ). Nor is confiscation, in the sense of appropriation to the use of the state as a judicial punishment for the violation of law, known in the history of Israel's first commonwealth. The case of Ahab and Naboth (I Kings xxi.; see Ahab ), which some cite in support of the contrary view (Michaelis, "Mosaisches Recht," i. 261; Mayer, "Rechte der Israeliten," i. 218, iii. 132),is not considered as a criterion in rabbinical law. Tradition asserts that Ahab was his victim's cousin, the son of the brother of Naboth's father; and in the absence of nearer agnates, he was Naboth's legal heir (Tosef., Sanh. iv. 6; Sanh. 48b). Such confiscation came into vogue in the early days of the second commonwealth, and was an importation from Persia. In the rescript which Artaxerxes gave to Ezra (Ezra vii. 12-26), and the authenticity of which is proved by E. Meyer ("Die Entstchung des Judenthums," pp. 60 et seq. ), "confiscation of goods" is decreed as one of the punishments of those who failed to "do the law of . . . God and the law of the king." This decree was adopted by Ezra; and in a proclamation subsequently issued by him he threatened, "Whosoever would not come within three days, according to the counsel of the princes and the elders, all his substance should be forfeited" (Ezra x. 8).

There is, however, a controversy in the Talmud as to the right of confiscation of the property of executed criminals, and the decision is a compromise: "The property of criminals executed by order of the king [for treason] lapses to the king; but the property of those executed by a verdict of a regular court [for other crimes] descends to their legal heirs" (Tosef., l.c. ; Sanh. l.c. ; Maimonides, " Yad," Ebel, i. 9; See Capital Punishment ). Private property may be seized for the personal needs and conveniences of the king, or for the advancement of public safety; but for all such property the state must remunerate the owner (Sifre, Deut. 161; Sanh. i. 4; B. Ḳ. 60b; "Yad," Melakim, iv. 3 et seq. ). This royal prerogative was greatly abused by some kings, particularly in fulfilling literally Samuel's prediction (I Sam. viii. 14): "He will take your fields, and your vineyards, and your olive-yards, even the best of them, and give them to his servants" (compare ib. xxii. 7; Ezek. xlv. 7, 8; xlvi. 16-18), which probably suggested the comparatively late homiletic remark, "As soon as one is promoted to leadership in Israel he becomes rich" (Yoma 22b; Yalk., Sam. 119). Rabbinical law, therefore, restricts this right of confiscation to the actual needs of the king and his court and army (Sifre, Deut. 158 et seq, ; Sanh. ii. 4; "Yad," l.c. ).

2. Forfeiture: A penalty for misconduct, crime, or breach of duty. Pentateuchal and rabbinical laws prescribe specified amounts as forfeitures for certain crimes or misdemeanors (Ex. xxi. 32; B. Ḳ. 43a; Deut. xxii. 19; Ket. 46a; Deut. xxii. 29; Ket. 33a). These will be found detailed under Damage , Fines and Forfeiture , or in the articles treating of the respective causes.

Among the purely rabbinical enactments, one prescribes the forfeiture of rights where, through them, injury may accrue to innocent parties. For example: Where a bond bears a date antecedent to the day of actual execution, its holder forfeits the right of levying on the debtor's property, if otherwise encumbered, even where that encumbrance dates posteriorly to the delivery of the bond (Sheb. x. 5; B. M. 72a; "Yad," Malveh, xxiii. 1; Ḥoshen Mishpaṭ, 43, 7). Also, where the amount denominated in a bond includes usury, and it can not be ascertained how much of that amount is principal, the creditor forfeits the principal as well as the usury (B. M. 72a; Yorch De'ah, 161, 11; Ḥoshen Mishpaṭ 52, 1). A forfeiture of ten gold pieces ("zehubim") is also prescribed for depriving a person of the privilege of discharging a religious duty, when that person is fit and willing to discharge the duty himself (B. Ḳ. 91b; "Yad," Hobel, vii. 14; Ḥoshen Mishpaṭ, 382, 1).