Siman 264

One who lost a lost object and encountered his own lost object and the lost object of his fellow, if he is able to return both of them, he is obligated to return them. And if not, he shall return his own, for his own lost object takes precedence even over the lost object of his father or his teacher, as we derive from "save that there shall be no needy among you," as if it says: be careful to guard your own so that you do not come to poverty. And even if his fellow desires to pay him for his lost object provided that he rescues his fellow's, and even if his fellow himself is unable to rescue it, nevertheless he is not obligated by the law, because he can say, "I desire my own objects" [Sma]. And nevertheless, a person should act beyond the letter of the law and not be exacting and say "mine takes precedence" except in a case of evident loss. And therefore, even though every person can find a pretext and say that he is not obligated to return it with the claim that through this damage will come to him in his business—for it is not specifically his lost object that takes precedence, as the same applies to any loss that would come to him through this, that he is exempt from returning it, and it is within a person's power to exempt himself from every kindness to his fellow with this claim that his own takes precedence—a person should not do so. And our sages, of blessed memory, said that a person who is so exacting casts off from himself the yoke of gemilut chasadim, and in the end he will come to need other people. And they derived regarding this verse of "there shall be no needy among you" that anyone who fulfills this in himself, in the end he comes to this. And if the lost object of his fellow is ready to be returned and his own lost object is not found for the time being, but rather he says "I will go and search for it, perhaps I will find it," it appears that by the law he is obligated to return the lost object of his fellow. And the same applies to all matters of kindness that are within a person's power to do for his fellow, he is obligated to do by the law.

If he encountered his father's lost object and his teacher's lost object, if his father is equal in wisdom to his teacher, his father's lost object takes precedence even if his teacher is his primary teacher. And if not, his teacher's takes precedence if he is his primary teacher from whom he learned the majority of his Torah wisdom, for his father brings him into the life of this world and his teacher brings him into the life of the World to Come. And specifically when he learned with him for free, but if his father paid on his behalf so that he would learn with him, his father takes precedence in everything [Sma]. And even if another person paid the fee to his teacher on his behalf, that person takes precedence over his teacher regarding a lost object [Shach]. And similarly, his father takes precedence over his teacher even if the one providing the fee is not his father, for since his teacher does not teach him for free, his superiority over his father is nullified [it appears to me]. And see Yoreh Deah siman 242.

If one abandoned his own lost object and returned the lost object of his fellow, he has only the appropriate wage. How so? If a river swept away his donkey and the donkey of his fellow—his own worth a maneh and his fellow's worth two hundred—and he abandoned his own and rescued that of his fellow, he has only the appropriate wage according to what another would take for such labor. And even though one is obligated to return a lost object for free, as will be explained in siman 265, nevertheless, it is explained there that if he is engaged in work, he does not need to lose out for the sake of the lost object, and here he loses his donkey through this. And if you say: if so, let him take the full value of his donkey? For certainly if the owner of the lost object is not here, he must pay him for his donkey in full, as the Tur wrote. And that which we said, that he has only the appropriate wage, this is when the owners are here, for he should have stipulated with him that he pay him for his donkey; since he did not stipulate, he is the one who caused himself the loss, and he pays him only according to the labor that he would have paid another. And furthermore, the owners can say: "Had you told me so, I would have hired another person to rescue it." Therefore, if he actually said to the owners, "I will rescue yours and you give the value of mine," and the owners agreed to his words, he is liable to give him the value of his own; for if it were not their will, they should have told him that they would not give him so, and since they were silent, his mind relied on it. And so too, if three people were there and he stipulated so in their presence, he also collects the full value of his donkey; and even if the owners were there and he stipulated with the three people, the law is also thus [Sma], for if it were not his will, he should have protested. And some say that if the owners are there, a stipulation is only effective with the owners, and that which a stipulation in the presence of three people is effective is when the owners are not there. And even though it was explained that when the owners are not there he does not need a stipulation at all, this is when there are not three people there; but when there are three people who are fit to be a beit din, he does not collect without a stipulation [Taz]. And all these matters are from the enactment of the sages [see the Rif, his version, and in the Nimukei Yosef at the end of the second chapter of Bava Metzia].

And all this is specifically when the owners are able to rescue through exertion, for if they are not able to rescue at all, the rescuer may take the entire donkey for himself, as he acquires it from that which is ownerless; for it is like one who rescues from the mouth of a lion or a bear, or from the tide of the sea, as was explained in siman 259. And likewise, specifically where if he had not rescued it, the damage would have been certain; but if the damage is not certain, he does not pay him at all, for he is like one who drives a lion away from his fellow's property, who does not need to be paid [Tosafot Bava Kamma 58a]. However, if the owners are there and they stipulated with him that he should pay him, he is obligated to pay even without the damage being certain [it appears to me].

When they stipulated with the owners or with a beit din that he must be paid for all his loss, the sages, of blessed memory, said [Bava Kamma 116a] that even if the donkey of the rescuer ascended on its own, nevertheless, he acquired that which he stipulated with him to pay him the value of his donkey. For from the moment he went down to rescue that of his fellow and despaired of his own, his fellow became liable to him according to the stipulation, and that his donkey ascended was from Heaven because they had mercy on him, and it is like a found object. Our teacher, the Rema, wrote that nevertheless, the donkey is hefker and whoever is first to it acquires it, for from the moment he stipulated with his fellow, he despaired of his own; therefore, if another was first and acquired it, he has acquired it. There are those who disagree on this [Shach]. According to what I wrote in siman 262, section 8, that yei'ush is not similar to hefker, and regarding yei'ush, if the owners saw it after the yei'ush before it came into the hand of another, he himself has acquired it, one can reconcile the two opinions: that if another acquired it before the owners saw it, he has acquired it, and if not, he has not acquired it. And so ruled one of the great authorities.

When he made a condition with the owner and said to him, "I will rescue yours and you give me the value of mine," and he went down to rescue and exerted effort but did not rescue, he only has his appropriate wage according to his effort. For we estimate that this was the intention: that if he exerts effort and does not rescue, he will not give him according to the condition, but he shall give the wage for his effort. And if he specified, "Whether I rescue or whether I do not rescue, you shall give me the value of mine," his condition is valid. And likewise, if he specified, "If I do not rescue, you shall not give me anything," his condition is valid. But since he spoke generally, "I will rescue yours and you give me the value of mine," for it is possible to interpret that he says thus: "I will exert effort in its rescue," and he did not guarantee him that he would rescue it, and according to this he must always pay him the value of his donkey; and it is possible to interpret that it is specifically "when I rescue," and "when I do not rescue you shall not give me anything." Therefore the sages, of blessed memory, said that we estimate their intent, that their intention is for actual rescue. However, if he does not rescue, he shall pay him for his effort [and the inquiry of Rav and the response of Rabbi in Bava Kamma 116a is well-settled; and examine it closely]. And if he rescued it from the river and it died on the dry land, or it was lost before it came into the hand of the owner, he shall pay him for his donkey according to the condition, for he has completely performed his mission [ibid.].

If he did not make a condition with the owners but rather went down on his own to rescue and did not rescue, he receives nothing, since he did not benefit him at all. Furthermore, even if he rescued it and it died or was lost before it reached the hand of the owners, he gives him nothing, for behold, he is only liable to him because of the benefit he performed for him, and since the benefit did not reach him, he gives him nothing [it appears to me]. And so too regarding any benefit that a person performs for his fellow without his fellow's request, even though he toiled and suffered a loss thereby, since the benefit did not reach his fellow, he does not need to give him anything. But if benefit reached his fellow through his action, he must pay him according to what is appropriate to pay for such a benefit. And so wrote our teacher, the Rema, that any person who performs an action or a benefit for his fellow, he cannot say to him, "You did it for me for free since I did not command you," but rather he must give him his wage. Thus far his words. And see what I wrote in siman 375. And specifically when he performs a benefit for him, but if he only rescued him from a loss, it is like one who chases away a lion and he is exempt [Netivot HaMishpat] if the loss is not certain, as I wrote in section 4.

Just as the law is regarding one who descended to rescue and did not rescue, so too is the law regarding one who descended to rescue and the donkey was rescued and ascended on its own. However, some say that this is only regarding a case where he did not stipulate with him when he acted on his own; even though he toiled and lost because of this, nevertheless, since the benefit did not reach his fellow through him, he does not need to give him anything. But if he stipulated with him that he should rescue his donkey and he would pay him the value of his own donkey, and he descended to rescue and the donkey ascended on its own, he must pay him for his donkey according to the stipulation. For since he stipulated with him and the ultimate intent was to rescue his donkey, and this one toiled and the donkey was rescued, even though it was not rescued through his toil, he must pay the full amount [Maharshal]. And there are those who disagree on this, that even in such a case he does not need to pay him except for the wages of his toil, since the benefit did not arrive through him [Maharam Padua]. And the proof for this is from what will be explained in siman 334 regarding the wages of laborers hired to bring water to his field and rain fell during the night, that he does not need to give their wages. And the first opinion holds that it is not comparable to there, for there they did not begin the work at all; but since he began the work, even though the benefit reached him not through the toil of this one, nevertheless he is obligated to give him his full wages. And there are those who decided in favor of the latter opinion; and see what I have written nearby.

From what has been explained, we have learned regarding Reuven who exerted himself to do a favor for Shimon and also incurred a loss through this, and the benefit came to Shimon from another side and not through Reuven: if he acted on his own without the request of Shimon, Shimon does not need to give him anything. And if he acted according to the request of Shimon, he must pay him for his exertion. And if he agreed with him to pay him for this favor much more than the wage for the exertion, and the benefit came to him from another side, there is a dispute among the poskim regarding this, whether he must pay him according to the agreement or only the wage for exertion. And we have already written that there are those who decided according to this opinion. However, from the words of our teacher, the Rema, it appears to me that he holds like the first opinion, since he wrote in section 4 regarding where he did not stipulate with him, and likewise if his donkey ascended on its own, but if he rescued it, the owner of the donkey cannot say "my donkey would have ascended without your rescue," but rather he is obligated to give him his wage. Thus far his words. We learn from this that where he stipulated with him, even in such a case, he would give him his full wage. And see what I wrote in section 11 for further proof of this.

If he saved his donkey not according to his request, the owner of the donkey cannot say, "My donkey would have ascended without your rescue," but rather he is obligated to give him his wage as is appropriate for such exertion, since the donkey was in a place of danger and the damage was certain, as I wrote in section 4. From this we have learned that one who does a favor for his fellow or saved him from certain damage—even though the owners could have saved it through great difficulty had they been there, as I wrote there—the one who was saved cannot say, "Even without you I would have been saved," or "Without you this favor would have reached me," but rather he must pay him his appropriate wage even though he acted on his own. However, if he clarifies before a beit din with reasoned arguments how the favor would have reached him without him, or how he would have been saved without him, it appears to me that he is exempt from paying him.

Our teacher, the Rema, wrote: Two who were imprisoned and one incurred expenses, if the second was released from the prison without the efforts of his fellow, he is not obligated to give his fellow anything since he did not make a condition with him. Thus far his words. And from this there is also proof to what I wrote in section 9, that he holds like the first opinion, that if he made a condition he must pay even in such a case [and the Netivot HaMishpat was pressed according to his approach, see there].

And he wrote further that if he only escaped through the efforts of the other, he cannot say, "I did not need your efforts because my hand is strong," for even if the truth is with him, he is nevertheless obligated to give him according to what he benefited according to the view of the beit din, as mentioned above. Thus far his words. And he means that they should assess how much a person is willing to give so that he would not need to use force [Netivot HaMishpat]. And he wrote further that if it appears to the beit din that he did not need to increase expenditures for him, for even for himself alone he would have needed all these expenditures, he is not obligated to give him anything, for "this one benefits and this one does not lose." Thus far his words. And even if the other could not have been saved without these expenditures, since the rescuer did not incur the expenditures with the intent of both of them, but rather for his own rescue alone, he is exempt for this reason. Therefore, if he truly acted with the intent of both of them, he is obligated to give him half since it was impossible to be saved without this [ibid.]. And he wrote further that therefore there is one who ruled that one who rescued his books and the books of his fellow, if he did not need to increase expenditures for his fellow, his fellow is not obligated to pay him anything. And it appears to me specifically when he set out initially to rescue his own, but he also rescued his fellow's with him; but if he set out with the intent of both of them, he is obligated to give him what he benefited since he rescued his fellow's, and as I have written, as mentioned above. Thus far his words. And specifically that it was impossible to be saved without this, as I have written. And let it not be difficult for you: did we not write in section 10 that he cannot say, "My donkey would have ascended without your rescue," from which we see that we say so by default? And why do we require here to know with clarity that his fellow could not have been saved without this? It is different there, for the rescuer set out only for the rescue of his fellow, and in that case the one rescued must bring proof that he would have been rescued without him; but here, where he set out also for his own rescue, he therefore must bring proof [as mentioned above regarding these laws according to the words of the Netivot HaMishpat that we brought, and so it appears; and it is forced to say that this and that are one and the same, and delve into it].

If one was captured and another came and ransomed him with money, he must pay him up to his value and no more. This is not similar to one who chases away a lion, for he saved him from a loss of money since he was captured over monetary matters, and it is a definite damage. And if he was captured over matters of life and death, if he ransomed him even for more than his value, he must pay him [Shach].

Just as the law is regarding a river that swept away his donkey and the donkey of his fellow in section 3, so too is the law regarding two who were coming on the way, this one with a barrel of wine and that one with a jug of honey which is worth more than the wine, and the jug of honey cracked; before the honey spilled to the ground, this one poured out his wine and rescued the honey into it, he has nothing but his appropriate wage. And even though he performed an action with his hands to lose his wine, nevertheless, since the owner of the honey was there and he did not stipulate with him that he should pay him the value of his wine, he caused the loss to himself. And if he said to him, "I will rescue yours and you give me the value of mine," or if he stipulated thus before three, behold he is obligated to give it to him. And not only that, but the owner of the honey can compel the owner of the wine to pour out his wine and rescue his honey, since he pays him the value of his wine and the honey will be in the hand of the owner of the wine so that he will not need to sue him, and he has no loss; behold he is commanded in the returning of the lost object of his fellow. And there are those who disagree on this because he can say, "I desire my wine," and certainly regarding the donkeys in section 3, for he can certainly say thus, "My donkey is more pleasing to me," and furthermore, he can say that the rescue of your donkey is harder than my donkey, and perhaps I will not rescue yours and I will lose mine as well. Therefore, even according to the first opinion, it appears to me that he cannot compel him. But this is certain: that when the owner of the wine is not here, the owner of the honey may pour out the wine and rescue his honey and pay him the value of his wine, for according to the first opinion he can compel him to this, and it is an enactment of the sages thus, as I wrote in siman 274. And the latter opinion disagrees on this as I wrote there, but when the owner of the wine is not here, everyone agrees. And so too he may take the horse and donkey of his fellow without his knowledge and pay his wage in order to rescue his own.

And specifically when it is possible to save the honey through exertion, for when the honey is spilled onto the ground, it is hefker, and whoever saves it, saves it for himself. And some say that even if the honey has not yet spilled, but the jug was broken to such an extent that it would have spilled if this one had not saved it, it is hefker. And so too in any similar case, such as a fire that occurred in the city and the Jews fled from the city out of fear of the conflagration, and one person saved what he saved, it belongs to him, as he is like one who acquires from hefker. But if the owners were able to save it, even through exertion, he is only entitled to payment for his effort [Shach]. And it appears to me that in our country, where the government punishes one who takes the property of others at the time of a fire, in any event it does not belong to the one who saves it, for the owners do not despair of it, and they pay the one who saves it only for his effort. And so ruled the great later authorities, and there are daily occurrences where they judge in beit din to return to the owners everything they saved from the conflagration. And if the damage was not certain, they do not need to pay him even for his effort, as I wrote in section 4.

That which has been explained, that where he stipulated to pay him for all his damage he pays even if it is more than the fee for his labor, this is specifically when the rescuer incurred damage because he rescued that which belonged to his fellow. However, in a case where the rescuer has no damage, but rather he is a cruel person who has no desire to rescue the property of others unless they promise him much money, the owner does not need to pay him what he promised him beyond the value of the fee for his labor, for behold, he was coerced in his promise and the coercion was revealed to all. Therefore, at a time of fire, may the Merciful One save us, when the wagon drivers request much money for their rescue, the owners may promise them and afterwards they shall give them only the appropriate fee:

This is the wording of the Rambam, the Tur, and the Shulchan Aruch: If this one was coming with a jug of honey and that one was coming with empty pitchers, and the honey jug cracked, and the owner of the pitchers said to him, "I will not rescue this honey for you in my pitchers until you give me half of it, or a third of it, or such-and-such dinars," and the owner of the honey accepted it upon himself and said to him, "Yes," he has merely trifled with him and gives him only his appropriate wage, for he lost nothing. Similarly, one who fled from a prison of extortionists and a ferry was before him, and he said to him, "Cross me over and I will give you a dinar," and he crossed him over, he has only his appropriate wage. But if he was a fisherman and he said to him, "Cease your fishing and cross me over," he gives him everything that he stipulated with him. And so too anything similar to this. Thus far their words. And we have learned from this that even if the one who initiated was not the rescuer but the rescued one said to him, "I will give you such-and-such," he need not give him anything but the appropriate wage. And similarly, a yevamah who came to perform chalitzah and the yavam does not want to perform chalitzah unless she promises him much money, and she promised him and he performed chalitzah, she gives him nothing, as is written in Even HaEzer siman 169.

Our teacher, the Beit Yosef, wrote: In what case does this apply? When he has not given it to him; but if he gave it to him, in all these matters he cannot extract it from his hand. Thus far his words. And even if the one being rescued placed the money in the hand of a third party and said to him, "When he rescues, give it to him," and he rescued, the third party must give it to him [Mordechai, chapter HaCholetz]. But if he did not say this to the third party, but rather that this one did not want to rescue until he placed such and such money in the hand of a third party, and he did so, and the one being rescued said nothing at the time of its delivery to the hand of the third party, he need only give him according to his exertion [ibid.].

Our teacher, the Rema, wrote that some say that this rule, that he only has his wage, applies to a matter where it is not customary to pay a great deal; but in a matter where it is customary to pay a great deal, such as adjuring demons or medical treatment, he is obligated to give him everything he stipulated with him. Thus far his words. And specifically regarding the wage for telling the cure, for this is from the wisdom of the physician and he can say, "I will not sell my wisdom for less than this"; but if he requested from him for the medicinal drugs more than is proper, and because of his duress he was forced to promise him, he does not give him afterwards more than is proper, as is written in Yoreh Deah siman 336.

One who promised a shadchan or a broker more than his wage, our teacher, the Rema, wrote that he has only his wage even though he stipulated with him to give him much, and there are those who disagree on this [Yam Shel Shlomo, first chapter of Bava Kamma]. And some say that in a place where there is a fixed rate for shadchanut and brokerage, he has only the fixed price, and in a place where there is no fixed rate, he gives him what he promised him [Shach]. And in any place where he is not required to give him what he promised him, even if he gave him a mashkon for this, it is nothing, for where there is no maneh, there is no mashkon; and likewise if he gave a promissory note [Acharonim]. But if he accepted with a kinyan, he must fulfill it in shadchanut and brokerage and in any voluntary matter. However, in a mitzvah, such as in returning a lost object and in saving his body or his property, he does not need to fulfill it even with a kinyan [Netivot HaMishpat], unless he already gave it or delivered it to a third party. And in a business deal that is not common, when there was a broker and he promised him much, he must fulfill it according to the promise, for there is no fixed price in this. And likewise in all matters, even in common ones, if he swore or gave a tekiat kaf to fulfill what he promised as brokerage, he must fulfill it [Ktzot HaChoshen]. And if this promise was to a poor man, he must fulfill it in all matters even without an oath or tekiat kaf, for it becomes like a neder [ibid.].

Reuven promised Shimon to intercede on his behalf in a certain matter for free, and when the matter was nearly finished, Reuven retracted and wanted payment. Shimon had expenses in this matter and was forced to give him payment so that the matter would be finished. Afterwards, Reuven's money fell into Shimon's hand, and he wants to withhold it, saying that he took it from him unlawfully and "I was under duress." The law is with Reuven. It is not similar to what was written in siman 333 regarding the hiring of workers, where one may hire others against them or deceive them, for there he hired them for a wage and they were obligated to perform. But this one who acted for free is not obligated to finish the matter. And even though Shimon spent money on the matter because of him, he should have considered that perhaps Reuven would request payment and he should not have spent his money. And even though we are witnesses that he is now under duress in what he gave him, it is no worse than a seller, for even though he is under duress, he has no claim of duress, as written in siman 205, and the reason is because a benefit reached him, which is the money he took; and here too it is the same. Furthermore, it is not even duress, for Reuven did not force him to give him money, but rather he did not want to involve himself further in this, and Shimon was forced because of this to give him what he requested; it is like self-imposed duress, which is not considered duress [Maharik, shoresh 133]. All this is specifically when Reuven did not want to finish the matter and because of this he needed to give to him. But if Shimon no longer needed Reuven's effort and the matter would have finished on its own by Shimon, but Reuven wanted to ruin the matter if Shimon did not give him money, in this it is obvious that the law is with Shimon and he is obligated to return to him what he took from him, for this is complete robbery [it appears to me]. And so too, if he agreed with him for a wage of such and such, and in the middle of the matter Reuven did not want to involve himself further unless he added to it, his law is like a worker whom one may hire against or deceive.

An incident occurred involving Reuven who sued Shimon: "Give me ten gold pieces that you promised me because I would speak on your behalf to the official." Shimon replied: "True, I vowed to you, but due to the fear I felt that you would ruin the matter for me, I was forced to promise you, and there was no kinyan in this." The great authorities ruled that he is obligated to give it to him, for he is like a worker who does not require a kinyan. And regarding what he claims, that he did so due to fear—matters of the heart are not matters, since Shimon did not say before witnesses that he was doing so due to fear [Hagahot Mordechai, the first chapter of Kiddushin]. And if Shimon said so before witnesses, that out of his fear he is forced to promise him, he is exempt from paying him, unless Reuven did some favor for him in the matter, for then he must pay him as is appropriate to pay for such a favor according to the assessment of the experts.