Siman 272

It is written: "If you see the donkey of your enemy crouching under its burden, and you would refrain from helping him, you shall surely help him." This is the mitzvah of unloading, for it is a commandment from the Torah to help one's fellow to unload the burden from the animal when it is crouching under the burden. And in Parshat Ki Teitzei it is written: "You shall not see your brother's donkey or his ox fallen on the way and hide yourself from them; you shall surely lift them up with him." And this is the mitzvah of loading, for it is a commandment from the Torah to help one's fellow to load the burden that fell from the animal, as "fallen on the way" implies that the burden also fell on the way, and the Torah commanded to lift the burden onto the animal. And within unloading itself there is the mitzvah of loading when one unloads the entire burden from the donkey if it is impossible in any other way, such as if the burden was displaced from its position automatically, for afterward one must fulfill the mitzvah of loading. And so it appears from the Rambam in chapter 13 of Rotzeach; see there.

Therefore, one who encounters his fellow on the way and his animal is crouching under its burden, whether it had a burden appropriate for it or whether it had more than its burden, this is a positive commandment to unload it. We do not say that since he placed more than its burden upon it, he has brought the obligation upon himself; for even though this is the truth, nevertheless the Torah obligated him, for perhaps he did so inadvertently. Furthermore, there is the suffering of the animal, and regarding the suffering of living creatures, most poskim have agreed that it is a commandment from the Torah to save them from their suffering. If it was the way of the animal to always crouch under its burden, or if it always stands under its burden, he is not obligated in the commandment of unloading, as it is said, "crouching," meaning by happenstance, and not those that are habituated to this, for the owners are acting willfully by leading such a donkey. However, even though he is exempt by reason of the commandment of unloading, nevertheless, because of the suffering of living creatures, he is obligated in its unloading [the Gra].

When one assisted in unloading the burden, he should not leave him startled with his burden on the road; rather, he must stand it up with him and return and load his burden upon it, as it is said, "you shall surely stand it up with him." And if it was more than its burden, he should leave according to its burden, and for the rest of the burden the owners shall seek another donkey. And so too, one who encounters his fellow on the road whose burden fell from his donkey to the ground must assist him in loading the burden onto the animal. And if he left him and did not load, he has transgressed a negative commandment and nullified a positive commandment. And if there came to his hand the mitzvah of unloading and he did not unload and did not load, he has transgressed two positive commandments, of "you shall surely release" and "you shall surely stand it up," and nullified a negative commandment of "you shall not see." [And what the Rambam and the Shulchan Aruch wrote, "nullified a positive commandment," it must be said that their intention was to two positive commandments, and in the Sefer HaMitzvot he wrote regarding unloading a negative commandment because in most unloadings there is loading, and look closely.]

Our sages, of blessed memory, said [Bava Metzia 32a] that it is a commandment from the Torah to unload with him for free, just as with a lost object; but to load upon it, this is a commandment and he takes his wage like a laborer. For if the intention of the Torah was that loading is also for free, why would it need to write the commandment of unloading? Would we not know this through a kal vachomer from loading? If for loading, which does not involve tza'ar ba'alei chayim, he is obligated, all the more so for unloading, which involves tza'ar ba'alei chayim. Rather, they are certainly not comparable, for unloading is for free and loading is for a wage. However, even regarding unloading, if he suffers a loss through this, he must pay him, as has been written regarding a lost object in siman 265.

If he unloaded and reloaded and it fell again, he is obligated to unload and reload another time, even a hundred times, as it is said, "you shall surely release," "you shall surely raise." And "release" and "raise" are in the infinitive form and not a single action, which would imply one time. Therefore, when he has unloaded and reloaded, he must go with the owner of the donkey and assist him up to a parsa, and some say up to a mil. And why must he assist? Lest it break down, unless the owner of the burden says, "I do not need you." And for the assistance, he must pay him, and he is not obligated to do this for free.

From when is one obligated to unload and load with him? From the time he sees him with a close seeing that is like an encounter, for it is stated "if you see" and it is stated "if you encounter." And what is the measure of this? The sages measured that there should be between them 266 and two-thirds amot, which is one-seventh and a half of a mil. And if he was further from him than this, he is not bound to him. However, regarding unloading, it appears from the words of our teacher, the Rema, in section 9, that he is obligated because of tza'ar ba'alei chayim, and the practical difference is that he may receive payment for this.

If one found the animal of his fellow crouching, even though the owners are not with it, it is a mitzvah to unload from it and to load upon it, as it is said, "you shall surely release" and "you shall surely raise up," in any event, whether the owners are there or whether the owners are not there. If so, why was it said "with him"? Regarding the matter that if the owner of the animal was there and went and sat himself down and said to this one who encountered him, "Since the mitzvah is upon you, if you wish to unload, unload by yourself," behold, this one is exempt, as it is said, "with him." But if the owner of the animal was elderly or ill, one is obligated to unload and to load by himself, and he is not required to hire laborers since the Torah obligated this one who encountered him [Gemara]. And one should not say that the intent of the Torah was specifically "with him" and without the owners he would not be obligated at all, for behold, in unloading there is the suffering of living creatures, and automatically in loading it is also so [and it is well even according to Rabbi Shimon who holds that the Torah spoke according to the common manner of people, and see there 31b in Tosafot].

In our country, where they travel and transport a load by wagon and the horse is tied to the wagon, if one encountered a wagon that was sunk in mire and mud, he is obligated to assist the wagon driver to unload the load and to bring the wagon and the horse out to a dry place, and this is the mitzvah of unloading; and afterwards to load it properly. And so too, if the load fell from the wagon, he is obligated to assist in loading it, and this is the mitzvah of loading. And so too, if a wheel of the wagon broke, or the axle upon which the wheel turns, he is obligated to assist and to repair in whatever way possible, and to accompany him a little to see that it travels well, and this is also from the mitzvot of unloading and loading.

If he was a kohen and the animal is lying between graves, he is not permitted to contract tumah for the sake of unloading and loading. And similarly, if he was an elder, a Torah scholar, or a wealthy or respected person whose way is not to unload and load, since it is not according to his honor, he is exempt. And regarding this it is stated, "and you shall refrain from leaving it to him," meaning there are times when you shall refrain. And this is the rule: anything that, were it his own, he would unload and load, he is obligated also regarding his fellow's; and anything that, were it his own, he would not unload and load, he is exempt also regarding his fellow's, as I have written regarding a lost object in siman 263. And if he was a pious person and acts beyond the letter of the law, even if he were the great Nasi and saw his fellow's animal lying under its burden, even of straw or of reeds and wood and the like, he unloads and loads with him. And there are those who disagree on this, as I have written there, and in a case of tza'ar ba'alei chayim, one should be stringent [see Sma].

The Rambam and the Shulchan Aruch wrote: Regarding the animal of a star-worshiper and the burden of an Israelite, if the star-worshiper was driving his animal, he is not required to attend to it; but if not, he is obligated to unload and load because of the distress of the Israelite. And likewise, if the animal belonged to an Israelite and the burden belonged to a star-worshiper, he is obligated to unload and load because of the distress of the Israelite. But regarding the animal of a star-worshiper and his burden, he is not obligated to attend to it except because of enmity. Thus far their words. Our teacher, the Rema, wrote that there are those who say that for unloading he is obligated even if the star-worshiper is not there because of the distress of living creatures, which is a Torah commandment. And likewise, in any place where he is exempt from unloading, nevertheless because of the distress of living creatures he is indeed obligated, and the practical difference is that he may receive payment. Thus far his words. And there are those who wrote that the opinion of the Rambam is also such, and he exempts regarding loading but not regarding unloading; and that which he concludes, "he is obligated to unload and load," means to say that just as he is obligated in unloading, so too he is obligated in loading, and enmity applies in every case.

The enemy mentioned in the Torah is not from the idolaters but rather from Israel. And how could he have an enemy when the verse says, "You shall not hate your brother in your heart"? The sages said: For example, if he saw him alone committing a transgression and warned him, and he did not repent, it is a mitzvah to hate him until he performs teshuvah and returns from his wickedness. And even though he has not yet performed teshuvah, if he found him distressed by his burden, it is a mitzvah to load and unload with him, and he should not leave him, lest he tarry because of his property and come into danger. For the Torah is concerned for the lives of Israel, whether wicked or righteous, since they are joined to Hashem and believe in the fundamental principle of the religion, as it is said: "Say to them, as I live, says the Lord God, I do not desire the death of the wicked, but that the wicked turn from his way and live" [the Rambam there]. And even though regarding loading "enemy" is not written, nevertheless, since regarding unloading the Torah equated the enemy to the friend, presumably it is also so regarding loading [Kesef Mishneh there].

One who encounters two, one crouching under its burden and one where the burden was unloaded and needs to be loaded upon it, it is a mitzvah to unload first because of tza'ar ba'alei chayim, and afterward he loads the second. In what case does this apply? When both were friends of his or the opposite; but if one was an enemy and one a friend, it is a mitzvah to load with the enemy first in order to subdue his evil inclination. And specifically regarding a general enemy, and not one who committed a transgression, and this enemy violates "do not hate"; but if he committed a transgression and did not repent, such that it is a mitzvah to hate him, one does not need to load with him first. And there are those who say that even in such a case, the mitzvah is with the enemy first [Bach]. And from the Rambam there it is explicitly implied like the first opinion, since he wrote after this law: The enemy mentioned in the Torah refers to one who committed a transgression, implying that prior to this he is dealing with a literal enemy [and so it appears from the Gra; and therefore, even though in Pesachim 113b Tosafot wrote like the second opinion, yet in Bava Metzia 32b and the Nimukei Yosef there they wrote like the first opinion, and one must wonder about the Rosh and the Tur who omitted that of Pesachim, and likewise the Rif; and it is settled because they hold tza'ar ba'alei chayim is from the Torah, as it is possible to establish it regarding a gentile enemy].

When a group is traveling on the road, each with his donkey, and all of them are laden or all of them are unladen, and the legs of one donkey become unsteady due to a blow such that it cannot travel with such speed, the group is not permitted to precede him and pass him by and leave him alone. But if it fell completely and cannot travel at all, they are permitted to pass him by, for they are not required to delay for him excessively; only if the delay is slight are they obligated to wait for him. And so too when wagon owners travel together with a load or without a load, and the wagon of one breaks and requires repair, they shall wait for him [Sma] and they must assist him in its repair. However, when this one travels with a load and this one without a load, presumably they are not traveling together, as this one travels with speed and this one with heaviness, they do not need to wait for him unless he needs them to assist him in its repair, and it is like unloading and loading as I wrote in section 8.

Two camels or two donkeys or two wagons that were walking side by side and came to a place where the path is narrow for both of them, and of necessity one must pass first, the sages said [Sanhedrin 32b] that if one is laden with a load and on the other a person is riding, they move aside the one being ridden for the one that is laden, and the laden one shall pass first. And all the more so if one is laden and one is empty, they move aside the empty one for the one that is laden. And if one is empty and one is being ridden, they give precedence to the one being ridden. And if both were being ridden, or both were laden, or both were empty, they make a compromise between them or they shall cast lots. And similarly, two ships that encountered one another, where this one was going from the east and this one from the west, and they encountered one another in one place where if they both pass together both will sink, but if one after the other both will pass; and similarly, two camels ascending a high ascent and they encountered one another; and similarly, two wagons that encountered one another, and if both pass at once both will fall—how do they act? If one was laden with a load and one was not laden, the one that is not laden shall be pushed aside for the laden one, and the one not laden shall wait on the side until the laden one passes, and afterwards it shall pass. And if one is close and it is easy for it to turn aside, and one is far and it is difficult for it to turn aside, the close one shall be pushed aside for the far one. If both were far, both were close, or both were laden, since they are all in the same state of distress, they shall arrange a compromise between them and they pay a fee to one another. And regarding such as this it is said, "In righteousness shall you judge your fellow," for even in a compromise they must judge with righteousness. And if they wish, they shall cast lots between them.

A caravan that camped in the desert and a troop rose against it to plunder it, and they settled on a sum of money for the troop, they calculate according to wealth and they do not calculate according to souls, for the troop comes only for the sake of money. And if they hired a guide before them to inform them of the way, in which there is also a danger to souls, they calculate according to the souls and according to the wealth. And if there is a custom regarding this among the donkey-drivers, they shall not change from their custom, for custom is a great principle in monetary laws. And the same applies to anything similar to this: if the danger is only to wealth, they calculate only according to the wealth; and if the danger is only to souls, they calculate only according to the souls; and if the danger is to both of them, they calculate according to both of them. And see what I wrote in siman 163.

Donkey drivers are permitted to stipulate among themselves when traveling in a caravan that anyone from the members of the caravan who loses a donkey, the entire caravan shall provide him with another donkey. If he was negligent and it was lost, they are not obligated to provide one for him. If his donkey was lost without his negligence and he said, "Give me the value," and he does not want to take a donkey, saying, "Behold, I will guard with you as before," they may protest against him; rather, they provide him with another donkey so that through this he will be more diligent and guard, in order that his animal be guarded. And even if he had another animal in the caravan, because he devotes himself more to the guarding of two animals. If he said, "Give me money and I will purchase the animal," the right is in his hand [Shach]. And in all these matters, a kinyan is not required, and it is established with mere words, like laborers [ibid.].

A ship that was traveling at sea and a gale rose up against it to sink it, and they lightened its burden in order to save it, they calculate according to the weight and they do not calculate according to the value. For example, if they threw ten kikarot of silver belonging to Reuven and ten kikarot of iron belonging to Shimon, he does not need to pay Reuven anything, since the danger was on account of the weight. And if there is any custom regarding this among the sailors, they shall act according to their custom and shall not deviate from the custom. And ab initio, the owner of the silver can compel the owner of the iron to throw the burden from his own and he will pay him, for this one benefits and this one does not lose.

And the sailors are permitted to stipulate among themselves that whoever loses a ship, they shall provide him another ship from the collective; but if he was negligent with it and lost it, or if he set sail with his ship to a place where they do not go at that time, they are not obligated to provide for him. And it does not require a kinyan, as has been written regarding a caravan.