Siman 380

One who says to his fellow, "Tear my garment" or "Break my jug," on the condition that you are exempt—he is exempt. We do not say that he said this to him in a joking manner, for if it were in a joking manner, he would not have said to him "on the condition of exemption." Therefore, if he did not say to him "on the condition of exemption," he is liable, for we assume he said this to him in a joking manner, intending that he should tear it and pay. In what case does this apply? When the vessels came into this person's hand under the laws of safeguarding, such as if they were borrowed or deposited with him. However, if they did not come into his hand under the laws of safeguarding, and he said to him, "Take this vessel and break it," or "this garment and tear it," and he did so, he is exempt even though he did not say to him "on the condition of exemption." For we do not assume he spoke in a joking manner except when it came into his hand under the laws of safeguarding, where it is common to say such a thing—meaning, "You are safeguarding the object and have the power to destroy it," and the intention is that he should pay according to the law of a guardian. But when he is not a guardian, why should we assume his intention was that he should pay him? This has already been explained in siman 301, section 13, and in siman 382 more of this nature will be explained with the help of Heaven. And it is not similar to what will be explained in siman 421 regarding one who says to his fellow, "Cut off my hand on the condition of exemption," where he is liable; for it is obvious that a person does not forgive injury to his body, but regarding monetary damage, it is possible that he forgave it unless there is proof that he does not forgive. Nevertheless, in either case, both of them perform a prohibition, as they transgress "do not destroy."

And some say that even if he initially gave it into his hand for the purpose of safeguarding and did not also say to him "on the condition of being exempt," he is nevertheless exempt if he said to him words that can be interpreted as meaning his intention was that he be exempt. For example, if he said to him, "Break my jug," and the one who causes the damage said to him, "On the condition of being exempt," and he replied to him, "Yes," he is exempt. And not only that, but even if he said to him, "No," we assume he said it as a rhetorical question, as if to say: "How is it possible otherwise? Behold, I am commanding you to break it." Nevertheless, if it appeared from his response that he said it as a straightforward statement, he is certainly liable. However, this opinion holds that we lean more toward exemption than toward liability when it is possible to say that such was his intention. But when there were no words between them regarding exemption, he is certainly liable when it came into his hand for the purpose of safeguarding, for there is no reason at all to say without a disclosure of intent that his intention was to exempt him.

And all this is regarding his own, but one who says to his fellow, "Break the vessels of so-and-so on the condition that you shall be exempt," and he broke them, behold, the one who broke them is liable to pay and not the one who commanded him. And even if he said, "I will pay on your behalf," for we do not make him liable through words alone; and this fool who listened to him is liable to pay, and a person is always forewarned, and he should not have imagined that he would be exempt. And nevertheless, even this one who commanded him is a wicked person and violated "before a blind person do not place a stumbling block," for through him this person lost money and he also caused the violation of "do not destroy." Therefore, this one who broke them is not like his agent, for there is no agent for a sinful matter [Taz].

One who says to his fellow, "Throw a maneh into the sea and I will be obligated to you," some say he is liable based on the law of guarantee, just as in "Give a maneh to so-and-so and I will be obligated to you." And some say he is exempt, for the law of guarantee only applies when some person receives a benefit through his guarantee, as we find with the guarantee of Yehuda to Yaakov for Binyamin; but in such a case, he is merely like one who mocks him and is exempt, unless he gave him money and said to him, "Throw it and be exempt." And in Even HaEzer siman 30, it implies that the opinion of our teacher, the Rema, inclines toward exemption, and only because of the stringency of a married woman did he rule stringently there, and see what I wrote there in section 33 [and so wrote the Rosh in the first chapter of Kiddushin, siman 13, see there].

It has already been explained in siman 351 that one who becomes liable for payment at the time he is subject to a death penalty is exempt from payment, for "he is established with the greater [punishment]." Therefore, a pursuer who was pursuing his fellow to kill him, or after one of the forbidden relations to rape her—whether those liable for karet or those liable for death by beit din—and he broke vessels, whether belonging to the pursued or to any person, he is exempt, for he is liable for his life. And even though it is not similar to there, for the liability of death only exempts when the liability of death and the payment come as one, as was written there, and here at the time he broke [the vessels] he had not yet killed nor had he cohabited with the forbidden relation, and furthermore, the liability of karet does not exempt from payment—nevertheless, since by the law of the Torah it is a commandment for every person to kill the pursuer, he has surrendered himself to death. Therefore, he is exempt from payment, for at this moment that he broke the vessels, it was within the authority of every person to kill him, and it is as if the liability of death and payment come as one [this is the intention of the Sma, and examine it closely].

But the pursued who broke vessels during his flight, if they belonged to others, he is liable for payment. And even though he was compelled to break them for his rescue and he has the authority to do so, nevertheless he is liable to pay, for a person may not rescue himself with the money of his fellow. But if he broke the vessels of the pursuer, he is exempt from paying; for since he is permitted to kill the pursuer, it is an a fortiori argument that he is permitted to rescue himself through the destruction of the pursuer's property, so that his property should not be more stringent than his body. However, if he caused him damage in a matter that does not pertain to his rescue, he is liable to pay him, for it is forbidden to destroy his property even though his body is permitted, as written in siman 388, see there. And only regarding property that pertains to the rescue of the pursued is it an a fortiori argument from his body, and not regarding property that does not pertain to his rescue.

One who comes to rescue the pursued from the hand of the pursuer and broke vessels, whether belonging to the pursuer or to any person, is exempt. This is not by the letter of the law, for just as a person is not permitted to rescue himself with his fellow's property, so too a person may not rescue his fellow with the property of others; rather, it is an enactment of the sages so that they should not refrain from rescuing the pursued. For if we were to say that he is obligated to pay, they would refrain from rescue when seeing that they are forced to cause a monetary loss through the rescue. And to obligate the pursued to pay is not logical, since he did not cause the damage. And all the more so if the rescuer broke the vessels of the pursued, he is exempt.

A ship that was expected to break from the weight of the cargo, and one of them stood up and lightened the load and cast it into the sea, he is exempt, and the owners of the merchandise cannot say to him, "You are a damager and you must pay us," for the cargo is like a pursuer, and he performed a great mitzvah by saving the people from the hand of the pursuer. However, as to who shall bear the loss, there are distinctions in this: If they all loaded cargo equally and one did not exceed more than his fellow, or even if he did exceed but such was agreed upon between them, and when they loaded it was according to the capacity of the ship, but afterward a circumstance arose where the ship was unable to bear such a great load, they all bear the loss, and they calculate according to the weight, as I have written in siman 272. And if one of them loaded more than what was agreed upon between them, and because of this the ship became heavy, the entire loss is his, for his status is that of a pursuer. And if the cause was not from the weight of the cargo, but rather a storm wind arose and the waves stood over it to sink it, and because of this they were forced to lighten its load, in any case they are all obligated to bear the loss. And in any place where they are all obligated, even if they cast out the cargo of only one of them, the other merchants must pay him, each one according to the value of his cargo, and they calculate according to the weight and not according to the monetary value, since the cause is due to the weight of the cargo [see Sma, Shach, and Taz].

If one of the merchants brought a donkey into the ship and it jumps there, and through this there is a danger that the ship will sink, and another came and threw the donkey into the river or into the sea: if it is not the way to bring donkeys into such ships, it is simple that the one who threw it is exempt from paying, as it is like a pursuer. But if it is the way to bring donkeys into such ships, and this donkey was not always different from other donkeys, but rather when they brought it to the ship the donkey's mind became unsettled and it began to jump, our teacher, the Rema, wrote that the one who threw it is liable to pay, since the owner of the donkey did not act with negligence and the damage is to everyone, as with the waves of the sea that has been explained. And the opinion of our teacher, the Beit Yosef, is that he is exempt from paying, for in any case the donkey has become a pursuer, and every pursuer it is a mitzvah to kill him; and what is it to us that the owners did not act with negligence? And it is not similar to the waves of the sea, for there the pursuit is not because of the merchandise of this person, and of necessity everyone must suffer; but when the merchandise of this person becomes a pursuer, what is it to us if its owners acted with negligence or not? And it appears to me that in all that has been explained, that when it is a pursuer through his merchandise we destroy the merchandise, there is no difference between whether it pursues souls or whether it pursues property—for example, that for the people who are in the ship there is no danger as they are able to escape in small boats, but rather that the merchandise will sink—it also has the law of a pursuer regarding the fact that we destroy his property which pursues the property of others.