Gezelah va'Avedah - Chapter 12

This teaches that a person should not excuse himself from caring for the other person’s article because of his concern for his own (Maggid Mishneh).

Bava Metzia 33a derives this law from Deuteronomy 15:4, “That there should be no poor among you,” which our Sages understand as a command to prevent oneself from sinking into poverty.
The rulings that apply when the other person’s lost objects are worth more than the person’s own are discussed in Halachah 3.

In Hilchot Talmud Torah 5:1, the Rambam mentions a similar situation and states that “If his father is a scholar, even if he is not equal in stature to his teacher, his father’s lost object [takes precedence].” The Kessef Mishneh (in his gloss on Hilchot Talmud Torah) resolves the discrepancy by explaining that Hilchot Talmud Torah is speaking about a person other than the finder’s primary teacher. [This interpretation is borne out by the Rambam’s Commentary on the Mishnah (Bava Metzia 2:11).] Others maintain that the text in Hilchot Talmud Torah is a printer’s error.
The Ramah (Yoreh De’ah 242:34) states that this law applies only when the teacher taught the student without charge. If, however, the student’s father paid for his studies, the father’s lost object takes precedence.

Bava Metzia 31 a explains the rationale for this halachah: His father brought him into this world, while his teacher brings him into the world to come.

I.e., he is not entitled to compensation for his lost article.
The commentaries question why (either in this halachah or in Halachah 1) the Rambam does not quote Bava Metzia 33a. That source states that a person who is concerned for his own welfare and therefore does not return a colleague’s article because of the loss he himself will suffer has cast off the yoke of brotherly kindness and will ultimately become impoverished himself. This concept is quoted by the Tur and the Shulchan Aruch (Choshen Mishpat 264:1).

I.e., he is paid as a worker who was hired to perform whatever labor is necessary to save the other donkey. He is not reimbursed for his own donkey or for any other loss that he suffered while returning the lost donkey.
The Maggid Mishneh states that this halachah applies only if the donkey’s owner has the capacity to save the donkey himself. If he does not have this capacity, the donkey is considered ownerless, and the person who saves it may keep it as his own.

The type of court referred to here consists of any three men who are acceptable as witnesses. The appeal to a court is acceptable only in the absence of the owner (Turei Zahav 264:8, Netivot HaMishpat 264:4). The Sefer Meirat Einayim 264:8, however, appears to differ and maintain that even if the owner is present and objects, the court may agree to this stipulation against his will, because it is in his best interests.
The Ramah 264:3 states that if neither the owner nor a court is present, it is considered as if the stipulation were accepted. Since the stipulation is to the owner’s benefit, we assume that he would agree. (See the notes on the following halachah.)

For the person is not willing to sacrifice his property without compensation.

In his Commentary on the Mishnah (Bava Kama 10:4), the Rambam explains that the owner of the donkey may not say, “I was only joking when I made the commitment,” for the person who saved the donkey forfeited his own property on the basis of this commitment.

And thus he does not actually lose his donkey.

But rather abandoned it to its fate, so that he could save his colleague’s donkey.

The recovery of his donkey is considered a present granted him from above.
The Ramah (Choshen Mishpat 264:3) emphasizes that the person’s donkey is considered ownerless - for he abandoned hope of its recovery - and may be acquired by anyone else.

There is a disagreement among the commentaries if he should be paid the wage due him for saving the article (although he did not accomplish that purpose) or he should be paid as an unemployed worker. All agree that he need not be reimbursed for his loss, for he did not accomplish the purpose of his mission.

I.e., he receives less than the dinar.

In his Commentary on the Mishnah (Bechorot 4:6), the Rambam explains the meaning of this term:
I have heard many interpretations, but none of them is satisfactory.... This refers to a person who is capable and expert in his profession and thus worthy of earning a significant amount. [He] is not paid the sum given to such a worker, but rather that paid to an ordinary worker from this profession.... This is the intent of the phrase “as a worker of the trade in which he is employed.”
“As an unemployed worker of the trade in which he is employed” implies [a further reduction], dependent on the amount of toil or rest involved in performing that profession. For example, there are certain tasks that require strenuous labor - e.g., iron workers or hewers of marble. If a worker in such a profession were given the chance of performing this labor or resting, he would prefer to rest, even though he would receive much less.
Thus, according to the Rambam’s conception, the person who saves the lost article must make two waivers. He must forfeit the additional money that he would earn if he is more skillful than the ordinary person in his profession. He must also consider it as if he is resting and give up the amount of his wage that he would sacrifice in order to rest.
Rabbenu Chanan’el offers a different interpretation, explaining that this refers to a worker who is unemployed and would thus hire himself out for a lower wage than usual. This interpretation is also accepted by many of the other Sephardic authorities. Rashi (Bava Metzia 31b) interprets the term as referring to the amount a person would like to receive for performing an easier task (returning the lost object) than his ordinary work.
The Shulchan Aruch (Choshen Mishpat 265:1) quotes the Rambam’s words and appears to follow his interpretation. The Tur and the Ramah accept Rashi’s interpretation in an instance where the owner of the article was not present, and the person returning the article voluntarily returned it. If the owner was present and the person who returned the article did not make a stipulation, these authorities also accept the Rambam’s view.

For he has a responsibility to earn money to support his family, and therefore will not be content with receiving the wages of an unemployed worker (Sefer Me’irat Einayim 265:5).

Our Sages maintained (Bava Metzia 31b) that by and large, a person would rather take a rest from his ordinary work and perform a lighter task, even if it involves a loss of money. They did not, however, obligate the person to accept such a loss. Thus, if he insists on making this condition, he is entitled to receive the sum he stipulates.
The basic principle reflected in this and the previous halachot is that the return of a lost article is a mitzvah, and a person should not seek to profit from fulfilling it. Nevertheless, he is not obligated to suffer a loss either and may thus receive a minimal wage (or a greater wage) if he insists, and recompense for any property of his own that he forfeits.

As mentioned in the notes on the previous halachah, the Ramah maintains that this law applies only to this halachah, and not to the previous halachah. Sefer Me’irat Einayim 265:8 explains the distinction between the two. With regard to the previous halachah, it is obvious that the person would not sacrifice his donkey without receiving recompense. Therefore, the stipulation is accepted as if it were stated.
In the instance described in this halachah, by contrast, most people would prefer resting and working at an easier task, even if it involves a loss of income. Therefore, if a person does not have such an approach, he must state his claim to the owner or to a court. Otherwise, there is no way that we know that it will be accepted by the owner.

For honey spills slowly.

For in the Talmudic era, honey was more valuable than wine.

He need not be paid for the loss he suffers.
Sefer Me’irat Einayim 264:16 states that this applies only when the owner of the honey is present. If the owner of the wine does not make a stipulation, he must suffer the loss. If, however, the owner of the honey is not present, we assume that the owner would agree to the stipulation, and the owner of the wine should be reimbursed for his loss.

The Tur and the Shulchan Aruch (Choshen Mishpat 264:5) state that if the owner of the honey agrees to the stipulation, the owner of the wine is obligated to pour out his wine to save the honey. For he has a mitzvah to perform and will not suffer any loss. The Ramah, however, quotes other opinions that differ.

This opinion is quoted by the Shulchan Aruch (loc. cit.). The Tur and the Ramah quote the opinion of Rashi (Bava Kama 115b), who states that as long as the jug is broken in a manner that the honey will surely spill to the earth, the honey is considered ownerless.
On that basis, the Ramah states that if a fire breaks out in a city, and all the Jews flee because of the fire, anyone who stays and rescues property acquires it as his own.

Sefer Me’irat Einayim 264:19 adds that if the person carrying the jugs suffers a loss because he cannot perform the job for which he was hired, he should also be recompensed.

And he is obligated to fulfill a mitzvah.

A fee far greater than what one would ordinarily pay.

I.e., we assume that the fugitive spoke facetiously and feigned to agree, without ever intending to meet his promise. He is not bound by his commitment, since the raft owner is obligated to try to save him. Kin’at Eliyahu notes that the raft owner is not given any increase for performing this task in the face of danger.
See the Shulchan Aruch (Choshen Mishpat 264:8), which states that if the fugitive actually paid the sum he promised, he cannot sue for its return. Ketzot HaChoshen 264:4 goes even further and explains that even if the fugitive took an oath to pay the sum, he is responsible for it. For the reason why he is ordinarily absolved is that we assume he was speaking facetiously and did not intend to meet his commitment. Therefore, if he takes an oath, we assume that he will not take an oath facetiously.
See also the Maggid Mishneh and Ketzot HaChoshen 264:1, who append to this law the teaching that a doctor is allowed to charge a high fee for the treatment he administers, for the patient is paying for his wisdom.

The Lechem Mishneh states that this applies even if the amount is far more than he would ordinarily earn. The commentaries question why a distinction is made between this instance and the case described in the previous halachah.

I.e., he is allowed to keep it all as his own, for the other people despaired of regaining their property when it was taken by the members of the armed force. This instance can be compared to property swept away by a river, as described in Chapter 11, Halachah 10.
The Tur (Choshen Mishpat 181) and Sefer Me’irat Einayim 181:1 state that this law applies even if the person who rescued the property did not state his intent to keep it as his own.

Since the property could be rescued, the owner did not abandon hope of recovering it. Therefore, the one who rescued it has no right to take it as his own.

The Ra’avad states that this applies even if the other partner is unable to rescue the goods. He assumes that his partner still desires to continue their business relationship and is saving the goods on behalf of the partnership.

Bava Kama 116a explains that since he is in danger of losing all of his money, he is given the right to terminate the partnership agreement.
The Tur and the Ramah (Choshen Mishpat 181:2) explain that this law applies with regard to the rescuer’s saving his share of the partnership (i.e., if all he could save was half the goods) or in a situation where the second partner did not have the potential to save his goods. If, however, the rescuer saved more than his share and the other partner could have recovered his share on his own, we assume that the other partner did not despair of the recovery of his property, and the rescuer is obligated to return it to him even if he states: “I am rescuing it for myself.”

I.e., an armed attack, a flood, a fire or the like.

For he is acting as an agent of his employer and acquiring the goods on his behalf.

As Bava Kama, loc. cit., explains every worker has the right to terminate his employment at will, as long as he does not cause damage to his employer’s property. Our Sages derive this from the verse: “The children of Israel are My servants” - i.e., only God has an absolute right to their obedience. [See Shulchan Aruch (Choshen Mishpat 333) for the practical applications of this ruling.]
In this instance, the worker is making a simple reckoning: The property is ownerless. Why should I take it for the employer when I can take as my own?

The latter law applies when the owner has despaired of the article’s recovery. If, however, he has not despaired of the lost article’s recovery, it must be returned to him.

For the armed force was not interested in killing them, but rather in plundering their goods. Therefore, the ransom should be calculated according to the value of each person’s goods.

For without a guide, both the lives and the property of the travelers are in danger.

I.e., even if it conflicts with the above guidelines (Rashi, Bava Kama 116b; Sefer Me’irat Einayim 272:28).
This follows a general principle frequently stated by the Rambam: that the standard local business practice is always followed. The rationale is that we assume that all parties entered into the agreement knowing and accepting these practices.

E. g., it will be preyed upon by wild beasts or the like.

If such an agreement is made, it is not necessary for it to be formalized with a kinyan (Siftei Cohen 272:6).

E. g., he did not tie it securely at night and it ran away.

For they did not not agree to take responsibility for his negligence.

Instead of purchasing a donkey for me, as obligated by the agreement mentioned in the previous halachah.

Together with his own donkey, he will also guard the other beasts of the caravan. Needless to say, his commitment to guarding the caravan’s beasts will be far greater if he owns a donkey himself.

It makes no difference whether 100 pounds of gold or 100 pounds of iron are jettisoned. What is most important is to reduce the ship’s weight (Rashi, Bava Kama 116a).

See Halachah 11.

E. g., in Nisan the rivers swell from the winter rains and snow and are deeper. If, in Nisan a boatman sailed his ship in a place where it is uncommon to sail in Nisan, but common to sail in Tishrei, the other boatmen are not liable, for he should have realized the difference between the two seasons (Sefer Me’irat Einayim 272:29).