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April 18, 2014 / 18 Nisan, 5774
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My Loss Or Yours

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Dan and Shai were standing in the train station. They had just finished a shopping spree and each carried a bag, which they put down next to them. “I got a gift for my parent’s anniversary,” said Shai. “It cost quite a lot, but it’s a very special occasion.”

As the train approached, two youths came up behind them. The youths grabbed the bags and began running away.

Dan and Shai, who were both trained in martial arts, were not cowed and immediately began chasing them. Dan was faster and had almost caught up with the two youths. The two split apart, one escaping to the right the other to the left.

Dan instinctively veered left, chasing his own bag. He realized, though, that Shai’s bag contained much more valuable items.

“Should I forget about my bag and try to save Shai’s bag?” Dan thought to himself. He made a split-second decision to do that and work it out with Shai afterward. He turned right with a burst of speed and continued chasing the other youth holding Shai’s bag. The youth, realizing he was about to be caught, dropped the bag and fled down a stairway.

Dan retrieved Shai’s bag and recovered his breath. Shai caught up with him and congratulated him for retrieving the bag. “Thanks for getting my bag back!” he said. “What about your bag, though? It looks like the other guy got away.”

“I could have caught him, but realized that your bag was much more valuable,” Dan said. “I was hoping you would reimburse me for my loss.”

“I really appreciate that you saved my bag, and will give you something for having chased the thief,” said Shai. “I just spent a tremendous amount on the gift, though, and can’t afford to cover your shopping also. It was your decision to give up your bag and save mine. Besides, I was also chasing them and had alerted the police, so we might have caught the thief, anyway.”

“I went after your bag assuming that you’d compensate me for my small loss, rather than risk losing your whole bag,” responded Dan. “And it’s not likely that you or the police would have caught him in time.”

“I hear what you’re saying,” said Shai. “Let’s ask Rabbi Dayan tomorrow in shiur.”

The following morning, Dan raised his hand in shiur. “We had a fascinating monetary question yesterday,” he said. He related the story, and asked: “Was I supposed to have chased after Shai’s bag? What about my loss?”

“There is a mitzvah of hashavat aveida,” replied Rabbi Dayan, “but if you are faced with your own loss and that of another, you are not obligated to retrieve your friend’s loss, even if far greater than your own. However, it is proper to consider your friend’s need.” (C.M. 264:1)

“If I chose to do so,” asked Dan, “does Shai have to compensate me for my loss?”

“That depends on the circumstances,” answered Rabbi Dayan. “If Shai was present and you went ahead and saved his item without saying anything to him, he is not obligated to cover your loss, only to pay the value of your service in saving his bag. However, if you stipulated that he should cover your loss, Shai must pay the full value of your loss. In addition, he cannot claim afterward that his bag might have been recovered by the police.” (B.K. 115b; C.M. 264:3-4)

“What if Shai was not present when I decided to save his bag?” asked Dan.

“You can stipulate before a beis din or three other people,” said Rabbi Dayan. “If neither Shai nor others were available, or if time did not allow this, it is assumed that the friend would agree to cover the loss, as if stipulated.” (Rama 264:3; SM”A 265:8)

“If the police later recover Dan’s bag,” asked Shai, “I assume I would not have to pay anything even if he stipulated?”

“Actually, you would still have to cover his initial loss,” said Rabbi Dayan.

“Why is that?” asked Dan.

“When the thief took Dan’s bag and ran off, it’s as good as lost, and becomes hefker,” explained Rabbi Dayan. “Therefore, you have to pay for it, in accordance with the agreement. Even if the police recover the bag and return it, it’s like Dan acquired it anew from hefker.” (See Pischei Choshen, Aveida 8:1])

“What if Dan was unsuccessful in recovering my bag?” asked Shai.

“Even had Dan stipulated, you would not have to cover the loss of his bag but only the value of his service in pursuing the thief,” said Rabbi Dayan. “If you were present and Dan didn’t stipulate, you wouldn’t have to pay anything, since he didn’t provide any service of value.” (C.M. 264:4; See SM”A 264:12)

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About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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