Lesson # 227 (part two) • Priority in Picking Up Lost
Objects Assume that Reuven is carrying his jug of wine and Shimon is carrying his jug of honey. Honey is worth much more than wine. Shimon's jug of honey developed a crack in it and the honey will pour out. Reuven, seeing this, spills out his wine and places his now empty jug beneath the honey and all of the honey is now caught into Reuven's jug. Reuven will be compensated for his efforts in saving Shimon's honey but will not be paid for his lost wine. Since Shimon is there, if Reuven wants to be compensated for his efforts and also for the wine he is to spill out, he should so stipulate to Shimon. If Reuven states he will save Shimon's honey by pouring out his own wine, and Shimon says nothing, then Shimon must pay for the wine as well as for Reuven's efforts. Conversely, Shimon could have suggested that Reuven pour out his wine to save Shimon's honey and that Shimon pay Reuven for his efforts and for his wine. Reuven runs no risk since the honey is now in his jug and in his possession until he is paid. Reuven can set a reasonable time limit for payment and need not have to sue for payment. If Shimon does not pay within such reasonable time, the honey belongs to Reuven. Assume that Reuven leaves his jug of wine on the ground and Shimon is there with his jug of honey, which cracks. Shimon may take Reuven's jug of wine, spill it out, and let his honey flow into Reuven's now empty jug. Shimon owes Reuven the value of the wine. The foregoing laws hold true only if Shimon could somehow have saved his honey in some manner or form. If it is obvious that he could not have saved his honey, then if Reuven puts his jug under that of Shimon's jug as the honey pours out, the honey belongs to Reuven as abandoned property. The law is the same in similar situations. For example, there is a fire in the town and all of the residents are evacuating the town, which will surely burn down. Reuven runs into someone's home and takes something; it belongs to Reuven. The property is deemed to be abandoned property. However, if the owner of the property could have rescued his own objects with great effort, Reuven is to receive wages for the rescue, as determined by Beth Din, but the object belongs to the owner, and not to Reuven. In all events, there are laws of the land and rules of Beth Din that control many of these situations. In all those situations in this lesson where Reuven stipulates with Shimon that Shimon will pay to Reuven more than the going rate for such efforts, the stipulation will be enforced only if Reuven will suffer some damages by his rescue effort. But if Reuven does not suffer any damages by his effort to save the objects of Shimon, Shimon need pay only the amount that a person receives for such efforts. Thus in the above example, if Reuven's jars were empty and Reuven, before rescuing Shimon's honey, insists that Shimon pay him an exorbitant sum. Shimon need pay only such sum as Beth Din will fix for the amount of labor Reuven expended. Shimon's promise to pay the exorbitant amount is deemed to be a promise made without any intent, more in the nature of a jest. Another example given in the codes is where Shimon is escaping from captors who have wrongly imprisoned him. He comes to a ferry and pleads for Reuven, the ferry operator, to take him across the river. Reuven demands an exorbitant fee, or Shimon himself offers an exorbitant fee. Once Shimon is taken across the river, he need pay only the normal fee. However, if the person with the boat is a fisherman who is fishing and Shimon offers to pay the fisherman an exorbitant fee for leaving his nets and for getting him across the river, and the fisherman leaves the nets and takes Shimon across the river, Shimon must pay to the fisherman that which he promised. In all of the situations where Shimon need not pay the exorbitant amount, this holds true if Shimon did not yet make the payment. However, if he made the payment to Reuven, then he may not receive anything back. What has been said about rescue efforts is also true of professional services. Reuven is a doctor and Shimon comes to him for a cure. Reuven asks for an exorbitant fee, and Shimon agrees to pay it if Reuven heals him. Reuven heals Shimon; Shimon must pay the agreed-upon fee. However, if they discussed a medicine and Shimon agreed to pay an exorbitant amount, Shimon need pay only the normal price. The medicine is not part of the professional fees that Reuven may charge and that Shimon agreed to pay. A person retains a marriage broker or a business broker and promises the broker a fee that is in excess of the ordinary fee. When the matter is completed, the broker is entitled only to the normal fee, not to the agreed-upon higher fee. There is an opinion that the agreed-upon fee must be paid. A third opinion holds that where there is a community-fee, then that fee is controlling, and if the community does not have a set fee, then the agreed-upon fee must be paid. However, according to all opinions the agreed-upon fee must be paid if the agreement was concluded and made binding by a kinyan, or by a handshake in those communities where a handshake is the equivalent of a binding kinyan, or by oath to make the payment. Also if the broker was retained for an extraordinary task that is not usual, then the agreed-upon fee must be paid according to all opinions. Reuven, a broker, undertook to represent Shimon without a fee. Just before the entire performance of Reuven was completed, Reuven demands a fee for his work; Shimon has expended moneys in reliance of the completion of Reuven's performance. Shimon agrees to pay to Reuven the fee that he demands and makes the payment. Somehow Shimon holds moneys belonging to Reuven and wants to offset the money he is holding against the fees that he paid to Reuven. Shimon pleads that Reuven originally undertook to represent Shimon without a fee and made his demand for a fee after Shimon had expended money that he stood to lose if Reuven did not complete his task. Thus the money paid to Reuven was in the nature of robbery and can be recovered by Shimon. It was held that the fee belongs to Reuven and Shimon must return the money to Reuven. The reason is that even if Reuven undertook to work without a fee, he is not obligated to complete his undertaking. However, if Reuven's services were no longer needed by Shimon and Shimon could have completed the project himself if Reuven removed himself from the project, and now Reuven demands money not to interfere and ruin the project unless he is paid. Shimon may recover any money that he paid to Reuven under such circumstances. The subject matter of this lesson is more fully discussed in
Volume VIII Chapter 261 of A Restatement of Rabbinic Civil Law by E. Quint.
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orders@gefenpublishing.com
and via website:
www.israelbooks.com and at local Judaica bookstores. [The Parshat
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