Q&A: Driving a Lion Away from Another’s Property
Driving a Lion Away from Another’s Property
Question
Hello Rabbi,
Recently I was learning the topic of driving a lion away from another person’s property, and I wondered: if someone saves another person’s property from some kind of damage, and this costs him some loss of X, may the rescuer claim compensation in the amount of X from the owner of the property that was saved? Seemingly, from the Mishnah in Bava Kamma 115a one can understand that he may not: “Mishnah: This one came with his barrel of wine and that one came with his jug of honey. The honey barrel cracked, and this one poured out his wine and saved the honey into it—he has only his wage; but if he said, ‘I will save yours and you will pay me the value of mine,’ he must pay him. If a river swept away his donkey and his fellow’s donkey, his being worth one maneh and his fellow’s worth two hundred, and he set aside his own and saved his fellow’s—he has only his wage; but if he said to him, ‘I will save yours and you will give me mine,’ he must give it to him.”
But I thought to explain that the Mishnah is dealing only with a case where he could have made such a stipulation with him; but if the owner of the property was not around, so that it was impossible to make a stipulation with him, then in that case the rescuer would be entitled to full reimbursement for his wine or his donkey, up to the value of the property saved.
What do you think?
Answer
That sounds reasonable, but I haven’t checked it. This is probably an implicit stipulation, unless the other person is present and you did not stipulate.
There is room to discuss the passage in Bava Kamma 60b, where as a matter of Jewish law a person may not save himself with another person’s money, and all the medieval authorities (Rishonim) except for Rashi explained that he is allowed to save himself, but must pay. However, there it is not a case of driving a lion away, but of actual rescue.
One should also discuss the case of a loaded ship where part of the cargo is thrown into the sea in order to save it. There, if one person threw away his own property, the calculation is made proportionally according to wealth—that is, they reimburse him. Still, one could distinguish, because there the danger threatens everyone and everyone should have participated in the rescue from the outset.
By the way, it seems to me that saving the honey there is not a case of driving a lion away. Driving a lion away is when the damage has not yet happened but may happen, and you prevent it. But if the damage has already happened and you save it, that is actual rescue.
And from here one should discuss the law itself in Bava Kamma 115, because the property that was damaged is like a lost item in the sweep of the sea, and the rescuer acquires it. That is, he could have acquired it for himself. So if he was righteous and saved it for his fellow at the cost of his own property, should he lose his own property?!
All this requires clarification, and I can’t get into it right now.
Hello Oren.
Your explanation—that the case of “a river swept away his donkey and his fellow’s donkey” refers specifically to when the owner of the donkey was standing there—is an excellent argument, and you anticipated the reasoning of Tosafot in Bava Kamma 58a, at the end of the words beginning “Or alternatively,” as follows:
“And one should not ask: in the case where a river swept away another person’s donkey, why does he receive only his wage? Why does he not receive his full loss? Because since the owner of the donkey is standing there, why should we make an arrangement for him without his knowledge? If he wants, he can stipulate with the rescuer that he will pay for his donkey.”
[Tosafot hold that whenever the damage is certain, it is not called ‘a lost item in the sweep of the sea’—and not only if it has already happened, as Rabbi Michi wrote. Therefore they ask from the passage in Bava Kamma that you mentioned.
Tosafot also mention that if it is a case where the owner cannot save it, it is considered like a lost item in the sweep of the sea, as Rabbi Michi wrote.]