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Your Loss Or Mine?

By Rabbi Meir Orlian

Dan and Shai stood in the train station. They had just finished shopping and each one carried a bag, which he put down next to himself. “I bought a gift for my parents’ 25th anniversary,” said Shai. “It cost me quite a lot of money, but it’s for a very special occasion.”

As the train approached, two youths came up from behind them. The youths grabbed the bags and ran 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 them when the two youths split apart. Dan instinctively headed after his own bag, but realized that Shai’s bag was much more valuable.

“Should I forget about my bag and try to save Shai’s bag?” Dan wondered. He made a split-second decision and turned with a burst of speed after the other youth, who was holding Shai’s bag. The youth dropped the bag and fled down a stairway.

Shai caught up shortly and congratulated Dan for retrieving the bag. “Thanks for saving my parents’ gift!” 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 expecting that you would reimburse me for my loss.”

“I really appreciate that you saved my bag, and will definitely 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 I 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 related the story in shiur and asked, “Was I supposed to have chased after Shai’s bag? What about my loss?”

“There is a mitzvah of hashavas aveidah,” 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 it is far greater than your own. Nonetheless, it is proper to consider your friend’s need.” (C.M. 264:1)

“If I chose to save Shai’s bag at the expense of my own,” asked Dan, “does he 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 bag without saying anything to him, he is not obligated to cover your loss. He has to pay only the value of your service in pursuing 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 beis din or three other people,” said Rabbi Dayan. “If neither Shai nor any other people were available, or if circumstances did not allow you to stipulate that he should cover your loss, it is assumed that the friend would agree to cover the loss, as if it was stipulated.” (Rama 264:3; Sma 265:8)

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

“The agreement to cover the loss is with the understanding that the bag will actually be recovered,” said Rabbi Dayan. “Therefore, if Dan did not recover the bag, he is only entitled to the regular value of his service in pursuing the thief, unless you explicitly agreed to cover his loss even if it would prove unsuccessful.

“If you were present and Dan did not say anything, you would owe him nothing, since he did not provide any service of value.” (C.M. 264:4; see Sma 264:12)

From The BHI Hotline:

The Coat Exchange

Submitted by S. C.

Q. When I returned home last night after davening and was hanging up my coat, I saw another person’s name on the tag and realized that I had mistakenly taken someone else’s coat. Am I obligated to find the owner and inform him that I took his coat, or may I simply return it to the coat rack from where I took it?

A. A similar question to yours involves one who took home a sefer from a beis medrash without permission and then saw a sign asking for the sefer to be returned. Is the “borrower” obligated to inform the gabbai that he returned the sefer, or is it sufficient to merely return the sefer to the beis medrash?

Generally, when a person steals something and the owner was aware that it was stolen, the thief remains responsible for the item unless the owner is aware that the stolen item was returned (C.M. 355:1). Returning it to the owner without his knowledge would be insufficient, since the owner does not realize that he must once again protect his possession (Sma 355:1). If the thief returns the stolen property without telling the owner and the owner realizes that it was returned, the thief is no longer responsible (C.M. 355:1).

For example, if one stole money and, sometime later, when giving the owner money for something else, he added extra money to cover the amount that he stole, the thief has fulfilled his obligation to return the stolen money and is no longer responsible for the stolen money. It is assumed that people are aware of how much money they have, and once the money was returned, the friend must have realized that the stolen money was returned.

In contrast, in the event that the owner was never aware that his property was stolen, the thief may simply return it to the possession of the owner without informing him that he stole but then returned it, since the owner never ceased protecting it (see also Igros Moshe, C.M. 1:88).

By informing the owner that the stolen object was returned, the owner will realize that he must protect it. Therefore, in the case of a sefer it would seem that one need not tell the gabbai that it was returned. Since no one specifically watches the sefarim, they are assumed to be protected just by being in the beis medrash.

However, this is not so in the case of a coat. The owner certainly realized that his coat was taken, and thus he must be informed that it was returned so that he can once again protect it.

Money Matters:

Damages #12

Q. I arranged to meet a potential client in a distant city. I flew there and ordered an expensive meal for two, but the person canceled the meeting. Must he reimburse me for the expenditures?

A. The Rema (14:5) writes that a person who agreed to adjudicate in a distant city and tells his litigant to go and he will follow, but does not, is liable for the needless expenditures that he caused. This is included in the liability of garmi, since the other litigant traveled based on his word. However, if the other litigant chose to make additional expenditures not directly agreed upon, the person is exempt, based on grama.

Thus, the potential client must reimburse you for the flight, but not for the cost of the expensive meal, which was your own choice. There is a dispute whether he is liable for the flight if he was forced to cancel the meeting (Pischei Choshen, Nezikin 3:[64]).

You must bring evidence to the amount of the expenditures; otherwise, beis din will estimate their value. Even if you bring receipts, beis din should still ensure that the expenses were reasonable and logical (Pischei Teshuvah 14:16). v

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

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

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Posted by on January 25, 2013. Filed under In This Week's Edition. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.