Using Another's Property to Save Yourself (60b)

            The Rishonim disagree about how to understand King David's question and the Sanhedrin's answer. Rashi (s.v. vayatzila) implies that he understood the discussion according to its plain sense, that David was in doubt whether or not a person may rescue himself through the destruction of another person's property, and the Sanhedrin's answer was that this is forbidden. This would appear to be true even if the person intends to pay for the damage, and even in a situation of piku'ach nefesh, where his life is in danger. The Tosafot (s.v. mahu), in contrast, understood that there was never any doubt whether or not a person may rescue himself through the destruction of another person's property. This is obviously permitted. Rather "he asked whether a person is obligated to pay when he rescues himself in a situation of piku'ach nefesh." Accordingly, we must deal with two different issues: The prohibition lekhatchila (ab initio), and the obligation to make payment bedi'eved (ex post facto).

            Before we begin the two discussions, I wish to note that another matter that borders on both of these issues is the extent to which a person is obligated to finance the rescue of another person. This issue is also discussed in the passages connected to the matters presently under discussion. We will focus, however, upon the situation from the perspective of the person being saved, who takes steps to rescue himself even when nobody else is present, and upon his obligation to pay for the damage he caused after the fact.

I. The prohibition to rescue oneself through the destruction of another person's property

            Regarding this issue, about which Rashi and Tosafot disagree (not only about how to understand the question, but also the answer), it is of course easier to understand the position of Tosafot. As the Rashba writes in his responsa (IV, 17):

What I have written [i.e. similar to Tosafot) seems obvious to me. I would almost say that there was no need for me to write this, since it is so obvious. For nothing stands in the way of piku'ach nefesh, except for the three [cardinal prohibitions] listed [elsewhere]. Think about it: If someone is in the desert, dying of thirst, and he finds another person's jug of water, should he allow himself to die and not drink, even if he intends to pay [the water's owner]? How can such a person be called a thief, when the owner is obligated to give him [water] for free and revive him?[1] Rather it is certainly obvious that he is permitted to rescue himself on condition of paying. And that they didn't answer him: It is permitted if he intends to pay – why they should answer him about that which is obvious and he did not even ask about?

            Thought it is forbidden to cause damage to another person's property even if he intends to pay for the damage, it is difficult to understand how this prohibition could have risen to the level of those prohibitions about which we say yehareg ve-al ya’avor (a person must allow himself to be killed rather than transgress the prohibition).[2] Surely yehareg ve-al ya’avor is based on the rationale: "What do you see that your blood is redder than the blood of your fellow?" Clearly then the obligation to save a life supersedes the prohibition to damage another person's property, and it would seem that this is the law even if the person knows that for some reason or another he will not be able to pay for the damage. For this reason the Iggerot Moshe suggests that even Rashi never imagined otherwise:

It is impossible to say that Rashi thought that one is forbidden to rescue himself [through the destruction of another person's property], even in a situation of piku'ach nefesh. And the words of Rashi in Bava Kama 60 require further examination… We must certainly say that there was only a distant concern regarding piku'ach nefesh, or else he (King David) was certain that God would rescue him if he were stringent, and therefore he acted stringently so as not to transgress the prohibition of stealing, as the prohibition is merely set aside [and not permitted]. This is what we must say that Rashi meant, rather than say something that is impossible to say. (Yoreh De'a I, no. 214)

            On the other hand, there are important authorities who were inclined to adopt Rashi's position according to its plain sense. Among the most prominent members of this camp was R. Yaakov Ettlinger, author of Arukh le-Ner, in Responsa Binyan Tziyon, nos. 167-172. In his view, stealing another person's property[3] is in fact a transgression that is not superseded by piku'ach nefesh. The entire law of piku'ach nefesh is derived (according to one opinion in Yoma 85b) from service in the Temple on Shabbat, and this certainly sets aside only the prohibition of Shabbat – a prohibition between man and God - but it does not set aside the prohibition of stealing and the like. Accordingly, from the very outset, the prohibition of stealing is not included in the allowance.[4]

This argument is difficult, for there are many prohibitions that are not set aside by the Temple service.[5] In addition, the Binyan Tziyon cites the words of the Ramban in his novellae to Ketubot 19a: "We find in an external Baraita: There are three prohibitions that are not superseded by the effort to save life, namely: idolatry, forbidden sexual relations and murder. Rabbi Meir says: Also stealing."[6] In the continuation, the Binyan Tziyon draws a most difficult practical conclusion from here that has enjoyed wide circulation in the halakhic world. According to him, it is forbidden to conduct an autopsy in order to learn how to cure an illness, even when we are dealing with piku'ach nefesh and a situation where "the sick person is before us": "According to Rashi, since a person is forbidden to rescue himself through the destruction of another person's property, all the more so is one forbidden to rescue himself through the disgrace of another person, for dignity is more precious to a person than is property… If so, how can we say that in order to save the life of a sick person, it should be permitted to disgrace and deface a dead person, for presumably he would not waive his disgrace."[7] The novelty and difficulty in the position of the Binyan Tziyon is clear, but in different ways various Posekim adopted such a position.

            On the assumption that a person is permitted to rescue himself through the destruction of another person's property on condition that he will pay, and on the assumption that there is an obligation to pay (a matter that will be discussed below), is a person permitted to rescue himself when it is not in his mind to pay, e.g., where he knows that he will not be able to offer compensation? The simple answer is that this is permitted, for this too is included in the rule of piku'ach nefesh. However, from the wording of the Rosh (no. 12), who understood our passage as did the Tosafot, it is possible to understand that in such a situation, it is forbidden: "One is forbidden to rescue himself through the destruction of a person's property on condition of being exempt; rather he may rescue himself and pay" (see also the Meiri: "One is forbidden to rescue himself with another person's property on condition not to pay").

This, however, is difficult to understand. It is true that some understand that a person who causes damage to another person and does not pay not only transgresses in that he does not pay money that he is obligated to pay, but the damage itself is a more serious offense when it is not accompanied by payment.[8] But why shouldn't even this more stringent prohibition be set aside by piku'ach nefesh? Such an approach is only possible if we fundamentally adopt Rashi's approach according to the Binyan Tziyon, only that we say that when a person destroys the other person's property on condition that he will make payment, this suffices to grant an allowance. Thus, for example, writes R. Shlomo Kluger:

The Torah only permitted the transgression of all except for three sins on the grounds of piku'ach nefesh in the case of a sin between man and God. For the Holy One, Blessed be He, waived his honor and permitted a sin between man and God. But sins between man and his fellow were not permitted on the grounds of piku'ach nefesh. It may be explained that the main reason that a sin between man and God is permitted because of piku'ach nefesh, is that it is better that one desecrate one Shabbat so that he be able to observe many Shabbatot, i.e., that through this transgression, he will live and observe may commandments. This applies to sins between man and God, that even though the honor of God is now lessened, nevertheless afterwards the honor of God will be increased. But regarding a sin between man and his fellow, what advantage is there to the robbery victim that the other person will afterwards perform commandments and good deeds? The bottom line is that he will not be compensated for his loss. Therefore it is only permitted if he knows from whom he is stealing, in which case he can pay him, for then, since the other person will not suffer any loss, saving his life is no worse than saving his money. (Responsa Ha'alef Lekha Shlomo, Yoreh De'a, no. 200)

            Before concluding this part of the shiur, I wish to add a few words about two rulings related to the prohibition of rescuing oneself through the destruction of another person's property. I will begin with the aforementioned responsum of the Binyan Tziyon regarding autopsies. Without exhausting the issue,[9] I wish to note that on the face of it the Binyan Tziyon's stringency is based on the absence of the deceased's consent to the procedure; for he clarifies that as a rule the strict prohibition to cause harm to another person is based on a lack of consent, and the special law that a person must allow himself to be killed rather than kill another person teaches that he must allow himself to be killed even if the other person consents to be killed. If so, when we are not dealing with murder, his consent helps. From here it follows that if the deceased had signed an organ donor card (assuming that an analogy may be drawn between autopsies and organ donation[10]), even the Binyan Tziyon should agree that taking his organs is permitted.

On the other hand, even though I noted earlier that the Binyan Tziyon's understanding is novel and difficult to digest, with respect to organ donation against the wishes of the deceased,[11] I doubt that many would disagree with the Binyan Tziyon. A rational analysis of the case presents us with a conflict between taking an organ from the deceased against his will and saving the life of a living person, and on the face of it this conflict should be decided in favor of the latter. This notwithstanding, human society is not inclined to accept this resolution. The difference in policy between different countries is limited to the (very important!) question as to the default case: Must a person express his consent to the removal of his organs after death, or perhaps the opposite; but an organ may not be removed from a person's body against his expressed wishes even for the purpose of saving another person's life. Of course, this does not mean that a Torah outlook must accept this position, but as stated, I doubt whether anyone will disagree with this.[12] I would be happy to hear the views of others on this question.

            Another ruling that I wish to briefly discuss was issued by Rabbi Haim David Halevi.[13] He was asked as follows:

I am in possession of money that was entrusted to me by another person… I am exceedingly hard-pressed at this time, and I am embarrassed to ask for charity… For me this is a case of piku'ach nefesh… May I take that person's money to rescue myself… Surely piku'ach nefesh sets aside the entire Torah.

In his responsum, Rabbi Haim David Halevi writes that even according to the Tosafot one is forbidden to rescue himself with another person's property if he does not intend to pay him back, and therefore it is certainly forbidden. He adds:

Do not ask from the rule that piku'ach nefesh sets aside the entire Torah, and according to what you say you are in a situation of piku'ach nefesh; why then should this not set aside the Torah's prohibition against stealing? For how do you know that it is not also a situation of piku'ach nefesh for the other person. Chazal have already said (Bava Kama 119a): "Rabbi Yochanan said: Whoever steals from his fellow the value of a peruta it is as if he took his life from him. As it is stated: 'So are the ways of everyone who is greedy of gain; it takes away the life of its owner' (Mishlei 1:19)." Perhaps at the time when that person comes to retrieve his deposit from you and you deny it, you will be taking his life at that time. What do you see to rescue your life with his life?

This argument aroused criticism: Would it be different if the other person were rich so that he would definitely not be in danger if his deposit were lost? And in his second responsum on the matter, he does not reject the possibility that such a distinction can be made. In my opinion, it is clear that when Rav Halevi was asked this sad question, he was confident that his stringent ruling would not mean that the person asking the question would die of hunger, but rather that he would find another solution. Generally speaking such questions are not raised in a sterile halakhic laboratory (answering questions in a vacuum) that weighs human life against the prohibition of stealing, but rather in the context of the real world that is complex and multi-dimensional (with many X-factors). For explanatory purposes it might be added that Chazal say that if one steals from another person, it is as if he takes his life. But it seems difficult to me to draw conclusions that distinguish between a poor man and a rich one.

II. The obligation to pay

            While according to Rashi the main challenge lies in understanding the Gemara's conclusion that one is forbidden to rescue himself with another person's property, according to the Tosafot the situation is just the opposite. The conclusion is that a person is permitted to rescue himself with another person's property, only that he has to pay him if he does so. The difficulty is how to understand King David's initial uncertainty: Why should there be no obligation to pay for the damage that was done?

            Here is the place to clarify that the obligation to make payment could stem from two different laws: din mazik (the law governing one who causes damage to another person) or din neheneh (the law governing one who derives benefit from another person). Din mazik, because he damaged another person's property; din neheneh, for we are dealing here – using the terminology of the passage on p. 58a discussed at length in shiur 7 – with a person who derives benefit from another person without the latter's knowledge and at his expense[14] (if Reuven rescued Shimon with Levi's money, there is a split between the damage and the benefit). These are two different sources of obligation, each with its own parameters, and each perhaps leading to a different level of liability. Of course, the initial assumption that one who rescues himself with another person's property is exempt from making payment, on the assumption that the exemption is absolute, must reject both of these sources of obligation. As for din neheneh, the matter touches upon the law of driving away a lion from another person's property, which we discussed in the aforementioned shiur. Here I will focus on the question of imposing obligation based on din mazik.

            Why should this person not be liable based on din mazik? Surely we are dealing with a person who knowingly and intentionally caused damage to another person's property. I will open with an approach that I am inclined not to accept.

            According to this approach, paying for damage is seen as a sort of punishment imposed on the person who caused the damage for transgressing the prohibition to cause damage to another person's property. It may be possible to find support for this understanding in the following exceedingly interesting passage of Rav Kook:

Social punishments, especially for property damage, have two spiritual sources: good and evil. The one stems from the recognition that one is forbidden to act perversely, and that one who acts perversely must be punished in order to strengthen this good recognition. The second comes from miserliness, that the other person must not benefit from or touch my property, because the feeling of "mine" and "me" is immeasurably strong and heavy. All judgments that lack a Divine source draw from the evil source, whereas all the Divine judgments have nothing of the evil, for everything stems from the source of good of truth and uprightness itself. (Arpilei Tohar, p. 93)

            Rav Kook relates favorably to the understanding that focuses the laws of damage on the aspiration to mend the ways of the mazik through punishment, and negates the understanding that comes to compensate the nizak (the person who suffered the damage) for the damage that was caused him. Regarding the matter at hand, certainly if we adopt such an understanding, that the imposition of liability is based on punishment, then when the action is permitted on the grounds of piku'ach nefesh, there is no room for imposing liability. For punishment must not be imposed upon someone acting in a permitted (and even obligatory) manner. Of course, even according to this analysis, the Gemara's conclusion changes matters.

            In my opinion, however, this very understanding is exceedingly difficult. There are indeed cases – and in the near future we shall deal with them at the beginning of chapter Ha-Chovel – in which the severity of the conduct of the mazik succeeds in shifting our focus from the interests of the nizak to the punishment due to the mazik. On the simple level, this is precisely the difference between obligations that fall into the category of "penalty" and those that are regarded as "money due." But do all the laws of damage fall into the category of punishments? Does all concern about the interests of the nizak fall under the heading of evil and miserliness?

            It is possible to suggest a more moderate formulation of the aforementioned understanding. According to this formulation, even though the laws of damage are focused on the compensation that is offered the nizak and are not treated as punishments,[15] the justification for the Torah's choosing to impose upon a mazik the obligation to compensate a nizak for the damage he suffered stems from the fact that the mazik is responsible for the damage. The goal is not punishment, but the justification for making a claim against him is his guilt. Accordingly, in the absence of such guilt, a claim cannot be brought against him to offer compensation. In practice, an argument like this is one of the rationales that we will make use of in the framework of the complicated passages dealing with a person who causes damage with permission to do so, which we shall touch upon in the next shiur. The view that grants exemption when the person acts with permission can be explained as follows: There is no guilt upon which we can base the casting of liability, or in a slightly different formulation, that his conduct does not fall into the category of damage, but rather one of legitimate conduct, and in such a situation the damage is regarded as sort of a natural disaster that befell the person who suffered the damage, in which case there is no expectation that "the person who caused the damage" should have to offer compensation.

            However, even if we accept such an understanding, applying it to our case is exceedingly difficult, and we can easily understand the Gemara's conclusion. Surely we are not dealing with a case where the person is engaged in a permitted and natural activity, and by chance damage was caused, in which case we could say that this does not fall into the category of damage. Rather we are dealing with a person who consciously and willingly chooses to damage another person's property. It is true that he is forced to do this and that the Torah permits him to do so ab initio, but can we say that he does not fall into the category of a mazik or that he is not responsible for the damage that was caused?

            And furthermore, there is room for an understanding that is different than one that imposes liability based on guilt. This understanding widens the gap between the laws of damage and the laws of punishment.[16] Surely there is a striking difference between the two realms. In the case of punishments, the court deals with the question whether to initiate a new injury – if the court rules in favor of punishment, it will cause injury to the criminal, and if the ruling is not to punish, the injury will not be incurred. On the other hand, when the court convenes to consider the damage, the injury is already a given: the damage was caused. The question is merely who must bear it (in the economic sense). There are two possibilities: the mazik or the nizak (apart from intermediate positions, such as half-damage). From this perspective, there is no need to ascribe guilt in order to reach the conclusion that it is more just to say that the mazik should bear the burden than that the nizak should do so. This is especially true in a case where the mazik acted on his own initiative and in order to advance his own personal interest, as in our case. The conclusion that one is permitted to rescue himself through the destruction of another person's property does not imply that the other person should bear the economic burden that this involves. At this point there is a certain closeness between the two sources of obligation that were mentioned above: the din mazik and the din neheneh, despite the vast differences between them.

The position of the Ra'avad

            In conclusion, I wish to comment on the unique position of the Ra'avad regarding the financial obligation. The Ra'avad in his novellae at the end of the tractate, cited in fuller form by the Shita Mekubetzet (below 117b), relates to our passage in a most comprehensive manner, both to the question of the prohibition and to the issue of the financial obligation, and we cannot address the full scope of his words in this forum. We shall content ourselves with a single point, where the Ra'avad distinguishes between two different situations with respect to the question of the liability of the mazik. The source of this halakha is found already in the Yerushalmi at the end of chapter Ha-Chovel:

If a Jew was forced by non-Jews, and they took from him another person's money in his presence, he is exempt; if he took it and gave it to them, he is liable. Rabbi Yosi said: This applies when they said to him "money" without specifying; but if they said "the money of such-and-such," even if he took it and gave it to them, he is exempt.

            Rabbi Yosi in the Yerushalmi distinguishes between a case where the non-Jew threatens a Jew, ordering him to give him money or else he will kill him, and he gives him another person's money, in which case he is liable; and a case where the non-Jew threatens the Jew, telling him to give him another person's money, and he does so, in which case he is exempt. The Ra'avad accepts this distinction and writes:

If they forced him, forcing his body, or threatening to kill him or torture him in a way that could lead to danger, and they told him to bring them another person's money, and he brought it, he is exempt, for there is nothing that stands before piku'ach nefesh, except for idolatry, forbidden sexual relations and murder. And even doubtful piku'ach nefesh sets aside Shabbat and the like. And if [Chazal] said: Let him be killed and let him not kill another person, they did not say: Let him be killed, and let him not hand over another person's money. But in truth if they said to him: Give us money or we will torture you, and he is wealthy and he went and brought another person's money, he is liable, as they did not ask for the other person's money, and he should have given his own money and rescued himself.

"He is exempt, for there is nothing that stands before piku'ach nefesh." The Ra'avad maintains – and this is a novel position – that we can infer the law in monetary cases from the law regarding piku'ach nefesh. Therefore, when a person hands over another person's money under threat, he is exempt. Nevertheless, if the threat is a general one, and he hands over the other person's money, he is liable. Why so? We can understand from the words of the Ra'avad that there was no compulsion, since he could have handed over his own money and he chose to hand over the other person's money. According to this, if he had no money of his own, and the only money available to him is the other person's money, he is exempt on the grounds of piku'ach nefesh. According to this, however, it is difficult to understand our Gemara's conclusion, that there is liability for burning another person's field in order to save himself, even in a case of piku'ach nefesh.

            Therefore, it seems to me that the words of the Ra'avad and the ruling of Rabbi Yosi in the Yerushalmi should be understood differently. The Ra'avad distinguishes between two different situations of compelling circumstances, one of which leads to financial exemption, while the other one does not. One situation is a case where some external party compels a person to do something, even if he does not force him physically, but only threatens him with a serious threat. In such a case he is considered a tool in the other person's hands, and the act is not attributed to him but to the party issuing the threat.

A second situation is a case where a person is in mortal danger and acts in accordance with the Torah's instruction that piku'ach nefesh supersedes all prohibitions, and he decides on his own to perform a certain act that will save his life. In such a situation he is considered as having performed the act, as he is not a tool in the hands of some external party. This has ramifications with respect to financial liability. When somebody threatens to kill a person if he doesn't hand over another person's money, the law of piku'ach nefesh (which rejects the option of giving up his life) defines the situation as one in which the person issuing the threat is the active party, and the other person is not regarded as a mazik. In contrast, when a person burns another person's field in order to save himself from his enemies, even though this is permitted on the grounds of piku'ach nefesh, we are dealing with his willing choice, and he is the mazik and so the obligation to pay falls upon him. When the non-Jew threatens a person, ordering him to hand over money, and he chooses to give him another person's money, we are dealing with a more complex situation, but in general, the case can be compared to that of one who burns the other person's field, and not to that of one who was compelled to hand over another person's property. The person is being forced to hand over money, but he chooses to use the other person's property in order to free himself of the obligation falling upon him. Even if he has no other money, this is his choice and he is regarded as the mazik.[17]

 

Sources for the Next Shiur (no. 11)

            For the next shiur, continue with the Gemara until the second mishna on p. 61b. The end of the shiur will deal with the mishna that closes the chapter on p. 62b and the accompanying Gemara, which discuss fire damage on Chanuka. The shiur will focus upon two main passages relating to the general question of causing damage with permission. The following week Rav Ezra Bick will deliver a shiur on the exemption regarding concealed items with respect to fire damage, which is discussed on pages 61b-62a.

1. Distancing with respect to fire damage – see the mishna on p. 61a; the first mishna on p. 61b, and the accompanying Gemara; the Meiri in the passage printed below.

Bava Metzia 118b, the mishna and the Gemara until "she-im hizik patur mi-leshalem"; Shita Mekubetzet (printed below). An important point: Does our Gemara understand the dispute between Rabbi Shimon and the Sages in the mishna in Bava Batra in the same way that it is understood in Bava Metzia?

See the question raised by the Rif on our passage and the answer that he offers (25b in the Alfasi, end of the first wide line, "Amar Rav Yosef" until the mishna). See also Ketzot ha-Choshen 155, no. 1 (printed below) and formulate the difference between the two approaches.

2. Fire damage on Chanuka – 62b until the end of the chapter, and the parallel passage in Shabbat 21b (bottom), "Tenan hatam… ati le-imnu'ei mi-mitzva"; Rambam, Hilkhot Nizkei Mamon 14:13. [It is recommended that one see the following passages earlier in our tractate: p. 30a, the first mishna and the accompanying Gemara until the beginning of 30b; p. 32a, the second mishna and the accompanying Gemara.] About what point do Rabbi Yehuda and the Sages disagree with respect to fire damage on Chanuka?

Meiri, Bava Kama 61b:

Our Rabbis ruled that there is a distinction between one who lights a fire on his own premises and one who lights a fire on another person's premises. For regarding one who lights a fire on his own premises, distance suffices, even without a fence, or a canal, or a public road. And they only required a high fence if he lights the fire close by. But on another person's premises, since he lit the fire without permission, he needs a fence or a canal. And all the more so, regarding one who lights on his own premises, these suffice without distance.

Shita Mekubetzet, Bava Metzia 118b:

All of them maintain that as long as the Sages gave him permission [to do a certain thing], if he caused damage [thereby], he is exempt from paying. And Rabbi Shimon is included among them. I have a difficulty; there are many Tannaim like them, and in several places they said about this one that he is exempt and about the other one that he is liable. Rather, it was not necessary to say regarding those who do something on their own premises and there is no negligence that they are exempt, for this is not because the court gave them permission to act. And similarly one who does something on another person's premises, and with that other person's permission, for this too is not because the court gave permission. But those who do something in a place that it is not their own, e.g., taking out manure [into a public thoroughfare] according to Rabbi Yehuda, and preparing materials in a public thoroughfare according to Rabbi Shimon ben Gamliel, which is only because of the permission granted by the court. And also Rabbi Shimon – even though he does it on his own premises, since he is above the other person and fire is a common hazard and it requires constant watching, but nevertheless Rabbi Shimon exempts him from liability – therefore he is counted among them.

Ketzot ha-Choshen 155, no. 1:

Were it not for the words of the Rif, it would appear to me that here the measure regarding an oven is only that it should not be less than this measure, for if it is less than this measure, it is a source of certain damage, and one is not permitted to cause damage with the intention of paying. Therefore one must distance the fire so that he not cause damage with the intention of paying. But even when he distances the fire in accordance with this measure, which is four cubits, it is still possible that the fire will spread, and therefore he must pay for the damage he causes. But as for what is found in chapter Ha-kones where they say that he distanced the fire in proper fashion… there we are dealing with a case where he distanced the fire in such a way that it would be impossible for the fire to spread to the other person's stack of grain, and for this reason it is considered an absolutely unavoidable accident and a blow by the hands of heaven, and so he is exempt from paying.

(Translated by David Strauss)

, full_html, Rav Huna said: There were there stacks of barley that belonged to Israelites but in which Philistines had hidden themselves, and what he (King David) asked [the Sanhedrin] was whether it was permissible to rescue oneself through the destruction of another's property ... (Bava Kama 60b)