Hilchos Choshen Mishpat
Volume II : Number 28
Saving Yourself At Your Friend's Expense
Question:
A. In this weeks Parsha, Yehuda gave Tamar his signet ring and staff as
collateral, with the express condition that it be returned when he sends
payment to her. Tamar brought the items home and kept them for herself in
case she would need them to save her life, as she ultimately did.
Considering that Yehuda only gave them to her for a short while and to be
kept in a specific place, were her actions Halachically correct?
B. If a person is trying to save his friend's possessions from flood or
fire, etc., and in the process caused damage to his friends other
possessions (e.g. he hosed down his home to put out a fire and in the
process caused a great amount of water damage), does he have to pay for
the damages that he has caused?
Answer:
- A. What Tamar did was Halachically correct. A person may save her (or his)
life by taking someone else's items without permission, on condition that
after the threat to her (or his) life has passed, the item must be
returned, or paid for if it has been damaged or is no longer available. (1)
- B. A person that hurriedly extinguishes a fire in his friend's home, and
in the process causes extensive water damage that was not necessary in
order to extinguishing the fire, is exempt from paying for the damage
that he caused. This is true whether the damage was caused to the property
of the person in whom's home the fire was, or to a neighbor. This is a
Takanas Chachomim (Rabbinic Injunction) which was made because if a person
would be held liable in such a case, people might hesitate before going to
save their friend's property from loss. (2)
Sources:
(1) The Gemara in Sanhedrin (74a) states that it is forbidden for a
person to save himself from danger by causing damage to his friend's
property. However, Tosafos (Bava Kamma 60b D"H Mahu L'Hatzil) qualify
this by saying that if he pays for the damage that he has caused to
his friend afterwards, he may do so.
Therefore, since Tamar knew that if she would not have proof that she had
become pregnant from Yehuda she would be killed, as we see that she was
actually being taken out to be killed, and only by showing the collateral
could she prove that her child was from him and save her life, she was
permitted to keep Yehuda's possessions. Although keeping a collateral in
an unauthorized manner is considered theft (Shelichus Yad B'Pikodon), and
Sho'el Shelo MiDaas (a borrower without permission - see the Shulchan
Oruch in Choshen Mishpat 292:1), she was in a situation of danger and was
permitted to do so, as long as she would eventually return it. At that
time, she would have a right to claim the goat's kid (Gdi Ha-Izim) that
he had pledged to give to her.
(2) The source for this injunction is also in the above mentioned Gemara
in Sanhedrin.
Feedback is appreciated! It can be sent toatendler@torah.org.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
and approval.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
