Jewish Law - Articles ("The Good Samaritan: Monetary Aspects")

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The Good Samaritan: Monetary Aspects
Rabbi Aaron Kirschenbaum

The Mitzvah

Had the duty of the bystander to come to the rescue of his fellow man in peril been derived exclusively as an extension of the law regarding the restoration of lost property, it would have been limited to the personal ability of the rescuer. Thou shall not stand idly by..., as a verse independent of the halacha of hashavat avedah, implies an all-encompassing duty - including one's financial resources as well. It broadens the duty from the person of the rescuer to his purse, i.e., it obligates him to go to extraordinary lengths to save the victim - even to the extent of actually hiring help.⁴

To what extent does the duty to rescue include one's financial resources as well?

Thou shall not stand idly by means that thou shall not hinder thyself. Rather go to any extent necessary in order to save the life of thy fellow. ⁵

These words would seem to indicate one's financial resources must be utilized without apparent limit.

Jewish law normally requires the maximum expenditure of twenty percent of one's resources, if necessary, for the fulfillment of a positive commandment; but it demands the sacrifice of all of one's resources, if necessary for the avoidance of the overt violation of a negative commandment.⁶ Since the violation of Thou shall not stand idly by is not an overt act, this demand that one sacrifice all one's resources to save one in peril is due to the supreme sanctity of human life.⁷ The actual limit is the sum total of the rescuer's financial resources. In other words, he need not go into debt in order to save his fellow.⁸

Now, the ransoming of captives is a mitzvah one of whose sources is the verse, Thou shall not stand idly by. ⁹ The maximum one must spend on the ransoming of captives is twenty percent of one's assets.¹⁰ This apparently contradicts Rashi.

It would seem to me that perhaps where the bystander is called upon as an individual to save someone in immediate peril, his obligation has no monetary limit. Where the citizen is called upon as the member of the community¹¹ to participate in the ransoming of captives, he cannot be taxed for more than twenty percent of his wealth. ¹²

There is an opinion, however, that just as in all cases of the demand for positive performance, Thou shall not stand idly by, too, does not require more than twenty percent. ¹³

But the financial obligation, whether it be without limit or limited to twenty percent of one's assets, does not represent a lien on the property of the bystander; the duty remains a personal one, and, as we have seen, the bystander need not go into debt in order to rescue.

The rescuer does have the right to sue the rescued party ¹⁴ in order to recover the money he expended. ¹⁵ This holds true even if the victim protests, wishes not be rescued, and later refuses to compensate the rescuer.¹⁶ Nay more, there is a lien on his property, and even his heirs may be sued for compensation. ¹⁷

The rescued party is exempted from compensation if the rescuer, while saving himself, incurred no additional losses in saving the former -- the principle being, ¹⁸ "Though one has derived benefit, if the other has thereby sustained no loss, there is no liability [on the part of the former] to pay." ¹⁹

In any event, the personal nature of the obligation to fulfill Thou shall not stand idly by also works to the advantage of the rescued party. Even if he is destitute and may subsequently plead bankruptcy,²⁰ the duty of the rescuer remains unchanged. ²¹

The special mitzvah nature of the obligation to save someone in peril impelled the Rabbis to make an enactment providing for the exemption of the rescuer from any tort committed in the course of the rescue operation.

The basic law of torts in the halacha is clear:

Man is always [in the category of one who has been] "forewarned" [and hence is liable for damages] whether [he acts] inadvertently or willfully, under coercion or voluntarily, whether awake or asleep. ²²

This law is de'oraita, of scriptural derivation. Exceptionally, however, a rescuer is immune from suit for the damages he committed.

Thus,

If one chases after the pursuer in order to rescue the pursued, and he breaks objects belonging to the pursuer or to anyone else, he is exempt. This rule is not [a matter of] strict [i.e., biblical] law [of torts], but is an enactment [takkanah] made in order that one should not refrain from rescuing another or lose time through being too careful when chasing a pursuer. ²³

The fourth century talmudic source of this provision clearly recognized that the biblically ordained strict principle of near-absolute tort liability²⁴ was being violated here. Thus, Rabba in the Talmud²⁵ justifies this "violation" as being in the public interest. For if you were not to rule thus [but rather make the rescuer liable, no one would put himself out to rescue a fellowman from the hands of a pursuer.

The takkanah, of course, is eminently sensible; and really much ado should not be made of it. I should like, however, to contrast this premedieval dictum with the Anglo-American law of today. In an article entitled, "The Good Samaritan and the Bad", Professor Gregory of the University of Virginia Law School, puts it bluntly:

Our law says [he declares] that you do not have to volunteer to relieve others from dangers not due to your own fault; but if you do volunteer - if you engage in some activity that is followed by harm to such another - then a court may let a jury scrutinize what you did and call it actionable negligence - no matter how hard you tried [Italics provided]. Many people aware of this think it much wiser to do nothing at all. If you are under a duty to "fease" the non-feasance can never be held actionable. But if you do engage in feasance toward anybody, then under most circumstances you must "fease" carefully. Moral: Don't ever "fease" unless you have to!

Professor Gregory is not very proud of his legal system. In a footnote, he writes, "Of course, I do not want to be understood as advising people never to help others who are in danger or distress." He does not; but the law implicivly does. This serious lacuna may be attributed to the general Anglo-American reluctance to countenance nonfeasance as the basis of any liability. ²⁷ I might add that technically speaking, the Good Samaritan is liable to tort action instituted by the very person he saved! ²⁸ Compare this with the talmudic statement of the fourth century just cited: our talmudic Good Samaritan, duty-bound to come to the rescue of his fellow, is exempt from liability for the objects he broke whether they belonged to the pursued or to any other person.

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