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The Good Samaritan: Monetary Aspects
Rabbi Aaron Kirschenbaum

Rabbi Aaron Kirschenbaum - Professor, Tel Aviv University

  1. Maimonides, Torts, "Murder and the Preservation of Life" 1:14, summarizing the talmudic discussion in B. Sanhedrin 73a.
  2. Because they viewed the suffix it as superfluous, the Tannain interpreted it as meaning him and therefore understood the verse as commanding, And thou shalt restore him [a person who is losing his life] to himself (R. Meir Halevi Abulafia Yad Ramah-Sanhedrin 73a).
  3. B. Sanhedrin 73a: B. Bava Kamma 81b; Sifrei Ki Tezei 22:2 (para. 223) (ed. Finkelstein. p. 256).
  4. B. Sonhedrin 73a.
  5. Rashi, Sanhedrin 73a. The italics have been provided for the translation of hazor al kal ha-zedadim.
  6. Shulchan Aruch, Orach Chaim 656 gloss.
  7. See further R. Hanoch H. Agus, Marcheshet (offset, New York n.d.) I. 43:7-10. Rabbi Agus himself adopts the view of Rivash (Response 387) that all negative commandments -- even those whose violation does not entail an overt act -- demand that one sacrifice all of one's resources to avoid violation. Hence, according to his view, there is nothing exceptional in Rashi's demand
  8. R. Elijah b. Samuel of Lublin, Responsa Yad Eliahu (Amsterdam, 1712) 43.
  9. Maimonides Seeds, "Gifts to the Poor" 8:10, Tur and Shulchan Aruch Y.D. 252:1-3.
  10. Marcheshet, I, 43, 7-10, on the basis of Gittin 45a and Ketubot 50a.
  11. Cf. B. Gittin 45a.
  12. See further: R. Moshe Shternbuch, "Be'inyan Oness Belo Ta'aseh Ufidion Shevuyin", Yad Shaul (Tel Aviv, 1953), pp. 373-375 [reprinted in: R. Yehiel Yaakov Weinberg, Seridei Esh, I (Jerusalem: Mossad Harav Kook, 1967), pp. 304-306] Rabbi Agus himself interprets the law, that the duty to ransom captives is limited to twenty percent, as referring only to a situation where the captivity poses no immediate threat to life. Should life be threatened, the duty would require ransom without limit. The wording of Maimonides, ibid., however, renders such distinctions as Rabbi Agus and I have proposed as being forced.
  13. See sources and interpretation in: R. Shalom Mordecai Schwadron of Brezan, Responsa Maharsham, vol. V (Satmar, 1926), resp. 54.
  14. To be elaborated upon below.
  15. R. Meir Halevi Abulafia, Yad Ramah - Sanhedrin 73a R. Menahem Himeiri, Bet Hebechirah - Sanhedrin, ibid. (ed. A. Sofer,) p. 273.
  16. R. Meir B. Baruch, Responsa Maharam Rothenberg, IV Prague Collection (M.A. Bloch, ed.; Budapest: J. Steinberg, 1895; Reprint: Tel Aviv, 1969), resp. 39, referring specifically to a captive who is redeemed and then obligated to compensate his rescuers for their expenditures on the ransom. The principle was then extended to all who must be rescued under the "Thou shall not stand idly by" law, including a patient who refuses treatment; the physician is obligated to treat him and may subsequently receive his fee (determined by the courts or by the current rates) despite protestations of the patient; R. Joseph Engel, Gilyonei Hashass (New York, 1949,) Sanhedrin 73a.
  17. Responsa Rosh 85:2 R. Joseph b. David Philosoph, Responsa Bet David (cited in Warhaftig, op. cit, p. 228) limits this lien on the property to cases where the person in jeopardy (in captivity or in serious illness) does not register protests but if he protests the rescue, his heirs may not be sued. This opinion appears to be in conflict with the reasoning of Responsa Maharam cited in the previous note. Indeed, R. Samuel de Medina (Responsa Maharashdam, Y.D. 204) speculates whether it might not be possible to limit the law as stated in Responsa Maharam to collection before the ransoming, but had the captive protested he could not be subsequently compelled to compensate his redeemers after having been redeemed. It seems to me that this speculation on the Maharashdam is due to his dependence on the Mordechai (Bava Kamma 58) for the responsum of Maharam. We, who are fortunate in having the original Responsa Maharam before us, know that the Maharam ruled that even after redemption, a protesting captive may be compelled to compensate his ransomers.
  18. B. Bava Kamma 2b.
  19. R. Chairn Benveniste, Knesset Hagedolah, Y.D. 421: (Tur) 3.
  20. Rosh (R. Asher b. Yehiel), Sanhedrin 8:2.
  21. R. Hameiri, ibid. (although the reading is unclear) and Rosh, ibid. See further R. Eliezer Waldenberg, Responsa Ziz Eliezer, V "Ramat Rachel" (Jerusalem 1957), sect. 24, and R. Yitzhak Ze'ev Kahana, Pekuach Nefesh Bahalachah, Sinai 46 (1960), pp. 129-130, who apply these principles to the medical practitioner: A doctor must treat an indigent patient. According to Rabbi Waldenberg, if, however, there are a number of physicians in a specific locality, there must either be a system of rotation for the free treatment of the impoverished or the institution of state-supported medicine.
  22. Based upon M. Kamma 2:6; B. Sanhedrin 72a; Maimonides Torts, "Assaults and Damages" 1:12; 6:1.
  23. Maimonides, Torts "Wounding and Damaging" 8:12.
  24. For if one may not save himself by destroying or by appropriating another's property, it follows a fortiori that one may not save others by such measures. See further, R. Margoliot, Margoliot Hayam, p. 82.
  25. B. Bava Kamma 117b.
  26. Ratcliffe, The Good Samaritan and the Law, p.28. Israeli law is not much better; cf. U. Yadin, "The Bad and the Good Samaritan" (Hebrew), Mishpatim 2 (1970), 260-262; Daniel Friedmann, Dine Assiat Osher Velo Bemishpat (Tel Aviv: Avukah, 1970), pp.27-30; and M. Ben Porat, "The Good Samaritan" (Hebrew; Tel Aviv University Law Review 7 (1979-1980), 269-281.
  27. See Prosser and Keeton, The Law of Torts (5th ed., St. Paul, Minn.: West, 1984), pp.375-378.
  28. See J.R. Spencer, "The Rescuer as Defendant", Cambridge Law Journal 28 (19700), 30-33.
  29. The supposition on my part is substantiated by the style of thinking and the stray references to the law of the lost objects which we find, for example, in: R. Samuel de Medina, Responsa Maharashdam (Reprint; 2 vols.; New York: M.P. Press, 1959), Y.D., resp. 204.
  30. Tosafot, s.v. im, Bava Mezia 31b; also Responsa Maharashdam, ibid.
  31. Kefoel batel, "as an unemployed laborer", the definition of which is the subject of extended discussion; for a digest of the opinions involved in this definition, see Talmudic Encyclopedia, XI, "Hashavat Avedah", pp.82-84.
  32. M. Bava Mezia 2:9.
  33. Full compensation for losses sustained by the rescuer in the absence of court permission or in the absence of explicit warranty by the rescued party when circumstances of speed and anxiety preclude the possibility of making such warranty is also evident from Rosh, Bava Mezia 2:28, cited also in Tur, Ch. M. 264, Bet Yosef, H.M. 265, and Aruch Hashulchan, Ch.M. 264:3.
  34. Maimonides Torts, "Robbery and Lost Objects" 13:19; Tur and Shulchan Aruch Ch.M. 267:26; with special provision being made to facilitate collection. See sources cited above, note 15.
  35. The obligation of the rescued party to reimburse his rescuer for his labor and expenditures, as that of an owner of a lost object to reimburse the one who found and returned it to him, is, in all probability, that of an implied contract of labor. (See further B. Bava Mezia lOla and Maimonides Torts, "Robbery and Lost Objects" 10:4 for the rabbinic analogue to negotiorum gestio.) Such contracts in Jewish law do not cover disabilities of the laborer incurred in the course in his employment.
  36. This ruling is based upon M. Peah 5:4 (majority opinion) and Tur Yoreh De'ah 253(4). Maimonides, however, in his Commentary to the Mishnah (ibid.) does charge the former bankrupt, who at present can afford to do so, with the moral duty to compensate his rescuer; cd. Tosefot Rabbi Akiva Eger and Tif'eret Yisrael Boaz, ad, loc.
  37. This ruling is derived a fortiori from the case of an unsuccessful attempt to salvage someone's property; see B. Bava Kamma 116a (bot.)
  38. This ruling is based upon a narrow, literal interpretation of Rosh, Sanhedrin 8:2.
  39. All the foregoing: Responsa Maharshdam, Y.D. resp. 204.
  40. See further Wallace M. Rudolph, "The Duty to Act: A Proposed Rule", The Good Samaritan and the Law, pp. 243-278; and Warren P. Miller and Michael A. Zimmerman, "The Good Samaritan Act of 1966: A Proposal", ibid., pp.229-300.
  41. For an example of the utilization of a national (quasi-governmental) institution for the implementation of the halachic requirements in a similar though not identical, way, see R. Waldenberg, Jerusalem 5717 "Ramat Rachel", sect. 24:6-7.
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