In this fourth and final installment in the series on returning lost property, we will discuss compensation of the finder for his efforts.
A person who picks up a lost item with intent of returning it to its owner will want to know if he will be paid back for losses he incurs in the course of returning it.
For example, someone in a storm who must make of choice of which property to save from water damage: his or his neighbor’s. Where his property is worth something but his neighbor’s is worth far more, his basic inclination is to save his neighbor’s property first. However he does not want to lose out. Can he claim compensation for his losses in saving the other’s property?
A similar case involves loss of income. If saving someone’s property will mean clocking in late for work, can the finder claim compensation for lost income from the owner?
We will discuss these questions, among others, below. As we will see, they have important ramifications beyond the realm of lost property.
Returning Lost Property for Free
The obligation to perform mitzvos is to do so for free. As the Mishna in Avos (2:1) teaches, Hashem allocated each Mitzvah its appropriate reward. We serve Him with our actions, and trust Him to pay us what is due. A mitzvah that is performed in exchange for material remuneration is thus fundamentally flawed: rather than to Hashem who commanded it, the performance of the mitzvah is directed at man.
In a halachic sense we find an expression of this principle in the mitzvah of te’ina, loading, which is actually an exception to the rule. The Gemara (Bava Metzia 31b) notes a dispute among Tanaim concerning the mitzvah of helping somebody load his animal—or a broken-down car for that matter—which is a Torah obligation (Devarim 22:4). According to the Sages one fulfills the mitzvah even when working for pay, while according to Rabbi Shimon one must perform the mitzvah for free.
Halacha follows the opinion of the Sages, and one fulfills the mitzvah even in exchange for payment. In fact there is no obligation to work for free. Yet this is, as noted, the exception to the rule as it is derived from a verse. We therefore infer that in performing all other mitzvos, including unloading an animal (perika), one must perform the mitzvah without payment (Shulchan Aruch, Choshen Mishpat 272:6).
Returning lost property is no exception to this rule (Shulchan Aruch 265:1). In the words of the Rosh (Bava Metzia 2:24), “it is forbidden to take remuneration for the performance of the Mitzvah.”
Claiming Losses
Nevertheless, the Mishna (Bava Metzia 30b) teaches that someone who incurs a loss of work due to returning lost property may claim a certain amount of compensation from the owner: “If he lost [the value of] a silver coin [in wages], he should not claim back the full amount, but rather is paid as an idle laborer worker. If there is a Beis Din he may stipulate in advance [his acceptable wage] in front of them. If there is no Beis Din, with whom shall he stipulate? His own comes first.”
The first halacha in the Mishnah teaches that a person is compensated for lost income, but only as an idle laborer. This term is interpreted in two ways. The Rambam and Shulchan Aruch (265:1) rule that the finder must be paid the sum he would be prepared to accept to take time off from work and being idle. The Rema (ibid.), however, cites the Rosh and Tur who rule that he is paid the amount that he would receive for taking time off to return the Aveida, which is more than the amount that he would take for resting idle.
For instance, if clocking in late would cost a worker $50, he may be prepared to accept $30 for resting idle during that time. For this worker, the time off is worth taking $20 less. If he has to spend his time off occupied in returning someone’s property, however, the time off is worth less to him. Even if the work involved is lighter than his regular job, he might accept no less than $45 for clocking in late.
Moreover, the second halacha of the Mishna teaches that, faced with losses, a finder can stipulate his wages with the owner or before a Beis Din (of three men). If mitzvos must be done for free, why is this permitted?
Your Own Comes First
The matter can be explained based on the conclusion of the Mishnah: “his own comes first.”
For regular mitzvos, one must spend (under ordinary circumstances) whatever money is required to fulfill the mitzvah, such as building a Sukkah, baking or buying Matzah, ensuring one has a pair of Tefillin, and so on. The case of returning lost property, however, is different. The Torah obligates us to take care of other people’s property, but not at the expense of our own property: “his own comes first.” Therefore, one may ask for the entire loss of wages which he incurs.
The basic level of compensation the finder can claim is the amount he is prepared to accept for taking off time from work. If this does not suffice, it is moreover permitted to stipulate any sum that covers financial losses—but no more than this, since the principle is that it is permitted to avert losses, but not to make gains. This is ruled explicitly by the Sema (ibid. 19).
Claiming Property Losses
We saw above a dispute between the Rosh and the Rambam. According to the Rosh, Chazal enacted a formula that takes the labor of retrieving the lost item into account. According to the Rambam, however, this formula is not possible: one may only receive actual compensation for losses, and no payment for the actual labor of returning the aveida.
The same dispute carries into compensating the finder for losses to his own property, which he incurs while returning the aveida. The Rosh, Tur, and Rema (264:3) rule that if the owner is not present at the scene (so that compensation can be agreed upon by the parties), he must compensate the finder for his losses. This is part of the enactment to give people an incentive to return lost property.
The Rambam, on the other hand, maintains that no such enactment was made. Unless the loss is explicitly stipulated in advance, the finder is not entitled to any compensation for his losses.
Returning a Lost Person
The idea of stipulating wages for retrieval of property has ramifications that go beyond the regular boundaries of lost property. The Gemara (Sanhedrin 73; Bava Kama 81) derives an additional mitzvah from the verse of retuning lost property: returning a lost person. This means that whenever we find somebody in a state of danger, whether the threat is to life or to limb, there is a positive mitzvah to assist him—no less than that of returning his property.
Moreover, the same monetary principles that apply to the return of property apply to the rescue of his body. Fundamentally, the mitzvah must be done for free. If I am the only available person to help somebody take out a splinter, I must do so without demanding payment.
This raises a question concerning medical practitioners: Are they obligated to apply their medical knowledge for free, in performing the mitzvah? Is a taxi driver obligated to take medical emergencies to the hospital without charge?
Moreover, the Gemara (Bava Kama 116) teaches that somebody escaping from [unjust] imprisonment, and needing to get across a river, can fraudulently promise the boatman an exorbitant fee. A promise made under pressure of impending loss is not always considered binding. This is ruled by the Shulchan Aruch (Choshen Mishpat 264:7), so that under certain circumstances, somebody in a state of emergency can even promise payment and not be bound by that promise later.
Again: Yours Comes First
Fortunately for doctors and taxi drivers, the principle of “yours comes first”—a person is not obligated to save another’s property when faced with financial loss—applies even to his body. If the boat-man is a professional and taking the escapee over the river means the loss of alternative custom, then he has full right to demand his usual fee.
Even if there is no direct loss from the free treatment of a particular case, a doctor will eventually incur great financial losses if he treats every case of necessity without charge (word would quickly spread!). Because of this, he is not obliged to do treat even individual cases for free (Sema 264:19), and can stipulate his ordinary fee even when the client is a Jew in need. Similarly, a taxi driver is permitted to ask for his usual charge even when the client is in desperate need of getting to the hospital.
