Question
I buy used silver objects, melt them down and make new silver products. Recently a person brought me quite a few silver products to sell. While I was looking over the various items I noticed a phone number on a piece of paper. Suspecting that the seller was a thief, I called the phone number and asked the person who answered if he was burglarized recently. When he answered affirmatively, I asked him if he would like me to trap the thief in my store and call the police. When he said yes I quickly called the police and locked the store. Realizing what was happening the thief wantonly broke many items in my store causing me ten thousand dollars’ worth of damage. Can I ask the owner of the stolen goods to reimburse me for the damages I suffered in trying to help him recover his stolen goods? Was I required to do what I did? If I had bought the stolen goods would I have been entitled to reimbursement or would I have to surrender the goods to their owner without reimbursement?
Answer
In the previous article when answering your second and third questions we learned that when one willingly either spent money or lost money in order to help another person he is entitled to reimbursement. We left open the question whether in your situation you are entitled to reimbursement since the loss that you suffered happened against your will.
For example, the case in the Gemara where one was entitled to reimbursement for a loss that he suffered was where one willingly left his donkey to drown in order to save another person’s donkey. However, here you didn’t tell the thief to break your goods. Rather, it was done totally against your wishes. An additional difference is that breaking your goods did not help in any way to recover the stolen goods. Rather, it was an act of vengeance by the thief against you for having called the police on him and a means to pressure you to release him. We can only make the owner of the stolen goods pay you if we have legal justification for such a ruling.
In order to determine if the differences we described are significant, it is very important to understand the rationale why one who spent money or voluntarily lost money to save another person’s property is entitled to reimbursement.
The basis for the benefactor’s right to reimbursement is the general principle that one who was a beneficiary of another person’s benevolence owes money to his benefactor for the benefit that he received if the benefactor suffered a loss thereby. Of course, if the benefactor wanted to give a present, the beneficiary does not owe anything. However, if he did not intend to give a present he is entitled to reimbursement and the benefactor is known as a yoreid.
The classic case in the Gemoro (BM 101A) of a yoreid is where a person, who was not hired to do so, planted a tree on another person’s property. If the owner of the property does not demand that the one who planted it should remove the tree, the owner must pay for the benefit that he received. A common application of this principle is that it is the basis for requiring a landlord to pay his tenant for the home improvements that the tenant left in the rental upon vacating.
In order to be classified as a yoreid one does not need to do a positive act. Even one who voluntarily loses his property in order to benefit another is also considered to be a yoreid. (This is the opinion of Tosafos in BK 58A but not Tosafos in Kesubos 107B. However, the opinion of Tosafos in BK is authoritative as it is ruled by SA in CM. 264.) That is the reason for the ruling we mentioned last time that one who forfeits his donkey in order to save another person’s donkey is entitled to reimbursement.
This concept is also the rationale for a ruling of the SA in a case which is very similar to yours. The SA (CM 128, 2), based on the Yerushalmi, rules that if a thief took money from one Jew (since it was, for example, more convenient) when he really wanted to steal money from a different Jew, the Jew whose money was saved does not owe any money to the Jew whose money was taken by the thief. Even though money of one Jew saved the money of another Jew, nevertheless, here the beneficiary is not obligated to compensate the victim, whose money saved him money. The Nesivos (128, 5) explains that this ruling is in conformance with the rules of yoreid since he proves from the Shach that in order to be a yoreid the benefactor must himself be the one who caused the beneficiary to benefit. However, if A takes B’s property instead of C’s property, C does not owe anything to B since B did nothing to benefit C. Rather A just used B’s property in a way that benefited C. Similarly, in the case of the SA it was the thief who brought benefit to one Jew at another Jew’s expense and therefore the Jew whose property benefited the other Jew is not entitled to reimbursement
By analogy, it would seem that the owner of the stolen property does not owe you anything since you didn’t voluntarily bring any benefit him.
However, there is another case that bears on your case. The Mordechai (BB 660) cites the Ri (Ba’al Hatosefos) who ruled that if A was watching B’s object and a thief who really wanted to take B’s object, took A’s object instead, A can keep B’s object as payment for his lost object. The Beis Yosef (siman 72) disagrees with this ruling since this seems to contradict the ruling of the SA that we just cited. However, the Ramo (126, 22) ignores the objection of the Beis Yosef and rules like the Ri without offering any explanation.
The Shach (126, 102) defends the Ramo’s ruling by differentiating between this case and the usual case where a thief took one Jew’s money in lieu of another Jew’s property. The important feature of this particular case is that A could have given B’s object to the thief. It was both halachically permitted since that is what the thief really was trying to take and also A was physically able to do so since he was watching B’s object. This would have saved his own object. By allowing the thief to take his own object and thereby saving B’s object he was acting in a manner similar to the one who allowed his donkey to drown in order to save someone else’s donkey.
Your case is similar since you could have unlocked the door and released the thief, thereby avoiding loss of your possessions. By keeping the door locked and not saving your possessions in order to help the owner recover his stolen goods you benefited the owner of the stolen goods. This is the difference between this case and the usual case where the thief benefited the beneficiary. Therefore, you are entitled to recover your loss but only up to the value of the stolen goods since that is the benefit you brought to the owner of the stolen goods.
We should note that you should hold onto the stolen goods until their owner agrees to pay you for your loss. The reason is because the Shach (126, 104) is unsure whether all the Rishonim agree with the Ri’s ruling. You may hold onto the stolen goods until you are paid, but if you return them to their owner you would need to negotiate with the owner of the stolen goods on the amount that he needs to pay you for your loss.
In the previous article we mentioned that a second reason why you might be entitled to reimbursement is that you were acting at the owner’s behest. Perhaps, since he asked you to trap the thief he thereby took responsibility for the repercussions.
We showed in the previous article that your role in this entire scenario was that of a watchman who served as a watchman over a lost object at its owner’s behest. Therefore, your issue is a particular case of the issue whether an employer is liable for losses that were sustained by his employee while working on his behalf.
The Rashbo (Res. that were attributed to the Ramban, 20) was asked exactly this question and he ruled that there are no grounds for making the employer liable since he didn’t damage his employee in any manner. His ruling is brought by the SA (CM 188, 6). We should note that this is even more pronounced in your case since it was within your power to avoid the loss. Therefore, this reason would not entitle you to reimbursement for your loss.
In conclusion: You may hold on to the stolen goods until their owner compensates you for your loss. If you already returned them to their owner you should come to an agreement with him how much he should pay you for your loss.
