UNJUST ENRICHMENT IN JEWISH LAW

UNJUST
ENRICHMENT
IN JEWISH LAW

Prof Nahum Rakover

The Library of Jewish Law

The Library of Jewish Law
Ministry of Justice
The Jewish Legal Heritage Society

TABLE OF CONTENTS

Preface

Part One

"ONE BENEFITS WHILE THE OTHER
SUSTAINS NO LOSS"

Chapter One

INTRODUCTION

Chapter Two

THE TALMUDIC DISCUSSION

Chapter Three

THE "MANNER OF SODOM"

Chapter Four

THE LEGAL BASIS FOR THE EXEMPTIVE
PRINCIPLE

15
21
25

Chapter Five

PROTESTING THE BENEFIT OBTAINED

Chapter Six

INTENTION TO PAY FOR BENEFIT

Chapter Seven

PREVENTION OF FORESEEABLE
PROFIT

Chapter Eight

LOSS PRECEDING ENJOYMENT OF
BENEFIT

Chapter Nine

BENEFIT INVOLVING LESSER LOSS

Contents
Chapter Ten

BENEFIT INVOLVING LOSS TO OTHER
PROPERTY

Chapter Eleven

RECIPIENT PROVIDING A BENEFIT 6 1

Chapter Twelve

CAUSE OF BENEFIT: BENEFICIARY,
BENEFACTOR, OR THIRD PARTY

Chapter Thirteen

CONCLUSION

Part Two

PROFITING FROM ANOTHER
PERSON'S PROPERTY
Chapter One

INTROD UCTION

Chapter Two

THE OWNER'S RIGHT TO PROFITS

Chapter Three

BENEFIT FROM ANOTHER'S LABOR

Chapter Four

HIRING STOLEN PROPERTY

Chapter Five

HIRING OUT ANOTHER'S PROPERTY

Chapter Six

SUBLETTING

Chapter Seven

INSURING ANOTHER'S PROPERTY

Chapter Eight

CONCLUSION

79
83
91

93
97

101

I 29

109

Contents

Part Three

AGENT WHO RECEIVES BENEFIT IN
CONSEQUENCE OF AGENCY
Chapter One

INTRODUCTION

Chapter Two

AGENT RECEIVING BENEFIT

Chapter Three

PARTICIPATION IN RISK AS GROUND FOR

139

SHARING PROFITS

145

185

Chapter Four

INSURING ANOTHER'S PROPERTY

Chapter Five

APPENDIX: RIGHTS AS IF ONE FOUND
LOST PROPERTY

Chapter Six

CONCLUSION

193

197

203

APPENDIXES
Appendix One

THE TALMUDIC DISCUSSION ON UNJUST
ENRICHMENT – BY STAGES
(Baba Kama 20a-2 la)

Appendix Two

207

UNJUST ENRICHMENT LAW, 1967

209

INDEXES
SUBJECT INDEX 215
SOURCE INDEX

221

BIBLIOGRAPHY 23 J
7

Preface

The term "unjust enrichment" refers to all those situations
in which one person derives material benefit from another
without being legally entitled to such benefit. The central
question is whether, and to what extent, the person from
whom the benefit is derived (the benefactor) is entitled to
something in return from the recipient of the benefit. Since
no agreement exists on the matter, no action can lie in
contract. Similarly, an action in tort will not be available
when the donor has not been injured by the recipient's
enjoyment of the benefit. Is there no way for the benefactor
to assert a right to compensation?
A person who parks his car in a lot belonging to a
neighbor may or may not have to pay. If he does not
usually pay to park his car, it may be argued that he has
derived no material benefit, and if the lot is not intended
to provide parking for a fee, it may be argued that the lot's
owner has sustained no loss.
In the foregoing example, benefit was obtained by an act
of the beneficiary. On the other hand, a benefit may also
be occasioned by an act of the benefactor. So, for instance,
A may make improvements to B's property by mistake or
even intentionally. If he does so intending not to receive
anything in return, he is certainly not entitled to be
compensated. If, on the other hand, A intended to receive
9

Preface

something in exchange, does his action, undertaken without
B's knowledge, entitle him to be paid?
Benefit may also come to a person who acts as an agent
of another person. When A represents B in a transaction,
and C grants some unanticipated benefit as a consequence
of that transaction, to whom does the benefit belong?
The issues discussed in this study were originally examined
in preparation of a new Israeli statute concerning unjust
enrichment. The new legislation, passed by the Knesset in
1979 (see Appendix Two), abandons the principles of
English law in this area in favor of the approach of Jewish
sources. In the bill's introduction we read:
The law proposed herein adopts the approach of Jewish
law on a number of points: One who improves another's property is entitled to recover; it adopts the
principle "one benefits and the other sustains no loss"
as a factor to be considered in exempting the recipient
from the obligation to reimburse; and it entitles one
who rescues the property of another to indemnification,
with the goal of encouraging acts of rescue.
These studies were originally written in Hebrew and
published in Osher veLo beMishpat (1987).
I would like to thank Chaim Mayerson for translating these
studies into English. I would also like to thank David
Louvish for his comments, Baruch Kahane for preparing
the indices, Ariel Vardi for his book design, and Moshe
Kaplan for the typesetting and preparation for printing.
Nahum Rakover
Jerusalem 5760 – 2000
10

Part One

"ONE BENEFITS
WHILE THE OTHER
SUSTAINS NO LOSS"

TABLE OF CONTENTS

Chapter One

INTRODUCTION

Chapter Two

THE TALMUDIC DISCUSSION 21

Chapter Three

THE "MANNER OF SODOM"

Chapter Four

THE LEGAL BASIS FOR THE EXEMPTIVE
PRINCIPLE

Chapter Five

PROTESTING THE BENEFIT OBTAINED

Chapter Six

INTENTION TO PAY FOR BENEFIT 35

Chapter Seven

PREVENTION OF FORESEEABLE

PROFIT 43
Chapter Eight

LOSS PRECEDING ENJOYMENT OF
BENEFIT 47

Chapter Nine

BENEFIT INVOLVING LESSER LOSS

Chapter Ten

BENEFIT INVOLVING LOSS TO OTHER
PROPERTY

Chapter Eleven

RECIPIENT PROVIDING A BENEFIT 61

Chapter Twelve

CAUSE OF BENEFIT: BENEFICIARY,
BENEFACTOR, OR THIRD PARTY

Chapter Thirteen

CONCLUSION

Chapter One

INTRODUCTION
The subject of the present study has been a matter of considerable controversy among legal scholars. 1 The usual
Common Law classification of obligations into contract and
torts has led to the application of the rubric of
quasi-contract or implied contract, in cases where one benefits from the property of another. There is a certain artificiality about this, however, and in recent years the tendency
has been to regard such obligations as an independent category, to which the term "unjust enrichment" is
applied. 2
1

See Goff and Jones, Law of Restitution (3rd ed., 1987); and J.P. Dawson, Unjust Enrichment ( l 95 I), chap. I. See also D. Friedman, Dinei
Asiyat Osher veLo beMishpat (2nd ed., Jerusalem, 1998), pt. I; on the
topic of our survey, "One Benefits While the Other Sustains No Loss,"
see particularly ibid., pt. 3.
2 The Hebrew term, osher velo bemishpat, was coined by the late Judge
S. Z. Heshin on the basis of Jeremiah 17:11: " … he that getteth riches,
and not by right [oseh osher v'lo b'mishpat], shall leave them in the
midst of his days …. " The term's use in Jeremiah, however, differs
from its use in Israeli law.

Chapter One

In Israeli law prior to enactment of the Unjust Enrichment Law, 1979, 3 the subject was not regulated by any particular statute. Several enactments, such as the Agency
Law, 1965 (sec. 10), the Guarantee Law, 1967 (sec. 9), and
the Land Law, 1969 (sec. 21 ), make provision for questions
that arise in their respective areas.
So long as there was no specific enactment devoted to
the subject, Israeli case law drew mainly upon English law,
relying on article 46 of the Palestine Order in Council. No
clear criteria exist in English Law for the right to claim in
unjust enrichment. The view taken by Lord Mansfield is
that the principles of natural justice and equity require restitution. 4
In the meantime, the Israeli Knesset enacted the Unjust
Enrichment Law, 1979, which adopted the principles of
Jewish law as they emerge from the studies in the present
volume. These principles include, on the one hand, the obligation of one who benefits from another to compensate
his benefactor for value received. This approach dismisses
the artificial theory of the 'volunteer.' On the other hand,
recognition is granted to the special position of "one who
benefits while the other sustains no loss" and the consequent possibility of exempting the beneficiary from payment.
These principles were adopted by the Israeli legislature
in sections I and 2 of the Unjust Enrichment Law which
read as follows:

3 Unjust Enrichment Law. 5739-1979, Laws of Israel [in English; hereafter LSI], vol. 33 (5739-1978/9) pp. 44-45. The statute is quoted in
full in Appendix 2.
4 See Friedman, op. cit. (above, note I), p. 7.
16

Introduction
Duty of
restitution

Exemption
from restitution

1. (a) Where a person obtains any property,
service or other benefit from another person
without legal cause (the two persons herein
after respectively referred to as "the beneficiary" and "the benefactor"), the beneficiary
shall make restitution to the benefactor, and,
if restitution in kind is impossible or unreasonable, shall pay him the value of the benefit.
(b) It shall be immaterial whether the benefit
was obtained through an act of the beneficiary or an act of the benefactor or in any
other way.
2. The Court may exempt the beneficiary
from the whole or part of the duty of
restitution under section 1 if it considers that
the receipt of the benefit did not involve a
loss to the benefactor or that other
circumstances render restitution unjust.

The area of law in question can be divided into four categories: (1) where the one party derives no benefit while the
other party sustains no loss; (2) where the one derives a
benefit while the other sustains a loss; (3) where the one
derives a benefit while the other sustains no loss; (4) where
the one derives no benefit while the other sustains a loss.
As to the first two categories, the Talmud, in its main
treatment of the subject in Baba Kama 20a, 5 states that the
law is clear. In the first, no payment is required; in the second, it is. The third category is more problematic and is
discussed in the Talmud at considerable length. The fourth

5 A schematic presentation of the talmudic discussion appears in Appendix 1. Points in that discussion are hereafter referred to by the
numbered stages that appear in the schema.

Chapter One

category is not discussed explicitly in the Talmud, and is
the subject of disagreement among early post-talmudic authorities. 6
From the talmudic discussion in Baba Kama, we see that
if the Talmud does indeed lay down guidelines where one
benefits and the other sustains no loss, these must be applied in accordance with the talmudic definitions of the
terms "beneficiary" (or recipient), benefactor (or donor)
"who sustains no loss," and benefactor "who sustains loss."
The talmudic discussion mentioned focuses on circumstances where one benefits and the other sustains no loss,
and the four categories listed above arise from that discussion. The obligation to pay and the amount to be paid under
the second category are treated elsewhere in the Talmud in
reference to specific situations, such as improvements made
to another's property. salvage, and so on. From such cases
we can deduce under what circumstances payment must be
made – and the amount required – to a person who, by
6 Of course, this does not refer to a straightforward case of real damage,
but rather to an instance where the beneficiary resides upon premises
designated for hire. without the owner's knowledge, when the beneficiary would not normally be willing to pay for such benefit. According to Tosafot (Baha Kama 20a, s.v. Zeh), the beneficiary cannot be
compelled to compensate. According to Rif (Baba Kama, chap. 2; ed.
Vilna, 9a), however. the beneficiary is obliged to compensate. Rosh
(Piskei haRosh, Baba Kama 2:6) bases the obligation to compensate
in this case on the fact that the beneficiary "consumes" the loss of the
benefactor, that is to say that although by law his occupancy of the
premises may not, in this case. be considered benefit, he is obliged to
compensate because he gains what the owner loses. Rosh illustrates
the point by contrasting it with the case of a person who merely locks
up another person's premises. thereby causing the owner loss of their
use but gaining no benefit fo r himself. In such a case, he who locks
the premises is exempt from compensation. See also Hagahot haGra,
Baba Kama 20a; and Naha/at David, Baba Kama 20a.
18

Introduction

means of his actions or property, has conferred benefit upon
another. 7

For bibliography on the subject, see Nahum Rakover, A Bibliography
of Jewish Law – Otzar haMishpar, s.v. "Yored lenikhsei havero, Me 'en
hozeh" and s.v. "Zeh neheneh vezeh lo haser," vol. I (Jerusalem,
1975), p. 436; vol. 2 (Jerusalem, 1990), pp. 453-454; and idem, The
Multi-Language Bibliography of Jewish Law (Jerusalem, 1990), s.v.
"Unjust enrichment, Quasi-contract" and s.v. "One benefits while the
other sustains no loss," p. 708.

Chapter Two

THE TALMUDIC
DISCUSSION
As we shall see, it was clear to the Sages of the Talmud
that one who benefits involving some loss to another is
obliged to pay. On the other hand, the question of whether
one who benefits entailing no loss to his benefactor must
pay for the benefit derived occasioned considerable discussion and disagreement among the Sages.
R. Yohanan attributes to R. Yehudah the opinion that requires of one who benefits from another to pay even when
the other sustains no loss: 8
R. Yohanan said, "In three places has R. Yehudah
taught us that it is prohibited 9 to benefit from another's
property."
8

Baba Metzia 117b. Cf. Tl Baba Kama 9:5, cited below. Part 3, text
at note 27.
9 See Resp. Rambam (ed. Blau) 444, where Maimonides was asked what
relevance there is to prohibitions in civil matters. See also R. Aharon
21

Chapter Two

That is to say, it is forbidden to benefit from the property
of another without paying for that benefit. What is the basis
of this obligation? According to the Tosafot, 10 the basis is
to be found in rabbinical enactment (takkanah):
Although it would seem right to say that a person may
enjoy a benefit if another does not thereby sustain loss,
the Rabbis nevertheless instituted the rule that the first
must pay since it is not proper to enjoy the property of
another without permission.
The requirement to pay, it appears, does not follow from
any rule of law but rather from a desire generally to discourage unauthorized use of another person's property.
The Talmud rejects R. Yohanan' s assertion, however,
showing how in each of the three cases mentioned R.
Yehudah's opinion may be explained on a different basis,
and that, therefore. it is not certain that R. Yehudah held it
forbidden to benefit from the property of another without
payment.
Maimonides 11 was asked to clarify the contradiction between R. Yehudah's ruling here and the regulation that
"one who resides in the premises of another without the
owner's knowledge need not pay rent," 12 and he answered

11
12

Lapapa, Resp. Benei Aharon 16. p. 19. col. 4 : "Although when one
benefits while the other sustains no loss, he is exempt, all will agree
that in principle it is certainly forbidden to benefit from the property
of another without his knowledge.''
Tosafot, Baba Metzia 117b, s. v . biSheloshah.
Resp. Rambam (ed. Blau) 444.
This regulation is discussed at length later in this chapter.

The Talmudic Discussion

that the regulation is not in accordance with R. Yehudah's
opinion. 13
While the discussion cited focuses on the opinion of R.
Yehudah, the most thorough and wide ranging talmudic discussion of our problem is to be found in Baba Kama
20a-2la. From that discussion, it appears that the Sages
were quite exercised in reaching a solution. The Talmud recounts a conversation between R. Hisda and Rami bar
Hama, in which R. Hisda opens, "You were not yesterday
with us in the house of study, where some especially important matters were discussed." When Rami bar Hama asks
what important matters were discussed, R. Hisda replies:
"One who resided in his neighbor' s premises unbeknown to
him, would he have to pay rent or not?" 14 The Talmud goes
on to analyze the case under discussion: If the premises
were not for hire and the tenant would not normally pay
someone else for occupancy, there would be no question.
In such a case, there is neither loss to the owner nor benefit
to the tenant, and thus no obligation of payment. 15 If on the
other hand, the case were one where the premises were for
hire and the tenant would normally pay for occupancy,
again there would be no question. Here, the tenant would
derive benefit and the owner sustain loss, and there would
clearly be an obligation to pay. 16 Thus, concludes the Talmud, the case under discussion must be one where the
13

See Resp. Hatam Sofer, Hoshen Mishpat 79, s.v. veNireh li mishum,
p. 33, col. 1: "Since we do not accept the opinion of R. Yehudah as
presented by R. Yohanan, it seems to me that even a priori, it is permitted to benefit from the property of another… [or his effort], provided there is no loss fto the benefactor] …. " But see Resp. Harei
Besamim, Mahadura Tinyana 245, ad fin.
14 Appendix 1, stage 1.
!5 Appendix I , stage 2.
16 Appendix I, stage 3.

Chapter Two

premises were not for hire, and the tenant one who would
norma11y pay for his occupancy of another's premises. 17
Here the tenant benefits, but the owner suffers no loss, and
in such a case the law is not clear.
Opinions of various talmudic Sages are cited, and the
Talmud attempts unsuccessfully to discover the opinion of
the Tanna 'im (the Sages of the Mishnah) based upon various passages from the Mishnah. The view of the Sages of
the Mishnah, thus, remains an open question. From the different traditions cited, it emerges that most Amora 'im (the
Sages of the Talmud) hold that a person occupying premises without agreement in such a case is to be treated in
accordance with the principle that where "the one benefits
while the other sustains no loss," no payment for the benefit
need be made.
Neither Maimonides nor Shulhan Arukh expressly lays
down a generalized theorelical rule for all cases where one
benefits and the other sustains no loss. Both confine themselves to the particular question discussed. As Maimonides
puts it: 18
If one takes residence in another's premises without his
knowledge, the rule is that if the premises is not usually
rented, the tenant need not pay the owner any rent even
though he does usually rent a place for himself. For one
has benefitted without the other sustaining any loss. 19

17 Appendix I, stage 4 .
18 M.T., Gezelah vaAvedah 3 :9 .

19 See also Sh. Ar., Hoshen Mislipar 363:6.

Chapter Three

THE "MANNER OF
SODOM"
The exemptive principle that when one benefits and the
other sustains no loss no payment is required, is often associated with the rule that "one may be compelled not to
act in the manner of Sodom." 20 It may be noted that the
rule is mentioned in a number of places in the Talmud 21
where the question of acting or not acting in relation to another's property occurs a priori, that is, before anything is
actually done, whereas the exemptive principle is applied a
posteriori – where an act has already been effected. The dif20 According to tradition, the residents of biblical Sodom were not willing to confer benefit on others even when this entailed no loss whatsoever. This is sometimes referred to in English as a "dog in the manger" attitude.
21 Eruvin 49a; Ketubot 103a: Baba Batra 12b, 59a, and 168a. See also
R. Aharon Lichtenstein's instructive article, "leVerur 'Kofin Al Midat
Sedam,"' Hagut Ivrit baAmerikah l (Tel Aviv, 1972), 362. See below,
note 27.
25

Chapter Three

ference is apparent in the fact that the talmudic references
to the one never mention the other.
A number of Early Authorities, however, link the two
rules, and conclude that one may be compelled not to act
in the manner of Sodom, because in such cases one benefits while the other sustains no loss. So, for instance, Maimonides:22 " … this is the manner of Sodom. So too, whenever one benefits and the other sustains no loss – he may
be compelled." 23 Is it possible to conclude, then, that the
Early Authorities believed the exemption of "one benefits
while the other sustains no loss'' to be based on the rule
that "one may be compelled not to act in the manner of
Sodom"? We will return to this question later on.

22 M.T., Shekhenim 7:8.
23

See Rashi, Ketubot 103a. s.v. Midar Sedom; Rashi, Baba Batra 12b,
s.v. Al midat Sedom; Pernsh lwMeyuhas /eRabbenu Gershom, Baba
Batra 12b; Or Zaru'a. Baba Batra 24; Hiddushei haRashba, Baba
Batra 12b; Rashbam. Raha Batra 59a, s.v. Midat Sedom; and Yad
Ramah, Baba Batra I 68a.

Chapter Four

THE LEGAL BASIS FOR
THE EXEMPTIVE
PRINCIPLE

Some authorities seek to base the exemption of "one benefits while the other sustains no loss" on the rule that one
may be compelled not to act in the manner of Sodom. 24 Indeed, we have shown that the Early Authorities speak of
the rule and the exemption in one breath, as it were. 25 But
what they really say is that the "Manner of Sodom" Rule
applies because of the exemption, not vice versa. 26 In fact,
24

Penei Yehoshua, Baba Kama 20a explains that this is the opinion of
Tosafot, Baba Kama 20a, s.v . Eino. See also Hiddushei R. Hayyim
miTe/z, Baba Kama, p. 39; ibid., Baba Barra, p. 190; and Levush
Mordekhai, Baba Kama 15.
25 See above, note 23.
26 Tosafot, Baba Batra 12b, s.v. Kegon, does appear to hold that the ex27

Chapter Four

all that the Early Authorities assert is that the "Manner of
Sodom" Rule will apply where one benefits and the other
does not lose. It may well be that the exemption operates
not because of the "Manner of Sodom" Rule, but rather because a party suffering no loss has no cause of action at all
against the beneficiary. If so, there is no need for additional
reason to exempt the beneficiary. Where, on the other hand,
it is desired to prevent an offending act ab initio, the "Manner of Sodom" Rule may have to be invoked. 27
The exemption of "one benefits while the other sustains
no loss" may also be explained without recourse to the

emption of "one benefits while the other sustains no loss" is in fact
based upon the rule that one may be compelled not to act in the manner of Sodom. See Hiddushei R. Hayyim miTelz. Baba Batra, p. 192.
In the entry, "Zeh neheneh ve;.ch lo haser," note 8, of the Encyclopedia Talmudir, Maimonides (sec above, note 22) is noted as holding
the same opinion. It appears. however. that, as mentioned above, this
cannot be demonstrated from Maimonides' wording. According to the
Tosafot, it appears that there are actually two sets of circumstances in
which a person may be compelled not to act in the manner of Sodom.
In one set, the imperative is biblical. whereas in the second, it is a
result of rabbinic legislation.
Although A may be permitted to reside on B's premises where Abenefits and B sustains no loss, B may not be compelled to agree. See
Tosafot, Baba Kama 20b. s.v. Ra; and Rcma's ruling, Sh. Ar., Hoshen
Mishpat 363:6 (as opposed to the opinion of Ra'avya quoted by
Mordekhai, Baba Kama 2; l 6). See, however, Rema's reasoning there,
that the owner can always let out the property if he so desires. Resp.
Divrei Malki'el IIJ:157 (p. 118. col. I, s.v. veHinei) discusses Rema's
reasoning and concludes that it is not logical. Resp. Divrei Malki'el
distinguishes between a situation where the occupant is able to vacate
immediately upon request and one where the owner risks damage due
to his inability to evict an occupant at will. In the second instance,
the author of Resp. Divrei Malki'el agrees that the owner may not be
compelled to permit occupancy of his premises although he sustains
no immediate damage.

The Legal Basis for the Exemptive Principle

"Manner of Sodom" Rule. On the one hand, it may be said
that since the benefactor suffers no Joss, no obligation for
the beneficiary to pay is created at all. 28 On the other hand,
it may be argued that although in strict law a duty to pay
may indeed exist, 29 the benefactor is presumed to waive
payment, 30 since no loss has been suffered. 31

28 In accordance with R. Ami's reasoning in the discussion in Baba
Kama for the exemption of "one benefits while the other sustains no
Joss" (Appendix 1, stage 17): "What has he done to him? What loss
or injury has he caused him?" Sec also Hiddushei R. Shimon Shkop,
Baba Kama 19:3; and Levush Mordekhai, Baba Kama 15.
29 According to this explanation the obligation to pay arises although
beneficiary and benefactor have not agreed upon payment, because the
beneficiary has actually taken possession of the benefactor's property.
See Birkat Shemu 'el, Baba Kama 14:2-3 and ibid., Baba Batra 7.
JO See Mahaneh Efrayim, Hilkhot Gezelah 10, ad fin.: "The owner will
not waive payment for any property that can be let for profit." From
here it is apparent that the author of Mahaneh Efrayim believes that
in situations where property cannot be let for profit, the exemption is
based upon the owner's waiver of payment (mehilah). See also Resp.
Amudei Esh, p. 16.
31 See Shalom Albeck, "HaOseh Tovah laHavero sheLo miDa'ato," Sinai
71 (1972), 98-111 (reprinted in idem, Dinei Mamonot baTalmud [Tel
Aviv, 1976], chap. 4). Albeck suggests that in situations where one
benefits from another, whether the beneficiary is obligated to pay or
exempt depends upon the presence or absence of full agreement by
the parties concerning payment.

Chapter Five

PROTESTING THE
BENEFIT OBTAINED
One important limitation on the exemptive power of "one
benefits while the other sustains no loss" is imposed when
the benefactor declares that no one may benefit from his
property.
The Talmud infers this limitation from a rule regarding
illegal use of Temple property (hekdesh). In the basic discussion of our topic in Baba Kama, the Talmud quotes the
rule, "Use of Temple property without the knowledge of the
Temple treasury is equivalent to use of a private citizen's
property with that citizen's knowledge. " 32 The Tosafot 33
explain this to mean that it is the Divine wish that Temple

32 Appendix 1, stage 22.
33 Tosafot, Baba Kama 21a, s.v.

keHedyot. See also, Rashi ad Joe; Resp.

Terumat haDeshen 317.
31

Chapter Five

property not be used, and therefore, all use of Temple property for personal needs (with or without the knowledge of
the Temple treasury) constitutes a violation 34 that obligates
payment. Thus. the rule concerning Temple property assumes that when an owner does not wish his property used,
the principle "one benefits while the other sustains no loss"
will not operate to exempt.
Other Early Authorities take the rule of Temple property
quoted, to mean that use of Temple property in the absence
of protest (i.e. protest by the Temple authorities) is equivalent to use of private property in the presence of protest
by owner. 35 According to this interpretation, as well, it may
be inferred that the owner's protest effectively suspends the
exemptive principle.
A third interpretation takes the words, "use of a private
citizen's property with that citizen's knowledge," to
mean that it is as though it were stipulated with the beneficiary that he pay. 36 According to this approach, if there is
no presumption that the beneficiary agrees to pay, he will
not be obliged.
The rule in the codes is that if the owner tells the occupier to leave and the latter refuses, he must pay rent. This
is the ruling of Tur, n and R. Yosef Karo, in Beit Yosef (his
commentary on Tur). comments that this is obvious. In his
own code, Slwlhan Arukh, R. Karo writes: 38

Known in Jewish law as me'ilah.
See the opinion of R. Yeshayahu quoted in Shitah Mekubetzet, Baba
Kama, ad lac.
36 See the opinion of Rashba quoted in Shitah Mekubetzet, ad lac.; and
Hiddushei haRashba. Bahn Kama , ad loc. in the name of Rabbenu
Hananel.
37 Tur Hoshen Mishpat 363:6.
38 Sh. Ar., Hoshen Mishpat 363:6.
35

Protesting the Benefit Obtained

When one resides in the premises of another without his
knowledge, if the other tells him to leave, and he does
not leave, he is obliged to pay rent. 39
Sema 40 comments that this applies even where the premises

is not for hire and the tenant does not generally pay for
occupancy, since the owner has made it clear that the arrangement is not agreeable to him. 41

39 Erekh Shai on Sh. Ar., Hoshen Mishpat 363:6, discusses the amount
of compensation the occupant will he required to pay if the owner
tells him to pay such and such an amount or vacate. If the occupant
refuses to pay, then he can be obligated to pay no more than the appraised rent for the premises. Having refused to pay, Erekh Shai reasons, the occupant is occupying the premises "by theft." As in a conventional instance of theft, where A takes an object of B's without
the latter's permission, if B demands that A return the object or pay
such and such an amount, and it is no longer in A's possession, he is
required to pay (only) its appraised value.
40 Serna, Hoshen Mishpat 363: 14; See also Be 'ur haGra, Hoshen Mishpat 363:13.
41
Nahalat David, Baba Kama 21 a, s.v. keHedyot disagrees with the ruling of Shulhan Arukh. Basing himself upon Rashba (see above, note
36), Nahalat David holds that the occupant is obliged to pay only if
this was stipulated explicitly, whereas simple protest will not create
an obligation to pay for benefit received. This opinion is shared by
R. Hayyim of Volozhin. See Hoshen Aharon 363:6.

Chapter Six

INTENTION TO PAY FOR
BENEFIT
1. Another limitation on the exemption of "one derives benefit while the other sustains no loss," arises when the beneficiary discloses an intention to pay for the benefit he
obtains.
The Tosafot 42 derive this limitation from the ruling in the
case where a person whose property encircles that of his
neighbor erects fences along three sides of his neighbor's
land. In such an instance, R. Yosi holds that if the owner
of the encircled property erects a fence on the fourth side,
he must pay for his share of the entire fencing. It may be
inferred from this ruling that, had it been the owner of the
encircling property who erected the fourth fence, the owner
of the encircled property would have been exempt from

Tosafot, Baba Kama 20b, s.v. Ta 'ama.

Chapter Six

payment. From this the Talmud attempts to deduce the exemption of "one benefits while the other sustains no loss." 43
The Tosafot question the Talmud's deduction, however.
Since erection of the fourth fence by the owner of the encircled property causes no loss to his benefactor, if the exemptive principle is valid, here too, the encircled owner
should be exempt from assuming his share in the other three
sides. It would appear equally logical, therefore, to deduce
the opposite ~ that when one benefits and the other sustains
no loss, the beneficiary is obliged to pay. The Tosafot answer that in the present case, the obligation to pay arises
from the encircled owner's construction of the fourth fence,
because by doing so, he indicates that he is agreeable
to the expenditure for fencing. Hence the situation is different from that where a person occupies another's property
and has not indicated that he is prepared to pay. 44
This opinion of the Tosafot was disputed by R. Shelomoh
Luria, 45 who challenges the reasoning of the Tosafot as well
as their application of the case upon which that reasoning
is based. As explained. the Talmud suggests that the exemption of "one benefits and the other sustains no loss" can
be inferred from the case of encircled property. The Talmud
finally rejects this suggestion, however, asserting that the
encircled owner's exemption may have an entirely different
basis. How, R. Luria asks, can anything be learned from a
suggestion ultimately rejected by the Talmud? How can the
43 Appendix I, stage 11.
44 A similar situation appears in the mis/mah Baba Batra I :4 and is explained by the Tosafot on the same basis. See Tosafot, Baba Batra 5a,
s.v. Af al pi (Tosafot's first explanation). Yam Shel Shelomoh, Baba
Kama 2: 16, does not accept this explanation; see below.
45 Yam Shel Shelomoh ibid. R. Shelomoh Luria (1510-1573) was one of
the outstanding rabbinic authorities of Poland in his time.

Intention to Pay for Benefit

Tosafot use this case to draw conclusions about the exemption of "one benefits and the other sustains no loss" when
it is concluded that there is no connection? As to the reasoning of the Tosafot, R. Luria asserts that since the main
basis for the exemption of a person who resides in his
neighbor's premises is that in fact the beneficiary does not
cause the benefactor any loss, the beneficiary's indication
of willingness to pay should make no difference. R. Luria
reasons that payment for the fencing arises because the burden on the first person is increased by the extension of the
fencing, as the Talmud explains, and therefore, only in such
circumstances will the disclosure of an intention to pay
have effect. 46
R. Yo'av Yehoshua Weingarten, 47 head of the rabbinic
court of Konskie, also disagrees 48 with the Tosafot, arguing
that the reason for the obligation to pay in the fencing case
is a consequence of the financial gain of having a fully
fenced property – property whose worth is greater than it
was before fencing – whereas the exemption of "one derives benefit while the other sustains no loss" applies only
in instances of indeterminate benefit. 49
2. In recent generations, a number of explanations have
been advanced for the Tosafot's opinion obligating the
beneficiary to pay if he has indicated his intention to do so.

46 See Encyclopedia Talmudit s.v. "Zeh neheneh," note 67. See also
Ketz,ot haHoshen 158:6.
47 R. Yo'av Yehoshua Weingarten (1845-1921) was the leading student
of R. Avraham Bornstein of Sochaczew, author of Avnei Nez,er.
48 Helkat Yo'av, Hoshen Mishpat 9.
49 See opinion of R. Hanokh Aigesh, Marheshet II, 35:2:2. See also R .
Shimon Shkop, Sha'arei Yosher 3:25; and Or Same'ah, Hilkhot Niz,kei
Mamon 3:2.

Chapter Six

R. Malki'el Tzvi Tanenbaum 50 was asked 51 concerning
A, who bottled "sweet and fragrant water," and marketed it
with a label similar to the label of B, a competitor, who
produced the same product under government license. B
brought suit against A, complaining that he did not agree
to A's deriving benefit from the license granted him (i.e.,
B) – a license the procurement of which involved considerable expense – and claiming further that A's action had
resulted in a reduction of B's income. R. Tanenbaum rules
that since, by printing labels similar to those of the plaintiff, the defendant had shown that the plaintiff's expenditure in obtaining the license suited his own interests, the
defendant was obliged to compensate the plaintiff. R.
Tanenbaum explains that whenever "there are expenditures
and acts beneficial to both parties, they are partners and can
compel each other to contribute." This applies, however,
only where the expenditures are essential and for the common good; in any other situation, either may refuse to contribute to a benefit which he does not want to pay for.
When, however, as in the present case, a recipient shows
an intention to undertake an expenditure, he cannot plead
that it was against his wishes. His manifest intention renders him a partner in both benefit and expenses. 52
In the case of one who resides in another's premises, R.
Tanenbaum explains that although the premises are not for
hire, the resident must pay if he disclosed intention to do
so, because "when he received benefit…, he intended to
compensate … , and as in all cases where one benefits from
so R. Malki'el Tzvi Tanenbaum (d. 1910) was head of the rabbinic court
of Lomza.
51 Resp. Divrei Malki'e/ lll:157.
52 Cf. Nahalar David. Baba Kama 20b; and Netziv of Volozhin, Meromei
Sadeh, Baba Kama 20b.

Intention to Pay for Benefit

another on condition that he pay [the other for the benefit
received], this is a fully legal obligation." That is to say,
the obligation is a result of the beneficiary's undertaking.
Accordingly, R. Tanenbaum finds in the case before him
that the defendant is obliged to share the expenses undertaken by the plaintiff to secure the government license.
Another modern authority, R. Shimon Shkop, 53 suggests
two possible explanations for the obligations of the encircled landowner who builds the fourth fence. According to
the first, 54 once the beneficiary indicates his willingness to
share expenses, the encircling landowner may be considered as having lost the portion of his outlay that the encircled landowner would have paid. The same will apply in
the case of premises not for hire for lack of potential hirers.
Once an occupant indicates willingness to pay rent, by virtue of that willingness, it becomes premises for hire, and
the occupant's failure to pay may be considered a loss to
the owner. According to the second explanation, 55 once a
beneficiary shows willingness to pay for his benefit, the
beneficiary is enriched by the amount that he withholds,
and therefore obliged to pay – even when there is no loss
to the benefactor.
Both explanations of R. Shimon Shkop seek to show that
willingness to compensate, so changes the circumstances
that they may no longer be considered an instance of "one
benefits while the other sustains no loss." The difference is
that the first explanation focuses on the benefactor's loss
while the second focuses on the beneficiary's gain. The second is founded upon a distinction between indeterminate
53 R. Shimon Shkop (I 860-1940), head of the yeshivah of Grodno, stud54
55

ied at Volozhin under Netziv and R. Hayyim Soloveichik.
Hiddushei R. Shimon Shkop, Baba Kama 19:5.
Ibid., 19:6. See above, text at note 48.

Chapter Six

benefit and enrichment. According to the second explanation, in the case of encircled property, once the encircled
property owner indicates willingness to pay, as long as he
does not pay, he is considered as having increased his net
worth by the amount of the payment he withholds. 56
3. Shulhan Arukh rules in accordance with the view of the
Tosafot: 57
Some say that where premises not intended for Jetting
are involved, no rent need be paid, provided the occupant has not disclosed that he would be willing to pay
rent, were he not otherwise allowed to take up full occupation. Where he does disclose such an intention, 58
he must pay. 59
56 See also ibid., 20: 1. s.v. beNido11; and ibid., 20:2.
57 Sh. Ar., Hoshe11 Mislipat 363:8. Arukh haShulhan 363:19, restricts the
application of this principle to instances where the occupant is otherwise likely to pay for occupancy. In such cases, his indication is of
willingness to pay as he is accustomed. Where the occupant is not
otherwise likely to pay. however, his indication is of no effect; only
his explicit stipulation will obligate him.
58 As regards the timing of the occupant's indication of willingness to
pay, one opinion holds that. even if the indication is expressed after
he has occupied the premises for some time, he is obligated to pay
for the entire period. but not if the indication was made after he vacated (Mahaneh Efi·ayim. Hi!k/101 Gczelah 9). Another opinion states
that even if the indication comes after the occupant has vacated the
premises. he is obliged to pay for the entire period (Perishah, Tur
Hoshe11 Mishpat 163:6).
59 According to Resp. Noda biYehudah. Mahadura Tinyana, Hoshen
Mishpat 24, where the occupant indicates only that he is willing to
undertake some small expense in return for occupying the premises,
he may not be compelled to pay more than the sum he has indicated,
unles~ he causes the owner some significant expense. Only where the
occupant indicates that he would be willing to pay full rent, were he
not otherwise permitted to occupy the property, is he obliged to pay
the full amount. In such a case, he is obliged to pay the full amount,
even if he doe~ not cause the owner some significant expense, the

Intention to Pay for Benefit

Manifestation of intention will have this effect, however,
only if it is made to the true benefactor. This can be inferred from the case mentioned in the Talmud of A who
rents property from B, property which, as A subsequently
discovers, actually belongs to C. In such a case, the Talmud
concludes, A must pay C. 60 Since the Talmud stipulates explicitly that the case is one of property that is for hire, 61 it
may be inferred that were the property not for hire, A
would not have been bound, although he had disclosed to
B – who is not the owner – a readiness to pay. 62 Shulhan
Arukh codifies this as law, 63 adding that rent paid to B is
recoverable by A, and that even if rent has reached C, A
can recover, since it was paid by mistake.
Rashba explains the point as follows: 64
From here we learn that, although he entered [the property] with intent to pay rent, since he did not hire it
from the owner, his status reverts to that of one who
resides in another's premises without [the owner's]
knowledge, an instance of one who benefits while the
other sustains no loss, and he is, therefore, exempt.
Rashba' s explanation requires clarification. The author of
Helkat Yo'av 65 quotes the Rashba as saying that although
A manifested intention to pay rent, he does not have to pay
rent to the owner, since he did not show the owner his

60
61
62
63

operative principle being that unless he causes the owner significant
expense, the beneficiary cannot be compelled to pay more than he indicated he would be willing to pay.
See Appendix 1, stage 24.
See Appendix 1, stage 25.
See Shirah Mekubetzet, Baba Kama 21a, quoting Gilayon. See also
Part 2, chap. 5.
Hoshen Mishpat 363:9.
Hiddushei haRashba, Baba Kama 21a.
Helkat Yo'av, Hoshen Mishpat 9.
41

Chapter Six

willingness. But the Helkat Yo'av felt the reasoning to be
"very weak." 66 The main problem with the reasoning is:
What difference docs it make towards whom the intent is
manifested? Additionally. in the case of building the fourth
fence, the encircled landowner did not show the owner of
the encircling property his willingness to pay, and even so,
Tosafot explain that he must pay him because his intent to
pay was manifested.

66 In explanation of this regulation. Or Same'ah, Hilkhot Gezelah 3 :9,
writes that. since the hirer did not rent the property from the owner,
the owner may evict him whenever he pleases. Hence the hirer, having
indicated his intention to pay for the right of occupancy, did not in
actuality receive any such right. He is, therefore, exempt from payment. Cf. Birka1 She11111 "el. Baba Kama 14:2; Hiddushei R. Shimon
Shkop, Baba Kama 19:5: ibid .. Baba Batra 4:3; Sha'arei Yosher 3:25;
Netziv of Volozhin. Meromei Sadeh, Baba Kama 20a.

Chapter Seven

PREVENTION OF
FORESEEABLE PROFIT
For a case to be removed from the category of "one benefits
while the other sustains no loss," and classified as one
where the benefactor does sustain loss, must the loss be actual, or is it sufficient for the benefactor to be prevented
from obtaining foreseeable profit?
For the Sages of the Talmud, it is obvious that loss includes the prevention of foreseeable profit. When R. Hisda
poses the problem of whether a person who occupies premises without their owner's knowledge must pay rent, 67 it is
asked whether the premises were for hire and the occupier
generally rents premises. If so, the occupier derives a benefit and the owner sustains a loss, and, of course, the occupier is obligated to pay. 68
However, criterion of foreseeable profit is not defined
67 Appendix 1, stage I.
68 Appendix 1, stage 3.

Chapter Seven

objectively. A person who does not usually profit from his
property. although others generally do let property of the
kind in question, will not be deemed to have suffered a loss.
Moreover, even if he has let the property in the past, but at
the time of the occupancy in question no longer does so,
the situation is considered only with reference to the time
that the recipient derives his benefit, and again the owner
is not considered as having lost. 69
The concept of "loss" is further restricted by prescribing
that prevention of foreseeable profit is considered loss only
when the owner could actually have obtained the profit, but
not, for instance. where he or his agent is absent and cannot
in fact let the property. The same applies where the owner
is available and wishes to let the property but no one desires to rent. In such a case, the property is deemed to be
not for hire. 70
69 See Nimmukei Ymef. Baba Kama. chap. 2 (ed. Vilna, p. 9a), in the
name of Ramah: this is codified by Rema, Sh. Ar., Hoshen Mishpat
363:6.
70 To quote Hagahot Asl,eri . Baba Karna 2:6: "Ra'avya has ruled that if
no one attempts to let it and no one attempts to rent it – although if
the owner were here. he would have let it – whoever lives there is
exempt [from payment]. since this is deemed property not up for hire.
But some authorities disagree [wi1h Ra'avya's ruling]."
Rema, Sh. Ar.. Hoshe11 Mishpar 363: IO, accepts Ra'avya's ruling as
law, rejecting the opinion of those who disagree. B eit Aharon
(Walkin), Baba Kama 21 a. objects to Rema' s ruling. R. Yitzhak
Flakser, "Yishuv Piskci haRema,'· Noam. 13 (1970), 55-62, rejects the
conclusions of Beir Aharon.
See also Resp. Terumar haDeshen : I 7: "So in the case of a premises
not up for hire. the case is not one in which the owner. because of
his great wealth, does not [bother to] put it up for hire. Rather, it is
a situation where there is no one [willing] to rent it, though, as far as
the owner is concerned. it is for hire." See also the continuation of
these remarks, which require further study.

Prevention of Foreseeable Profit

The category of lettable property is significantly broadened, however, by the presumption introduced by R. Eliezer
bar Natan (Ra'avan) 71 that today all vacant houses are for
hire 72 – whether or not they are in fact being rented at any
particular time – because one who has no use for a particular piece of property will normally let it out. This presumption is a function of circumstances, of course, and thus
given to revision as circumstances change.

Ra'avan (1090 – ca. 1170) was one of the early Tosafists of Ashkenaz.
72 See Ra'avan, Baba Kama 21a, codified as law by Rema, Sh. Ar., Hoshen Mishpat 363:6.

Chapter Eight

LOSS PRECEDING
ENJOYMENT OF BENEFIT
1. A benefit may become possible by a loss incurred prior
to enjoyment of the benefit. When this happens, is the prior
loss relevant? The Tosafot, 73 commenting on the discussion
in Baba Kama, cite a case from Ketubot (30b) of a person
who stuffs food into the throat of another, the law being
that the recipient must pay. Why, the Tosafot ask, should
the person who swallowed the food not be exempted under
"one benefits while the other sustains no loss"? After all,
when he received the benefit – that is to say, when the food
reached his digestive organs – the food's owner sustained
no loss, since the food had already lost its value when it
was stuffed into the recipient's throat. The Tosafot, thus,
conclude that since the one benefitted by virtue of the other's earlier loss, the case qualifies as one where one benefits and the other loses (and thus the recipient is obligated
73

Tosafor, Baba Kama 206, s.v. Ha it'hanit.

Chapter Eight
to pay). 74 The Tosafot 75 on the discussion in Ketubot offer
a different explanation: since even after entering the recipient's throat, the food retains some value, the recipient is
obligated for the small loss he causes by retaining the food,
and this obligation carries with it responsibility for the entire loss sustained by the other. 76 A third view, that of
Ritzba, quoted in Tosafot, is that the two acts – destruction
of the food and derivation of benefit – due to their proximity in time, are treated as one (although in fact they are
not).
2. It would seem from the Tosafot in Baba Kama that a
prior loss will create an obligation to pay for any
subsequent benefit. Such a view, however, is inconsistent
with a decision cited by Mordekhai 77 on Baba Kama and
recorded as law by Rema in his comments on Shulhan
Arukh. 78 It seems that a feudal lord, after expropriating the
house of A, a Jew who had fled from the lord's domain,
allowed B, another Jew, to occupy the house, and A
subsequently claimed rent from B. In the decision quoted,
A's claim was rejected. and the exemption of "one benefits,
and the other sustains no loss" was held to apply. The
rationale was that since if B were to vacate the property, it
might be given over to a non-Jew and no rent could then
be obtained, the house must be treated as not for letting.
According to the Tosafot in Baba Kama, however, it would
74 The recipient is not obligated to pay if the food is returned, although
it is worthless. since it was rendered so by the other's act of stuffing
it in his throat. He is obligated. however, to pay if the food reaches
his digestive organs, for this is the benefit he receives as a result of
the other's (earlier) loss.
15 Tosafot, Ketubot 30b. ~.v. La tzrikha.
76 See below, chap. 9.
71 Mordekhai, Baba Koma 2: 17.
78 Rema, Sh. Ar.. Hos/Jen Mishpar 363:3.

Loss Preceding Enjoyment of Benefit

seem that B should be obliged to pay rent, since his benefit
was preceded by A's loss ( the expropriation). 79
R. Shelomoh Drimer, 80 head of the rabbinic court of
Skala, resolves 81 the inconsistency by offering a more restrictive interpretation of the Tosafot' s opinion. In Baba
Kama, argues R. Drimer, the Tosafot obligate the beneficiary, although the benefit is not a consequence of the
loss, because where one stuffs food into the throat of another, benefit and loss may be considered as simultaneous
(as suggested above in the name of Ritzba). When, however, as in the present case, A's loss occurs irrespective of
B's benefit and it is impossible to view loss and benefit as
simultaneous, even the Tosafot will agree that the beneficiary is under no obligation to pay.
3. In light of his analysis of Tosafot's opinion, R. Shelomoh
Drimer discusses a difficult ruling of Maharam 82 quoted in
Shulhan Arukh. 83 The case involved A, who had borrowed
money from a money lender against a pledge, and B, who
persuaded A to allow him to borrow against the same
pledge. As it happened, the pledge was destroyed by fire
and B's debt to the money-lender was consequently
canceled. The question arose whether B was obliged to
compensate A, and Maharam ruled that he was not.
In this particular case, B's benefit – cancellation of his
debt – was a consequence of A's loss. Thus, a simple reading of the Tosafot in Baba Kama would suggest that just as
where A stuffed food into the throat of B, B was obliged
79 See Mahaneh Efrayim, Hilkhot Gezelah 13.
80 R. Shelomoh Drimer was born ca. 1800 and died in 1873.
81 Resp. Beit Shelomoh, Hoshen Mishpat 122.
82 Cited by Mordekhai, Baba Metzia 371 (chap. 8, ad init.). On this ruling, see B. Kahane, Shomerim, p. 653.
83 Sh. Ar., Hoshen Mishpat 72:44.
49

Chapter Eight

to pay although his benefit was derived after the food's
owner had sustained his loss. so B in our case should also
be obliged to pay, although his benefit was derived after
A's loss of his pledge. According to R. Drimer, however,
since A's loss was not a consequence of B's benefit, and
since when B's benefit was derived, A's property no longer
existed, Maharam was justified in exempting B from payment.
R. Drimer cites Maharam' s ruling in his own decision
concerning A and B, who owned dwellings in the same
building. B purchased insurance, which was mistakenly
registered as covering A's apartment as well. When the
building was destroyed by fire, A claimed his share of the
compensation paid to B. 84 Here too, A's loss was not a consequence of B's benefit but rather of the fire which destroyed the building, and when B derived his benefit, A's
property no longer existed. Citing Maharam's ruling, R.
Drimer found that A was not obliged to share the compensation with B. 85

84 See below, Part 2, text at note 82.
85 For recourse to Maharam's ruling where one person pays insurance
premiums on the property of another, see Resp. Eretz Tzvi (Te'omirn),
Hoshen Mishpar 15: Resp. Avnei Tzedek (Teitelbaum), Hoshen Mishpat 7. See also below. Part 2, notes 87 and 97.

Chapter Nine

BENEFIT INVOL YING
LESSER LOSS
1. What is the law where the value of benefit derived by
the beneficiary exceeds the loss sustained by the benefactor? Does the benefactor's loss create a straightforward situation of "one benefits while the other sustains loss," in
which the beneficiary is obliged to compensate for the full
value of benefit received? Or will the beneficiary be
obliged to pay no more than the loss sustained by the
benefactor?
The discussion in Baba Kama 86 cites a Mishnah 87 dealing
with a house the upper part of which is owned by A and
the lower part by B. The house collapses and A asks B to
rebuild his part so as to enable him to rebuild the upper
story. B refuses. The decision there is that A is entitled to
rebuild the lower part and occupy it until B reimburses him
86 Appendix I, stage 13.
87 Mishnah Baba Metzia 10:3 (TB 117a).

Chapter Nine

for his outlay. R. Yehudah, however, disagrees, declaring
that "one who occupied another's property without his
agreement must pay rent." According to R. Yehudah, then,
A will have to pay B rent although B has suffered no loss
(B suffered no loss because he had not intended to rebuild
his portion in any case). 88 R. Yehudah's opinion is cited as
evidence that he does not recognize the exemption of "one
benefits while the other sustains no loss. " 89 To this assertion, however, it is replied that this is not such a case and
that here R. Yehudah requires that rent be paid due to the
"blackening of the walls" 90 (a consequence of occupation),
which constitutes a loss to B and renders A liable to pay
rent.
Legal authorities found in this portion of the discussion
in Baba Kama a source for resolving the question of benefit
involving lesser loss. The majority of Early Authorities,
thus, rule that the beneficiary is obligated to pay the entire
value of benefit received 91 and not just the value of the
benefactor's loss. 92 Shulhan Arukh ru]es: 93
Some say that when the premises is not for hire, and
the occupant need not pay rent, if he caused [the owner]
88 Even those Sages who in this case disagree with R. Yehudah and exempt would agree that. normally. the occupant would be obliged to
pay due to the "blackening of the walls" (see below, this paragraph).
Their exemption in this case results from the lower level's encumbrance to the upper (see Appendix I, stage 14).
89 See Appendix J. stage 15.
90 See Appendix I, stage 16.
91 See Tosafot, Baba Kama 21a, s.v. veYahavei; Hiddushei haRashba,
Baba Kama 21a; Nimmukei Yosef, Baba Kama, chap. 2 (ed. Vilna, p.
9a), in the name of Ritba; Piskei haRosh, Baba Kama 2;6, ad fin. See
also Resp. Yesh11 'or Ya 'akov (Orenstein), Hoshen Mishpat 4.
92 But the opinion of Ramah, as quoted by Nimmukei Yosef, ibid, is that
the occupant is liable for the valne of the loss only. See also the ruling

Benefit Involving Lesser Loss

even a small loss, such as if it were a new building, and
he caused a loss by the blackening of the walls, although that loss is minimal, it carries with it the obligation to pay the entire value of the benefit received. 94
As we shall see, it was upon this principle that R. Yehezkel
Landau based his ru1ing 95 on a claim lodged by an author
against a printer, as described in chapter ten of the present
part.
2. R. Ya'akov Falk, 96 author of Penei Yehoshua, explains
the above principle on the basis of his opinion97 that the
exemption of "one benefits while the other sustains no loss"
is based upon the rule that one may be compelled not to act

93
94

96
91

of Noda biYehudah cited below, note 95, according to which Maimonides agrees with Ramah.
R. Avraham Shmu'cl, Resp. Amudei Esh, p. 16, col. 3, asserts that
Ramah holds that the beneficiary's liability is restricted to the loss he
has caused only where the benefactor would be willing to forgo compensation for the entire benefit. Where it is clear, however, that the
benefactor would not forgo such compensation, then he is presumed
[anan sahadi) to protest, and as we have seen (chap. 5), where the
benefactor protests, the beneficiary is obliged to pay. See below, text
at note 101.
Sh. Ar., Hoshen Mishpat 363:7.
Giddulei She mu'el, Baba Kama 20a (p. 19c ), discusses whether the
occupant is required to pay the full value of benefit received or only
what the owner might have realized in rent.
In any case there are certain restrictions in applying the principle that
even a minimal loss carries with it the obligation for benefit received.
See, for instance, Sha'ar haMelekh, Hilkhot Gezelah 3:9; Marheshet
II, 35:2 (7 and 8); and ibid., 35:4 (9).
Resp. Noda biYehudah, Mahadura Tinyana, Hoshen Mishpat 24; and
below, text at note 108. See also Resp. Divrei Malki 'el III: 157; and
below, text at note 111.
R. Ya'akov Falk, one of Polish Jewry's most distinguished scholars,
was born in Cracow in 1680 and died in 1755.
Penei Yehoshua, Baba Kama 20b; Tosafot, Baba Kama 20a, s.v. Zeh.
53

Chapter Nine

in the manner of Sodom. 98 According to R. Ya'akov Falk,
then, once there is a loss to the benefactor, even a minor
one, his situation is no longer such that his behavior may
be considered as in the manner of Sodom, hence, the beneficiary is required to pay the full value of benefit received. 99
Another explanation of the obligation of a beneficiary
who has inflicted Ioss is adv a need by R. A vraham
Shemu'el, 100 head of the rabbinic court of Raseiniai. According to R. Avraham Shemu ' el, 101 the determinative factor in all cases is the owner's strictness with regard to the
use of his property. Once an owner has incurred some loss,
9 8 See above, text at note 24.
99 On whether a person who takes chattels with no intent to steal, uses

them for his own purposes, and returns them somewhat damaged,
must pay only the damage or the benefit received, see Encyclopedia
Taimudit, s.v. "Zeh 11eheneh." notes 133, 135, and 136.
However, a person who steals chattels. uses them, and returns them
to their owner unchanged is not obliged to pay for their use, even if
they were normally hired out. and even if by stealing them he prevented the owner from using them. See Sh. Ar. , Hoshen Mishpat
363:3; and Serna. ad Joe., 7. See Sema ad Joe., 8, who questions the
ruling if the stolen object was an animal which consequently became
weaker. Netivot haMi.,hpat, ad toe. 4, rejects Sema's approach, but
R. Shimon Shkop. Hiddushei R. Shimon Shkop, Baba Kama, 20: I defends it. See also Sh. Ar., Ho.,hen Mishpat 363:5, with regard to a
person who takes a boat and uses it without permission. See also Nahum Rakover, "Ba·ayot Yesod beHilkhot Geneivah baMishpat
halvri," Sinai, 40 ( 196 I). chap. 4, "Geneivah Al Menat Lehahazir,"
27-29; R. Avraham Shemu'el. Resp. Amudei Esh, p. 66b; Resp.
Divrei Malki'e/ III:157, p. l 18, col. l. s.v. veLikhorah; and Itamar
Warhaftig, "Demci Shimush beNekhes Gazul," Tehumin, 6 (1985),
235.
IOO R. Avraham Shcmu'cl died in 1869.
lOl See Resp. Amudei Esh (Vilna, 1875), p. 67a. See below, chap. 10 of
the present part.

Benefit Involving Lesser Loss

even if that loss is minimal, it is clear that he would protest
the beneficiary's use of his property were he to know of it,
and this is equivalent to an actual protest. Just as when an
owner protests, an occupant is obligated to pay for his use
of the property, 102 so too when it is presumed that he would
protest. 103
In accordance with this explanation, R. Avraham
Shemu'el raises the possibility of extending the obligations
of the beneficiary, as we shall discuss in the next chapter.

102
103

See above, chap. 5.
See above, note 92.

Chapter Ten

BENEFIT INVOLYING
LOSS TO OTHER
PROPERTY
Does the recipient of a benefit have to pay only where the
loss has affected the property he has used, or does his obligation extend to other losses that his action may have
caused the benefactor?
R. A vraham Shemu' el of Raseiniai considers this question in his discussion 104 of a case where a person stole a
book containing instructions on dyeing and copied its contents. After discussing whether copying may be considered
theft, 105 R. A vraham Shemu' el goes on to consider whether
the case may be treated as one where one person benefits
104

Resp. Amudei Esh, p. 66b.
IOS See Nahum Rakover, Zekhut haYotzerim baMekorot haYehudiyim (Jerusalem, 1991).

Chapter Ten

and another loses. If the thief caused even minimal damage
to the book, he explains – if, for instance, the book was
new and became worn – then the question of the thief's
liability will depend upon the question of benefit involving
lesser loss (as discussed above, Chapter 9). If, on the other
hand, he caused no damage at all to the book, but the damage to the owner stems from his new-found ability to compete with him, it is questionable whether he incurs any obligations at all.
By way of illustration, R. Avraham Shemu'el compares
the case to a hypothetical one where A, unbeknownst to B,
uses the latter's storefront, which has not been put up for
hire. B owns another storefront. where he engages in business, and A's use of B's vacant property reduces B's clientele. Are the obligations incurred when "one benefits and
the other loses" incurred only when both benefit and loss
arise in connection with the same object (although the beneficiary's action causes the owner a loss elsewhere)? Or,
alternatively, since because of the loss inflicted upon him,
it is certain that the owner would object to such use of his
property, will his objection (actual or presumed) impose an
obligation upon the beneficiary to compensate the owner
for his losses? 106
R. Avraham Shemu'el leans towards finding the beneficiary liable. He finds support for this position in the words
of the Talmud in Baba Kama: "What has he done to him?
What loss or injury has he caused him?" From here it appears that the recipient is chargeable irrespective of the
place of the loss.
J06

See above, text at note JOI, where R. Avraham Shemu'el suggests
that the obligation of a beneficiary towards a benefactor to whom he
has caused (even minimal) loss is a function of the benefactor's
strictness regarding use of his property.

Benefit Involving Loss to Other Property

In fact, a number of authorities have rendered decisions
that take for granted that the loss need not arise in connection with the same property. The eighteenth century authority, R. Yehezkel Landau 107 considered the case 108 of an
author who commissioned a printer to produce his commentary on two orders of the Talmud. After completing the
work, the printer used the type set at the author's expense
to print a text with the commentaries of Rashi and Tosafot
(without the author's commentary). R. Landau ruled that
the printer was obliged to pay for the benefit he had obtained from using the type, on the grounds that, had he not
acted as he did, the author may have sold more copies of
his own book without the competition presented by the
printer's publication. l09
Similarly, R. Malki'el Tzvi Tanenbaum 110 entertained a
claim against A, who had bottled "sweet and fragrant water" and marketed it with a label similar to the label of B,
a competitor, who manufactured the same product under
government license. 111 R. Tanenbaum found that A had indeed caused some loss to B, on three counts. First, if A had
not been marketing the same product, B would have sold
more. Second, due to the similarity of the labels, it would
be presumed that B's sales were greater than they were in
IO? R. Yehezkel Landau, who was born in Opatow, Poland in 1713 and
died in Prague in 1793, was one of the most widely respected rabbinic authorities of his time. He served as head of the rabbinic court
of Prague.
W& Resp. Noda biYehudah, Mahadura Tinyana, Hoshen Mishpat 24.
109 See ruling of Judge Y. Kister, T. A. 759/56, Aguddat haKoremim v.
Yikvei haGalil, Pesakim (mehoziyim) 22, p. 77, cited also in Nahum
Rakover, Modern Applications of Jewish Law (Jerusalem, 1992), vol.
2, p. 755.
1rn See above, note 50.
111 Resp. Divrei Malk 'iel III: 157. See above, text at note 51.

Chapter Ten

fact, and this too would be a cause of damage to B regarding his obligations towards the government. Third, if A
were to manufacture an inferior product, the reputation of
B's product would suffer. Thus, on the principle that one
who causes even minor loss must compensate for the entire
benefit received, R. Tanenbaum ruled in favor of the plaintiff, B.

Chapter Eleven

RECIPIENT PROVIDING
A BENEFIT
Towards the end of the discussion in Baba Kama the argument takes a new line, which requires careful analysis. In
the name of Rav, we find a new reason for the exemption
of a person who resides in his neighbor's premises unbeknown to him: that premises left vacant tend to deteriorate,
and the dweller prevents this. A similar reason is given in
the name of R. Y osef: that an occupied house remains in
good condition, since the occupants make repairs as the
need arises. 112
According to these reasons, then, a person who resides
on the latter's premises without his neighbor's knowledge
is exempt, because in addition to receiving benefit from the
11 2 See Appendix 1, stages 29-30.
The Talmud explains that in practice, a difference will arise between
the two explanations if the owner would otherwise be using the property not for dwelling but for storage (See Appendix 1, stage 31).

Chapter Eleven

owner, he also confers benefit upon him. What are the implications of these reasons? Do they mean that an occupant
will not be exempt unless he confers some benefit upon the
owner of the premises? If so, this constitutes a drastic restriction of the exemption. Indeed, some authorities 113 do
conclude that, according to the reasons advanced by Rav
and R. Yosef, when the occupant confers no benefit whatsoever on the owner. one who resides in his neighbor's
premises without his neighbor's knowledge is obligated to
pay. Other authorities. however, hold that the reasons of
Rav and R. Yosef do not imply that there is no exemption
in cases where "one benefits while the other sustains no
loss." 114
Neither Maimonides in Mishneh Torah 115 nor R. Yosef
Karo in Shulhan A rukh 116 mentions the reasons of Rav and
R. Yosef. Thus, it would appear that, in practice, there is
no restriction of the exemption. Sema, 117 however, in his
113

See Shirah Mekuberzet, Baba Kama 21a. in the name of Rabbenu
Yeshayahu; Aliyot deRabbenu Yonah, Baba Batra 4b; Or Zaru'a,
Baba Kama 120-121 (Or Zaru'a writes that according to the reasons
of Rav and R. Yosef there is no exemption unless the beneficiary
also confers benefit upon the benefactor, but that the law follows the
opinion of R. Yohanan, who exempts in all cases); Sefer Ra'avan,
Baba Batra 5a (ed. Ehrenreich, p. 208. col. 3), ad init., cited also in
Resp. Maharam ben Bamkh (ed. Prague), 685, and in Mordekhai,
Baba Batra I :466. See also R. Aharon Sasson, Torat Emet 129, s.v.
veOd kasheh Ii.
114 A number of reasons arc advanced for this. See Hiddushei haRashba,
Baba Kama 21a, s.v. Amar R. Huna; Piskei haRosh, Baba Kama 2:6;
Nimmukei Yosef, Baba Kama chap. 2 (ed. Vilna, p. 9a); Yam Shel
Shelomoh, Baba Kama 2:16.
115 M.T., Gezelah vaAvedah 3:9 {quoted above, text at note 18).
116 Hoshen Mishpat 363:6: See also Be 'ur haGra, ad Joe., 16; Nahalat
David, Baba Kama 21 b.
ll? Serna, Hoshen Mishpal 363: 15.
62

Recipient Providing a Benefit

commentary on Shulhan Arukh, does ascribe the owner's
presumed willingness to forgo compensation to his satisfaction with the advantage conferred upon his property by occupancy. According to Sema's explanation, the exemption
would indeed seem to be greatly restricted.

Chapter Twelve

CAUSE OF BENEFIT
BENEFICIARY, BENEFACTOR,
OR THIRD PARTY

The benefit derived may be the result of an act by the beneficiary, the benefactor, or a third party. Will it matter
which of these actually caused the benefit?
From the examples in Baba Kama, it is clear that the exemption of "one benefits while the other sustains no loss"
applies even when the benefit results from an act of the
beneficiary, and that the obligations that arise when one
benefits and the other loses are incurred by the beneficiary
even when the benefit results from an act of the benefactor.
As we have seen, the classic illustration of the exemption
is the case of a person who resides in his neighbor's courtyard without his neighbor's knowledge. 118 Here benefit
clearly results from an act of the beneficiary . 119
118 See Appendix I, stage I.
119 However. the exemption also applies when the benefactor is aware

Chapter Twelve

On the other hand, in trying to prove that when one person benefits and the other sustains no loss the beneficiary
is not exempt. the Talmud brings the case of a land owner
whose property is encircled and the encircling owner builds
a fence on all four sides – a case in which the beneficiary
is obligated to pay. 120 The proof is ultimately rejected, however, by showing that the case is actually one where the
benefactor does sustain a loss. 121 Since, in any case, the ruling that the encircled owner (i.e., the beneficiary) must pay
stands, it may be inferred that where one benefits and the
other loses, the beneficiary will be obliged to pay even if
the benefit resulted from the benefactor's own act.
The same principles apply even when benefit is made
possible through the intervention of a third party. An example of this is found in the tractate Ketubot, 122 where A
force feeds B with liquids belonging to C. Here, since A
benefits and C loses, it is decided that A is obligated to
make payment to C. According to one view, however, A
will be obligated to C only when, as in the case cited, the
benefit accrues directly to the person of A. Where, on the
other hand, the benefit made possible through the intervention of a third party is only to the property of the beneficiary, the beneficiary incurs no obligation. This view is expounded by the Tosafot in connection with another discussion in Baba Kama.
Towards the encl of Baba Kama. 123 the Talmud discusses

that the beneficiary is using his property. See Tosafot, Baba Kama
21a, s.v. keHedyot mida'at: Yam Shel Shelomoh, Baba Kama 2:16;
and Terwnat haDeshen 317.
120 See Appendix I, stage 9.
121 See Appendix I, stage I 0.
122 See Ketubor 30b, and Tosafot, ad Joe .. s. v. vei delo matzi.
123 Baba Kama !Ola.

Cause of Benefit

whether, when wool is dyed, the improvement due to dyeing is to be considered part of the wool or separate. In order
to eliminate confounding factors from the question, Ravina
seeks to illustrate it with the following case: A is the owner
of a quantity of wool, and B is the owner of pigment used
for dyeing. A monkey takes B's pigment and uses it to dye
A's wool. What liability will the owner of the wool incur
in this case? Is the improvement considered a separate item,
independent of the wool – in which case the owner of the
pigment may demand the return of his pigment (or its
value)? Or is the improvement considered part of the wool,
in which case the owner of the wool can claim that he has
nothing belonging to the owner of the pigment?
The formulation is questioned by the Tosafot, 124 who
point out that in the final analysis the value of the wool has
appreciated, conferring benefit on its owner. This being the
case, the owner ought to pay for benefit received, as is the
rule throughout the Talmud. 125
The Tosafot answer by first noting that the benefit received by the wool owner resulted neither from his own act
nor from the act of his own animal. The Tosafot then distinguish between this case and the case in Ketubot where A
force feeds B with C's liquid – another case where the benefit does not result from an act of the beneficiary or his
animal. In the latter case, A is obligated to compensate C,
because the benefit accrued directly to the person of A. In
the case of the monkey-dyed wool, however, the benefit is
to the beneficiary's property and not to his person; thus, the
124
125

Tosafot. Baba Kama !Ola, s.v. 0 di/ma.
Baba Kama 19b, the case of an animal that consumed produce in the
market; Baba Kama 55b, the case of a sheep who fell into a garden
and derived benefit from the fruit there; Ketubot 30b, the case of a
person who force fed another with the liquids of a third.

Chapter Twelve

ruling will depend not on the question of the owner's benefit, but rather on whether the improvement is considered
part of the wool or separate.
The Tosafot offer another answer as well – that the dyeing of the wool is not considered a benefit at all, since it
is only decorative. Implied by this answer, of course, is
that, were the dyeing a true example of benefit, the wool
owner would have to pay (although the benefit was the result of a third element and did not accrue directly to the
person of the beneficiary).
Thus, where one benefits and the other loses, but the benefit results from the act of a third element, whether the beneficiary is obligated to pay for benefit received will depend
on which of the Tosafot' s two answers is preferred. If the
second answer is preferred, then the beneficiary must pay
in all such cases. If the first is preferred, then the beneficiary will be exempt from payment unless the benefit accrues
to his person.
The Tosafot's distinction between benefit that accrues to
the person of the beneficiary and benefit that accrues to the
beneficiary's property is also accepted by Rosh. 126
Shakh, 127 however, restricts this ruling to instances where
the benefit is conferred by a third party. Where the benefit
is conferred by the benefactor himself, even if the benefit
is conferred only upon the property of the beneficiary (for
instance, if the benefactor force feeds the beneficiary's animal with food owned by the benefactor), the beneficiary,
according to Shakh, will be obliged to compensate. In support of this finding, Shakh notes that a person who improves another person's property is entitled to compensation even if, in order to do so, he entered the other person's
126
12 7

Piskei haRosh, Baba Kama 9: 17.
Shakh, Hoshen Mishpat 391:2.

Cause of Benefit

property without permission. 128 Shakh goes on to argue
against the Tosafot' s distinction in any case, claiming that
their second approach – that the dyeing of the wool is not
considered a benefit at a11, since it is only decorative – is
preferable. 129 Given the Tosafot' s two approaches, Shakh
concludes that when C causes the property of A to derive
benefit from the property of B, the law is uncertain.

128 See Mahaneh Efrayim, Hilkhot Nizkei Mamon 2, ad fin., and 4, ad

fin. See also Helkat Yo'av, Hoshen Mishpat 9, s.v. Akh be'emet;
Marheshet II, 35:3; and Hidd11shei R. Shimon Shkop , Baba Kama
19:7.
129 As mentioned, according to this approach, the beneficiary will be
obliged to pay in all cases, if there is true benefit.

Chapter Thirteen

CONCLUSION
The question of whether a person who benefits from another who sustains no loss is obligated to pay for the benefit received was of considerable concern to the Sages of
the Talmud. While some of the talmudic Sages attempted
to show that the matter was debated by the Tanna 'im (the
Sages of the Mishnah), this approach was ultimately unsuccessful and the problem was divorced from tannaitic
sources altogether. Among the Amora 'im (the Sages of the
Talmud), however, the question was debated extensively,
with various opinions expressed.
When it was ruled that one who benefits while the other
sustains no loss is exempt, this was not established as a
general principle but rather as the basis for deciding the
question of whether a person who resides in another person's premise,s without the latter's knowledge is obligated
to pay rent.
It seems, moreover, that the principle was surrounded by
so many qualifications and restrictions that any attempt at
a general ruling – that when one benefits while the other
71

Chapter Thirteen

sustains no loss, the beneficiary is exempt from compensating the benefactor – would lead to legal conclusions quite
different from those reached by the Talmud and subsequent
authorities.
As to the legal basis for the exemption of "one benefits
while the other sustains no loss," there are a number of possible approaches. One might conclude simply that, having
sustained no loss, the benefactor has no cause of action. An
alternate explanation is that in strict law, the benefactor
does have a cause of action, but the beneficiary is exempted
by the principle that one – in this case, the owner of the
premises – may be compelled to act not in the manner of
Sodom.
When considering situations of "one benefits while the
other sustains no loss." one must establish when the benefactor is deemed to have sustained no loss. Here, important
guidelines were fixed. So, for instance, one may be considered as suffering a loss even when foreseeable profits are
prevented, and it is not necessary to demonstrate a real loss.
On the other hand, if the benefactor is not in the habit of
profiting from the property, he will not be deemed to have
sustained a loss, although he could have profited from it.
This applies even when others do profit from such property.
Similarly, when the owner wishes to profit from his property but for practical reasons this is impossible – such as
when neither he nor his agent is present, or when no one
can be found who is willing to rent – the beneficiary's use
of the property will not be considered to have caused a loss
to the owner.
The range of property types considered as designated for
profit was broadened with establishment of the presumption
that in general all houses are meant for hire. As a result of
this presumption, anyone residing in the premises of an72

Conclusion

other will be obliged to pay rent without the owner's having
to prove that the property was up for hire.
Another guideline with regard to the benefactor's loss establishes that it need not correspond to the entire value of
the beneficiary's benefit. Once the owner suffers even minimal loss, the occupant will be required to compensate for
the entire value of his benefit.
Two additional important guidelines were established
concerning the parties. With regard to the benefactor, it was
established that if he protests the beneficiary's benefiting
from him for free, the beneficiary will be obligated to compensate if he chooses to continue to benefit. As regards the
beneficiary, if he has at any time indicated his willingness
to pay for the benefit he receives, and the benefactor so
demands, he will be obligated to do so.
The above guidelines provided a suitable moral and legal
basis for the exemptive principle while withholding the exemption from those who in all fairness ought to pay for
benefit received. Indeed, the various restrictions prevented
improper exploitation of an exemption meant to apply only
to a person who benefits from another who truly sustains
no loss,13°
The foregoing part has dealt with situations in which one
person benefits from the property of another, thereby
sparing himself expenditures that he would have incurred
had he not used this particular property. We have not
discussed situations in which the property of another is a
130 The view that the beneficiary is not exempt unless his use of the
property confers some benefit upon the benefactor, had it been accepted, would have for all intents and purposes rendered the exemption inapplicable. It appears, however, that this view was never accepted as normative.

Chapter Thirteen

necessary instrumentality in not just avoiding expense but
in realizing real profit. 131 This topic, as well as the
principle, "How shall one profit from his neighbor's cow?"
are discussed separately. m

131
132

See above, text at note 48.
See Part 2 and Part 3. below.

Part Two

PROFITING FROM
ANOTHER PERSON'S
PROPERTY

TABLE OF CONTENTS

Chapter One

INTRODUCTION

Chapter Two

THE OWNER'S RIGHT TO PROFITS

79
83

I. CREATION OF A DIRECT ADVERSARY
RELATIONSHIP
2. QUASI-AGENCY

85
88

3. PREVENTION OF ENRICHMENT AT THE
EXPENSE OF ANOTHER

Chapter Three

BENEFIT FROM ANOTHER'S LABOR

Chapter Four

HIRING STOLEN PROPERTY

Chapter Five

HIRING OUT ANOTHER'S PROPERTY

Chapter Six

SUBLETTING

93
97

101

I. PERMISSION TO SUBLET, AND THE RIGHT TO

REVENUES RECEIVED

IOI

2. THE RIGHT TO SUBLET BY LAW AND BY
OWNER'S CONSENT

103

3. PROFIT FROM THE OWNER'S PROPERTY AND
PROFIT FROM THE TENANT'S RIGHTS

105

4. PROFIT FROM THE VALUE OF THE PROPERTY
AND PROFIT BEYOND THE VALUE OF THE
PROPERTY

I 06

S. WHEN THE OWNER SUSTAINS LOSS

107

Contents
Chapter Seven

INSURING ANOTHER'S PROPERTY
I. INTRODUCTION

109

2. DISTINCTIONS BETWEEN PROFITS FROM
LENDING AND PROFITS FROM
INSURANCE

l 12

A. Lending Without Permission

I 12

B. The Borrower Uses the Property

112

C. The Owner's Property is in the

Borrower's Possession

l 14

D. The Borrower's Undertaking is to the

Owner

114

E. The Basis of the Borrower's Obligations

in the Laws of Bailment

117

F. The Basis of the Hirer's Obligations

in the Laws of Bailment

119

G. Profit Is Not the Purpose of the

Lending

l 20

H. Payment of the Borrower in Exchange
for the Owner's Property

122

3. SIMILARITIES BETWEEN R. YOSl'S PRINCIPLE
AND INSURANCE

Chapter Eight

CONCLUSION

129

123

Chapter One

INTRODUCTION
In our discussion above, 1 we learned that Jewish law distinguishes between a person who benefits from the property
of another, who sustains loss thereby, and a person who
benefits from the property of another but causes the latter
no loss.
Nevertheless, there do exist situations in which although
the benefactor sustains no loss, it is proper for the beneficiary to pay for benefit received. This is the case, for instance, when one profits from the property of another, such
as when A lets the property of B and receives the rent.
Here, even if B, the owner, sustains no loss (so that were
A to use the property himself he would be exempt from
payment), A will nevertheless be obliged to pay B for benefit received. Fairness dictates that A may not profit from
B's property but must rather remit his profits to B.
Even before enactment of the Unjust Enrichment Law, Israeli law contained an example of the right of a property
1

See above, Part 1.

Chapter One

owner to the profits earned from his property by another.
Section 7 of the Bailees Law, 1967, 2 discusses the matter
of a bailee who entrusts his charge to another bailee; in
subsection (a), it is established that
where a bailee has delivered the property to a subbailee, the acts and omissions of the sub-bailee are
deemed to be the acts and omissions of the bailee, and
the sub-bailee is liable to the owner of the property to
the same extent as he is liable to the bailee.
Hence it follows that, should the sub-bailee become liable
to the original bailee for damages for which the original
bailee bears no liability towards the property's owner, the
owner will be entitled to be recompensed by the sub-bailee
in the amount that the sub-bailee is liable to the original
bailee. 3
The basis for this provision is found in tractate Baba
Metzia of the Mishnah 4 in the case of a person who hires
another's cow and lends it to a third party. As quoted below, in chapter two, R. Yosi expresses his opinion on the
matter in the rhetorical question, "How shall one do busi-

2 Sec. 7, Bailees Law, 5727-1967, LSI, vol. 21 (1966/67), p. 50.
3 C.A. 1439/90 Medinat Yisrael v. Home, 47(2) P.O. 346, 383, based
on section S(b) of the Bailees Law, according to which the owner is
entitled to recover his damages from the compensation or indemnification due the original bailee.
4 Mishnah Baba Metzia 3:2. See also Nahum Rakover, "Mekorot
haMishpat halvri leHok haShomerim. 1967," HaPeraklit, 24 (1968),
108, and 222, n. 84. See also M. Corinaldi, "Shomer sheMasar
leShomer baMishpat haivri uveHok haShomerim, 1967," Shenaton
haMishpat halvri, 2 (1975), 452; Nahum Rakover, ed., Hok l'Yisrae/
series: Yehonatan Blas, Asiyat Osher velo beMishpat (Jerusalem,
1992), pp. II, 21, 30. 53, 185; and Baruch Kahane, Shomerim (Jerusalem, 1999), pp. 466-469.

Introduction

ness with his neighbor's cow?" followed by his conclusion,
"The [value of the] cow must be returned to its owner."
In the past, when considering whether to require a user
of property to remit his earnings to the property ' s owner,
Israeli courts relied upon article 472 of the Mejelle (the Ottoman Civil Code), which held:
One who used the property of another without agreement and without permission, if the thing was such as
yields profit, he is obliged to pay the proper rental, and
if not, he is exempt.
At first glance, it would appear possible to apply this regulation in the case of one who "profits from his neighbor's
cow." However, the provision that the property be "such as
yields profit" greatly restricts its applicability. An example
is the case of one who used the roof of another to stage
plays for which he charged admission. 5 At first, use of the
roof was with the permission of the owner. Use continued,
however, after the owner had withdrawn his permission,
and the roof's owner sued, claiming to be owed rent for the
use of his property. The court rejected his claim, however.
Since the roof had never been designated for rental, it could
not be considered property that yields profit.
Since enactment of the Unjust Enrichment Law, 1979, it
is no longer necessary to rely upon foreign legal sources.
Moreover, it is now mandated to seek guidance in questions
of unjust enrichment in the sources of Jewish law. 6

5 C.A. 59/52, Ben Menahem v. Mahalah, 8 P.D. 917. See Friedman,

Dinei Asiyat Osher veLo beMishpat (2nd ed. , Jerusalem, 1998), p.
429.
6 See above, Introduction to the book and Introduction to Part I.
81

Chapter One

In the present part, we examme Jewish legal sources
concerned with profiting from the property of another. 7 We
open with consideration of R. Yosi' s pronouncement, "How
shall one profit from his neighbor's cow?" and the legal
basis for this principle. We then go on to examine how and
to what extent R. Yosi's principle was applied to different
instances of profiting from the property of others. We
conclude with the problem of a person who insured
property belonging to another and was later indemnified by
the insurance company for damages sustained by the
property. The question here is whether R. Yosi' s principle
requires that the insured remit the compensation received to
the property's owner.

The matter of deriving benefit from another person's money by delaying payment is discussed elsewhere. See Nahum Rakover,
HaMis 'har baMishpat ha!vri (Jerusalem, 1988), Part 5, "Pitzuyim Al
lkkuv Kesafim (Ribit Piggurim)."

Chapter Two

THE OWNER'S RIGHT TO
PROFITS
A discussion of enrichment at the expense of another is
found in the third chapter of tractate Baba Metzia of the
Mishnah. There 8 the Mishnah records a disagreement between R. _Y osi and other Sages concerning a person who
rents another's cow and loans it to a third party. If, while
in the possession of the third party, the cow dies a natural
death, what will the law require? Since in Jewish law a borrower is liable in cases of force majeure, it appears that the
borrower is obliged to compensate the hirer. Since, on the
other hand, a hirer is exempt from damages in such cases,
it would appear that the hirer is not obliged to compensate
the original owner. Thus, it develops that the hirer profits
from the death of a cow owned by another, and this is indeed the opinion of the Sages: "The hirer must swear that
it died naturally, and the borrower must pay the hirer." R.
Yosi disagrees, however, declaring, "How shall one do
8 Mishnah Baba Metzia 3:2 (TB Baba Metzia 35b).

Chapter Two

business with another person's cow? The [value of the] cow
must be returned to its owner."
The law was codified 9 as accords with the opinion of R.
Yosi, 10 and since the case involves enrichment at another's
expense, 11 we may conclude that indeed one is not able to
profit from another's property. This, then, is the general
principle, which remains to be more precisely defined and
whose application remains to be clarified. 12
9 See Maimonides, M. T.. Sekhirut l :6: "If a bailee delivered the bailed

object to another bailee. raising the standard of care, the resulting
benefit accrues to the owner. How is this to be understood? If, for
example, a man hired a cow from another, and then lent it to a third
party, and it died a natural death while in possession of the third party
– who, being a borrower. is liable in all cases of loss – it is the owner,
and not the first bailee. to whom the value of the cow is to be restored, since a bailee is not permitted to do business with another person's property. And so it is in all similar cases." See also Sit. Ar.,
Hoshen Mishpat 307:5; "If one hired a cow from another and loaned
it to a third, and the cow died a natural death or died as the result of
some force majeure, since the latter is liable, it [the cow's value) returns to the owner, since one may not profit from the other's cow. But
if he [the owner] said to the hirer, 'Lend it out if you wish, and the
borrower will be accountable to you. and you will be accountable to
me,' then the borrower compensates the hirer." See also Resp.
Maharashdam , Hoshen Mishpat 371.
JO The opinion of the Sages. as well, can be interpreted as not permitting
one to profit from another person's property. Still, they disagree with
R. Yosi because they consider the hirer in the present case to be using
his own property, since he has purchased the rights to its use. See,
for instance, Hiddusltei ltaRim, Baba Metzia 35b.
11 Thus we can also explain the seeming contradiction between R. Yosi's
principle and the exemption of a person who benefits while the other
sustains no loss. See above, Part 1. See also Hiddushei haRim, Baba
Metzia 35b (ed. Tel Aviv, 1959). p. 121.
12 Concerning the question of whether R. Yosi's principle applies when
a gratuitous bailee pays another to care for the animal entrusted to
him and the animal dies under circumstances where the gratuitous

The Owner's Right to Profits
1. CREATION OF A DIRECT ADVERSARY RELATIONSHIP

First, it must be noted that some early post-talmudic authorities dissociate the principle completely from the question
of enrichment at another's expense.
So, for instance, the Tosafot 13 explain that R. Yosi's ruling is not a function of the fact that. once the borrower has
compensated the hirer, the owner can claim, "you have possession of my cow." 14 From another talmudic discussion 15
it may be understood that R. Yosi requires the borrower to
pay the owner even when the borrower is exempt from paying the hirer. 16 Thus, conclude the Tosafot, the reason why
R. Yosi requires the borrower to return the value of the cow
to the owner is that in this case the hirer does not acquire
the cow by paying for its hire. Usually, in instances – such
as force majeure – where the hirer is exempt, he acquires
the cow by swearing, which exempts him from the owner's
claim. 17 In the present case, the owner can demand that the
hirer remove himself and his oath from the litigation and

bailee is exempt and the paid bailee is liable, see Tosafot, Baba Kama
tJ b, s.v. La mibaya; Pit 'hei Teshuvah , Hoshen Mishpat 307: l; Arukh
haShulhan, Hoshen Mishpat 291 :47; Resp. Shevut Ya'akov III:148;
and He/kat Yo'av, Mahadura Tinyana 15; B. Kahane, Shomerim, pp.
466-467, 1237-1240. See below, notes 79 and 97.
13 Tosafot, Baba Metzia 35b, s.v. Tahazor.
14 That is to say, possession of the value of my cow.
15 Baba Metzia 96b.
16 According to Jewish law, if the bailor is in the service of the bailee
at the beginning of the bailment, and the property is damaged during
the bailment, the bailee is exempt from payment. So here, the Talmud
implies that even in an instance of such an exemption – that is to say,
if the hirer was in the service of the borrower at the beginning of the
loan and the borrower is thus exempt from compensation – the borrower will nevertheless be obliged to compensate the owner.
17 In all cases where a bailee is exempt from damages, he is not exempt

Chapter Two

that he (the owner) deal directly with the borrower (and, as
mentioned, the borrower is liable in cases of force majeure
and is not permitted to swear and acquire the cow). 18 The
Sages who disagree with R. Yosi, the Tosafot explain, hold
that the hirer's acquisition of the cow takes place at the
time of the animal's death. Thus, the compensation which
the borrower is obligated to make belongs to the hirer and
not the owner.
According to the Tosafot, then, it would appear that the
disagreement between R. Yosi and the Sages bears no connection to the question of enrichment at another's expense.
R. Yosi rejects the hirer's right to compensation not because, by being compensated, the latter profits from the
property of another. 19 but rather because, legally, nothing
has occurred that would grant the hirer any rights whatsoever in the property.
It is possible, however, that even according to Tosafot,
R. Yosi' s reason is that one should not be allowed to profit
at another's expense. According to this interpretation, R.
Yosi's explanation, "How shall one do business with his
neighbor's cow?" creates a direct adversary relationship between the owner and the borrower: By lending the cow to
unless he takes the "bailees' oath."' See Maimonides. M. T., Sekhirut
I: I.

18 Parenthetically, Tosafo1 add that the same will apply where there are
witnesses to the Joss of the object of bailment and, thus, no need for
the hirer to swear. Since there is no oath, the hirer can acquire the
cow only by bringing witnesses. and the owner is entitled to exempt
him from bringing witnesses. thus preventing the hirer's acquisition
of the cow.
19 See R. Yosef Hazan, Ei11 Yehose}: Baba Metzia 35b; R. Nehemyah son
of R. Faivel Rushniz (Segal), Divrci Naba, Baba Metzia 35b; R. Tzvi
Eliezer Slutzkin, Matza Hen, Baba Metz.ia 35b: "Who can fail to see
the difficulty of this?"

The Owner's Right to Profits

a third party, the hirer creates certain advantages that might
materialize in consequence of the lending, and the owner is
entitled to a direct claim against the borrower 20 in order to
enjoy the benefit of these advantages. According to this
explanation, the Tosafot do not ignore R. Yosi's pronouncement, but rather define it and show its basis in law.
In truth, however, the Tosafot do limit the owner's right
to indemnification. If the owner is present when the animal
dies, the hirer is exempt from damages without having to
swear. In such a case, therefore, it cannot be argued that
his acquisition of the cow is by virtue of his swearing. Here
his acquisition of the cow could only be by virtue of its
death, and then the owner cannot demand that the hirer remove himself and his oath from the litigation, for the hirer
has already acquired the cow and effectively removed the
original owner as a party. Hence, in such a case, the Tosafot
conclude, R. Yosi will agree with the Sages that the borrower is obliged to indemnify the hirer.
Such a conclusion, of course, does not appear consistent
with R. Yosi 's "How shall one do business with his neighbor's cow?" 21 In accordance with the above explanation of
Tosafot, however, it may be suggested that the original
owner is entitled to a direct claim against the borrower only
20 On the "direct adversary relationship" as regards our particular mishnah, as well as and parallel cases where the plaintiff may collect from
either party he chooses, see, for instance, Rashi, Baba Metzia 42b,
s.v. uMeshalem bakara; Ritba, Baba Metzia 35b, s.v. Tahazor;
Mordekhai, Baba Kama, chap. 10, ad init., 141-142 (in the name of
Sefer haHokhmah and the decision of R. Eliezer of Metz); R.
Shelomoh Luria, Yam Shel Shelomoh, Baba Kama 10:1; Bah, Hoshen
Mishpat 363:5; Shakh, Hoshen Mishpat 291 :41; Mahaneh Efrayim,
Hilkhot Shomerim 33; but see Netivot haMishpat 291, be'urim 27.
21 Cf. the question to this effect advanced by R . Avraham son of Azuz
ibn Burgil in his Lehem Abirim, Baba Metzia 35b.

Chapter Two

where he has some claim to begin with. Where he has himself witnessed the animal's death. under circumstances that
exempt the hirer (with no need for oath or witnesses), he
has no claim at all and thus no cause for action, against
either hirer or borrower.
In practice, most of the Early Authorities reject this opinion of Tosafot, holding that even if the circumstances surrounding loss of the object of bailment are known to the
owner, so that there is no need for an oath or witnesses, R.
Yosi will yet hold that compensation for the loss is due the
original owner. 22 Nor has the Tosafot' s opinion been accepted as law. 23
2. QUASI-AGENCY

Another explanation of the direct adversary relationship between owner and third-party borrower is advanced by R.
Yorn Tov ibn Ashbili (Ritba). 24 Ritba explains 25 that in
lending the cow to another, it is as though the hirer is acting
as an agent of the owner. 26 A similar opinion is advanced

24
25

Rashba explains that according to R. Yosi, the borrower is the bailee
of the original owner and not of the hirer. Netivot haMishpar, cited
above, in note 20 reaches the same conclusion.
See Shakh, Hoshen Mishpat 307:3.
R. Yorn Tov ibn Ashbili (ca. 1250 – ca. 1320) was a widely respected
rabbinic authority, who lived in Spain.
Hiddushei Ritba, Raba Metzia 35h, s. v. Ela tahazor.
Cf. formulation of Rashba: "R. Yosi's reason is that the borrower is
considered in all matters to be the bailee of the owner of the cow, and
it cannot be said that he [i.e .. the owner] is not a party …. " See also
the formulation of Tose.fot Rabberw Peretz, Baba Metzia 35b: "It can
be said that R. Yosi ·s reason is that the hirer is as an agent of the
owner, and thus, it is as though the owner himself had loaned it to
the borrower."

The Owner's Right to Profits

by Rosh: 27 "R. Yosi' s reason is that [the hirer] is considered as having acted as the owner's agent in lending the
cow; therefore the owner's claim is against the borrower." 28
3. PREVENTION OF ENRICHMENT AT THE EXPENSE OF
ANOTHER

Prevention of enrichment at another' s expense is seen by
Ramakh as the basis for R. Yosi 's opinion. So we find in
Shitah Mekubetzet: 29
One who hires a cow and lends it to another, and the
cow dies a natural death [while in possession of the borrower], the borrower pays the owner and not the hirer,
for it is not proper for one to profit from his neighbor's
cow and for the hirer to benefit from the owner's [property] and the owner lose. 30
Thus, we have seen three explanations of R. Yosi's principle: (1) that of the Tosafot who hold that the normal basis
of a hirer's exemption is his acquisition of the object of hire
after its destruction by virtue of taking the bailees' oath,
and that here the owner has the right to demand that the
hirer remove himself from the proceedings, thus preventing
him from swearing and acquiring the cow; (2) the approach
of Ritba, Rosh and others, according to which the hirer in
lending the object of hire to a third party, is acting as the
owner's agent; (3) the opinion of Ramakh, that the hirer is
not permitted to enrich himself at the owner's expense.
27

Rosh, Baba Metzia 3:5.

28 See also Shirah Mekubetzet, Baba Metzia 35b, s.v. vehaSho'e/, in the

name of Tosefot Shantz: "Perhaps R. Yosi ' s reason is that the hirer is
considered to be an agent of the owner."
29 Ibid., s.v. ulelnyan Pe.wk.
30 Ramakh concludes: "And if the borrower is a poor man and unable to
pay, the hirer is exempt from payment."

Chapter Three

BENEFIT FROM
ANOTHER'S LABOR
R. Yosi' s principle served as the basis for further legal development. The principle was applied with quite farreaching implications by R. Me'ir haLevi Abulafia
(Ramah) 31 to the field of labor law. The case involves a
person who instructs his agent to hire workers at a particular wage. The agent hires the workers but undertakes to
pay a higher wage than specified. According to Jewish law,
if A said to B, "hire me workers for three [coins]" and B
hired them for four, if B, the agent, says to the workers, "I
will pay your wages,'' he pays them the four [coins] promised, and collects from A the value of the benefit received.
That is, if the benefit received by A was worth more than
three coins per worker, then B is entitled to collect more
than three coins per worker, thereby reducing his loss. 32 To
31 R. Me'ir haLevi Abulafia (ca. I 165-1244) was a widely recognized
rabbinic authority who lived in Spain.
32 See Baba Metzia 76a; Tur and Shulhan Arukh, Hoshen Mishpat 332: 1.

Chapter Three

this regulation, however, Ramah adds a new limitation that the agent (B in our case) may collect no more than he
paid in wages (in our case, four coins). Tur cites Ramah's
limitation: 33
Ramah wrote fthat he collectsl no more than four, even
if the work is worth more, in order that he [the agent]
not profit from his neighbor's cow. 34
Here, we may ask, What does Ramah intend by the term
"his neighbor's cow," with which the agent will be deemed
as making profit should he collect more than what he has
paid? According to Rema, it appears that the equivalent of
the "cow" in this case is the labor of the workers. In his
Darkhei Moshe, Rema writes: 35 "For how shall one profit
from his neighbor's cow, that is, from the labor of the
workers? Although an agent may lose, he is not entitled to
profit." According to this interpretation of Ramah' s application of R. Yosi's principle, we come to an extremely important conclusion, namely, that the claim, "how shall one
profit from his neighbor's cow," is not restricted to the
party equivalent to the cow's owner. The claim may be
lodged also by a third party, although no use has been made
of his property or labor. So in the present case, A, who appointed B as his agent to hire workers, may use the claim
to protect himself against having to pay the entire amount
of benefit received by virtue of B's agency.

33 Tur Hoshen Mishpat 332. See below, text at note I 10, where it is
shown how Ramah's ruling is applied in cases where one person insures the property of another.
34 Ramah's ruling is not cited in Slwlhan Arukh by R. Yosef Karo or
Rema. It is cited, however. by a number of glosses; see Serna, Hoshen
Mishpat 332:2; and Shakh, Hoshe11 Mishpat 332:3.
35 Darkhei Moshe, Hoshen Mishpat 332.

Chapter Four

HIRING STOLEN
PROPERTY
Ramah proposes another innovative application of R.
Yosi' s principle. In a discussion of a person who steals
property and hires it out to another, Ramah rules that the
thief is obliged to remit the rent received to the original
owner. Ramah's ruling is quoted in Shitah Mekubetzet, on
a case discussed in Baba Kama 97a, of a person who stole
and used another's boat: 36
This applies [only] when the thief uses it [himself].
When, however, he hires it out to another and receives
rent, even if he possessed it with the intention of theft,
since it was designated by the original owner as being
for hire, when the hirer hires it with the consent of the
thief, he is obliged to pay the rent to the owner, since.
the acquisition of the thief is not full acquisition, but
only acquisition as far as obligating him for damages
36 Shitah Mekubetzet, Baba Kama 97a, s.v. ulelnyan Pesak.

Chapter Four
caused by force majeure. Thus, we find that the money
received by the thief from the hirer belongs to the
owner, and he is obliged to forward it to him.

Tur37 quotes Ramah' s opinion but omits the words, "and
receives rent," emphasized above, and this omission opens
the way for a restrictive construction of Ramah' s ruling.
According to this reading, the obligation to pay rent to the
original owner applies only as long as the thief has himself
received no rent for use of the stolen property. If the rent
has been paid to him. however, he is permitted to keep it. 38
This construction was offered in spite of Tur's own words,
"Thus, when the thief receives rent from the hirer, this is
money belonging to the owner, and he [the thief] must return it to him [the owner]." Those adopting the restrictive
construction of Ramah's ruling apparently take Tur's words
to explain why ab initio the thief is not entitled to receive
rent, being that any such revenues are rightfully the property of the owner. Once rent is paid to the thief, however,
as explained, this approach would hold that he is not
obliged to remit it to the original owner. 39
Such an interpretation is contradicted, however, by the
wording of Ramah's ruling as quoted by Shitah Mekubetzet,
where it seems clear that any rent collected must be paid to
the owner.

37 Tur Hoshen Mishpat 363:5.
38 See Shiltei Giborim on Rif, Baba Metzia, chap. 5 (ed. Vilna, p. 36a).
It appears that Shiltei Giborim holds that, if the rent is paid to the
thief after the stolen object has been recovered by the original owner,
then the rent must in any case be forwarded to the owner.
39 Resp. Sho'cl uMcshiv, Mahadura Talita'ah 11:146, p. 43, col. 3, interprets Ramah's ruling in a manner similar to the interpretation of
Shiltei Giborim.

Hiring Stolen Property

Ramah's ruling was rejected by R. Yosef Karo. 40 R. Karo
cites an explanation of Ramah' s ruling according to which
not obligating the thief to remit any rent he receives to the
owner would result in an injustice to the owner (de'im lo
ken laktah shurat hadin). He then goes on to express his
disagreement with both the ruling and the reasoning cited:
Ramah's ruling is most strange in my eyes. Since it is
established that all thieves repay the value that the object had when it was stolen, what difference is there if
he used it himself or hired it out to someone else … ?
And the argument that otherwise there will be an injustice done [to the owner] is no argument, for it is established that any appreciation of stolen property belongs
to the thief.
Rema, on the other hand, writing in Darkhei Moshe, supports Ramah's ruling, dismissing R. Karo's objections,
partly on the basis of R. Yosi's principle: 41
There is no argument at all in what he [i.e., R. Yosef
Karo] writes. That which he argues, "what difference is
there if he used it himself, etc.?" is refuted by the case
of one who hires a cow and lends it to another and the
cow dies while in the possession of the borrower. For
if the hirer did some work with it, and it died, he is
exempt from payment, whereas if he loaned it to another, and it died, compensation goes to the owner,
[since otherwise] it would be an instance of profiting
from his neighbor's cow …. And it is the same here. Although the thief is required to pay only the value of the
object at the time it was stolen, as regards any rent he
may receive, he is not permitted to profit from his
neighbor's cow. His argument that all appreciation of
40

Beit Yosef, Hoshen Mishpat 363:5.
41 Darkhei Moshe, Hoshen Mishpat 363:2.

Chapter Four

stolen property belongs to the thief is also not relevant,
since here, the hirer meant only to pay rent, and thus,
the rent is owed directly to the owner as though he had
hired it out himself. 42
As a consequence of this reasoning, Rema, in his comments
on Shulhan Arukh, rules in accordance with Ramah: 43 "If
the thief hired it out to someone else, he must return the
rent to the owner, since the [stolen property] had been designated as for hire." 44
It is Rema's opinion, then, that when the regulations concerning theft (according to which the appreciation of stolen
property belongs to the thief) come into conflict with R.
Yosi' s principle. the latter takes precedence. Thus, in the
case under discussion, rental payments are due the original
owner and not the thief. R. Karo had asserted that the principle that any appreciation of stolen property belongs to the
thief exempts the thief from returning rental payments to
the owner. On the other hand, Rema argues that, since here
there is a hirer who is obliged to pay rent, and the question
is, to whom must he pay it? we do not apply the principle
that appreciation of stolen property belongs to the thief,
rather ruling that rental payments must go to the owner. 45
42

See below, note 49.
Rema, Sh. Ar., Hoshe11 Mishpat 363:5.
44 With regard to lhe applicability of takkanat hashavim in the present
case, see Serna, Hoshen Mishpat 363:13; the Hebrew version of the
present work. Nahum Rakover, Osher veLo beMishpat (Jerusalem,
1987), Part 2. n. 40; Be'ur haGra, Hoshen Mishpat 363:12; and
Taha 'at haHoshen 363, with reference to the opinion of Netivot
haMishpat 363. be'urim 9. See below, note 57.
45 This apparently answers R. Yosef Sha'ul Nathanson's objection to the
opinion of Rema. See R. Nathanson's Sho'el uMcshiv, Mahadura
Talita 'ah II: I 46 (p. 43, end of col. 2). See also lmrei Binah I, re•
sponsa, 2:6-7.
43

Chapter Five

HIRING OUT ANOTHER'S
PROPERTY
The point of law discussed by Ramah (and the subsequent
authorities quoted) concerns the hire of movable property property which can be stolen. Rashba 46 discusses immovable property, which, of course, cannot.
Rashba considers the case of A who lets a house to B,
and later it is found that the house belongs not to A but
rather to C. In Baba Kama, the Talmud establishes that if
the house is not available for hire, the tenant has no obligation to compensate the owner. 47 What will be the law,
however, where B has already paid rent to A (although A
is not the owner)? Rashba rules that the rent is to be recovered from A. As regards disposition of the money recov46 Rashba, R. Shelomoh son of Avraham son of Adret of Barcelona
(1235-13!0) was the most widely respected rabbinic authority in
Spain in the generation following Nahmanides.
47 See Baba Kama 21 a; see above, Part I, chap. 6.

Chap/er Five

ered, however. he is not certain whether it should be remitted to C, the owner, in accordance with R. Yosi's principle,
or perhaps returned to B. the rationale being that since the
house was not for hire, B can say to C, "What loss have I
caused you?" Rashba writes: 48
Where he has already paid rent to A, we take it from
him, for he has let that which is not his. And it may be
that it is given to C, for how shall one profit from his
neighbor's house? And even though it was not for hire,
since he entered it on a rental basis and paid, A has
already acquired [the rental fee] for C. 49 Or it may be
that the money is taken from A and returned to B rather
than to C. since B can say, "What loss have I caused
you?"
What is noteworthy in this passage is that, although A in
letting C's property has no connection, legal or physical,
with it, and no legal relationship with C, the owner, the latter may yet be entitled to receive rental monies from him.
Rashba' s uncertainty does not concern whether R. Yosi' s
principle applies. Apparently it is clear to Rashba that if the
rent is not returned to B. the tenant, the owner, C, is entitled to claim it from A. His uncertainty, rather, is whether
B (who has already paid) is entitled to receive his money
back. 50 As regards the relationship between the owner, C,
48 Hiddushei haRashba. Baba Kama

21 a, s.v. Hakhi ka 'amar nimtza,
quoted also in Beil Yosef, Hoshen Mishpat 363:7,
49 In suggesting that A acquires the rent for C, Rashba puts A in the
position of C's agent. in spite of A's intention to acquire the rent for
himself. Compare opinions of Ritba and Rosh, above, text at notes 25
and 27. See also the opinion of Rema, above, text at note 42.
50 Shulhan Arukh, Hoshen Mi.,hpa 1 363:9. rules that the rent is to be returned to the tenant: "Some hold that the principle that when the property is not for hire, [the tenant] need not pay rent, applies even if he
rented it from another. whom he thought to be the owner, and it was

Hiring Out Another's Property

and A, the person who has let his property without his consent, Rashba holds that R. Yosi' s principle applies. As for
the relationship between B, and C, however, Rashba is uncertain whether the exemption of "one benefits while the
other sustains no loss" will apply.
It is important to note, by the way, that Jewish legal authorities sometimes use R. Yosi's "How shall one do business with his neighbor's cow?" in a strictly rhetorical fashion without its actually serving as the legal basis for the
ruling in question.
So, for instance, in a responsum of R. Me'ir son of
Barukh of Rothenburg, 51 regarding A, who made B his
agent to purchase clothing for him and delivered to him a
sum of money for that purpose. B purchased clothes from
a non-Jew, who disappeared before collecting the payment
due him. 52 Maharam rules that the money belongs to A and
that B has no right to it.
found that he is not, although [the tenant] took up residence with the
intention of paying rent. And even if [the tenant] paid rent to [the
illegal lessor] who rented it to him, [the illegal lessor] must return it
[to the tenant]."
The meaning of the ensuing passage in Shu/han Arukh is not clear,
however: "And if he paid him rent, since it is clear that it was paid
in error, he must return it." To whom did he pay rent? If to the illegal
lessor, it has already been stated above that the illegal lessor must
return the rent to the tenant. Serna, ad Joe.. , 23, attempts to clarify the
passage; see also Netivot haMishpat, ad Joe., be'urim 7.
51 R. Me'ir son of Barukh of Rothenburg (1215- 1293), also known as
Maharam ben Barukh or Maharam of Rothenburg, was one of the last
of the Tosafists. He was born in Worms and died in prison in
Ensisheim, Alsace.
52 R. Me'ir son of Barukh's responsum is quoted in Mordekhai, Ketubot
258; and Mordekltai, Baba Kama 168-169. See also Resp. Beit
Yitzhak, Hoshen Mishpat 55:3; but it seems that the author of Beit
Yitzhak extends R. Me'ir son of Barukh's ruling beyond its original
intention.

Chapter Five

Accordingly, so long as the money is in tht' possession
of B, it is still owned by A. If the non-Jew forgets it
and subsequently cannot be found, how shall one profit
from his neighbor's cow? Rather, the money must be
returned to its original owner.
The ruling is based upon the fact that the money belongs
to its original owner and must, therefore, be returned to
him. The statement, "How shall one profit from his neighbor's cow?" comes only to dramatize the original owner's
right to the profit realized by the vendor's failure to collect
that which is due him.

IOO

Chapter Six

SUBLETTING
I. PERMISSION TO SUBLET, AND THE RIGHT TO REVENUES

RECEIVED

Further application of R. Yosi' s principle was made by R.
Yosef Haviva, 53 in his Nimmukei Yosef, 54 to situations
where a tenant profits by subletting the property he has
rented. Considering the case of a person who rents a house
and sublets it for a higher rent than he himself pays, R.
Haviva distinguishes between a tenant who was permitted
to sublet the property and one who was not: if the tenant
received permission (be it explicit or implied) to sublet,
then the profit belongs to him; if not, the profit belongs to
the property's owner. In support of his ruling, Nimmukei
Yosef cites R. Yosi's principle.
Not only does Nimmukei Yosef use R. Yosi's principle to
support his ruling that when the tenant does not have permission to sublet, profits must go to the owner, he also goes
53

R. Yosef Haviva was an important rabbinic authority who lived in
Spain near the end of the fifteenth century.
54 Nimmukei Yosef, Baba Kama, chap. 2 (ed. Vi]na, p . 9a).

l01

Chaprer Six

to considerable length to demonstrate that, when the tenant
does have permission to sublet, the profits belong to him.
R. Haviva argues that. since the tenant is acting within the
bounds of what he is permitted to do, the simple fact that
he shows a net gain by collecting a higher rent than he is
paying is not sufficient to entitle the owner to his profits;
and since permission to sublet was part of the original
agreement, the owner has no claim against the tenant's doing so. Neither is the profit itself sufficient cause for action
by the owner. This is comparable to renting to the tenant
for less than the going rate. Here, too, the tenant "profits"
from the owner's property, yet, clearly, the owner has no
cause for action to recover the difference between the rent
charged and the going rate. He concludes by adding that,
where there has been permission, it is a case where one person benefits while the other sustains no Joss. 55

55 One problem noted by various commentators with regard to Nimmukei
Yosef's opinion is that. in the original case concerning which R. Yosi
formulates his principle. the Talmud (Baba Metzia 36a) asserts that
the owner of the cow had granted permission to the hirer to lend it to
others. This being the case, why. in the present case of subletting real
property, should the owner's permission grant the tenant the right to
the profits realized by subletting – would it not appear that in both
cases one person profits from the property of another? Apparently,
Nimmukei Yosef takes the Talmud's assertion, that our case is one
where the owner had granted his permission 10 lend the cow, to be a
temporary conclusion. ultimately rejected. See Resp. Benei Aharon
(Lapapa) I, p. 2. col. 2; Mahone!, Efrayim. Hilkhot Sekhirut 19; Serna,
Hosher1 Mishpar 307:5; Shakh (in response to the opinion of Sema),
Hoshen Mishpat 307:2: Kerwt lwHoshen 363:8; Be'ur haGra, Hoshen
Mishpat 363:30; and Min/wt Pitim (Arik). Hoshen Mishpat 307:5.

102

Subletting

In his comments on Shulhan Arukh, Rema 56 rules in accordance with the opinion of Nimmukei Yosef as law.57
2. THE RIGHT TO SUBLET BY LAW AND BY OWNER'S
CONSENT

Basing himself on a distinction between the legal right to
sublet and the owner's permission to sublet, R. Aharon
Lapapa (a noted Turkish rabbinic authority) 58 seeks to restrict the application of R. Yosi' s principle.
This problem figures in the opinion of R. Aharon Lapapa, cited in
sub-section 2 of the present chapter.
56 Rema, Hoshen Mishpat 363: JO. See also Beit haMelekh (Hason) 7, p.
47, col. 3.
Shulha11 Arukh, Hoshe11 Mishpat 307:5, rules: "If one hired a cow
from another and loaned it to a third, and the cow died a natural death
or as the result of some force majeC1re, since the latter is liable, it [the
cow's value] returns to the owner, since one may not profit from the
other's cow. And if he [the owner] said to the hirer, 'Lend it out
if you wish, and you will deal with the borrower, and I will deal
with you,' then the borrower compensates the hirer." According
to the emphasized passage, then, the possibility exists that compensation for the cow will be paid to the hirer; however, simple permission
to lend the cow is not sufficient, since it must be stipulated that the
hirer will deal with the borrower and the owner with the hirer. Hence
it seems clear that Shulhan Arukh does not accept the ruling of
Nimmukei Yosef. See also Beil haMelekh, loc. cit., who suggests that
Nimmukei Yosefs opinion should not be understood at face value,
since "I have not found a single authority who accepts it. … "
57 See Netivot haMishpat, Hoshe11 Mishpar 356, be 'urim 4: "And if [the
thief] sells [what he has stolen] for more than its value, and the owner
is agreeable to the sale and claims the money received by the thief,
the thief cannot argue that he must surrender only the value [and not
the profit] in the manner that all thieves pay only the worth of an
object at the time it was stolen. For how can one do business with his
neighbor's cow?"
58 R. Aharon Lapapa· was active during the seventeenth century.

103

Chapter Six

R. Lapapa opens 59 by questioning Nimmukei Yosef's opinion, asking what difference there is between a tenant who
has the owner's permission to sublet and the case in the
Mishnah concerning which R. Yosi concluded that one may
not profit from another's property (given 60 that the Talmud
concludes that in R. Yosi' s case as well the owner had
given his permission to lend the cow to others). He concludes that there is indeed a difference between the two
cases. In the case of R. Yosi, the hirer is not permitted to
lend the cow without the owner's permission, an indication
that the object held in bailment (i.e., the cow) does not belong to the hirer. In the present case of immovable property,
however, the tenant is permitted by law to sublet the premises even without permission of the owner. The tenant's
right to sublet without permission shows that he actually
acquires rights in the property – that for the rental period,
the property belongs to the tenant. On the other hand, where
the object of hire can be hired or loaned out by the hirer
only by permission of the owner, the hirer does not acquire
such rights in the object for the agreed period, and where
the hirer does not acquire such rights, R. Yosi's principle,
which prohibits profiting from the property of another,
will apply. On the other hand, in the case of immovable
property, where the tenant actually acquires the property
that he rents, R. Yosi's principle is not relevant. 61
R. Lapapa's approach requires further study, however,
particularly since he presents it in explanation of the opinion of Nimmukei Yosef. who speaks explicitly of a case
59 Resp. Benei Aharon l :3. p. 2. col. 3.

60 See above, note 55.
61 Further on in the responsum . R. Lapapa relates to a possible objection
to his approach based on the talmudic discussion in Baba Metzia 96.
See also his discussion. Rrsp. Benei Aharon l :2. p. 5, of a responsum
of R. Mordekhai Kalai. See also R. Lapapa's remarks, ibid. 3, p. 7.
104

Subletting

where the tenant is not permitted by law to sublet (that is,
to a bigger family than his), but the owner allowed him to
sublet. In this case, Nimmukei Yosef still says that the profit
belongs to the tenant. 62
In his Mahaneh Efrayim, 63 R. Efrayim Navon 64 discusses
sub-hiring of chattels, adopting R. Aharon Lapapa's distinction, though, for the reason mentioned, he does not attribute it to Nimmukei Yosef. Nor does R. Navan argue that
where a legal right to sublet exists that this indicates acquisition by the tenant.
3. PROFIT FROM THE OWNER ' S PROPERTY AND PROFIT FROM

THE TENANT'S RIGHTS

R. Efrayim Navon goes further still, introducing a new distinction between the situation concerning which R. Yosi
formulated his principle, on the one hand, and profits on
rental revenues, on the other. R. Yosi, of course, is concerned with who will receive compensation from the borrower for the dead cow. In this case, the body of the cow
remains the property of the original owner, and thus it is
relevant to ask how one person may be permitted to profit
from the property of another. In rental of immovable property, however, the tenant acquires the usufruct, the right to
whatever earnings the property may yield, for the duration
62 Against the opinion of R. Lapapa, R. Me'ir Sirnhah of Dvinsk (below,

note 65) argues that since the mishnah presenting R. Yosi's principle
contains no qualifications, it must certainly apply in all cases, including one where the hirer has stipulated that he be permitted to lend the
property to others. Here, although the hirer clearly lends out that
which is his to lend, R. Yosi' s principle still applies. Hence R.
Lapapa's distinction is not valid.
63 Mahaneh Efrayim, Hilkho1 Sekhirut 19.
64 R. Efrayim Navan was born in Constantinople in 1677 and died in
1753.

105

Chapter Six

of the rental period. This being the case, whether the property is used by the renter himself or by a third party, the
renter's profits are a function of the right that he has acquired.65
While Mahaneh Efravim agrees with Nimmukei Yosef
that, where the owner of immovable property grants permission to sublet, the profits belong to the tenant, Mahaneh
Efrayim rules that even where the subletting is without the
owner's permission, the profits belong to the tenant.·
4. PROFIT FROM THE VALUE OF THE PROPERTY AND PROFIT
BEYOND THE VALUE OF THE PROPERTY

Mahaneh Efrayim seeks further to restrict application of R.
Yosi's principle with regard to immovable property, asserting that Nimmukei Yosef' s opinion applies only to situations where the property was originally rented for less than
the going rate. In such a case, when the tenant sublets it for
more than he pays, his profit is a function of the value of
the property, and thus, in accordance with R. Yosi's principle, it is the owner who is entitled to it. Where the property has been rented for the going rate for such properties,
however, then any profit realized by subletting is not based
upon the value of the property. In such instances, the profit
belongs rightfully to the tenant, for this is a situation where
the tenant benefits and the owner sustains no loss. Mahaneh
Efrayim
65 A similar explanation is advanced by Ketzot haHoshen 363:8. See also
Taba'at haHoshe11, ad Joe.: Hiddushei haRim, Baba Metzia 35b (ed.
Tel Aviv, 1959), p. 106. col. I. p. 107, p. 122, ad fin., and above,
note 10; Resp. Beit Yit;zhak, Hoshe11 Mishpat 55:3; and Or Same'ah,
Hilkhot Sekhimt 5:6, ad fin.
For the distinction offered by R. Me'ir Simhah of Dvinsk between
delivery of a cow to a borrower on the one hand and subletting of real
property on the other. sec Or Same 'ah. ibid.
106

Subletting

goes to some length attempting to show that this approach
does not contradict Nimmukei Yosef
It appears, however, that this is not in fact Nimmukei
Yosef's intention, since Nimmukei Yosef reasoned that
when the tenant has permission to rent, he is exempt from
remitting his profit to the owner, just as he would be exempt from any further obligations if he himself had rented
the property at less than the going rate. Thus, it seems apparent that in discussing tenants who sublet with or without
permi~sion, Nimmukei Yosef was not referring specifically
(or even primarily) to tenants who were renting for less
than the going rate. 66
5. WHEN THE OWNER SUSTAINS LOSS

R. Yosef ibn Hason 67 discusses the case of A, who lets his
house to B who, in turn, sublets it to C at a higher rate.
After citing the opinion of Nimmukei Yosef, R. Yosef ibn
Hasan distinguishes between situations where the original
owner sustains loss and those where he does not. He concludes that where the owner sustains some loss, the tenant
will be obliged to remit his profits to him. In so ruling, R.
ibn Hason cites the opinion of Ramakh quoted in Shitah
Mekubetzet: 68
It is not proper that the hirer should do business with
his neighbor's cow and benefit from the owner's [property] while the owner loses.

In the case under consideration, R. Yosef ibn Hason rules

See Erekh Shai, Hoshen Mishpat 316:1.

67 Beit haMelekh (Hason). Hoshen Mishpat 7.
68 Shitah Mekubetzer, Baba Metzia 35b, s.v. ulelnyan Pesak. See above,
text at note 29.

107

Chapter Six

that since the owner has not sustained a loss, the tenant is
not obliged to turn over his profits to him.
His reasoning is somewhat similar to that of Mahaneh
Efrayim. Mahaneh Efrayim, however, emphasizes profiting
from the property of the owner, whereas R. Yosef ibn
Hason is concerned with whether or not the owner suffers
a loss.

108

Chapter Seven

INSURING ANOTHER'S
PROPERTY

1. INTRODUCTION

Nearly every aspect of R. Yossi' s principle has been examined in connection with an issue widely discussed during
the last hundred years – the issue of insurance.
Many questions have arisen with regard to a person who
pays insurance premiums upon a house belonging to someone else, the usual case being that of a tenant69 who insures
the house he is renting. 70
It must be emphasized that payment of insurance premiums by someone who does not own the property may some69 Where someone insures a property against which he holds a mortgage,
R. Yitzhak Schrnelkes holds that R. Yosi's principle does not apply
(although in the case mentioned of a tenant who insures property that

109

Chaprer Seven

times obligate the owner to return the amount of the premiums to the person who paid them – for example, when one
partner paid the insurance on property owned jointly with
another, or when a tenant insured a property based upon the
owner's undertaking to reimburse him for his expenditure.
In such situations. it may be assumed that the one purchasing the insurance acts as the agent of the owner, and thus,
the rights arising from the insurance are the owner's. 71
When, on the other hand, the tenant who purchases insurance is not entitled to be reimbursed for his expenditure, it
may be asked whether his payment of the premiums entitles
him to whatever profits may arise as a consequence. Or
would the tenant be considered as one who profits from his
neighbor's property, in which case profits will go to the
owner and the tenant will be entitled only to the return of
his expenses?
As we shall see, Jewish legal authorities examined such
questions in light of the rationales offered by the early
post-talmudic authorities for R. Yosi' s principle – to dishe rents, R. Schmelkes expresses uncertainty). Sec Re.l'p. Beit Yitzhak,
Hoshen Mishpat 55:5: and below. lex! al note 113.
70 There is a distinction . of course, hetween coverage purchased by the
tenant for the purpose of insu ring the structure and coverage purchased by him with intention of protecting his own chattels. The
author of Resp. Dii,rei Malki'e/ (V:1 28) was asked concerning a case
where a tenant asked his landlord to pay a higher premium and purchase more insurance on the house he was renting in order that the
existing policy cover the tenant' s chattels as well, the tenant reimbursing the landlord for the additional expense. After the tenant left
the dwelling, it was destroyed by fire. and the tenant claimed his share
of the compensation. The respondent replied that, having paid his
share of the premium, the tenant was indeed entitled to his share of
the compensation, in spite of the fact that the policy was registered
only as protecting the structure.
71 See, for instance, Resp. Beir Shelomoh, Hoshe,1 Mishpat 48.

110

Insuring Another's Property

cover whether according to these explanations, the principle
will apply in insurance cases such as those just described.
The authorities also developed certain distinctions between
lending out a cow and insuring a structure belonging to
someone else, by finding certain factors operative in the
lending of a cow to a third party that do not operate in the
act of purchasing insurance from an insurance company.
The similarities between lending property to a third party
and insuring the property of another have been well set
forth by R. Yitzhak Aharon Ettinger. 72
He was asked 73 concerning a house insured by its tenant
and subsequently destroyed by fire. The house's owner
claimed that the compensation paid by the insurer was
rightfully his. The tenant, on the other hand, argued that
since he had paid the premiums, and since if there had been
no fire, he would not have been reimbursed for his expenditure, once the house was destroyed and his payments had
secured a profit, the profit should belong to him only.
In his responsum, R. Ettinger emphasizes that the similarities between the present case and that of R. Yosi go beyond the fact that, in the case of the cow, the profit resulted
from the hirer's lending of the cow, while in the case of the
insured house, profit resulted from the tenant's purchase of
insurance. They are similar also in that both cases concern
profit that is a consequence of the owners' loss. Another
similarity is that in both cases the second party invested in
the profit: in R. Yosi' s case, the hirer loses by lending the
cow without a fee during the period for which he himself
has paid for its use; while in the case considered by R.
72

R. Yitzhak Aharon Ettinger (1827-1891) served as head of the rabbinic court of Przemysl and later of the rabbinic court of Lvov.
73 Resp. Maharia haLevi II:77.
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Chapter Seven

Ettinger, the insurance policy was purchased at the tenant's
expense (with no agreement by the owner to reimburse).
Thus, the increased liability of the borrower 74 arises from
an expense incurred by the hirer, and the potential insurance payment arises from an expense incurred by the tenant. In R. Ettinger's words: "[the case of R. Yosi] is truly
comparable to the case under discussion, for what difference is there between the borrower's acceptance of responsibility in cases of force majeure and the insurance company's acceptance of responsibility for damage by fire, which
is also a force majeure?"
Thus, it would seem that, in view of the close parallels
between the two cases, compensation for the insured house
destroyed by fire, like the compensation for the cow loaned
by the hirer to a third party, is due the original owner. As
we shall see, however, R. Ettinger does not rule this way.
In the following subsections, we first examine the opinions
of those authorities who do not apply R. Yosi's principle
to cases where one insures the property of another, and then
the opinions of those who do invoke R. Yosi' s principle in
such cases. 75
2. DISTINCTIONS BETWEEN PROFITS FROM LENDING AND
PROFITS FROM INSURANCE
A. Lending Without Permission: B. The Borrower Uses the Property

R. Yitzhak Aharon Ettinger asserts that the outcome of the
74

Unlike hirers, borrowers arc obliged to compensate even in cases of
force majeure.
75 In Part 3, chap. 4, we cite responsa of authorities who hold that compensation is to be divided between the person purchasing the insurance and the owner of the property, since the profit that arose as a
result of the purchase of insurance was in some way dependent upon
each.
112

Insuring Another's Property

case under his consideration will
depend upon a disagreer
76
ment between Shakh and Se111a. Whereas Sema is of the
opinion that R. Yosi ' s case ini the Mishnah is one where the
owner had not given permission to lend the cow to a third
party, Shakh holds that the qase is one where the owner's
permission to lend had bec;n granted. Since R. Ettinger
leans towards acceptance of Sema's opinion, 77 he asserts
that there is a distinction between the loan of property without the owner's consent and the purchase of insurance by
the tenant, which represents no negligence on the tenant's
part, since there is no loss whatsoever to the owner. Thus,
R. Ettinger concludes, in the present case, R. Yosi would
admit that the compensation is due the tenant and not the
owner. 78
R. Ettinger goes on to demonstrate that in the present
case, the ruling will be the same even according to Shakh's
opinion that R. Yosi' s case was one where the cow was lent
with permission. This, R. Ettinger asserts, is bec«.use there
is a distinction between lending, in which the property is
delivered to the borrower in order for him to use it, 79 and

See note 55 above.

77 In this, he relies upon the opinion of Nimmukei Yosef (see note

54
above) accepted as authoritative by Shulhan Arukh; Ritba's opinion
(Baba Metzia 35b, ed. Halperin) as quoted by Shirah Mekubetzet
(Baba Metzia 35b); and Ramakh's opinion, also quoted by Shitah
Mekuberzet (loc. cit.), according to which it appears that, had the
owner granted permission to lend the cow, R. Yosi would have admitted that the compensation belongs to the hirer.
78 See also Resp. Maharia haLevi II: 126, where R. Ettinger discusses
another case of a tenant who insured a structure belonging to his landlord and repeats the basic principles set forth in the responsum cited
here.
79 Based upon the opinion of the Tosafot, Baba Kama I lb, s.v. La
113

Chapter Seven

insurance, where the insurance company does not receive
the use of the house but only assumes responsibility for
whatever damages may be incurred:
Only where [the hirer] loaned the cow to another or
sublet the house to a third party is this considered profiting from the property of another, because the second
bailee uses the thing itself. This is not true, however,
of the present case, since the insurance company never
had the use of the thing itself. but only accepted responsibility for destruction by fire, Land therefore] this is not
considered making profit. And R. Yosi would admit that
the compensation is due to the tenant.
C. The Owner's Property is in the Borrower's Possession; D . The
Borrower's Undertaking is to the O wner

Whereas R. Ettinger's distinction was based upon use of the
owner's property, R. Shelomoh Drimer, 80 in a responsum
concerning insurance. emphasizes possession. R. Drimer
was asked 81 concerning A and B, who were neighbors in a
two-family dwelling. A paid to have only his portion of the
structure insured, but, unbeknownst to him or the insurance
agent, the coverage was recorded as applying to the entire
structure. When B went to insure his portion of the property, he was informed that this was impossible, but not
knowing that his portion was already insured, he did not
understand the insurer· s refusal. In any case, the structure
was destroyed by fire, and A claimed that the entire amount
mibaya, that R. Yosi's principle applies also where an unpaid bailee
entrusts the cow to a paid bailee, Minhat Pitim (Arik), Hoshen Mishpat 307:5, disagrees with R. Ettinger's line nf reasoning. See note 12
above.
SO See Part 1, note 80 above.
81 Re.,p. Beit Shelomoh, Hoshen Mishpat 122 (the respnnsum is dated
1865).

114

Insuring Another's Property

of the compensation belonged to him, while B claimed that
the compensation ought to be divided between the two,
since they had equal shares in the property.
R. Drimer opens by asserting that although initially it
might appear that a decision in this case must be based
upon R. Yosi' s principle, in fact, R. Yosi' s principle is not
relevant. 82 This, he explains, is because the various reasons
suggested by the early post-talmudic authorities for R.
Yosi's principle do not apply in the present situation.
R. Drimer explains that, according to Tosafot's understanding of the basis for R. Yosi 's ruling, it is clear that
there is no relevance to the present case. 83 Moreover, even
according to Ritba' s explanation, 84 that a direct adversary
relationship is created between the cow's owner and the
borrower, because the owner's property was delivered to
the borrower, R. Yosi's principle will not apply to the present case, where the property was never delivered to the
possession of the insurer. 85 This reasoning is relevant to all
cases of insurance.
As regards the case under discussion, R. Drimer relates
82 In another responsum written some twenty years later on a question

of insurance, R. Drimer does not mention R. Yosi's principle at all.
There he rules that if the person who purchased the insurance had no
intention of requesting that the owner share in the expense, then the
entire compensation is due to him as having purchased the insurance.
In the case before him. however. R. Drimer doubts the tenant's claim
that he had no intention of requesting that the owner reimburse him
for any portion of the premium. See Resp. Beit Shelomoh, Hoshen
Mishpat 48 (the responsum is dated 1883).
83 Since the plaintiff is not in a position here to say, "remove yourself
and your oath." See text at note 13 above.
84 See text at note 25 above.
85 See Minhat Pitim (Arik). Hoshen Mishpat 307:5, the responsum of R.
Shalom Yosef, head of the rabbinic court of Lakacz, Russia. R. Shalom Yosef agrees with R. Drimer but adds that if, according to the

115

Chapter Seven

to the fact that B was prevented from insuring his portion
of the property. Here it would seem that since B's loss was
caused by an act of A, A ought to be obliged to divide the
compensation with B. To this proposition, however, R.
Drimer does not agree. Since A's act carried with it no advantage for B, R. Drimer believes that Ritba's invocation
of agency as the mechanism for creating a direct relationship between owner and borrower will not apply. Agency
can be created not at the owner's behest only when doing
so entails some advantage to him, as when the hirer extends
liability for the property by delivering it to a borrower.
R. Drimer's conclusion concerning agency in the present
case seems to be based upon a misreading of Ritba, however, for he paraphrases Ritba as stating that agency is created in R. Yosi's case, because "from this time forth" (i.e.,
from delivery of the cow to the borrower) there is an advantage to the property's owner (which is clearly not true
in the insurance case under discussion). What Ritba writes,
however, is that when the hirer lends the property. it is as
though he does so as an agent for the owner as regards any
advantage as may pertain to the owner from this time forth.
Such a mechanism, it may be argued, does apply to the present case, since the advantage to the owner may be ascertained now that the insurer is obliged to compensate, and it
is clear (in retrospect) that it was to B's advantage that the
house was insured. 86
R. Avraham Mordekhai Landau of Makilinitz, who ong1nally addressed this query to R. Shelomoh Drimer, head of
the rabbinic court of Skala, addressed the same question to
law of the land, the compensation belongs to the owner, then the law
of the land is certainly to be followed.
86 See R. Drimer's opinion ci1ed in Part I. text at note 83 above.

l 16

Insuring Another's Property

R. Tzvi Hirsch Te'omim, head of the rabbinic court of
Haraskow. 87 R. Te'omim, does not relate to R. Yosi's principle, but, for other reasons, finds in favor of the person
who insured the property. R. Te'omim also considers
whether the insurer ought to be obliged to compensate B,
since it was his action that prevented B from insuring his
share of the property. He rejects this possibility, however,
since the damage to B was caused by the insurer indirectly
and unintentionally.
E. The Basis of the Borrower's Obligations in the Laws of Bailment

The responsa cited thus far have focused on certain distinctive features of the cow-borrowing case, namely, the borrower's use of the cow and his possession of it. We next
consider a new point of view, which emphasizes the source
of the borrower's obligations and disregards R. Yosi' s principle entirely in questions of insurance.
R. Shelomoh Yehudah Tabak 88 considered 89 the case of
a person who insured his house and subsequently sold it.
After the sale, the house was destroyed by fire. The question here is, who is entitled to the compensation, the original owner, who payed the premiums, or the second owner,
whose house was destroyed?
R. Tabak finds in favor of the first owner, based on the
fact that he did not sell the buyer of his property his rights
to compensation by the insurer. 90 R. Tabak considers
87 Resp. Eretz Tzvi, Hoshen Mishpat 15.

88 R. Shelomoh Yehudah Tabak served as head of the rabbinic court of
Sighet from 1858 until his death in 1908.
89 Resp. Teshurat Shai 106.
90 In support of this ruling, R. Tabak cites the opinion of Nahmanides
quoted by Rema, Sh. Ar., Hnshen Mishpat 241:12. For similar use of
the same source, see Resp. Eretz Tzvi (Te'omim), Hoshen Mishpat 15;
and Resp. Maharsham Il:211. A concurrent opinion is expressed by

117

Chapter Seven

whether R. Yosi' s principle effects a transfer of such rights,
and concludes that it does not. He explains that, even according to the opinion that in lending the property to a third
party the hirer acts as an agent of the owner, there is an
essential difference bet ween that case, where the hirer
loaned the property itself to the borrower, and the present
case, where the insurer does nothing at all to the house of
the insured. Here it is only the payment of the premium that
gives rise to the compensation:
And support for this may be found in the wntrngs of
Tosafot, Rosh. and Haga/wt Oshri on the third chapter
of Baba Metzia. according to which the reason for [R.
Yosi' s principle l would not apply here. There, [the
hirer] loaned the owner's cow itself, and the borrower,
by taking delivery for the purpose of using it [mashakh
gufah lehishtamesh bah], obligated himself in cases of
force majeure. In insurance, however, nothing was done
to the house itself. and the insurer obligates himself in
return for the premiums paid to him. Compensation,
thus, belongs to the one who paid them.
In other words, the obligations of the borrower (to pay the
owner) are a function of the laws of bailment. In the case
of insurance, however. there is no cause to apply the Jaws
of bailment, and, therefore, no obligation towards the
owner of the house simply by virtue of his ownership.

R. Yosef Sha'ul Nathanson, Re.l'p. Sho 'e/ uMeshiv, Mahadura
Talita'ah 1:305.
R. Tzvi Pesah Frank (haPardes. 33 jTevet, 5719], 6-7) considered
whether one who commits a tort against insured property is liable for
damages. For additional responsa on this issue, see Resp. Harei
Besamim, Mahadura Ti11ya11a 245; Resp. Maharsham IV:7; Or
Same 'ah, Hilkhor Sekhimt 7: I: and Resp. Min/wt Yitzhak (Weiss)
11:88.
118

Insuring Another's Property
F. The Basis of the Hirer's Obligations in the Laws of Bailment

A similar approach, with emphasis upon the laws of bailment as the basis for R. Yosi' s principle, is taken by R.
Shemu' el Engel.9 1 R. Engel, however, does not discuss the
obligations of the borrower, but rather those of the hirer. R.
Engel advances an original explanation of the obligations
of bailees. 92 According to the opinion that bailees' obligations originate upon their taking delivery of the object of
bailment, R. Engel asserts that upon delivery, the bailee immediately incurs the obligation of returning the object to its
owner. In cases of force majeure, a hirer is exempted from
this obligation as long as its fulfillment would entail a loss
for him. When returning the object entails no loss to the
hirer, however, his obligation remains in force even in
cases of force majeure. Therefore, when a hirer lends a cow
which then dies a natural death, since the borrower must
pay, return of the cow's value will entail no loss to the
hirer, and thus, he remains obligated. Since R. Engel sees
R. Yosi's principle as a direct function of the laws of bailment, clearly there is no basis for applying it to the relationship of insured and insurer, where the insurer in no way
assumes the role of bailee (or his obligations). 93
R. Engel goes on to show that a distinction will also exist
between bailment and insurance according to the opinion
that a bailee's obligations do not arise upon his accepting
delivery, but only when he is actually negligent in his duties towards the object of bailment. According to this view
of bailment, R. Yosi holds that the original owner is enti91

92
93

R. Shemu'el Engel was born in Tarnow (western Galicia) in 1853 and
died in Kosice (Czechoslovakia) in 1935. He served as rabbi of
Bilgoray (Poland), Dukla (Galicia), and Radomysl (Ukraine).
Resp. Maharas/r Vl:103.
Cf. the explanation of Hiddushei R. Me'ir Simhah, Baba Metzia 35b.

119

Chapter Seven

tied to the borrower's compensation for the cow, because
the borrower is acting as bailee for the original owner,
whereas the insurer does not assume the role of bailee at
all:
And to those who hold that the bailee's property becomes encumbered [only] from the moment of negligence – that as long as the object of bailment exists, it
remains in the possession of the original owner, with
the bailee having no obligation, [since the object never
leaves the possession of the original owner,] the Torah
obligates the borrower to take proper care of the object
for the original owner. Hence, R. Yosi' s remark, "How
shall one profit from his neighbor's cow?" is logical. In
the case of insurance, however. the insurer has no obligation to care for the house. The insurer has rather obligated himself to the owner of the funds paid him that,
should the house be destroyed by fire, he will compensate. If so, what right does the owner have in this?
G. Profit Is Not the Purpose of the Lending

A new outlook on the distinction between R. Yosi' s case
and a tenant who insures his landlord's property is suggested by R. Me'ir Simhah haKohen of Dvinsk. 94
R. Me'ir Simhah sees the purpose of the purchase of
insurance as pivotal. 90 When a person pays insurance premiums, it is with the intention of enjoying the profits that
such payments may ultimately yield. A hirer who lends a
cow, however, does not do so with the intention of profiting
from the borrower's obligations should the cow not survive
the experience. The hirer's intention is rather that the cow
94 R. Me'ir Simhah haKohen of Dvinsk was born in 1843 and died in
1926.
95 Or Same'ah, Hilk/wt Sekhimr 5:6.

120

Insuring Another's Property

be returned to him as he delivered it. 96 The cow's death is
not anticipated. Since the object of paying insurance premiums is to receive compensation in the event of fire, "It is
not logical to say that the house's owner [who did not pay
the premiums] will have any part of the compensation – that
one should pay and the other receive; 97 is that why he
bought insurance?" Thus, while in the case of the hirer who
lent the cow to a third party, it may be claimed "How can
one profit from the cow of another," in the case of insurance, it may be argued that it is unthinkable that one person
should pay the premiums and another receive compensation.98
96 Moreover, even the money paid when he hired the cow on condition
that he be permitted to lend it to others, was not paid to the owner
for the purpose of acquiring the right to whatever compensation might
result from the cow's death, but rather for the right to use the cow
and lend it.
97 See Pir'hei Teshuvah, Hoslren Mishpat 307:1, with regard to a gratuitous bailee who pays another to care for the animal entrusted to him,
and the animal dies under circumstances in which the gratuitous
bailee is exempt and the paid bailee liable. According to those authorities who hold that here, too, the paid bailee pays the owner (see references cited in note 12 above), will the owner be obliged lo reimburse the gratuitous bailee for his expenses in paying for the animal's
care? See Part 3.
98 How would R. Me'ir Simhah of Dvinsk relate to the various arguments thus far presented that base the owner's rights upon the obligations of the hirer or the borrower? It appears that R. Me'ir Simhah
would deem such considerations inadequate when they would result
in an injustice to the hirer. For instance, if the hirer invested money
with intention of gain, then it is not proper that someone else should
enjoy the profits. Therefore, when the hirer delivers the object of hire
to another for the purpose of profiting and incurs expense in doing
so, R. Yosi's principle will not apply. For a discussion of R. Me'ir
Simhah's opinion, see the chapter, "Gidrei Hiyyuvei Shomerim," in:
R. Yehoshua Yagel, Netivot Yehoshua (1984), pp. 200-204.

121

Chapter Seven
H. Payment of the Borrower in Exchange for the Owner's Property

Another interesting approach distinguishing between lending and insuring the property of another is that of R.
Refa'el Mordekhai haLevi Solovei. 99 R. Solovei's view
turns on the claim, "My cow is in your possession." Such
a claim, R. Solovei explains, is available only to the cow's
owner. In the case of insurance, however, the owner of the
house was never the owner of the money paid by the insur•
ance company in benefits and is. therefore, unable to claim
the equivalent of "My cow is in your possession":
There the reason is that one may not profit from "his
neighbor's cow.·· That is to say that, since the borrower
compensates the hirer. the cow of the hirer's neighbor
[i.e., the original owner] is, in effect, still in the hirer's
possession. Thus. R. Yosi holds that against the hirer in
such a case, the original owner can claim, "My cow is
in your possession." This is not true, however, in our
case fi.e., insurance), where the tenant does not hold
''his neighbor's cow." Here the owner cannot claim ''My
money is in your possession," since this money [i.e.,
compensation paid by the insurer] was never his. The
money derives, rather. from an outside source, and the
tenant profits from his original expenditure on the purchase of insurance. 100

ln his conclusion, however, R. Solovei shows that R. Yosi's
principle has broader application than simply "profiting
99

Resp. Yad Ramah, Hoshen Misl1pa1 80:3.

IOO R. Solovei goes on to assert that even according to the Tosafot's ex-

planation of R. Yosi' s principle, there is certainly no reason to find
in favor of the owner of a structure insured by a tenant: "According
to the Tosafot, who hold that R. Yosi's reason is that the hirer is
obliged to swear or bring witnesses .. there is certainly no room in
the present case [to apply R. Yosi's principle] …. "

122

Insuring Another's Property

from one's neighbor's cow." 101 R. Solovei's reasoning requires careful study, though, since it is based upon the
claim, "My cow is in your possession," rejected by the
Tosafot. 102 It would appear that he bases himself on those
authorities who do not accept the opinion of Tosafot with
regard to a different point. The Tosafot, as shown above,
argue that if the original owner is present when the cow
dies while in the borrower's possession, then R. Yosi would
admit that compensation goes to the hirer and not to the
owner. Various authorities reject this conclusion, and it is
apparently for this reason that R. Solovei attributes to them
the view that the owner's case is based upon the claim of
"My cow is in your possession." In fact, however, those
who disagree with the Tosafot, as we saw with regard to
Ritba and Rosh, base their opinions on their conclusion
that, in lending the cow, the hirer is acting as the original
owner's agent. 103
3. SIMILARITIES BETWEEN R. YOSI'S PRINCIPLE AND
INSURANCE

Alongside those authorities who hold that R. Yosi's principle does not apply to situations where one insures the property of another, other authorities are convinced that it indeed applies.
R. Shelomoh Kluger 104 was asked ios concerning A, a
partner in a jointly owned two-family dwelling, who had
paid to insure the entire structure. When he was compen101 See below, text at note 108.
102 See above, text at note 13.
103 See above, text at notes 25 and 28.
104 R. Shelomoh Kluger (1786-1869) was one of the most widely recognized rabbinic authorities of his time. He served as rabbi of a number
of communities in Galicia and as preacher of Brody.
105 Hokhmat Shelomoh. Hoshen Mishpat 176:41.

123

Chapter Seven

sated for the structure· s destruction, B, his partner, claimed
his share, but A refused to divide the payment with him. R.
Kluger opens by establishing that the purchase of insurance
is not an automatic function of such a partnership, but
rather a matter to be agreed upon by the partners. On the
question of who is actually entitled to the compensation, R.
Kluger rules that this depends upon the law of the land. 106
If the law permits one partner to insure the other's property,
then the partner who paid the premiums is entitled to collect
the full amount of compensation. If, on the other hand, the
law does not permit one to insure the property of another,
then the compensation for the uninsured partner's property
belongs to the uninsured partner. since one may not profit
from his another person· s property . 107
R. Refa'el Mordekhai haLevi Solovei, although disagreeing
with R. Shelomoh Kluger's reasoning, 108 nevertheless finds
support for the view that one may not profit from insuring
the property of another. to9 His source is Ramah' s ruling in
106 "Thus, here is how the law appears to me: Let them ask what is the
law of the land. If one person can insure the property of another and
collect compensation in 1hc event of fire. then the other partner has
no share of this. If. however. it is the law of the land that one cannot
insure another's house, then the one who bought the insurance can
do so only as a function of his partnership in the property, and he is
not permitted to profit from his neighbor's property …. "
107 The distinction between whether it is permitted to insure the property
of another or not is found also in Resp. Sho'el uMeshiv, Mahadura
Tinyana III: 129 (see below. Part 3, text at note I 36). According to
R. Kluger, however, if it is not permitted to insure the property of
another, the entire compen sation belongs to the owner, whereas R.
Yosef Sha'ul Nathanson. author of Resp. Sho'el uMeslriv, rules that
compensation must be divided hctween owner and tenant.
lO& Resp. Yad Ramah, Hoshe11 Mishpat 80:3. See above, text at note 99.
io9 Ibid .. 80:4.

124

Insuring Another's Property

the case of the agent who hired workers for another. 110 As
mentioned, Ramah concluded that the agent may collect no
more than the sum he paid to the workers, even if this sum
is less than the benefit received by the person for whom the
agent hired them. Thus, R. Solovei concludes:
Also in our case, he who insured the house cannot
claim, "I entered into this transaction on my own and
at my own expense, having risked my own money. For
had the house not been destroyed by fire, I would have
lost all my expenses, and now, the profits are mine."
The reason [that he has no such claim] is that we say
to him, "Were it not for the other's house, from where
would you have profited?" No one may profit from
something that belongs to his neighbor, and therefore,
the profits belong to the owner. 111
A case where the person insuring the property holds a mortgage against it is considered by R. Moshe Te' omim. 112 R.
Te'omim concludes that although his interest 113 in the property might suggest that he is not "profiting from his neighbor's cow," R. Yosi's principle will, in any case, bar him
from collecting insurance compensation. I14 Nevertheless, R.
Te'omim concludes, the owner must divide the insurance
money with the mortgage holder who insured the property.
The principle here is that of an agent sent to buy merchan110 See above, text at note 33.
111 For an explanation of why the owner and the one who purchases
insurance do not divide the compensation in accordance with the ruling in Sh. Ar., Hoshen Mishpat 183, see below, Part 3, text at note
138.
112 R. Moshe Te'omim (1819-1887) served as head of the rabbinic court
of Gorodenka.
113 See the opinion of R. Yitzhak Schmelkes, Beil Yitzhak, Hoshen Mishpat 55:5, cited above in note 69.
114 Resp. Oryan Talita'i 156.

125

Chapter Seven

dise at a known price. If the vendor supplied more merchandise than the going rate would have called for, the
agent may not keep the windfall for himself. Rather he must
divide it with the person who sent him, since it was the
latter's money that brought about the unexpected profit. 115
Here, it is the mortgage holder who is equivalent to the
agent, as it is the property of the owner that brought about
the compensation paid by the insurer. 116, 111
A responsum that needs clarification is that of R.
Yekuti'el Asher Zalman Tzuzmir 118 concerning A, who insured his own dwelling and that of his brother, B, both
dwellings being registered under the same number. When
the structure in which both lived was destroyed by fire, B
demanded that A surrender B's share of the compensation.
R. Tzuzmir 119 found in favor of B and ordered A to divide the compensation with him. Thus, it would seem that
115 See Ketubot 95b; and Maimonides. M. T.. Sheluhin veShutafin 1:5.
116 For R. Te'omim's objection to the opinion of R. Yosef Sha'ul

Nathanson, see below. Part 3. note 116.
117 Hiddushei haRim, Bab{/ Melzia 35b (ed. Tel Aviv, 1959, p. 108) dis-

cusses R. Yosi's principle in light of the rule in lhe case of the agent,
wondering why hirer and owner should not divide the borrower's
payment for the value of the cow. given that the hirer has paid for
his use of the animal. In answer to this question, the author of
Hiddushei haRim distinguishes between profit and loss. Where there
was a windfall profit, as in the case of the agent who received more
merchandise than would have heen expected according to the going
rate, then the agent and the person who sent him divide it. Here,
where there is only compensation for loss and the entire loss is that
of the owner, all compensation belongs to him. This approach, however, requires further clarification.
118 R. Yekuti'el Asher Zalman Tzuzmir (d. 1858), who was a disciple of
the author of Ketzot haHnshe11. served as head of the rabbinic courts
of Prezmysl and Stryj.
119 Resp. Mahariaz Enzil 72 (the responsum is dated l 847).

126

Insuring Another's Property

R. Tzuzmir disagrees with those authorities who hold that
compensation belongs to whomever pays the premiums
(whether or not he owns the property). 120 Upon further
study, however, this does not seem to be the case. In his
responsum, R. Tzuzmir cites a responsum of Rashakh 121
concerning A and B, who sent merchandise to C with instructions to ship it to a particular destination. Only A instructed C to insure his shipment, but C mistakenly insured
only the merchandise of B. In his ruling, Rashakh reasons
that since B, not having instructed C to purchase insurance,
had not obligated himself to reimburse C for the premiums,
he was not entitled to benefit from the compensation. C, on
the other hand, as a result of his negligence towards A's
shipment, was obligated to restore its value to A who had
previously obligated himself to reimburse C for his outlay
on the premiums by instructing him to purchase insurance.
Thus the compensation was to be paid to A. From this precedent, R. Tzuzmir concludes that
a person who has become obligated to pay insurance
premiums is entitled to whatever advantage may be consequent, even if he has not yet paid. Since in the present
case [that of the two brothers], B became obligated to
pay his share, he is also entitled to his share of the compensation.
Thus, it is not clear that R. Tzuzmir would always hold that
compensation belongs only to the owner of the property (as
opposed to another party who paid the premiums).
120 This is the conclusion of B. Z. Eliash, "Al Dinei haBitu ' ah baMishpat
halvri," lyyunei Mishpat. 1, 359 (at 367).
121 Resp. Maharshakh IL159. Rashakh (d. 1602) was one of the most
widely recognized rabbinic scholars in Turkey during the sixteenth
century. For a discussion of this responsum and its bearing on our
topic, see R. David Pipano, Resp. Hoshen haEfod I (Salonika-Sofia,
1915), 36.
127

Chapter Eight

CONCLUSION
The basis for the Jewish legal treatment of situations where
one person profits from the property of another is R. Yosi' s
pronouncement, in the case of a cow, which having been
hired and subsequently loaned to a third party, died a natural death. To the possibility that the hirer in this case
might profit from the death of the cow that he has hired, R.
Yosi responds, "How shall one [i.e., the hirer] profit from
another person's cow? The cow must be returned to its
owner."
What is the legal basis of R. Yosi' s principle? Some
commentators have emphasized the injustice of one person's profiting from the property of another when this entails the owner's losing the property altogether. Others explain the principle in more formal legal terms, positing that,
in the paradigmatic case of R. Yosi, the hirer, by lending
the cow to the third party, is acting as the owner's agent or
quasi-agent. This latter approach seems to be characteristic
of commentators who were not satisfied with the simple affirmation of a principle which, in effect, transfers rights
129

Chapter Eight

from one party to another. These commentators felt constrained, rather. to explicate in detail the legal mechanism
of such transfer.
Though R. Yosi's ruling was made with respect to a particular case, certain early post-talmudic commentators applied it by analogy to a broad range of similar situations.
So, for instance. when one person lets a property that does
not belong to him, the early post-talmudic commentators
rule that the rent belongs to the property's owner. So, too,
when one person sublets property without the owner's permission, if the rent received by the tenant is greater than
that which he himself is paying. profits must be turned over
to the owner. However, if the subletting is done with the
owner's permission, the profits will belong to the tenant.
Other authorities. however, sought to restrict the applicability of this latter ruling, arguing that subletting without
permission should not entitle the owner to the profits unless
he sustains some loss as a result.
The Later Authorities do not seem to have extended R.
Yosi' s principle significantly beyond the bounds set by the
Earlier Authorities. rn recent generations, R. Yosi' s principle has been considered with regard to situations where one
person insures the property of another, such as when a tenant insures the property of his landlord. Here it was asked,
who is entitled to collect in the event that compensation is
paid? The case of insurance is similar to R. Yosi' s case. In
R. Yosi's case. benefit arises from the hirer's lending the
owner's cow to a third party, and in the situation of insurance, benefit arises from the tenant's insuring the property.
Another similarity is that, in both cases, profit is conditional upon a prior loss by the hirer or tenant: the hirer in
that he receives no compensation for the borrower's use of
130

Conclusion
the cow, although he himself has paid for its hire; the tenant
in his payment of the insurance premiums.
In spite of such similarities, the majority of respondents
dealing with such questions have held that the comparison
is not adequate and that R. Yosi's principle will not operate
to entitle the property owner to payment in the event that
the insurer is required to compensate. The respondents emphasize certain elements of R. Yosi's case which do not exist where one person insures the property of another, and
although a number of approaches have been taken, it appears that the main distinction between the two situations
turns upon the original owner's link with the compensation
paid by the borrower. This link arises from the hirer's obligation to return the object of hire, from the borrower's use
of the object of hire, or from the fact that the object of hire
entered the possession of the borrower. In insurance, on the
other hand, the transaction between tenant and insurer is a
personal one, completely separate from the actual rental of
the property. Thus, the tenant does not profit from "the
owner's cow," and the owner has no link with any compensation paid by the insurer. Or, as may be concluded from
the approach of one of the respondents, whereas in R.
Yosi's case, it would not be proper for the hirer to profit
from the owner's property, in the insurance situation, it
would not be proper for the tenant to pay the premiums and
the owner receive compensation.
In consideration of the applicability of R. Yosi's principle in modern times, various distinctions have been drawn,
some substantive, relating to the question of unjust enrichment, and others seemingly of a formal nature only. Whatever the case may be, it is critical to remember that when
a party lays claim to profits derived from his property, it is
his obligation to demonstrate that the property is in fact the
131

Chapter Eight

source of the profits in question. By being subjected to
thorough legal analysis. R. Yosi's principle has been removed from the realm of abstract theory and given application in day-to-day questions of equity and justice. Such
analysis, as well as careful application, has prevented the
principle from being stretched to the extent that concern for
the interests of property owners would result in injustice to
others.

132

Part Three

AGENT WHO
RECEIVES BENEFIT IN
CONSEQUENCE OF
AGENCY

TABLE OF CONTENTS

Chapter One

INTRODUCTION
I. AGENCY

139

2. UNJUST ENRICHMENT
3. BREACH OF TRUST

Chapter Two

140

141

AGENT RECEIVING BENEFIT
I. THE TALMUDIC BASIS

145

I. A Third Party Who Grants Added
Consideration

145

A. Views of the Tanna 'im

145

B. Distinction between Merchandise that

Has a Fixed Price and Merchandise
that Does Not

145

C. Jerusalem Talmud: Division of

Unanticipated Gain Based on the
Agent's Share

148

2. An Agent Who Deviates from

Instructions

149

A. Disagreement of Tanna 'im

149

B. Recourse lo the Lmn of Agency

150

C. The Jerusalem Talmud: Division Based

on the Agent's Share

152

135

Contents
fl. 1NALYS!S Of- OPINIONS AND RULING

154

I. Th ird Party Who Gave Added
Con~ideration (Hosif11 laShali'ah)

154

A. The DiPision is Based On
Uncertainty

155

B. The Approach that the Agent is Entitled

to !faff Beca11se he Created the
Unanticipated Gain

159

C. Tra11.H1ction /11vo/vi11g a Mistake due to

rl,e Age11t

161

D. The Law as Codified in Shulhan
Arukh

170

2. An Agent Who Deviates from
Instructions

I 78

1. Thi' Approach that Awards All to

the f'ri11cipal

178

B. The Approach that Awards a Share to
Wh oc1·cr Was /11strumental in Creating
rhe Gain

179

C. The Approach of Sh11lhar1 Arukh – All
Belonfis to the Principal

D. Commentators

011

181

Shulhan Arukh Favor

the Approach that the Agent is Entitled
10

Ha!( hccar,se he Created the

Gain

Chapter Three

182

PARTICIPATION IN RISK AS GROUND
FOR SHARING PROFITS

Chapter Four

136

185

fNSURING ANOTHER"S PROPERTY

193

Contents
Chapter Five

APPENDIX: RIGHTS AS IF ONE FOUND
LOST PROPERTY

Chapter Six

CONCLUSION

203

197

Chapter One

INTRODUCTION
When benefit arises from the act1v1ty of one person who
represents another, to whom does such benefit rightfully
belong, to the principal or his representative? The question
can be considered from a number of perspectives.
1. AGENCY

The first perspective that has to be considered is the
institution of agency. In such situations, is the agency
broadened to include acquisition of the benefit? If it is, the
benefit will belong to the principal even though the original
agreement of agency carried no such stipulation. Is the
agent viewed as the representative of the principal also with
regard to (unanticipated) advantages arising from the
agency, or is the activity of the agent viewed as his own
independent activity, unrelated to the agency?
Some activities must certainly not be considered part of
the agent's activity as an agent. So, for instance, if during
the discharge of his agency, the agent commits a theft, the
theft is not attributed to the principal, even where it was
139

Chapter One

the agency that enabled the agent to commit the theft. 1 On
the other hand, there are some activities concerning which
it is difficult to determine whether they are an integral part
of the agency or not. An example might be when the third
party, with whom the agent must transact his appointed
task, gives a gift to the agent. Here, perhaps, we must distinguish between instances where the third party specifies
for whom the gift is meant (agent or principal) and instances where he does not.
2. UNJUST ENRICHMENT

From a different perspective. it may be asked whether the
fact that the advantages derived from an agent's actions (regardless of whether the particular actions may technically
be classed as part of the agency) is sufficient to determine
the rights of the parties to the advantages created. Even if
the agency itself does not secure the rights to the advantages for the principal, perhaps he is entitled to them or to
a share of them because he was instrumental in their creation. Or, on the other hand, even when the principal acquires the advantages. perhaps the agent is entitled to a
share, since if the agent had not acted, the principal would
not have received the advantages – given that they were not
part of the agency. If, in principle, we recognize one's right
to the advantages received by the other, then we must de1

We are not concerned here with one's claim to benefit from a theft
on the basis of his participation in the theft or on the basis of a general partnership that would entitle one partner to his share of benefits
received by the other by any means. Concerning a claim to a share of
stolen property on the basis of participation in the risk incurred by
the thief, see below. chap. 3: and Nahum Rakover, Anishah
he Ma 'aseli ha Ba haA ,,eimh. monograph no. 2 of Sidrat Mehkarim
uSekiror baMisl,pat hafrri (Jerusalem, 1970).

140

Jntroducrion

termine criteria for deciding when one party may be considered instrumental in the other's acquisition to the extent
that he is entitled to a share of the advantages he helped
create. Such questions belong to the category of unjust enrichment, 2 the field of law that regulates enrichment due to
the property or actions of another, when the party enriched
has no legal claim to the benefit received. 3
3. BREACH OF TRUST

Another aspect of our question concerns acceptance by the
agent of some benefit without the principal's knowledge. In
such cases, personal interests may be created that bring the
agent to violate his obligations to the principal. 4 The benefit conveyed to the agent may be tantamount to bribery
and may prejudice the agent against the best interests of the
principal (whether or not this is the intention of the agent
or his benefactor). 5 Moreover, such benefit may actually be
part of the transaction, artificially separated from it only for
the sake of appearances. An example of this may be when
an item could have been sold to the principal at a lower
price, were it not for the "commission" granted to the agent.
The question is whether such matters (in addition to any
prohibition against the agent's acceptance of some benefit
without the knowledge of the principal) bear upon the
2

See D. Friedman, Dinei Asiyar Osher veLo beMishpat (2nd ed .. Jerusalem, 1998), p. 43; and A. Barak, Hok haShelihut, I 965 (2nd ed.,
Jerusalem, 1996), p. 92.
3 See the end of the present chapter.
4 See Barak, op. cit. (above, note 2), pp. !067-1069.
5 Concerning a guardian who let his ward's property for a low price as
the result of a bribe he received from the tenant, see R. Hayyim of
Tzanz (Nowy Saez, Poland), Resp. Divrei Hayyim Il:46. R. Hayyim
of Tzanz rules that if the ward sues the guardian, the ward is entitled
to the amount of the bribe.
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Chapter One

rights of the parties to the advantages that arise in consequence of the agency. Or perhaps sanctions under such circumstances belong exclusively to some other field of law,
such as the penal code.
The Israeli Agency Law, 1965 6 contains a number of provisions relevant to our question. Section 8(4) stipulates that
"[an agent] may receive no benefit connected to the subject
of his agency without the agreement of the principal." Section 10(2) provides that "the principal is entitled to any
profit or benefit accruing to the agent in connection with
the subject of the agency. " 7
The Trust Law, 1979 8 contains similar provisions relating
to benefit derived by trustees in consequence of their trusteeship. Section 13( I) states: "A trustee … may not derive
for himself or his relative any other benefit from the property entrusted to him or from the activities connected with
it." In addition to lhe prohibition stated, the statute, in Section 15, awards all such benefit to the property held in trust:
"Profit unlawfully derived by the trustee, has the same status as the property and is considered as part of the property
held in trust."
As regards public servants, section 2(1) of the Public
Service (Gifts) Law provides that any gift received by a
public servant as a public servant becomes the property of
the state. 9
The previous parts of the present work dealt with various
aspects of unjust enrichment. We saw that where one person benefits while the other sustains no loss, the beneficiary
6 Se.fer lraH11kki111. 1965. p. 220.
See Barak, op. cit. (above. note 2), pp. 1128-1131.
Sefer haHukkim. 1979. p. 128.
9 Sefer haHukkim. 1980. p. 2.
142

Introduction

is exempt from compensating the benefactor for benefit received.10 We also learned that where one person profits
from his neighbor's property, the owner is entitled to any
profits realized from his property_ 1! In the present part, we
discuss benefit received by an agent in consequence of his
agency.

10 See Part 1.
11 See Part 2.
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Chapter Two

AGENT RECEIVING
BENEFIT

I. THE TALMUDIC BASIS

I. A Third Party Who Grants Added Consideration
A. Views of the Tanna 'im

In the Tosefta 12 we find various opinions of Tanna 'im concerning an agent sent to purchase something, who received
from the vendor more than anticipated for the price paid:
"If they gave him one more, R. Yehudah says: '[It belongs]
to the agent.' R. Yosi says: 'To the common advantage
[i.e., they divide it]."'
B. Distinction between Merchandise that Has a Fixed Price and
Mercharidise that Does Not

The passage quoted is cited by the Talmud 13 in connection
12

Tosefta Demai 8:3.
Ketubot 98b.

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Chapter Two

with a mishnah 14 in Ketubot dealing with a widow who, in
order to collect what she is owed by virtue of her ketubah, 15
sells her children's property for more than its value:
[If] a widow whose ketubah was at the sum of two hundred sold property valued at one hundred for two hundred or property valued at two hundred for one hundred,
her ketubah has been paid in full.
On this mishnah, the Talmud asks why, if the widow is held
responsible for any property she sells at a loss, she does not
receive the profit of property that she sells at a price higher
than the market value. To this the Talmud answers that here
the editor of the Mishnah rules in accordance with the opinion that, if a vendor grants added consideration to an agent
(hosifu lashali'ah), the profit belongs to the principal who
appointed him. In support of this explanation, the Talmud
cites the two opinions contained in the Tosefta: that of R.
Yehudah – all belongs to the agent; and that of R. Yosi they divide it. Concerning R. Yosi 's opinion, the Talmud
goes on to point out that elsewhere R. Yosi apparently rules
that the entire unanticipated gain belongs to the principal.
The apparent contradiction in R. Yosi's opinion is then resolved by introducing a distinction between something that
has a fixed price (davar sheyesh lo kitzbah) and something
14 Mishnah Ketu/Jot 11 :4 (TB Kerubot 98a).
15

According to Jcwi~h Jaw. when a man marries, he must give his wife
a promissory note. known as a ketubah, guaranteeing her a sum of
money in the event that he divorces or predeceases her. In the latter
instance, the note is paid from the late husband's estate, which normally passes on to his children. In the case under discussion, a widow
sells property belonging to the estate for the purpose of collecting that
which is owed her under the provisions of the ketubah. The mis/mah
establishes that if the widow sells the property at a loss, the loss is
hers, and that if she sells it at a profit, the profit belongs to the children.

146

Agent Receiving Benefit
that does not (davar she' ein lo kitzbah). Thus, the Talmud
concludes, it is the opinion of R. Yosi that the unanticipated
gain is divided only when the merchandise purchased
has a fixed price. In such a case, it may be presumed that
the vendor did not lower the price, but rather gave extra
merchandise as a gift. Where there is no fixed price, however, it may be presumed that the merchandise was simply
sold at a lower price, in which case, R. Yosi holds that the
entire saving belongs to the principal and not to the agent.
At the conclusion of the talmudic discussion, R. Papa declares that the law is in accordance with the opinion of R.
Yosi – that where merchandise has no fixed price, the unanticipated gain belongs to the principal.
To summarize, when an agent receives more than anticipated for the price paid, the Talmud recognizes three possible approaches: (I) the unanticipated gain belongs to the
agent – R. Yehudah's opinion; (2) agent and principal divide the unanticipated gain – the opinion of R. Yosi concerning merchandise that has a fixed price; (3) the entire
unanticipated gain belongs to the principal – the opinion of
R. Yosi concerning merchandise that does not have a fixed
pnce.
Comparison Between Added Consideration Granted to
an Agent and a Mistake in Sale: Since the passage of the
Tosefta which discusses added consideration granted to an
agent is cited by the Talmud in connection with sale by an
agent of property for a price higher than its valuation, it
appears that the two cases are equivalent. That is to say,
the law concerning an agent's sale of property for a price
higher than expected is the same a.s the law concerning
added consideration granted to an agent. If so, just as in the
latter case, where R. Yehudah holds that the unanticipated
147

Chapter Two

gain belongs to the agent, in the former case as well, R.
Yehudah would hold that the unanticipated profit on the
sale belongs to the agent.
What caused the sale of the property at a price higher
than anticipated? The discussion in the Babylonian Talmud
does not specify. From the discussion in the Jerusalem Talmud, 16 however, it emerges that the higher price resulted
from an error in the evaluation of the property. This is clear
from the Jerusalem Talmud's question, "When property
worth one hundred is sold for two hundred, will not the
property return in the end, seeing as how this is a purchase
in error [mikkah ta 'ut] ?"
Since the case is one of error, one may ask what is the
law in other matters of error, such as a transaction where
too great a quantity is delivered, too little payment is exacted, or there is a mistake in calculation? When the mistake can be corrected by return of merchandise or by additional payment, there is clearly no question. The question
does arise, however, when the mistake cannot be corrected,
as when the vendor cannot be found. In such a case, who
is entitled to the unanticipated gain, the principal or his
agent? As we shall see below, this question occasioned a
far-reaching difference of opinions among the early
post-talmudic authorities. 17
C. Jerusalem Talmud: Division of Unanticipated Gain Based
Agent"s Share

011

the

Why, in R. Yosi' s opinion, is an unanticipated gain to be
divided between agent and principal when the price of the
merchandise is fixed? The Babylonian Talmud does not
16 Tl
17

Ketubot 11:4.
See text at note 50 below.

148

Agent Receiving Benefi.t

suggest what R. Yosi's reasoning might be, but the Jerusalem Talmud does: 18
R. Y ehudah says that the vendor meant to transfer ownership only to the buyer [i.e., the agent]. R. Yosi says
that the vendor meant to transfer ownership only to the
owner of the money [i.e., the principal]. Therefore, if
one extra was given, R. Yehudah holds [that it belongs]
to the agent, and R. Yosi holds [that it belongs] to both.
R. Yosi's opinion [as quoted] is reversed! Elsewhere he
says that the vendor meant to transfer ownership only
to the owner of the money, and here he says thus? 19
Here, [where the transaction is] by means of the money
of one and the feet [i.e., the action] of the other, they
divide [the unanticipated gain].

In other words, although it was the vendor's intention to
transfer ownership only to the principal, the agent is entitled to half, because the gain is the product of two factors:
(I) the principal's money and (2) the agent's action. 20
2. An Agent Who Deviates from Instructions
A. Disagreement of Tanna 'im

The reason given by the Jerusalem Talmud for dividing unanticipated gain, then, is that since the gain was in part
caused by the action of the agent, the agent is entitled to a
share. Therefore, although the third party meant to transfer
ownership only to the principal, the agent is entitled to half
18 Tl Demai 6:8 (25d).
19 If R. Yosi holds that the vendor meant to benefit only the principal,
how can he rule that principal and agent divide the unexpected gain?
Surely R. Yosi's opinion must be misquoted.
20 The Jerusalem Talmud does not distinguish between merchandise that
has a fixed price and merchandise that does not. Nor is it explained
under what circumstances R. Yosi rules that all belongs to the principal.

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Chapter Two

the gain. In another discussion in the Jerusalem Talmud, we
find that profits are divided, but there the point of departure
is the opposite – that the principal is entitled to gains that
accrue to his agent. Thus, the reverse of the previous rule
is applied: where the principal shares responsibility for the
gain, he is entitled to share the gain as well (this rule as
well is recorded only in the Jerusalem Talmud, with no
mention whatsoever in the Babylonian Talmud).
The basis for this ruling is a baraita concerned not with
the rights of the principal as instrumental in gain that accrues to the agent. but simply with the laws of agency. The
baraita in Baba Kama. 21 deals with an agent who deviates
from instructions and profits thereby. When this happens, it
may be asked: Who is entitled to the unanticipated gain resulting from the agent·s disregard for instructions?:
Our Rabbis taught: Where money was given to an agent
to buy wheat and he bought with it barley, or barley and
he bought with it wheat, it was taught in one baraita
that if there was a loss, the loss would be sustained by
him, and so also if there was a profit, the profit would
be enjoyed by him, but in another baraita it was taught
that if there was a loss, he would sustain the loss, but
if there was a profit, the profit would be divided between them.
B. Recourse to the Laws of' Agency

In its discussion of the above baraita, the Talmud in tractate Baba Kama 22 attempts to identify the two opinions
cited with a known disagreement between R. Yehudah and
R. Me'ir, concerning whether an agent, by deviating from
his instructions. acquires the merchandise that he purchases
21
22

TB Baba Kama I 02a-b.
Baba Kama l 02b.

150

Agent Receiving Benefit

for himself rather than for the principal. 23 The Talmud concludes, however, that both views expressed in the baraita
reflect the opinion of R. Me'ir. The first opinion cited is R.
Me'ir's opinion regarding the purchase of food for the principal' s own consumption, where it may be presumed that
the principal is particular about what is to be purchased,
and the second opinion is R. Me'ir's ruling where the purchase is for resale at a profit, where it may be presumed
that it makes no difference to the principal:
Said R. Yohanan, "There is no difficulty, as one opinion
was in accordance with R. Me'ir and the other opinion
with R. Yehudah; the former opinion was in accordance
with R. Me'ir who said that a change transfers ownership, 24 whereas the latter was in accordance with R.
Yehudah who said that a change does not transfer ownership." R. Elazar objected: "From where [do you know
this]? May it not be perhaps that R. Me'ir meant his
view to apply only to a matter which was intended to
be used by the owner personally, but in regard to matters of merchandise, he would not say so?" R. Elazar
therefore said that one opinion as well as the other
might be in accordance with R. Me'ir, and there would
still be no difficulty, as the former dealt with a case
where the grain was bought for domestic food, whereas
in the latter it was bought for merchandise.
In other words, according to R. Yehudah, who holds that
an agent, by deviating from instructions, does not acquire
23 R. Y ehudah holds that an agent who deviates from instructions does
not acquire the object of his agency for himself. R. Me' ir, subject to
certain qualifications, holds that he does.
24 According to the opinion that a change transfers ownership, the
change in the merchandise purchased transferred ownership to the
agent. Since the merchandise acquired was acquired by the agent, any
gain involved would belong to him.
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Chapter Two

the merchandise purchased for himself, if the agent varies
his agency and this results in unanticipated gain, the gain
is divided between agent and principal. The same will apply, according to R. Me'ir, when the act that the agent was
instructed to perform is such that the principal does not care
if he deviates from his instructions. Even according to R.
Me'ir, where the principal does not care, an agent who deviates from his agency does not acquire the merchandise
purchased for himself, and therefore unanticipated gain is
divided.
Here it must be asked: what is the reason for the division
of profits? After all, it would appear that there are only two
possibilities: (l) the principal is entitled to all gains; (2) the
agent is entitled to all gains. What, then, is the legal basis
for the di vision?
The Babylonian Talmud does not explain, and some commentators, therefore, go so far as to suggest that the transaction under discussion was one in which such a division
was stipulated from the outset. 25 The Jerusalem Talmud,
however, associates the division of profits with the principle that whoever was instrumental in creation of an advantage is entitled to enjoy that advantage.
C. The Jerusalem Talmud: Division Based on the Agent's Share

The Jerusalem Talmud 26 also cites the two sources which
seem to give contradictory answers to the question of
whether unanticipated gains belong to an agent who varies
his agency or must be shared with the principal:
Whose opinion is it that if there is loss, the loss is his
[i.e., the agent must suffer the loss]?
25 See text at note 96 below.
26

Tl Baba Kama 9:5.

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Agent Receiving Benefit

R. Me'ir's.
What is R. Me'ir's reason?
[R. Me'ir' s reason is] that the vendor meant to transfer
ownership only to the agent.
Whose opinion 27 is it that if there is loss, the loss is his
[i.e., the agent], whereas if there is gain, it is to the
common advantage [i.e., they divide it]?
R. Yehudah's.
What is R. Yehudah's reason?
[R. Yehudah's reason is) that the vendor meant to transfer ownership only to the owner of the money.
Why, 28 then, must he divide it?
Because it is prohibited to benefit from something that
belongs to another [i.e., it is prohibited for the principal
to benefit from the agent's action without compensating
him].
In other words, according to R. Yehudah, although the vendor intended to transfer ownership only to the principal, 29
the principal is obliged to share the profit with his agent,
because he is not permitted to derive benefit from his agent
without compensating him.
Division Based on the Principal's Share. According to
the explanation just cited, the unanticipated gain belongs to
27 Text as emended in Or Zaru'a, Baba Kama 413.
28 See Sha'ul Lieberman, Talmudah Shel Keisarin, p. 39, n. 43; cf. the
opinion of R. Y ehudah cited in Part l , text at note 89.
29 In the passage from the Jerusalem Talmud cited above (text at note
18), R. Yehudah holds that the vendor wished to transfer ownership
to the agent (loke'ah). No'am Yerushalmi suggests emending the text.
Lieberman as well declares that "it is clear that the reading of the
Jerusalem Talmud there does not fit the opinion of the Jerusalem Talmud here." See also Mishkenot haRo'im, letter shin, 114, ad fin.
153

Chapter Two

the principal who is nevertheless obliged to share it with
his agent. As the discussion continues, however, the
Jerusalem Talmud cites an opinion of R. Nisa, who holds
that the gain belongs to the agent, but that he is obliged to
share it with the principal since he is deriving benefit from
the principal's money:
Said R. Nisa. When the agent discharged his agency,
did the seller of the produce not intend to pass ownership to the principal? [Of course he did.] Now, when
the agent did not discharge his agency, the seller intended to pass ownership to the agent. [If so,] why must
he [the agent] divide it with him [the principal]? Since
he [the agentJ derived benefit from him [the principal],
he must divide it with him.
Division of the unanticipated gain, then, is not the result of
some prior stipulation between partners, as certain commentators on the Babylonian Talmud have explained; 30 it is
rather the result of an obligation to divide profits with the
party whose funds were instrumental in their creation.
II. ANALYSTS OF OPINIONS AND RULING
I. Third Party Who Gave Added Consideration (Hosifu /aSha/i'ah}

Having surveyed tannaitic and tahnudic sources, it remains
to examine the opinions of the earlier and later post-talmudic authorities. As we have seen, the approach of the
Babylonian Talmud to the right of a person instrumental in
the creation of a benefit to share that benefit is not necessarily the same as the approach of the Jerusalem Talmud to
the same question. Thus, it must be asked how the various
commentators and legal authorities have dealt with the

See text at note 96 below.

154

Agent Receiving Benefit

sources. As we shall see, the authorities are not unanimous;
there are two main approaches.
A. The Division is Based On Uncertainty

A departure from the Jerusalem Talmud's approach concerning the case where a third party gave an agent one more
item than expected may already be found among the Geonim. Rather than explaining that the division results from
the principal's being instrumental in the benefit that accrued to the agent, Rav Hai Gaon, in his Se.fer haMikkah
vehaMimkar, explains that the division results from our uncertainty as to whom the vendor wished to benefit.
The Opinion of Rav Hai and Ras hi: Rav Hai Gaon
writes: 31
As regards something that has a fixed price … , when the
vendor adds [to the merchandise that he delivers), we
can say that it was his desire to add, as though he personally gave [the additional merchandise] to the agent.
Or we can say that he added only because this merchandise was purchased from him, and thus, [the addition]
belongs to the owner of the money. Therefore [as a result of this uncertainty], we divide it.
Rashi adopts the same approach with a small modification: 32
If they added one extra item, 1t 1s divided, for it is a
gift, and it may be said that it was given to the agent,
or it may be said that it was given to the principal.

Rashi, in explaining the second half of the uncertainty, dispenses with the explanation that the addition may have been
31 Sefer haMikkah vehaMimkar 6.
32

Rashi, Ketubot 98b, s.v. sheYesh.
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Chapter Two

"because this merchandise was purchased from him," explaining simply that, just as it is logical to conclude that
the gift was meant for the agent, it is equally logical to conclude that it was meant for the principal.
When the Addition is Given Explicitly to the Agent:
This small difference in wording between Rashi and Rav
Hai Gaon may be important. According to Rashi, where the
vendor makes it clear that the gift is given specifically to
the agent, the entire gift will belong to the agent, for here
there is no room for uncertainty. 33 According to Rav Hai
Gaon, however, even where the vendor makes it clear that
the gift is given specifically to the agent, the agent may be
obliged to share it with the principal who appointed him.
This is because, according to Rav Hai Gaon, the uncertainty
may be whether it is possible at all to view such a gift as
separate from the transaction, or whether, on the contrary,
the vendor is in all cases considered to be adding to the
merchandise delivered in recognition of the purchase. If, as
in the second possibility, the vendor is always considered
to be adding in recognition of the purchase, then the
addition would rightfully belong to the principal. According
to this view of R. Hai Gaon' s opinion, Rav Hai believes the
uncertainty to be objective rather than subjective, hence the
vendor's intention is not relevant.

So Ran understands Rashi ' s opinion. See note 46 below. See also R.
Uzi'el Alha' ikh, Mishkenot haRo'im. letter shin, 114, p. 346, col. I.
R. Alha'ikh poses two questions concerning Rashi's approach: (I) Is
the vendor's indication of intention effective only at the time of the
transaction or also subsequently? (2) Does the uncertainty of to whom
the vendor wished to transfer ownership apply only when the vendor
is aware that the agent is an agent or also when he has no knowledge
of this?

156

Agent Receiving Benefit

Possibly, Rashba 34 too distinguished between the opinions of Rashi and Rav Hai. Rashba was asked about an
agent appointed by the Jewish community to collect taxes
and deliver them to the minister in charge of taxation.
When the agent received a certain benefit from the minister,
the agent claimed that the benefit was granted independently of his collection of taxes: 35
If the members of the community appointed A their
agent to collect taxes and convey to the minister all he
collects, and the minister received the payment and rewarded the agent with his own [i.e., the minister's]
funds, and the community says to A, "That which the
minister gave you, we have acquired as a gift"; and A
claims, "The gift was not granted to me because of you,
but rather because [in the past,] I benefitted him and
loaned him from my own funds before I had collected
any taxes"; whose claim is accepted?

Rashba rules in favor of the agent, demonstrating that the
community cannot make recourse in the present situation to
the regulation concerning an agent who receives an extra
item of merchandise. In explanation of his ruling, Rashba
cites the opinion of R. Hai Gaon, explaining:
From here [we conclude that] anything given to the
agent not as part of a business transaction, and to which
the Gaon's [i.e., Rav Hai Gaon] reason does not apply,
belongs entirely to the agent.
Rashba goes on to quote the passage from Rashi cited
above, and then adds:
According to this explanation, in the matter before us,

34 On Rashba, see Part 2, note 46 above.
35 Resp. Rashba haMeyuhasor laRamban 60.

157

Chapter Two

[when] someone gives something explicitly to the agent,
it belongs entirely to the agent.
Only after quoting Rashi does Rashba rule that when
something is given explicitly to the agent, it belongs entirely to the agent. This suggests that such a conclusion
cannot be reached on the basis of Rav Hai Gaon's opinion
alone. 36
Further on, Rashba shows that his ruling would apply
even according to the opinion that the reason that unanticipated gains must be shared is because the principal is instrumental in the benefit that accrues to the agent. Rashba
quotes this opinion in the name of Sefer halttur, based on
the Jerusalem Talmud, 37 arguing that, according to this approach as well. the agent in the present case is entitled to
the gift in its entirety. "seeing he claims that he had [previously] benefitted the minister by lending him money and
that he [the minister] gave it explicitly to him [the agent]
and not to the community."
Rashba expresses his preference for the approach of Rashi and Rav Hai Gaon, 38 based on the Babylonian Talmud,
over the approach of Sefer halttur, based on the Jerusalem
Talmud, since the two Talmuds are at odds on this matter. 39

36 But see Darkhei Mos/re, Ho ,, hen Mishpat 183:4. See also Be'ur
haGra, Hoshen Mi,hpat 183:22.
37 See note 43 below.
38 However. in Resp. Rashba J:671 (=III:25; Resp. Rashba, first printing
[Rome. 14701. 212: see ,ilso ihid .. 237), Rashba appears to accept the
approach that the division is due to the principal's being instrumental
in the gain. See also Resp. Ba ·ei H(l_l'yei, Hoshen Mishpat 133, p. 163,
col. 4: K11esse1 /wGedolah. Ho,'hrn Mishpa t, Mahadura Batra 183,
Hagal10t Beil Yow:/ 66.
39 See text at note 96 below.
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Agent Receiving Benefit
B. The Approach that the Agent is Entitled to Half Because he Created
the Unanticipated Gain

As against those that explain the division of unanticipated
gains on the basis of the uncertainty as to whom the third
party wished to benefit, others follow the approach of the
Jerusalem Talmud.
Although Rabbenu Hananel, in his explanation of the division, does not mention the Jerusalem Talmud explicitly,
his language is similar: 40
[Concerning the ruling that] where the price is fixed and
known to be such-and-such an amount of money, they
divide [unanticipated gains], what share does the owner
of the money [i.e., the principal] have in this; after all,
he has already received [merchandise] for the known
market price? Since the owner of the money was instrumental in the benefit that came to his agent, he [the
agent] must divide it with him.
Rif also follows the approach of Rabbenu Hananel: 41
Why do agent and principal divide [unanticipated
gains]? 42 Since the principal was instrumental in the
benefit received by the agent, he [the agent] must divide
it with him. 43
Both Rabbenu Hananel and Rif take the Babylonian and Jerusalem Talmuds to disagree concerning the rightful owner
40

Or Zaru'a, Baba Kama 413. Cited also in Otzar haGe'onim, Ketubot,
Likkutei Perush Rabbenu Hananel, p. 78.
41 Rif, Ketubot 11 (ed. Vilna, 57b).
42 Mishkenot haRo'im, letter shin, 114, p. 346, col. 2, discusses the circumstances to which Rif's opinion applies.
43 Sefer halttur, Shalishur Mamon (ed. R. Me'ir Yonah) 43b follows the
same logic, citing Rif on the case of an agent granted additional consideration and the Jerusalem Talmud on the case of an agent who varies his agency.
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Chapter Two

of the benefit, with the Babylonian Talmud holding that legally the benefit belongs to the agent and the Jerusalem
Talmud holding that it belongs to the principal. 44 Nevertheless, both authorities adopt the Jerusalem Talmud's explanation for the division and apply it to the Babylonian Talmud's approach. That is to say: just as if the unanticipated
gain were to belong to the principal, he would be obliged
to share it with his agent, so if the gain rightfully belongs
to the agent, he must share it with the principal. Just as in
the discussion (quoted above) of the agent who deviates
from instructions, the approach of the Jerusalem Talmud, as
expounded by R. Nisa, is that the agent must share the profits with the principal, since the latter was instrumental in
the benefit received by the agent, so too in the case of one
extra item of merchandise granted to the agent, the same
principle may be applied. 45
Addition Given Explicitly to the Agent: If the third party
states explicitly that the unanticipated gain is meant for the
agent and not for the principal, will this have any effect?
According to the explanation that the division is a result of
uncertainty as to the vendor's intention, such a statement
will be effective. According to the explanation that the
party to whom the gain rightfully belongs must share it with
the other party who was instrumental in its creation,
however, it follows that the vendor's statement of intention
is not relevant. Thus Ran explains the opinion of Rif: 46
From the wording of Rif, it appears that when
44

See Tl Demai 6:8 (25d), cited above, text at note 18.
Even though Rif does not accept the approach of the Jerusalem Talmud regarding the matter of an agent who varies his agency. See text
at note 98 below, and text at note 37 above,
46 Ran, ad loc.
45

160

Agent Receiving Benefit

something has a fixed price, even if the vendor gave it
explicitly to the agent, since the principal was instrumental in the benefit received by the agent, the agent
must divide it with him. 47
C.

Transaction Involving a Mistake due

the Agent

One source that is somewhat problematic in this context is
a responsum appearing in Se.fer Ra'avan, 48 attributed by
some to R. Tzemah Gaon. 49 The responsum deals with A,
who assisted B (the purchaser) in a particular transaction.
A succeeded in deceiving the vendor, and as a result the
gain realized was greater than anticipated. The question is:
to whom does the unanticipated gain belong? The ruling
does not mention the talmudic precedent of an agent's receiving additional merchandise; nevertheless, it is established that the unanticipated gain must be shared equally,
since both were instrumental in its creation – B by means
of his purchase and A by means of his deception. Had there
been no purchase, Ra' a van explains, there would have been
47 Consistency in this approach would, of course, dictate that if the ven-

dor states explicitly that the added consideration is meant for the principal, the principal should still be obliged to divide it with the agent.
Nevertheless, a number of Later Authorities explain that in such a
case, the entire unanticipated gain will helong to the principal. See
Knesset haGedolah, Hoshen Mishpat, Mahadura Batra 183, Hagahot
Beit Yosef 43. Ketzot haHoshe11 agrees that even according to the
opinion of Rif, the agent in the case mentioned will have no share and
asks rhetorically, "If one person gives a gift to another by means of
an agent, will the agent have a share in that gift!?" This is also the
opinion of Maharsham, Mishpat Shalom 183:7, s.v. veHinei Yesh
leVa'er.
48 Sefer Ra'avan, Resp. 3. Cited also in Resp. Maharam ben Barukh (ed.
Prague), 802. See also following note.
49 So in Mordekhai, Ketubot 256; and in Teshuvot Maimoniyor, Sefer
Kinyon 22.

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no deception, and had there been no deception, there would
have been no surplus.
What is the basis of the division here? Does the unanticipated gain rightfully belong to the assistant, who is nevertheless obliged to divide it with the purchaser, or vice
versa? Ra'avan's language does not clarify the point. As we
shall see below, a clearer indication may be found in a responsum of Rabbenu Tam concerning gain that resulted
from a mistake.
Mistake in the Value of a Transaction – All Belongs to
the Principal: It was noted above 50 that, since the Talmud
in tractate Kerubot juxtaposes the case of a mistake in the
value of a transaction with the case where an agent is
granted additional value. it appears that in principle, the
two matters are equivalent. Such, in any case, is Rashi's
understanding of that discussion. 51
Rabbenu Tam. however. does not accept this conclusion.
According to his view,52 when there is a mistake in the
value of a transaction, even R. Yehudah – who holds that
added value granted to an agent belongs entirely to the
agent – will admit that all belongs to the principal. Understanding why Rabbenu Tam distinguishes between the cases
of a mistake in value of a transaction, on the one hand, and
granting of additional value to an agent, on the other, requires careful reading of his opinion. At first Rabbenu Tam
explains as follows:
50 See text at note 17 above.
51 See Rashi. Ke/1(/Jot 98b. s.v. Kan shanah Rabbi; and ibid., s.v.
kedeTanya. See also Ketzor hafioshe11, 183:8; and Kamei Re'em on
Maharsha. Ketulwt 98b.

52 Tosafot. Ke tu bot 98b, s. v. Kan shanah Rabbi. On Rabbenu Tam see
note 56 below.

162

Agent Receiving Benefit

Where there is no fixed price, they [i.e., R. Yehudah
and R. Yosi] disagree only where he [the vendor] gives
it [the additional merchandise] as a bonus [tosefet], saying, "take this for your purchase, and this I add of my
own."
Accordingly, wherever there is a mistake, since it cannot be
said that the unanticipated gain was granted as a bonus, R.
Yehudah and R. Yosi would not disagree; rather, both
would agree that the gain belongs to the principal. Further
on, however, Rabbenu Tam asserts:
But if [the vendor simply] sold it cheaply because of
the money, as the case in the our mishnah 53 of a property worth one hundred [sold by the widow] for two
hundred, 54 even R. Yehudah would admit that all [gain]
belongs to the owner of the money.
Here, Rabbenu Tam's opinion is restricted to a mistake similar to the one of the mishnah, a mistake of sale for under
53

I.e., the case of mishnah Ketubot 11 :4 (TB, 98a) cited above, text at
note 14: "[If] a widow whose ketubah was worth two hundred sold
property valued at one hundred for two hundred or property valued at
two hundred for one hundred, her kerubah has been paid in full."
54 A case of a vendor's selling merchandise to an agent for less than the
market value and a widow's selling property of her deceased husband's estate for more than the market value are parallel for purposes
of the present discussion. This is because, in both cases, the unanticipated gain – the rights to which are being debated – accrues to the
side of principal and agent. Where the widow sells her deceased husband's property for more than its market value, she acts as the agent
of the heirs, and the question arises as to who will enjoy the unexpected profit. Similarly, when a vendor delivers more merchandise to
an agent than anticipated, thereby selling it for less than the market
value, it must be asked whether the unanticipated gain – in the form
of additional merchandise – belongs to the agent or to the principal
who appointed him.

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Chapter Two

the market value. 5~ Such a mistake, however, as Rabbenu
Tam suggests in the emphasized phrase above, may be considered as caused by the money of the principal, and this
would explain why R. Yehudah agrees that the unanticipated gain belongs entirely to the principal. Where a mistake is due to some other factor. such as a mistake in calculation, the disagreement of R. Yehudah and R. Yosi will
apply, and R. Yehudah will hold that the unanticipated gain
belongs to the agent.
The question of a mistake in the value of a transaction is
primarily theoretical, for the law as codified accords with
the opinion of R. Yosi that (where there is a fixed price)
principal and agent share the unanticipated gain. Nevertheless, as we shall sec, the opinions cited figure significantly
in questions of unanticipated gain, where the mistake is not
in the value of the transaction but rather some other sort of
mistake.
Mistake in Calculation – Agent and Principal Share the
Unanticipated Gain: Rabbenu Tam 56 was asked with regard to an error not in the value of the transaction but rather
in calculation. As we shall see, in answer to this question,
every possible course of action was suggested: (I) the entire
gain belongs to the principal; (2) the entire gain belongs to
the agent; (3) principal and agent divide the gain equally.
The query, addressed to Rabbenu Tam 57 by R. Ya'akov
YisraeJ, 58 reads as follows:
55 See previous note.
56 R. Ya'akov bcn R. Me'ir Tam (ca. 1100-1171), son of Rashi's daughter, was the most important of the Tosafists.
57 Sefer haYashar leRabbe,111 Tam. Teshuvot 53:2, and 54:2. See also
Tosafot, Ketubot 98b. s.v. Amar R. Papa; Resp. Maharani ben Barukh
(ed. Prague), 252. 803: Resp. Maharmn hen Barukh (ed. Cremona) 50;

164

Agent Receiving Benefit

A sent B to accept payment due A from the sale of
grain …. B … received 59 an extra five dinars. To whom
does the extra payment belong? Do we say that it belongs to A, as in the [talmudic] case where an agent
received an extra item, [since] A can claim, "You wish
to profit from my payment?! It was for my own benefit
that I sent you." Or perhaps B can claim, "There is neither benefit nor harm to your interests here; you have
received your payment in full, and if I have chanced to
'find a lost object,' what right do you have to it?"
Thus, R. Ya'akov Yisrael raises two possibilities: (1) The
entire gain is awarded to the principal, A, as in the case of
an agent who receives extra merchandise where there is no
fixed price, the principal seeking to incorporate the agent's
action in accepting the additional payment as part of the
agency ("It was for my own benefit that I sent you").
(2) The entire gain is awarded to B, the agent, who claims
that there is no connection whatsoever between the agency
and his acceptance of the additional payment; for since the
principal has received what was due him, he has no relation
to the additional payment, and the additional payment is
considered as lost property found by the agent, property in
which the principal has no part at all.
Rabbenu Tam, on the other hand, does not adopt either
approach suggested by the questioner, ruling, rather, that
the additional payment be divided between the parties.
Mordekhai, Ketubot 255; responsum of Maharam hen Barukh cited in
Mordekhai, Baba Kama 168-l 69; Teshuvot Maimoniyot, Sefer Kinyan
9:20; and Piskei haRosh, Ketubot 11: 15.
58 R. Ya'akov Yisrael was one of a group of student-colleagues of
Rabbenu Tam. See E. E. Urbach, Ba'alei haTosafot (4th ed., Jerusalem, 1980), pp. 116·118.
59 The question of whether the mistake was spontaneous or the result of
the agent's action may have legal implications. See note 90 below.

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Chapter Two

Rabbenu Tam accepts the analogy with the talmudic case
where the agent receives additional merchandise. However,
whereas the questioner felt this to be an instance where
there is no fixed price, Rabbenu Tam considers it to be an
instance where the price is fixed:
.. .It appears to me that they divide it between them,
since the money is comparable to something that has a
fixed price. as we say, where the agent receives one extra item, R. Yosi holds that they divide it. And it is established that this applies where there is a fixed price,
but that where there is no fixed price all belongs to the
principal. The reason that it is divided is that once the
principal receives what is due him, what connection has
he to the mistaken or additional [merchandise] received
by the agent? Nevertheless, we hold that since his
money was instrumental in the agent's profit, he [the
agent] must give him half. And this applies equally to
an error in calculation. For when a widow sells property
worth one hundred for two hundred this too is an error,
and the Jerusalem Talmud establishes that the purchaser
agreed to it. The reason that the entire unanticipated
gain belongs to the owner of the money is that there is
no fixed price and it is his money that lowers the price.
Thus, where something does have a fixed price, even in
case of an error of calculation, the unanticipated gain is
divided [between agent and principal].
From Rabbenu Tam's response, it is apparent that in his
opinion the division is based upon the principal's part in
creation of the gain. Even his language is similar to that of
Rabbenu Hananel, who explains: 60
What share does the owner of the money [i.e., the principal] have in this? After all, he has already received
60

See text at note 40 above.

166

Agent Receiving Benefit

[merchandise] for the price known to him! Since the
owner of the money was instrumental in the benefit that
came to his agent, he [the agent] must divide it with
him.
Further on, Rabbenu Tam hints at the existence of a different approach. Nevertheless, he accepts the first explanation
as the correct one:
Although another reason for the division could be advanced, this reason, as explained, is correct, for possession confers the advantage [demuhzak yado al
ha 'elyona], and they must divide the gain.
All Belongs to the Principal: However, Rabbenu Tam reconsidered his ruling that agent and principal share unanticipated gain, finding, rather, that in instances of error the
entire gain belongs to the principal: 61
And again, he reconsidered, deciding that in all cases
of error, whether in the transaction or in counting, all
belongs to the principal.
Rabbenu Tam does not abandon the basic reason for the division – that the principal was instrumental in the agent's
gain. However, whereas previously he held that legally the
unanticipated gain belonged to the agent (who was obliged
to share it with the principal, who was instrumental in its
creation), Rabbenu Tam now holds that legally the gain belongs not to the agent but to the principal. 62 What was the
basis for this change of opinion? Previously, Rabbenu Tam
held that an error in calculation – as opposed to an error in
the value of the transaction – is analogous to an instance of
additional merchandise granted to the agent where the price
61
62

Tosafot, Ketubot 98b, s.v. Amar R. Papa.
Cf. Sh. Ar., Hoshen Mishpat 194:2; Netivot haMishpat, be'urim 5.

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Chapter Two

is fixed, where the unanticipated gain is divided between
principal and agent. Subsequently, when he reconsidered,
he decided that when the unanticipated gain stems from an
error, that is to say, it is noL known to the third party, the
circumstances are not comparable to additional merchandise
where the price is fixed. As mentioned above, Rabbenu
Tam asserts that when there is a mistake in the value of the
transaction, all (including R. Yehudah) will admit that the
entire unanticipated gain belongs to the principal. On the
other hand, for a transaction to qualify as a situation of "additional merchandise granted to the agent where the price
is fixed," the vendor must give the additional merchandise
"as a bonus, saying, 'take this for your purchase, and this
I add of my own.,,, Only where this is the case, then, will
agent and principal share the unanticipated gain. In the
event of error, this is clearly impossible. In all other situations, according to Rabbenu Tam, as in the case of the
widow who sold property from her deceased husband's estate as an agent of the heirs, all unanticipated gain will belong to the principal. 6 '
All Belongs to the Agent: The extreme opposite position
to that of Rabbe nu Tam is taken by Rabbenu Yitzhak, 64 an63 See text at note

52 above.
64 Whal the opinion of Rif would be in cases of an error in calculation
is a matter of disagreement among legal authorities. R. Yosef Karo,
in Kesef Mishneh. Sheluhin l'eS/wtafin 1:5. asserts that Rif would favor division. In Beil Yosef, Hoshe11 Mishpat I 83:8, however, R. Karo
suggests that perhaps Rif would agree with the opinion of Rabbenu
Yitzhak, that the unanticipated gain in such instances stands by itself
and thus belongs to the agent. Thal in cases of an error of calculation
Rif would award all to the agent is also the opinion of R. Avraham
di Bolon, Resp. l,ehem Rav I 24: idem, Leh em Mishneh, Sheluhin
veSlmtafin I :5: and Shakh. Hoshen Mishpat 183: 13. See also
168

Agent Receiving Benefit

other Tosafist. To some extent, Rabbenu Yitzhak's opinion
can be considered similar to Rabbenu Tam's opinion prior
to the latter's change of heart. In his earlier ruling, Rabbenu
Tam felt that legally the entire unanticipated gain belongs
to the agent, but that he is obliged to share it with the principal, who was instrumental in its creation. Rabbenu
Yitzhak agrees that the unanticipated gain belongs to the
agent, but believes that he need not share it with the principal, since the latter has no legal connection to it at all: 65
To Rabbenu Yitzhak, 66 it appears that all belongs to the
agent, for if he stole, robbed 67 and deceived, what has
this to do with the principal? And we do not even say
that they must divide it on the basis of the principal' s
being instrumental in the agent's gain. For this is not
comparable with other errors [i.e., errors in the value of
the transaction], where [the erring party] gives everything because of the money, believing the money [he
receives] to be equal in value to all that he gives. Here,
however, the error stands by itself.
And know that all of this is hypothetical, for if he
wished, he would return it, for it is unreasonable to imagine that he should be unable to inform him and return
it to him.

Maharsham, Mishpat Shalom 183:6; and Shimru Mishpat on Hukkot
haDayanim 291 (p. 143). See also Resp. Rashba I:671 (=III:25).
65 Tosafot, Ketubot 98b, s.v. Amar R. Papa.
66 This is the reading of R. Shelomoh Luria (Rashal), ad lac.; and of
Mordekhai, Ketubot 255.
67 From here, Maharashdam, Resp. Maharashdam, Hoshen Mishpat 27,
concludes that if the agent stole, all authorities would admit that all
belongs to the agent. This opinion is also held by R. Yitzhak Diabela
in a responsurn appearing in Resp. Torat Hesed 210. The opinion requires further clarification, however. See also Shimru Mishpat on
Hukkot haDayanim 291. p. 140ff.
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Chapter Two

A number of other post-talmudic authorities follow the
same approach. 68
The following table summarizes the various opinions:
Source of Gain

Principal

Division

Agent

R. Yosi

R. Yosi
R. Yehudah
-~——–R. Yehudah

R. Yosi

R. Yehudah

(R. Yonah)

(Rashi)

Additional merchandise
granted to the agent:

Fixed Price
Price Not Fixed
Mistake in value

R. Yehuda
(R. Tam)

Mistake in calculation

R. Yosi

(R. Tam

(R. Tam
I st Opinion)

(R. Yitzhak)

Final Opinion)

D. The Law as Codified in Shulhan Art1kh

Recourse to the Approach that the Agent is Entitled to
Half Because he Created the Gain: The disagreement
among the early post-talmudic authorities over the reason
for sharing unanticipated gains is apparently at the root of
the disagreement between R. Yosef Karo and Rema in Shulhan Arukh concerning additional merchandise granted to
the agent.
R. Yosef Karo, in his Beit Yosef 69 on the Tur, quotes the
reasoning of Rif, "Since the principal was instrumental in
68

Mordekhai, Ketubor 255. after citing the opinion of Rabbenu Yitzhak
says: "So did Rashbam explain in the presence of Rashi." Similarly,
Rashba was asked concerning an error, and his response distinguishes
between error and clclibcratcly granting added consideration. See
Resp. Rashba 1:671 (=lll:25). See also Resp. Maharil haHadashot 156.
69 Beil Yosef, Hoslre11 Mishpat 183:8.

170

Agent Receiving Benefit

the benefit received by the agent, he [the agent] must divide
it with him," as well as Ran's comment that Rif and Rashi
would differ where the third party gives additional merchandise explicitly to the agent. R. Karo also notes that
Rosh and Sefer halttur advance the same reasoning as Rif.
In his Darkhei Moshe (also on the Tur), Rema responds to
R. Yosef Karo as follows: 70
But Nahmanides [i.e., Rashba in the responsa attributed
to Nahmanides] wrote in a responsum that the opinion
of Rashi is correct and that Ras hi' s opinion is also the
opinion of Rav Hai Gaon.
It would appear that R. Karo accepts Rif' s reasoning,
whereas Rema accepts the reasoning of Rashi and Rav Hai
Gaon.
This disagreement between R. Karo and Rema is also reflected in their rulings in Shulhan Arukh, where R. Yosef
Karo writes: 71
[If] the price was fixed and known, and he granted additional [merchandise] to the agent in number, weight,
or measure, whatever the vendors added belongs to
both, and the agent must divide the additional [merchandise] with the principal. And if it was something
that did not have a fixed price, all belongs to the owner
of the money [i.e., the principal].
Although R. Karo gives no rationale for his ruling, his reasoning may be inferred from his adoption of the wording
of Maimonides. 72 Concerning Maimonides' opininion, R.
Karo himself, writing in Kesef Mishneh, states that according to the opinion of Rif, even if the additional merchandise
70 Darkhei Moshe, Hoshen Mishpat

183:4.
Hoshen Mishpat 183:6.
72 Maimonides, M. T. , Sheluhin veShutafin I :5.
71

171

Chapter Two

is given explicitly to the agent. it must be divided, and that
Maimonides' ruling ''leans toward this opinion." R. Karo
may have inferred this from Maimonides' wording, "whatever the vendors add" – which R. Karo apparently takes to
mean: in all cases, even when given explicitly to the
agent. 73 From here it may be inferred that, where the vendor
grants additional consideration explicitly to the agent, R.
Karo will nevertheless require that it be divided. However,
R. Karo himself does not rule on such a case in Shulhan
Arukh.
To R. Yoscf Karo's ruling in Shulhan Arukh, which
makes no explicit mention of the vendor's granting additional consideration explicitly to the agent, Rema adds: 74
"However, if the vendor explicitly gives it to the agent, all
belongs to the agent." From here, it seems clear that Rema
accepts Rashi's approach and rules accordingly.
Nevertheless, although Rema rules according to Rashi, a
number of commentators on Shulhan Arukh seek to introduce Rif's opinion as a consideration in such cases. Sema,
for instance, after summarizing the disagreement among the
Earlier Authorities and showing that Rema follows the
opinion of Ras hi, continues: 75 "And I have in any case recorded the opinion of Rif, Rosh, and Ittur, for sometimes,
at the judge·s discretion, it may be relied upon." Thus,
Sema gives judges the freedom to divide unanticipated
gains between agent and principal even when the vendor
gives the added consideration explicitly to the agent.

73 See Mishkenor haRo'im. letter shin. I 14 (p. 346, col. 3). Bah. Hoshen
Mishpar 183:8, suggests a different basis in the wording of Maimonides for R. Karo' s reasoning.
74 Rema, Sh. Ar., Hoshen Mishpar l 83:6.
75 Sema, Hoshen Mishpat 183: 18.

172

Agent Receiving Benefit

Shakh, 76 as well, expresses his surprise that Rema rules
according to Rashi with no reference whatever to the other
approach. Taz 77 goes one step further, recommending that
the opinion of Rif be given precedence. Relating to Sema's
statement that a ruling may follow the opinion of Rif, at the
judge's discretion, Taz writes that this is the proper ruling.
He goes on to cite various authorities who accept Rif' s
approach and asserts that the only proponent of Rashi' s
approach is Rashi himself. He concludes that Rashi must to
some extent recognize the logic of Rif' s approach;
otherwise, how would Rashi explain division of the
unanticipated gain where there has been no specification of
for whom it is meant? If it is a matter of pure uncertainty,
then the law should be straightforward – the onus of proof
rests upon the claimant (hamotzi mehavero alav
hare'ayah). 78
Rights of The Person Instrumental in the Unanticipated
Gain Based Upon Rabbinic Enactment: Sema's comments
also include an important reference to the legal basis for the
division of unanticipated gain. Recording the opinion of Rif
and those who agree with him, Sema writes: 79
And when the vendor gives the agent more than one
measure per dinar [i.e., more merchandise than antici76 Shakh, Hoshen Mishpat I 83: 18. Ketzot haHoshen. ad loc., 7, explains
the basis for Rema's ruling.
77 Taz, ad loc. Mishkenot haRo'im, letter shin, 114 (p. 346, col. 4), rules
in accordance with the opinion of Rif as implied by the language of
Shulhan Arukh.
78 It appears that Me'iri, Beit haBehirah, Ketubot 98b (ed. Avraham
Sofer, p. 452), relates to this problem: "And the greatest of the rabbis
have explained that this is disputed property [mamon hamutal
besafek], and where neither has possession, it is divided."
79 Serna, Hoshen Mishpat 183: 18.

173

Chapter Two

pated for the amount paid], legally, all should belong to
the agent. However, since the principal's money was instrumental in the benefit received by the agent, our
Sages said that they must divide the surplus.
In other words, according to Sema, the obligation to divide
the unanticipated gain is a rabbinic enactment.
Hazon Ish 80 explains that "it appears to be a rabbinic enactment to prevent altercation, since according to the strict
law causation such as this should not entitle [the principal]
to a share of the profit." According to Hazon Ish, then, although a person instrumental in the creation of gain is entitled to a share. this does not hold when his contribution
is remote – as it is here. Here, the division is based, rather,
on rabbinic enactment.
Concerning unanticipated gain that arises from error,
Shulhan Arukh rules in accordance with the opinion of
Rabbenu Yitzhak as recorded by the Tosafot: 81 "[If] a person sent his agent to accept payment, 82 and the debtor gave
more [than anticipated]. the entire surplus belongs to the
agent." 83, 84

SO
81
82

Hawn !sh, Baba Kama 22:5.
Sh. Ar., Hoshen Mishpar 183:7.
If, however, an agent was sent to pay a creditor and deceived him into
accepting less, the entire saving belongs to the principal. So rules Rema
in Sh. Ar., Hoshen Mishpat. I 83:9. Semo, Hoshen Mishpat 183:26, explains that the money belongs to the principal and the portion which
was not paid remains in his possession. This, however, he explains, is
not the case where an agent deceives another into paying more, since
there he receives money from the other and thus acquires it.
See also Resp. Lehem Rm• 125; Resp. Ba'ei Hayyei, Hoshen Mishpat
133; but see notes 84 and 87 below; and Resp. Karnei Re'em 177.
Rema, ad Joe., adds: "Only when the agent knows of the error before
transferring the unanticipated gain to the principal. If, however, he
[i.e., the agent] did nol know of the error and the entire gain was

174

Agent Receiving Benefit

As mentioned above, 85 where another person aids the purchaser in deceiving a third party, Ra'avan rules that assistant and purchaser share the surplus. Rema accepts this ruling in his comments on Shulhan Arukh, 86 · 87 but in so doing
seems to be inconsistent with a previous ruling. As shown,
Ra' a van's ruling that assistant and purchaser share is based
upon the principle that a person instrumental in creating a
gain is entitled to enjoy the gain that he helped create; 88 but
this principle was apparently rejected (or at least restricted)
by Rema, 89 in his ruling that, where a vendor specifies that
additional merchandise is meant for the agent, the agent

85
86
87

transferred to the principal, then all belongs to the principal. … " See
also Shakh, Hoshen Mishpat 183:14; Ketwt haHoshen 183:9; Netivot
haMishpat 183, be'urim 12.
See also Resp. Maharashdam , Hoshen Mishpat 26; R. Mikha'el
Ya'akov Yisrael, Resp. Yad Yemin, Hoshen Mishpat 34 (p. 135, col.
3); and Resp. Slw'e/ uMeshiv, Mahadura Talira'ah III:37.
R. Yitzhak Adarbi, Resp. Divrei Rivot 111; and the author of Resp.
Rashakh 11:3 (=91 ), were asked concerning an agent who concealed
merchandise from the customs. They ruled in accordance with the
opinion of Rabbenu Yitzhak that the entire unanticipated gain belonged to the agent. See, however, Rema's ruling, cited in note 82
above, and Sema's explanation of that ruling. See also Resp.
Maharashdam, Hoshen Mishpat 26-27; R. Petahyah Mordekhai
Birdugo, Resp. Nofet Tzufim, Hoshen Mishpat 134.
See text at note 48 above.
Rema, Hoshen Mishpat 183:7.
Shakh, Hoshen Mishpat 183: J 5, also discusses the case of an agent
who manages to evade customs. See also Resp. Beit Yitzhak, Hoshen
Mishpat 55:6, concerning Shakh's ruling in this matter. See also
Maharsham, Mishpat Shalom 183:7, p. 30, col. 3; and note 84 above.
See the end of the explanation of Ra'avan's responsum, text at note
49 above. Be'ur haGra, Hoshen Mishpat 183:25, explains that this
ruling is in accordance with the approach of Rif and lttur regarding
merchandise that has a fixed price (see text at notes 41 and 43 above) .
See text at note 74 above.

175

Chapter Two

need not share it with the principal. It may be possible,
however, to explain the inconsistency by suggesting that in
Ra' avan' s case. Rema recognizes that the two parties
participated equally in an action that created a gain, and
must, therefore, be considered partners with equal rights in
the gain received. 90
R. Shelomoh Klugcr. in a responsum,91 also distinguishes
between Ra' avan' s case and the talmudic case where additional consideration is granted to an agent. According to R.
Kluger, 92 it appears that Ra'avan's ruling, dealing as it does
with a case of error, is not subject to the disagreement concerning additional consideration given to an agent, and that
all would agree that the unanticipated gain must be shared.
R. Kluger emphasizes. however, that this is so only when
both purchaser and assistant are present, thus acquiring
equal rights to the unanticipated gain as though they had
simultaneously picked up some lost property:
For this is not a function of the merchandise [provided
by the principal]. Rather. this is a different matter similar to an instance where two persons pick up lost property simultaneously and must, therefore, divide it
equally. And this is not analogous to where a vendor
gives additional merchandise to an agent, concerning
which there exists a disagreement among rabbinic authorities. There, the person granting the additional merchandise knows what he is adding 93 and he does so be90 Serna, Hosh en Mi.,hpat 183:24, substantiates this explanation of
Rema's opinion by quoting Rema ' s Darkhei Moshe: "Since both were
involved with the merchandise, they divide it, although only one actually carried out the deception."
91 Kuntres Yosif Da'at (Nidrei Zei-i~in, ad fin.), rcsponsum 13, ad fin.
92 On R. Shelomoh Kluger, see ahove, Part 2, note 104.
93 This approach requires clarification in light of the opinions of those
Earlier Authorities who hold that cases of error and cases of granting

176

Agent Receiving Benefit

cause of the transaction, and the authorities disagree
over who is entitled to it. And in such a case it may
also be argued that since only the agent was present at
the time of the transaction, the unanticipated gain belongs entirely to the agent.
In the present case, however, since both were present,
and the third party had no intention of giving additional
consideration, but rather they deceived him in the calculation, this is a different matter altogether, not dependent on the [principal' s] merchandise, and it is like
lost property [i.e., unanticipated and unrelated to anything else] ….
R. Kluger bases his opinion on two factors. First, since, in
Ra'avan's case, the additional consideration was given in
error, R. Kluger does not consider it to be part of the transaction. Second, since both purchaser and assistant were present, both acquired equal rights to the additional consideration. According to this explanation, then, there is no room
for uncertainty concerning whom the vendor meant to benefit – the basis for Rashi's approach in the case of "one
additional item granted to the agent." If we posit that Rema
accepts this line of reasoning, there will be no inconsistency. Where a vendor knowingly grants additional consideration, Rema would argue, together with Rashi, that an uncertainty as to whom he wished to benefit is created and
the gain is, therefore, shared. Where the vendor specifies
for whom the additional consideration is meant, the uncertainty is resolved, and the gain belongs to the person for
whom it was designated. In Ra'avan' s case, however,
where principal and agent were both involved in and present at the deception that earned the unanticipated gain,
additional consideration are equivalent. See the opinions of R.
Ya'akov Yisrael and Rabbenu Tam cited above.

177

Chapter Two

Rema can rule that (for the reasons mentioned by R.
Shelomoh Kluger) both are equally entitled to a share of
the unanticipated gain.
2. An Agent Who Deviates from Instructions

As we saw above, 94 the Jerusalem Talmud links the ruling
in the case of an agent who varies his agency, thereby creating an unanticipated gain, with the principle that a person
who is instrumental in creating a gain is entitled to enjoy
the gain that he helped create. We also saw that the Babylonian Talmud remains silent on the matter. 95
A. The Approach that Awards All

the Principal

The early post-talmudic commentators are divided over
how to interpret the Babylonian Talmud. Rashi 96 and the
Tosafot 97 believe that the transaction under discussion is
one where principal and agent agreed to share the profits
equally, and therefore. even if the agent varies his agency,
they still share the profits. Rif98 comes to the same conclusion, distinguishing between an agent who enters into partnership with the principal and one who does not:
And since it is established that the law is in accordance
with R. Yehudah, 99 we must ascertain whether money
was given to the agent [to acquire merchandise] for resale as part of a partnership arrangement – in which
case a loss would be sustained by him [the agent], be94 See text at note 26 above.
95 See text at note 25 above.

96 Rashi, Baba Kama .I02b, s.v. Likah.
97

Tosafot, Baba Kama J02a. s.v. Noten.
Rif, Baba Kama, chap. 9 (ed. Vilna, 36a). See also Shimru Mishpat
on Hukkot haDayanim 291 (ed. Jerusalem, 1974, p. 137).
99 R. Yehudah holds that an agent who deviates from instructions does
not thereby acquire for himself the merchandise he purchases.
98

178

Agent Receiving Bene.fit

cause he deviated from instructiis, and a profit would
be divided between them. For even according to R.
Me'ir, LOO since [the principal] ga e him money to purchase for resale, the deviation rm instructions does
not acquire the merchandise for the agent. And if the
money was not given to the agen as part of a partnership arrangement, but only to pure ase wheat for resale,
the agent receives nothing – if there is a loss he sustains
it, because he has deviated from instructions, and if
there is a gain, it belongs to the owner of the money.
Similarly if he gave him money to purchase wheat for
his [the principal's] personal consumption, if there is a
loss, the agent sustains it, and if there is a profit, it belongs to the owner of the money, since we do not say
that they divide the profit unless the principal gives him
money to buy wheat as part of a partnership arrangement, and he [the agent] bought barley with it.. ..
Thus Rif explains the discussion in the Babylonian Talmud.
Only if a partnership agreement is stipulated from the outset do agent and principal share the unanticipated gain
when an agent deviates from instructions. When no such
agreement is stipulated, however, an agent who deviates
from instructions must compensate for any loss but is not
entitled to a share of unanticipated gain.
B. The Approach that Awards a Share to Whoever Was Instrumental in
Creating the Gain

Some of the Earlier Authorities chose the approach of the
Jerusalem Talmud. In Sefer halttur, 101 the talmudic discusIOO R. Me'ir, who holds that an agent who deviates from instructions acquires the merchandise he purchases for himself, holds this only in
cases, such as purchase for personal consumption, where the principal will be particular about what is purchased.
IOI Sefer halttur, Shalishut Mamon (ed. R. Me'ir Yonah, p. 43d).

179

Chapter Two

sion is understood to refer to a conventional agent – not
one who has entered into a partnership arrangement – and
to rule that, if an agent deviates from instructions and is
instrumental in an unanticipated gain, the agent is entitled
to his share:
And it is logical to conclude that the Tana is not discussing a partnership arrangement, but rather conventional agency. And as regards agency for the purchase
of merchandise for resale, there is no disagreement. If
the principal gave him money to purchase wheat, and
he did not find wheat and bought barley instead, since,
if the agent had returned the money, there would have
been no profit. now that he spent it on barley and there
was a profit, it is like merchandise with a fixed price,
and they divide !the unanticipated gain). The disagreement [concerning an agent who varies his agency] is
over [merchandise purchased for the principal's] personal consumption. And the law is established in accordance with the opinion of R. Yehudah, that even in
agency for [the principal' s] personal consumption, they
divide.
And we do not say that where there is profit it belongs
entirely to the owner of the money, except where the
agent does not deviate from instructions, but rather is
sent to purchase wheat and purchases wheat or to purchase barley and purchases barley, and where the vendor adds one item where the price is not fixed. 102
According to lttur, then, whenever an agent deviates from
instructions (regardless of whether there is a partnership
agreement), he is entitled to a share of the unanticipated
gain. Further on, lttur notes that the author of Metivot concurs with this interpretation.
IOZ See Jttur's further comments, ibid.

180

Agent Receiving Benefit

An interesting opinion is that of R. Aharon haLevi, cited
in Nimmukei Yosef. 103 R. Aharon haLevi quotes the approach of the Jerusalem Talmud 104 but then appears to
quote that of Rif, 105 concluding that Rif' s approach is established as law. However, it seems probable that R.
Aharon haLevi agreed with the approach of the Jerusalem
Talmud and that the quotation of Rif and ruling should be
attributed to Nimmukei Yosef
C. The Approach of Shulhan Amkh – All Belongs to the Principal

Maimonides and Shulhan Arukh rule according to the opinion of Rif. Maimonides writes: 106
If he gave him money to purchase wheat, whether for
[the principal's] personal consumption or for resale, and
he went and purchased barley with it, then, should the
value of the merchandise he bought fall, the agent bears
the loss, because he deviated from his instructions. If
the price increases, the increase goes to him who invested the money.

Shulhan Arukh 107 issues a similar ruling, to which Rema 108

103

Nimmukei Yosej, Baba Kama, chap. 9 (ed. Vilna, 36a).
That a person instrumental in creating a gain is entitled to a share of
the gain he helped create.
!OS That an agent who varies his agency is entitled lo a share of unanticipated gain only when a partnership agreement was stipulated from
the outset.
I06 Maimonides, M. T., Sheluhin veShutafin I :5.
107 Hoshen Mishpat 183:5. The reason for this is that the merchandise
purchased belongs to the principal and it is, therefore, proper that he
benefit from changes in the value of the transaction. Possibly, if the
agent possesses specialized knowledge and it was that knowledge
that resulted in gain, the agent is entitled to compensation for his
action, even though his action was contrary to his instructions.

io4

181

Chapter Two

adds: "And that is also the law if [the principal] gave [the
agent] the money under a partnership arrangement." In
other words, if the money was given to the agent under a
partnership arrangement, and the agent varies his agency,
producing an unanticipated gain, agent and principal share
it.109
R. Yosef ben Lev 110 discusses the disagreement among
the Earlier Authorities and concludes that the opinion of R.
Aharon haLevi, according to which the unanticipated gain
is shared even when there is no partnership arrangement (so
R. Yosef ben Lev understands R. Aharon haLevi) is not to
be relied upon. R. Yosef ben Lev goes further, asserting
that even if the agent remains in possession of the unanticipated gain, the court may seize it, and the agent does not
have the right to claim that he accepts the ruling of R.
Aharon haLevi, 111 since such a claim (the claim of kim li)
is not recognized where virtually all authorities disagree
with the minority opinion.
D. Commentators on S/111!/u111 Aruklr Favor the Approach that the Agent

is Entitled to Half because he Created the Gain

Shakh 112 objects to the ruling of Shulhan Arukh, citing the
opinions of Se.fer halttur and Metivot, who hold that, where
the agent deviates from his instructions, unanticipated gain
is shared even where there is no fixed price. Shakh asserts
that this is also the opinion of R. Aharon haLevi as quoted

108 Rema. ad Joe.
109 See Rema's further comments, ibid.
lIO R. Yosef ben Lev (1500-1580) was a widely recognized rabbinic authority who lived in Turkey.
111

Resp. Mallari hen Lev 1:114.

ll 2 Shakh, Hoshen Mishpat 183:J0.

182

Agent Receiving Benefit

in Nimmukei Yosef, adding: 113 "And this appears to be the
correct ruling according to the Talmud. And although it is
established that, in accordance with the opinion of R.
Yehudah, a deviation from instructions does not acquire the
merchandise for the agent, nevertheless, where the agent
who deviated from instructions was instrumental in creating
a gain, it is divided." According to Shakh's conclusion, in
spite of the many authorities who rule as does Shulhan
Arukh, an agent in possession of unanticipated gain does
have a claim of kim Ii – that is to say, he may claim that
the view of the dissenting authorities is the correct one. 114

113

114

Shakh takes the opinion of R. Aharon haLevi to be identical with that
of the Jerusalem Talmud. This is disputed, however, by Mareh
haPanim on the Jerusalem Talmud, Baba Kama 9:5 (7a). See also
text at note I 03 above.
Mareh haPanim (cited in the previous note) disagrees with Shakh,
arguing that the claim of kim Ii cannot be made against so large a
number of authorities as he enumerates.

183

Chapter Three

PARTICIPATION IN RISK
AS GROUND FOR
SHARING PROFITS
An interesting extension of the right of one person to share
the profits of another came about with the recognition that
risk incurred by one person as a consequence of the action
of another entitles the former to a share of the profits created as a result of the risk.
The basis for this principle is a strange passage in the
Jerusalem Talmud, which reads: 115
A person went on a mission of agency, his brother
wished to divide with him. The matter came before R.
Ami, who said, "This is how we rule, when a person
becomes a thief, his brothers divide with him." 116
115 Tl Baba Kama 9:3 (17a).
116 See comments of Gedaliah Alon, Mehkarim beToledor Yisrael, vol.

2, pp. 91-92.

185

Chaprer Three

The early post-talmudic authorities are divided over the
meaning of the passage. According to Sefer halttur, 117 R.
Ami's words were meant to be followed by a question
mark, and his decision, therefore, is that when one person
steals, his partner is not entitled to divide the theft with
him. Mordekhai, 118 on the other hand, does not place a
question mark at the end of R. Ami's remark, and hence,
R. Ami's decision is that a thief' s partner is entitled to his
share of the theft. Mordekhai writes:
… Brothers, one of whom goes out to rob or steal without the knowledge of the others, must divide. From here
it should be ruled in the case of two people who go to
the marketplace, and one sees a wallet lying unattended
and steals it. he must divide it [its contents] with the
other.
If this is indeed the proper interpretation of the passage, we

have another indication of the Jerusalem Talmud's position
that a person instrumental in creating a gain has the right
to share that gain.' 19 The disagreement among Earlier Authorities is reflected in Shulhan Arukh where Rema accepts
the approach of Mordekhai and rules: 120 "If one partner
steals or robs, he must divide [his gain] with his partner."
Shakh 121 and Taz, 122 on the other hand, disagree, explaining
that R. Ami's remark was a question and not a statement.
117 lttur,

Shitr11f (ed. Venice) 26:1, also cited in Mordekhai. Baba Batra
660, ad fin.
118 Mordekhai. Balm Barra. 660, ad fin., cited also in Haga/rot
Maimonivnr. Sheluhin 5:4.
I l9 See text al note I 8 above.
120 Rema, Sh. Ar., Hoshe11 Mishpat 176:12.
121 Shakh, Hoshe11 Mishpat 176:27.
122 Taz, ad loc. Taz writes that even if the two have agreed to share any
lost property they may find, the partnership does not extend to cases

186

Participation in Risk

What is the basis of Mordekhai 's ruling concerning two
people who go to the marketplace? What legal connection
is there between the two that will entitle one to share the
theft of the other? An instructive discussion of this point
appears in the writings of R. Yosef Katz. 123
He received the following query: 124
[Concerning] a person who had the opportunity to buy
something at a very low price from a non-Jew,
something that was almost certainly stolen. The buyer
and the non-Jew went to the home of another Jew and
there [the first Jew] bought it at a very low price. During the bargaining with the non-Jew, before a price was
fixed and the transaction finalized, the wife of the second Jew [in whose home all this took place) said, "What
are you doing? I want to buy it, and since it is in my
house, it is mine." The buyer [i.e., the first Jew] then
answered her, "Do not worry, I will come to an understanding with your husband." And now the questioner
[i.e., the second Jew in whose home the negotiations
took place] comes to ask whether his premises acquired
the entire thing for him, half of it, or nothing at all.
R. Katz opens by discussing the disagreement among rabbinic authorities concerning the rights of a home owner to

such as the present one: "Since it is prohibited to steal. .. , it may be
presumed that the other partner is not interested in this gain…. " For
discussion of the opinion of Taz, see Shimru Mishpat, on Hukknl
haDayanim 291 (ed. Jerusalem, 1974, p. 150); and R. Mikha'el
Ya'akov Yisrael, Resp. Yad Yemin, Hoshen Mishpat 34.
l 23 R. Yosef Katz (ca. 1510-1591), one of the most widely recognized
rabbinic authorities in sixteenth-century Poland, was Rcma's brother-in-law and served as head of the yeshiva of Cracow.
124 Resp. She'erit Yosef 7.

187

Chapter Three

inexpensive merchandise that comes to his home. 125 He
then rules that in the present case, all would agree that the
home owner is entitled to half, since the buyer told the
home owner's wife that he would come to an understanding
with her husband. This is as though he had said to the husband, "You acquire half." To this, R. Katz asserts, all will
admit.
R. Katz then goes on to introduce a surprising new point:
"Moreover, since in the present case, the home owner incurred great danger – should the thief be caught – and it
was the buyer who brought this danger upon him, the home
owner, to some small extent [ketzat], becomes the buyer's
partner." In support of this argument, R. Katz cites the ruling of Mordekhai quoted above concerning two persons
who go to the marketplace. R. Katz argues that
Mordekhai's ruling does not deal with two people who had
established a partnership from the outset. Such would be
the case discussed m the Jerusalem Talmud. Had
Mordekhai's case been precisely parallel to that of the Jerusalem Talmud, he would not have written, " … from here
it should be ruled." a phrase indicative of the application
of a principle to a new set of circumstances. Hence even
when the two are not partners, if one was endangered
thereby, he is entitled to his share of the other's theft:
Therefore. it appears to me that he [i.e., Mordekhai] is
discussing two persons who go together but are not
partners, and nevertheless, the one is obliged to share
with the other. How does Mordekhai learn this from the
Jerusalem Talmud? The Jerusalem Talmud, after all, is
discussing partners, for it describes brothers, who may
be presumed to be partners! Clearly, Mordekhai must

125 See the dispute of Ra'avya and Ra'avan discussed below, in chap. 5.

188

Participation in Risk

hold that partnership makes no difference with regard
to theft. Thus, the Jerusalem Talmud's ruling to obligate
the one person to share his theft with the other, is because when one brother steals and does not share, although the others are not present at the time of the theft,
they and their property are in danger. And since he endangered them together with himself, he is obligated to
share the gain. And from here he learns that this applies
to two persons who are not partners, but who go together – that if one of them steals, the other is in as
much danger as the thief.. .. And therefore, he is obliged
to share with his friend who went with him.
From here, R. Katz concludes that a person endangered by
merchandise brought to his house is entitled to participate
in its purchase.
A similar view is taken by R. Yo'el Sirkes, 126 author of
Bah. R. Sirkes received the following query: 127
Two Jews standing in the marketplace were approached
by some non-Jews and asked if they were interested in
buying silver. The two Jews went with the non-Jews to
the home of a third Jew, where they saw the silver and
entered into negotiations with the non-Jews. The Jew in
whose home this occurred, aided them [in the negotiation] and, when the transaction was finalized took out
his own money, gave it to the non-Jew and took the silver into his own possession. The Jewish home owner
now wishes to acquire all the silver for himself, claiming that his premises and his money acquired it for him.
R. Sirkes opens with a discussion of whether a home owner

126 R. Yo'el Sirkes was born in Lublin towards the middle of the 16th
century and died in 1640.
127 Resp. Bah (haYeshanot) 12.

189

Chapter Three

acquires merchandise that enters his premises 128 and concludes with consideration of the right to share a theft:
And it appears that the gain would belong to the home
owner even if he had not given his own money. Since
most such purchases are stolen property, and it is
against the home owner that accusations will be
brought, he stands in greater danger than the two who
do not live in the house where the stolen property was
purchased.
In support of his conclusion. R. Sirkes cites our passage
from the Jerusalem Talmud and Mordekhai 's ruling based
on it and shows that when discussing the "two people who
go to the marketplace·· Mordekhai could not have been referring only to partners: 129
It is implied in his wording. "two people who go to the
marketplace," that [this applies} even if it were just two
people who had to travel together, although they entered into no partnership and had never been partners in
the past. And the reason is this: Although the brothers
[mentioned in the Jerusalem Talmud} 130 are partners, it
may be presumed that they made no partnership with
regard to theft and robbery; nevertheless, they must
share with each other, since if one were caught, all
would be in danger. So too in the case of two people
who go to the marketplace. the second one is in the
same danger as the thief, since they were together when
the theft was committed.
128 See below, chap. 5, text at note 153.
129 In his comments on Mordekhai (Baba Barra 660, ad fin.), R. Sirkes
writes: "It appears to me that they are partners." According to this
comment, the two share, because they are partners. In the responsum
cited, however, R. Sirkes takes a different approach.
l30 Text at note 115 above.
190

Participation in Risk

Thus, R. Sirkes concludes in the matter before him:
Accordingly, since it is known that the main danger is
to the owner of the home where the stolen property was
purchased, 131 and it was with his knowledge that they
negotiated with the thieves, he is also entitled to a share
of the gain. 132

131 Shakh, Hoshen Mishpat 176:27, also disagrees with Rema's ruling
(see text at note 121 above). Shakh cites an unnamed authority who
holds that Mordekhai's ruling applies only where the theft involved
some danger.
132 See comments on ruling of She'erit Yosef by Maharsham, Mishpat
Shalom 176:12.

191

Chapter Four

INSURING ANOTHER'S
PROPERTY
The question of the right of a person who insures the property of another to receive compensation from the insurer for
damage to or destruction of the property insured has been
widely discussed in recent years; and the question was already considered above in Part 2 of the present volume,
with reference to profiting from another's property. 133
A survey of responsa on the subject shows that, according to most authorities, the compensation belongs to whoever pays the premiums. Some rule, however, that under
certain circumstances, the compensation belongs to the
owner of the property. Among both schools of thought,
there have been those who include in their deliberations
consideration of the law of division of profits when two
parties are jointly instrumental in the creation of gain.

133

See Part 2.

193

Chapter Four

R. Yosef Sha"ul Nathanson, 134 author of Resp. Sho'el
uMeshiv, was asked to whom insurance compensation belongs for a house destroyed by fire if the insurance premiums were paid by the tenant. 135 R. Nathanson quotes an answer written to him concerning the matter by R. Yosef
Yehudah Strassburg, rabbi of Kosow (Galicia), apparently
agreeing with the latter's opinion that the ruling will depend on whether, under the (non-Jewish) law of the land,
it is permitted to insure another person's property. 136 If so,
134

R. Yosef Sha'ul Nathanson (1808-1875) served as head of the rabbinic court of Lvov (Lcmbcrg).
135 Resp. S/w'e/ uMeshit,, Mahad11ra Tinyana III:129.
136 In another responsum. ibid .. R. Nathanson considers the case of a
tenant who asked his landlord to insure the property he was renting.
Although the landlord originally refused, once the tenant had purchased the insurance himself, the landlord agreed to reimburse him
but delayed paying on a number of occasions. In the meantime, the
property was destroyed by fire, and the rabbinic authorities of Brody
ruled that the landlord was entitled to two thirds of the compensation
and the tenant one third.
R. Nathanson opens by stating that the entire sum of compensation
would appear to belong to the landlord, since it may be presumed
that the tenant· s intention was to transfer all rights arising from the
insurance. However. since R. Nathanson is uncertain, he asserts that
it is proper that the authorities persuade the parties to agree to a
compromise.
Further on in his discussion. supporting a decision of the rabbis of
Brody, R. Nathanson cites a passage from Tractate Kerubot 65b,
where it is ruled that, if one embarrasses a woman in private, the
woman is entitled to two thirds of the compensation and her husband
to one third. since the embarrassment is "mostly hers." Similarly, R.
Nathanson asserts. since the tenant benefits from the property of the
landlord. while the landlord loses his entire property, given that it
was, after all. the tenant who paid for the insurance, two thirds of
the compensation are due to the landlord and one third to the tenant.
lf. however. the compensation is greater than the actual value of the
property. landlord and tenant divide the surplus equally.

194

Insuring Another's Property

then clearly the compensation belongs to the tenant, who
paid the premiums. If, however, it is not permitted to insure
another person's property, then the ruling would be as explained in the case of an agent in Shulhan Arukh – that
wherever someone's property is instrumental in creating
benefit, he is entitled to a share of the benefit. So, in the
present case, since the right to receive the compensation belongs to the landlord, and since his right to compensation
was created by the tenant's payment of premiums, tenant
and landlord must divide the compensation.
The opposite conclusion is reached by R. Tzvi Hirsch
Te'omim, 137 who was asked concerning a partner who paid
to insure his part of a jointly owned structure. By mistake,
the insurance was registered as covering the entire structure. R. Te'omim rules that the compensation is not divided
in this case, and that the entire sum belongs to the partner
who purchased the insurance. He bases his ruling on his
understanding that the principle of division by agent and
principal is based upon the intentions of the parties. Where
an agent makes his purchase with money supplied by the
principal, he realizes from the outset that he must divide
any unanticipated gain, and the principal, knowing this, acquires his share in the unanticipated gain. In the present instance, however, this is not the case. A did not know that
B had purchased insurance. B, moreover, paid the premiums from his own pocket with intention to insure only his
own portion. A had no interest in B ' s insurance, since he
wished to insure his own portion. Thus A is not entitled to
a share of the compensation paid to 8.
The principle of division of gain is also discussed by R.
137 R. Tzvi Hirsch Te'omim served as head of the rabbinic court of
Chorostkow. The responsum appears in his Resp. Eretz Tzvi, Hoshen
Mishpat 15. See text in Part 2, note 87 above.

195

Chapter Four

Refa'el Mordekhai haLevi Solovei, 138 who rejects its application in instances where one insures the property of another. R. Solovei first shows that, according to the principle
that one may not "do business with his neighbor's cow," it
would appear that the compensation belongs to the owner
of the property . 139 Accordingly, since the compensation was
paid for the destruction of the landlord's property, the tenant, although he paid the premiums, has no share in the
compensation . The reason for this is that in the case of an
agent in Shu/hem Arukh, the unanticipated gain is shared
only because it was granted to the agent and not to the principal (and even so. the principal is entitled to a share).
Here, however.
it is not the intention of the insurance company to give
compensation specifically to him in return for the premiums he paid, for had he wished to insure the house
of any other person, he would have been prevented from
doing so by the law of the land. Only because [as a tenant] the house is registered in his name, do they believe
the house to be his. Hence, all the compensation that
they give is given only on the presumption that the
house is his. It emerges, therefore, that all the compensation he receives, he receives by virtue of a house that
belongs to his landlord, and he is, therefore, not a partner in this at all. and all must be awarded to the owner
of the house. 140

138 Resp. Yad Ramah, Hoshe11 Mishpat 80.
139 See Part 2. text at note I 09.
140 R. Solovei. op. cit. (note 138 above), holds, however, that the property's owner must reimburse the tenant for the insurance premiums.

196

Chapter Six

SUBLETTING
I. PERMISSION TO SUBLET, AND THE RIGHT TO REVENUES

RECEIVED

R. Yosef Haviva was an important rabbinic authority who lived in
Spain near the end of the fifteenth century.
54 Nimmukei Yosef, Baba Kama, chap. 2 (ed. Vi]na, p . 9a).

l01

Chaprer Six

102

Subletting

In his comments on Shulhan Arukh, Rema 56 rules in accordance with the opinion of Nimmukei Yosef as law.57
2. THE RIGHT TO SUBLET BY LAW AND BY OWNER'S
CONSENT

103

Chapter Six

Subletting

THE TENANT'S RIGHTS

105

Chapter Six

Subletting

In the case under consideration, R. Yosef ibn Hason rules

See Erekh Shai, Hoshen Mishpat 316:1.

67 Beit haMelekh (Hason). Hoshen Mishpat 7.
68 Shitah Mekubetzer, Baba Metzia 35b, s.v. ulelnyan Pesak. See above,
text at note 29.

107

Chapter Six

108

Chapter Seven

INSURING ANOTHER'S
PROPERTY

1. INTRODUCTION

109

Chaprer Seven

110

Insuring Another's Property

R. Yitzhak Aharon Ettinger (1827-1891) served as head of the rabbinic court of Przemysl and later of the rabbinic court of Lvov.
73 Resp. Maharia haLevi II:77.
111

Chapter Seven

R. Yitzhak Aharon Ettinger asserts that the outcome of the
74

Insuring Another's Property

See note 55 above.

77 In this, he relies upon the opinion of Nimmukei Yosef (see note

Chapter Seven

114

Insuring Another's Property

115

Chapter Seven

l 16

Insuring Another's Property

117

Chapter Seven

Insuring Another's Property
F. The Basis of the Hirer's Obligations in the Laws of Bailment

92
93

119

Chapter Seven

120

Insuring Another's Property

121

Chapter Seven
H. Payment of the Borrower in Exchange for the Owner's Property

ln his conclusion, however, R. Solovei shows that R. Yosi's
principle has broader application than simply "profiting
99

Resp. Yad Ramah, Hoshen Misl1pa1 80:3.

IOO R. Solovei goes on to assert that even according to the Tosafot's ex-

122

Insuring Another's Property

123

Chapter Seven

124

Insuring Another's Property

125

Chapter Seven

Nathanson, see below. Part 3. note 116.
117 Hiddushei haRim, Bab{/ Melzia 35b (ed. Tel Aviv, 1959, p. 108) dis-

126

Insuring Another's Property

Chapter Eight

132

Part Three

AGENT WHO
RECEIVES BENEFIT IN
CONSEQUENCE OF
AGENCY

TABLE OF CONTENTS

Chapter One

INTRODUCTION
I. AGENCY

139

2. UNJUST ENRICHMENT
3. BREACH OF TRUST

Chapter Two

140

141

AGENT RECEIVING BENEFIT
I. THE TALMUDIC BASIS

145

I. A Third Party Who Grants Added
Consideration

145

A. Views of the Tanna 'im

145

B. Distinction between Merchandise that

Has a Fixed Price and Merchandise
that Does Not

145

C. Jerusalem Talmud: Division of

Unanticipated Gain Based on the
Agent's Share

148

2. An Agent Who Deviates from

Instructions

149

A. Disagreement of Tanna 'im

149

B. Recourse lo the Lmn of Agency

150

C. The Jerusalem Talmud: Division Based

on the Agent's Share

152

135

Contents
fl. 1NALYS!S Of- OPINIONS AND RULING

154

I. Th ird Party Who Gave Added
Con~ideration (Hosif11 laShali'ah)

154

A. The DiPision is Based On
Uncertainty

155

B. The Approach that the Agent is Entitled

to !faff Beca11se he Created the
Unanticipated Gain

159

C. Tra11.H1ction /11vo/vi11g a Mistake due to

rl,e Age11t

161

D. The Law as Codified in Shulhan
Arukh

170

2. An Agent Who Deviates from
Instructions

I 78

1. Thi' Approach that Awards All to

the f'ri11cipal

178

B. The Approach that Awards a Share to
Wh oc1·cr Was /11strumental in Creating
rhe Gain

179

C. The Approach of Sh11lhar1 Arukh – All
Belonfis to the Principal

D. Commentators

011

181

Shulhan Arukh Favor

the Approach that the Agent is Entitled
10

Ha!( hccar,se he Created the

Gain

Chapter Three

182

PARTICIPATION IN RISK AS GROUND
FOR SHARING PROFITS

Chapter Four

136

185

fNSURING ANOTHER"S PROPERTY

193

Contents
Chapter Five

APPENDIX: RIGHTS AS IF ONE FOUND
LOST PROPERTY

Chapter Six

CONCLUSION

203

197

Chapter One

140

Jntroducrion

Chapter One

Introduction

10 See Part 1.
11 See Part 2.
143

Chapter Two

AGENT RECEIVING
BENEFIT

I. THE TALMUDIC BASIS

I. A Third Party Who Grants Added Consideration
A. Views of the Tanna 'im

The passage quoted is cited by the Talmud 13 in connection
12

Tosefta Demai 8:3.
Ketubot 98b.

145

Chapter Two

146

Chapter Two

011

the

Why, in R. Yosi' s opinion, is an unanticipated gain to be
divided between agent and principal when the price of the
merchandise is fixed? The Babylonian Talmud does not
16 Tl
17

Ketubot 11:4.
See text at note 50 below.

148

Agent Receiving Benefi.t

149

Chapter Two

TB Baba Kama I 02a-b.
Baba Kama l 02b.

150

Agent Receiving Benefit

Chapter Two

Tl Baba Kama 9:5.

152

Agent Receiving Benefit

Chapter Two

See text at note 96 below.

154

Agent Receiving Benefit

sources. As we shall see, the authorities are not unanimous;
there are two main approaches.
A. The Division is Based On Uncertainty

Rashi, in explaining the second half of the uncertainty, dispenses with the explanation that the addition may have been
31 Sefer haMikkah vehaMimkar 6.
32

Rashi, Ketubot 98b, s.v. sheYesh.
155

Chapter Two

156

Agent Receiving Benefit

34 On Rashba, see Part 2, note 46 above.
35 Resp. Rashba haMeyuhasor laRamban 60.

157

Chapter Two

Agent Receiving Benefit
B. The Approach that the Agent is Entitled to Half Because he Created
the Unanticipated Gain

Chapter Two

160

Agent Receiving Benefit

something has a fixed price, even if the vendor gave it
explicitly to the agent, since the principal was instrumental in the benefit received by the agent, the agent
must divide it with him. 47
C.

Transaction Involving a Mistake due

the Agent

161

Chapter Two

52 Tosafot. Ke tu bot 98b, s. v. Kan shanah Rabbi. On Rabbenu Tam see
note 56 below.

162

Agent Receiving Benefit

163

Chapter Two

164

Agent Receiving Benefit

165

Chapter Two

See text at note 40 above.

166

Agent Receiving Benefit

Tosafot, Ketubot 98b, s.v. Amar R. Papa.
Cf. Sh. Ar., Hoshen Mishpat 194:2; Netivot haMishpat, be'urim 5.

167

Chapter Two

Agent Receiving Benefit

Chapter Two

A number of other post-talmudic authorities follow the
same approach. 68
The following table summarizes the various opinions:
Source of Gain

Principal

Division

Agent

R. Yosi

R. Yosi
R. Yehudah
-~——–R. Yehudah

R. Yosi

R. Yehudah

(R. Yonah)

(Rashi)

Additional merchandise
granted to the agent:

Fixed Price
Price Not Fixed
Mistake in value

R. Yehuda
(R. Tam)

Mistake in calculation

R. Yosi

(R. Tam

(R. Tam
I st Opinion)

(R. Yitzhak)

Final Opinion)

D. The Law as Codified in Shulhan Art1kh

170

Agent Receiving Benefit

183:4.
Hoshen Mishpat 183:6.
72 Maimonides, M. T. , Sheluhin veShutafin I :5.
71

171

Chapter Two

172

Agent Receiving Benefit

173

Chapter Two

SO
81
82

174

Agent Receiving Benefit

85
86
87

175

Chapter Two

176

Agent Receiving Benefit

177

Chapter Two

Rema can rule that (for the reasons mentioned by R.
Shelomoh Kluger) both are equally entitled to a share of
the unanticipated gain.
2. An Agent Who Deviates from Instructions

the Principal

96 Rashi, Baba Kama .I02b, s.v. Likah.
97

178

Agent Receiving Bene.fit

179

Chapter Two

180

Agent Receiving Benefit

Shulhan Arukh 107 issues a similar ruling, to which Rema 108

103

io4

181

Chapter Two

is Entitled to Half because he Created the Gain

108 Rema. ad Joe.
109 See Rema's further comments, ibid.
lIO R. Yosef ben Lev (1500-1580) was a widely recognized rabbinic authority who lived in Turkey.
111

Resp. Mallari hen Lev 1:114.

ll 2 Shakh, Hoshen Mishpat 183:J0.

182

Agent Receiving Benefit

113

114

183

Chapter Three

2, pp. 91-92.

185

Chaprer Three

186

Participation in Risk

187

Chapter Three

125 See the dispute of Ra'avya and Ra'avan discussed below, in chap. 5.

188

Participation in Risk

126 R. Yo'el Sirkes was born in Lublin towards the middle of the 16th
century and died in 1640.
127 Resp. Bah (haYeshanot) 12.

189

Chapter Three

Participation in Risk

191

Chapter Four

133

See Part 2.

193

Chapter Four

194

Insuring Another's Property

195

Chapter Four

196

Chapter Five

APPENDIX

RIGHTS AS IF ONE
FOUND LOST PROPERTY
The question of rights in a transaction where the gain is
unanticipated to the extent that it may be considered as the
finding of lost property was discussed by the early post-talmudic authorities. While some authorities wished to consider such a transaction equivalent in all respects to the
finding of lost property, others rejected this view, claiming
that the gain realized in the transaction never was ownerless
(as is lost property) and cannot, therefore, be acquired as
lost property is acquired.
Sefer Ra 'avan 141 contains the following case: 142
141 The acronym Ra'avan stands for R. Eliezer bcn Natan. On Ra' avan,
see above, Part I, note 71.
142 Sefer Ra'avan, Baba Merzia 1 la (ed. Ehrenreich p. 197b); cited also
in Or Zaru 'a, Baba Metda 2:69; and in Mordekhai, Baba Metzia
(chap. I) 238.

197

Chapter FiPe

A number of merchants took lodging in the home of A.
B sought out the merchants for the purpose of purchasing their merchandise. A said to B, "I wish to acquire
the merchandise for myself, and my house acquires it
for me." B did not listen to him and purchased the merchandise at a time when A was not at home. A demands
that B return the merchandise (and has payment available as he has agreed to the price).
This matter is decided upon the basis of a mishnah in
tractate Baba Metzia [I la], "If a man sees people running after a lost article … and says, 'My field acquires
possession for me,' it acquires possession for him." For
his home is guarded [that is to say fenced] and he is
present. 143 So here, does A's home acquire for him the
merchandise that is in it. Also in keeping with the biblical verse [Deut. 6: 18), "And you shall do that which
is right and good in the sight of the Lord … ," B is
obliged to return the merchandise to A, as in the right
of pre-emption. 144

143

144

198

The mis/mah excerpted reads as follows: "If a man sees people running after an injured stag [or] after unfledged pigeons, and says, 'My
field acquires possession for me,' it acquires possession for him. But
if the stag is running normally. or the pigeons are flying and he says,
'My field acquires possession for me,' there is nothing in what he
says." The ensuing talmudic discussion explains that a man's field
can acquire property for him if it is "guarded," or if the owner is
present by his field. In the case of a healthy stag or pigeons that fly ,
however, even the owner's presence is not sufficient, since he cannot
exercise any control over them.
Thus, one's field. yard, or house can acquire ownerless chattels, provided the chattels cannot escape.
The right of pre-emption means that when real property is sold, the
owner of adjoining property has the right to pay the purchase price,
acquire the land for himself and evict the purchaser. The Talmud
(Baba Metzia I 08a) bases this right on Deuteronomy 6: 18. See Maimonides, M. T.. Shek/renim 12:'i; and Sh, Ar., Hashen Mishpat 175:6.

Rights As If One Found Lost Property

Ra'avan bases his ruling on two principles: (1) acquisition
of lost property; (2) the biblical imperative, "And you shall
do that which is right and good in the sight of the Lord … ,"
as it operates in the right of pre-emption.
Ra'avan's grandson, Ravya, 145 however, holds that the
legal mechanism of acquisition of lost property is not applicable beyond its original meaning: 146 "Lost property is
different, for it can be acquired without an act of acquisition or money. Here, however, perhaps he will not have the
money to purchase …. " Ravya goes on to show that a purchaser does not acquire property until the vendor agrees to
the transaction. According to Ravya, in the present instance, the normal principles governing acquisitions and
sales are determinative.
Rosh 147 also considers acquisition through sale and distinguishes between acquisition through sale and through the
finding of lost property: 148
When one purchases property from a thief, it is not
ownerless property, concerning which it may be said
that one's land [or one's home] acquires it; for if the
original owner has despaired of recovering it, 149 then it
belongs to the thief, and if we hold in accordance with
R. Shimon, that an owner does not normally despair of
recovering a theft, the stolen property still belongs to
145

Ra'avya, R. Eliezer ben R. Yo'el haLevi, was born in Mainz, ca.
1140 and died in Wuerzburg, ca. 1225. He was a widely recognized
authority in Germany.
146 Or Zaru'a, loc. cit., and Mordekhai, loc. cit. (nole 142 above).
147 R. Asher ben Yehi'el, one of the most distinguished of the early
post-talrnudic commentatorn, was born in Germany, ca. 1250 and
died in Spain in 1327.
148 Resp. Rosh I: I.
149 According to Jewish law, when property is lost or stolen, it belongs
to the original owner until such time as he despairs of recovering it.

199

Chapter Five

the original owner. In either case, then, the stolen property is not ownerlcss, and one's land cannot acquire it.
And even if it were ownerless, as long as it is in the
physical possession of the thief, one's land cannot acquire it until it is placed on the ground ….
In light of the disagreement between Ra'avan and Ravya,
R. Israel Isserlein i:;o rules I s, Lhat the law in such cases is
doubtful and that consequently the court may not seize
property in the possession of one of the parties and award
it to the other.
R. Yosef Katz 1S2 favors the opinion of Ra'avan. 153 Basing himself on the rulings of Rosh and R. Israel Isserlein,
R. Katz first establishes that land cannot acquire chattels in
a transaction as it acquires lost property. Nevertheless, in
the matter before him. he rules that the home owner has
rights in the purchase for several reasons. In conclusion, R.
Katz favors the ruling of Ra'avan, because of the latter's
decision was an actual ruling. whereas Ravya's discussion
was theoretical. 154
There is a responsum by R. Yo'el Sirkes that is similar
in several respects to that of R. Yosef Katz. 155 R. Sirkes too
cites Rosh' s remarks on purchase from a thief and notes
l50 R. Israel (Mahari) lsserlein was the most widely respected Ashkenazi
authority of his generation. He was born ca. 1390 and died in 1460.
151 Terumar haDeshen . responsa 310.
152 Sec note 123 ahove.
153 Resp. She 'erit Yosef" 7. See 1ext at note 124 above.
154 R. Katz's additional reason is interesting: Since this is the accepted
way of doing things. it is what the parties must have had in mind:
"Since 'The gain goes to the common advantage' is a common expression. it may be presumed that he acquired it with this in mind,
and that this constitutes the (other's] acquisition."
155 R. Yo'el Sirkcs was the author of Bah. a gloss on Tur. See note 126
above.

200

Rights As If One Found Lost Property

that this accords with Ravya's interpretation of Mordekhai.
He then goes on to add: 156
It may be that Ra' avan did not consider the case to be
one of property that was lost and, therefore, ownerless,
but rather one of guests who brought merchandise with
them and laid it on the floor of the house [thus permitting it to be acquired by the house]. As regards property
in the possession of a thief, however, even Ra' avan
would agree that a home owner cannot claim, "my
house acquired it."
Shulhan Arukh cites the opinion of Rosh as authoritative: 157
"Where A lives together with B in the home of B and pays
him rent, if one of them purchased property from a thief,
the other has no rights to it." In the matter discussed by
Ra'avan and Ravya, of a home owner who wished to acquire merchandise cheaply, Rema, in his comments on
Shulhan Arukh, 158 cites both opinions without deciding between them. 159

156 Resp. Bah (haYeshanot) 12. See text at note 127 above.
157 Hoshen Mishpat 260:3.
158 Rema, Hoshen Mishpat
159

268:3
Cf. Rema's rulings in Sh. Ar., Hoshe11 Mishpa t 269:6; and ibid.,
J83:4. See also standard commentators on whether the rulings are
contradictory. See also Resp. Bah (ha Yes/Janot) I 9.
201

Chapter Six

CONCLUSION
The laws concerning the rights of agent and principal to
unanticipated gain created by the agency have been examined from two perspectives. One perspective was from the
laws of agency, and alongside that, we examined the right
of a person to share a gain that he was instrumental in creating, and we found that, even where the laws of agency do
not award a share in the gain to the principal where he was
instrumental in its creation, the principal' s right to enjoyment of a gain is recognized. The principle originated in
the Jerusalem Talmud and was adopted by a number of the
early post-talmudic authorities.
Of particular interest is the development of this principle
in Shulhan Arukh and the standard commentaries. The approach that entitles whoever is instrumental in a gain to a
share of that gain is not mentioned explicitly in Shulhan
Arukh, but the commentators re-introduce it as a consideration available to judges where warranted by circumstances.
This applies in cases where added consideration is granted
to an agent, as well as in cases where 'the agent, by deviat203

Chapter Six

mg from his instructions. has produced an unanticipated
gam.
Discussion of the principle yielded distinctions between
various cases according to the strength of the connection
between the unanticipated gain and the agency. This test
was applied to the possibility of invoking the principle in
instances where an unanticipated gain resulted from an error in the transaction.
Later authorities suggest that the rights of a party instrumental in an unanticipated gain do not arise in strict law
but rather in rabbinic legislation.
The approach that a person instrumental in creating a gain
is entitled to share that gain was not applied to the classical
cases in which one person benefits while the other sustains
no loss. 160 In such cases. the beneficiary is exempt from all
obligations. Nor was it applied to circumstances where one
person profits from "his neighbor's cow," 161 where the
owner is entitled to the entire benefit.
In cases such as those discussed in the present part, the
agent does not simply benefit from his agency in the sense
of avoiding expenses; rather, he profits from it by receiving a real gain. 162 His level of obligation is, therefore,
greater than that of one person who merely benefits. On the
other hand. by contrast to profiting from "one's neighbor's
cow," the agent does not derive his profit at the expense of
some loss to the principal. Therefore, one cannot say here
that the entire profit belongs to the principal. The situation
is thus one where the rights of principal and agent are
deemed to be equal, seeing that both were instrumental in
160 See Part I.
161 Sec Part 2.
162 See Helkar )'o ·m·. Hoshen Mishpat

204

Conclusion

creating the gain – one through his property and the other
by his action.
Had our principle been extended so as to grant rights to
everyone instrumental in creating gain, the consequences
would have bordered on the absurd. As shown, however,
the principle does not apply to those whose instrumentality
is remote.
The legal status of an agent who received benefit in
consequence of his agency was examined in light of the
laws of agency and the laws of a person who benefits from
the property of another. Under certain circumstances,
however, the action of an agent may constitute a breach of
the trust placed in him and even reach criminal proportions.
In such instances, he may be subject to criminal
proceedings and compelled to surrender all gains received
in consequence of his agency. 163

163 See Nahum Rakover, Anishah beMa'aseh haBa baAveirah, monograph no. 2 of Sidrat Mehkarim 11Sekiror baMishpat halvri (Jerusalem, 1970).

205

Appendix One

The Talmudic Discussion on Unjust Enrichment – by Stages
Baba Kama 20a-2 la
Stage

Presentation of the
problem

Act

One who resided in his ne1ghbor's premises
unbeknown to his neighbor. does he have to pay

Loss

rent?
Three categories

(a) Premises that are nol for hire, and a tenant who
does not normally rent= no loss to the O.vner and no
benefit lo the lenanl: No oblisation lo pay.

(b) Premises 1hat are fo, hire 311d a tenant who
normally rents =the tenant derives benefit and the
owner sustains foss: he must pay.

Proof that he

[NJ

The beneficiary says to lhe benefactor: "What loss
have I caused you?" He replies: "You have derived
benefit."

The problem

Opinion that he must
pay

(c) Premises that arc not for hire, and a tenant who
would normally rent = The tenant derives benefit
and the owner sustains no loss: what is the law?

must

Opinion held by Rami Bar Hama
Our Mishnah: If an animal eats produce in the
public domain, the animal's owner mus1 pay for
the benefit to the animal.

pay

Rejection

In our mi.,·lmal,, one derives benefit while the other
sustains toss.

Proof that he must
pay

If A erects a fence on four sides of B's property, I3
must pay.

Reject Lon

The benefactor says to the beneficiary, "You
caused me a greater circumference:·

Proof that he is
exempt

According to R. Yosi. B must pay only ifB erects
a fence on the fourth side, not ff A does

Rejection

B argues that he would have been satisfied with a
fence costing 1 zuz.

Proof that he is
exempt

A two-story house collapses. The owner of the
second story (B) may rebuild the first story and
live there without having to pay rent.

Rejection

The first story is rcspons1blc for the upper story.

Proof that he must
pay

According to R. Yehudah, B must pay rent.

y
BR

[NJ

y
BY,
BR

(NJ

207

A«

Stag.1:

Rejection

A suffers a loss: 1he wals arc btackened

Opinion 1hat he is
exempt

R. Ami: "What hann ha< B done to A1 What loss
has he c:msc:d hlrn? What damage has he: done?"

Expression of douh1

R. Hiyya son of R. Abba: ··we must consider the
matter carefully."

Opinion that he is
exempt

R. Kah~me in the name ofR. Yohanan: "B is not
obliged to pay rent:·

Opinion that he
must pay

Ptoof thal he must
pay

Dwelling in or benefit from Temple property
cor1stitu1es me 'dah

Rejection

Use ofTemple property unbeknown to Temple
a111hori1ie:; Is equivalent to use of private property
with ts owner's knowledge.

Opinion that he 1s
exempt

In the name of Rav· Ile 1s exempt from payment.

Proof that he must

In the name of Rav· If A rents a house from 8, and
later it is disc overed that the hou~e belongs to C, A
must pay rent to C.

Rejection

Thc11 applies to a dwelling that was for hire

Proof that he is
exempt

In the name of Rav (or R Huna): he does not have
to pay rent.

Prooftha1 he must
pay

In tl1e name of Ra:v: One who rents a house from
the city residents, etc .• must pay rent to the owner.

Rejection

Tl1ere the dwelling was for hire.

A reason for
ex:empting him

R. Schorah in the name of Rav: Because it is
written: "She 'i.1,iyah smites the gate".

A reason for
cx:empting hrm

R. Yoscf: Property 1hat is inhabited is cared for.

Difference between
the reasons

Where tl1e property's o wner stores wood and straw
on lhc property.

Proof thal he must
pay

R Nahman compelled a person who built on an
orphans' dung heap to pay.

Rejection

The orphans could have earned a small amount
from others

Lon

R. Abnhu in the name ofR. Yohanan: "Bis obliged

w pay rent_"

pay

y
y

Legend: BY = Act of the beneficiary. BR = Act of the benefactor. Y = One
derives benefit and the other sustains loss. N = One derives benefit and the other
sustains no loss. [NJ = Classification as "one derives benefit and the other sustains
no loss" is rejected in the Talmud's conclusion.

208

Appendix Two

UNJUST ENRICHMENT
LAW, 5739-1979

Duty of
restitution

209

Appendix Two
Exemption from
restitution

2. The Court may exempt the beneficiary
from the whole or part of the duty of restitution under section 1 if it considers that the
receipt of the benefit did not involve a loss
to the benefactor or that other circumstances
render restitution unjust.

Deduction of
expenses

3. The beneficiary may, in making restitution, deduct what he has reasonably expended or undertaken to expend or invested
m order to obtain the benefit.

Person who
pays another
person's debt

4. A person who pays another person's debt
without being under duty towards him to do
so is not entitled to restitution unless the
other person has no reasonable cause to object to the payment of the whole or part of
the debt and not beyond the amount paid.

Person who acts
to protecl
another person's
interest

5. (a) Where a person, in good faith and
reasonably, does any act to protect the life,
physical integrity, health, honor or property
of another person without being under duty
toward him to do so and in that connection
incurs or undertakes to incur any expenses,
the beneficiary shall indemnify him for his
reasonable expenses, including obligations
incurred by him toward a third party, and if
damage is caused to the property of the benefactor in consequence of the act, the Court
may order the beneficiary to pay compensation to the benefactor if it considers it just
to do so in the circumstances of the case.

210

Appendix Two

(b) For the purpose of the obligation to pay
compensation under subsection (a), a person
whose property is used for the protection of
any of the above values shall be treated as
a person who does an act for the protection
of those values .
(c) The duty of indemnification or compensation under this Section shall not fall on a
beneficiary who objects or has reasonable
cause to object to the act or the use of property or to the amount of the expenses, unless the act was done or the property used
to protect his life, physical integrity or
health.
Scope of
application and
saving of
remedies

6. (a) The provisions of this Law shall apply where no other Law contains special
provisions as to the matter in question and
no agreement between the parties provides
otherwise.
(b) This Law shall apply also to the State.
(c) This Law shall not derogate from any
other available remedy.

Repeal

7. Section 3 of the Law of Torts Amendment (Repair of Bodily Harm) Law,
5724-1963, is hereby repealed.

Menahem Begin
Prime Minister

Shmuel Tamir
Minister of Justice

Yitzchak Navon
President of the State

211

INDEXES

SUBJECT INDEX
SOURCE INDEX
BIBLIOGRAPHY

Subject Index

Agent
bailee who hands property to
sub-bailee – considered
agent of owner 88 89 I I6
118 123
deviating from agency 150-154
160 178-183
stipulation to divide gain
178-180 182
that purchased, and seller
disappears before payment
99 100

Agent who gains from agency
133-205

agent to collect taxes 157 158
agent to pay creditor, that paid
less 174
agent to purchase, who receives
goods worth more than
money paid 125 126
145-149 155-159 165 166 195
because of error 148
162- 164 167-170 174
goods with or without a
fixed price 147 149 163
165 166 168 170 17!

if seller doesn't know he's
an agent 156
if seller says explicitly; it's
for agent 156 158 160
161 l7l 172 175 177
if seller says explicitly: it's
for principal 161
reasons to divide gain
154-159 162 163 172-174
agent to sell, who is paid over
goods' worth 146 147 163
because of error 148 165
166 167
bribe given him to work
against principal 141
gain from evading customs 175
gift given him 140
if he deviated from agency
150-154 160 178-183
if he steals 139 140 169
principal' s claim based on
agency 139 140
principal's claim based on
breach or trust 141 142
principal's claim based on
unjust enrichment 140 141

215

Subject Index
Anan sahadi 53
Animal
damaging and benefiting,
owner's obligation to pay
for benefit 67

B
Bailee
delivery obligates him to
return I 19
when does his obligation begin
l 19 120

Bailee who handed property to
sub-bailee 80
damage for which bailee is not
liable but sub-bailee is
liable (sec also: hirer, if
lent. .. ) 80 81
unpaid bailee who handed
to paid bailee 84 85
114 121
Benefit, A benefits and B has
loss 17 21 23
if B's act causes benefit 65 66
to A's property or to A's
person 68
if C's act causes benefit 66-69
Benefit, A benefits and B has no
loss 15-74
benefit caused by whom 65-69
benefit that exceeds loss 5 J-55

if beneficiary shows will to
pay 35-42
if will is shown but not to
benefactor 41 42
it is prohibited 22
loss not affecting property
used 57-60
loss preceding benefit 47-50
no obligation to pay 24 25 !02
link to compelling one not
to act in the manner of
Sodom 25-28 53 54
reason 27-29
obligation to pay – rabbinic
enactment 22
recipient providing another
benefit 61-63
Benefit, A doesn't benefit and B
has loss 17 18
Benefit, A doesn' t benefit and B
has no loss 17
Biblical source, for compelling
one not to act in the
manner of Sodom 28
Blackening of the walls 52
Borrower, liable for force
majeure 83 J 12
Bribe, guardian who took a bribe
to hire out ward's property
cheaply 141

determinate or indctermi nate
benefit 37 39 40
if A profits (sec: profiting)
if B has no actual loss but is
prevented from profiting
43

if benefactor protests the
benefit 31-33 53 55

216

Compromise, dividing one third
– two thirds 194
Copying of invention
is it considered theft 57
obligation to pay for benefit
from information 57 58
Customs, gain by agent evading
customs 175

Subject Index
D
Debt, agent to pay creditor, that
paid less 174
Deception, that caused gain to
its two participants 161 162
175-177
Division, in case of doubt
155-157 173
Doubt
division in case of doubt
155-157 173
possession decides in case of
doubt 167 173
Dye, A's wool dyed by B's
pigment 67-69

E
English law, on unjust
enrichment 16
Expropriation, A who occupies
property expropriated from
B, his obligation to pay B
48 49

F
Fencing encircled land,
obligation of the inner to
pay 35-37 39 42 66
Force feeding, recipient's
obligation to pay food
owner 47-49 66-68
Force majeure (see: hire)

G
Gift
given to agent 140 156 158 160
161

given to public servant 142
Guardian, who took a bribe to
hire out ward's property
cheaply 141

H
Hire
does property belong to hirer
104 105

hirer not liable for force
majeure 83 112
hirer who lent property, to
whom is borrower liable
for force majeure 83-89 95
105 111 112 115 118-123
if borrower is not liable to
the hirer 85
if hirer had permission to
lend I 02-105 I 13 114
121
if owner present when
damage occurs 87 88
123
if A rents C's property from B
unknowingly 41 97-99
House collapse, where only the
owner of upper part wants
to rebuild 51 52

Improvement of another person ' s
property, right to
compensation
if he entered the property
without permission 68 69

217

Subject Index

Insurance
A who insures B's property
109-127 I93-196

if A has a mortgage against

the property !09 125
126

if A intended to ask B to
pay for premiums 115
if A rents the property
!09-l l3 !94 195

if B must pay A for
premiums paid 110
if insuring another's property
is illegal 124 194 196
if the property was A ·s, and
he sold it 117
partner who insured property
of partnership !IO 123

Labor, hiring workers by agent
who changes wage amount
91 92 125
Law of the land, binding 116
124 194 196

License, selling products that
someone else has license to
38 59 60
Lost property
acquisition by premises 198
199

analogy to finding of 176 177
197-201

picked up by two
simultaneously 176

124

tenant who paid to cover his
chattels there 110
agent who negligently doesn't
insure goods 127
mistakenly registered as
covering also someone
else's property 50 114-1 !7
195

M
Minority, judge's discretion to
follow minority view 172
173

Monkey, dying wool 67-69
Morality (see: Sodom)

tort against insured property
I 18

p
1
Judge, discretion to follow
minority view 172 173

K
Ketubah, widow selling property
to collect ke111bah 146 163
166 !68

Kim Ii IR?. 183

218

Partnership
in theft 185-191
implicit partnership 188
partner who insured property
of 110 123 124
Play. if A stages plays on B's
roof 81
Pledge, A who borrows money
against pledge given by B
to the lender 49 50
Possession, decides in case of
doubt 167 173

Subject Index
Premises, acquisition by 187 189
190 198-201
of lost property 198 199
Prevention of profit, is it
regarded as loss 43
Printing book, using type set for
someone else 59
Profiting from another person's
property 79-132
Prohibitions, their relevance in
civil matters 21
Public servant, gift given him
142

R
Rabbinic enactment
compelling one not to act in
the manner of Sodom 28
to divide gain of agent 173
174
Rent (see: hire)
Residence, in another's premises,
obligation to pay for
no obligation since dweller
prevents premises'
deterioration 61-63
premises intended for hire
by one who doesn't
normally rent 17
by one who normally rents
23
if owner cannot find a
tenant 44
if owner is absent and
cannot rent out 44
presumption that all vacant
houses are intended for
hire 45
prevented profit is
considered loss 43

subjective criterion – the
owner's intent 44
premises not intended for hire
by one who doesn't
normally rent 23
by one who normally rents
24

compelling owner to allow
residence 28
disclosure of intention to
pay 38-40
if owner protests residence
3'.1 '.11

owner aware of residence
65 66
Risk, creates right to gain
188-191
Roof, if A stages plays on B ' s
roof 81

s
Sodom, compelling one not to
act in the manner of
Sodom 25 26
after the act is done 25
before an act is done 25 28
biblical or rabbinic source 28
link to exemption where A
benefits and B has no
loss 25-28 53 54
Sub-bailee (see: bailee)
Subletting, who receives rentals
!Ol-108

chattels or immovable property
104 l05

if first tenant paid abnormally
low rent 106 107
if owner sustained loss 107 108
if tenant had no permission to
sublet 101 102 105 106

219

Subject Index
if tenant had permission to
sublet 101 102 I04-I06

T
Taxes, agent to collect taxes 157

thief who rented out stolen
property 93-96
thief who sold stolen property
with profit 103
Tort, against insured property
118

Trustee, gaining from trust
property 142

158

Temple property. illegal use of
31 32
Theft
after despair. property belongs
to thief 199
agent who steals from third
party I~9 140 169
buying stolen property 187-191
199 201
if owner demands more than
worth of thing stolen 33
partner's right to part of
185-191

implicit partnership 188
thief not obligated to pay for
use of object. if returned
54

220

u
Uncertainty (see: doubt)

w
Waivor, where A benefits and B
has no loss 29
Widow, selling property to
collect ketubah 146 163 166
168

Woman, embarrassed in private,
compensation to whom 194

Source Index

BIBLE

JERUSALEM TALMUD

Deuteronomy
6:18 198

Demai
6:8 149 153 160

Jeremiah

Ketubot
11:4 148

17:11

MISHNA
Ketubot
11:4 146 163
Baba Metzia
1:4 198
3:2 80 83
10:3 51
Baba Batra
1:4 36

TOSEFfA
Demai
8:3 145

Baba Kama
9:3 185
9:5 21 152

BABYLONIAN TALMUD
Eruvin
49a 25
Ketubot
30b 66 67
65b 194
95b 126
98a 146 163
98b 145
103a 25

Baba Kama

19b

221

Source Index
20a

17 18

21a 97
55b 67
101a 66
102a-b 150

Baba Metzio
Ila 198
35b 83
36a 102
76a 92
96 l04
96b 85
108a 198
117a 51
117b 21
Baba Batra
12b 25
59a 25
168a 25

GEONIM (Rabbinic authorities
of post-Talmudic period)

Beit haBehirah
Ketubot 98b (ed. Avraham
Sofer, p. 452) 173
R. Gershom (Perush haMeyuhas)
Baba Batra 12b 26
Haga/wt Maimorliyot
Sheluhin 5:4 186
Hagahot Asheri
Baba Kama 2:6

lttur
Shiuuf 186
Shalishut Mamon

159 179

. Maharam be11 Barukh, Resp., ed.
Cremona
50 164
Maharam hen Barukh, Resp., ed.
Prague

252
685
802
803

164
62
161
164

R. Hai Gao11, Se.fer haMikkah
vehaMimkar
6 155

Maharil, haHadashot, Resp.
156 170

Otzar haGe'011im
Ketubot, Likkutei Pemsh
Rabbenu Hananel. p.
78 159

Maimonides, Mishneh Torah
Gezelah vaAvedah 3:9 24 62
Shekhenim 7:8 26
Shekhenim 12:5 198
Sheluhin veShutafin 1:5 126
171 181

RISHONIM (Early rabbinic
authorities)

Aliyot deRabbemt Yonah
Baba Batra 4b 62
222

Sekhirut 1:1
Sekhirut I :6

Maimonides, Resp. (ed. Blau)
444 21 22

Source Index
Mordekhai
Ketubot 255 (chap. 11) 165
169 170
Ketubot 256 (chap. 11) 161
Ketubot 258 (chap. 11) 99
Baba Kama 16 (chap. 2) 28
Baba Kama 17 (chap. 2) 48
Baba Kama 141-142 (chap. 10)
87
Baba Kama 168-169 (chap. IO)
99 165
Baba Metzia 238 (chap. 1)
197 199

Baba Metzia 371 (chap. 8) 49
Baba Batra 466 (chap. 1) 62
Mordekhai, Hagahot
Baba Batra 660 186
Nimmukei Yosef (ed. Vilna)
Baba Kama, chap. 2,
p. 9a 44 52 62 101 113
Baba Kama, chap. 9,
p. 36a 181
Or Zaru'a
Baba Kama 120-121 62
Baba Kama 413 153 159
Baba Metzia 69 197 199
Baba Batra 24 26
Ra'avan
Baba Kama 21a 45
Baba Metz.ia I la 197
Baba Batra 5a 62
Resp., 3 161

Ran, on Rif
Ketubot chap. 11 (ed. Vilna,
57b) 156 160

Rashba
Baba Kama 21a
98
Baba Batra 12b

32 41 52 62
26

Rashba, Resp.
I:671 (=IIl:25) 158 169 170
first printing [Rome, 1470]
2I 2 158
first printing [Rome, 1470]
237 158
haMeyuhasot laRamban
60 157
Rashbam
Baba Batra 59a, s.v. Midat
Sedam 26
Rashi
Ketubot 98b, s.v. Kan 162
Ketubot 98b, s.v. kedeTanya
162

Ketuhot 98b, s.v. sheYesh 155
Ketubot 103a, s.v. Midat 26
Baba Kama 21a, s.v. keHedyor
31

Baba Karna 102b, s.v. Likah
178

Baba Metzia 42b, s.v.
uMeshalem 87
Baba Batra 12b, s.v. Al midat
26
Rif (ed. Vilna)

Ketubot, chap. 11, p. 57b 159
Baba Kama, chap. 2, p. 9a
18

223

Source Index
Baba Kama, chap. 9. p.
36a

178

Ritba (old edition)
Baba Metzia 356
Ritba, ed. Halperin
Baba Metzia 35b

87 88
113

Rosh, Resp.
199

Shitah Mekubetzet
Baba Kama 21a, quoting
Rash6a

32
Baba Kama 21 a. quoting R.
Yeshayahu
32 62
Baba Kama 2 la, quoting
Gilayon 41
Baba Kama 97a, s.v. ulel11yan
Pesak 93
Baba Metzia 356. quoting
Ritba, Ramakh I I 3
Baba Metz,ia 35b. s.v. ulelnyan
Pesak 89 107
Baba Metzia 35h. s.v.
vehaSlw 'el, quoting Tosefot
Shantz 89

R. Tam, Sefer haYashar,
Teshuvot
53:2
54:2

164
164

Terumat haDeshen, Resp.
310 200
224

31 44 66

Teshuvot Maimoniyot, Sefer
Kinyan

Rosh, Piskei haRosh
Ketuhor I I: 15 165
Baba Kama 2:6 18 52 62
Baba Kama 9: 17 68
Baba Merzia 3:5 89
1:1

317

20
22

165
165
161

Tosafot
Ketubot 30b, s.v. Vei delo 66
Ketubot 306, s.v. La 48
Ketubot 98b, s.v. Amar 164
167 169

Ketubot 986, s.v. Kan 162
Baba Kama lib, s.v. La 85
113

Baba Kama 20a, s.v. Eino 27
Baba Kama 20a, s.v. Zeh 18
53

Baba Kama 206, s.v. Ha

47
Baba Kama 20b, s.v. Ta 'ama
35

Baba Kama 21a, s.v. keHedyot
31 66

Baba Kama 21a, s.v. veYahavei
52

Baba Kama !Ola, s.v. 0 dilma

67
Baba Kama 102a, s. v. Noten
178
Baba Metzia 35b, s.v. Tahazar

85
Baba Metzia 1176, s.v.
biSheloshah 22
Baba Batra 5a, s.v. Af al pi
36

Baba Batra 12b, s.v. Kegon

Source Index
Tosefot Rabbenu Peretz
Baba Metzia 35b 88

Beit haMelekh (Hason)
Hoshen Mishpat 7 103 107

Yad Ramah
Baba Batra 168a

Beit Shelomoh, Resp.
Hoshen Mishpat 48 l JO US
Hoshen Mishpat 122 49 114

AHARONIM (Later rabbinic
authorities)

Amudei Esh, Resp. (R. A vraham
Shmu'el)
p. 16 29 53
p. 66b 54 57
p. 67a 54
Arukh haShulhan, Hoshen
Mishpat
291:47 85
363:19 40
Avnei Tzedek, Resp. (Teitelbaum)
Hoshen Mishpat 7 50
Ba'ei Hayyei, Resp.
Hoshen Mishpat 133

158 174

Bayit Hadash (Bah), Hagahot on
Mordekhai
Baba Batra 660 190
Bayit Hadash (Bah), on Tur,
Hoshen Mishpat
183:8 172
363:5 87
Bayit Hadarh (Bah), Resp.
(haYeshanot)
12 189 201
19 201
Beit Aharon (Watkin)
Baba Kama 21a 44

Beil Yitzhak, Resp. (Schmelkes)
Hoshen Mishpat 55:3 99 106
Hoshen Mishpat 55:5 110 125
Hoshen Mishpat 55:6 175
Beit Yosef, Hoshen Mishpat
183:8 168 170
363:5 95
363:7 98
Be11ei Aharon, Resp. (Lapapa)
1, p. 2 102
1:2, p. 5 104
1:3, p. 2 104
3, p. 7 104
16, p. 19 22
Be'ur haGra, Hoshen Mishpat
183:22 158
183:25 175
363:12 96
363: 13 33
363:16 62
363:30 102
Birkat Shemu'el
Baba Kama 14:2 29 42
Baba Kama 14:3 29
Baba Batra 7 29
Darkhei Moshe, Hoshen Mishpat
183:4 158 171
332 92
363:2 95
225

Source Index
Baba Batra, p, 192

Divrei Hayyim, Resp.
II:46

141

Hazan /sh

Divrei Malk 'iel, Resp.
III: 157
V:128

Baba Kama 22:5

28 38 53 54 59
110

174

Divrei Naba (Segal)
Baba Metzia 35b 86

Helkat Yo'av
Hoshen Mishpat 9 37 41 69
204
Mahadura Tinyana 15 85

Divrei Rivot, Resp. (Adarbi)
111
175

Hokhmat Shelomoh (Kluger)
Hoshen Mishpat 176:41 123

Ein Yehosef (Hazan)
Baba Metzia 356 86

Hokhmat Shelomoh (Luria)
Ketubot 98b 169

Encyclopedia Talmudit, Zeh
neheneh vezeh fo haser
note 8 28

Hoshen Aharon
363:6

Hoshen haEfod, Resp. (Pipano)

note 67 37
notes 133, 135. and 136

Erekh Shai, Hoshen Mishpat
316:1
363:6

107
33

Eretz Tzvi, Resp. (Tc'omim)
Hoshen Mishpl11 15
195

Giddulei Shemu'el
Baba Kama 20a

Gra, Hagaliot
Baba Kama 20a

50 117

127

lmrei Binah
I, responsa, 2:6-7

Karnei Re'em, on Maharsha
Ketubot 98b 162
Karnei Re'em, Resp.
174

Kesef Mishneh
Sheluhin veShutafin 1:5

168

Ketzot haHoshen

118
23

R. Hayyim miTelz. Hiddushim
Baba Kama, p. 39 27
Baba Batra, p. 190 27

226

I:36

177

Harei Besamim, Resp.
Mahadura Tinyana 245
Hatam Sofer, Resp.
Hoshen Mishpat 79

158:6
183:7
183:8
183:9
363:8

37
161 173
162
175
102 106

Knesset haGedolah, Hoshen
Mishpat, Mahadura Batra
183, Hagahot Beit Yosef
43

161

Source Index
11:91 175
Il:159 127

183, Hagahot Beit Yosef
66 158

Lehem Abirim
Baba Metzia 35b

Maharsham, Resp.
Il:211 117
IV:7 118

Lehem Mishneh
Sheluhin veShutafin I :5

168

Lehem Rav, Resp. (Bolon)
124 168
125 174
Levush Mordekhai
Baba Kama 15 27 29
Mahaneh
Hilkhot
Hilkhot
Hilkhot
Hilkhot
Hilkhot
Hilkhot
Hilkhot

Efrayim
Nizkei Mamon 2 69
Nizkei Mamon 4 69
Gezelah 9 40
Gezelah 10 29
Gezelah 13 49
Shomerim 33 87
Sekhirut 19 102 105

Maharash, Resp.
VI:103 J 19
Maharashdam, Resp.
Hoshen Mishpat 26 175
Hoshen Mishpat 27 169 175
Hoshen Mishpat 371 84

Mareh haPanim on the Jerusalem
Talmud
Baba Kama 9:5 (7a) 183
Marheshet {R. Hanokh Aigesh)
II, 35:2 (2) 37
Jl, 35:2 (7 and 8) 53
II, 35:3 69
II, 35:4 (9) 53
Matza Hen (Slutzkin)
Baba Merzia 35b 86
R. Me'ir Simhah, Hiddushim
Baba Metzia 35b 119
Meromei Sadeh (Netziv of
Volozhin)
Baba Kama 20a 42
Baba Kama 20b 38
Minhat Pitim (Arik)
Hoshen Mishpat 307:5
114 115

102

Mallari ben Lev, Resp.
1:114 182

Minhat Yitzhak, Resp. (Weiss)
11:88 118

Maharia haLevi, Resp.
Il:77 111
II: 126 113

Mishkenot haRo'im (Alha' ikh)
letter shin, 114 153 156 159

Mahariaz Enzil, Resp.
72 126

Mishpat Shalom
176:12 191
183:6 169
I 83:7 161 175

Maharshakh, Resp.
II:3 175

172 173

227

Source Index
Baba Kama 20b

Nahalat David
Baba Kama 20a
Baba Kama 20b
Baba Kama 2 la
Baba Kama 2 l b

18
38
33

Netivot haMishpat, be'11rim
183:!2 175
194:5 !67
291 :27 87 88
356:4 103
363:4 54
363:7 99
363:9 96

Netivot Yehoshua (Yagel)
pp. 200-204 121
Nidrei Zerizin, Krmtres Yosif
Da'at
responsum 13 176

No'am Yerushalmi
Demai 6:8 153
Noda biYelmdah, Resp.
Mahadura Tinyana, Hoslzen
Mishpal 24 40 53 59

Perishah, Hoshen Mishpat
363:6 40
Pit'hei Teshuvah, Hoshen
Mishpat
307: 1 85 ll4 121
Rema, Hoshen Mishpat
176:12 186 191
183:4 201
183:5 182
183:6 172
183:7 175
183:9 174 175
241:12 117
268:3 201
269:6 201
363:3 48
363:5 96
363:6 28 44 45
363:10 44 103
Rim, Hiddushim
Baba Metzia 35b

Oryan Talita'i, Resp.
156 125

Sema
183: 18
183:24
I 83:26
307:5
332:2
363:7
363:8
363:13
363:14
363:15
363:23

Penei Yehoshua
Baba Kama 20a

Sha'ar haMelekh
Hilkhot Gezelah 3:9

Nofet Tzufim, Resp. (Birdugo)
Hoshen Mishpar 134 175
Or Same'ah
Hilkhor Nizkei Mamon 3:2 37
Hilkhot Gezelah 3:9 42
Hilkhot Sekhimt 5:6 105 106
120
Hilkhot Sekhirnt 7: I I 18

228

84 106 126

172 173
176
174 175
102
92
54
54
96
33

62
99
53

Source Index
Sha'arei Yosher (Shkop)
3:25 37 42
Shakh, Hoshen Mishpat
176:27 186 191
183:10 182 183
183:13 168
183:14 175
183:15 175
183:18 173
291 :41 87
307:2 102
307:3 88
332:3 92
391:2 68
She'erit Yosef, Resp.
7 187 200
Shevut Ya'akov, Resp.
III:148 85
Shiltei Giborim on Rif
Baba Metzia, chap. 5 (ed.
Vilna, p. 36a) 94
R. Shimon ben Yehuda haKohen
(Shkop), Hiddushim
Baba Kama 19:3 29
Baba Kama 19:5 39 42
Baba Kama 19:6 39
Baba Kama 19:7 69
Baba Kama 20: 1 40 54
Baba Kama 20:2 40
Baba Batra 4:3 42
Shimru Mishpat on Hukkot
haDayanim (ed. Jerusalem,
1974)
291 169 178 187

Sho'el uMeshiv, Resp.
Mahadura Tinyana III:129
124 194
Mahadura Talita'ah 1:305
118
Mahadura Talita'ah 11:146
96
Mahadura Talita'ah IIl:37
175

Shulhan Arukh, Hoshen Mishpat
72:44 49
175:6 198
183 125
183:5 181
183:6 171
183:7 174
194:2 167
260:3 201
307:5 84 103
332:1 92
363:3 54
363:5 54
363:6 24 32 62
363:7 53
363:8 40
363:9 41 98
Taba'at haHoshen
363 96
363:8 106
Taz, Hoslzen Mislzpat
176 186
183 173

Teshurat Shai, Resp.
106 117
Torat Emet (R. Aharon Sasson)
129 62

229

Source Index
Torat Hesed, Resp.
210

169

Tur Hoshen Mishpat
332 92
332:1 92
363:5 94
363:6 32
Yad Ramah, Resp. (Solovei)

Hoshen Mishpat 80

122 124

196

Yad Yemin, Resp. (R. Mikha'el
Ya'akov Yisrael)
Hos hen Mishpat 34 I 75 187
Yam Shel Shelomoh
Baba Kama 2: 16 36 62 66
Baba Kama 10: I 87

Guarantee Law, 1967
Sec. 9 16
Land Law, 1969
Sec. 21
16
Mejelle (the Ottoman Civil
Code)
Article 472 81
Palestine Order in Council
Article 46 16
Public Service (Gifts) Law,
1980
Sec. 2(1) 142
Trust Law, 1979
Sec. 13(1) 142
Sec. 15 142
Unjust Enrichment Law,
1979 16 81
Sec. 1 16 17 209-211
Sec. 2 16 17 209-211
Sec. 3-7 209-211

Yeshu'ot Ya'aknv, Resp.
(Orenstein)
Hoshen Mishpar 4

CASES
C.A. 59/52, Ben Menahem v.
Mahalah, 8 P.D. 917 81

LAWS
Agency Law, 1965
Sec. 8(4) 142
Sec. 10 16
Sec. 10(2) !42
Bailees Law, 1967
Sec. S(b) 80
Sec. 7 80

230

C.A. Medinat Yisrael v. Home,
47(2) P.D. 346 80
T.A. 759/56, Aguddat
haKoremim v. Yikvei
haGalil, 22 Pesakim
(mehnziyim) 77 59

Bibliography

Albeck, S. "HaOseh Tovah laHavero sheLo miDa'ato," Sinai 71
(1972), 98-111
Alon, G. Mehkarim beToledot Yisrael, vol. 2, pp. 91-92
Barak, A. Hok haShelihut, 1965 (2nd ed., Jerusalem, 1996), p. 92; pp.
1067-1069, 1128-1131
Blas, Y. Asiyat Osher velo heMishpat. Hok leYisrael, ed. Nahum
Rakover, Jerusalem, 1992, pp. 11, 21, 30, 53, 185
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