QUESTION: The Mishnah (115b) states that when two donkeys were swept away by a river and the owner of one donkey (worth one Maneh) saved his friend's donkey (worth two Maneh) and let his own donkey drown, he may claim from his friend only the wages of a rescue worker, but not the value of his donkey that he lost while saving his friend's donkey. However, if he said to his friend before the rescue, "I will save your donkey, and you will pay me the value of mine," his friend is obligated to pay him for his lost donkey.

Rav Kahana asked Rav what the law would be in a case in which he made the above condition with his friend but his own donkey washed ashore safely on its own. RASHI (DH v'Alah) explains Rav Kahana's question. Perhaps since the rescuer relinquished the ownership of his donkey at the start, it is considered Hefker, in which case his friend became obligated from that point to pay him the value of his lost donkey. The fact that the original owner later retrieved his donkey is irrelevant. On the other hand, perhaps since the donkey surfaced alive it was never considered lost, and therefore the owner of the rescued donkey does not need to pay the rescuer.

Rav answered that "mi'Shemaya Rachimu Alei" -- "Heaven had mercy on him." The owner of the two-Maneh donkey still must pay the owner of the one-Maneh donkey the value of his donkey. The rescuer's reclaiming of his donkey is considered as though he re-acquires his donkey from Hefker.

The Gemara compares this case to the incident involving Rav Safra, who was part of a caravan that met up with a lion. Rashi (DH Lavinhu) explains that the people understood that the lion was willing to guard the animals owned by the members of the caravan from wild animals and bandits in exchange for food. In order to keep the lion satisfied, the members of the caravan agreed that a different person would give a donkey to the lion as food every night. When Rav Safra's turn came, he threw his donkey to the lion his but the lion did not eat it. Rav Safra quickly grabbed back his donkey (so that no one else would grab it first). Rav Acha mi'Difti asked Ravina, why was it necessary for Rav Safra to re-acquire his donkey when he threw it to the lion only in case the lion was hungry? He obviously did not make his donkey Hefker such that anyone else could acquire it if the lion did not want it. It should have returned automatically to Rav Safra's possession without the need for any additional action on Rav Safra's part.

Ravina replied that it indeed was unnecessary for Rav Safra to re-acquire his donkey, but he did so anyway to ensure that there would be no argument about its ownership.

The law in the case of the donkey thrown to the lion seems to contradict the Gemara in Bava Metzia (22b) and the Gemara in Kerisus (24a). The Gemara in Bava Metzia teaches that if one's property was swept away by a river, it becomes Hefker and anyone is permitted to take it. Just as the owner of the property gives up hope of ever recovering his property which was swept away by the river, one who throws his donkey to a lion gives up hope of ever recovering his donkey!

Similarly, the Gemara in Kerisus teaches that if Beis Din declares that an ox must be stoned (because it killed a person) and afterwards the witnesses who testified against the ox were found to be Edim Zomemim, the ox becomes Hefker. This is because once Beis Din has ruled that the ox must be stoned, the owner despairs of recovering it, and thus it becomes Hefker. Accordingly, why does the Gemara here say that Rav Safra did not despair of recovering his donkey once he threw it to the lion?

ANSWER: The PISKEI TOSFOS in Kerisus (#30) writes that the difference between these cases is whether the person's property was forcibly taken away from him (such as by the river, in the case of Bava Metzia, or by the Beis Din, in the case of Kerisus), or whether the person voluntarily relinquished his property, through his own action (such as by throwing the donkey to the lion).

The KEHILOS YAKOV (Nedarim 42:4) explains the answer of the Piskei Tosfos. Rav Safra's act of giving the donkey to the lion was similar to an act of giving hay to one's animal to eat. When a person gives hay to his animal, he does not make the hay ownerless. Rather, he simply uses the hay as animal fodder. Until the hay is actually eaten, it belongs to him. In contrast, when a river washes away someone's possessions, or Beis Din declares that his ox must be killed, the owner's object is of no use to him, and he therefore despairs of retrieving it (and thus it becomes Hefker). Accordingly, even if the river later washes his possessions ashore, they have already left the possession of the owner. (D. BLOOM)

QUESTION: The Beraisa discusses the case of a caravan of people traveling through the desert who were held up by armed robbers. They came to an agreement that the members of the caravan would give the robbers a certain sum of money. The amount that each member of the caravan was required to contribute in order to appease the bandits was made according to the relative wealth of each member, and not according to the number of heads in the caravan. This is because only the money of the travelers was under threat, not their lives. The wealthier members stood to lose more, and the poor had less to lose.

This Beraisa seems to contradict the Mishnah in Sanhedrin (72a) which teaches that one who is "Ba b'Machteres" (a thief who tunnels his way into a house; see Shemos 22:1) is judged according to the crime he is prepared to do. Rava explains that there is a Chazakah (strong assumption) that a person will not stand by quietly while his money is being stolen, and he is likely to resist the theft of his money. The thief is suspected of intending to murder the owner should he try to stop him. Consequently, the owner is allowed to kill the thief in order to save his own life.

Why does the Beraisa here say that only the property of the travelers was under threat? Since there was a Chazakah that they would attempt to resist, their lives were in danger, and thus they should have had to pay according to their numbers, not according to their relative wealth!

ANSWER: TOSFOS in Bava Basra (7b, DH Lefi) answers that in fact the armed robbers do not intend to kill the travelers. They want only to take their money. If the travelers do not resist, the robbers have no intention to do any physical harm to them. Therefore, there is no danger to life, and if the travelers arrange an agreement with the robbers to appease them financially, it shows retroactively that there was never any danger to life. This is why the members of the caravan pay according to their wealth.

The KOVETZ SHI'URIM (Bava Basra #43) explains that according to Tosfos' reasoning, the reason why one is permitted to kill a "Ba b'Machteres" is that although it is possible to surrender to him, the Torah does not obligate a householder to surrender his money. Since the thief is likely to kill if the owner does not allow him to steal his money, the thief has the status of a Rodef whom one is permitted kill in order to save his own life). However, in the case of the caravan, the members of the caravan came to a peaceful agreement with the bandits. Therefore, the money is collected from its members according to their wealth.

(This approach explains another Halachic ruling. The BI'UR HALACHAH (OC 218:9, DH v'Yesh) cites the NISHMAS ADAM (65:1) who writes that if thieves attack a person and he is saved from them, he does not recite the blessing which one recites upon being the beneficiary of a miracle of Hash-m. This is because the thieves came only for money, and the victim was in no physical danger. The Bi'ur Halachah disagrees with the Nishmas Adam on the basis that there is a Chazakah that the bandits are prepared to kill, and thus the victim is entitled to kill his attackers first. It may be possible to justify the Nishmas Adam's position based on the approach of Tosfos. Although the victim is permitted to kill the bandits, nevertheless the bandits do not intend to kill their victim. As long as the victim does not attempt to resist, he is in no corporal danger at all. Therefore, if he does not resist and the thieves spare him, no miracle at all was done for him. The Nishmas Adam indeed writes that if the bandits find money on him they will not kill him, and if they do not find money on him there is no reason to assume that they will kill him for no reason. It seems that both the Bi'ur Halachah and the Nishmas Adam agree that if there is reason to suspect that the victim was in danger (for example, thieves in that area do kill the victims they try to rob even when the victims hand over their money), the person would recite a blessing if he survived unscathed.) (D. BLOOM, Y. MONTROSE)