ועל הטעות שהטעה ראובן ר"ת שכתבתי שהוא לאמצעו וראייתו מהשותפין שמחלו להם מוכסים מחלו לאמצע. ומפרש רבינו שמחה שמחלו לו על ידי בקשתו שבקש מהן למחול לו לעצמו. אפילו הכי מחלו לאמצע דאין שותף חולק שלא לדעת חבירו. אכל אם מחלו לו מעצמו בלא בקשתו מה שמחלו מחלו לו. ובאתם לחלק דמוכסי ידעי ומחלי מדעתם. אבל בטעות לא ידע השר שהטעהו ולא מחל. מה חילוק הוא זה. דאדרבה נראין הדברים ק"ו מהאי טעמא השתא ומה גבי מוכסין דאיכא דעת אחרת מקנה לו לבדו. ואפילו הכי חולק עם חבירו הכא דליכא דעת אחר מקנה לו לבדו לא כל שכן שיחלוק כיון דשותפין הן לכל עניין החובות הבאה והיוצאה. מיהו אם היה בא עלילה עליו מן השר מצי למימר לתקוני שדרתיך ולא לעוותי. ולא היו צריכין לפרוע דמי העלילה. ועוד הרי כתבתי לכם דשותף כיורד ברשות דמי לומר שנוטל בשבח המגיע לכתפיים. ופירש ר"ח שאותו שלא טרח נוטל כל כך כמו אותו שטרח. הרי אף על פי שמסור נפשו ונתלה באילן וחביריו לא טרחו לאשר לא עמל בו יתננו חלקו כיון דשותפין נינהו. ה"נ בנדון זה אף על פי שסיכן בעצמו יחלקו עמו בטעות.
Q. A's brothers were young when their father died, and A managed his father's estate together with his own business. One day A was arrested for purposes of extortion by the prefect of Ulrich and the overlord of Erstein. In order to extricate himself and be released by them, A cancelled a debt of three hundred and fifty marks that was due to the estate from the duke of Brunswick, and freed the sureties of this debt. Thereupon A was released. A's brothers now demand that he should compensate them for the loss of their share of the duke's debt. A. A person is not permitted to buy his freedom with money belonging to others. The only exception to this rule is when a poor man hands over to robbers a valuable object deposited with him for safekeeping, in which case the poor man is free from obligation since we must assume that the robbers came expressly for the purpose of obtaining this valuable object (B.K. 117b). When the bailee himself is a wealthy man, however, we are not justified in making such an assumption. Since A is a wealthy man, he must pay to his brothers their share of the actual value of the duke's debt at the time it was cancelled. This law would apply even if it were known that the duke had plotted against A together with the overlords; the law, therefore, surely applies now when, according to the statement of the brothers, the duke was not associated with the overlords in their plot against A. A must also pay to his brothers their share of the interest that had accumulated on the debt before it was cancelled, even though the interest had not been made part of the principal by that time. A, however, must only pay their share of that interest which the duke would have definitely consented to add on to the principal; since the practice is for the debtor to promise a large rate of interest, but when the accumulated interest is to be added on to the principal, the debtor demands, and usually receives, a reduction of the amount of the accumulated interest. This reduction is an established custom and must be reckoned with. Q. A deceived the overlord and paid him one hundred marks less than what the overlord thought he received. A now claims that these one hundred marks belong exclusively to him, and that he gave this money to his brothers by mistake. The brothers, however, aver that A paid them their rightful share of the money. A. A may not claim that he paid the money to his brothers by mistake, especially so since according to talmudic law the brothers are fully entitled to their share of the money A saved by deception. The case was then referred again to R. Meir thus: You, my illustrious teacher, have ruled that since A was a rich man he had to pay to his brothers their share of the actual value of the debt that had been due from the duke. A, however, claims that with reference to the demands made on him by the overlords, he cannot be considered a rich man, for when he was arrested the lords demanded a ransom of thirty thousand*According to the question thirty thousand … was demanded from A, and according to the answer, one thousand marks. (schillings?). His captors enumerated all his investments in great detail in order to prove that he was in a position to pay such ransom. The investments thus enumerated included those that belonged to the estate. A claims that he was arrested because his managing of the estate made him appear a rich man, and because the duke was anxious to cancel the above debt; therefore, he should not be held responsible for the cancellation of this debt. Moreover, the duke died in the meantime. Had A not cancelled the debt, it would have been absolutely worthless anyway, now that the debtor was dead. A. The fact that the overlords demanded one thousand marks*According to the question thirty thousand … was demanded from A, and according to the answer, one thousand marks. from A does not prove that he was seeking the money of the estate, for when a person is thrown into prison for purposes of extortion, his rapacious captors first demand a huge sum as ransom, ten times his capital, without knowledge of the actual value of his assets. This is done in order to frighten him, force him to come to terms quickly, and pay a high ransom. Moreover, we must assume that A's captors would not commit such an outrage against the bishop and the burghers merely to cancel a debt of a faithless debtor who had already lost his credit. Your contention that A's captors were intent on cancelling the above debt in order that the overlord should not be called a defaulter, is indeed untenable. The duke did not mind becoming known as a thief, a robber, a highwayman, and an extortionist; why should he object to the appellation defaulter? It is incredible. Therefore, A must pay his brothers their share of the actual value of the above debt at the time it was cancelled. Regarding the deception A practiced on the overlord by having paid him a lesser amount than what the overlord thought he had received, I have written that A must share the amount thus saved with his partners. This decision I based on the ruling (of the Tosephta, B.M. 8, 25): "If publicans relinquish the tax of one partner, the other partners share the benefits thereof." You disagreed with my decision, however, and attempted to draw a distinction between the case of the publicans, who knowingly bestowed a benefit on the partner, and our case where the overlord was unconscious of the fact that the partner was deriving a benefit from him. However, your reasoning serves only to strengthen my ruling instead of weakening it. If a direct gift by the publicans to one partner must be shared by the other partners, then money which was not a gift to A and was not meant as a benefit directly and exclusively for him, must surely be shared with his partners. Moreover, a silent partner is entitled to an equal share in the profits earned by the industry and cunning of the active partner. Although A alone took the risk and braved the danger of severe punishment, he must share the benefits with his partners. These Responsa were addressed to Rabbi Samuel and Rabbi Shemariah. SOURCES: Sinai VI (1943) 13 no. 417; Cr. 305–6. Cf. Terumat Hadeshen 342; Isserlein, Pesakim 125.
ועל הטעות שהטעה ראובן ר"ת שכתבתי שהוא לאמצעו וראייתו מהשותפין שמחלו להם מוכסים מחלו לאמצע. ומפרש רבינו שמחה שמחלו לו על ידי בקשתו שבקש מהן למחול לו לעצמו. אפילו הכי מחלו לאמצע דאין שותף חולק שלא לדעת חבירו. אכל אם מחלו לו מעצמו בלא בקשתו מה שמחלו מחלו לו. ובאתם לחלק דמוכסי ידעי ומחלי מדעתם. אבל בטעות לא ידע השר שהטעהו ולא מחל. מה חילוק הוא זה. דאדרבה נראין הדברים ק"ו מהאי טעמא השתא ומה גבי מוכסין דאיכא דעת אחרת מקנה לו לבדו. ואפילו הכי חולק עם חבירו הכא דליכא דעת אחר מקנה לו לבדו לא כל שכן שיחלוק כיון דשותפין הן לכל עניין החובות הבאה והיוצאה. מיהו אם היה בא עלילה עליו מן השר מצי למימר לתקוני שדרתיך ולא לעוותי. ולא היו צריכין לפרוע דמי העלילה. ועוד הרי כתבתי לכם דשותף כיורד ברשות דמי לומר שנוטל בשבח המגיע לכתפיים. ופירש ר"ח שאותו שלא טרח נוטל כל כך כמו אותו שטרח. הרי אף על פי שמסור נפשו ונתלה באילן וחביריו לא טרחו לאשר לא עמל בו יתננו חלקו כיון דשותפין נינהו. ה"נ בנדון זה אף על פי שסיכן בעצמו יחלקו עמו בטעות.
Q. A's brothers were young when their father died, and A managed his father's estate together with his own business. One day A was arrested for purposes of extortion by the prefect of Ulrich and the overlord of Erstein. In order to extricate himself and be released by them, A cancelled a debt of three hundred and fifty marks that was due to the estate from the duke of Brunswick, and freed the sureties of this debt. Thereupon A was released. A's brothers now demand that he should compensate them for the loss of their share of the duke's debt.
A. A person is not permitted to buy his freedom with money belonging to others. The only exception to this rule is when a poor man hands over to robbers a valuable object deposited with him for safekeeping, in which case the poor man is free from obligation since we must assume that the robbers came expressly for the purpose of obtaining this valuable object (B.K. 117b). When the bailee himself is a wealthy man, however, we are not justified in making such an assumption. Since A is a wealthy man, he must pay to his brothers their share of the actual value of the duke's debt at the time it was cancelled. This law would apply even if it were known that the duke had plotted against A together with the overlords; the law, therefore, surely applies now when, according to the statement of the brothers, the duke was not associated with the overlords in their plot against A. A must also pay to his brothers their share of the interest that had accumulated on the debt before it was cancelled, even though the interest had not been made part of the principal by that time. A, however, must only pay their share of that interest which the duke would have definitely consented to add on to the principal; since the practice is for the debtor to promise a large rate of interest, but when the accumulated interest is to be added on to the principal, the debtor demands, and usually receives, a reduction of the amount of the accumulated interest. This reduction is an established custom and must be reckoned with.
Q. A deceived the overlord and paid him one hundred marks less than what the overlord thought he received. A now claims that these one hundred marks belong exclusively to him, and that he gave this money to his brothers by mistake. The brothers, however, aver that A paid them their rightful share of the money.
A. A may not claim that he paid the money to his brothers by mistake, especially so since according to talmudic law the brothers are fully entitled to their share of the money A saved by deception.
The case was then referred again to R. Meir thus: You, my illustrious teacher, have ruled that since A was a rich man he had to pay to his brothers their share of the actual value of the debt that had been due from the duke.
A, however, claims that with reference to the demands made on him by the overlords, he cannot be considered a rich man, for when he was arrested the lords demanded a ransom of thirty thousand*According to the question thirty thousand … was demanded from A, and according to the answer, one thousand marks. (schillings?). His captors enumerated all his investments in great detail in order to prove that he was in a position to pay such ransom. The investments thus enumerated included those that belonged to the estate. A claims that he was arrested because his managing of the estate made him appear a rich man, and because the duke was anxious to cancel the above debt; therefore, he should not be held responsible for the cancellation of this debt. Moreover, the duke died in the meantime. Had A not cancelled the debt, it would have been absolutely worthless anyway, now that the debtor was dead.
A. The fact that the overlords demanded one thousand marks*According to the question thirty thousand … was demanded from A, and according to the answer, one thousand marks. from A does not prove that he was seeking the money of the estate, for when a person is thrown into prison for purposes of extortion, his rapacious captors first demand a huge sum as ransom, ten times his capital, without knowledge of the actual value of his assets. This is done in order to frighten him, force him to come to terms quickly, and pay a high ransom. Moreover, we must assume that A's captors would not commit such an outrage against the bishop and the burghers merely to cancel a debt of a faithless debtor who had already lost his credit. Your contention that A's captors were intent on cancelling the above debt in order that the overlord should not be called a defaulter, is indeed untenable. The duke did not mind becoming known as a thief, a robber, a highwayman, and an extortionist; why should he object to the appellation defaulter? It is incredible. Therefore, A must pay his brothers their share of the actual value of the above debt at the time it was cancelled.
Regarding the deception A practiced on the overlord by having paid him a lesser amount than what the overlord thought he had received, I have written that A must share the amount thus saved with his partners. This decision I based on the ruling (of the Tosephta, B.M. 8, 25): "If publicans relinquish the tax of one partner, the other partners share the benefits thereof." You disagreed with my decision, however, and attempted to draw a distinction between the case of the publicans, who knowingly bestowed a benefit on the partner, and our case where the overlord was unconscious of the fact that the partner was deriving a benefit from him. However, your reasoning serves only to strengthen my ruling instead of weakening it. If a direct gift by the publicans to one partner must be shared by the other partners, then money which was not a gift to A and was not meant as a benefit directly and exclusively for him, must surely be shared with his partners. Moreover, a silent partner is entitled to an equal share in the profits earned by the industry and cunning of the active partner. Although A alone took the risk and braved the danger of severe punishment, he must share the benefits with his partners.
These Responsa were addressed to Rabbi Samuel and Rabbi Shemariah.
SOURCES: Sinai VI (1943) 13 no. 417; Cr. 305–6. Cf. Terumat Hadeshen 342; Isserlein, Pesakim 125.