1) There is a significant difference between the scenario of the barrels of wine and honey, and the Din of Yored she'Lo bi'Reshus. The owner of the barrel of honey was there at the time that his honey was spilled, while with Yored she'Lo bi'Reshus, the owner of the property that was worked upon was somewhere else at the time.

2) We learn that it makes a difference if the owner was present or not from the Rosh in Bava Metzia (2:28) who explains the Din in the Mishnah (Bava Kama 115b) which follows immediately after the Din of the wine and the honey. The river washed away two donkeys. His friend's donkey was worth more than his own, so he abandoned his own donkey and saved his friend's. The Mishnah states that he receives pay only for his Sechirus. The Rosh writes that the reason he receives only his Sechirus, but loses entirely his donkey, is that the owner was present on the spot, so he should have made an agreement with him that when he saves the more expensive donkey he will get reimbursed for his own donkey. Similarly, he should have stipulated with the owner of the honey that when he saves the honey, he will be refunded the value of his lost wine. Because he did not make this agreement, he loses his wine, and receives payment only for his efforts.

3) The Tosfos Yom Tov (on the Mishnah about the honey and the wine, Bava Kama 10:4) adds that when he threw his wine away, this was something he was not obligated to do, because a person is entitled to save his own lost item before he saves his friend's, so it follows that he is not obligated to lose his wine in order to save his friend's honey, even though the honey is more valuable. If he did do something which he was not obligated to do, he should have made sure that he received a commitment from the owner of the honey if he planned afterwards to ask for compensation for the lost wine.

4) Comments about Yored she'Lo bi'Reshus:

The Din of Yored she'Lo bi'Reshus is stated in Bava Metzia 101a and Kesuvos 80a.

a) If it is a field where trees are anyway usually planted, then even though somebody planted trees without permission the owner still has to pay, since he has benefitted from the work done and would have had to do it himself if the trespasser would not have done it.

b) If it is a field where the owner does not normally plant trees, and the trespasser did plant trees, we say that the intruder has the lower hand. There are two ways of estimating what he should be paid. Either (a) how much he spent on the work, (b) how much his work raised the value of the field. The Halachah is that whichever is the lesser amount from (a) and (b) is what the intruder gets paid.

c) So he is not paid the least amount of money he would have received for his services in that city, but there is another way of deciding how much he is paid, with the result that he has the lower hand.

d) However, as I wrote above, the Din of saving the honey by spilling the wine is not similar to Yored she'Lo bi'Reshus, because in the latter scenario the owner is not present. If he would have been there he should have protested against the intrusion. If he did not protest, that must mean he agrees with what the visitor is doing in his field and would have to pay the full rate.

Kol Tuv,

Dovid Bloom

1) It seems to me that the Rosh (Bava Metzia 2:28) is based on the Gemara in Nedarim 38a (although he does not actually mention this Gemara) which learns from the verse, "Observe that I have taught you statutes..." (Devarim 4:5), that just as Hash-m taught us Torah for free, we also have to teach Torah for free. This does not only mean teaching Torah, but in fact it means that we should do all Mitzvos without charging any fee. This includes the Mitzvah of Hashavas Aveidah; all lost items should be returned to their owners without demanding any payment in return.

2) However, concernng the Mitzvah of Hashavas Aveidah there is an additional factor. If one is in the middle of working one is not obligated to break off in order to save somebody else's property. One does not have to lose one's own earnings in order to save the money of one's friend. However, if there is a Beis Din on the scene, or if the owners of the lost property are present, and they say to the person who is able to rescue their belongings, "Leave your work for the moment, and save our possessions and we will compensate you with your full wages," they must pay the rescuer whatever they promised him.

3) This all applies when the owners are on the scene and they made an agreement with the rescuer. What is the Halachah in a case where the owners are there and did not say anything but the rescuer still went ahead, on his own initiative, and took time off from his work to rescue the item? The Rosh writes that in this case, the rescuer does not receive the full rate. He explains that this is because there is a special Takanah that Chazal made so that somebody should take off from work and go do the Mitzvah of Hashavas Aveidah. Chazal had to make this institution because the Torah says that one should do the Mitzvah of Hashavas Aveidah for free. On the other hand, a worker does not have to lose his wages to do this Mitzvah. So Chazal came along and said that this is a Mitzvah for which one may charge a fee. If, however, the owners are on the scene, Chazal did not need to make this special Takanah because the owner himself can promise reward to the rescuer.

4) The point is that if the rescuer went ahead and saved the donkey without asking any questions or demanding any payment, this means that the owner thinks that this rescuer is a Tzadik who does not want to get paid for doing Mitzvos. This is why he can argue later on that he will not pay.

5) I found support, bs'd, for what I wrote above from the Shitah Mekubetzes on the Mishnah in Bava Kama 115a, where one spilled out the wine from his barrel to save his friend's honey. The Shitah Mekubetzes writes in the name of Rabeinu Yehonasan that the owner of the honey says to the owner of the wine, "You wanted to do a Mitzvah. What you did was Lifnim mi'Shuras ha'Din, more than the strict letter of the law demands, because the Mishnah in Bava Metzia (33a) teaches that saving one's own lost item takes precedence to saving other people's lost items, so you were doing more than the Halachah requires of you. Since you were doing a Mitzvah it follows that I do not have to pay you, because the Gemara in Kidushin (39b) tells us that one does not get reward for Mitzvos in this world."

6) The Shitah Mekubetzes adds that the Chidush of the Mishnah is that we do not force people to do Lifnim mi'Shuras ha'Din. Even though the Gemara in Bava Metzia (30b) tells us that it is a Mitzvah to do mi'Shuras ha'Din, and this is derived from the verse, "That they shall do" (Shemot 18:20), that the correct thing is to do Mitzvos that one is not strictly obligated to do, nevertheless this is a voluntary Mitzvah. The Mishnah (115a) is talking about somebody who volunteered to spill the less valuable wine to save the more valuable honey. His reward for this can be learned from the Gemara in Bava Kama (9b, just before the Mishnah). One should pay a third more than is necessary when buying a Lulav or Esrog. If one pays more than an extra third, Hash-m will pay your reward. The Mishnah (115a) is similar; he will receive a reward from Hash-m for his voluntary Mitzvah, but this is not something one can claim in a court of law in this world.

7) The SM'A (Shulchan Aruch, Choshen Mishpat 264:7) also writes that the reason he does not get the price of his own donkey when he decides to save his friend's donkey instead is that since he could have made an agreement in advance with his friend, but instead kept quiet, this proves that he was Mochel his friend. He had decided that he did not want to demand what was entitled to him. The SM'A (265:4) gives another reason for why he loses the money. This is because the friend can argue that "if you would not have saved my donkey, I would have saved it myself."

8) To answer your question (#2) above about Yored she'Lo bi'Reshus: The person who benefited pays the market rate but the worker has the bottom hand when the rate is decided. So if Reuven went and decorated Shimon's house without being asked to do so and he did a good job of the painting, he still only gets paid his expenses. But if he did a bad job, he will not even get his expenses, but will receive the low rate that someone would pay to get his house painted by a cheap, low quality company. However, these values are decided according to the market rate. (See Rashi to Bava Metzia 101a, DH Yado Al ha'Tachtonah.)

Dovid Bloom