Bava Metzia, Chapter 2, Mishnah 10. This Mishnah is composed of three separate parts, three topics that each stand on their own. The first part is a direct continuation of the previous Mishnah, and there is not much novelty in it.
Part One - "Matza berefes":
The Mishnah states: "Matza berefes" - if he found a cow in a cowshed. A refes is generally translated as a cowshed, but the point here is that we are talking about a shelter that provides the cow with only partial protection. If it were a proper enclosure, a stable closed on all four sides, there would be no discussion of returning lost property here at all. Conversely, if it were a place where the cow finds shelter under a tree, a cover from the rain or from the sun, it is clear that it is not protected, so it is lost, and the mitzvah of returning lost property applies. The case before us is a cow finding shelter in a place that is slightly protected and slightly unprotected.
From here the question arises: one might have thought that one should intervene just to be safe. To this the Mishnah says: "Ein chayav bah" - there is no such obligation. We can assume that the owner knows that the cow is in a cowshed that does not provide full protection, and that is sufficient for him. However, "birshus harabbim" - if the cow is found wandering in the middle of the street, the owner certainly does not know where it is. There are differences of opinion regarding what exactly is meant by the "middle of the road", but the point is that common sense decides, and the halachah reflects this: "chayav bah" - if it seems that the cow is lost, one must intervene and return it to its owner.
Part Two - A clash between mitzvos:
The first case: the finder of the lost object is a kohen, and the item is resting in a place where if he takes it he will contract tumah from a corpse - in a cemetery, on top of a grave, or adjacent to it. Once the kohen approaches within a handbreadth, or passes over the source of the tumah or under it, it is forbidden for him to go there. What should he do: fulfill the mitzvah of returning lost property, or fulfill the mitzvah not to contract tumah?
The rule is that a positive commandment overrides a negative commandment: when there is a contradiction between a positive command to do something and a negative command not to do it, the positive commandment takes precedence. However, this rule is not valid when dealing with a mitzvah that has both a positive and a negative commandment. Returning lost property is a positive commandment, and opposite it exists the negative commandment "he shall not defile himself for any person among his people" - a prohibition for the kohen to contract tumah from a corpse. Seemingly, then, it is a positive commandment versus a negative commandment, and the positive commandment prevails, and the kohen should enter the cemetery, contract tumah, and return the lost object.
However, the missing component is that there is a separate positive commandment, a positive command for the kohen to remain pure. The verse in Vayikra 21 says: "They shall be holy" - the kohanim shall remain holy, and this includes that they must remain pure. We find that before us is a positive commandment of returning lost property versus a positive and negative commandment of the prohibition of tumah for a kohen, and therefore the kohen must forgo the mitzvah and not return the lost object.
And this is the wording of the Mishnah: "Im hayesa b'veis hakevaros" - if the location of the lost object was in a cemetery, in a place where a kohen cannot enter, and the finder is a kohen (the Mishnah does not mention this explicitly, but this is the case before us). "Lo yitama lah" - the kohen is not permitted to contract tumah in the context of returning the lost object.
It is worth noting that in reality there is a positive and negative commandment in both directions: regarding returning lost property there is the positive commandment of "you shall surely return them" and the negative commandment of "you may not ignore it", and opposite them are the positive and negative commandments of "he shall not defile himself for any person among his people" and "they shall be holy". Rather, this does not matter: once a mitzvah is protected by both a positive and a negative commandment, it is like a sanctified matter, and unless there is a special derivation permitting it, one may not transgress it even when it clashes with another mitzvah. Even if it were a case of one positive commandment versus a positive and negative commandment, he would not fulfill it.
The next case: what is the halachah when not one positive commandment stands against the negative commandment, but two positive commandments, and even though the negative commandment is also protected by a positive commandment? "Amar lo aviv: hitama" - the father of the kohen says to him: contract tumah and return the lost object. Here there are two positive commandments: honoring one's father and the mitzvah of returning lost property. Perhaps two positive commandments will override a positive and a negative commandment? The answer is that they do not override them.
"O she'amar lo: al tachazir" - and in the same manner, if the father says to his son in another case (and it is not necessarily dealing with a kohen or with tumah): you are forbidden to return the lost object. Here stands the mitzvah of honoring one's father, which instructs not to return it, versus the mitzvah to return it. In both cases: "Lo yishma lo" - we do not listen to the father. The rule is that the mitzvah of honoring parents does not override any mitzvah in the Torah, and this law too is derived from a separate derivation.
We learn two things here:
Two positive commandments do not override a positive and a negative commandment. Once there is a positive and a negative commandment involved, the matter is absolute.
The positive commandment of honoring a parent does not override anything, as it is stated: "Every man shall revere his mother and his father, and you shall keep My Shabbosos; I am Hashem, your God" - the motivating factor for honoring parents is that the Almighty said so, and He Himself also commanded other things, such as keeping Shabbos. Therefore, when the parents say one thing and the Almighty says another, we listen to the Almighty and fulfill the other commandments. The commandment to honor a father and mother is subordinate, then, and does not override other commandments.
The Gemara asks: Against the positive commandment of honoring and revering a parent stand the positive and negative commandments of returning a lost object, so there is no novelty here - we have already said that once there is a positive and negative commandment to return a lost object, it cannot be overridden. Why, then, might one have thought that honoring a father and mother is different?
The Gemara explains: One might have thought this because it is stated, "Honor your father and your mother", and it is stated (in the book of Mishlei), "Honor Hashem with your wealth" - meaning that one must honor Hashem with his assets and property. From the shared usage of the word "honor" in both verses, one might have equated honoring parents with honoring the Omnipresent, and from this concluded - ironically - that this commandment is more important than the other commandments. However, this is not so: the teaching demonstrates that honoring parents is indeed a great and wonderful commandment, but one does not fulfill it at the expense of transgressing other commandments. This concludes the second part of the Mishnah.
Part Three - Unloading and Loading:
The third part appears seemingly without an introduction, and deals with the commandments of unloading and loading - loading a burden onto an animal and unloading it from upon it. Why does the Mishnah jump to this topic? There are two possibilities (and it is possible that both combine together):
In the previous Mishnah we learned that it might be necessary to return a lost object time after time, as it is stated, "Hashav teshivem" - the double expression teaches that there is no limit to the number of times, and one cannot say that the one who lost it is reckless or negligent. Regarding the commandments of unloading and loading, there is also a similar derivation, and one must assist many times, as it is stated, "Azov ta'azov".
In the verses of Parashas Mishpatim, the commandment of returning a lost object appears immediately before the commandment of unloading, and therefore the two are brought in sequence.
The commandment of unloading means taking the burden off the animal (related to the expression of 'throwing off a yoke'). The verse in Shemos 23:5 states: "If you see the donkey of your enemy crouching under its burden" - the donkey is crouching under the weight of its burden, to the point that its back is about to break. "Would you refrain from helping him?" - phrased as a rhetorical question: will you refrain from helping him and evade the responsibility? Certainly not. Rather, "You shall surely help along with him" - there is an obligation to unload the donkey together with its owner.
For the sake of order, there are two possible matters involved in the commandment of unloading the donkey, and we will return to them later:
The donkey's back breaks, which is a monetary loss for the owner: if his donkey's back breaks, he has lost his donkey, and there is great distress in this.
The donkey's back breaks, and the donkey is a living creature that feels and senses pain. We have an issue here of tza'ar ba'alei chayim - preventing unnecessary suffering to animals.
The second commandment is loading - assisting a person to load his donkey and ensuring that the burden is balanced properly, so that the donkey can walk and carry the burden that its owner wants it to carry. Regarding this, it is stated in the book of Devarim: "You shall not see your brother's donkey or his ox fallen on the road" - fallen along the road, "and ignore them" - the same language of turning a blind eye that was stated regarding returning a lost object, "You shall surely help him lift them up" - one must assist the owner to balance and reload the donkey or the ox, so that it will carry its burden properly. Here too there is a positive and a negative commandment, just like with returning a lost object.
The Mishnah states: "Parak veta'an, parak veta'an, afilu arba'ah vachamishah pe'amim - chayav, shene'emar: azov ta'azov" - if he unloaded and loaded, unloaded and loaded, even four or five times, he is obligated, as it is stated: 'You shall surely help'. This refers to an attempt to reach a precise balance, so that the weight is distributed equally in the front, in the back, and on the sides of the animal. Even if this requires many attempts, four and five times, one is obligated to return and do it. The double wording of "azov ta'azov" teaches this - the same logic we saw above with the wording "hashav teshivem".
"Halach veyashav lo ve'amar, ho'il ve'alecha mitzvah, im retzoncha lifrok - perok" - The owner of the donkey goes and sits himself under the tree and says: The mitzvah is incumbent upon you, so if you wish to fulfill it, you unload the donkey, and I will sit and rest. The Mishnah says: "Patur, shene'emar, imo" - The passerby, who is not the owner of the donkey, is exempt from unloading. The Torah said, "You shall surely help," but it added "with him," meaning together with the owner. If the owner does not participate, there is no obligation upon the finder, and the owner cannot cast the matter upon him.
From here we see that if the owner does not bear his share of the responsibility, there is no obligation to assist him, and this is not only because of the financial loss that will be caused to him by the collapse of the donkey, but even regarding the suffering of the donkey: the blame for this suffering is on the owner, since the primary responsibility is upon him, and the passerby has only a supporting role.
However, the Mishnah continues: "Im hayah zakein o choleh - chayav" - If the owner of the donkey is old or sick, and is incapable of doing this himself, the obligation falls upon the finder. Here too, it is not specified whether the reason is saving the owner from a monetary loss, or saving the donkey from its suffering, or both.
The Mishnah continues: "Mitzvah min haTorah lifrok aval lo liton" - The simple meaning of the words is that there is a mitzvah from the Torah to unload but not to load, but this is not the intention, since we learned that there is a mitzvah from the Torah in both of them. The intention is that it is a mitzvah from the Torah to unload for free (and again, without deciding whether the reason is the obligation to save one's fellow from a loss, similar to returning a lost object, or saving the animal, or both), "but not to load," since in loading the burden there is no such obligation, meaning in a case where the owner does not pay for the time of the one assisting. This is more or less the same framework that we saw in returning a lost object.
One who is engaged in his work during his working hours can receive payment for his time, and is permitted to demand the amount he would take for an easier job, if indeed this is an easier job, and the like. The point is that he is permitted to receive payment for this; and if the owner is not willing to pay, there is no obligation to assist him, since a person is not required to lose from his money and become a sort of porter. After all, this is actual work, and the owner is obligated to compensate him for it.
Rabbi Yosi HaGelili says: "Im hayah alav yeseir al masa'o - ein zakuk lo, shene'emar, tachas masa'o - masui sheyachol la'amod bo" - If the animal is loaded with excessive weight (such as a small donkey that was loaded with an entire refrigerator on its back) and it is crouching in the road because it is crushed under the burden on account of a reckless and irresponsible owner, the bystander is not obligated to intervene, to save it and to unload from it. The derivation is from the wording "under its burden," meaning a proper burden, which the animal could withstand if it were arranged properly in terms of balance. Therefore, Rabbi Yosi HaGelili holds that there is no obligation to intervene when the owner is reckless and the blame lies with him.
What is the reason for his words? First, by virtue of the derivation. And second, even if we set aside the derivation, there is still the mitzvah of tza'ar ba'alei chayim, as the animal is crushed under its burden. However, Rabbi Yosi HaGelili holds that tza'ar ba'alei chayim is a rabbinic obligation, and in his opinion the Sages forbade causing pain and suffering to animals, but there is no obligation to relieve them of pain caused to them by another. It is not his problem, but rather the problem of someone else.
The halachah follows the Tanna Kamma: tza'ar ba'alei chayim is a Torah obligation, and there is an obligation to do only the unloading for free. For loading, there is an obligation to assist one's fellow Jew, but it is permitted to demand payment for it; and for unloading, the one assisting saves the owner money, since his animal is liable to break down, and he also saves the animal itself, and therefore he must do this even without any payment.
The dispute regarding the question of whether a person is obligated to load for free is between the Tanna Kamma and Rabbi Shimon. The Tanna Kamma holds that there is no obligation to do this for free, because before us are two separate mitzvos, one of unloading and one of loading. If they were both on the same level, the Torah could have written only the mitzvah of loading, and from a kal vachomer we would have learned that there is an obligation to assist in unloading, where one saves money and prevents the suffering of the animal. The very existence of two separate mitzvos teaches that their level is different: unloading is done even for free, and loading is done only for a wage.
Rabbi Shimon disagrees. In his opinion, if we had only the mitzvah of loading, we would have thought that the thing being loaded is not the burden upon the back of the animal but rather the animal itself, which is falling under its burden, and the intention of the mitzvah is to help the animal stand up (assistance for the animal and saving from a loss), and we would not have understood that a separate source is required for unloading as well. And so the Gemara brings the verse: "You shall not see the donkey of your brother or his ox falling on the road" - meaning the animal is collapsing under the burden; "and hide yourself from them," "you shall surely help him lift them up" - meaning there is an obligation to assist the owner to balance and reload the animal. But Rabbi Shimon says that it is possible to interpret the verse as referring to lifting the animal itself from the ground, and from this understanding he holds that the two mitzvos are on the exact same level, and both are done for free.
However, the halachah, as mentioned, follows the Tanna Kamma: loading is done for a wage, and unloading is done even for free.