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Mishpatim | If its owner was present, he shall not make restitution

Rav Yishai Jeselsohn


In memory of Eliezer Chaim ben David (Lawrence Davis) z"l,
a lifelong student of Torah and philosophy
whose yahrzeit falls on Shevat 28,
and in honor of his grandson,
Binyamin Moshe ben Yosef Naphtali,
a budding student of Torah and philosophy
who becomes a bar mitzva on Shevat 28, 5784.


I. Introduction

In many places in his commentary, the Or Ha-Chaim interprets the details of laws relating to Choshen Mishpat as alluding to grand spiritual ideas. For example, the Or Ha-Chaim understands the laws of fire damage that appear in our parasha as dealing with the spread of the evil inclination in the world and how to stop that from happening (see Or Ha-Chaim, Shemot 22:5). This is also how he explains the laws of a gentile woman captured in war at the beginning of Parashat Ki Tetze (Devarim 21:1). According to him, the law of returning lost property (Devarim 22:1) teaches us how to bring back those of Israel who are far from Torah and mitzvot. We find this approach in many other places as well.

Presumably, the Or Ha-Chaim did not view these interpretations as the plain meaning (peshat) of the verses (indeed, in most of these cases he first offers the plain meaning of the verse, and only afterwards introduces the homiletical interpretation), but he did apparently attach great importance to adding a religious-moral-homiletical layer to his commentary. In this way, one who reads the Torah, especially those sections that are laden with these laws, will find a way to connect to the religious world through them as well. In fact, sometimes it is precisely through meticulous analysis of the academic-halakhic sections that the Or Ha-Chaim explains a given religious issue most clearly. This approach of the Or Ha-Chaim also testifies to his immense knowledge of the details of the laws of Choshen Mishpat. 

This shiur will be devoted to one such commentary of the Or Ha-Chaim, and we will see how his homiletical interpretation, which is based on an in-depth study of the details of the laws of Choshen Mishpat, illuminates clearly the religious-spiritual perspective he pours into these laws.

II. Liability for Damage to an Object Entrusted to a Bailee

The Torah says in our parasha:

And if a man borrows [a creature] from his fellow, and it is injured or dies while its owner is not there, he shall surely make restitution. If its owner was present, he shall not make restitution; if the animal was hired, only the hiring fee is due. (Shemot 22:13-14)

The Torah is dealing here with the law of a borrower, where one person gives an object to another person for temporary use. This law appears in our parasha as part of the laws governing the various types of bailees, and it introduces a law that Chazal saw not as applying uniquely to a borrower, but as a general law applying to all bailees (see Bava Metzia 94a): when the owner of the object is present with the bailee and the object is lost or destroyed, the bailee is exempt from paying for the object. In other words, all of the liabilities of bailees apply only when the owner is not present together with his object.

The Amoraim differ regarding the meaning of "if its owner was present." For what purpose, and at what point, might the owner be present, such that it would affect the bailee’s liability? Rav Hamnuna maintains that for the bailee to be exempt, the owner must be working with the entrusted object itself, and the period of this work must parallel the entire period of the borrowing:

Rav Hamnuna said: He [the borrower] is always responsible unless it [the bailment] is a cow and he [its owner] plows with it [in the bailee's service], or a donkey and he [the owner] drives it along, and unless the owner is in the bailee's service from the time the loan is made until it is injured or dies. Thus we see that in his view, "if its owner was present," refers to the entire matter. (Bava Metzia 95b)

The Gemara rejects Rav Hamnuna's position regarding both the timing of the work (ibid. 95b) and the nature of the work (ibid. 96b). According to the Gemara's conclusion, any work performed by the owner of the entrusted object for the benefit of the borrower exempts the borrower from liability – even if what he was doing was unrelate to the borrowed object, such as teaching Torah, teaching young children, or even providing water to drink:

Rava said: If a man wishes to borrow something from his neighbor and yet be free from responsibility, he should say to him: Give me a drink of water, so that it constitutes a loan together with the owner's service. (Ibid. 97a)

The Or Ha-Chaim, in accordance with his approach described above, takes this law to the world of the relationship between man and his Maker. He discusses an interesting question: Can a person, following his death, come before his Maker to return the soul that had been entrusted to him and argue that he is exempt from any damage done to it because God was there, "working" on his behalf, and thus it is a situation of "its owner was present"?

We have to consider whether this law applies in the world-to-come, when the owner of the deposit, i.e., the Master of the Universe, who entrusted the soul to the person for safe-keeping, as it is written: "And keep your soul diligently" (Devarim 4:9), comes to reclaim an unsullied soul at the death of the person to whom He had entrusted the soul, and it turns out that it was stolen, or broken, or captured, or died, for all these situations are found among sinners… When God – the owner of the deposit – demands its return in the condition He had deposited it, as it is stated: "And the spirit returns to God who gave it" (Kohelet 12:7), which Chazal expounded (Shabbat 152b): Give it to Him as it had been given to you – can the people to whom the souls had been entrusted exempt themselves with the argument of "if its owner was present"? For Chazal said (Bava Metzia 97a) that even if he said to him: Give me some water to drink, and he borrowed the object from him, this constitutes a loan together with the owner's services, and the same applies to all the bailees. And surely God fed and maintained the person from the day he was born, and instilled the breath of life in him, and dealt with his needs, besides what He did for the world in general, renewing every day the act of creation. Therefore, it should be considered "its owner was with him" from the beginning to the end, and thus those who were entrusted with souls should be exempt even if they do not return the soul as it was given. (Or Ha-Chaim, Shemot 22:14) 

In essence, we are dealing here with a profound spiritual question: On the one hand, man is responsible for his sins and the corruption of his soul; on the other hand, if God would not have helped and sustained him, he would not have been able to commit any sin whatsoever. The Or Ha-Chaim brings here the opinion of Rava that giving the owner water to drink is considered a case of a loan that includes the owner's service, but in fact, man's standing vis-à-vis his Creator is more similar to the words of Rav Hamnuna, because from the time of the borrowing to the time of the damage, God was maintaining and sustaining the person to whom He had entrusted the soul.

The Ramak, Rabbi Moshe Cordovero, illuminates this matter for us in his book, Tomer Devora, when he discusses the attributes in which a person must strive to resemble his Creator:

‎The first: "Who is a God like You" (Mikha 7:18) indicates about the Holy One, blessed be He, that He is an insulted King, tolerating insult beyond comprehension. Surely, nothing is hidden from His supervision, without a doubt, and [yet] there is no moment ‎when a person is not nourished and preserved by a supernal force that flows upon him; and surely, you find that ‎there was never a person who sinned against God without Him – at that very instant – [willing] the flow of his existence and the movement of his limbs. Though this person sins with that capability, He does not withhold it from him at all. Rather, the Holy One, blessed be He, tolerates such an insult – to bestow the power for the movement of his ‎limbs, and the person [uses] that power at that moment for sin and iniquity, and [to] anger ‎[Him]; and the Holy One, blessed be He, tolerates [it]. (Tomer Devora, chap. 1) 

Thus, there is no greater situation of "its owner was present"! Why, then, does God judge us at the end of our days?

III. The Depth of the Homiletical Understanding

In order to better understand this question, we will harness for our benefit the scholarly analysis of the laws of a loan with the owner in the bailee's service, and through it, delve more deeply into the Or Ha-Chaim's question.

Our Rabbis have suggested several understandings of the law of a loan with the owner in the bailee's service. The Chinukh brings the most reasonable explanation:

And about the matter of borrowing in the presence of the owner, that he is exempt, we can say according to the simple understanding that the Torah did not make the borrower liable because the owner of the object or of the animal is with him – for since he is there, he will guard what is his. (Sefer ha-Chinukh, 60)

But this explanation does not accord with the details of the law. The explanation offered by the Chinukh fits perfectly with the words of Rav Hamnuna, but we rule in accordance with Rava, who does not require that the owner be in the borrower's service the entire period of the loan.

Moreover, according to Rav Hamnuna, it is possible to understand that when the owner is borrowed together with the object, we are not dealing with the borrowing of an object, but rather with the hiring of the owner to perform certain work. The examples offered by Rav Hamnuna are: "[the bailment] is a cow and he [its owner] plows with it [in the bailee's service], or a donkey and he drives it along." In these cases, the owner works for the borrower, and therefore it stands to reason that he is not really considered a borrower, for he did not borrow the cow, but rather he hired the owner to do a job. 

The Chinukh addresses the "contradiction" between his suggested reason and the details of the law, and explains:

The Torah did not want to give different measures for its words and state that if the owner stays long, the borrower will be exempt, but if [only] a little, he will be liable. [Instead,] the Torah commanded more generally that so long as the owner is there at the time of the borrowing, he is exempt. (Ibid.)

The Seforno offers a different explanation, viewing the owner's working for the bailee as a sign of their closeness. The Torah assumes that because of this closeness, we are dealing not with a loan, but with a gift:

The reason is that, unless specified otherwise, lending an object with such closeness of mind and agreement is similar to a gift that is given with the understanding that it will be returned. In the absence of a stipulation, he is only obligated to return the object if it is intact. (Seforno, Shemot 22:14)

This explanation involves a difficult interpretation of the reality of the situation, but it accords well with the law that sees the time of the loan as the time that determines whether the case is one of “a loan in the presence of its owner” or not.

The Ralbag offers a slightly different formulation, from which we can derive a more fundamental approach:

You should know that if the owner was with him at the time of the loan, even though he was not with him in his work at the time of the unavoidable accident, it is considered a loan in the presence of the owner, for at the time of the loan, he did not obligate himself to the owner to watch over the object at all. (Ralbag, Shemot 22:13-14)

We can infer from these words that the borrower's liability stems from the fact that he is obliged toward the owner – but if the owner is obliged toward the borrower, there is a disruption in the sense of balance that would impose liability on the bailee; hence the exemption.

These explanations lead us to an analytical question regarding the law of borrowing in the presence of the owner, which is summed up in a practical dispute recorded in the Jerusalem Talmud:

It is stated: "If its owner was present, he shall not make restitution." Does he have to swear [that he was not negligent]? Rabbi Zeira says: He swears. Rabbi Chanina and Rabbi Lo both say: He does not swear. (Jerusalem Talmud, Shevuot 8:1)

The obligation of an oath is not connected to a waiver or to their relationship, but to the definition of the person as a bailee, for it is a unique law in the laws of bailees that appear in our parasha. Therefore, it is possible that the Jerusalem Talmud's question depends on another, more basic and fundamental question: When the owner is with him, is the bailee only exempt from making restitution, or is he not considered a bailee at all?

If we understand that the owner himself must guard his property (as argued by the Chinukh) or that there is no full obligation on the part of the bailee (as argued by the Ralbag), it is possible that a borrower in the presence of the owner is not considered a bailee at all. But if we adopt the Seforno’s understanding, it is possible that we have here only an exemption from restitution, while the other laws of a bailee still apply.[1]

This analytical question can also clarify for us more precisely the spiritual question raised by the Or Ha-Chaim. Ostensibly, the question of how God can punish man can be interpreted in two ways:

1) All of man's actions are performed through the hand of God; despite the fact that God gave us free choice and a soul, we are still under His protection and He gives us life and sustains us. Therefore, the soul is still essentially with God and we are not “bailees” entrusted with it at all!

2) Even if we see ourselves as “bailees” caring for the soul that God planted within us, the fact that He loves us so much that He nourishes, sustains and provides for us every day can be understood as an indication that indeed He forgives (“exempts”) us for the damage we do to the deposit that He entrusted with us.

Thus, we have deepened the question. Why, indeed, does God make a reckoning with us despite the law of a loan in the presence of its owner?

The Or Ha-Chaim suggests two answers to this question.

IV. Human Laws and Heavenly Laws

We will start with the second answer, on which we will focus less:

The second reason – you should know that only a few of man's trespasses are subject to judicial prosecution on earth; it is the Supreme Judge who adjudicates all trespasses with righteousness. Who is to say that a person who is guilty of negligence with his neighbor's property in the presence of that neighbor will not be judged by the Supreme Judge Himself, just as there are many instances where one is exempt according to human law but liable to God's judgment? (Or Ha-Chaim 22:10)

The essence of this explanation is the difference between the laws of man and the laws of heaven. "For man looks to the outward appearance, but the Lord looks to the heart" (I Shmuel 16:7); God's ability to judge and punish is greater than that of man. The Or Ha-Chaim does not explain why God would judge differently regarding the law of a borrower in the presence of its owner, leaving room for us to speculate on the matter.

On the plain level, it seems that the law of a borrower in the owner's presence indeed carries a degree of injustice; even though the bailee was negligent and caused damage to the borrowed object, he is exempt because the object's owner was also present?! Therefore, it stands to reason that a further reckoning will be made in heaven with that borrower.

On a deeper level, we can go back to the explanations that we saw above. The Seforno speaks of the relationship created between the owner and the bailee – but does this relationship oblige God as well? It is quite possible that for Him, working on the borrower’s behalf does not constitute a reason to give him discounts. So too according to the Ralbag – while it is true that God acts on our behalf, can we say that for this reason He is obligated toward us? Without a doubt, we remain the ones obligated to Him, and thus the entire law does not pertain here.

V. Stipulations Related to the Law of the Owner's Presence

In his first explanation, on the other hand, the Or Ha-Chaim accepts an exemption of liability in the presence of the owner even within the laws of heaven – but he suggests that God made a stipulation with His people that despite that exemption, they will be held liable:

The first – here the verse explicitly tells us that bailees are liable, and all stipulations made regarding deposits are valid, as it is stated in Bava Metzia (94a): The owner of the object entrusted to an unpaid keeper may stipulate that the unpaid bailee assumes all the liabilities of a borrower, the reason being that all stipulations regarding financial dealings are binding… In our instance, it is as if God made an explicit stipulation, by establishing punishments for all who transgress His commandments. Moreover, He even made the Israelites take an oath concerning the matter. (Or Ha-Chaim, ibid.) 

The Or Ha-Chaim understands that a stipulation works to make a bailee liable even when the owner is with him. We will try to understand the depth of this stipulation.

The source of the ability to make conditions regarding the laws of bailees is a mishna in Bava Metzia:

An unpaid bailee may stipulate to be free from an oath; a borrower, from payment; a paid bailee and a hirer, from an oath or from payment. (Mishna, Bava Metzia 7:10)

In general, a stipulation that runs counter to Torah law is invalid; however, here the stipulation is valid, because it does not contradict the laws of the Torah. The Torah suggests a certain code of conduct for bailees as a default, but if the bailees wish to deviate from these rules, they have the right to do so (see also Ketubot 56b, Tosafot, s.v. harei zo).

In the Gemara, the Amoraim disagree about how this stipulation should be carried out:

How; with [mere] words? Shmuel said: If he acquires it from his hand [=if he performs a mode of transaction, i.e., a kinyan]. Rabbi Yochanan said: You may even say that he does not acquire it from his hand, yet in return for the benefit he receives in that he achieves thereby a reputation for being trustworthy, he renders himself fully responsible. (Bava Metzia 94a)

Thus, according to Shmuel, a kinyan must be performed, whereas according to Rabbi Yochanan, the bailee's benefit from receiving the bailment suffices for him to assume full responsibility for the object.

There is, however, another Talmudic passage (ibid. 58a), which states that the acceptance of the stipulation is achieved in a different manner. A baraita discusses a person who became a hirer entrusted with a piece of land, and the Gemara asks how it is that the laws of bailees apply to land, when land was excluded from the laws of bailees (Shevuot 41a). The Gemara answers:

He said to him: Have you heard anything in this matter? He answered: This is what Rav Sheshet said: Where he acquired it from his hand. And thus also said Rabbi Yochanan: Where he acquired it from his hand. (Bava Metzia 58a)

The Tosafot ask: On 94a, Rabbi Yochanan maintains that the bailee's benefit suffices to validate a stipulation regarding his liability and to change the law in his case. Why then here does he also require a kinyan? They offer two answers:

It may be said that here, where he is exempt even from an oath, he does not assume liability without a kinyan.

Or else there, since he assumes the liability of a borrower, the world thinks that he lent him the object, and with that benefit, he renders himself liable. (ibid. Tosafot, s.v. be-she-kanu)

According to the first answer, in a case of landed property, a person is not defined as a “bailee” at all; therefore, in order to turn him into a bailee, a kinyan is required to create his liability. In contrast, on 94a, the person is already a bailee, and merely wishes to change his status within the system of bailees; therefore, the benefit that he receives suffices for him to assume liability. In the second answer, there is no fundamental difference between the cases, except that from a purely technical point of view, the borrower benefits, whereas the bailee who assumes liability for land does not; therefore, the latter needs a kinyan.

Rabbi Akiva Eiger explains that one of the practical differences between the two answers is whether or not a bailee’s stipulation that he will be liable even in the presence of the owner requires a kinyan:

There is also a difference regarding an unpaid bailee in the presence of the owner who stipulates to be liable like a borrower, for according to the first answer, a kinyan is necessary, whereas according to the second answer, a kinyan is not necessary. (Rabbi Akiva Eiger, ad loc.)

Rabbi Akiva Eiger assumes that when a person borrows an object in the presence of its owner, he is not at all defined as a bailee, and therefore he requires a stipulation with a kinyan, so that the kinyan will create liability and “transform” the person who has the object to be the one responsible for it.

How beautiful are these words when we apply them to the Or Ha-Chaim's spiritual reading of the verse! When God created man, he was not really responsible at all for his actions, because every moment and throughout his life, "its owner is present." But with the acceptance of the mitzvot, God made a stipulation with His creatures. This stipulation changes the essence of the person, and not only the question of whether he will be liable for his actions or exempt. This stipulation, which began at Mount Sinai and ended with an oath at the plains of Moav, makes each and every one of us responsible for our souls and our actions. Prior to this stipulation, God, as it were, worked for us; from then on, we work for Him!

(Translated by David Strauss)


[1] Another practical difference between the different understandings concerns the law of shelichut yad in the case of a bailee in the presence of the owner. See Netivot 291, 34 and Ketzot ha-Choshen 346, 1.

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