Watching for Free

 

 

This week’s reading is full of different rules and regulations: the Hebrew slave who wants to remain a slave; a pregnant woman onlooker at a brawl who is accidentally struck by one of the fighters; and of course the goring ox, the open pit, the chomping livestock, and the burning field. Some of these cases seem far from our concerns today, but one of the most cited ones concerns a rather normal situation, one that might arise at any time:

If a person gives money or valuables to his fellow for safekeeping, and they are subsequently stolen from the man’s house, if the thief is found, he must pay back double. But if the thief is not found, then the householder [in whose house the money or valuables were deposited] goes before the judges and swears that he has not laid his hands on the other man’s property. (Exod 22:6-7)

 

The case is quite straightforward. You are about to leave for a brief vacation in Eilat. Before you leave, you take your valuable stamp collection (worth $1,000) to my house and ask me to keep an eye on it while you’re gone. I agree. But when you come back, I discover that your stamps are missing. “I guess some thief must have snuck in and taken them,” I say.

 

The next day, the thief is found. According to this law, the thief has to return the stolen items and then pay an additional amount equal to their monetary value—in this case, $1,000. (If the stamps cannot be retrieved, he has to pay for their replacement plus the fine, that is, a total of $2,000.) But if the thief cannot be found, then I can go to court and swear that I had nothing to do with the robbery. The passage continues:

 

In any such criminal matter—whether it involves an ox, a donkey, a sheep, a garment, or any [similar] case of a loss in which it is claimed that “it is like this [that is, like the case of stolen money or valuables]”—the claims of both parties are to go straight to the judges; whoever they find guilty must pay double to his fellow. (Exod 22:8)

Simple enough in the case of your stamp collection. But immediately after this passage comes another, rather similar situation:

 

If a person gives to his fellow a donkey, or an ox, or a sheep, or any other animal to watch, and it dies, or is injured, or is carried off by the authorities, but there is no witness; then an oath is to be sworn before the Lord between the two of them, to the effect that the one has not laid his hands on the other’s property. The owner must accept this, and no repayment is made. But if it [the animal] was stolen from him, he must pay the owner. (Exod 22:9-11)

 

This time, you are again going to Eilat, and you bring your cow Bossie to me to watch while you are gone. When you come back, I’m afraid I have some bad news; Bossie died—I don’t know how, or why, and there were no witnesses—but she’s just dead. If I swear an oath to that effect, then I owe you nothing. If, however, Bossie was stolen, then I have to pay you her full market value.

 

This law and the previous one seem to be saying the same thing, except for one difference: the first law says that if the item is stolen, I can take an oath and not pay, while the second says that in the case of theft, I have to pay for the missing item. What’s the difference between the two cases?

 

The answer seems simple enough: the first case concerns “money or valuables,” the second is talking about animals. For some reason—it doesn’t really matter what—the law is different depending on the thing being safeguarded. If your stamp collection is stolen, I can get off with an oath, but if Bossie is stolen, I have to pay.

 

There’s only one trouble with this explanation. While the first law started off by talking about “money or valuables,” it went on to say that it applied as well to the theft of “an ox, a donkey, a sheep, a garment, or any [similar] case of a loss.” So, while law #1 says that I don’t have to pay if Bossie is stolen, law #2 says I do—and this in two adjacent passages!

 

The contradiction is resolved in the Mishnah (Baba Metz. 7:8, Sheb. 8:1). The difference between the two cases has to do not with the item stolen, but with my role as guardian. In law #1, I am guarding your property for free: you asked me to keep an eye on your stamps, and I agreed. In law #2, you actually hired me to watch Bossie. As a hired guardian, I have a higher level of responsibility, so if she gets stolen, I have to pay. Contradiction resolved.

 

All this is well and good, but an obvious question arises: Why didn’t the Torah ever say it was talking about two different types of guardians? Nowhere does it mention that in the second case the guardian is paid, but not in the first. Didn’t the Mishnah just come up with a clever way of resolving an obvious contradiction?

 

Not at all: the two different types of guardians are implied by the way the two cases are presented. When someone is asked to guard “money or valuables,” not much is required. I take your stamp collection and put it up in the attic and forget about it. This favor requires zero effort on my part—so of course I’m not going to ask for payment. But if you want me to watch Bossie, then I’m going to have to feed her and milk her and put her out to pasture and keep an eye on her while she’s there. All this costs me time and money, so normally I would have to charge for such a service. In other words, the way each law begins—the first mentioning “money or valuables” and the second “an ox, a donkey,” and so forth—is really a clue as to the nature of the guardian.

 

But if so, then why does law #1 go on to say that it applies as well to “an ox, a donkey, a sheep,” and so forth? Simple. Suppose I actually want to guard Bossie. We could use the extra milk, and anyway, I already have other cows and the milking equipment they require, plus room for Bossie in the barn and in my fields, which I’d have to keep an eye on in any case—and in addition to this, you’re my brother-in-law to whom I owe a favor or two. So I volunteer to watch Bossie for free. Then, if she is stolen, the law covering an unpaid guardian applies to me too.

 

Shabbat shalom!