Exodus 21:1-24:18
A Pastoral Interlude
This week’s reading is full of different rules and regulations: the Hebrew slave who wants to remain a slave; the goring ox; the burning field, and so forth. 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 guardian’s house, if the thief is found, he must pay back double the theft. But if the thief is not found, then the householder (that is, the person 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. To put things in today’s terms: you are about to leave town for a brief vacation and before you leave, you take your valuable stamp collection to my house and ask me to keep an eye on it while you’re gone. I agree. But when you come back, you 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 fine equal to their monetary value—say, $1,000. But if the thief cannot be found, the law says I don’t owe you a penny. All I have to do is 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 liable 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 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 (that is, the animal) was stolen from him, he must pay the owner. (Exod 22:9-11)
This time, you are again going out of town, and you bring your cow to me to watch while you are gone. When you come back, I have some bad news for you; the cow has 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, your cow 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” that were stolen, 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 your cow 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 the cow 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 obligation 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 your cow. 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 the Torah mention that in the second case the guardian is paid, but not in the first. Didn’t the Mishnah just hit upon 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 your cow and take care of her, 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 your cow. We could use the extra milk, and anyway, I already have other cows and the milking equipment they require, as well as plenty of room for the cow in my barn and 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 your cow for free. Then, if she is stolen, the law covering an unpaid guardian applies to me too.