PARASHAT HASHAVUA
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This parasha series is dedicated
Le-zekher Nishmat HaRabanit Chana bat HaRav Yehuda Zelig zt"l.
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This parasha series is dedicated
in honor of Rabbi Menachem Leibtag and Rabbi Elchanan Samet.
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PARASHAT MISHPATIM
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Types of Guardianship
By Rav Yehuda Rock

The wording of the verses in the units dealing with the various types of guardians (shomrim) is difficult to understand. Moreover, as we shall see, the order and structure of these units are not simple, either. In this shiur we shall attempt to understand the content of these units and the messages that they convey.

There are three textual units pertaining to guardianship (Shemot 22:6-14). We will be focusing mainly on the first two, but let us begin by reviewing the text of all three:

a. If a person gives to his neighbor some money or vessels to keep, and it is stolen from the man's house, then if the thief is found – he pays double.
If the thief is not found, then the owner of the house is brought to the judges, (to swear) that he did not put forth his hand to his neighbor's goods.
Concerning any matter of transgression, whether it involves an ox, or a donkey, or a sheep, or a garment – for any lost thing concerning which one can say, 'This is it' – both parties shall present their case to the judges. Whomever the judges convict, will pay double to his neighbor.

b. If a person gives his neighbor a donkey or an ox or a sheep, or any sort of animal, to keep, and it dies, or is injured, or is taken away, unseen, then God's oath shall be between the two of them, that neither put forth his hand to his neighbor's goods. And the owner shall accept (yikach – literally, take) this, and (the guardian) shall not pay.  But if it is stolen from him, then he shall pay its owner.

c. And if a person borrows (some animal) from his neighbor, and it is injured, or dies – its owner not being with it – then he shall surely make restitution.
If its owner was with it – he shall not pay. If it is a hired thing, then it is covered by his wages.

In halakha, these three cases are known, respectively, as the "guardian for free," the "paid guardian," and the "borrower."

In terms of the main laws that cover the first two units, the most obvious difference is that the second case requires the guardian from whom the object was stolen (verse 11) to pay the owner, while the first unit exempts him as soon as it is clear that the guardian himself is not responsible for the disappearance of the object (verse 7). The halakha bases this discrepancy on the payment conditions of the guardian: a guardian for free, who is performing a favor for the owner of the object, is exempt in the event of the object being stolen. A paid guardian, on the other hand, for whom the task of taking care of the object is part of a bi-lateral deal, is obligated to make restitution in the event of theft.

The terms "guardian for free" and "paid guardian" are not mentioned in the verses. They are later terms that are employed by Chazal in their discussions. What, then, is the basis for the differentiation?

Rashbam explains that, on the literal level of the verses, the difference between the first two instances concerns not the question of payment to the guardian, but rather the sort of object that is being kept. The first unit speaks about "money or vessels" – i.e., movable assets, while the second unit deals with a "donkey or ox or sheep or any sort of animal."

Rashbam explains that the discrepancy in the respective levels of responsibility arises from the differing expectations associated with the types of objects that are given to someone for safekeeping. Money or vessels are usually kept inside the house; hence, the owner expects merely that the guardian will place the object in his house, together with his own belongings. Even if the object is stolen from the house, the guardian did what was expected of him; he was not delinquent in his guardianship, and he is exempt from making restitution. In contrast, when it comes to taking care of animals, which are kept outside, the owner's expectation is that his animal will be protected from thieves. If the animal is stolen, the guardian has been negligent in his role, and he is required to pay.

If we accept Rashbam's interpretation, it becomes difficult to explain fully the discrepancy between the Written Law (which discusses money and vessels as opposed to animals) and the Oral Law (which discusses "guardianship for free" as opposed to "paid guardianship") in this regard. Admittedly, we might explain the law concerning a paid guardian as being dependent on the expectations (the concept introduced by Rashbam) that come with payment (as suggested by Ramban, commenting on Bava Metzia 42a, and in opposition to the opinion of Tosfot ad loc.). Thus, both the Written Law and the Oral Law would be making the obligation of restitution in the case of theft dependent on the owner's expectations with regard to the guardianship. However, while the Written Law bases those expectations on the type of object that is being handed over for safekeeping, halakha (the Oral Law) bases them on the nature of the business agreement between the owner and the guardian.

In contrast to Rashbam, Ramban (in his usual fashion) reads the verses in a way that is not immediately transposed into the formulation of the Oral Law, but which does create a defined link between the literal meaning of the verses and the halakha. Ramban explains that movable property is usually taken for safekeeping for free, while animals are given over to the charge of shepherds, for payment. A person who needs some object to be kept safely will approach his neighbor or relative and ask him to keep it for him. If it is animal that he needs taken care of, he will generally hire the services of a shepherd. We may add to this view of the Ramban that what leads to the social reality that he describes is actually the phenomenon noted by Rashbam: since movable property is kept inside the house, it is easy to ask a neighbor or a relative, as a favor, to keep some object in his house. The same cannot be said of taking care of an animal. This requires that a person frequently go out of his house, plus all the activities required to take care of the animal. For this reason, it is appropriate that the owner hire a shepherd. To Ramban's view, however, this point may be of sociological interest, but for the purposes of clarifying the verses and understanding the halakha, what interests us is the actual social phenomenon of movable property being kept for free, while animals are usually kept for payment.

Thus, the discrepancy between the Written Law and the Oral Law reflects a process of formalization. The Written Law "speaks in the present": it sets forth the laws in instances and actions taken from the social reality, in a way that expresses halakhic significance. The Oral Law, on the other hand, presents clear-cut laws and precise definitions, providing their exact conditions. The Oral Law takes a practical, illustrative description transforms it into a formal legal entity.

In the context of our parasha, the instance of "money or vessels" is depicted within a social context that is easily identified as an instance of guardianship for free, while the case of "any type of animal" serves as an example of paid guardianship. In other words, the Torah provides familiar examples that are familiar from the existing social reality, without explicitly noting the relevant legal condition that defines each instance. The Oral Law sets the laws upon the relevant formal, legal foundations.

Let us continue with our comparison between the first two units. Each describes a case in which the guardian is exempt from making restitution: in the first unit, he is exempt in the event of theft; in the second unit, he is exempt in the event that he had no control over what happened ("died or was injured or was taken away"). In both instances we are told that it is necessary to first rule out the possibility of the guardian himself having "put forth his hand to his neighbor's goods." However, there is a significant difference between the two units in the description of the manner of the investigation. The second unit explicitly speaks of an oath: "God's oath shall be between them." In the first unit, we read: "The owner of the house (i.e., the guardian) shall be brought to the judges…." Chazal deduce that "shall be brought" means "in order to make an oath" (Bava Metzia 41b), and the commentators interpret the phrase accordingly. However, the wording of the second unit gives rise to the question: if the Torah is able to refer to an oath as such, then why does it use different language in the first unit, if the intention is the same?

Apparently, the answer to this question lies in the difference between the two sorts of cases. In the first case, the guardian claims that the item was stolen. The item is not present; it may be sought at the hands of the guardian. If the stolen item turns up at the guardian, and witnesses testify that the item is indeed the stolen object, then we know that the guardian himself "put forth his hand" to his neighbor's property, and he is the thief.
 
The second case is different. Here, the animal "died or was injured or was taken away, unseen." At least if the animal "died or was injured," we have the animal in front of us, either dead or injured. (The word "nishba," translated here as "taken away," may also be understood as meaning "struck").  This being the case, there is no point in searching the guardian's premises or person; likewise, there are no witnesses to what happened. Therefore, Beit Din and the plaintiff can only rely on the word of the guardian himself: "God's oath shall be between them."

According to this explanation, the oath itself is equally relevant in both cases, but the Torah makes note of it only in the unit where there is no possibility for making any clearer enquiries. Thus it is clear why the halakha stipulates that in the absence of any clear testimony, even a guardian for free is required to make an oath in the event of theft.

This explanation explains the use of the expression, "The owner shall accept (take) this." Rashi and Rashbam understand the phrase as meaning that the owner "accepts" the oath, but there is no linguistic basis for the "taking" of an oath in this sense. The interpretation offered by Ibn Ezra, in his short commentary, is that in such a case of harm to the animal, and the animal is physically present, the owner has the rights to ("takes," or "accepts") the carcass.

In each of the two units there is one verse that we have not yet explained. Let us first address the second unit, which is a simpler matter: "If it is torn to pieces, then he (or "it") shall be brought as evidence; he shall not make restitution for that which was torn" (12). The most plausible interpretation of this verse arises from the opinion of Abba Shaul in the Mekhilta de-Rabbi Shimon Bar Yochai, and also from Ibn Ezra: if the animal is torn, then the torn carcass itself is brought as evidence. Then, and only then, the guardian is exempt from payment. In other words, if the guardian claims that the animal was torn devoured and nothing remains of it, his claim is not accepted. The assumption is that there is always some evidence that would remain, and so that guardian is required to bring whatever remains of the carcass.

As noted, our discussion here focuses on the first two out of the three textual units concerning guardianship. Out of this selection, the only verse that remains for us to explain is verse 8: "Concerning any matter of transgression, whether it involves an ox, or a donkey, or a sheep, or a garment – for any lost thing concerning which one can say, 'This is it' – both parties shall present their case to the judges. Whomever the judges convict, will be double to his neighbor." This is the most difficult verse to understand. However, an understanding of it also opens the door to a new understanding of the order and structure of both units in their entirety.

The only thing that is clear from this verse is that there is a plaintiff and a defendant, and a clarification that is undertaken by Beit Din (the "judges"), and that in the case of a conviction, the guilty party must pay double – like a thief. But what is the case under discussion? What is the meaning of the phrase, "Concerning any matter of transgression"? And how are we to understand the definition of "Concerning which one can say, 'This is it'"?

Aside from the verse's linguistic difficulties, it also presents another problem. We demonstrated above that the main difference between this first unit is the item involved: "money or vessels," as opposed to animals. In verse 8, however, the only "vessel" that is mentioned is the "garment," while the verse explicitly mentions animals! Even if the instance concerning "money or vessels" in the first unit is significant as an example of guardianship for free, and that the halakhic category is actually one of a guardian for free, as Ramban maintains, nevertheless – since the Torah chooses to illustrate the laws through a depiction of guardianship of movable property, in contrast to guardianship of livestock in the second unit, this is the instance that is being discussed here, and it is not clear how this verse deviates from this framework.

We must also ask why the instance that is being described in this verse does not begin with the word "im" (if), in keeping with the detailing of the instances in these units.

Rashi understands the phrase "concerning any matter of transgression" as referring to a situation in which it is found that the guardian himself, who had claimed that the item was stolen from him, was himself responsible for the theft. "Concerning which one can say, 'This is it'" refers to the witness, who identifies an item within the guardian's domain as the item that was handed over by the owner for safekeeping. In this case, where the guardian is found to have stolen the item, he is required to pay double.

In practice, this law is implemented only where the guardian actually swears that the item was stolen from him, and thereafter it is found that he lied in his oath (Bava Kama 63). Rashi cites here the teaching of Chazal that the owner "being brought to the judges," mentioned in the previous verse, refers to the oath. Only after this precondition is fulfilled will a conviction of the guardian for theft entail double restitution. Apparently, the obligation of paying double is actually the fine for the theft, but since this theft was carried out in a passive way, without an actual act of theft, it is only through the oath that it comes to be defined this way.

Rashi's interpretation is problematic from an exegetical point of view. Firstly, the generalization "concerning any matter of transgression" is unintelligible, in terms of his approach. Secondly, contrary to what the structure of the verse would seem to suggest, he does not view the details – "an ox, or a donkey, or a sheep, or a garment" – as elaborating on the general statement "concerning any matter of transgression," since "concerning any matter of transgression" means that the punishment for theft perpetrated by the guardian is double restitution, while "for an ox…" means that the transgression of theft perpetrated by the guardian concerns the animal or item. Rashi's explanation also fails to answer our questions: why are animals listed here if the subject of this unit is movable property, and why does the verse not start with the word "im" (if)?

Ibn Ezra (in his long commentary, in the name of Yeshua ha-Karai) explains that the word "pasha" (translated here as "transgression") can also mean removal of an item from its domain, as in, "Edom revolted (va-yifsha) (or seceded) from under the hand of Yehuda" (II Melakhim 8:22). In light of this, the elaboration "an ox…" etc. may indeed be viewed as a detailing or elaboration of the phrase, "Concerning any matter of transgression" – i.e., any item that is lost, whether it be an ox, a donkey, etc.

Ibn Ezra explains the verse in a similar manner to Rashi: the guardian claims that the item was lost, but witnesses them come and testify that the item is being held by him. Ibn Ezra, like Rashi, fails to solve the problems that we raised: what is the list of animals doing here, if the subject of the verse is movable property, and why does the verse not start with "im." His explanation also raises a new problem: it suggests that the guardian is obligated to pay double for lying in his claim that the item was lost (and not only for theft), which contradicts the halakha (Bava Kama 63).

It would seem that we must agree with the assertion that "concerning which one may say, 'This is it'" refers to the item being identified. However, the verse does not mean (only) that there are actually witnesses who identify it, but rather that the item is the sort of thing that can in fact be identified. An animal is different from money or vessels in that each is unique and may be identified. Likewise, an animal does not remain hidden inside the house; rather, it stays outside, and may be individually identified. A garment is likewise special, in relation to other "vessels," in that it is worn externally and may therefore be individually identified.

Accordingly, the verse would appear not to be speaking about the guardian at all (since in the case of the animal, he is liable in the case of theft or loss, and how does it fit in here that the guardian exempts himself by claiming theft or loss – and in any case, that should appear in the next unit rather than here). Rather, it is talking about the owner who identifies his lost item (which was stolen from him) within someone else's domain. The verse comes to tell us that an item that was removed ("pasha") from the hand of its owner – i.e., lost (without any thief being found), and it is an item that may be identified, such as an animal or a garment, then if through identification of the item by another person Beit Din comes to convict that person of stealing the item (by bringing testimony that identifies the item and its location within the domain of the thief), then he is obligated to pay double.

Thus, verse 8 actually does not belong to the laws of guardianship at all. It does not begin with the word "if" because it is not providing a further detail in the laws of guardianship of movable property, and it does not maintain the division between movable property and animals because it is fundamentally not connected to the system of laws of guardianship that creates these categories. We must therefore explain why the verse appears here, in between the two units concerning guardians.

The units here appear to have two separate themes. One theme – the more dominant one – describes the various levels of liability pertaining to different types of guardians. A guardian of movable property is exempt in the event of theft; the guardian of an animal is liable in the event of theft; a borrower is liable even in the event of events completely out of his control (the death of the animal, for instance) if the owner is not with it. The second theme is a description of the various ways of tracking down thieves. This theme appears here as a continuation of the preceding unit, which discusses thieves (21:37-22:3). The Torah stipulates that a thief must pay double, with a view to deterring society from theft. Theft, which is carried out in secret, hidden from the eyes of society, requires positive action in order to banish the phenomenon.

Fining the thief double, or four or five times (as specified in the unit on thieves) is an important device within the framework of this social endeavor, but the Torah goes further and points to the different ways in which thieves may be discovered. First, the Torah describes one way of catching a thief: after he has stolen an animal, in secret, he will want to make profit from it, and will therefore slaughter or sell it (21:37). In such a case, it becomes known in the marketplace that that person has an animal, and it may be identified as the stolen animal. The second possibility is to catch the thief in the act: "If the thief is found breaking in… then if the sun has risen on him…" (22:1-2).

Verse 3 – "If the theft is found with him, alive, whether it be an ox or a donkey or a sheep, he shall pay double" – is not telling us how to find a thief, but rather is setting forth the law pertaining to him. This case is depicted as a contrast to the law in the case of the animal having been slaughtered or sold. In the event that the animal is still present and alive, the thief is liable to pay double (and not four or five times).

The third case that describes a way of catching a thief occurs in our unit under discussion. The law concerning a guardian, in verses 6-7, does not suffice with a stipulation of the level of responsibility of a guardian of movable property, who is exempt if the item is stolen from him. The verse emphasizes the need to inquire and investigate whether the item is actually located in the domain of the guardian himself. "Then the owner of the house is brought to the judges, (to swear) that he did not put forth his hand to his neighbor's goods." A guardian who claims that the item was stolen from him is the first suspect. Usually it is difficult to locate a thief, because the theft takes place under cover, and there is usually no particular person who can be interrogated or searched. However, there is one case where there is a prime suspect who may be questioned: the case of a guardian, who does not bring the object before the judges, but rather claims that it was stolen from him.

Thereafter the Torah comes to the final method for locating a thief: when the type of item involved is something that may be identified, which usually means something that is outside of the house – such as an animal or a garment – then it is sometimes possible simply to see and identify the object. This is the instance described in verse 8: "Concerning any matter of transgression – whether it involves an ox, or a donkey, or a sheep, or a garment – for any lost thing concerning which one can say, 'This is it' – both parties shall present their case to the judges. Whoever the judges convict, will be double to his neighbor."
 
The meeting point of the two themes is the instance of the guardian of movable property. The law here specifies the responsibility of the guardian (the guardian of movable property is exempt if the item is stolen), as well as guidance as to locating the thief (if an item disappears while in the safekeeping of a guardian, the guardian himself comes under suspicion, and the item should be sought within his domain). The two themes include additional instances which should come after the case of the guardian of movable property. The Torah chooses to set down first the final instance illustrating the theme of locating thieves, and only afterwards to continue with the rest of the laws of guardianship.

Translated by Kaeren Fish

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