19.4. Laws Concerning Property Damage (21:37–22:14)
(37) When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep. —
(22:1) If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case.
(2) If the sun has risen on him, there is bloodguilt in that case. — He must make restitution; if he lacks the means, he shall be sold for his theft.
(3) But if what he stole — whether ox or ass or sheep — is found alive in his possession, he shall pay double.
(4) When a man lets his livestock loose to graze in another’s land, and so allows a field or a vineyard to be grazed bare, he must make restitution for the impairment of that field or vineyard.
(5) When a fire is started and spreads to thorns, so that stacked, standing, or growing grain is consumed, he who started the fire must make restitution.
(6) When a man gives money or goods to another for safekeeping, and they are stolen from the man’s house — if the thief is caught, he shall pay double;
(7) if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other’s property.
(8) In all charges of misappropriation — pertaining to an ox, an ass, a sheep, a garment, or any other loss, whereof one party alleges, “This is it” — the case of both parties shall come before God: he whom God declares guilty shall pay double to the other.
(9) When a man gives to another an ass, an ox, a sheep or any other animal to guard, and it dies or is injured or is carried off, with no witness about,
(10) an oath before the Lord shall decide between the two of them that the one has not laid hands on the property of the other; the owner must acquiesce, and no restitution shall be made.
(11) But if [the animal] was stolen from him, he shall make restitution to its owner.
(12) If it was torn by beasts, he shall bring it as evidence; he need not replace what has been torn by beasts.
(13) When a man borrows [an animal] from another and it dies or is injured, its owner not being with it, he must make restitution.
(14) If its owner was with it, no restitution need be made; but if it was hired, he is entitled to the hire.
(37) When a man steals an ox or a sheep, and slaughters it or sells it: This is a serious crime. It is easy to steal such animals, because they themselves often go missing, and a shepherd cannot always keep track of each one individually. According to the Code of Hammurabi, theft of cattle incurs the death penalty (this was the law in many European countries even as late as the nineteenth century). The Torah, however, never imposes the death penalty for damage to property, but only requires that restitution be made in multiples of twice, four, or five times the value of the stolen item.
He shall pay five oxen for the ox, and four sheep for the sheep: An ox performs useful work on the farm. The thief, by stealing the ox, has deprived the owner of that work potential, and must therefore pay more substantial compensation for the theft.
(22:1) If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case: When a thief enters another’s home stealthily, it is assumed that he is prepared even to kill if he deems it necessary. Thus, killing such a thief is considered an act of self-defense.
(2) If the sun has risen on him, there is bloodguilt in that case: Tradition understands this phrase not literally (i.e., the incident occurs during daylight hours), but metaphorically: If it is clear as day to you that the burglar has no violent intent, then ipso facto there is no justification for killing him.
He must make restitution; if he lacks the means, he shall be sold for his theft: This is the only situation in which it is permitted to sell a Jew into slavery (and only to another Jew), namely: In order to pay compensation for a theft he has committed. As we have noted (§19.2), the legislation in the opening passage of this Mishpatim portion concerned just this kind of slave.
(3) But if what he stole — whether ox or ass or sheep — is found alive in his possession, he shall pay double: But at 21:37 above (“When a man steals an ox or a sheep, and slaughters it or sells it”), payment was set at four or five times the value of the stolen animal. In that case the thief had already managed to dispose of the goods, making it more difficult to apprehend him. The penalty imposed was therefore more severe.
(4) When a man lets his livestock loose to graze in another’s land, and so allows a field or a vineyard to be grazed bare, he must make restitution for the impairment of that field or vineyard: The literal translation is: “Of the best of his own field, and of the best of his own vineyard, shall he make restitution.” Even if it was not the best field or the best vineyard that suffered damage, the guilty party must nonetheless pay from his best. Such is the price of negligence.
(5) When a fire is started and spreads to thorns: In the situation being described here, a person kindled fire lawfully and with thoroughly constructive intentions in his own field, but the fire then went out of control and spread to a neighboring field.
So that stacked, standing, or growing grain is consumed: The literal translation is: “… so that the shocks of corn, or the standing corn, or the field are consumed.” In case one might be wondering how the field itself (apart from its produce already mentioned) can be consumed, the Talmud explains: The fire scorched the plowed soil, so that it hardened, and it was necessary to plow it yet again.
He who started the fire must make restitution: In any circumstances where a person creates a potentially hazardous situation, which then – even if contrary to normal, reasonable expectations – goes out of control, he is considered guilty of criminal negligence.
(6) When a man gives money or goods to another for safekeeping: The Torah identifies several different situations of bailment (i.e., when chattel or cattle belonging to one party are kept in the possession of another).
The halachah distinguishes four cases of bailment, depending on whether the item is in the bailee’s possession primarily for his own benefit or for the benefit of the bailor, and whether or not compensation is being paid in exchange for the benefit received. Thus, there are four kinds of guardians: an unpaid guardian, a paid guardian, a borrower, and a hirer (Mishnah Baba Metzia 7:8).
In each case the bailee incurs a different level of responsibility for the item in his safekeeping, depending on the aforementioned factors.
The general principle is that having less benefit from a situation likewise implies a lower level of responsibility. And conversely, with greater profit comes commensurately greater responsibility.
A person who agrees to store and guard another’s property at no charge bears only limited liability for the item, while one who undertakes to store or guard for a fee – or, all the more so, if he takes the item into his possession for his own use – his legal liability for the safety of the item must naturally be greater.
And they are stolen from the man’s house — if the thief is caught, he shall pay double: Double restitution is the standard penalty imposed by the Torah for theft.
(7) if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other’s property: The bailee in this case, who agrees to keep his neighbor’s belongings free of charge, renders him a service thereby, which therefore limits his liability. If the item disappears, an oath is sufficient to absolve him.
That he has not laid hands: This oath can be understood as “I don’t have the item hidden in my own position,” and/or “I have not made personal use of the item improperly, or in a manner that exceeded the terms of my agreement with the bailor.”
In the event that the bailee has in fact violated the terms of the agreement, his level of responsibility increases, and he is held liable for the loss.
(8) In all charges of misappropriation … he whom God declares guilty shall pay double to the other: In view of the sequence of these verses, Tradition believes that this verse is a continuation of the previous situation. Thus, if the bailee swears that he has not “laid hands” on his neighbor’s possession, but new circumstances are then discovered, such that the court, based on testimony of credible witnesses, concludes that the bailee has sworn falsely – this too is held equivalent to theft, and likewise carries the penalty of double restitution.
(9) When a man gives to another an ass, an ox, a sheep or any other animal to guard: The previous passages involved simple storage of money or inanimate articles whose state remains constant during storage, while the discussion here concerns living animals that need to be fed and cared for.
Accordingly, the Tradition understands this as an instance of a paid guardian, who is compensated for the storage services he provides, which in this case include feeding and caring for the animals left in his charge.
(9-11) And it dies or is injured or is carried off, with no witness about, an oath before the Lord shall decide between the two of them … and no restitution shall be made. But if [the animal] was stolen from him, he shall make restitution to its owner: A bailee who receives a fee for his storage services is a “paid guardian,” who must exercise additional care to safeguard the item left in his possession. If it is stolen, he is deemed to have fallen short of that obligation, and is held liable to replace it.
Conversely, however, in the case of an unforeseen mishap – e.g., the animal dies a natural death, or is attacked and mutilated by a wild beast, or is taken by force by robbers – but there are no witnesses, the bailee must only swear that he has not “laid hands” on the item or been negligent with its care, and he is then exempted from all liability.
An oath before the Lord shall decide between the two of them: A commonly held religious belief system is the foundation of mutual trust in Jewish society.
(12) If it was torn by beasts, he shall bring it as evidence; he need not replace what has been torn by beasts: If there are remains, i.e., the unforeseen (and therefore unpreventable) circumstances are confirmed by material evidence, then he need not even take an oath.
(13) When a man borrows [an animal] from another and it dies or is injured, its owner not being with it, he must make restitution: This is the third case. Because the bailee borrowed the item to use it free of charge, he is liable even for unpreventable situations of damage.
(14) If its owner was with it, no restitution need be made: If the owner of the animal is present, then he is deemed to have not actually given it to his neighbor for use, but is simply working with his own animal, while giving the other the results of its labors (and not the animal itself). In this situation, the responsibility to safeguard the animal remains with its owner, and even a “borrower” (who pays no fee) is not held liable.
But if it was hired, he is entitled to the hire: This is the last of the four cases. The owner of the animal lends it to his neighbor not as a favor, but in exchange for a fee. In this case, the fee is deemed to include “insurance coverage” for accidents, and if there is such an occurrence, the owner of the animal does not receive compensation.