פרשת משפטים תשכ"ד - ארבעה שומרים

The Gemara asks: From where are these matters derived? As the Sages taught in a baraita: The verses in the Torah about bailees can be divided into three passages. The first passage (Exodus 22:6–8) is stated about an unpaid bailee; the second (Exodus 22:9–12) is about a paid bailee; and the third (Exodus 22:13–14) is about a borrower.

For every matter of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, whereof one saith: 'This is it,' the cause of both parties shall come before God; he whom God shall condemn shall pay double unto his neighbour.

אשר יאמר כי הוא זה means, according to the literal sense, any article about which the witness will say: “this is the very article” about which you have taken an oath that it has been stolen from you; see, it is actually in your possession! — then the matter of dispute between the two of them shall come before the judges. These shall examine the witnesses, and if they prove to be trustworthy and they (the judges) condemn this bailee, then he has to pay double. If, however, they condemn the witnesses because these are found to be “plotting” witnesses (זוממין) then shall they (the witnesses) pay double to the bailee. Our Rabbis, of blessed memory, however, explained that כי הוא זה tells us that no oath can be imposed upon him (the defendant) except if he admits a part of the other’s claim asserting, “So-and-so much I owe you, and the rest has been stolen from me” (according to this explanation the phrase כי הוא זה is not a statement of the witnesses but that of the bailee himself; i. e. he says, כי הוא זה, “it is this only” that you have to claim and not as much as you say) (Bava Kamma 107b).

the oath of the LORD shall be between them both, to see whether he have not put his hand unto his neighbour’s goods; and the owner thereof shall accept it, and he shall not make restitution.

ולא ישלם AND HE — the bailee — SHALL NOT PAY HIM (the bailor) anything, not even the capital (קרן).

יביאהו עד THEN LET HIM BRING WITNESSES that it has been torn in pieces by accident and he shall be freed from liability.

יביאהו עד, any part of the carcass of the animal which had been devoured by a predator is acceptable as evidence of what had happened to it. We have a verse in Amos 3,12 describing the situation, כאשר יציל הרועה מפי הארי שתי כרעים או בדל רוזן, “as a shepherd rescues from a lion’s jaws two shank bones or the tip of an ear.”

הטרפה לא ישלם HE SHALL NOT PAY THAT WHICH HAS BEEN TORN — It does not say טרפה לא ישלם “one which has been torn he shall not pay for” — but it says “the torn one”, (the one mentioned here, viz., that which was torn without him being able to prevent it). Because there is a torn beast for which he has to pay and a torn beast for which he has not to pay. For an animal torn by a cat, a fox or a marten he has indeed to make restitution; but for one torn by a wolf, a lion, a bear or a serpent he is not liable to pay. But how do you come to make such a distinction (lit., who whispered to you to draw such a conclusion)? Because, you see, it states, “and if it die or be injured, or be captured”. Now what is the characteristic of natural death? One cannot save from it! Thus, also, the injury and the capture must be such that he was unable to save the animal from it (cf. Mekhilta d'Rabbi Yishmael 22:12).

הטרפה לא ישלם HE SHALL NOT PAY THAT WHICH HAS BEEN TORN — It does not say טרפה לא ישלם “one which has been torn he shall not pay for” — but it says “the torn one”, (the one mentioned here, viz., that which was torn without him being able to prevent it). Because there is a torn beast for which he has to pay and a torn beast for which he has not to pay. For an animal torn by a cat, a fox or a marten he has indeed to make restitution; but for one torn by a wolf, a lion, a bear or a serpent he is not liable to pay. But how do you come to make such a distinction (lit., who whispered to you to draw such a conclusion)? Because, you see, it states, “and if it die or be injured, or be captured”. Now what is the characteristic of natural death? One cannot save from it! Thus, also, the injury and the capture must be such that he was unable to save the animal from it (cf. Mekhilta d'Rabbi Yishmael 22:12).

And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof not being with it, he shall surely make restitution.

And if a man borrow aught of his neighbour, and it be hurt, or die, the owner thereof not being with it, he shall surely make restitution.

If the owner thereof be with it, he shall not make it good; if it be a hireling, he loseth his hire.

אם שכיר הוא IF IT BE HIRED — i. e. if the ox has not been borrowed but hired, בא בשכרו THEN IT CAME FOR ITS HIRE into the hand of this hirer and not by way of loan. For he does not get the entire benefit of the transaction since he is using it only because he has paid hire for it and consequently the owner benefits also; therefore the law applicable to a borrower does not apply in his case — that he should be held liable for loss by accident. Scripture, however, does not state explicity what his (the hirer’s) law actually is — whether he has to be treated as the gratuitous bailee (שומר חנם) or as the bailee for payment (שומר שכר), and therefore the Sages in Israel differ in their opinion as to how the hirer (שוכר) has to make restitution. R. Meir says he is responsible only as a gratuitous bailee, whilst R. Judah says, even as a bailee for payment (Bava Metzia 80b).