Commentary for Exodus 22:6

וגנב מבית האיש AND IT BE STOLEN OUT OF THE MAN’S HOUSE — i. e. according to his statement),

IF A MAN DELIVER UNTO HIS NEIGHBOR MONEY OR VESSELS TO KEEP. This section [Verses 6-8] speaks of an unpaid guardian, therefore He has freed him from payment in case the money or vessels are lost or stolen, as is the Tradition of our Rabbis.²⁰⁹Baba Metzia 94b. Scripture mentioned it without specifying what the case is because those who guard money or vessels generally do so without reward. The second section [Verses 9-12] speaking of a paid guardian mentions an ass, or an ox, or a sheep, or any beast,²¹⁰Verse 9. because it is the customary way to give over cattle into the hands of shepherds who pasture them for payment.

כסף או כלים, examples of the items most commonly entrusted to one’s neighbour for safekeeping during the owner’s absence from his home. These are looked after on a reciprocal basis, no fee being charged for this service.

כי יתן איש אל רעהו כסף, If a man deliver money to his neighbour (to keep), etc. Our sages in Baba Metzia 94 understood this passage as speaking of a שומר חנם, a trustee who does not get compensation for his trouble. As such he is not liable in the event the item on deposit with him was either stolen or lost. The sages there consider such a trustee as guilty of rendering an oath concerning any kind of misconduct a trustee could have committed. I do not know whence the sages derive their conclusion. The Torah obligated said trustee to swear that he had not been negligent in guarding the item properly against theft or disappearnce. Having sworn this oath he is free of any further liability. Rashi, (folio 95) in his commentary on the case of someone who borrows a neighbour's tools or beasts (without paying for the use) and who was guilty of some form of abuse, writes as follows in his introduction to the discussion of a שומר חנם. "The Torah deals with a situation where a wrong was committed, seeing the Torah uses the expression על כל דבר פשע in connection with the oath to be rendered." Whence does Rashi conclude that verse 6 speaks of a שומר חנם? Perhaps Rashi's reasoning is that the fact that verse 6 describes items such as money or utensils which normally do not require any special supervision seeing that they do not move about. It is likely that these are the items which a neighbour would undertake to guard without compensation. In verse 9, however, the Torah chooses as its examples such animals as a donkey, an ox, etc., animals which require much more supervision, something that one cannot expect from one's neighbour unless one pays him for his troubles.

כי יתן איש אל רעהו כסף או כלים, in this paragraph the Torah releases the guardian of responsibility for loss by natural causes or thievery when the custodian in question does not receive compensation for his looking after the items in question. In the second paragraph the custodian of whom the Torah speaks is a שומר שכר, a paid trustee. According to the plain meaning of the text, in the first paragraph the Torah speaks of chattels which are to be kept in the house of the trustee just as his own chattels. He is supposed to treat them with no less care than he treats his own chattels. This is why if they were stolen from his house he is free from responsibility, as he had guarded them as well as he guards his own property. In the second paragraph the Torah lists as examples of what had been given to the trustee animals, objects requiring to be tended, to be fed, etc. Moreover, such animals are usually grazing in the pasture and not under the constant supervision of their owners. If the trustee undertook to look after them, something involving a lot of attention and time, he would not do this unless he would receive compensation for such an undertaking. Seeing the trustee is being paid, he is liable for restitution if any of these animals are stolen while under his care.

כי יתן איש אל רעהו כסף או כלים, “When a man entrusts his neighbour with silver or chattels for safe-keeping;” the first paragraph in this sequence deals with someone who does not receive compensation for looking after his friend’s valuables in his own house. The reason why the Torah singled out money or vessels is that these are the most common items a person asks his neighbour to keep for him during his absence from home. The next paragraph deals with a situation where the guardian of his friend’s property is compensated for his trouble. This is why the Torah chose domestic animals as the example of what is to be guarded, as these require time-consuming care, not like money or vessels. It may therefore be presumed that the owner offered to compensate his neighbour for his trouble.

According to his own testimony. Rashi, [in explaining that the theft is not an established fact,] is answering the question: But it says afterwards (v. 7), “He must come before the judges [to swear]” — [and why should he swear, if we already know?] Furthermore, how could Chazal say that “If the thief is not found,” it means that the watchman stole it himself? Yet here it says, “And they are stolen,” apparently meaning that they were surely stolen. [Therefore Rashi explains that this is not an established fact; rather it is the watchman’s claim.]

V. 6. Mit VV. 6—14 betreten wir das Gebiet der aus freiwillig übernommenen Verpflichtungen resultierenden Rechtsfolgen. Vier Rechtsverhältnisse werden entwickelt: שומר חנם ,שומר שכר ,שוכר ,שואל: der unbezahlte Hüter, der bezahlte Hüter, der Mieter, der Anleiher von Sachen. In den Problemen, an welchen der Text diese Rechtsverhältnisse entwickelt, und in den darüber ausgesprochenen Bestimmungen sind zugleich folgenreiche Grundsätze des zivilrechtlichen Prozesses überhaupt niedergelegt.

כסף או כלים לשמור, “money or chattels for safekeeping.” Rashi here states that in this verse the Torah speaks of a shomer chinom, of a friend or relative who undertook this task without charging a fee. The logic is that when you undertake to look after such things as money or inert chattels, no additional labour or expense is involved by the party under whose care this service is performed. He simply stores these items in the same place where he stores his own valuables. This is why, if they were stolen or lost, the keeper is not held responsible as he had given them the same attention as he had given to his own valuables.

אם ימצה הגנב ישלם IF THE THIEF BE FOUND HE — the thief — SHALL PAY שנים DOUBLE to the owner (to the bailor not to the bailee) (Bava Kamma 63b).

AND IT BE STOLEN OUT OF THE MAN’S HOUSE. Rashi explained it as meaning that it was stolen out of the man’s house “according to his statement,” meaning that this is what the unpaid guardian claims.²¹¹It cannot mean that it was admittedly stolen, for then how could Scripture say in the next verse that if the thief was not found, the guardian must swear, since it is admitted that it was stolen from him? Hence the verse must mean that he claims it was stolen. Scholars have brought parallel cases in Scripture [as proof to Rashi’s explanation]. Thus: If there arise in the midst of thee a prophet;²¹²Deuteronomy 13:2. The case there speaks of a false prophet. The term “prophet” must therefore be understood as “one who claims to be a prophet.” Hananiah the son of Azzur the prophet,²¹³Jeremiah 28:1. [The reasoning is as in the previous Note.] for he is not referred to by that epithet [“prophet”] as a true description, but only because he claimed to be so. But there is no need for this. For Scripture is stating that if it was really stolen out of the man’s house and the thief be found, he shall pay double; and if the thief be not found,²¹⁴Verse 7. they shall come to court and the guardian shall swear concerning the stolen article whether he have not put his hand unto his neighbor’s goods,²¹⁴Verse 7. and he whom the court condemns as the thief of this article shall pay double,²¹⁵Verse 8. as the court will not convict anyone and make him pay double unless he stole it, since the law of twofold restitution applies only to a thief, as He said above, If the theft be found in his hand alive… he shall pay double.²¹⁶Verse 3.

אל רעהו, to his neighbour, etc. Our sages in Baba Metzia 56 understand this word as excluding a situation where the item was deposited with the Temple Treasurer for safe-keeping. The reason that such a Temple treasury is not liable for any damages is that there is no time when G'd Himself does not supervise everything entrusted to the Temple treasury. Requiring confirmation by an oath would be most inappropriate then.

Wie aus dem Text erhellt, sprechen VV. 6 —8 von einem Hüter, der nicht für Diebstahl einzustehen hat. פטור בגנבה, VV. 9 —12 jedoch von einem Hüter, der auch was ihm gestohlen wird zu ersetzen hat, חייב בגנבה, und nur ersatzfrei ist, wenn der Gegenstand in von ihm unmöglich zu verhütender Weise zu Grunde gegangen, פטור באונסין, er ist frei für "übermächtigen Zwang", wenn z. B. ein Tier מת, eines natürlichen Todes gestorben, oder נשבה, ihm mit übermächtiger Hand entrissen worden. Die tradierte Halacha lehrt, dass das erste Problem vom שומר חנם, dem unbezahlten Hüter, spricht, das zweite vom שומר שכר, vom bezahlten. Der nicht bezahlte Hüter sagt dem anvertrauten Gute, stillschweigend, eine solche Obhut zu, wie man gewöhnlich auch dem eigenen Eigentume zuwendet, das man zu Zeiten, z. B. nachts, sich begnügt, einem wohlverschlossenen Gewahrsam zu überlassen. Der bezahlte Hüter sagt aber, stillschweigend, dem anvertrauten Gegenstande seine unausgesetzte persönliche Gegenwart zu, er ist also selbst ersatzpflichtig, wenn ihm der Gegenstand aus einem wohlverschlossenen Gewahrsam vermittelst Einbruchs gestohlen wird, sobald er ihn aus seiner persönlichen Obhut gelassen. (B. K. 57 a תוספו׳ ד׳ה כגון שטענו. B. M. 93 b 313,2 ח׳׳מ .להכי יהבי לך אגרא לנטורי לי נטירותא יתירתא). Die Wahl der Gegenstände und Ausdrücke in den beiderseitigen Problemen unseres Textes entsprechen ganz diesen Bestimmungen. Das Problem des שומר חנם nennt "Geld oder Geräte" als anvertraute Gegenstände, somit solche, die man in der Regel nicht durch stete persönliche Gegenwart schützt, sondern sich begnügt, sie in ein sicheres Gewahrsam niederzulegen. Ihnen sagt der Hüter nur "sein Haus" zu. (Vergl. תוספ׳. B. M. 41 b ד׳׳ה לומר.) Darum auch: ונקרב בעל הבית וגו׳, וגנב מבית האיש. Beim שומר שכר ל werden hingegen Tiere, חמור או שור וגו׳ somit solche Objekte genannt, die in der Regel durch persönliche Gegenwart geschützt werden. Darum auch: ואם גנב יגנב מעמו, der anvertraute Gegenstand war nicht bloß durch sein "Haus", sondern durch seine "Person" zu schützen.

וגנב מבית האיש, “and it has been stolen from the house of the man;” the reason for this verse is to tell us that what follows applies only if these goods had been stolen from the original keeper, not if in the meantime they had been stolen again from the thief. ישלם שנים, “the second party will not only have to make restitution but will have to pay double as if he had stolen it in the first place. The reason is that this so called “safekeeper,” had explained the object’s disappearance by claiming that it had been stolen from him. His penalty is the same as if he personally had stolen it.

כסף או כלים, money or utensils, etc. The Torah did not really have to write more than "when a man gives to his neighbour to keep, etc." Verse eight already lists all the various things which are subject to safe-keeping. Our sages deduce from here all the details of liability if the trustee did not exercise due care. If the verse had spoken about a keeper who does not receive compensation, the Torah needed to mention only money, why did the Torah add the additional "or utensils?" The Mechilta suggests that just as money is something one is in the habit of counting, the utensils mentioned are also of the kind which are normally counted; this statement is used for the principle that any claim not involving something that can be measured, counted, or weighed is not a true claim. Thus far the text of the Mechilta. There is no contradiction with what we have written. I believe that an additional reason for the Torah writing the word כלים is to tell us that even if the keeper was willing to compensate the owner by paying for the missing utensils he has not thereby discharged his liability of swearing an oath that he was not negligent in his guardianship. In chapter six of his Hilchot She-eylah u-Pikadon Maimonides writes that if the utensil in question was in good condition at the time he received it, the keeper has to render an oath (concerning his not having been at fault if it disappeared). While it is true that Maimonides considers this rule merely of rabbinic origin, he regards the Torah's words: "if he did not put his hands במלאכת רעהו," as proof that the only way the utensil was identifiable was that it was the work of his neighbour. Even if one could not identify it by size, weight or quantity, the keeper still has to render an oath if he claims he had lost it or that it had been stolen.

וגֻנַב, nicht wie V. 11. גנב יִגָנֵב im נפעל, durch welches der Diebstahl als Tatsache festgestellt würde, sondern im פועל, in welchem die Urheberschaft des Nichtvorhandenseins des Gegenstandes völlig unentschieden gelassen ist, בנין שלא נזכר שם פועלו nach dem Ausdruck der jüdischen Grammatiker. Es wird damit nur die Behauptung des Hüters ausgesprochen: טוען טענת גנב.

ישלם שנים לרעהו. He is to pay twice its value to his fellowman, i.e. the one who had entrusted the object to him. This appears to contradict another verse in Leviticus 5,24 where we have been told that when someone had sworn a false oath concerning illegally misappropriated property, that he had to pay a penalty of only one fifth of the value of said property. How do we reconcile these two verses?When someone had admitted his fault after first having denied it on oath, he repays the value of said object and adds one fifth [of the value plus a penalty of 25%, actually, so that of the combined value the portion that is penalty represents one fifth. Ed.] whereas if he had denied it and was found guilty through witnesses testifying against him, he has to pay twice the value of the stolen object as penalty including the original value of the misappropriated object. (Mechilta Mishpatim, 15)

לשמור, to keep safe, etc. In his Mechilta Rabbi Yishmael describes a scenario according to which the owner deposited the items in the home of the keeper and told him: "keep it safe for me." If, however, he merely said to him: "your eyes are on it," the neighbour bears no responsibility. In Baba Kama 93 the sages interpret the word לשמור, to guard, as excluding liability for losing it, tearing it, or money which had been intended for distribution to the poor. It is evident from the words of Tossaphot on that folio that the Rabbi only meant to exonerate the keeper from negligence if the owner had not used the words: "keep it safe for me." If, however, the keeper had damaged or abused the utensil in question with his own hands he is still liable for compensating the owner unless the owner had specifically authorised the keeper to destroy the item in question. I find it hard to understand how the sages could deduce two separate exclusions from the word לשמור, A) that if the owner had not specifically worded his request by saying "keep it safe for me" that the keeper would not be liable for negligence, and b) that if the owner told the keeper to destroy it that he would not incur a penalty for doing so? I believe that the interpretation in the Mechilta is soundly based on our accepted principles of exegesis, whereas the statement in Baba Kama is merely based on logic. The author of that theory used the wording of the verse as an אסמכתא, a loose link to the written Torah, in order to support a rabbinic decree. You ought to realise that the reason the sages added the clause of excluding the keeper's liability if the ultimate designation of that money had been distribution of it to the poor, is based on the fact that it is money which has no legal claimants. Rabbi Yoseph cites an occurrence in which a purse full of money for the poor in Pumbedita arrived there. Rabbi Yoseph entrusted this money for safe-keeping to a trustee; the money was then stolen from said trustee due to the latter's negligence, and Rabbi Yoseph declared the keeper as liable to replace it. Abbaye queried this, citing a Baraitha in which the words לשמור ולא לחלק לעניים are used as the basis for exonerating the keeper from liability. Thereupon Rabbi Yoseph countered that this applied only if the money had not been allocated for the poor in a specific location (compare Rashi there). In that instance, however, the money had been intended for the poor people of Pumbedita and each one of them had a claim to a certain portion of this money. Seeing the matter is so, there was no need for the Torah to write a special exclusion such as the word לשמור in order to teach us that the keeper is not liable for money which has no legal claimants. As soon as the money had been designated for the poor, the owner, i.e. the person entrusting the purse containing such money to a neighbour for safe-keeping, no longer owned it and therefore could not hold anyone responsible for it. It should not make any difference whether the person entrusting the purse of money had told the keeper to distribute it to the poor or not; the keeper should be free from liability as the money has no legal claimants. The proof for this argument lies in Abbaye's query. What was Abbaye's argument? Perhaps in the case of Rabbi Yoseph the person handing the purse to the trustee had told him specifically: "guard it well?" Why did Abbaye not use the stronger argument that we can prove from the Baraitha that unless the trustee had been told specifically: "guard it well," he had not accepted liability for negligence even if the money had not been intended for distribution to the poor at all? Furthermore, the sages state in that Baraitha that Rabbi Nathan interpreted the word לשמור as including anything which is comparable to either money or utensils.

אם ימצא הגנב, B. K. 63 b erklärt eine Auffassung diesen Satz des V. 6 von גנב עצמו von dem Fall, dass der Dieb wirklich gesunden wird, und erst V. 7 u. 8 bespricht den Fall טוען טענת גנב, dass der Hüter den Diebstahl behauptet und beschwört. und es stellt sich hintennach heraus, dass er selbst der Dieb ist. Eine andere Auffassung erklärt auch schon V. 6 von diesem Fall des טוען טענת גנב ונמצא שהוא עצמו גנבו, und würde dann das אם ימצא הגנב zu übersetzen sein: "wenn er als der Dieb befunden wird, so hat er, der als Dieb befundene Hüter, zwiefach zu zahlen", und enthielte dann V. 7 u. 8 die nähere Erläuterung, dass diese doppelte Ersatzpflicht nur nach vorgängigem falschem Reinigungseide eintritt. Aus der Verhandlung daselbst ist jedoch ersichtlich, dass, wenn Die Worte אם המצא תמצא (V. 3) als Ausdruck des als Halacha rezipierten Rechtssatzes: מודה בקנס ואח׳׳כ באו עדים פטור verstanden werden, unser Satz אם ימצא הגנב vom גנב עצמו zu verstehen sei, und folgt daher unsere Übersetzung dieser Auffassung.