Tafsiran Keluaran 22:10: Rashi, Chizkuni, Da'at Zekenim & Or HaChaim

שבעת ה׳ תהיה THEN SHALL THE OATH OF THE LORD BE BETWEEN THEM BOTH — i. e. he (the bailee) must take an oath that the case was as he says (that it died or was injured or captured), and also that he had not previously put forth his hand against it (the object), using it for his own purposes. For if he had thus “put forth his hand” and afterwards some accident, as described, happened to it he is held liable for loss by accident (Bava Metzia 94b), since he has broken the terms of the contract. —

שבועת ה' תהיה בין שניהם, “the oath of the Lord shall be between the two of them;” that death occurred accidentally and not through negligence by the keeper. If the death had occurred in a place where there are people, the keeper would have to pay as his oath is not accepted in such circumstances. Had he told the truth, witnesses would have come forward to support his claim of innocence.

'שבועת ה, “the oath of the Lord, etc.;” Rashi explains this verse as follows: if the party in charge of the animal entrusted to him for safe keeping has illegally made use of it, as a result of which this animal came to harm, he is liable although normally anyone who looks after a friend’s property without being paid compensation is not liable for anything but the result of his negligence. Elsewhere, in the Talmud, tractate Baba Metzia folio 41, Rashi adds that even if the safe keeper had already returned the animal in question to its owner, seeing that he had illegally made use of it while it was under his care, any accident that will befall that animal will be considered as the result of that offense he had committed. According to Rabbeinu Tam, -Rashi’s grandson,- this presents a difficulty, seeing that in our verse the Torah had written that no one had witnessed the accident that had happened to said animal, i.e. we de do not even know if the circumstances were such that they could be attributed to the safe-keeper’s illegal actions. [All we know is that it occurred while the safe-keeper had not been present, as he should have been. Ed.] According to Rabbeinu Tam, the wording of the Torah implies that if the safe-keeper had witnesses who had seen that he had not been negligent or done something illegal as a result of which the accidents had become possible, he is not held responsible. According to Rashi what use would it be for the safe-keeper if there even was “proof” that he had not been at fault, seeing that the Torah requires the safe-keeper to swear an oath that he had not done anything which according to Torah law was not permissible? According to Rashi, even a true oath would not be helpful for the person who had sworn it, so why should he use the name of the Lord in vain? Besides, how could the “witnesses” know if the accused had ever committed an illegal use of what had been entrusted to him for safekeeping, if that person had in the meantime replaced the animal in the pen where he had kept it locked up? Considering all this, Rabbeinu Tam concludes that in such situations the safe-keeper is considered as innocent of wrongdoing.

ולקח בעליו AND THE OWNER OF IT SHALL ACCEPT IT — i. e. shall accept the oath (Bava Kamma 106a),