Комментарий к Шмот 22:14

אם בעליו עמו BUT IF THE OWNER THEREOF BE WITH IT (lit., with “him”) — whether he be employed in the very kind of work for which the animal has been borrowed, or whether he be employed in any other work of the borrower — provided that he (the owner) was employed by the borrower when the loan was effected it is not necessary, in order to free him from restitution that he should be employed by the bailee at the time when the injury or death took place (Bava Metzia 95b).

אם בעליו עמו, during the time the animal performs the work for which it has been loaned out.

אם בעליו עמו לא ישלם, if its owner be present he does not have to pay. We have to consider whether the party exonerated by the Torah in this paragraph is free from restitution only by a human tribunal or whether he is exonerated also vis-a-vis Heaven, i.e. in the Hereafter. Suppose the owner of the universe, G'd, Who has entrusted the soul He has planted in a human body for safe-keeping in his body will demand an accounting from the body when He reclaims an unsullied soul at the death of the person to whom He has entrusted the soul. We read in Deut. 4,9: "you shall guard your soul very carefully." When G'd will reclaim His souls He may find that they have either been "stolen," or "broken," or "captured," or "died." All of these four kinds of "damages" are applicable to souls and may be the result of the person equipped with the respective soul committing various transgressions. [In order to understand what the author refers to the reader has to remember that the author has adopted the concept that each commandment in the Torah corresponds to a specific organ, bone, or sinew of the human body. Non-performance of a commandment is equivalent to maiming that part of the body. Ed.] Some people have their souls "stolen" from them when the person is involved in an encounter with impurity; others lose their soul when involved in a deliberate act of transgression; in such an instance the person is considered as having destroyed the limb or organ charged with performance of that particular commandment. Sometimes a person is guilty of a transgression for which the penalty is כרת, premature death and/or permanent severance from his people. Still others may commit violations punishable with death by a human tribunal. Such sins cause the death of the soul (compare Genesis 17,14). In other cases the soul is merely taken "captive" as per Zohar volume two page 95. When G'd -the owner of the deposit- demands its return in the condition He has deposited it, the spirit is supposed to return to G'd as stated by Solomon in Kohelet 12,7. Our sages in Shabbat 152 interpret this to mean as G'd saying: "give it to Me as it was given to you." Can the keepers, i.e. human beings, decline liability for damage to their soul by basing themselves on the wording in our verse: "if its owner was present, the keeper does not have to pay?" The sages in Baba Metzia 97 state that it is possible for the borrower to escape liability for what he has borrowed if he asks the owner of the article he wishes to borrow to first let him drink some of his water. If the owner agrees, he is considered as in the category described in our verse as having worked with the consent of the owner. The same ruling is applicable to "keepers" (seeing their liability is generally on a lower level than that of the borrower). Seeing that G'd has provided man with his food and drink before man begins to be active on earth, He should be considered as in the category of the lender described in the Talmud, and man should be free from liability for his mistakes.

אם שכיר הוא, if the animal in question had been hired by the one working it

At the time of the injury or the death. [Rashi knows this] because it says [in the previous verse]: “If a man borrows something from his neighbor, and it becomes broken or dies; if the owner is not with him. . .” This implies that the owner was not with him either at the time he borrowed and at the time of breaking and death. For the phrase, “if the owner is not with him” refers back to both stages. And then, “he must make full restitution.” This means that if he was with him during only one of these times, he does not have to make restitution. However, it says [in our verse]: “If the owner is with him, then he need not make restitution” — [implying that] the reason [for no restitution] is that the owner was with him at both stages. And this means that if he was with him at one stage but not at the other, he is liable. Thus, the verses seem to contradict each other. To resolve this, we must say [as Rashi did,] that the previous verse exempts the borrower even if the owner was with him at one of the two stages. That is, he was with him at the time he borrowed, although he was not with him at the time of breaking and death. And the verse that holds the borrower liable, is in the case where the owner was with him at the time of breaking and death but not at the time he borrowed. And we cannot say the other way around, because reason dictates that the time he borrows is the key stage — for that is when the borrower becomes obligated to feed the animal. [See Bava Metzia 96a.]

אם בעליו , “if its owner” was present at the time his animal died (and was aware that it had not been overworked) the borrower is free from paying any compensation.

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).

לא ישלם, the borrower. The reason is that under most circumstances, the animal has been loaned after both parties had agreed what kind of work it would be used for. Its status therefore is similar to that of a gift on the understanding that it would be returned. When one makes this kind of gift one does not draw up a list of conditions pertaining to the precise use the gift may be made of. If such a list of conditions had indeed been drawn up the nature of the entire transaction would have been nullified, it would no longer be classified as a temporary gift at all, but the owner would remain effectively the owner, so that non return, even deliberately, would not constitute a dereliction resulting in his being entitled to compensation from the “borrower.” The presence of the owner during any accident which had befallen the loaned animal is taken by the Torah as proof that he had never relinquished any part of his ownership, hence he is not entitled to compensation. One does not get compensation for losing what belongs to one.

בא בשכרו, the risks involved were accepted by the party renting out the animal for work. The situation is not comparable to the case of the party who had received the animal on loan as a friendly gesture. As a result of this difference the party hiring such an animal is not responsible for accidents. He shares the same degree of responsibility which the Torah imposed on the trustee who gets paid for looking after other people’s property. If the animal had been stolen or disappeared due to negligence, the fact that the man who hired it had paid for this does not relieve him of responsibility for preventing theft or disappearance. There are differences of opinion regarding the degrees of liability between Rabbi Meir and Rabbi Yehudah in Baba Kamma 45.

If the ox was not borrowed. . . Rashi adds the word “ox,” to teach that “hired” is describing the ox hinted to above (v. 13): “If a man borrows something. . .” Yet, if “hired” in our verse refers to that, [then a question arises:] how can the ox be both borrowed and hired? Therefore Rashi adds [the word אלא ] and says, “The ox was not borrowed but rather ( אלא ) hired.” This teaches that this verse is negating the first case (v. 13), where it was borrowed, and saying that [in our case] it is not borrowed but rather hired.

I am duty bound to tell the human soul not to rely on such convoluted reasoning for either of two reasons. 1) In our verse the Torah tells us explicitly that "keepers" are liable in accordance with all the rules applicable for the various categories of such guardians listed in Baba Metzia 94. The Talmud even says that the owner of the object entrusted to an unpaid keeper may stipulate that the unpaid keeper assumes all the liabilities of a person who borrows with a view to using the object under his care. This is so in spite of the general rule that one may not impose conditions which override those stipulated in the Torah, as in this case only financial dealings are involved. Above-named restriction does not apply in matters concerning money. In practice this means that the owner may hold the borrower (or guardian) responsible even if the latter had undertaken to perform tasks with the borrowed object with the knowledge (read consent) of the owner. We find an example of this in Makkot 3 where the lender of a long term loan stipulated that the law of Shmittah (automatic cancellation of past-due loans) not be invoked against him, and that the loan in question would be due after the Shmittah year. The Talmud explains the reason for this as being that all financial conditions mutually agreed between two parties are binding. In our instance, G'd has made it plain in His Torah that violating His laws will result in retribution. Moreover, He has even made the Israelites render an oath concerning their obligation to live up to the commandments of the Torah.

אם שכיר הוא, “if said borrower had paid for the use of the animal while under his care,” the plain meaning of the text is that the subject of the word: שכיר, is that the party who had lent the animal was himself not the owner but had rented it. Our sages, however, understand the meaning to be that the borrower had paid a fee to the owner for using the animal. The Torah decrees that the liability for death or disabling harm is that of the owner must bear the burden of the loss as he had received compensation for letting the borrower use it. He had used his animal for his own purposes by lending it out.

Into the hands of the lessee. The word בא [ בא בשכרו , “it comes. . .”] expresses that one thing comes into another, and our verse is “short” [and does not state what the ox comes into]. Therefore, Rashi had to explain that “it came into the hands of the lessee.” And in order to tell us the reason why the lessee’s law is unlike that of the borrower, who is liable even for accidents, Rashi explains that the ox did not come as a borrowed item, [thus the lessee does not gain all the benefit from this arrangement. His use of the ox] is in return for its rental fee, [thus the lessor benefits as well]. According to this, the words בא בשכרו are reversed, as it should have said בשכרו בא , thereby emphasizing the verse’s point: that the ox came through its rental price rather than through borrowing it [free of charge]. And since the point being made is that the lessee does not pay for accidents, and it does not teach us what is his law, the Sages disagreed as to what law is he subject: whether he is like a שומר חנם or a שומר שכר .

The second reason that man cannot avail himself of the legislation which exonerates negligent behaviour of the borrower in the presence of the lender has to do with the principle that only a few of man's trespasses are subject to judicial prosecution on earth. In principle, it is the Supreme Judge who has the prerogative to sit in judgment of human activities and to adjudicate such cases fairly. Who is to say that a person who is guilty of negligent dealings with his neighbour's property will not be judged by the Supreme Judge Himself? We have hundreds of instances of violations which are subject to G'd's judgment only, human judges not having been accredited to deal with such violations of the Torah! The best proof of this concept is the fact that there are many violations concerning which the Torah has specifically stated that the transgressor will not be held liable by a court on earth but will be judged either by G'd directly while still alive, or at least in the Hereafter. I have explained this in detail on Exodus 21,12 on the words מות יומת. You will find for instance, that when "keepers" have been negligent with property owned by the Temple treasury they are not subject to penalties by a human court. Even Maimonides who held keepers liable in cases where lands, documents or slaves are involved, appears to hold that this is so only vis-a-vis human owners. When the property is owned by Heaven or its representatives, no action is taken against the offending party. You may conclude that the reason that no action is taken is because such people are guilty of something more serious than is subject to earthly judges' jurisdiction.