Halakhah sa Exodo 22:13: Mishneh Torah, Hiring, Sefer HaChinukh & Mishneh Torah, Positive Mitzvot

These are the three laws that apply to them. If the deposit is stolen from the unpaid bailee or it is lost and, of course, if the deposit is lost through force majeure - for example [the deposit] was livestock and it died or was taken captive: [The bailee] swears that he exercised the ordinary care of bailees and is exempt. As is written "And it is stolen from the man's home" (Exodus 22:6); "And the house-holder shall approach God" (Exodus 22:7). The borrower repays [the owner] in all situations, whether the borrowed item is lost, or stolen, or whether there was force majeure e.g. the borrowed animal died or was injured or taken captive, for thus is written about the borrower: "If [the animal] was injured or died and its owner was not with it - he shall pay" (Exodus 22:13). The same law applies to the paid bailee and to the renter. If the object which [the bailee] rented or was paid to guard was stolen or lost - they pay [the owner]. But if there is force majeure - e.g. there was an animal and it died or was injured or taken captive or became afflicted with a fatal disease - [the paid bailee and the renter] swear that it was force majeure and they are exempt. As it is written: "If it dies or is injured or taken captive and there is no witness" (Exodus 22:9) "the oath of the Lord ..." (Exodus 22:10), and it is written: "If it is stolen from him, he must pay its owner..." (Exodus 22:11). In summary: An unpaid bailee takes an oath in every situation. And a borrower pays in all situations, unless it dies while it is working, as will be explained. A paid bailee and a renter pay for a lost or stolen [deposit], but they take an oath in cases of force majeure such as when the animal is injured or taken captive or killed or develops fatal disease. Or if the object is lost in a boat that sinks or is taken by armed bandits or anything like this that is a case of force majeure.

One who deposits [property] with his fellow - whether for free, or the owner paid the bailee, or the owner lent it to him, or he rented it out to him - if the bailee also took the owner for free along with his property - or hired [the owner for money] - the bailee is completely exempt from all [loss to the property]. As it is said: "If [the property's] owner is with it, he need not pay; if [the property's owner] is a hired worker, [the risk of damage to his property] is included in his wage" (Exodus 22:14). In what circumstances does this apply? When the owners volunteered or were hired at the same time as [the bailee] took the object, even if the owner was not with the object at the time of the theft or the loss or when the [object was lost through] force majeure. But if [the bailee] took the object - and first became a bailee - and only afterwards hired the owners or had them volunteer - even if the owner is standing there at the time when the deposited object is harmed - the [bailee] must pay. As it is written "If its owner is not with it - [the bailee] must pay." (Exodus 22:13). They learned from tradition: If [the owner] was with it at the time of borrowing, even though he was not there at the time of the theft or the death - [the bailee] is exempt. If [the owner] was not with it at the time of borrowing, even though he was with it at the time of death or capture - [the bailee] is liable. And this is the case for the other [types of] bailees. If any of [the objects] come with their owners - [the bailees] are exempt. Even if [the bailee] is negligent - if the object came with its owner, [the bailee] is exempt.

The commandment to judge the case of the borrower: To judge the case of the borrower, meaning to say a man who borrows any object or animal from his fellow. And borrowing is without a wage at all, but rather, he is doing a kindness for him to do him this favor. And if a disagreement breaks out between them about the matter, we must judge the law that is stated about this [upon] them, as it is written in this section (Exodus 22:13), “And if a man borrows from his neighbor, etc.” And regarding the law of the borrower, the Torah made [him] liable even for things of duress (out of his control) — as it is his responsibility: Since he borrowed it and did not put out any thing of his for it, behold he is like one who took out a monetary loan — who if something beyond his control occurred to him could not be exempt from [paying the] creditor, with the claim that it was duress. And about the matter that he is exempt if borrowing in the presence of the owners, we can say according to the simple understanding that the Torah did not make the borrower liable since the owner of the vessel or of the animal is with him — as since he is there, he will guard what is his. And even though the borrower is [still] exempt after the owners left [him], if they were there at the time of the borrowing — it is possible to answer about this that the Torah did not want to give different measures for its words and state that if the owners stay long, he will be exempt, but if [only] a little, he will be liable. [Instead,] the Torah commanded more generally that so long as the owners are there at the time of the borrowing, he will be exempt. And this is the reason that they, may their memory be blessed, said (Bava Metzia 95b), that if he was there with him at the time of the borrowing — even if he was not with him at the time of it breaking or dying — he is exempt; but if he was with him at the time of the breaking or the dying but he was not there at the time of the borrowing, he is liable. As the procedure depends on the beginning of the matter. And this very same reason suffices for us regarding that which he is also exempt if he rents [something] in the presence of the owners.