פּירוש אויף שמות 22:8

על כל דבר פשע FOR ALL MANNER OF TRESSPASS in which he (the bailee) is proved a liar in respect of his oath (i. e. is convicted of perjury), because witnesses testify that he himself has stolen it and the judges condemn him on the evidence of the witnesses,

על כל דבר פשע, “concerning any matter of trespass, such as, etc.;” concerning this unusual wording, the Midrash points out that the numerical value of the words: כל דבר, “any matter,” is the same as the numerical value of the letters in the name of Aaron, אהרן=256. The Torah continues with the words: על שור, “on account of an ox (calf),” a hint at the damage caused by Aaron who had produced a golden calf from the crucible into which he had thrown the golden jewelry given to him. The word: חמור, “donkey,” is understood by that Midrash as applying to the mixed multitude who had joined the Israelites’ bandwagon at the Exodus, and who had been the first to clamour for a replacement of Moses, who had not returned from the Mountain after 40 days and forty nights without food and drink. (Exodus chapter 32). The word שה in this verse is understood by that Midrash as applying to the Jewish people in Jeremiah 50,17 where he called them שה פזורה, “scattered sheep.” The words: על שלמה, “for a raiment,” are a metaphor for idolatry, a variant of the word צלם idolatrous image, the letter ש substituting for the letter צ, and the vowel patach for the vowel tzeyreh. Both the letter צ and the vowel patach are used interchangeably in the Bible on other occasions. The words: על כל אבדה, “every type of lost object,” are also a metaphor for idolatry. In Deuteronomy 12,2 the Torah commands us to destroy any kind of idolatry which we will find in the land of Canaan. The word used for “destroying” is the word used for “losing” something, i.e. אבד תאבדון. To continue with the interpretation of our verse: the words: אשר יאמר כי הוא זה, of which he says: “this is it,” are a reminder of what the people said of the golden calf when it emerged from the crucible into which Aaron had thrown the men’s gold in Exodus 32,4, when they proclaimed of the golden calf: אלה אלוהיך ישראל אשר העלוך מארץ מצרים, “these are your gods Israel which have taken you out of Egypt.” The words: עד האלוהים, normally translated as “to a judge,” refer to Moses whom G–d had described as being an elohim compared to Aaron (Exodus 7,1) who would be his interpreter in his dealings with Pharaoh. The words: יבא דבר שניהם, “shall the matter of their litigation be presented,” refer to G–d and Aaron respectively, whereas the words: אשר ירשיעון, “whom they condemn” refer to Moses, whereas the words:ישלם שנים, “he will repay twofold,” refer to the two sons of Aaron, Nadav and Avihu, who paid with their lives for having brought alien fire on the censers on which they presented incense. (Leviticus 16,1) Thus far Tanchuma on section eight of his commentary on Parshat Acharey Mot.

WHEREOF ONE SAITH: ‘THIS IS IT.’ Rashi comments: “according to the literal sense it means: that which the witness will say ‘this is it — this is that article about which you have taken an oath [that it was stolen from you] but see, it is in your possession!’ And our Rabbis have explained that the phrase this is it teaches us that an oath cannot be imposed [by the court on a defendant] unless he admits part of the claim, saying ‘I owe you so and so much, but the rest was stolen from me.’”²¹⁸But if he denied the claim altogether, he is free from having to take an oath of the Torah. The Rabbis, however, instituted a consuetude oath in such cases (Shebuoth 40 b).
But this principle of partial admission which the Rabbi [Rashi] has written here, is in accordance with the opinion of certain individual Rabbis [in the Talmud],²¹⁹Rabbi Chiya bar Aba in the name of Rabbi Yochanan, and Rami bar Chama (Baba Kamma 106-107 a). but is not the accepted decision of the law, for guardians [to incur liability to an oath] need not partially deny and partially admit the claim,²²⁰In other words, while the principle of partial admission applies to claims of debts, in the case of claims in guardianship, the accepted decision of the law is that the guardians need not partially admit the claim in order to be liable an oath of the Torah. The above interpretation of Rashi agrees therefore only with the opinion of certain individual Rabbis, but is not the accepted opinion. but even if they claim that the whole article was stolen, they still have to take the oath of the guardians, [unlike debts, which, if the debtor denies completely, do not require an oath of the Torah]. Moreover, it has been explained in the Gemara²²¹Baba Kamma 107a. with convincing proofs, that when he denies the very fact that he ever became a guardian, such as where he says “you have never given me the object to keep,” in that case if he denied it totally, he is free from taking an oath, and if he admitted it partially he is obliged to take an oath, this being the opinion of all Rabbis in the Talmud,²²²Ramban is here making an important distinction [in accordance with the teaching of the masters of the Tosafoth — see my Hebrew commentary, p. 430]: If the guardian sets up the kind of defense which can apply to cases of guardianship, such as where he says “an unavoidable accident happened to it” [such a defense has no place naturally where one is sued for a plain debt], then there is no distinction between total and partial admission — he is liable to an oath in either case. But where he puts up the kind of defense which can apply also to a debt, such as where he says, “You have never given me the object to keep” [which can apply to a debt as well: “You have never lent me”], then the law of partial admission applies to a guardian as well as to a debtor: if he denies it totally he is free of an oath, and if he admits it partially he is subject to an oath. — A re-reading of Ramban’s words [“Moreover, etc.”] will yield this thought clearly. even though the Rabbi [Rashi] has not written so in his commentaries to the Gemara.²²¹Baba Kamma 107a. If so, we may say that the phrase [this is it — from which we derive the principle of partial admission, as explained above], speaks according to the interpretation of the Sages of a case where the guardian’s defense is: “He never gave me anything to keep,” in which case if he denied it totally he is free of an oath, and if he partially admitted it and partially denied it, he is liable to take an oath.²²³Such as where the claimant said, “I gave you two vessels to keep,” and he replies, “You gave me one to keep, but the other you never gave to me.” Had the defendant claimed so on both vessels, he would be free of an oath of the Torah. However, if his defense had been that an unavoidable accident happened, even if he claimed so on both of them, he would have had to swear [see preceding Note]. Thus the verses are to be explained as follows: If the thief be not found, then the master of the house shall come near unto the judges²¹⁴Verse 7. — for every claim of trespass which he may claim against him, such as: “You were negligent in your guarding it,” or where the guardian says: “this is it, — this is what you have deposited with me, and you did not deposit any more with me” — then the one with whom the article was deposited that the judges will condemn, [upon testimony given before them that he embezzled it], shall pay double unto his neighbor. Thus, both [the debtor and the guardian] pay, but double restitution is only where the guardian claims falsely that it was stolen, and the rule concerning the plea of partial admission applies to all claims, even to loans, robbery and other matters. In all these laws the verses of Scripture are few and the rules many. But there is no need to explain them here, except in order to interpret the verses.

ישלם שנים לרעהו HE SHALL PAY THE DOUBLE TO HIS FELLOW-MAN — Scripture teaches you that in a case of a bailment where one pleads that it has been stolen from him and it is proved that he himself has stolen it he is liable to pay “kefel” (twice the value of the article) to the owner. When, however, does this law hold good? In the case that he has taken an oath that it has been stolen from him and witnesses afterwards appear and testify to the contrary. For our Rabbis expound this phrase as follows: (Bava Kamma 63b) “and the owner of the house shall approach unto the judges” — this “approaching the judges” is an expression signifying the taking of an oath. You say that it means approaching the judges in order to take an oath, but perhaps this is not so, and it means that he approaches them to put his case, and that the meaning of the verse is. that as soon as the bailee appears before the court and denies any liability, saying, “it has been stolen” from me, he at once becomes liable to pay double if witnessess appear who testify that the bailment is still in his possession? You certainly cannot argue thus! For “conversion” (שליחות יד) is mentioned here and later on (v. 10) it is mentioned again: “Then shall the oath of the Lord be between the two of them, if he hath not put his hand (אם לא שלח ידו) unto his fellow-man’s goods”. — Now, what is the meaning of the phrase in the latter case? It is evident from what precedes it that it is a matter of taking an oath! So also here it is a matter of taking an oath. (Bava Kamma 63b).