ציטירנדיקער פּירוש אויף שמות 22:23

I have found the following statement by Maimonides in chapter two of his Hilchot Sechirut: "It appears to me that if the unpaid keeper was negligent in his supervision of slaves entrusted to him for safe-keeping, or in similar situations, he is liable to make restitution. The only reason we find an exemption to such liability in the case of slaves, documents, and lands, is when they have been stolen or lost and the keeper does not have to render an oath as to his not having been negligent. If, however, there is evidence of the keeper having committed a trespass, we follow the rule that everyone who commits a trespass is treated as if he had caused actual damage and has to make restitution. There is no distinction in such a situation between lands, documents, and movable objects considered as equivalent to money. Anyone examining this will find that this ruling is absolutely correct. Thus far Maimonides on the subject. Various commentators disagree with Maimonides on this, however. Their argument is that if the keeper (also a borrower) had indeed committed an actual trespass in the presence of the owner, he would not have been considered as guilty as the Torah states specifically that if the animal he borrowed died while the owner was present (i.e. had approved of the activity to which the borrower put such animal) the borrower does not have to pay (22,23). This includes a situation when the borrower was clearly guilty of trespass. Maimonides himself writes in chapter one of his Hilchot Sechirut that "even if he was guilty of trespass, i.e. negligent guardianship, as long as he had obtained permission for the activity the borrowed animal performed, the borrower is free from paying compensation. Maimonides cites Exodus 22,23 as proof for his ruling. Clearly, we cannot compare the law applicable to someone who is merely guilty of negligence to someone who has caused damage with his own hands. The פושע, negligent person, is neither in the category of a guardian nor is he an actual מזיק, spoiler. He is a person who had absented himself from his task of guarding an object, as a result of which the object entrusted to him disappeared. The spoiler, on the other hand, caused the damage himself. As a result the commentators query how it is possible that such a spoiler should not be responsible for his actions? At the very least the unpaid keeper should have to swear that he was not negligent seeing that if he was negligent he is guilty.

ANY WIDOW — even a rich one of quite considerable wealth — YE SHALL NOT AFFLICT, for her tears are frequent and her soul is depressed. He states, If thou afflict ‘otho’²⁹⁹Verse 22. [“him” in the singular], meaning any one [who is a widow or a fatherless child]. Therefore it is written after that, and your wives shall be widows,³⁰²Verse 23. in punishment for your causing the cry of the widow, and your children fatherless,³⁰²Verse 23. in punishment for the cry of the orphan.
This punishment [And My wrath shall glow, and I will kill you with the sword etc.]³⁰²Verse 23. is not counted by our Rabbis amongst those brought upon people who are liable to death by the hand of Heaven, as listed in the Beraitha,³⁰³See Seder Bo Note 209. “These are the people who are liable to death by the hand of Heaven” taught in Tractate Sanhedrin.³⁰⁴Sanhedrin 83a. The reason for this is that the death mentioned here is unlike the usual death of people by the hand of Heaven, of whom it is said, and they die therein, if they profane it;³⁰⁵Leviticus 22:9. and ye die not.³⁰⁶Numbers 18:32. But here the punishment is that they will die by the enemy’s sword, or he shall go down into battle, and be swept away³⁰⁷I Samuel 26:10. without anyone knowing it, and their wives will thus have to remain forever widows, and their children always be fatherless.

אם ענה תענה אותו, If you afflict them in any way, etc." Why did the Torah have to write the word אותו, "him," and did not merely write אם תענהו, using the pronoun ending? We would have known that the subject of the verse is the orphan just mentioned. Perhaps we can best explain this with the help of the Mechilta on the words לא תענון. The author writes that but for the word לא תענון in verse 21, I would have thought that this injunction applies only to widows and orphans. Whence do I know that one must not treat people generally in an exploitative manner? This is why the Torah writes לא תענון. Thus far the Mechilta. Since the words לא תענון apply to people as a whole, the word אותו in verse 22 is needed to tell us that the special penalty in store for people transgressing this commandment spelled out in verse 23 applies only if the violation was committed against either a widow or an orphan.