Friday, July 11, 2014

Fact-Checking the Torah: Exodus 22:6-11, 13-14

Your assignment for this week was to read Exodus 22:6-11, 13-14. 
A crucial issue in any legal system is, who owns property and who has custody of it?  Often the two are the same, but for thousands of years an owner could grant temporary custody to another person.  Then if the property is damaged, lost, stolen, or destroyed, the owner ought to get restitution, right?
Torah describes four classes of custodians who don’t own the property, and each has different responsibilities toward the owner.  Here’s a table summarizing who owes what.

 
Responsible for *
Adjudication
Party**
Breakage / Destruction / Theft / Loss
Oath    / Compensation
Borrower
      Y               N                 N        Y
  N                  Y
Renter
      Y               N                 Y        Y
  Breakage      Theft/Loss
Paid bailee
      Y               N                 Y        Y
  Breakage      Theft/Loss
Unpaid bailee
      N               N                 Y        Y
  Y                  N

 
* Exodus 22:9 / Exodus 22:9 / Exodus 22:6, 10-11 / Exodus 22:8
** Exodus 22:13-14; Exodus 22:14; Exodus 22:9-11; Exodus 22:6-8 
 
One thing Torah doesn’t state, and Mishnah does, is a hidden assumption.  Every kind of property has customary usages; you wouldn’t plow with a goat and you wouldn’t shave an ox for fleece.  Every kind of customary usage has certain auxiliary equipment and might take place under varying circumstances.  Somebody who borrows an ox might not have his own plow and harness, or the ox he borrows might be smaller than his own ox which might be laid up lame.  If he borrows the equipment from the owner of the ox, he’s responsible for what happens to the equipment as well as to the ox.  
The classic statement in Mishnah is that the borrower, B, said he was going to plow his lowlands.  But he plowed his highlands and the plow broke against the rocks; he’s liable for that breakage and has to pay for repairs or a new plow.  Or he says he’s going to plow in the highlands, but he plowed in the lowlands and the ox got heat stroke and died.  He’s responsible for that and has to compensate the owner A who now needs a new ox.
A bailee is somebody who agrees to take custody of property.  He might be paid for it, like if you hire space for your horse in a stable.  You should be smart enough to choose a stable that is well-cared for so you don’t risk your horse getting hurt; that includes making sure the person running the stable has adequate feed and bedding.  But the owner of the stable is responsible for protecting your horse so it doesn’t get stolen or just wander off.  He has to pay damages in this case, but if the horse gets sick or hurt he only has to take an oath that it wasn’t his fault.
For next week, read Exodus 23:4 and Deuteronomy22:1-4.  We’ll talk about a special kind of unpaid bailee and then get to the important issue I mentioned above. 
© Patricia Jo Heil, 2013-2018 All Rights Reserved

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