Q&A: The Topic of “Its Owner Is With It”
The Topic of “Its Owner Is With It”
Question
Hello Rabbi,
In the Torah it is written: “And if a man borrows from his fellow, and it is broken or dies, if its owner is not with it, he shall surely pay. If its owner is with it, he shall not pay; if it is a hired item, it came with its hire.” (Exodus 22:13–14)
It is explained in the Torah that although a borrower is liable even for unavoidable accidents, if “its owner is with it” he is exempt from payment.
Even though logic would suggest that the exemption of “its owner is with it” refers to cases where, at the time the damage occurred, the owner was together with the guardian, and therefore one could say that in such a case the guardian should not have to pay, Jewish law rules (Shulchan Arukh, Choshen Mishpat 346:2) that if “he was with him at the time of borrowing, he need not be with him at the time it was broken or died.”
This sugya seems to show that the laws of Choshen Mishpat are a kind of scriptural decree—that is, they have no logic and are simply arbitrary rules. If so, what place is there for applying reasoning there? After all, this whole area is arbitrary, so human logic would seem irrelevant. Seemingly one should use only the rules of textual derivation in this area, and the conclusions that emerge from them are the halakhic truth, without mixing human reasoning into the process.
Answer
Hello.
Indeed, this law is hard to understand. There is here, כביכול, an idea that if the owner leaves the animal with the borrower, he leaves the responsibility upon himself.
But regarding your general point, I would say that in many areas of Jewish law, even ones much farther from common sense, there is still room for reasoning. There is reasoning even in the laws of consecrated offerings and ritual purity. The reasoning is not always essential—that is, dealing with the underlying reason for the obligation—but rather within the framework of the discussion. Given that such-and-such a law exists, there can still be logic in defining it one way or another.
One should remember that in monetary law, gaps can be filled by custom or by the law of the king. If both parties to a contract agree that there will be no exemption of “its owner is with it,” then there will be none. So these irregularities are not especially troubling. They belong to the conception of the theoretical part of monetary law in Jewish law. See my article on obligations and rights and Choshen Mishpat.
Discussion on Answer
I don’t have time right now to look into it carefully, but the Gemara seems to indicate that it assumes there is an exemption of “its owner is with it” written in the verse. Now it is considering when it is more correct to say that “its owner is with it”—when he was with him at the time of the borrowing, or at the time of the accident. The assumption is that if he was with him at the time of the borrowing, that is more aptly called “with him,” because the owner’s presence at the time of the accident has no halakhic significance whatsoever. It is not a stage at which any legal status is created, and therefore the owner is not acquired to him. But if he was with him at the time of the borrowing, one can say that he is “with him.”
There is an assumption here that the owner’s presence at the time of the accident means nothing. After all, if the animal was lent to the borrower, he is liable for accidents that happen to it. Why should it matter if the owner was with him at the time of the accident? The duty to watch the animal is not on the owner, so he may choose not to deal with the accident, and that is not his fault. But if he was with him at the time of the borrowing, then he is acquired to him, and the assumption is that this acquisition also places responsibility for accidents upon him. This is indeed a scriptural decree, but it has an internal logic to it—which brings us back to the question of reasoning within a scriptural decree mentioned above in the question. So here you have a nice example of that).
What is even stranger in this whole sugya is that this halakha was not born out of a forced textual derivation, but out of reasoning:
Babylonian Talmud, tractate Bava Metzia 96a
To tell you: if he was with him at the time of the borrowing, he need not be with him at the time it was broken or died; if he was with him at the time it was broken or died, he must also have been with him at the time of the borrowing. — But why not reverse it? — It stands to reason that borrowing is preferable, because he brings it into his domain. — On the contrary, broken or died should be preferable, since he is liable for unavoidable accidents! — If there were no borrowing, what case of broken or died would there be? — And if there were no broken or died, what case of borrowing would there be? — Even so, borrowing is preferable, since he is liable for its upkeep.
How can it be that the reasoning says that the borrowing stage is preferable? That sounds absurd to me.