THE BOOK OF THE COVENANT LAYS DOWN GOD’S LAWS (INCLUDING PRINCIPLES OF PUNISHMENT AND RESTITUTION) DEALING WITH VIOLENCE TO PEOPLE AND ANIMALS AND WITH PROPERTY RIGHTS
Studying the civil laws of Israel might seem remote and mundane, but actually provides a lot of insight into biblical principles of justice. Our modern day conflicts and disputes don’t center around oxen and how to treat slaves in our economic system, but we face the same requirement to make sure that the punishment and/or restitution match the offense. We need to learn lessons of personal responsibility, of the sanctity of human life, of the nature of private property and property rights, of what should be the remedies for negligent behavior, etc. It is important to see that contrary to the norms of the pagan cultures around them, the God of Israel acted without favoritism when it came to sex or economic status. There is a sense of justice that derives from the character of God and should be reflected in the institutions of civil society.
David Thompson: It is clear that a good society of people is built on the basis of responsibility, honesty, integrity and respect. We need to be responsible people who care for each other and treat each other with respect. We need to take care of what we have and see to it that we do not infringe on what others have.
I. (21:18-27) VIOLENCE ASSOCIATED WITH HUMANS AND PRINCIPLES OF PUNISHMENT AND RESTITUTION
A. (:18-21) Injuries Caused by Hitting Someone
1. (:18-19) Hitting Someone in a Mutual Quarrel
“And if men have a quarrel and one strikes the other with a stone or with his fist, and he does not die but remains in bed; 19 if he gets up and walks around outside on his staff, then he who struck him shall go unpunished; he shall only pay for his loss of time, and shall take care of him until he is completely healed.”
Here you have a disagreement between two parties that began with words being exchanged and then escalated to blows being struck.
Douglas Stuart: Behind the logic of this law appears to be the assumption that people who choose to fight choose to take the risk of injury and cannot expect compensation beyond their actual out-of-pocket expenses for injuries they incur in fighting. There is no assumption of pre-meditation in this law.
John MacKay: While a basic principle is being laid down, no attempt is being made to cover all the possible angles in such a case. We might want to know what should happen if the dispute was much more one-sided than is envisaged here. If one party was trying to avoid fighting, could he claim self-defence as a legitimate excuse for not bearing the costs of the other? Who was it who decided when the injured party was well enough to resume his normal activities? While such details are left undiscussed, the basic principle of responsibility for our actions is clearly brought out.
James Jordan: the Bible teaches us to avoid all fighting and to suppress it. Only in the case of a direct threat to one’s person or property, when an appeal to arbitration is not possible, is fighting permissible (Ex. 22:2).
2. (:20-21) Hitting a Slave
a. (:20) Punishment if the Slave Dies
“And if a man strikes his male or female slave with a rod
and he dies at his hand, he shall be punished.”
John MacKay: It is implicitly accepted that there would be occasions when a master would beat a slave. The rod as such was not a lethal weapon, but care had to be taken not to go to extremes, and life was sacred, even the life of a slave.
Alan Cole: The great advance on ancient thinking is that the slave is considered here as a person.
b. (:21) No Vengeance if the Slave Survives
“If, however, he survives a day or two,
no vengeance shall be taken; for he is his property.”
Douglas Stuart: This law does not doubt the legitimate right of an employer to punish a servant physically. But it addresses the question of how far any physical punishment could go by using the example of a “slave”—whether male or female—who was beaten, presumably for some sort of serious wrongdoing (e.g., stealing from his employer, but cp. Lev 6:2–4). What the employer could not do was beat the servant so severely as to cause either permanent injury or death, for both such eventualities are clearly forbidden by this law.
If the servant died, it was murder. If the servant lost just a day or two at work, however, the owner was not obligated to do what the previous law required, that is, compensate the servant for time lost from work or for medical costs because “he is his money” (NIV “the slave is his property”). There was, in other words, no point in asking the servant’s boss to compensate himself for the loss of his own servant’s labor. If the servant had been too severely punished, however, so that the servant took more than a couple of days to recover completely or was permanently injured, some combination of the terms of the prior law (vv. 18–19) and the law in vv. 26–27 would be used to make sure the employer did not get off without penalty.
John MacKay: ‘Is his property’ seems to depersonalise the slave, treating him as a mere chattel, but the phrase is literally, ‘for he [is] his money’. As the master had paid for the services of the slave, it was not improper for him to deal with disobedience and laziness. The owner too had rights which should be recognised.
John Oswalt: There are a couple of principles assumed in these cases. The first is compensation, which can include monetary payment (21:19, 22) or the release of the maimed slave (21:26). That is, a person has been deprived of some benefit by the action of another, whether intentional or not. That other person is therefore responsible to give some compensating benefit in place of what was taken. The principle is one of responsibility for one’s actions in spite of the motivation for the action. But the second common principle takes this matter of intention a step farther. Anger, resulting in a desire to hurt, is assumed in all these cases. If death results, the striker cannot claim the circumstances of 21:14—that this was merely an accident. There will be punishment meted out—and punishment beyond compensation, perhaps even the death penalty. Allowing anger to play itself out in violence is a choice, and no one can say, “Well, I couldn’t help it.” Clearly, these cases say we can help it and we are responsible for the results.
Kaiser: The point is not that men are mere chattel… but that the owner has an investment in this slave that he stands to lose either by death… or by emancipation.
B. (:22-27) Injuries Potentially Causing Permanent Injury
1. (:22-25) Collateral Damage
a. (:22) Miscarriage Issues
“And if men struggle with each other and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall surely be fined as the woman’s husband may demand of him; and he shall pay as the judges decide.”
Douglas Stuart: The law insists that there should be a penalty for hitting a pregnant woman during a fight, even if she is not injured. It does not specify that penalty but leaves it to the woman’s husband to suggest a penalty and to the judges (NIV “court”) to impose one. Presumed in the logic of the law is that men are inexcusably out of control if they engage in a brawl so wild that a pregnant woman would be hurt in the process. If our suggested translation (“but she is still able to have children”) or something similar (“if she has her child without harm”) is correct, this is a law that would require waiting until after the woman gave birth to see what sort of penalty should be imposed against those who engaged in the fight. The husband could prosecute the case even if there was no harm to his wife or to his child(ren) since the mere risk and anxiety of facing the possibility of injury to the unborn or the infertility of his wife would warrant it.
James Jordan: There are two general interpretations of verse 22. The first is that two men are fighting, and a pregnant woman happens to come too close and is accidentally harmed. The second is that two men are fighting and the wife of one of them intervenes, and her husband’s opponent deliberately strikes at his enemy’s unborn child by kicking or hitting the stomach of the pregnant woman. . .
It is difficult to determine whether this case law deals with an accidental [in which case it teaches that a man is responsible for his actions when he deliberately places himself in a situation where he loses control of himself like drunk driving] or a deliberate assault. The vagueness of the wording indicates that we should allow it to speak to either situation.
David Thompson: Now it is very clear here that God equates a fetus in a woman as being a human because if you killed the woman or the baby, you yourself were to be executed. Both the woman and the fetus were two lives and if you killed one, you yourself were subject to the death penalty.
b. (:23-25) Laws of Retaliation
“But if there is any further injury, then you shall appoint as a penalty life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, bruise for bruise.”
David Guzik: Our tendency is to want to do more against the offending party than what they did to us. This principle can apply to our modern practice of assessing huge punitive damages in lawsuits, and this law presents the principle that only the loss itself is to be compensated.
Douglas Stuart: The goal of laws that use the wording “life for life, eye for eye, tooth for tooth,” is that the penalty imposed for causing physical injury must be appropriate to the nature of the injury. In other words, a mere monetary penalty (a fine) cannot be considered adequate justice when someone has been permanently maimed by a person in a manner that clearly demands a punishment. This kind of law represents an advance on the non-Israelite biblical-era laws, which routinely provided for fines as satisfying the legal requirement of justice in the case of a superior person’s permanently injuring an inferior person. By contrast to the laws of pagan nations, the law governing God’s chosen people Israel required real equity at law and forbade people with money being able to buy their way out of criminal penalties. . .
expressions like “eye for eye” were understood idiomatically to mean “a penalty that hurts the person who ruined someone else’s eye as much as he would be hurt if his own eye were actually ruined also.” The precise penalty was left up to the judges by talion law; it might involve anything from banishment to loss of property (and/or property rights) to punitive confinement to special financial penalties to corporal punishment to public humiliation, or to any combination of these. In support of this understanding of how talion laws were actually applied, an example of the nonliteralistic application of talion law follows immediately in vv. 26–27, in which the case of a servant’s master damaging the eye or tooth of a servant required the loss of the servant’s labor, not the gouging out of the master’s eye or tooth.
The goal of talion law was always a simple one: to see that full justice was done. Its unique wording (“x or x, y for y”) conveyed to the ancient Israelites an important principle, namely, that someone who permanently injured another person ought to be fully punished in a way that really “hurt.” Israel was not to accept a system of law that could allow one person to continue crippled for life and let the person who caused the crippling to continue merrily on, simply a bit less wealthy than he had originally been.
2. (:26-27) Injuries Against Slaves
a. (:26) Striking the Eye
“And if a man strikes the eye of his male or female slave,
and destroys it, he shall let him go free on account of his eye.”
b. (:27) Knocking Out a Tooth
“And if he knocks out a tooth of his male or female slave,
he shall let him go free on account of his tooth.”
II. (21:28:36) VIOLENCE ASSOCIATED WITH ANIMALS AND PRINCIPLES OF PUNISHMENT AND RESTITUTION
A. (:28-32) Animals Hurting People
Douglas Stuart: In the laws of this section concluding chap. 21, the bull is used as a sample animal. Sheep and some other animals were far more common, but the bull was the largest, strongest, and most dangerous of all the farm animals. So from the penalties imposed here related to bull behavior, a judge could reason “down the scale,” as it were, to various situations involving injuries by or to animals of lesser size and lethality. Again the structure of this section appears to involve a simple chiasm, this time of the laws about bulls (vv. 28–32 and 35–36) surrounding a law about animals falling to their death in an uncovered pit (vv. 33–34). In our culture grouping things chiastically is not thought to be particularly useful; in ancient Israel, however, it served as a convenient way of ordering materials so that they could be memorized and remembered effectively. Ancient Israelites were so used to hearing concepts grouped concentrically or “sandwiched” within other concepts that they came to appreciate such patterns as mnemonic aids. Thus the law in vv. 33–34 is neither an afterthought nor an awkward interpolation into the midst of some laws on goring bulls; it is merely a conveniently inserted law within laws of roughly similar content producing a “bull-pit-bull pattern” of farm animal laws intended to be remembered by judges and general citizens alike as a sampling of how to handle incidents that involved death or injury to or from animals.
1. (:28-29) Case of an Animal Killing a Person
a. (:28) No Punishment to the Owner for Unexpected Behavior
“And if an ox gores a man or a woman to death, the ox shall surely be stoned and its flesh shall not be eaten; but the owner of the ox shall go unpunished.”
Douglas Stuart: People who own animals are responsible for their behavior, except when that behavior could not have been predicted or reasonably expected in advance. In v. 28 the paradigm used to illustrate the legal principles intended to apply in such cases is that of a bull who killed someone, which was not what bulls usually or normally did. In such a situation, the bull’s owner suffered loss of the bull (a considerable penalty in light of how expensive bulls were in any farm economy, even today) without even the chance to slaughter the bull and eat its meat (which would have been a means of partial recovery of the bull’s value for its owner). Otherwise the owner had no further responsibility because there was presumably no way he or anyone else could have predicted such a thing from his bull. People worked with bulls/oxen all the time on their farms; a fatal goring from a bull was an unusual event, not a common one. Stoning the bull represented a safe way for people to kill it without danger to themselves; any other means of safely putting it to death would have been acceptable presumably as well.
b. (:29) Death Penalty to the Owner for Expected Behavior
“If, however, an ox was previously in the habit of goring, and its owner has been warned, yet he does not confine it, and it kills a man or a woman, the ox shall be stoned and its owner also shall be put to death.”
Douglas Stuart: In v. 29 the situation shifts to that of a bull already known to its owner to be dangerous. Here the owner who did not keep the bull properly confined had no excuse; if his bull killed someone, it was fully his fault that the person died, and the owner must be put to death for what today would be termed negligent homicide. The bull must also die since it would make little sense to keep it alive in light of the prospect of its killing someone else when given the chance.
How then could the law go on to say in v. 30, “However, if payment is demanded of him …”? Doesn’t this undermine the whole point of the preceding penalty description requiring the death penalty? It does not. This second part of the verse gave necessary leeway to the judges in complicated cases. Suppose the bull had tried to gore someone only once, many years previously, and someone had borrowed the bull against the owner’s advice and had mistreated the bull and then was gored to death. Under such circumstances a judge might well decide (and this law gave him the freedom so to do) that the death penalty for the bull’s owner would not be fair—a fine being far more appropriate to the actual level of culpability.
2. (:30) Mercy Possible When Ransom is Accepted
“If a ransom is demanded of him, then he shall give for the redemption of his life whatever is demanded of him.”
Philip Ryken: According to God’s law, when criminal negligence led to a deadly accident, strict justice demanded the death penalty. However, the law allowed a victim’s family to show mercy by demanding restitution instead of retribution. Rather than executing the death penalty, they could demand a ransom, apparently set by the town’s elders. The ransom was blood money, or what today we would call a death indemnity. Obviously, no one could bring the family member back to life, and no price could ever equal the value of even one precious life. However, the payment of a ransom would at least acknowledge that the family had suffered a great loss.
3. (:31) No Differentiation Due to Sex of Victim
“Whether it gores a son or a daughter, it shall be done to him
according to the same rule.”
David Thompson: So clearly the lives of children were just as sacred and significant as the lives of adults.
4. (:32) Lesser Penalty When a Slave is Killed
“If the ox gores a male or female slave, the owner shall give his or her master thirty shekels of silver, and the ox shall be stoned.”
B. (:33-34) Animals Hurt by Human Negligence
“And if a man opens a pit, or digs a pit and does not cover it over, and an ox or a donkey falls into it, 34 the owner of the pit shall make restitution; he shall give money to its owner, and the dead animal shall become his.”
Alan Cole: More likely for grain storage than water storage. Pits were also used as traps for animals (2 Samuel 23:20) or prisons for men (Genesis 37:24).
Douglas Stuart: X’s animal has no automatic right to be wandering around Y’s farm, near Y’s pit. Yes, animals could wander off; and yes, a deep pit was a dangerous thing to leave uncovered. But the owner of the wandering animal bore some responsibility for allowing it to wander off and therefore should be compensated at no greater a rate than the market value of the animal.
James Jordan: If you have a balcony, you had better put a rail on it, or you are liable if someone falls off (Dt. 22:8). If you have a pile of broken glass, make sure children cannot get to it. If you have a swimming pool, make sure access is limited. If you have an old refrigerator in your yard, make sure the door is broken so that children cannot shut themselves in it.
C. (:35-36) Animals Hurt by Someone Else’s Animal
1. (:35) Unexpected Behavior Results in Equal Settlement
“And if one man’s ox hurts another’s so that it dies, then they shall sell the live ox and divide its price equally; and also they shall divide the dead ox.”
2. (:36) Expected Behavior Results in Unequal Settlement
“Or if it is known that the ox was previously in the habit of goring, yet its owner has not confined it, he shall surely pay ox for ox, and the dead animal shall become his.”
John Oswalt: The final group of covenant stipulations pertains to injury done by or to an animal (21:28–36). Here there are three principles being illustrated. The first is the sanctity of human life. So if an “ox” killed a man or woman, the ox had to be killed (21:28, 29, 32). This is in keeping with Genesis 9:5–6, where God said that he would require the blood of either human or animal that killed a human, who bears the image of God. This case is found in almost the same words in virtually every law code in the ancient Near East, but the idea of the absolute value of human life apart from economic considerations is unique to the Hebrew version of the case. The point is further underscored by verse 35 which says that the ox which kills another ox is not required to be killed.
The second principle is that the degree of responsibility is mitigated by prior knowledge. If a person did not know that his ox posed a danger to others and thus did not take precautions, that person is absolved of responsibility for the ensuing death (21:28). The owner was doing everything that could be expected of him. However, failure to take precautions when the danger was known is not mere negligence; in the case of humans it is murder, and is to be treated as such (21:29), with the one provision that since no malicious intent was involved, the owner can negotiate with the family for his life by paying whatever compensation they demand (21:30). This principle of knowledge as responsibility is further expressed in verses 33 and 34, where it is said that if an animal falls into an uncovered pit, the one who left the pit uncovered is held responsible.
The third principle is the right of compensation for the loss of benefits through the action of another. The negligent owner, if the family of the victim permits it, can pay compensation for the lost life, and he must pay compensation to the owner for the life of a slave. Likewise, he must give the owner of a dead animal the full price of the animal (21:34, 36). Only in the case of an unanticipated killing of one animal by another do the two owners share the loss equally (21:35).
III. (22:1-15) PROPERTY LAWS AND PRINCIPLES OF RESTITUTION
Douglas Stuart: The advantage of restitution over residency is at least fourfold.
(1) It compensates the victims of a crime more generously and more immediately than is the case in modern Western societies.
(2) It requires the offender to deal directly with the person he has offended and to face the effects of his crime on that person.
(3) It permits a repentant offender to continue a productive life immediately upon making restoration.
(4) And it does not require society to provide housing, food, and clothing for the duration of the offender’s imprisonment.
In the logic of modern jurisprudence, however, potential disadvantages are also theoretically present in this system. In the main there are two: the richer the criminal, the easier it is for him to make restitution, so only poor criminals tend to end up punished by some other means than restitution for their failure to compensate the victim; and imprisonment offers society the protection of keeping out of circulation the person who, if fines alone were allowed to suffice for his penalty, could engage in criminal activity again immediately.
Behind all the laws in this section is the simple principle that the person who causes someone else to lose something (whether personal property or real estate or money) by whatever means (from theft to mere neglect to bypassing the normal betrothal process) owes compensation to the person who has suffered the loss. The more intentional the means of deprivation (e.g., outright stealing), the higher the required restitution, normally calculated in multiples of the value of the loss suffered. Simple neglect was to be compensated on whatever level the judge in the case required. If no culpability was evident, however, no compensation was required. Some of these laws were intended to remind the Israelites that in God’s providence, some things “just happened” and were no one’s fault and therefore did not require restitution.
John Oswalt: This collection has to do with outright theft (22:1–4), loss through negligence by another (22:5–6), loss of something left in safekeeping (22:7–13), and loss of something borrowed (22:14–15). The principles illustrated are similar to or identical with those already encountered above. They include: Human life is more valuable than property; failure to exercise due care brings liability; situations beyond one’s control usually absolve one of responsibility; accepting things for safekeeping involves a lower level of responsibility than does borrowing them. Central are the matters of intentionality and diligence. God’s world is one of cause and effect in which humans have freedom, worth, dignity, and accountability, and in which they are expected to exercise due care on behalf of their neighbors’ possessions.
A. (:1-4) Dealing with Thieves
1. (:1) Dealing with Stealing Livestock – Not Recoverable
“If a man steals an ox or a sheep, and slaughters it or sells it,
he shall pay five oxen for the ox and four sheep for the sheep.”
Cf. Luke 19 – example of the thief Zacchaeus – a heart transformed by the grace of God will want to make restitution
David Thompson: In God’s society you were not given government handouts if you refused to work. So since criminal types are too lazy to work themselves, they are always looking to make a fast buck by stealing something someone else has. Stealing is never justifiable.
Now oxen were work animals and would be a little more difficult to steal, but a sheep would be a little easier to steal. God said the penalty is that a thief must pay restitution for each animal he stole. If he stole an ox, he must pay back five oxen for the one he stole, which is a 400% steep fine. If he stole a sheep, he must pay back four sheep for the one he stole, which is a 300% steep fine. This certainly was a detriment to stealing. The sociologists, who claim that punishment does not deter crime, don’t know what they are talking about because God’s Word says it does.
Dale Crawford: We have to understand that an ox was the chief means of labor in an agrarian culture. The ox was the farmer’s tractor.
• To lose an ox represented days lost of productivity.
• In addition, it took years to train a good ox – the loss of it was hard to replace.
2. (:2-3) Dealing with Thief Caught Breaking In
a. (:2) Justified Killing of a Thief at Night Time
“If the thief is caught while breaking in, and is struck so that he dies, there will be no bloodguiltiness on his account.”
b. (:3a) Unjustified Killing of Thief in Day Time
“But if the sun has risen on him,
there will be bloodguiltiness on his account.”
Douglas Stuart: Thus the present law allowed the use of deadly force against intruding thieves from sundown to sunup, but not during the daylight. The property owner could still defend against theft in the daytime but could not use lethal force in the process. The law, in other words, did not allow unlimited freedom to the victim of a crime to defend or retaliate. Even a criminal caught in the act of a serious crime had protections; conversely, even the victim of a serious crime could be prosecuted for murder if he resisted more violently than could be justified (thus the specific mention of being “guilty of bloodshed)”.
John MacKay: In the light of day the house owner could assess the situation, identify the culprit and ensure that whatever damage or loss was sustained by his actions was brought to trial before the appropriate authorities. The owner was not permitted to deal summarily with the would-be thief. In this respect again there is a marked difference from what was permitted in surrounding countries. The Old Testament required that due regard be paid to the life of the thief.
James Jordan: I suggest that the meaning of the law is this: If you don’t recognize him, and cannot deal with him in any other way, you may kill him; but if you know who he is, or have the strength to deal with him, you may not kill him. This will vary from situation to situation, and local ordinances specify what a shopkeeper or house owner may do to a person who breaks in.
b. (:3) Restitution Required of Captured Thief
“He shall surely make restitution;”
c. (:3b) Selling Into Slavery Allowed Where No Restitution Possible
“if he owns nothing, then he shall be sold for his theft.”
3. (:4) Dealing with Stealing Livestock – Recoverable
“If what he stole is actually found alive in his possession, whether an ox or a donkey or a sheep, he shall pay double.”
Douglas Stuart: As in the previous chapter, in the present chapter are some instances of three or more laws being grouped in a concentric or chiastic pattern, and vv. 1–4 appear to be such a grouping. Verse 1 addresses victim compensation requirements for stealing livestock in the case of a thief who had actually been caught. Verses 2–3a address the difference between mere breaking and entering and actual burglary, indicating in the process the penalty meted out to a thief either on the spot by someone defending his farm or by a court. Verse 3b tells how to handle a situation in which a thief cannot make restitution for what he has stolen; and v. 4, completing the chiasm, again returns to the question of restitution for stolen animals but with the special qualification of reasonable doubt about the matter of intent on the part of the thief.
B. (:5-6) Damages Due to Neglect
1. (:5) Caused by Straying Animals
“If a man lets a field or vineyard be grazed bare and lets his animal loose so that it grazes in another man’s field, he shall make restitution from the best of his own field and the best of his own vineyard.”
David Thompson: No intelligent farmer or rancher would just allow his animal to wander over to other people’s land and let them just graze and eat someone else’s crops. Any responsible owner of animals knows you must protect your animals from doing destructive things to your neighbors.
At night you need to see that the animals are fenced in. Now if your sheep, goats, cows, horses, donkeys or oxen were just turned out to free graze and it went to someone else’s property and ate from another man’s field, the owner of the animal was responsible to make restitution by giving the best of his own field and vineyard. This could include things harvested and not harvested.
A goat would not just eat the fruit of the vine; it might eat the whole vine, so the vine would need to be replaced.
2. (:6) Caused by Out of Control Fire
“If a fire breaks out and spreads to thorn bushes, so that stacked grain or the standing grain or the field itself is consumed, he who started the fire shall surely make restitution.”
John MacKay: Both these scenarios show that an individual is responsible for the indirect consequences of his actions on the property of others. He ought to consider the possible impact of what may go wrong through negligence. The principle involved is readily generalised into many other areas of life, for instance, in terms of the costs of pollution imposed by one party on others.
Dale Crawford: Both of these cases were accidents. The farmer didn’t intend for his cattle to graze another man’s field. The fire wasn’t caused by arson. But the Bible teaches legal liability. In each case the restitution had to be made.
C. (:7-13) Disputes Over Custody of Property in Safekeeping
1. (:7-9) Property Reported Stolen
a. (:7) Restitution by the Captured Thief
“If a man gives his neighbor money or goods to keep for him, and it is stolen from the man’s house, if the thief is caught, he shall pay double.”
Douglas Stuart: Verse 7 addresses the easiest circumstance: theft of goods given to someone else for safekeeping was the responsibility of the thief as long as he was caught. He must repay double (the standard for non-animal items), and the matter was closed between the person who entrusted his money (NIV “silver”) or other goods to the neighbor.
b. (:8-9) Contested Settlement Decided by Judges
“If the thief is not caught, then the owner of the house shall appear before the judges, to determine whether he laid his hands on his neighbor’s property.
For every breach of trust, whether it is for ox, for donkey, for sheep, for clothing, or for any lost thing about which one says, ‘This is it,’ the case of both parties shall come before the judges; he whom the judges condemn shall pay double to his neighbor.”
Douglas Stuart: if both parties had (as the covenant expects) a proper fear of God (i.e., a fear of the consequence of disobeying him), it would normally be the case that, under oath, one of them would somehow and to some sufficient degree admit to being in the wrong in the dispute over the piece of property and would accept the requirement that he pay back double to his neighbor.
Philip Ryken: In the case of safekeeping, the person who asked his friend to watch his things assumed the risk. When it came to borrowing, however, the borrower had to take full responsibility. If something happened to borrowed property—even if it was only an accident—the borrower had to make full restitution. No penalties were involved because the borrower was innocent of wrongdoing, but he still had to make up the owner’s loss. There were some exceptions. If the owner happened to be present when the accident or injury happened, then the owner had to take responsibility for his own property. It was up to him to make sure that everything possible was done to save the animal. The owner also had to take responsibility if the animal was hired rather than borrowed. In this case the rental price was supposed to cover the loss; so it was up to the owner to calculate the risk of hiring out his animal and factor it into his price.
2. (:10-13) Property Loss as it Relates to the Issue of Restitution
a. (:10-11) No Restitution if No Fault
“If a man gives his neighbor a donkey, an ox, a sheep, or any animal to keep for him, and it dies or is hurt or is driven away while no one is looking, 11 an oath before the LORD shall be made by the two of them, that he has not laid hands on his neighbor’s property; and its owner shall accept it, and he shall not make restitution.”
David Guzik: This principle is the foundation of our idea that a man is innocent until proven guilty. In this case, the man’s oath was taken as true unless proof to the contrary could be found.
b. (:12) Restitution if Stolen
“But if it is actually stolen from him,
he shall make restitution to its owner.”
Douglas Stuart: Verse 12, on the other hand, applies a standard that goes beyond the simple question of the innocence of the neighbor. Taking in an animal for safekeeping imposed a solemn responsibility on a person that required the person to preserve the animal from unobserved theft or pay restitution. One who agreed to keep an animal for another person for a time implicitly accepted this risk. The question might well be asked, “But since v. 13 exonerates the safekeeper from penalty if the animal could be proved to have been killed by a predator, why should the safekeeper be required to pay compensation for an animal that was stolen? The theft was no more his fault than the killing by the predator.” The answer lies in the provability: only if the thief was caught was the safekeeper innocent (v. 7). Otherwise, he could not prove that a theft had occurred and thus presumptively was considered personally responsible for the loss of the animal. Claiming that “it must have been stolen” was no defense under the law.
c. (:13) No Restitution if Proof of Being Torn to Pieces
“If it is all torn to pieces, let him bring it as evidence;
he shall not make restitution for what has been torn to pieces.”
D. (:14-15) Disputes Over Property Borrowed
1. (:14) Conditions Requiring Restitution
“And if a man borrows anything from his neighbor, and it is injured
or dies while its owner is not with it, he shall make full restitution.”
2. (:15) Conditions Not Requiring Restitution
“If its owner is with it, he shall not make restitution;
if it is hired, it came for its hire.”