Amongst the many laws presented in this week's parasha, MIshpatim, is a group of laws regulating the responsibilities of guardians of property. These three paragraphs, Shemot 22:6-14, are understood by the Chachamim as addressing the cases of four distinct types of guardians, the classic arba'ah shomrim. The unpaid guardian, shomer chinam, exempts himself from responsibility should the item he is guarding be damaged, destroyed, lost, stolen, etc., by taking an oath that he was neither negligent in his duties, nor did he himself misappropriate the item. He has no personal benefit from the arrangement, and thus he has the least responsibility. On the other end of the spectrum the borrower, or sho'el, must pay in every case. He has all the benefit – use without payment - and thus he must shoulder all the responsibility. In between fall the renter (socher) and the paid guardian (shomer sachar). At first glance, this might seem to be a curious grouping – isn't the renter more like the borrower, while the paid guardian is more like the unpaid guardian. No: the key here is not who may USE the item, but who is benefiting from the arrangement. A careful examination will show that in each of these two middle cases, BOTH the guardian and the owner benefit. Therefore, in cases such as theft and loss, the guardian must pay, while in cases such as an armed heist, or, say, the animal broke its leg, the guardian exempts himself with an oath.
Now there is a very strange detail regarding these laws that wants of a convincing explanation. IF the borrower borrows his fellow's ox, and at the same time or previously he had borrow the services of his fellow himself, or even hired him to work in his field, then the borrower may exempt himself from his normal obligation to pay by taking an oath, something he may not usually do.
What is it about the presence of the animal's owner in the employ or assistance of the borrower which changes the responsibility of the borrower? It cannot be that we hold that since the owner is there with his animal, then he is expected to watch over it. This is because a) the law reducing the responsibility of the borrower in such cases holds even if the animal's owner is working for the borrower somewhere else on his vast estate, and b) IF the animal is borrow BEFORE it's owner is borrowed or hired, then the borrower remains responsible even the owner is the one actually present with the animal when the damage occurs.
This points to the following way of understanding this law, called she'ilah babe'alim. One approach is as follows: one cannot be both subject to another AND subjugate that other at the same time. Now, when the borrower borrows his fellow, that fellow is subjugated to the borrower. When, subsequently, he borrows his fellow's property, his fellow cannot subjugate him via the normal relations between borrower and owner, because he himself is subjugate to the borrower already.
If you have come this far with me, catch your breath, but hold on, because you're now in for a treat. The Or HaChaim interprets this law as an allegory for the relations between the human being and Hashem. Hashem is the owner (the ultimate Ba'al Habayit) of our souls. We have the soul on loan from Hashem. This idea runs throughout Jewish thought, from Modeh Ani in the morning to why we cannot do what we will with our own lives – they're not OURS to commandeer. Our task is to shepherd the soul along the paths of life, being careful to guard it from dangers and depredations. At the end of 120 years, we will face judgment, and we will be called to account for any "damage" done to the soul on our watch. After all, explains the Or Hachaim, the halacha is that even if the borrower says to the owner, "fetch me a drink of water" and then borrows the animal, that invokes the law of shemirah bab'alim.. How much the more so when Hashem has prepared the entire world for us, supplying us with our needs, renews each day the creation, and, on a mystical plane, is constantly with us and within us ("everywhere Yisrael is exiled, the Shechina is exiled WITH them", "Hashem is your very shade, at your right hand"). Therefore, asks the Or HaChaim, why shouldn't we be able to exempt ourselves on the day of judgment by invoking the rule that, since Hashem is with us in our work, we are not ultimately responsible for the damage incurred by the soul?
One answer he brings is as follows: Even though in general, we hold that one cannot make conditions altering the provisions of the Torah, Rabbi Yehuda holds (and the halachah follows him on this point) that one can make conditions on monetary arrangements. Thus, if one says, "I will act as paid guardian, on the condition that my level of responsibility is that of an unpaid guardian", then the condition is valid. Thus, if one lent one's animal AND oneself on the condition that the special exemption of she'ilah bab'alim doesn't apply, that is valid. The very fact that there are punishments in the Torah for its violation is testimony to the fact that, indeed, that is the "condition" upon which Hashem agreed to lend us both our souls and His assistance.
I'm really enchanted by this allegorical reading, and I'd like to play it out further: Perhaps some people should be considered unpaid guardians with respect to their souls – these tzaddikim don't USE their souls for their own benefit, but are constantly attentive to guarding and nourishing the soul for its own sake. Perhaps others are in the middle position – they are like renters – they DO USE the soul, but they pay their dues – they keep the mitzvot, so they can allow themselves to look upon their responsibilities as fulfilled (after all, they're YOTZE), and they can now indulge a bit the good life. Perhaps still others can be looked at as paid guardians – they DON'T use the soul for their own sake, but they sure are keen on getting paid, and, since schar mitzvah b'hai alma leika, that is, there's no reward for the many mitzvot they do in this world, their eyes are constantly turning toward the world to come.
But to come back to the question of the Or HaChaim: how can there be a true judgment if we can claim that the owner of the soul was with us all the time, and we are exempt. Here's another answer: recall that shemirah bab'alim is invoked only when the owner was brought on board simultaneously with or preceding borrowing the item. If the owner is brought on board AFTER the borrowing has taken place, the borrower remains with his full complement of obligations, since the owner was never subjugated to the borrower.
We can never subjugate Hashem, and we become cognizant of His Presence in our lives only well after we are granted our souls, through diligent inner work. But there IS a way in which we can invoke the law of spiritual shemirah bab'balim. We know that teshuva pre-existed the creation of the world. When one does teshuva motivated by love for Hashem and His Torah, then even intentional transgressions are converted into merits. When a person does this sort of teshuva, he is invoking a relationship with Hashem that actually pre-dates his own birth, his own conception, even the creation of his soul. It then turns out, retroactively, that indeed, Hashem is with us, by our side, working with us when the "damage" occurs!! Not only are we exempt, but the repair is made on the spot!!
So: let us not hesitate to enter into a relationship of borrower regarding that which Hashem provides for us. For, when the ultimate Ba'al HaBayit meets the ultimate Ba'al Teshuva, He gladly lends a hand!!
Comments