Lessons from the Law: No.21 : Laws of Negligence
Ex 22:5,6 If a man grazes his livestock in a field or vineyard and lets them stray and they graze in another man’s field, he must make restitution from the best of his own field or vineyard. “If a fire breaks out and spreads into thorn bushes so that it burns shocks of grain or standing grain or the whole field, the one who started the fire must make restitution.
In modern law a duty of care arises when a person is in a position to foresee that an action or lack of action of theirs is likely to cause to others injury of damage or wrong reliance upon them, and negligence occurs when there is a breach of that duty and as a result another has suffered damages (loss). This is law that has only become clear in the last hundred years. What we now come to are laws of negligence that applied over three thousand years ago in the Law of Moses and they run from verse 5 to verse 15 of chapter 22 of the book of Exodus.
Verses 5 & 6 are about restitution for loss caused by the carelessness of a land owner. Both of these come more under the law of Strict Liability that we recently considered earlier where, if you have something dangerous on your land you will be liable for the damage it causes if it escapes because of your carelessness. If livestock escape, of course they will eat the grass on neighbouring ground. If fire breaks out and is not contained, of course it will cause damage on neighbouring land. In both cases the original land owner is liable for the dame to his neighbours land.
Verses 7 to 9 are about restitution if a neighbour’s goods, generally, are stolen while in the care of another: “If a man gives his neighbor silver or goods for safekeeping and they are stolen from the neighbor’s house, the thief, if he is caught, must pay back double. But if the thief is not found, the owner of the house must appear before the judges to determine whether he has laid his hands on the other man’s property. In all cases of illegal possession of an ox, a donkey, a sheep, a garment, or any other lost property about which somebody says, ‘This is mine,’ both parties are to bring their cases before the judges. The one whom the judges declare guilty must pay back double to his neighbor.” (Ex 22:7-9). If the goods are stolen the original law of theft applies (Ex 22:4) but if no trace of a thief is found it may be that the neighbour may have taken the good for himself and so it must be taken to court, and if the court determines the neighbour has taken the goods for himself then the normal law of theft applies.
Verses 10 to 15 are specifically about animals left in the care of another. “If a man gives a donkey, an ox, a sheep or any other animal to his neighbor for safekeeping and it dies or is injured or is taken away while no one is looking, the issue between them will be settled by the taking of an oath before the LORD that the neighbor did not lay hands on the other person’s property. The owner is to accept this, and no restitution is required. But if the animal was stolen from the neighbor, he must make restitution to the owner.” (v.10-12) The law appears at first sight to be the same as for personal property left in safe keeping but the difference is that rather than go to court to settle it, it is settled by a solemn oath before God which is seen as sufficient to deter untruth, and no restitution is required when the animal has simply died or injures itself. The reference to it being “taken away while no one is looking” would seem, to suggest it was taken either from his own property or without the knowledge of the person caring for it, because in this case the other person is required to make restitution for it
When it is in the care of another, “If it was torn to pieces by a wild animal, he shall bring in the remains as evidence and he will not be required to pay for the torn animal.” (v.13) i.e. if a marauding wild animal got in and destroyed the animal being cared for, as long as there is evidence of the remains there are no repercussions.
There is one further stipulation: “If a man borrows an animal from his neighbor and it is injured or dies while the owner is not present, he must make restitution. But if the owner is with the animal, the borrower will not have to pay. If the animal was hired, the money paid for the hire covers the loss.” (v.14,15) This is a case where an animal is borrowed (?possibly a horse or a donkey) and it is injured or dies while with the other man. The outcomes depend on whether the owner was present or not. If he was (and can see there was no mistreatment – implied?) there is no come back, but if he wasn’t then the borrower must make restitution. If it happens when the animal was hired, then it is assumed that the hire cost covers such eventualities.
Again, in an agricultural economy, these things would happen and were therefore very important. God gives the guidelines that are quite reasonable and they operate to protect each person involved.