One of the most precious Hebrew manuscripts at the Bodleian library is a handwritten draft edition of a section of the Mishneh Torah by Rabbi Moses ben Maimon, known as Maimonides (1135-1204)[1]. The Mishneh Torah was completed in 1180 and consists of a Jewish legal work by subject matter of the entire Talmudic and Gaonic literature of Jewish law. The manuscript, which was recently on display at the Bodleian Library, organized by the Oxford University Chabad Society, has ten leaves[2] and was bought from the Cairo Genizah through the Rev. G. J. Chester in 1890. The Cairo Genizah is a designated room attached to the old Ben Ezra Synagogue in Cairo where discarded pages containing the name of G-d were deposited, to preserve G-d’s name from profanation. It was allowed to accumulate over a period of about a thousand years.
The manuscript[3] contains the Laws of Hire (sechirut) and the Laws of Borrowing and Deposits (Sh-eilah upikadon) and it is clearly a draft copy that was undergoing edits in the text before the final version was completed. As a work in progress, the manuscript offers a rare glimpse into the thinking process of Maimonides in his formulation of the laws.
In this essay, I will analyse an aspect of this manuscript relating to the subject of the liability of a borrower where the text in the draft edition appears to differ from the published version. Unlike other differences in the manuscript, where an earlier omission of a text or marginal note was later added in the completed version, in this case, perplexingly, a text is found in the draft edition but later seems to have been removed for the completed version. Indeed, the published edition of the Mishneh Torah does not include the particular text at all, implying that while initially there was a thought to include the text, upon further thought and consideration the text was omitted. This essay will offer an in-depth analyses of the significance of this text and propose a theory why it would have been first added and what the thought process may have been that caused the text to be subsequently removed.
Liability of a borrower – fully liable
In Jewish law there are four categories of a custodian with different levels of liability. The Mishnah states[4]:
There are four types of custodians: an unpaid custodian, the borrower, a paid custodian and a renter. An unpaid custodian swears with regard to everything and is exempt from liability. The borrower is liable for everything. The paid custodian and the renter swear and are exempt from liability with regard to unavoidable mishap, like an animal that broke a limb, or was captured by armed brigands or died of natural causes and they pay for loss or theft.’
Except for work-related death and emaciation
Although the Mishnah legislates that a borrower is liable for everything, including theft and accidental mishaps, there is one exemption: if the animal dies or becomes emaciated due to the work, the borrower is not liable. These two laws – exemption of liability for death and emaciation due to labour – are both codified by Maimonides in his legal code Mishneh Torah.
The law regarding the death of animal states as follows[5]:
When a person borrows utensils, an animal or other movable property from a colleague, and it is lost or stolen, or even if it is destroyed by factors beyond his control - e.g., an animal is injured, taken captive or dies - the borrower is required to make restitution for the entire worth of the article, as stated in Exodus (22:13): "If a person borrows an animal from a colleague and it will become injured or die, and the owner is not with him, he must make financial restitution." When does the above apply? When the loss due to factors beyond his control does not take place while the borrower is working with the animal. If, however, a person borrows a colleague's animal to plough, and it dies while ploughing, the borrower is not liable. If, however, the animal dies before he ploughed with it or after he ploughed with it, or he rode upon it or threshed with it and the animal died while he was threshing or riding, the borrower is liable to make financial restitution. Similar laws apply in all analogous situations. Similarly, if a person borrows an animal to travel to a particular place and the animal dies under him on that journey, he borrows a bucket to fill water with it and it falls apart in the cistern while he is filling it, he borrows a hatchet to split wood and it breaks because of the chopping while he is splitting the wood, he is not liable. Similar laws apply in all analogous situations. The rationale is that he borrowed the article solely to perform this task, and he did not deviate from his original request.
(Mishneh Torah, Laws of Borrowing and Deposits 1:1)
The law regarding the emaciation of the animal due to labour is stated a few paragraphs later in the following text[6]:
If its meat depreciates in value because of the work the animal performs, he is not liable. He must, however, take the oath required of a watchman, swearing that it depreciated because of the work.
Witnesses or oath - Maimonides
The burden of proof that the animal in fact died because of its work and not negligence is upon the borrower. There are two scenarios that achieve the exemption from liability of the borrower: a. an oath b. through witnesses, where possible, testifying that the borrower did not overwork the animal or use it for any other purpose than for which it was borrowed. If it is a place which people frequent, witnesses must be presented. Otherwise, the borrower remains liable. In a case where witnesses are not found, as the place of work is not somewhere people frequent, an oath is sufficient.
These two scenarios are codified in the Mishneh Torah. Maimonides writes[7]:
The following rules apply when a person borrows an animal from a colleague, it dies, and the borrower claims that it died while in the midst of work. If he borrowed it to travel to a place where people are commonly present, he must bring witnesses who testify that it died or it was destroyed by forces beyond his control while he was working with it, and he did not deviate from his original request. He is then freed of liability. If he does not bring proof, he is liable. Different rules apply when a person borrows an animal to fill up the earth in his ruin, i.e., a place where it is not common for witnesses to be present, or he borrowed a bucket to fill the cistern in his house and the bucket was destroyed in the cistern. If he brings proof that the animal or the object was destroyed in the process of performing the task for which it was borrowed, he is not liable even to take an oath. If he cannot bring proof, he must take the oath required of watchmen that the animal died during the performance of the task for which it was borrowed. Similar laws apply in all analogous situations.
Witnesses only - Talmud
The view of Maimonides is however contradicted by the Talmud, as the Talmud implies that only witnesses are acceptable to exempt liability. The Talmud states[8]:
A man once borrowed an axe from his neighbour, and it broke. When he came before Raba, he said to him, ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability.’ A man borrowed a bucket from his neighbour, and it broke. When he came before R. Papa, he said to him, ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability.’ A man borrowed a cat from his neighbour; the cat ate many mice, whereby it sickened and died. Now, R. Ashi sat and cogitated thereon: How is it in this case? Said R. Mordechai to R. Ashi: Thus did Abimi of Hagronia say: A man whom women killed (through excessive gratification) – for him there is no judgement nor judge.
From the statement of the Talmud: ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability’, it appears that there is no option for a borrower to make an oath in the case of work related death of the animal. This seems to contradict Maimonides who says that where possible, witnesses should be produced, but otherwise an oath may be made.
Contradiction in the Talmud
This view of the Talmud however also contradicts a second text of the Talmud, where it suggests that an oath is sufficient for a borrower to be exempt of liability, similar to other custodians. In tractate Bava Metziah[9], Talmudic sage Rami bar Chama interprets the verse in Exodus (22:13): ‘And if a person borrows [an animal] from his neighbor and it breaks a limb or dies, if its owner is not with him, he shall surely pay’, suggesting that the word ‘And’ before ‘if a person borrows’ is intended to compare a borrower with other custodians in the use of an oath to exempt liability.
Italian Tosafist Rabbi Isaiah di Trani ben Mali
Italian Tosafist Rabbi Isaiah di Trani ben Mali (the Elder) (c. 1180 – c. 1250), offers three possible interpretations of the Talmud to reconcile this contradiction:
1. The Talmud is in fact of two opinions regarding whether an oath may be relied on at all in the case of a borrower. According to Rami bar Chama, an oath may be used; according to the Talmud in the case of work related death and emaciation due to labour, witnesses must be produced and an oath is not accepted.
2. The Talmud is presenting two alternative scenarios: one is where witnesses may be found, in which case witnesses must be brought; the other relates to work conditions where it would not be common for people to be present, in which case an oath is accepted.
This view is based on the opinion of the Talmudic sage Issi ben Yehudah[10], who extrapolates this from the following verse in Exodus[11]:
If a man gives his neighbor a donkey, a bull, a lamb, or any animal for safekeeping, and it dies, breaks a limb, or is captured, and no one sees [it], the oath of the Lord shall be between the two of them provided that he did not lay his hand upon his neighbor's property, and its owner shall accept [it], and he shall not pay.
Issi ben Yehudah argues that the juxtaposition of the words ‘no one sees it’ and ‘the oath of the Lord’ is intended to offer the option of an oath only as an alternative when there are no potential witnesses. Where there are potential witnesses, the borrower is not exempt by making an oath.
3. The case in the Talmud that allows for an oath refers to a borrower who proceeded, on his own, to make an oath, in which case the oath is accepted. In an ideal situation, the court should not initiate the option of an oath; in the first instance, witnesses need to be presented.
Rabbi Isaiah di Trani ben Mali makes clear that he prefers the first interpretation, whereby, in the case of work related death, the Talmud presents the view that an oath may not be administered at all. This explains the singular option presented in the Talmud: ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability.’
Maimonides’ ‘alternative options’ reading of the Talmud
Maimonides evidently however prefers the second interpretation of the Talmud, based on the opinion of R. Issi ben Yehudah[12]: if the animal died in a place where there are people present, witnesses must be brought; if people are not present, an oath may be administered. This interpretation of the Talmud also reconciles the view of Maimonides with the Talmud, as Maimonides clearly presents two alternative scenarios: where it is common for people to be present witnesses must be presented; where people would not have been present, an oath may be made[13]. This interpretation of the Talmud is also the view of leading French Tosafist Rabbi Samson ben Avraham of Sens, known as the Rash of Sens (c. 1150-c. 1230), Rabbi Abraham ben David (c. 1125 – 1198), known by his acronym Raavad[14], and Catalan Rabbi Menachem ben Solomon Meiri (1249 – 1306), known as the Meiri[15].
Why does Maimonides not limit the use of an oath in the case of emaciation?
This interpretation of the Talmud is however problematic when presented with the view of Maimonides in regards to the law concerning emaciation. The law concerning emaciation and the law concerning the death of the animal due to labour are presented together in the Talmud[16]:
The sages propounded: What if the borrowed animal became emaciated through its work? Said one of the Rabbis, R’ Helkiah the son of R’ Avya by name: Then it follows that if it died through the work, he is certainly responsible. But let him say to the lender, ’I did not borrow for exhibition in a show case!’ But, said Raba, not only is it necessary to state that if it became emaciated through work he is not responsible, but even if it died through work, he is not liable, because he can say, ‘I did not borrow it so that it should stand in a show case!’ A man once borrowed an axe from his neighbour, and it broke. When he came before Raba, he said to him, ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability.’ A man borrowed a bucket from his neighbour, and it broke. When he came before R. Papa, he said to him, ‘Go and bring witnesses that you did not put it to foreign use, and you are free from liability.’
In the text of Maimonides’ edited version of the Mishneh Torah, however, the requirement to exhaust the option of witnesses where possible is only mentioned regarding the law concerning the death of the animal but not the law concerning emaciation. In the case of emaciation Maimonides simply writes[17]:
If its meat depreciates in value (due to emaciation), he is liable to pay for that reduction. If its meat depreciates in value because of the work the animal performs, he is not liable. He must, however, take the oath required of a watchman, swearing that it depreciated because of the work.
If we accept, as argued above, that the text of Maimonides is based on the exegetical teaching of Issi ben Yehudah - whenever an oath is required, one must first exhaust the option of potential witnesses - there is no logical reason to differentiate between the case concerning the exemption of liability for death of the animal due to work and the law concerning emaciation due to work; in both cases the law should be that where there are potential witnesses, witnesses must be found to verify that the borrower did not use the animal for foreign labour.
However, when looking at both laws in the Mishneh Torah, Maimonides strikingly distinguishes between the law of the death of the animal due to labour and the law of emaciation. In the case of the death of the animal, witnesses, where possible, must be consulted; in the case of the emaciation of the animal the clause about the need for witnesses, where possible, is glaringly omitted - stating only that an oath is sufficient. What is the reason for this inconsistency in Maimonides[18]?
Oxford’s Cairo Genizah Draft Manuscript of the Mishneh Torah
When analysing the Oxford Cairo Genizah draft edition of Maimonides’ Mishneh Torah, there is in fact an extra sentence in the text. It states:
In a place where it is possible to bring proof (r’ayah) he should bring proof that the animal became emaciated due to labour; otherwise he should pay.
This addition in the draft manuscript would reconcile the above inconsistency in the text of Maimonides. In the completed edition of the Mishneh Torah, however, the above text is omitted, suggesting that the text was in the draft edition but removed by Maimonides in the final edition - and is in fact not present in the standard printed editions of Maimonides. One may therefore ask the question: what is the underlying theory for the text to have been in the draft edition in the first place but then subsequently removed in the completed edition[19]?
I would like to argue that Maimonides – popularly considered the greatest Jewish legalist since the Bible[20] - added the clause in the draft edition and removed it in the completed version due to a consideration of two underlying theories pertaining to the law of a borrower, as debated among the medieval Talmudists. The medieval commentaries question the basic rationale offered by the Talmud for the exemption of liability of a borrower when an animal dies during labour. If a borrower is liable, according to Jewish law[21], for accidental damages beyond the control of the borrower (oiness), why is the borrower not liable for the death of the animal when it occurs due to his work with the animal?
Two reasons for exemption of liability of a borrower – lender negligence or expected loss
The medieval commentaries offer two rationales for the exemption of liability of a borrower in the case of the death of the animal due to work. Rabbi Moses ben Nachman Girondi, known as Nachmanides (1194 – 1270), argues that a borrower is in fact liable for all occurrences, except when the lender has been negligent. In such a case, the burden of liability is removed from the borrower to the lender. Since the animal borrowed to do work was in fact unfit for such work, the lender of the animal is considered negligent and therefore assumes the liability for its death, thereby exempting the borrower.
A second rationale for exemption of the borrower is by Rabbi Shlomo ben Aderet, known by his acronym Rashba (1235–1310). He argues that a lender is not particular (lo kapid) and does not expect liability from the borrower when an animal dies due to the labour the animal was borrowed to perform.
Difference between to the two reasons
The obvious difference between the rationale of Nachmanides and the rationale of Rashba is: if we say the exemption of the borrower is based on the negligence of the lender, one may differentiate between the death of the animal and the emaciation of the animal. In the former (death of the animal) one may ascribe negligence to the lender for loaning an animal that is unfit for work; one cannot say the same in the latter (emaciation), as it is not an uncommon phenomenon for an animal to become weak due to labour. The reason, then, for the exemption from liability for emaciation differs from the reason for exemption from liability for the death of the animal: The reason for the exemption of liability for the death of the animal is the lender’s negligence, but the reason for exemption from liability for emaciation of the animal is due to the fact that the lender is not concerned and expected the possibility of the animal becoming weaker due to the labour.
According to the rationale that the lender foregoes the liability of the borrower when the animal is harmed due to the work for which it was borrowed (lo kapid), there is no reason to differentiate between the reason for the exemption of liability for the emaciation of the animal and the reason for the exemption of liability for the death of the animal – as they both occurred due to the labour for which is was borrowed, for which the lender foregoes liability of the borrower. In the words of the Talmud: what is the difference between full death and half death (ma li kotlo kula mali kotlo palga)?
Explaining Maimonides’ addition and omission of the text
I would like to argue that Maimonides was considering the merits of these two rationales while writing his Mishneh Torah. In the draft of the Mishneh Torah, Maimonides is considering the Rashba’s rationale that the reason for exemption of liability is due to the lender not being concerned about the liability of the borrower in the event the animal dies due to the labour. Since there is no difference in this regard whether the animal became emaciated or died, the process of exemption of liability is also the same: where it’s possible to bring witnesses, he must bring witnesses and an oath is not accepted. With this in mind, Maimonides writes this point not only in the case of an animal dying due to labour but adds the extra sentence to make this point also in the case of emaciation – because they are both based on the same rationale.
In the edited version of the Mishneh Torah, however, Maimonides appears to have changed his mind and comes round to accept the merit of Nachmanides’ rationale that the reason for the exemption of liability of a borrower for the death of the animal due to work is based on the lender’s negligence. According to this rationale, as mentioned earlier, one may differentiate between the death of the animal, where the lender was negligent to lend an animal that was unfit for work, and the emaciation of the animal, where one can not ascribe negligence to the lender for lending such an animal, as it is not an uncommon phenomenon. It therefore follows that since the aim of the borrower is to ascribe negligence to the lender, the burden of proof on the borrower is greater: it is necessary, where possible, to bring witnesses to testify that the borrower didn’t change its intended use and only then is the borrower exempt from liability due to the lender’s negligence. In the case of emaciation, where one does not need to ascribe negligence to the lender, witnesses are not necessary. Even if there are potential witnesses present, but the borrower cannot find them to testify[22], an oath is sufficient and the borrower is exempt from liability[23].
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Footnote
[1] MS. Heb. d. 32
[2] 225 x 155 mm
[3] Fols. 53b-54a
[4] Bava Metzia 93a
[5] Mishneh Torah, Laws of Borrowing and Deposits 1:1
[6] Mishneh Torah, Laws of Borrowing and Deposits 1:4
[7] Mishneh Torah, Laws of Borrowing and Deposits 1:2
[8] Bava Metziah 97
[9] Bava Kama 107b. See Pnei Yohoshua; A second source that an oath may be used by a borrower is Bava Metziah 35b according to R. Yirmiyah.
[10] Bava Metziah 83a
[11] 22:9-10
[12] Bava Metziah 83a. Issi ben Yehudah is not discussing the law of a borrower in particular. His opinion is utilized however as the basis for the law of a borrower.
[13] Rabbi Meir, son of Yekutiel, HaKohein (d. 1298) in his gloss Hagahot Maimoniyot commenting on this law in the Mishneh Torah of Maimonides (Sh’eilah Ufikadon 1:1)
[14] See Tosafist Rid ibid.
[15] Beis Habechira, Bava Metziah 96b
[16] Bava Metziah 96b
[17] Mishneh Torah, Laws of Borrowing and Deposits 1:4
[18] The Talmud understands there is a reason to differentiate between exemption from liability for emaciation and exemption from liability for the death of an animal – the former is a common phenomenon and anticipated by the lender, the latter is uncommon and not anticipated by the lender. For this reason, the cases in the Talmud are pertaining to the death of the animal – the breaking of the bucket and the axe and the death of a cat while consuming mice. The principle of Issi ben Yehudah – the underpinning to understanding the Talmud in this case and Maimonides’ formulation of the law, to first exhaust potential witnesses, would suggest that the law should however be the same in both cases: first verify whether witnesses were possibly present before the use of an oath. See Shitah Mekubetzes.
[19] The question about this glaring omission in the published edition does not appear to be raised by any of the classic commentaries on Maimonides’ Mishneh Torah.
[20] The epitaph on Maimonides' tombstone in Tiberias, Israel, reads: "From Moses to Moses arose none like Moses."
[21] Bava Metzia 93a
[22] According to this reading of Maimonides, one may suggest that the Talmud’s insistence that the borrower should bring witnesses is only in cases analogous to the broken bucket and axe and death of a cat while eating too many mice that the Talmud explicitly mentions, similar to the death of an animal. In the case of emaciation, the Talmud would have advised that an oath may be administered even if it occurred where there are potential witnesses though witnesses cannot be produced to prove his non-liability.
[23] The reason for the exemption from liability for emaciation is because the borrower is not concerned if the animal became emaciated due to labour. The point this essay is making is that since we are dealing with two fundamentally different considerations the degree of burden of proof is also different. It’s possible that the different rationales in Maimonides’ edited version between the death of the animal and emaciation indicates that Maimonides applies Issi ben Yehudah’s view in the case of the death of the animal but not in the lesser liability of emaciation. While this argument might not be entirely satisfactory, it is preferable to saying simply that there is a mistake in the text and someone by accident left out this key aspect of the law regarding the liability of a borrower in the case of emaciation.