Spring is here…well, not quite, but it’s nice to have *only* seasonly frigid weather instead of unseasonably frigid weather. There were some moments this past week that I was quite proud of and wanted to share with you. On Monday morning, schools across the region closed or had delayed opening because of the snow storm that reached our reason the prior night. I was so inspired to see someone in shul that morning who decided that she would wake up early on a snow day in order to attend Shacharit with our community.
Later in the week, during the worst mornings of the polar vortex, our community organized car pools so that we could have robust and well attended tefilot in a way that kept us safe. Members of this community took advantage of canceled school and canceled work in order to come together in prayer and you helped one another to do so safely and comfortably.
On Thursday, as the polar vortex was just beginning to lift, I went with one of our children on some errands and we stopped for a cup of coffee at the supermarket that we had visited. While we were drinking our coffee, a man came up to us and asked us to watch his shopping cart while he used the restroom. I got very nervous when he made that request because I know that agreeing to watch another person’s property is something fraught with halakhic significance.
Bava Metzia, one of the classic Talmudic tractates, discusses various forms of watching over the property of another. In Hebrew these people are called “shomrim” and there are four different shomrim recognized by Jewish law. In English legal terminology, “shomrim” are called “bailees” and every legal system needs to adjudicate the different responsibilities that adhere to someone taking responsibility for the property of another. The man who approached me in the supermarket was asking that I become his shomer hinam, his unpaid bailee. An unpaid bailee is exempt from compensating the owner of the object if it is lost or stolen but he must take an oath declaring that he did not misappropriate the object himself. Who needs that trouble?
The source for the four shomrim and their differing responsibilities comes from Parashat Mishpatim which we just read.
כִֽי־יִתֵן֩ אִ֨יש אֶל־רעֵ֜הו כֶ֤סֶף אֽו־כֵלִים֙ לִשְמֹ֔ר וְגֻנַ֖ב מִבֵ֣ית הָאִ֑יש אִם־יִמָצֵ֥א הַגַנָ֖ב יְשַלֵ֥ם שְנָֽיִם׃
“When a man gives money or goods to another for safekeeping, and they are stolen from the man’s house— if the thief is caught, he shall pay double; if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other’s property.”
Our rabbis tell us that this is the shomer hinam, the unpaid bailee who can take an oath to avoid responsibility for an item that is stolen while under his protection.
And then, in an adjacent paragraph, the Torah shares a different case:
כִֽי־יִתֵן֩ אִ֨יש אֶל־רעֵ֜הו חֲמ֨ור או־ש֥ור או־שֶ֛ה וְכָל־בְהֵמָ֖ה לִשְמֹ֑ר ומֵ֛ת או־נִשְבַ֥ר או־נִשְבָ֖ה אֵ֥ין ראֶֽה׃
When a man gives to another an ass, an ox, a sheep or any other animal to guard, and it dies or is injured or is carried off, with no witness about, an oath before the LORD shall decide between the two of them that the one has not laid hands on the property of the other; the owner must acquiesce, and no restitution shall be made. But if [the animal] was stolen from him, he shall make restitution to its owner.
Here, the bailee is responsible to compensate the owner if the animal entrusted to his care is stolen. This is the shomer sachar, the paid bailee who accepts responsibility for property that is stolen while under his care.
There is just one problem. The distinction between a shomer hinam and a shomer sachar is not mentioned anywhere in the Torah. The significant variable in the Oral Torah’s discussion of the laws of shomrim is entirely absent from the Torah. The Torah says nothing whatsoever about payment.
It is as though the ancient rabbis fabricated this distinction out of whole cloth. Not only that, but there is a distinction between the two cases in the Torah that the rabbis ignore! The first description of a shomer in Exodus 22:6 discusses a case where someone entrusted ּכֶ֤סֶף אֹֽו־כֵלִים֙ לִׁשְמֹ֔ר, money or objects were handed over for safekeeping. In the next case, Exodus 22:9, the Torah describes a situation in which אֹו־ׂשֶ֛ה חֲמֹ֨ור אֹו־ׁשֹ֥ור, livestock are entrusted to another.
The Oral Torah and the Halakhic tradition as rooted in Bava Metzia, entirely ignores the distinction that is in the Torah (between entrusting movable objects vs. livestock) and imports a distinction that is not there (between entrusting to a shomer hinam vs. shomer sachar).
The first Jewish scholar to make this conflict explicit was the Rashbam, one of the great Torah scholars of the Middle Ages, he was a grandson of Rashi, one of the ba’alei haTosafot, the school of dialectical scholarship that revolutionized Talmud study, and also the author of a classic commentary on the Torah (that is so controversial that Artscroll has censored several of his comments on their recently published edition of Mikra’ot Gedolot, the printed Chumash with commentaries).
Rashbam championed an ethos of “peshat” plain-sense Torah interpretation which could be undertaken even when it lead to conclusions at odds with the normative legal meaning of biblical verses. We may take this approach for granted and assume that we should read and study the Torah and reach any conclusion that seems reasonable to us, come what may, but that approach is not self-evident and it took a unique moment in Medieval Jewish history for someone like Rashbam to say that the plan sense meaning of Exodus 22 is a distinction between one who entrusts objects vs. one who entrusts animals even though Jewish law says something completely different.
This makes us uncomfortable. There is a joke that I was told when I was a teenager by someone expressing his skepticism at rabbinic Judaism. In fact the joke goes back several hundred years.
God said to Moshe (in this week’s Torah portion – for the first time), “don’t boil a kid in its mother’s milk.” Moshe said, “Oh, I shouldn’t cook any meat with any dairy product.”
God responded, “No, I just said – don’t boil a kid in its mother’s milk”
Moshe then responded, “Oh! In addition I shouldn’t eat any meat that was cooked together with any dairy product!”
And then God said, “No! I only said – don’t boil a kid in it’s mother’s milk”
Moshe said, “Oh! In addition, I should not derive any benefit from any dairy or meat products cooked together.”
God said, “have it your way.”
The joke has not survived for several hundred years because it’s funny. Sorry. It’s survived because it is biting.
Our laws of meat and dairy are derived from the three times that the Torah says “don’t boil a kid in its mother’s milk.” The joke is saying that our laws of kashrut, our two-sets of pots and two dishes and two sink liners, the counter and content of our observance of mitzvot is based on misreading Biblical verses and their clear implications. What if the Torah simply wanted us not to boil a kid in its mothers milk as some suggest was a practice of ancient Near Eastern idol worshippers?
Rashbam is being a bit subversive and his commentary is somewhat risky. If people realize that there is a gap between the meaning of the words of the Torah and the legal meaning that Judaism has given to those words, can our way of life survive?
But Rav Amnon Bazak, in his book of essays on the Torah, suggests a different way to understand this situation. Rashbam shares a rationale, in his commentary, for why the rule would be different for property and for livestock. Where do you guard property that has been given to you to watch? In your home with your own possessions. Livestock are kept outside. The Torah’s exemption of responsibility for stolen movables is because the Torah presumes that you are keeping them at least as safe as your own possessions and that there could be no expectation that you would keep them any more secure than your own possessions. In contrast, livestock are kept outside. If you agree to guard my horse, I expect a higher degree of care and that is why the Torah compensates an owner for a stolen animal that had been entrusted to the care of someone else.
The Talmudic rabbis understood this. They understood what Rashbam observed. The two adjacent paragraphs in the Torah describe two kinds of shomrim who differ in the degree of guardianship that one expects when they are entrusted with a task. Then they asked, who else elicits different expectations over the degree of guardianship? In our time and place whom do we expect to guard with an exemplary level of care? Paid shomrim. And whom do we expect will guard our possessions with a somewhat lower level of scrutiny? Unpaid shomrim. The rabbinic way of reading these verses in the Torah is just an updating and translation of the peshat, plain-sense meaning, that Rashbam identified.
The rabbis did not try and fail to understand the Torah on a plain sense level. They understood the Torah on a plain sense level. Then they went deeper. They asked why. They identified the relevant legal principles that were behind the law. They abstracted those principles. And they applied them to their circumstances in which the distinction between guarding movable property and guarding livestock was not germane but the distinction between a paid and an unpaid shomer was.
Where do we fit in?
Torah study is different from historical investigation. When we study Torah we are not interested in recovering the meaning that an ancient text had in ancient times. We are interested in what that text says to us today and the meaning and guidance that we can derive from it. Yes, we try to figure out the peshat, the plain sense meaning of the words, but then we translate them into our own language and figure out how to apply them to our own context.
When we study Torah we join our voices and our ideas and our passions and our values to an ongoing conversation of Jews that has lasted for generations.
You are all invited and encouraged to find opportunities to take part in that sort of Torah study which can inspire you to embrace mitzvot with new energy and fill your life with meaning.
Rabbi David Wolkenfeld 