Torah Portion: Mishpatim
If a man shall borrow from his fellow and it shall become broken or shall die — provided its owner is not with him — he shall surely make restitution (Shemos 22:13).
It is a positive commandment to judge cases involving a person who borrowed an item for use. That is, a person borrowed an item or animal from his fellow. By definition, “borrowing” means that the person did not pay at all, but rather that the owner of the object let him use it as an act of kindness. If there is any disagreement about it later, the beis din is obligated hear the case between them. It is thus written: If a man shall borrow from his fellow etc. In the law of a borrower, the Torah made him liable to pay the owner of the object even for accidents, since it was under his responsibility. This is because since he did not pay any money for its use, it is similar to a loan of money, where even if it was taken from him by force, he is not exempt from paying the lender his debt.
The laws of this mitzvah include: If the owner of the item is present together with the one who borrowed it, the borrower is exempt. The reason for this, according to the plain meaning, is that the Torah did not hold the borrower liable if the owner was present, since he could have watched over his item himself. And although the borrower is free from obligation even after the owner leaves, so that the damage occurred when the owner was not there, nevertheless, we may say that Torah did not wish to make distinctions. Therefore, in any situation that the owner was together with the borrower at the outset, when the item was first borrowed, the Torah exempts him from liability.
Another law regarding this mitzvah is that if the animal died in the course of work, or if a tool broke in the course of its [normal] use, the borrower is exempt. However, if he used it in a manner different than the owner instructed, and the item was damaged, then the borrower is liable.
This mitzvah applies to men who are fit to judge. A court that transgressed this and did not judge, violated this positive commandment.
