21:33–34 In biblical lands water was often in short supply, and so pits known as cisterns were dug to trap water (Lev. 11:36). Because an open pit is a safety hazard, the pit’s owner is expected to cover it, perhaps with planks or large sticks bound together. In this case someone has taken the cover off and failed to replace it, or has dug the pit and never covered it, and an ox or donkey (or by implication any other animal) falls into it and dies (Ex. 21:33).508 The negligent party must repay the owner for the animal’s loss; the dead animal then belongs to the negligent party, who can presumably make use of its meat and hide (v. 34; cf. v. 28). The underlying principle is that we are financially responsible for negligent behavior that causes others financial harm. The same is true for the following two verses.

21:35–36 Two cases are considered. In the first a person’s ox is violent for the first time and kills another person’s ox. There is no negligence involved, and therefore no fault is assigned to the first person, and the financial loss is borne equally by both parties: they divide any proceeds from the first ox’s sale (or one of them by implication could buy out the other) and divide the dead ox’s meat (v. 35). But if the first person knows his ox is violent and does not restrain it properly, this negligence leads to full financial responsibility for any harm done (cf. comment above). In a nonagrarian context we might say that, if a pet has shown itself to be dangerous (biting, scratching), its owner bears responsibility for any future harm it causes.

22:1–4 Five cases addressing theft are considered. In the first someone steals an ox or a flock animal509 and either butchers it (to eat) or sells it; in either case the animal is gone (v. 1). Because intentional theft is far more serious than negligence (cf. 21:33–36), the thief must not simply pay for the stolen animal but must pay additional penalties as well (note that Zacchaeus acknowledges the same and may have this verse in mind when mentioning the fourfold repayment he will give to anyone he has defrauded; Luke 19:8). These penalties scale to the animal’s worth. The more costly the animal, the greater the offense and the greater the penalty (cf. in modern law how the penalty for car theft is typically greater than that for bicycle theft). The thief must therefore pay four times a flock animal’s worth but five times the worth of the more costly ox. Thieves are not, however, to be put to death, as they are in Hammurabi’s law code (§21). “The biblical scale gives priority to the protection of life—even the life of the burglar—over the protection of property.”510

In the second and third cases a homeowner kills the thief while he is breaking in (Ex. 22:2–3a). In darkness the exact danger posed is unclear, and the homeowner is not guilty of bloodshed for taking extreme measures to protect family and property (v. 2). Daylight, however, affords a clearer evaluation of the situation and easier access to nonlethal actions, so killing the thief in daytime makes the homeowner guilty of bloodshed and thus is a capital crime (v. 3a; for the capital penalty today cf. note 397 within comment on 20:13). Taking human life must never be a starting point but always a last resort, even with burglars, since they too bear God’s image.

The fourth case returns abruptly to the thief (some translations insert “the thief” in place of “he” to make this clearer, cf. ESV mg.; v. 3b). It emphasizes that a thief without the means to repay will be sold into servitude—which could be for a period of up to six years (21:2)—in order to cover the debt (naturally, all the laws protecting servants would apply; cf. comment on 21:2–6). This penalty emphasizes how important it is to compensate others for financial harm done to them.

The fifth case identifies what to do if the stolen property is found with the thief (22:4). Unlike the command in verse 1, here the original animals are returned, meaning the owner has not lost any work that had been put into training them, which might explain why the penalty is less and the thief pays double the animal’s worth instead of four or five times its worth. Still, the penalty is steep and emphasizes again that others’ property must be completely respected.511

22:5–6 These stipulations cover damage to crops through carelessness. In each case full restitution must be made; carelessness does not excuse responsibility.

As it currently stands, verse 5 addresses one person’s animal’s grazing in another person’s field or vineyard. The animal’s owner must not simply replace what the animal ate but replace it with the best produce possible. This assures the second person in no way suffers loss and, because of the cost involved, encourages the animal’s owner to be more careful in the future. The LXX, the SP, and at least one Qumran manuscript,512 however, insert an additional clause in the midst of the verse that alters its sense slightly: If the animal destroys only a portion of the field or vineyard, the animal’s owner simply repays from his own field. But, if it destroys the entire field or vineyard, then restitution must be with the best of the owner’s crops. The presence of the clause in three ancient versions is strong support for its originality,513 and the point would then seem to be that for incidental damages simple repayment suffices but for significant damages the responsible party bears more guilt and must make sure repayment is not only full but robust.

In verse 6 someone starts a fire that gets out of control and destroys harvested or unharvested crops. Again, the guilty party must make full restitution, presumably along the lines of verse 5.

22:7–9 In this scenario one person entrusts an object to another for safekeeping, and the latter at some point reports it as stolen (v. 7a). If the thief is caught with the property, he pays double (v. 7b; cf. v. 4). Verses 8–9 lay out what to do if the thief is not caught, but their exact meaning and how they relate to the verses that follow are debated. To my thinking the solution that accounts most simply for all the data understands verses 8–9 to describe two different scenarios.

In the first the money or property is gone and the person guarding it is brought “near to God”514 to take an oath to see “whether or not he has put his hand to his neighbor’s property” (v. 8). Although an oath is not mentioned in verse 8, it ends in the same way as verse 11, meaning the front half of each verse may also describe the same thing (which in v. 11 is clearly an oath; cf. table 2.7). In other words the house owner would swear, “As the Lord lives, I did not take this property” (cf. the oath formula in Judg. 8:19; 1 Sam. 14:39; etc.; cf. also 1 Kings 8:31–32). Though this is not stated, it would then be expected that he would have to repay for what was stolen since he had agreed to guard it (cf. Ex. 22:12).515

TABLE 2.7: Parallelism in Exodus 22:8 and 22:11

In the second scenario the house owner claims the property has been stolen, but the property owner claims to be able to identify it among the trustee’s goods: “Look! That is my garment, not his! This is a breach of trust!” (v. 9). In this case both parties come before the Lord, and “the one whom God condemns shall pay double to his neighbor,” whether it is the house owner who lied or the property owner who made a false accusation.516 How God would identify the person is not stated. It may be that the guilty party refuses to take an oath, which would prove guilt, or it may be that the priest somehow seeks a decision by the Lord directly (cf. Num. 27:21) or performs a thorough investigation himself (cf. Deut. 19:16–21).

22:10–13 In these verses one person has asked another to watch over an animal, and something then happens to it. It must be remembered that animals were not only kept safe in pens but also allowed to roam to find pasture. This helps explain the three scenarios considered here.

In the first the trustee claims the animal either died, was injured, or was driven away, but no one saw; that is, any of these three things happened while the animal was out grazing, it never returned, and no one has any idea where it is (Ex. 22:10). In this case the trustee swears an oath before the Lord that he did not take the animal, the animal’s owner must believe the trustee’s word, and no restitution is paid since this is a natural hazard of letting animals graze (v. 11).

In the second scenario the animal is stolen, that is, it has not simply wandered off or been taken when it was out to pasture but was taken in such a way that could have been prevented by more care; for example, it was stolen from a pen that should have been guarded (v. 12). In this case the trustee is responsible and must repay with another animal.

In the third scenario the animal was attacked by another animal and died. This, too, is a hazard of raising animals, so the trustee needs simply to return the carcass to the owner and not make further restitution (v. 13).

22:14–15 Just as farmers today might borrow or rent a tractor from one another to plow a field, Israelites might do the same with an ox. Three scenarios are considered. In the first a borrowed animal is injured or dies and the owner is not there, that is, the one borrowing it was the one working it and therefore fully responsible for any harm. Any damages must therefore be paid by the borrower (v. 14). In the second the owner was there, that is, the owner was working the animal or overseeing its use and therefore responsible for any damages (v. 15a). In the third the animal’s owner rented it out, and “the rental fee was expected to include ‘insurance’ on the animal,”517 meaning the owner bore the loss (v. 15b).