Mishneh Torah, Borrowing and Deposit 1-2

Hook

The audacious dream of building a nation, especially one as deeply rooted in ancient prophecy and modern resilience as Israel, comes with an equally audacious question: who is responsible when things go wrong? When the unforeseen strikes, when intentions clash with outcomes, when the very tools of nation-building seem to break in our hands, where does liability lie? This isn't just a legalistic query; it's a profound moral dilemma that confronts any collective enterprise, particularly one striving to embody a people's deepest values. Our sacred texts, through their meticulous legal discussions, offer us not just answers for ancient dilemmas but frameworks for navigating the complex responsibilities of modern sovereignty and peoplehood. They call us to a candor about our failures and a compassion for our efforts, always holding a strong spine of accountability alongside an open heart for repair and future possibility.

Text Snapshot

Our focus today is on Maimonides' Mishneh Torah, specifically the laws of Borrowing and Deposit, which meticulously delineate the borrower's liability. The bedrock of these laws is found in Exodus:

• 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."
• Exodus 22:14: "If the owner is with him, he need not make restitution."

Maimonides elaborates on this, stating in:

• Mishneh Torah, Borrowing and Deposit 1:1: "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... the borrower is required to make restitution for the entire worth of the article..."
• Mishneh Torah, Borrowing and Deposit 1:12: "When a person borrows an article while the owner is working with him, he is not liable, even if the article that he borrowed is stolen or lost through negligence..."

The Ohr Sameach commentary on 1:1:1 further clarifies the rationale behind the borrower's liability:

• Ohr Sameach on Mishneh Torah, Borrowing and Deposit 1:1:1 (translation): "The borrower is liable for everything: This means not only for utensils, where the entire benefit is his, but even for an animal which requires food and guarding, nevertheless, the majority of the benefit is his, as explained in the Gemara." This commentary then introduces the concept that if the lender also derives even a minimal benefit (a "penny of Rav Yosef"), the borrower's liability changes, becoming akin to a paid watchman.

Context

Date

The Mishneh Torah was completed by Maimonides around 1177 CE. This monumental work was written in Egypt, where he served as a physician and communal leader, after having lived in North Africa and the Land of Israel.

Actor

Rabbi Moses ben Maimon (Rambam), one of the most towering figures in Jewish history. A physician, philosopher, and legal scholar, his influence spans centuries and continues to shape Jewish thought and practice. He sought to synthesize the vastness of the Oral Law into a single, comprehensive, and logically ordered code.

Aim

Maimonides intended the Mishneh Torah to be a definitive and accessible compendium of all Jewish law, covering every aspect of Jewish life from Temple rituals to civil jurisprudence. His goal was to make the entire body of Halakha understandable to any educated Jew, without needing to consult the complex dialectics of the Talmud, thereby providing a clear roadmap for living a life according to Torah.

Two Readings

The laws of borrowing, particularly the nuanced distinctions between full liability and mitigated responsibility, offer a powerful lens through which to examine the modern State of Israel and its relationship with the Jewish people and the world. How do we, as a people, understand our collective responsibility for the nation we have built?

Reading 1: The Sovereign State as Ultimate Borrower – Unyielding Responsibility

This reading interprets the State of Israel as the primary "borrower" in a grand historical and ethical transaction. Like the sho'el in the Mishneh Torah, who benefits entirely from the borrowed item, the State of Israel derives immense benefit from its existence: self-determination, refuge for a persecuted people, a vibrant cultural and spiritual center, and a modern democratic enterprise. Because the benefit is so overwhelmingly for the state and its citizens, this reading posits that the state bears almost unyielding responsibility for its actions, even when faced with "factors beyond its control" (onesim) such as regional conflicts, terrorism, or international pressures.

The Mishneh Torah's baseline rule (1:1) states that "the borrower is required to make restitution for the entire worth of the article," even if it was "lost or stolen, or even if it is destroyed by factors beyond his control." Applied to Israel, this perspective demands a stringent level of accountability. If, for instance, a state policy leads to hardship for a particular population group, or if security measures result in unintended civilian casualties, or if internal societal divisions threaten its democratic fabric, this reading argues that the state, as the primary beneficiary of its own existence, must take full responsibility. It cannot simply attribute these outcomes to external pressures or the inherent difficulties of its geopolitical situation.

This approach aligns with the "strong spine" element of our ethos. It insists that a state, especially one founded on high moral and prophetic ideals, must hold itself to the highest standards. It champions international law, human rights, and the ethical treatment of all individuals under its governance, regardless of their background or identity. It calls for constant introspection and a willingness to acknowledge failures and make amends, rather than seeking to deflect blame. This reading is critical for a healthy democracy and for ensuring that the state remains true to the values that inspired its creation. It acknowledges the immense challenges but insists that these challenges do not absolve the state of its fundamental moral obligations. The very purpose of its being is to create a just society, and when that purpose is compromised, the "borrower" (the state) must make full "restitution."

Reading 2: The Covenantal People – Shared Stewardship & Mitigated Liability ("Owner with Him")

This reading introduces the crucial nuance of the "owner with him" (ba'al imo) clause (Exodus 22:14, Mishneh Torah 1:12), and the Ohr Sameach's insight on mutual benefit. Here, the State of Israel is not merely a secular entity but an expression of the Jewish people's ongoing covenantal journey. The "owner" is not a distant, passive figure but an active, involved partner: God, the Jewish people collectively (both in Israel and the Diaspora), and the foundational values of justice, righteousness, and peace enshrined in Jewish tradition. When this "owner" is "with" the state, actively engaged in its welfare and upholding its ethical mandate, the nature of liability shifts.

The text states that if the owner is "with" the borrower, the borrower "is not liable." This is a radical shift. How does this apply to Israel?

• Divine Presence: If the State of Israel strives to embody the divine covenant—to be a "light unto nations," to pursue justice and peace, to protect the vulnerable—then God, as the ultimate "Owner" of the land and the people, is "with" it. In this sacred partnership, the burden of "loss" or "failure" is not solely the state's. It becomes a shared divine-human endeavor, implying that the state's actions are judged not only by worldly metrics but by their alignment with a higher purpose. This doesn't mean impunity, but rather a different form of accountability, one that invites divine mercy and shared responsibility in the face of inevitable human fallibility.

• Peoplehood as "Owner": The Jewish people, as the collective "owner" of the Zionist dream and the spiritual inheritors of the land, are profoundly "with" the State of Israel. When Diaspora Jews actively engage with Israel—through prayer, advocacy, support, constructive criticism, and shared destiny—they are "with" the borrower. This active presence transforms the relationship. The Ohr Sameach's point about mutual benefit becomes highly relevant: if the "lender" (the Jewish people globally) also derives benefit (e.g., pride, spiritual connection, a sense of security, cultural flourishing) from Israel's existence, then the state's liability is mitigated. It's not a sole borrower but a shared venture. The "losses" and "failures" of the state become, in part, the collective responsibility of the entire Jewish people, who are called to participate in its moral and physical sustenance. This shifts the focus from singular blame to collective stewardship and mutual aid.

• Values as "Owner": Perhaps the "owner" is the very ideal of a just and democratic Jewish state. When the state acts in congruence with these foundational values—protecting minority rights, fostering social justice, upholding democratic principles—then these "owners" are "with" it. The challenges become opportunities for collective refinement and moral growth, rather than sole liabilities of a detached entity.

The tension here is crucial: this reading does not absolve the state of responsibility. Instead, it elevates and broadens it. The "owner with him" clause only applies when the owner is actively present and working. For the divine "owner," this means adherence to covenantal ethics. For the peoplehood "owner," it means active, engaged, and responsible partnership. If the state deviates from its core values or alienates its "owners," then that "presence" withdraws, and the state reverts to being a solitary borrower, subject to full liability. This perspective calls for an "open heart" to understand the profound spiritual and communal dimensions of Israel's existence, fostering solidarity while simultaneously demanding ethical integrity from all involved. It underscores that we are all stakeholders, and therefore all share in the burdens and blessings of this national enterprise.

Civic Move

Community Covenant of Responsibility Forum

To bridge these two essential readings – the stringent accountability of a sovereign state and the compassionate, shared stewardship of a covenantal people – I propose establishing a "Community Covenant of Responsibility Forum." This initiative would create a dedicated, facilitated space for diverse voices within our community to engage with the complex ethical questions surrounding Israel, using texts like Maimonides' laws of borrowing as a framework.

Action Steps:

1. Convene Diverse Stakeholders: Invite individuals from across the political, religious, and generational spectrums of your community – those deeply supportive of Israel, those with significant critiques, those feeling alienated, and those simply seeking understanding. The goal is a microcosm of our peoplehood.
2. Text-Based Inquiry: Begin each session with a specific Jewish text (like Mishneh Torah, Borrowing and Deposit) that touches upon themes of responsibility, partnership, and liability. Provide translations and brief contextualization.
3. Guided Discussion Questions: Facilitate dialogue around questions such as:
   • What does it mean for us, as individuals and as a collective, to be "with" Israel in a way that aligns with the "owner with him" principle?
   • How do we balance the expectation of Israel's full liability as a sovereign state with the understanding of our shared covenantal responsibility?
   • Where do we see moments when the "owner" (God, the Jewish people, core Jewish values) might be considered "not with" the borrower (the state), and what are the implications for our engagement?
   • How can the Ohr Sameach's concept of "mutual benefit" inform our understanding of international relations or our relationship with other communities in the land?
   • What practical actions can we take, individually and communally, to embody the "owner's presence" in a way that fosters greater justice, peace, and accountability in Israel?
4. Empathy and Active Listening: Emphasize creating a space for empathetic listening, where participants are encouraged to understand differing perspectives rather than simply debate or persuade. This models the "open heart" necessary for repair and growth.
5. Commitment to Action: Conclude each forum by exploring concrete, actionable steps individuals or the community can take to translate insights into tangible engagement, whether through advocacy, learning, volunteering, or fostering dialogue with other communities.

This Civic Move is designed not to resolve every tension but to cultivate the habits of mind and heart necessary for ongoing, honest, and hopeful engagement with the complexities of Israel. It shifts us from passive observation or reactive criticism to active, responsible partnership, reflecting the profound lessons of our tradition.

Takeaway

The ancient wisdom of the Mishneh Torah, with its precise delineation of liability in borrowing, offers us a profoundly relevant framework for understanding the complex responsibilities inherent in the modern State of Israel. It compels us to ask difficult questions about who benefits, who is present, and who bears the burden when the path of nation-building inevitably encounters setbacks.

We are called to hold two truths simultaneously: the unyielding demand for accountability that comes with sovereign power, and the profound, mitigating reality of a shared covenantal journey. Israel, as a state, must be held to the highest standards of justice and ethics, acknowledging its full liability for its actions. Yet, Israel is also an expression of Jewish peoplehood, a "borrowed" dream in which the "owner"—the Jewish people, divine will, and our cherished values—is intimately "with" the borrower. This presence calls not for lesser responsibility, but for a deeper, shared stewardship, where the successes and failures are intertwined with our collective destiny.

Our hope for Israel's future lies not in simplistic narratives or unwavering partisanship, but in our candid willingness to confront its complexities, our compassionate commitment to its ideals, and our active, future-minded engagement as partners in its ongoing story. By embracing both the "strong spine" of accountability and the "open heart" of shared responsibility, we can work towards an Israel that truly embodies its sacred purpose.