Exodus 22:1-16 - Homilies By J. Orr

Restitution.

We have to mark again in this chapter with how even a hand the law of Moses holds the scales of justice. The cases ruled by the principle of restitution are the following:—

I. THEFT ( Exodus 22:1-5 ). The illustrations in the law relate to thefts of cattle. But the principles embodied apply to thefts generally (cf. Exodus 22:7 ). Note—

1 . The law which punishes the theft, protects the thief's life. It refuses, indeed, to be responsible for him in the event of his being smitten in the night-time, while engaged in the act of housebreaking ( Exodus 22:2 )—large rights of self-defence being in this case necessary for the protection of the community. The thief might be killed under a misapprehension of his purpose; or by a blow struck at random in the darkness, and under the influence of panic; or in justifiable self-defence, in a scuffle arising from the attempt to detain him. In other circumstances, the law will not allow the thief's life to be taken ( Exodus 22:3 ). All the ends of justice are served by his being compelled to make restitution. Blood is not to be spilt needlessly. The killing of a thief after sunrise is to be dealt with as murder. We infer from this that theft ought not to be made a capital offence. English law, at the beginning of this century, was, in this respect, far behind the law of Moses.

2 . Theft is to be dealt with on the principle of restitution.

3 . If direct restitution is impossible, the thief shall be compelled to make restitution by his labour—"He shall be sold for his theft" ( Exodus 22:3 ). It would be an improvement in the administration of justice if this principle were more frequently acted on. The imprisoned thief might be made to work out an equivalent for his theft; and this, in addition to the hardships of his imprisonment, might be accepted as legal restitution.

II. DAMAGE ( Exodus 22:5 , Exodus 22:6 ). The damage done, in the one case to a field or vineyard, by allowing a beast to stray into it, and feed upon the produce; in the other, by setting fire to thorn hedges, and injuring the corn-stacks, or standing corn, is supposed to be unintentional. Yet, as arising from preventible causes—from carelessness and neglect—the owner of the beast, or the person who kindled the fire, is held responsible. He must make good the damage from the best of his own possessions. We are held fully responsible for the consequences of neglect (cf. Hebrews 2:3 ).

III. DISHONEST RETENTION OF PROPERTY ( Exodus 22:7-14 ). Cases of this kind involved judicial investigation.

1 . If the charge of dishonest retention was made out, the fraudulent party was to restore double ( Exodus 22:9 ).

2 . If an ox, ass, sheep, or any beast, entrusted. to another to keep, died, was hurt, or was driven away, "no man seeing it," the person responsible for its safety could clear himself by an oath from the suspicion of having unlawfully "put his hand" to it ( Exodus 22:11 ). In this case, he was not required to make good the loss.

3 . If, however, the animal was stolen from his premises, under circumstances which implied a want of proper care, he was required to make restitution ( Exodus 22:12 ).

4 . If the animal was alleged to have been torn to pieces, the trustee was required to prove this by producing the mangled remains ( Exodus 22:13 ).

IV. Loss OF WHAT IS BORROWED ( Exodus 22:14 , Exodus 22:15 ).

1 . If the owner is not with his property, the borrower is bound to make good loss by injury or death.

2 . If the owner is with it, the borrower is not held responsible.

3 . If the article or beast be lent on hire, the hire is regarded as covering the risk.— J . O .