EXPOSITION
LAW OF BORROWING.—The act of borrowing is connected with that of depositing, since in both cases, the property of one man is committed to the hands of another; only, in the one case, it is at the instance and for the benefit of the man into whose hands the property passes; in the other case, it is at the instance and for the benefit of the other party. This difference causes a difference of obligation. The borrower, having borrowed solely for his own advantage, must take all the risks, and in any case return the thing borrowed, or its value, unless the owner was still, in some sort, in charge of his own property. Things hired are not, however, to be regarded as borrowed. If harm come to them, the owner must suffer the loss.
And it be hurt or die.—The thing borrowed might be animate or inanimate; either might be "hurt;" the former might not only be hurt, but "die." Whatever the damage, and whatever the cause, unless in the single rare case of the owner being in charge, the law required the borrower to make good the loss to the owner. This law must have acted as a considerable check upon borrowing.
If the owner thereof be with it.—By "with it," we must understand, not merely present, but in charge of it, or at any rate so near it that he might have prevented the damage, had prevention been possible. If it be an hired thing.—If anything were paid for the use of the thing, then it was not borrowed, but hired; and the owner was considered to have counted in the risk of loss or damage in fixing the amount of the hire. He was entitled therefore to no compensation Our own law does not rule this absolutely, but takes into consideration the proportion of the sum paid for hire to the value of the thing hired, and the general tacit understanding.
HOMILETICS
The duty of borrowers.
The duty of borrowers is very simple. It is to take care that that which they borrow suffers as little hurt as possible while it remains in their possession, and to return it unhurt, or else make compensation to the lender. People will not often be found to question the propriety of these rules; but in action there are not very many who conform to them. It is a common thing to take but little care of what we have borrowed; to keep it an unconscionable time; to neglect returning it until the lender has asked for it repeatedly; to keep it without scruple, if he does not happen to ask for it. Curiously enough, there are particular things—e.g; umbrellas and books, which it is supposed not to be necessary to return, and which borrowers are in the habit of withholding. Many go further, and feel under no obligation to repay even money which they have borrowed. All such conduct is, however, culpable, since it is tainted with dishonesty. Borrowers should remember—
I. THAT THEY FAIL IN THEIR DUTY TO THEMSELVES IF THEY DO NOT RESTORE WHAT THEY HAVE BORROWED. Self-respect should prevent them from a line of conduct which assimilates them to thieves, and is wanting in the boldness and straightforwardness that characterise ordinary thieves.
II. THAT THEY FAIL EGREGIOUSLY IN THEIR DUTY TO THE LENDER, who has put them under a special obligation to him.
III. THAT THEY FAIL IN THEIR DUTY TO MANKIND AT LARGE, since they do their best to deter men from ever lending, and so place difficulties in the way of borrowers. We all need to borrow at times.
IV. THAT THEY FAIL IN THEIR DUTY TO GOD, who has declared in his word, that it is "the wicked" who "borroweth and payeth not again" (Psalms 37:21).
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 22:1-2). 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.
(1) It calls for more than simple restitution. At most the restitution of the simple equivalent brings matters back to the position in which they were before the criminal act was committed. That position ought never to have been disturbed; and punishment is still due to the wrongdoer for having disturbed it. Hence the law that if the stolen animal is found in the thief's hand alive, he shall restore double (Exodus 22:4); if he has gone the length of killing or selling it, he shall restore five oxen for an ox, and four sheep for a sheep (Exodus 22:1).
(2) Penalty is proportioned to offence. Both as respects the value of the things stolen, and as respects the lengths to which criminality has proceeded.
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 22:7-2). 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.