Parashat Mishpatim

Humans as Co-Creators

People cannot be proprietors over nature--they are not even absolute masters of their own creations.

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Provided by Canfei Nesharim, providing Torah wisdom about the importance of protecting our environment.

In this week's Torah portion, Mishpatim, God commands the Jewish people concerning the laws of borrowing and guarding property (Exodus 22: 6-14). The relations between God, people, and nature may be clarified by referring to the halakhah (Jewish law) concerning the relationships between owner, material, and artisan. The Mishnah discusses the case of a man (owner) who gave some material to an artisan to fashion it. The artisan, instead of repairing, spoiled the object. The law is that the artisan must pay the amount of the damages to the owner.

canfei nesharimThe question arises in the Babylonian Talmud (Bava Kama 98b): What is this object, which the owner gave over to the artisan, and the damages for which the latter must compensate the owner? Clearly, if it was a finished vessel, and the artisan broke it, the latter must pay the difference in value.

But if the owner gave raw material to the worker, asking that he fashion it into a complete vessel, and the artisan did so, but then broke the very vessel he made, is the artisan obligated to compensate the owner for the difference in value between a perfect vessel and a broken one? Or might the artisan be free of obligation since the broken vessel is no less in value than the raw material with which he began?

Who Owns "Improved Material"?

This question was in controversy amongst both Tannaim (early rabbinic sages) and Amora'im (later rabbinic sages). Some held that uman koneh b'shevah kelim, that the artisan has a monetary right in the vessel by virtue of the improvement he effected in it in transforming it from, for instance, mere planks into a table. If the table belongs, then, to the artisan, he cannot be held responsible to pay the owner of the planks for damages to that table if he should later break it.

Others disagree: the improvement in the material is the property of the original owner, and if the artisan later destroyed the completed object, he injured the owner and must compensate him for the cost of the completed object. Most authorities decide the law in favor of this opinion: it is the original owner of the raw material who has proprietary rights in the completed artifact, not the artisan who invested his fabricative talents.

The explanation for the artisan's legal responsibility for the finished product is contained in a Tannaitic [i.e. early, from the time of the teachers cited in the Mishnah] source: The artisan is to be considered a shomer sakhar, or paid trustee for the article he fashioned, and which belongs to the original owner, and as such he must pay for the object if he damaged it (Tosefta Bava Kama, chapter 2).

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Rabbi Norman Lamm

Rabbi Norman Lamm, Ph.D., served more than a quarter of a century as President of Yeshiva University and of its Rabbi Isaac Elchanan Theological Seminary. He is the author of The Shema: Spirituality and Law in Judaism and Seventy Faces: Articles of Faith.