Sefer haChinuch Mitzvot 57 58
Sefer haChinuch
Mitzvot 57 58
These Mizvot should be seen in the context of the weekly portion of the Torah, Mishpatim, in the book of Exodus, which relates the giving of the Ten Commandments on Mount Sinai. The Israelites are still standing there and Moses is about to complete the Covenant between the Lord and the Israelites by sprinkling the blood on the people. Sefer haChinuch stresses the Commandment to have Courts of Justice - a known obligation as it was one of the universal Noachide Laws. The text here (Ex.22.v6-14) speaks of the responsibilities of someone who holds money or goods that belong to someone else. either to watch over them or hired or borrowed: “If a man gives money or goods to his neighbour to guard”... (v6) called a Shomer. He may be doing the watching without payment, a Shomer chinam, or with payment, a Shomer s’char. When the time comes to return what he holds, it may not be there - it may be lost or stolen or damaged and a dispute is likely to arise. The Sefer haChinuch stresses that there is an obligation to adjudicate in a Court and not to settle this in any other way. There is an obligation “to come before the Lord”, to a Bet Din and swear to your innocence; a Shomer chinam needs to swear that he has had no benefit, not “put his hand” to whatever he was given. The owner may need to swear that he was not making a false accusation. Swearing involved using G-d’s name. It was taken very seriously and people were therefore reluctant to swear.
By Torah Law, a Shomer Chinam is not liable for loss or theft, but, says the Sefer haChinuch, according to our Oral Law, deRabbanan, every dispute between a plaintiff and and a defendant must be adjudicated in a BetDin; a country without law is not civilised. The whole world stands on three things “al ha Torah, al ha avodah ve al Gemilut Chasadim” (Pirkei Avot). Justice is required in order to survive; a Bet Din that does not adjudicate is disobeying positive law and its punishment ‘will be very great’. Sefer haChinuch clearly sees the institution of Courts of Law as part of the Covenant at Har Sinai.