Last Tuesday, after the Bible study I attend, several of us had a relatively heated discussion about Exodus 22:14:
If a man borrows anything of his neighbor, and it is injured or dies, the owner not being with it, he shall make full restitution. [ESV]
The context is a set of laws about how Israelites were to handle problems that occurred when one person was in possession of someone else's animal and something happened to it. Different circumstances involved different issues. If it was loaned at the request of the borrower, the borrower has more responsibility than if the borrower was holding it on request of the lender, since the lender had taken the initiative to institute the situation. But in the standard case of borrowing (and not renting) at the initiative of the borrower, if something were to happen to the animal not in the presence of the owner, it was the responsibility of the borrower to repay the full price of the animal (perhaps by simply repaying an animal of equal quality).
The question arose about whether someone today should derive the general moral principle that a borrower should repay the full price of damage if something should happen while borrowing something (not just an animal but anything). If I borrow your car and crash it, the principle should apply. I owe you for any cost to you in repairing it. But what if the transmission fails, and it's been on the fritz for over a month? It just happens to go when I have it in my possession. Even worse, what if you deliberately let me borrow that car rather than your other car in the hopes that it would die when I had it so the obligation would be mine, knowing I would take this text to apply that way today?
According to several people at the study last week, I have the moral obligation to pay the several thousand dollars that it costs for a new transmission. When I called that unjust, they said Jesus' death was unjust, so I should suck it up, as if God doesn't care about justice even though the very context of these laws is so obviously concerned with justice and getting the details of each situation right so that the hard cases can be handled fairly. I know no theory of the atonement that has the cross making me morally responsible for what I didn't do, just those that remove what I did do. This view seems to have the absurd conclusion that if you borrow my pen just as the ink has run out, you have the moral obligation to buy me a new pen when it runs out in your possession.
I think there's a fundamental mistake going on here, and it's not so much a new covenant vs. old covenant confusion, because I think whatever moral principles underlie these laws ought to apply in any context. I think what's going on could actually be a problem in the old covenant itself. What if a farmer decided to take advantage of his neighbor by lending him the ox that he knew was in poor health, hoping that it gave out in the possession of his neighbor when he wasn't present, knowing it would have a hard time handling the kind of work the neighbor wanted to borrow an ox to do? It seems unjust to hold the borrower accountable if the lender is deceptive in hiding this condition from the borrower. So the problem arises even in the setting immediate to the Torah if it's to be applied in the way that my conversation partners last week were taking it.
My suggestion is that we're thinking of case law wrongly when we derive that sort of conclusion. Case law in the Torah describes some hard cases to illustrate some general moral principles, principles the judges in any individual case might have to apply a little differently in a different case. Stealing an animal required payment of more than just what was stolen. If it was a sheep, it would be fourfold. An ox would be fivefold. What about a donkey? We're not told. The reasons behind the original law would then have to be applied thoughtfully by judges to determine a just repayment if a donkey got stolen. We see several instances of variations in circumstances determining a different outcome in this very chapter, but many probably occurred that it doesn't discuss. There would be exceptions for lots of possible situations, and the law wasn't intended to cover every details. It was meant to provide guidance for judges to figure out the just decision in some of the harder cases. If a farmer obviously abused the borrowing law in the way I just described, I'm pretty sure no judge would make the borrower pay. It's not a violation of v.14 to make such a call, unless you take case law in the Torah to be absolute in the way that we know it's not. We know this by the examples of exceptions that we do see and the knowledge that the exceptions listed in the Torah are not exhaustive.
Other relevant considerations might also come up in the car case. We're not dealing with an animal but a means of transportation that involves huge expenses with a lot of long-term wear-and-tear that could without notice cause a failure. There's a lot less of that, and certainly with less expense if it occurs, with farm animals. We also don't have a situation where I'm likely to have a transmission to give to someone else the way we would likely have with an agrarian society whose people mostly did have some animals. If it can be shown that I caused the problem, I'm responsible. If it can't, and there's good reason to think I'm not, I shouldn't be held responsible. It's only in the case where it could go either way that we've got a worry in how we apply it, but those are the hard cases. The case I imagine shouldn't be a hard case. It's just not the kind of case that v.14 has in mind. Other morally relevant factors are present, and case laws aren't intended to cover every case like the one described, just the most typical ones where other factors aren't present.