Or HaChaim on Exodus 22:14/אור החיים על שמות כ״ב:י״ד

1 אם בעליו עמו לא ישלם, if its owner be present he does not have to pay. We have to consider whether the party exonerated by the Torah in this paragraph is free from restitution only by a human tribunal or whether he is exonerated also vis-a-vis Heaven, i.e. in the Hereafter. Suppose the owner of the universe, G'd, Who has entrusted the soul He has planted in a human body for safe-keeping in his body will demand an accounting from the body when He reclaims an unsullied soul at the death of the person to whom He has entrusted the soul. We read in Deut. 4,9: "you shall guard your soul very carefully." When G'd will reclaim His souls He may find that they have either been "stolen," or "broken," or "captured," or "died." All of these four kinds of "damages" are applicable to souls and may be the result of the person equipped with the respective soul committing various transgressions. [In order to understand what the author refers to the reader has to remember that the author has adopted the concept that each commandment in the Torah corresponds to a specific organ, bone, or sinew of the human body. Non-performance of a commandment is equivalent to maiming that part of the body. Ed.] Some people have their souls "stolen" from them when the person is involved in an encounter with impurity; others lose their soul when involved in a deliberate act of transgression; in such an instance the person is considered as having destroyed the limb or organ charged with performance of that particular commandment. Sometimes a person is guilty of a transgression for which the penalty is כרת, premature death and/or permanent severance from his people. Still others may commit violations punishable with death by a human tribunal. Such sins cause the death of the soul (compare Genesis 17,14). In other cases the soul is merely taken "captive" as per Zohar volume two page 95. When G'd -the owner of the deposit- demands its return in the condition He has deposited it, the spirit is supposed to return to G'd as stated by Solomon in Kohelet 12,7. Our sages in Shabbat 152 interpret this to mean as G'd saying: "give it to Me as it was given to you." Can the keepers, i.e. human beings, decline liability for damage to their soul by basing themselves on the wording in our verse: "if its owner was present, the keeper does not have to pay?" The sages in Baba Metzia 97 state that it is possible for the borrower to escape liability for what he has borrowed if he asks the owner of the article he wishes to borrow to first let him drink some of his water. If the owner agrees, he is considered as in the category described in our verse as having worked with the consent of the owner. The same ruling is applicable to "keepers" (seeing their liability is generally on a lower level than that of the borrower). Seeing that G'd has provided man with his food and drink before man begins to be active on earth, He should be considered as in the category of the lender described in the Talmud, and man should be free from liability for his mistakes.

2I am duty bound to tell the human soul not to rely on such convoluted reasoning for either of two reasons. 1) In our verse the Torah tells us explicitly that "keepers" are liable in accordance with all the rules applicable for the various categories of such guardians listed in Baba Metzia 94. The Talmud even says that the owner of the object entrusted to an unpaid keeper may stipulate that the unpaid keeper assumes all the liabilities of a person who borrows with a view to using the object under his care. This is so in spite of the general rule that one may not impose conditions which override those stipulated in the Torah, as in this case only financial dealings are involved. Above-named restriction does not apply in matters concerning money. In practice this means that the owner may hold the borrower (or guardian) responsible even if the latter had undertaken to perform tasks with the borrowed object with the knowledge (read consent) of the owner. We find an example of this in Makkot 3 where the lender of a long term loan stipulated that the law of Shmittah (automatic cancellation of past-due loans) not be invoked against him, and that the loan in question would be due after the Shmittah year. The Talmud explains the reason for this as being that all financial conditions mutually agreed between two parties are binding. In our instance, G'd has made it plain in His Torah that violating His laws will result in retribution. Moreover, He has even made the Israelites render an oath concerning their obligation to live up to the commandments of the Torah.

3The second reason that man cannot avail himself of the legislation which exonerates negligent behaviour of the borrower in the presence of the lender has to do with the principle that only a few of man's trespasses are subject to judicial prosecution on earth. In principle, it is the Supreme Judge who has the prerogative to sit in judgment of human activities and to adjudicate such cases fairly. Who is to say that a person who is guilty of negligent dealings with his neighbour's property will not be judged by the Supreme Judge Himself? We have hundreds of instances of violations which are subject to G'd's judgment only, human judges not having been accredited to deal with such violations of the Torah! The best proof of this concept is the fact that there are many violations concerning which the Torah has specifically stated that the transgressor will not be held liable by a court on earth but will be judged either by G'd directly while still alive, or at least in the Hereafter. I have explained this in detail on Exodus 21,12 on the words מות יומת. You will find for instance, that when "keepers" have been negligent with property owned by the Temple treasury they are not subject to penalties by a human court. Even Maimonides who held keepers liable in cases where lands, documents or slaves are involved, appears to hold that this is so only vis-a-vis human owners. When the property is owned by Heaven or its representatives, no action is taken against the offending party. You may conclude that the reason that no action is taken is because such people are guilty of something more serious than is subject to earthly judges' jurisdiction.