Charles Ellicott Commentary Exodus 22

If a man shall steal an ox, or a sheep. —The flocks and herds of the Israelites constituted their principal property, and hence cattle-stealing is taken as the representative of theft in general.

And kill it, or sell it. —Plainly showing persistence and determination.

Five oxen ... four sheep. —The principle of the variation is not clear. Perhaps the theft of an ox was regarded as involving more audacity, and so more guilt, in the thief.

Theft is addressed here with great brevity, with only three kinds being distinguished:

1. Housebreaking.
2. Stealing without conversion of the property.
3. Stealing with conversion.

The main principle of punishment established is the exaction from the offender of Double (Exodus 22:4). However, when there has been conversion of the property, the penalty is heavier: the return of four-fold in the case of a sheep, and five-fold in that of an ox (Exodus 22:1).

Incidentally, it is also decreed that a burglar may be resisted by force (Exodus 22:2), and that to kill him is justifiable homicide. Furthermore, it is stated that a thief unable to make the legal restitution is to become a slave in order to pay his debt (Exodus 22:3).

If a thief is found breaking up. —Rather, breaking in: i.e., making forcible entry into a dwelling-house. Most codes agree with the Mosaic in allowing the residents of the house to resist such an attempt if made at night, and to shed the blood of the burglar, if necessary. He may be considered as having dissolved the “social compact,” and converted himself from a fellow-citizen into a public enemy. A murderous intent on his part may be suspected.

If the sun be risen upon him. — In the daytime, no violence is to be feared. The housebreaker seeks to avoid observation and flees if discovered. Moreover, assistance is readily obtainable, and thus there is no need to resort to extreme measures. The English law makes exactly the same distinction as the Mosaic.

For he should make full restitution. — Heb., restoring, he shall restore. It is not quite clear whether he is to restore double, but most commentators understand the passage this way.

If he have nothing. — Rather, if he has not enough. If he cannot make the full restitution of the preceding verse, then he shall be sold for his theft. He shall become the slave for a term of six years to the man whom he has robbed, and in that way pay his debt.

If the theft be certainly found in his hand. —If he had not appropriated it, consumed it, or, if it were an animal, killed it, then, instead of the fourfold or fivefold restitution of Exodus 22:1, a restoration of double was to suffice.