Torah Community Connections

Week 94 - Tuesday - 11 September 2001

BAVA KAMMA: CHAPTER 5: MISHNAH 5

If a person digs a pit in a private domain, and opened it into the public domain, or in the public domain and opened it into the private domain, in the private domain and opened it into another private domain, he is liable. If a person digs a pit in the public domain, and an ox or an ass fell into it and died, he is liable. It is all one if a person digs a pit, a trench, or a cavern, channels, or ditches, he is liable. If so, why is it written, "pit?" Just as a pit which has sufficient to cause death, ten tefahim, so also any which have sufficient to cause death, ten tefahim. If they were less than ten tefahim, and an ox or an ass fell into it and died, he is exempt; and if it was injured in it, he is liable.

Kehati

The mishnayot from here to the end of the chapter deal with the laws of pit damages. Our mishnah teaches for which type of pit a person is liable.

If a person digs a pit in a private domain, and opened it into the public domain - and this is certainly so if he dug it in the public domain and opened it into the public domain, as will be explained in our mishnah, below, or if a person digs a pit - in the public domain and opened it into the private domain - e.g., he opened it close to the public domain, and people walking in the public domain could fall into it (Tosefot Yom Tov), or he declared his domain ownerless (hefker), so that everyone is permitted to enter it, or if a person digs a pit - in the private domain and opened it into another private domain - which he owned, and he declared the domain in which the opening of the pit is located to be hefker (see Tosefot Yom Tov), he is liable - for damages caused by the pit. The general rule is that the location of the opening of the pit is the determining factor, and the location of the bottom of the pit makes no differenceõ (Tosafot).

If a person digs a pit in the public domain, and an ox or an ass fell into it and died, he is liable - as it is written, "If a man opens a pit, or if a man digs a pit and does not cover it, and an ox or an ass fall into it, the owner of the pit shall make restitution, he shall give money to their owner" (Ex. 21:33-34). The Sages explained as follows, why was it necessary for the Torah to write "If a man opens ... or if a man digs" - if he is liable for having opened it, surely he should be liable for digging it? The Torah mentions both to teach that he is liable for the action of opening and for the action of digging; it follows from this that if a person digs or opens a pit in the public domain he is liable, i.e., even though the pit is not in his domain, but rather in the public domain and hence it is not in fact his pit, since he dug it or opened it there, the Torah considers him the owner of the pit with respect to liability for damages caused by it.

It is all one - law - if a person digs a pit - a circular excavation, or - a trench - a long, narrow excavation, or a cavern - a square, covered excavation, or - channels - wide, square excavations similar to a cavern, but without a covering, or ditches - excavations which are narrow at the bottom and wide at the top; he - whoever digs one of these - is liable - for the damage it causes.

If so, why is it written - in the Torah, "If a man opens a - pit?" - To teach that - Just as a pit which has sufficient depth to cause death - ten tefahim - since an ordinary pit is ten tefahim deep, so also any - type of excavation - which has sufficient depth to cause death - the measure of which is - ten tefahim.

If they were less than ten tefahim, and an ox or an ass fell into it and died, he is exempt - since it was not deep enough to cause death, and the fact that it died there was a circumstance beyond his control; and if it was injured in it, he - the owner of the obstacle - is liable - to pay full damages, since even an excavation of the slightest depth is capable of causing damage.

Amoraim in the Gemara disagree as to whether the Torah-imposed obligation for a death caused by a pit applies when the animal died due to the heat of the pit, or also when it died only from the blow it sustained, and not from the heat. The law is in accordance with Shmuel, who holds that the damage caused by the pit to which the Torah refers is its heat, and certainly to the blow (see Gemara, B. K. 50b). It follows from this that even if the pit were filled with shorn wool, the owner of the pit is liable. Similarly, if a person builds a high mound in the public domain and an animal received a blow from it and died, he is obligated to pay if the mound were ten tefahim high; if it were less than ten tefahim, he is exempt for the death of the animal, but if the animal were only injured, he is obligated to pay full damages (Gemara; Rambam, Hil. Nizekei Mamon 12:1; 14-15).

BAVA KAMMA: CHAPTER 5: MISHNAH 6

A pit belonging to two partners: if the first one passed by it and did not cover it, and the second one did not cover it, the second one is liable. If the first one covered it, and the second one came and found it uncovered and did not cover it, the second one is liable. If he covered it properly, and an ox or an ass fell into it and died, he is exempt. If he did not cover it properly, and an ox or an ass fell into it and died, he is liable. If it fell forward because of the sound of the excavating, he is liable; backward because of the sound of the excavating, he is exempt. If an ox and its implements fell into it and they were broken, an ass and its harness and they were torn, he is liable for the animal and exempt for the implements. If a deaf-mute, a mentally deficient, or a minor ox, fell into it, he is liable. Son or daughter, bondman or bondwoman, he is exempt.

Kehati

A pit belonging to two partners - e.g., it is in their courtyard and the pit belongs to both of them, and they declared their domain hefker, but did not declare their pit hefker (for if they had also declared their pit hefker, there would not be any obligation in this case, since they dug it with permission, and the pit would now be ownerless; see Rambam, Hil. Nizekei Mamon 12:2); according to another interpretation, this refers to a case in which a person dug a pit to a depth of nine tefahim in the public domain, and the two of them came and together removed another clod of earth, completing a depth of ten tefahim: if the first one passed by and did not cover it, and the second one did not cover it, the second one is liable - the Gemara explains that the second one is liable only after the first one gives him his deli. Rashi interprets deli to mean the cover of the pit: the first one opened it, the second one came and found him, and the first one gave him the cover of the pit. Rambam interprets deli literally, i.e. a bucket. In any event, since the second one was supposed to cover the pit but did not, he is liable.

If the first one covered it, and the second one came and found it uncovered and did not cover it, the second one is liable - since the first one did not know that it was open. If, however, the first one also had not covered it, and the second one came and found it uncovered and did not cover it, then both are liable.

If he - the owner of the pit - covered it - the pit - properly, and an ox or an ass fell into it and died - e.g., if the cover became wormy, he is exempt -since this is a circumstance beyond his control. If he did not cover it properly, and an ox or an ass fell into it and died, he is liable - the Gemara explains that this refers to a case where e.g., camels, were in the area, and he covered the pit with something which could withstand oxen, but could not withstand camels, camels walked over it and the covering began to break, and afterwards oxen walked over it and fell into the pit; since he had not covered the pit with a covering which could withstand camels, he is liable.

If it - the ox - fell forward - into the pit - because of the sound of the excavating - e.g., the pit was already dug and a person entered it to deepen or widen it, and the ox stood on the edge of the pit and became frightened by the sound of the excavating, and fell into the pit and died, he is liable - since it died due to its falling into the pit; but if it became frightened and fell backward -behind the pit, outside it - because of the sound of the excavating, he is exempt - since the damage did not come directly from the pit, but rather because the animal was frightened by the sound of excavating, this is only a case of grama (an indirect causal factor), and he is therefore exempt.

If an ox and its implements - the ox's harness and plow - fell into it and they were broken, an ass and its harness - its packsaddle and saddle - and they were torn, he is liable for the animal and exempt for the implements - as the Torah writes concerning pit damages, "and an ox or an ass fell there" (Ex. 21:33), which the Sages interpreted as meaning, "ox" - excludes man, ass - excludes implements.

If an ox - which is - a deaf-mute - or - mentally deficient, or a minor - any ox which has not yet learned to plow (Hameiri). This is also the law for an ox which is blind or which was walking at night (a baraita quoted in the Gemara), fell into it, he is liable - since the ox did not know how to take care. Concerning a normal ox, however, which fell into the pit during the day, the owner of the pit is exempt, since an ox knows how to take care, and the fact that it fell into the pit is a circumstance beyond his control.

If a son or daughter - even if they are minors, or a Canaanite - bondman or bondwoman - fell into it, he - the owner of the pit - is exempt - by edict of the Torah, since it is written, "ox," and not man (Rashi).

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