Bava Kamma 044

נושא: BK

BET MIDRASH VIRTUALI

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Today's shiur is dedicated to the memory of my father-in-law,
Morrie Winikoff, Moshe ben-Yehudah Leib z"l,
whose Yahrzeit is today, 12th Iyyar.

If someone digs a pit in a private domain but opens it up into the public domain, or [digs it] in the public domain and opens it up into a private domain, or [digs it] in a private domain and opens it up into [another] private domain – he is liable. If someone digs a pit in the public domain and an ox or a donkey falls into it and dies – he is liable. Be it that he digs a pit, a trench, a cistern, holes or ditches – he is liable. In which case why does [the Torah] refer to 'a pit'? – Just as a pit must be [at least] ten handbreadths deep to be a cause of death so anything else must be [at least] ten handbreadths deep to be a cause of death. If they were less than qo handbreadths deep and an ox or a donkey fell into them and died – he is excused; but if they suffered injury he is liable.

1:
Our present mishnah forsakes the long and involved exposition of the rules and regulations concerning 'the ox' and we now turn to the next item on the agenda, 'the pit'. We must remind ourselves that the agenda is determined by the very first mishnah of this tractate [BK001]:

There are four major categories of damages: the ox, the pit, the grazer and the incendiary. The ox is unlike the grazer and the grazer is unlike the ox; and both, which are sentient, are unlike fire which is not sentient. And these [three], which are mobile and cause damage, are unlike the pit which is immobile and causes damage. What they have in common is [the fact] that they [can] cause damage and they are your responsibility, and when [any one of them] causes damage the malfeasant must make restitution from the best of his land.

2:
Thus the issue which is the concern of the rest of our present chapter is 'the pit'. As our mishnah will make clear the term 'pit' is used by the Torah [Exodus 21:33-34] to indicate any excavation that a human being might make that constitutes a hazard to others:

When a man opens a pit, or digs a pit and does not cover it, and an ox or an ass falls into it, the one responsible for the pit must make restitution; he shall pay the price to the owner.

3:
Our mishnah refers to several kinds of 'pit': "a pit, a trench, a cistern, holes or ditches." Actually, these terms do have a definition. The term 'pit' refers to a hole in the ground which is more or less circular, rather like a well. A 'trench' is a pit which is long and narrow rather than circular. A 'cistern' is rectangular in shape and is usually covered by a plank or wooden lid. The phrase 'holes or ditches' refers to holes that one makes in the ground in order to insert in them later on a post or a beam.

4:
What all these terms have in common is that they can constitute a hazard to other people (who can sue the one responsible for them in case of injury or worse). Our mishnah further establishes that if any of these excavations has a depth of ten handbreadths or more they can be considered to be lethal and must therefore be properly guarded. In terms of modern measurement ten handbreadths is the equivalent of approximately 90 centimetres (a couple of inches less than 3 feet).

5:
The first clause of our mishnah describes three possibilities:

David digs a channel in his courtyard [private domain] but it opens into the street [public domain];
Joel digs a channel in the street and open it up into David's courtyard;
David digs a channel in his courtyard and opens it up into his neighbours' courtyard.

What our mishnah does not mention, presumably because if is so obvious, is a fourth possibility:

Sam digs a pit in the middle of the street.

In all these cases the person who digs the channel or pit is liable to be sued for any damages the excavation may cause to others because it constitutes a hazard.

6:
In all these cases the person who digs the pit is also a trespasser. This even includes Sam, because he has no right to endanger the public in this manner. (We recall that the public domain belongs to everyone and must therefore be kept free of all hazards.) However, if David's ox, Goliath, enters into Sam's courtyard and is injured by falling into his pit, Sam is not liable because Goliath is trespassing. However, even if we assume that Sam is very publicly-minded and makes his courtyard available to the general public he would be liable for injuries sustained if he had not also renounced his ownership of the pit.

7:
The unwritten golden rule in this regard must be "cover your pits!" Not only should pits be covered to prevent accidental injury to animals and careless human beings, but it would also be an example of civic good manners to put up a warning sign of some kind. Failure to cover the pit creates the possibility of being sued for injuries. And if the pit is three feet deep one might even find oneself on trial for causing the death of another human being. More of this in the next mishnah.

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