Bava Kamma 045

נושא: BK

BET MIDRASH VIRTUALI

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A pit belongs to two partners: the first passed it by and did not cover it nor did the second cover it, the second is liable. The first [partner] covered it but when the second comes he finds it uncovered and does not cover it, the second is liable. If one covers [his pit] adequately and an ox or a donkey falls in and dies, he is excused; but if he did not cover it adequately and an ox or a donkey falls in and dies, he is liable. If, because of the noise of the excavation, [an animal] falls in [when the pit is] in front of it [the owner of the pit] is liable; if, because of the noise of the excavation, [an animal falls in when the pit is] behind it [the owner of the pit] is excused. If an ox falls into it and its equipment are broken, or a donkey and its equipment are torn, [the owner of the pit] is liable for the animal but excused for the equipment. If the ox is deaf, mad or small and falls into it [the owner of the pit] is liable; but in the case of a boy, girl, servant or handmaid, he is excused.

1:
In the Babylonian Talmud our present mishnah is presented as two separate mishnahs; and, indeed, more than one issue is included in our mishnah.

2:
We have already said that it is the duty of the owner of a pit to see that it is adequately covered so that innocent passers-by or their animals do not fall in and get hurt. The first clause of our mishnah is concerned with the question of whose responsibility is it to see that the pit is covered when it is used by more than one person. Our mishnah determines that it is the last person to use the pit who is to be held responsible for covering it. This assumes that previous users were aware that another user was about to use the pit. So, if the last user does not cover it it is he who is to be held liable for any accidents that may occur.

3:
The fact that a previous user covered the pit does not in any way change the responsibility of a later user.

4:
The next issue discussed is the extent of responsibility that devolves on the owner of a pit what was covered but nevertheless an animal falls in and dies. The Gemara [BK52a] asks an obvious question and provides a reasonable answer:

If the owner covered the pit properly how could an animal fall into it? – Rabbi Yitzḥak ben-Bar-Ḥanah says: We must assume that the boards of the cover had decayed from within.

If the pit had not been used for some time it is possible that the planks used to cover it were rotting underneath. This would not be visible to anyone looking from above so the owner cannot be held responsible because there was no way that he could know that the planks he had placed there were now dangerous.

5:
Let's assume that Sara is having a pit dug to serve as a cistern. She wants it to be quite deep, so at a certain stage the men working on the excavation are down inside the pit, hacking and shoveling. Along comes Goliath, David's ox: he sees the pit in front of him and is going to avoid it when suddenly there are noises from down in the pit. These noises so startle Goliath that he falls into the pit head first. Sara is responsible for David's loss.

6:
Now let's assume that Goliath actually passed by the pit but immediately afterwards he is startled by noises coming from deep down in the pit and falls backwards beside the pit: Sara is not liable for David's loss.

7:
Here is Rambam's explanation (understanding 'after it' rather than 'backwards'):

If the animal fell after it, i.e. had already passed the pit and stumbles aback after the pit, the owner of the pit is excused – unless the animal actually falls into the pit: in such a case he would be liable in any case.

Rambam's commentary on the Mishnah was written around 1165 CE; by the time he came to write his great code, Mishneh Torah, after 1178 CE, he had changed his mind. In Laws of Damages 12:18 he rules that even if the animal falls into the pit the owner of the pit is not liable.

8:
The Torah [Exodus 21:33] rules:

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.

The sages [BK 53b] gave this ruling a strict interpretation:

Only an ox and not a human being; only a donkey and not its equipment.

In other words, only animals that die earn restitution for their owner; if a human being dies as a result of falling into a pit the laws of manslaughter come into effect. Furthermore, the owner of the animal will only be able to claim damages for his animal, but not for any equipment that was damaged with it. (In the case of an ox it could be the yoke or the plough; in the case of the donkey it could be the saddlecloth or the stirrup.)

9:
Lastly, if the animal that falls into the uncovered pit is not in possession of all its faculties the owner of the pit is liable: such animals are not able to discern the danger ahead of them. But human beings can certainly be expected to 'look where they are going' [BK 54b] and should be able to discern an open pit that lies before them and take the necessary evasive precautions.

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