Babylonian Talmud: Tractate Baba Kamma

Folio 50a

only in regard to a pit on his own premises. R. Akiba maintains that a pit in his own premises should also involve liability, since it says, The owner of the pit,¹  which shows that the Divine Law is speaking of a pit which has an owner; R. Ishmael on the other hand maintaining that this simply refers to the perpetrator of the nuisance.²  But what then did R. Akiba mean by saying, '[When a man abandons his premises without, however, abandoning his pit] — this is the Pit stated in the Torah'?³  — [He meant that] this is the Pit with reference to which Scripture first began to lay down⁴  the rules for compensation [in the case of Pit]. R. Joseph said: in the case of a pit on private ground there is no difference of opinion that there should be liability. What is the reason? Divine Law says, the owner of the pit, to show that it is a pit having an owner with which we are dealing.⁵  They differ only in the case of a pit in public ground. R. Ishmael maintains that a pit on public ground should also involve liability, since it says, 'If a open … and if a man dig …' Now, if for mere opening there is liability, should there not all the more be so in the case of digging? Scripture therefore must mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.⁶  And R. Akiba? [He might reply that] both terms⁷  required to be explicitly mentioned. For if the Divine Law had said only 'If a man open' it might perhaps have been said that it was only in the case of opening that covering up would suffice [as a precaution], whereas in the case of digging covering up would not suffice, unless the pit was also filled up. If [on the other hand] the Divine Law had said only If a man dig it might have been said that it was only where he dug it that he ought to cover it, as he actually made the pit, whereas where he merely opened it, in which case he did not actually make the pit, it might have been thought that he was not bound even to cover it. Hence it was necessary to tell us [that this was not the case but that the two actions are on a par in all respects]. But what then did R. Ishmael mean by saying, [If a man digs a pit in private ground and opens it on to a public place, he comes liable] and this is the Pit of which the Torah⁸  speaks?⁹  — This is the Pit with reference to which Scripture opens¹⁰  the rules concerning damage [caused by Pit].

An objection was raised [from the following]: If a man digs a pit in public ground and opens it to private property there is no liability, in spite of the fact that he has no right to do so as hollows must not be made underneath a public thoroughfare. But if he digs pits, ditches or caves in private premises and opens them on to a public place, there would be liability. If, again, a man digs pits in private ground abutting on a public thoroughfare, such as e.g., workmen digging foundations, there would be no liability. R. Jose b. Judah, however, says there is liability unless he makes a partition of ten handbreaths in height or unless he keeps the pit away from the place where men pass as well as from the place where animals pass at a distance of at least four handbreadths.¹¹  Now this is so only in the case of foundations,¹²  but were the digging made not for foundations there would apparently be liability. In accordance with whose view¹³  is this? All would be well if we follow Rabbah, since the opening clause¹⁴  would be in accordance with R. Ishmael and the later clause¹⁵  in accordance with R. Akiba. But if we follow R. Joseph, it is true there would be no difficulty about the concluding clause¹⁵  which would represent a unanimous view, but what about the prior clause¹⁴  which would be in accordance neither with R. Ishmael nor with R. Akiba?¹⁶  — R. Joseph, however, might reply: The whole text represents a unanimous view, for the prior clause deals with a case where the man abandoned neither his premises nor his pit.¹⁷  R. Ashi thereupon said: Since according to R. Joseph you have explained the text to represent a unanimous view, so also according to Rabbah you need not interpret it as representing two opposing views of Tannaim. For as the prior clause¹⁴  was in accordance with R. Ishmael, the later clause would also be in accordance with R. Ishmael; and the statement that this ruling holds good only in the case of foundations whereas if the digging is not for foundations there would be liability, refers to an instance where e.g., the digging was widened out into actual public ground.¹⁸

An objection was [again] raised: 'If a man digs a pit in private ground and opens it on to a public place he becomes liable, but if he digs it in private ground abutting on a public thoroughfare he would not be liable.' No difficulty arises if we follow Rabbah, since the whole text¹⁹  is in accordance with R. Ishmael. But if we follow R. Joseph, no difficulty, it is true, arises in the prior clause²⁰  which would be in accordance with R. Ishmael, but what about the concluding clause¹⁹  which would be in accordance neither with R. Ishmael nor with R. Akiba?²¹  — He might reply that it deals with digging for foundations,²²  in regard to which the ruling is unanimous.

Our Rabbis taught:²³  If a man dug [a well] and left it open, but transferred it to the public,²⁴  he would be exempt,²⁵  whereas if he dug it and left it open without dedicating it to the public he would be liable. Such also was the custom of Nehonia the digger of wells, ditches and caves; he used to dig wells²⁶  and leave them open and dedicate them to the public.²⁴  When this matter became known to the Sages they observed, 'This man²⁷  has fulfilled this Halachah'. Only this Halachah and no more? — Read therefore 'this Halachah also'.

Our Rabbis taught: It happened that the daughter of Nehonia the digger of wells once fell into a deep pit. When people came and informed R. Hanina b. Dosa²⁸  [about it], during the first hour he said to them 'She is well', during the second he said to them, 'She is still well', but in the third hour he said to them, 'She has by now come out [of the pit].' They then asked her, 'Who brought you up?' — Her answer was: 'A ram²⁹  [providentially] came to my help³⁰  with an old man³¹  leading it.' They then asked R. Hanina b. Dosa, 'Are you a prophet?' He said to them, 'I am neither a prophet nor the son of a prophet. I only exclaimed: Shall the thing to which that pious man has devoted his labour become a stumbling-block to his seed?'³²  R. Aha, however, said; Nevertheless, his³³  son died of thirst, [thus bearing out what the Scripture] says, And it shall be very tempestuous round about him,³⁴  which teaches that the Holy One, blessed be He, is particular with those round about Him³⁵  even for matters as light as a single hair.³⁶  R. Nehonia³⁷  derived the same lesson from the verse,³⁸  God is greatly to be feared in the assembly of the saints and to be had in reverence of all them that are about Him. R. Hanina said: If a man says that the Holy One, blessed be He, is lax in the execution of justice, his life shall be outlawed, for it is stated, He is the Rock, His work is perfect; for all His ways are judment.³⁹  But R. Hana, or as others read R. Samuel b. Nahmani, said: Why is it written⁴⁰

1. Ex. XXI, 34
2. But did not mean the legal owner of it.
3. Since even according to R. Akiba the Torah deals with Pit on public ground.
4. In verse 34.
5. [As against R. Ishmael who requires the pit itself to be abandoned.]
6. V. p. 284, n. 4.
7. Of opening and of digging.
8. V. p. 284, n. 3.
9. Since even according to R. Ishmael the Torah deals with Pit on private ground.
10. I.e., in verse 33.
11. Rashal reads 'cubits'.
12. Which is a general practice.
13. Either with that of R. Ishmael or with that of R. Akiba.
14. Stating exemption in the case of Pit open to private ground.
15. Implying liability in the case of Pit on private ground.
16. For they both according to R. Joseph maintain liability for Pit on private ground.
17. In which case the defendant is entitled to put in a defence of trespass on his ground against the plaintiff.
18. But if the digging was not widened out into actual public ground there would be no difference as to the purpose of the digging for there would be exemption in all cases.
19. V. p. 286, n. 5.
20. Stating liability in the case of Pit on public ground.
21. V. p. 286, n. 7.
22. V. p. 286, n. 3.
23. Tosef. B.K. VI.
24. For the general use of the water.
25. As it became communal property.
26. Thus to provide water for the pilgrims who travelled to Jerusalem on the three festivals in accordance with Ex. XXXIV, 23.
27. I.e. Nehonia.
28. [On R. Hanina b. Dosa as a 'man of deeds' whose acts were viewed as acts of human love and sympathy rather than miracles, v. BŸchler, Types, p. 100ff.]
29. The ram of Isaac, cf. Gen. XXII, 13 and R.H. 16a.
30. Lit., 'was appointed for me.'
31. Abraham.
32. V. J. Shek. V. 1.
33. Nehonia's.
34. Ps. L, 3.
35. I.e. the pious devoted to Him.
36. The Hebrew term for 'tempestuous' is homonymous with that for 'hair'.
37. 'Hanina' occurs in Yeb. 121b.
38. Ps. LXXXIX, 8.
39. Deut. XXXII, 4.
40. Ex. XXXIV, 6.

'Long of sufferings'¹  and not 'Long of suffering'?²  [It must mean,] 'Long of sufferings' to both the righteous³  and the wicked.⁴

Our Rabbis taught: A man should not remove stones from his ground on to public ground. A certain man⁵  was removing stones from his ground on to public ground when a pious man found him doing so and said to him, 'Fool,⁶  why do you remove stones from ground which is not yours to ground which is yours?' The man laughed at him. Some days later he had to sell his field, and when he was walking on that public ground he stumbled over those stones. He then said, 'How well did that pious man say to me, "Why do you remove stones from ground which is not yours to ground which is yours?"'

MISHNAH. IF A MAN DIGS A PIT ON PUBLIC GROUND AND AN OX OR AN ASS FALLS INTO IT, HE BECOMES LIABLE. WHETHER HE DUG A PIT, OR A DITCH, OR A CAVE, TRENCHES, OR WEDGE-LIKE DITCHES, HE WOULD BE LIABLE. IF SO WHY IS PIT MENTIONED [IN SCRIPTURE]?⁷  [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP], AND AN OX AR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.⁸  IF THEY WERE ONLY INJURED BY THEM, THERE WOULD BE LIABILITY.

GEMARA. Rab stated: The liability imposed by the Torah in the case of Pit⁹  is for the unhealthy air created by excavation, but not for the blow given by it. It could hence he inferred that he held that so far as the blow was concerned it was the ground of the public that caused the damage.¹⁰  Samuel, however, said: For the unhealthy air, and, ˆ plus forte raison, for the blow. And should you say that it was for the blow only that the Torah imposed liability but not for the unhealthy air, (you have to bear in mind that] for the Torah¹¹  a pit is a pit, even where it is full of pads of wool. What is the practical difference between them? — There is a practical difference between them. Where a man made a mound on public ground: according to Rab there would in the case of a mound be no liability,¹²  whereas according to Samuel there would in the case of a mound also be liability. What was the reason of Rab?¹³  Because Scripture says, And it fall,¹⁴  [implying that there would be no liability] unless where it fell in the usual way of falling.¹⁵  Samuel [on the other hand maintained that the words] And it fall imply anything [which is like falling].¹⁶

We have learnt: IF SO WHY WAS PIT MENTIONED [IN SCRIPTURE]?¹⁷  [TO TEACH THAT] JUST AS PIT CAN CAUSE DEATH BECAUSE IT IS USUALLY TEN HANDBREADTHS [DEEP], SO ALSO ALL [OTHER SIMILAR NUISANCES] MUST BE SUCH AS CAN CAUSE DEATH, [I.E.] TEN HANDBREADTHS [DEEP]. Now this creates no difficulty if we follow Samuel, since the phrase SO ALSO ALL would imply mounds also. But according to Rab, what does the phrase SO ALSO ALL imply?¹⁷  — It was meant to imply trenches and wedge-like ditches. But are trenches and wedge-like ditches not explicitly stated in the text? — They were [first] mentioned and then the reason for them explained.

What need was there to mention all the things specified in the text? — They all required [to be explicitly stated]. For if only a pit had been explicitly mentioned, I might have said that it was only a pit where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small and circular, whereas in the case of a ditch which is long I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. If [again] only a ditch had been mentioned explicitly, I might have said that it was only a ditch where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of its being small, whereas in a cave which is square I might have thought that [even] in ten handbreadths of depth there would still not be [sufficient] unhealthy air [to cause death]. Again, if only a cave had been mentioned explicitly, I might have said that it was only a cave where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to kill] on account of its being covered, whereas in the case of trenches which are uncovered I might have thought that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. Further, if only trenches had been stated explicitly, I might have said that it was only trenches where in ten handbreadths [of depth] there could be [sufficient] unhealthy air [to cause death] on account of their not being wider at the top than at the bottom, whereas in wedgelike ditches which are wider at the top than at the bottom I might have said that [even] in ten handbreadths [of depth] there would still not be [sufficient] unhealthy air [to cause death]. It was therefore necessary to let us know [that all of them are on a par in this respect].¹⁸

We have learnt: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AN ASS FELL INTO THEM AND DIED, THERE WOULD BE EXEMPTION.¹⁹  IF THEY WERE ONLY INJURED BY THEM THERE WOULD BE LIABILITY. Now what could be the reason that where an ox or an ass fell into them and died there would be exemption? Is it not because the blow was insufficient [to cause death]?²⁰  — No, it is because there was no unhealthy air there. But if so, why where the animal was merely injured in such a pit should there be liability, seeing that there was no unhealthy air there? — I might reply that there was not unhealthy air there sufficient to kill, but there was unhealthy air there sufficient to injure.

A certain ox fell into a pond which supplied water to the neighbouring fields. The owner hastened to slaughter it, but R. Nahman declared it trefa.²¹  Said R. Nahman: 'Had the owner of this ox taken a kab²²  of flour and come to the house of study, where he would have learnt that "If the ox lasted at least twenty-four hours [before being slaughtered] it would be kasher",²³  I would not have caused him to lose the ox which was worth several kabs.' This seems to show that R. Nahman held that a deadly blow can be inflicted even by an excavation less than ten handbreadths deep.²⁴

Raba raised an objection to R. Nahman: WHERE, HOWEVER, THEY WERE LESS THAN TEN HANDBREADTHS [DEEP] AND AN OX OR AND ASS FELL INTO THEM AND DIED, THERE SHOULD BE EXEMPTION. Now, is not the reason of this [exemption] because there was no deadly blow there?²⁵

1. [H], the plural.
2. [H], the singular.
3. By not rewarding them in this world for their good deeds.
4. By not punishing them in this world for their wicked deeds.
5. B.K. Tosef. II.
6. Raca.
7. Ex. XXI, 33.
8. As the death of the animal should in this case not be wholly imputed to the pit.
9. On public ground.
10. For which the defendant has not to be liable.
11. Lit., 'the Torah testified that etc.', since 'pit' is left undefined.
12. As no unhealthy air was created and the blow was given by the public ground.
13. Is not a mound a nuisance?
14. Ex. XXI, 33.
15. Excepting thus a mound.
16. I.e. including mounds.
17. Since according to him there would be no liability for mounds.
18. That the depth of ten handbreadths is sufficient to create enough unhealthy air to cause death in any one of these excavations.
19. V. p. 289, n. 2.
20. Though the air was not less unhealthy there will be no liability, thus contradicting the views of both Rab and Samuel.
21. I.e. forbidden to be eaten in accordance with dietary laws; for the term cf. Ex. XII, 30 and Glossary.
22. (V. Glos.), i.e., provision for his journey.
23. Cf. Hul. 51b.
24. For the pond in which the ox fell was only six handbreadths deep.
25. Thus disproving the view of R. Nahman.