Translated by David Strauss
The Torah organizes the sections dealing with damages not according to the cause of the damage, but to the object of the damage. Until verse 32 in chapter 21, the Torah discusses damage (or death) caused to a human being – to an adult, to a minor ("whether it have gored a son, or have gored a daughter"; 21:31), to a free man, and to a slave. These verses address damage caused by a human being as well as damage caused by an ox or any other animal. From 21:33 until verse 3 in the next chapter, the Torah discusses damage caused to an animal, and it then moves on to discuss damage caused to plants or inanimate objects.
The cases of damage caused to an animal that are mentioned in our parasha are: an animal that fell into a pit, an animal that was gored by another animal without a violent history (shor tam) or with a violent history (shor mu'ad), and an animal that was stolen by a thief who can be called a tam or by a thief who can be called a mu'ad – in two cases: a thief caught breaking into a house, and a thief who slaughters or sells the animal. We will discuss the scenario of an animal that fell into a pit.
I. "And if a man shall open a pit, or if a man shall dig a pit"
And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or a donkey falls into it, the owner of the pit shall make restitution; he shall return money to the owner, and the beast shall be his. (Shemot 21:33-34)
The halakhic midrashim and the Talmud grapple with the question of why the Torah chose to distinguish between one who opens a pit and one who digs a pit. If one who merely opens a pit is liable for the damage it causes, then surely one who digs it is liable, for he created a new pit! Why does the Torah specify both cases?
The midrashim propose many and varied differences between opening a pit and digging it.[1] I will focus on the possibility that seems to be the position of the Jerusalem Talmud, and expand it beyond what is stated in the Jerusalem Talmud itself:
It is written: "And if a man shall open a pit, or if a man shall dig a pit" – one pit for damages, the other pit for death. Rabbi Yitzchak said: Both the pit of death and the pit of damages were added from the same verse, but when it comes to the pit of death, you say he is not liable for goods, but when it comes to the pit of damages, you say he is liable for goods! (Jerusalem Talmud, Bava Kama 5:6)
According to the Jerusalem Talmud, the two pits – the one that was opened and the one that was dug – are two different pits with different laws. One pit is a pit in which an animal died; the opener of this pit is liable only for the animal that died, not for the goods it was carrying and also not for a person who fell into the pit and died, as will be explained below. The second pit is a pit in which an animal suffered damage, e.g., it was injured and broke its leg. The digger of such a pit is liable for damage caused to a human being as well, e.g., where he broke a leg, and even for damage caused to goods.
According to the plain understanding of the halakha, the first pit is ten handbreadths deep,[2] while the second is shallow and there is no liability for an animal that died in it – only for an animal that was injured in it. I will try to broaden this distinction to another area that distinguishes between the pits, as it appears to me from the plain meaning of the verses. It is possible that the difference is not only between a deep pit and a shallow one, but also between a pit that is filled with water and one that is empty.
According to our understanding of the plain meaning of the verses, the Torah speaks of two different types of pits. The common case of a person opening a pit is in the spring, after a rainy winter, and it involves a pit containing drinking water that serves the public and their animals. The person responsible for the damage opened the pit in order to drink from its water, and then forgot to close it. An animal that falls into the pit with its head faced down to the water will suffocate and drown. In contrast, the common case of a person digging a pit is in the fall. A person digs the pit in order to collect rainwater during the winter for the spring and summer. In most cases, the newly dug pit is empty. An animal that falls into this pit with its head faced forward and downward will break its neck and die from the impact.[3] In the Gemara, the Amoraim Rav and Shmuel disagree whether one is liable for the blow as well, or only for the compressed and poisoned air, which can kill by suffocation like water. The reason for the dispute is that there is a certain novelty to liability for the blow, because it is caused indirectly by the pit.[4] In any event, we are talking about two different types of pits, and it is possible that this is the reason that the Torah had to spell out both cases.
The Gemara excludes liability for the death of a human being who fell into a pit and died, as well as liability for damage caused to goods that fell into a pit and were broken. It derives these laws through exposition of the verses:
"And an ox or a donkey falls into it" – "an ox," and not a human being; "a donkey," and not goods. (Bava Kama 53b)
The exemption from liability for a person who fell into a pit and died seems to be related to the fact that people, as a rule, look where they are going. A person's fall into a pit is seen as their own responsibility.
Furthermore, in a pit filled with water, it may be assumed that an animal that stumbles into it will fall with its head forward, due to its body structure, so that when it falls, its head faces down and it will have difficulty extricating itself from the water. But a person will usually fall with his head up, due to his body structure, such that he can get out of the water more easily.
On the other hand, even a human being may suffer a serious injury in an empty deep pit, so the difference between a human and an animal is reduced in that case. Even goods are likely to break when they fall into an empty pit, certainly one that is ten handbreadths deep, as opposed to when they fall into a pit filled with water. In such a pit, there is liability for damage that does not involve death, and there is no difference here between a human being and an animal; the person responsible for the pit is liable for both. In a pit filled with water, the situation is different, and it is unlikely that a person falling into it will be seriously injured. Therefore, regarding a pit filled with water, the Gemara expounds: "'An ox' – and not a human being."
We see then that the two pits reflect different laws. A pit filled with water that someone opened is likely to cause death (but usually not injury) only with regard to livestock. People and goods are unlikely to be harmed. But an empty pit, that a person dug but that has no water in it yet, is mainly likely to cause damage; thus, with this type of pit, one is liable even for damage caused to a person or goods. It is for this reason that the Torah took the trouble to relate to two situations of a pit, and according to this understanding, to two different pits.
II. Where is the pit?
It is reasonable to assume that a pit for which one bears liability is located in the public domain, for there is no reason to impose liability on the owner of a pit located in his own property. According to the verse, however, the person who is liable for the damage is called "the owner of the pit" – but surely he does not own the pit that he dug in the public domain! It is possible to reconcile the verse, but Rabbi Akiva argues that the primary liability of the owner of the pit is for a pit in his possession, which he owns. As for the question why he should be liable in such a situation, the Gemara sets the liability in a case where "he declared his property ownerless, but his pit he did not declare ownerless." In such a situation, the digger is indeed the owner of the pit, but who would make such a strange declaration, and why would the Torah address such an unusual case? It seems that the Gemara is referring to a person who opened a shop or something similar in his courtyard and invited the public to enter his property. This person must cover the pit in his courtyard because it constitutes a danger for the public. If one of his visitor's animals falls into the pit, the owner of the pit will be liable for the damage.
Rabbi Yishmael, on the other hand, believes that we are dealing with a person who dug or opened a pit in the public domain. It is true that the pit does not belong to him, but owing to his action, he is regarded as the owner of the hazard and is therefore defined as "the owner of the pit." Their halakhic positions require a great deal of detailed analysis, but our focus is on the verses. Most of what we will say below will be according to the opinion of Rabbi Yishmael, regarding a pit in the public domain.
III. "'A donkey' – and not goods"
As mentioned, the halakhic midrashim and the Talmud restrict liability for damage caused to animals by a pit:
"And an ox or a donkey falls into it" – "an ox," and not a human being; "a donkey," and not goods. (Bava Kama 53b)[5]
The derivation from the verse is not clear. It seems that the verse should have been understood within above observation that the sections dealing with damages are organized according to the object of the damage, and not according to the cause of the damage. The Torah included the law of a pit in the section dealing with damage caused to animals, not in the earlier section about damage caused to human beings or in the later section about damage caused to plants and inanimate objects. This implies that we are dealing exclusively with damage caused to animals, and nothing else.
Furthermore, the logic underlying the law requires clarification: If a donkey was laden with goods and fell into a pit, why should the digger of the pit be liable only for the donkey and not for the goods?
It seems that the Torah is making a statement here that a person cannot send his donkey on its way alone laden with goods, and that he is responsible to watch over it! Sometimes a donkey leaves its stable and wanders alone in the public domain. If it falls into a pit, it will be the responsibility of the owner of the pit. But when the donkey is laden with goods, its owner is expected to watch over it; therefore, the owner of the pit is not liable for the damage caused to the goods on the donkey.
Moreover, we find isolated leniencies in the details of liability, regarding each of the categories of damages, which vary according to the category in question. It is possible that the Torah wishes to teach us the principle of self-participation on the part of the person who suffered the damage, so that he will watch over his property and not rely on restitution for damage. Most of the responsibility for damages is placed on the person who caused the damage, but some of it is placed on the person who suffered the damage, for not having properly watched over his property.
IV. "He shall return money to the owner, and the beast shall be his"
According to the plain meaning of the verse, the owner of the pit makes full payment for an animal that died in his pit, and in exchange, he is entitled to the animal's carcass. Thus, it follows that the owner of the pit must deal with the carcass and sell it, in order to rescue the little money that it is worth. But all the halakhic midrashim and Talmudim agree that it is the owner of the dead animal that is responsible for taking care of the carcass, and that he only receives from the owner of the pit the difference between the value of his living animal and the value of its carcass. The midrashim apparently understood the word "his" in the phrase "and the beast shall be his" as referring to "the owner." To explain more clearly: The basic tendency would be to understand the verse as saying: "He shall give money to its owner, but the beast shall be his [=given to the person who caused the damage, i.e., the owner of the pit]." But the midrashim instead understood it as follows: "He shall give money to its owner, and also the beast shall be his [=its owner; the owner of the animal]." It thus emerges that the owner of the dead animal receives both the carcass and the money, and from this it follows that payment is made only for the difference between the value of the living animal and the value of its carcass.
Why should the verse be understood in this manner, and not in accordance with the first possibility that we proposed, that the task of dealing with the carcass falls to the owner of the pit? Apparently, the Sages understood that the Torah wishes to be slightly lenient with the person who caused the damage, and impose the trouble of dealing with the carcass on the person who suffered the damage, who did not watch over his animal, allowing it to fall into the pit. As stated above, the Sages may have deduced this approach from other leniencies that exist regarding restitution payments in the various categories of damages.
Moreover, we dealt above with two pits – a pit filled with water, in which the animal drowned, and an empty pit, in which the animal received a deadly blow. It stands to reason that only the carcass of the animal that fell into the empty pit and received a deadly blow has any value. Retrieving the carcass of an animal that fell into a pit full of water is an expensive and lengthy procedure, and in the meantime, the animal's flesh will spoil due to the water and its value will decrease. Therefore, it turns out that the payment for an animal that drowned in a water-filled pit is a full payment, on the assumption that its carcass is worth nothing. The Torah took the trouble to teach us the law governing the carcass ("and the beast shall be his") only for the case of the empty pit. The essence of the Torah's troubling itself to address the law governing the carcass comes to introduce a benefit to the owner of the pit – but his acquisition of the carcass seems obvious, for it is impossible that the owner of the animal should receive both the full value of his animal and its carcass, and thereby profit from the damage. It stands to reason that the benefit the Torah awarded to the owner of the pit is that the carcass is given to the owner of the animal as part of the payment due to him.
[1] I will present here some of the opinions in the Babylonian Talmud and in the halakhic midrashim, leaving the rest to those who wish to examine the sources themselves:
a. Rabbi Akiva's opinion in the Gemara (Bava Kama 50a) is that the Torah added "if a man shall open" to "if a man shall dig" because of the words "and not cover it," which imply that a person who caused a pit in the public domain is not required to eliminate it; is enough to cover the pit with an appropriate cover, in which case he can leave the pit intact. The fact that it is enough to cover the pit is self-evident with regard to a person who opened a pit that already existed; the Torah is teaching us that even if one dug a new pit in the public domain – which was forbidden – it is enough to cover the pit so that he will not be liable for damage caused by it.
b. Rabba (ibid. 49b) explains that the need for the additional phrase stems from the location of the pit. Similar to our understanding of the plain meaning of the verses, Rabba understands the verse as referring to one who opens or digs a pit specifically in the public domain, for if he did it in his own courtyard, why should he be liable? But the wording of the Torah seems to impose liability on "the owner of the pit" – implying the one in whose courtyard the pit is located. Therefore, the Torah uses two verbs, "open" and "dig," to teach that the imposition of liability is not because he is the owner of the pit, but because his actions caused the pit – even if the pit is not his, because it was dug in the public domain.
c. It is possible that the Torah is talking about a different scenario, where one person opened a pit and another person came and deepened it, and now it is a deeper pit. The Torah comes to teach us that the liability is divided between the two parties responsible for the pit (see the passage dealing with one who digs after another person dug, Bava Kama 51a).
d. The Mekhilta de-Rashbi further learns from here about a pit dug out on a diagonal, such that its hollow space is in a private domain but its opening is in the public domain, or the reverse. Such pits are presented as two pits because they span two domains.
[2] Between eighty cm and one meter.
[3] Perhaps there is an allusion to this in the fact that the first instance of the word bor in the verse is written in full, with three letters, bet-vav-resh, whereas the second instance of the word is written with only two letters, bet-resh. This suggests that the first pit is full, whereas the second pit is empty.
[4] Similar to what halakha defines as "gerama."
[5] Rabbi Yehuda disagrees with this and imposes liability even for damage to goods.
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