Rabbi Mordecai Kornfeld's
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Parshat Mishpatim 5755

AN EXCURSION INTO THE TALMUD: PITS AND PEOPLE

Introduction: 9 & 10 handbreadth pits.

If someone opens a pit or if someone digs a pit, and he does not cover it, and an ox or a donkey falls into it, the one who made the pit must pay -- he must give money to the owner (of the animal). (Sh'mot 21:33-4)

The Torah obligates a person to pay for damages incurred as a result of a pit dug or opened by him. However, the Gemara (Bava Kamma 3a) tells us that not all pits are the same in this respect. If the pit is less than ten Tefachim (a Tefach is a handbreadth, or about 10 cm.) deep, the Gemara says, the digger is not liable for the death of an animal that falls into it. The reason for this is that such a shallow pit is not considered to be a lethal danger, so the animal's death is not considered to have been caused by the fall. The death must have been caused by some other, external cause (Rashi ibid. 3a, s.v. Vezeh Av Lin'zikin). Alternatively, the reason the digger is not liable is that since it is not usual for a pit of this dimension to cause an animal's death, the digger of the pit was not expected to anticipate such a possibility. He is thus exempt from taking precautions to prevent it from happening, and is in turn exempt from payment if it did nevertheless happen (Tosafot ibid. 10a, s.v. Lich'chah).

In short, one who digs a pit less than ten Tefachim deep is liable only for damages -- but not death -- caused to an animal by the pit, while one who digs a pit deeper than ten Tefachim is liable for both damages and death that is caused to the animal.

Another limitation of the law of liability of pits is derived from the fact that the specific examples of damaged property given by the Torah are "an ox or a donkey." The Gemara (28b) tells us that there is no liability for humans that may fall into the pit and incur damages thereby. There is a qualification to this rule, however. It is only if a human was *killed* by falling into the pit that there is no liability incurred. If the person only sustains injuries, there *is* liability for the damages done to the person who fell into the pit.

I

The problematic Rashi

Rashi, in his commentary to Gemara Bava Kamma (4b, s.v. Tena Adam De'Azzik Shor), implies that there is no liability for *any* harm caused to a person who falls into a pit -- neither for death nor for injury. This is an apparent contradiction to the law mentioned earlier, in our introduction. As we mentioned there, the Gemara qualified the exemption of not paying damages when a person falls into a pit, saying that it is only true in the event of the person's death, but when the person only sustains injury, the owner of the pit *is* liable for the damages. Yet Rashi applies the exemption universally -- even when the person is only injured! This difficulty with Rashi's statement has been noted by several Rishonim [see Shitta Mekubbetzet ad loc.] and Acharonim [Rashash, Maharam Schiff, etc.]. A number of them offer complicated explanations to justify Rashi's words which, in turn, raise other difficutlies in understanding. In short, these inexplicable words of Rashi have puzzled many generations of Torah scholars.

II

2 Reasons to exempt the digger of the pit from human death

Perhaps we can better understand Rashi's words if we try to analyze more deeply the nature of the Torah's exemption of liability for the death of a person who falls into a pit.

It may be suggested that the reasoning behind the Torah's exemption from damages in the event of the death of a person in a pit is that there is simply no person left to whom to owe the payment for the damages done by killing the man. One cannot create a debt to a man who no longer lives! Although if a person who is owed money dies, the right to collect the debt is inherited by his heirs, in this case there was no money owed before the time of death, so the concept of inheritance of debt is inapplicable. (The Torah [Sh'mot 21:30] does provide for an expiatory payment to a person's heirs in the event that he was killed by a violent act of another person's animal. However, this payment is only made in order to earn atonement, and not in order to pay for the damages incurred. It is also limited by the Torah itself to the one case of the violent animal, and it is not applicable in the case of the ditch. [For further research into this line of reasoning, see Bava Kama 43a, and Raavad to Yad Hachazaka Hilchot Nizkei Mamon, 10:14.])

Rashi, however, offers a totally different logic to the Torah's exemption of liability in the case of human death by falling into a pit. In his commentary on Bava Kama 5b, (s.v. Vechulho), Rashi says that the reason there is an exemption from paying damages when people are killed in a pit is that it is uncommon for a person to fall into a pit. Therefore, the owner of the pit is not expected to anticipate, and prevent, such a possibility. The Shittah Mekubbetzet (ad loc.), in the name of "Rav Yisrael," explains Rashi's comment to mean that a person is usually cautious when he walks, and is thus not likely to fall into a pit.

The difficulty with this explanation is obvious. If the Torah exempts one from the death of a person who falls into his pit on the grounds that it is not common for a person to fall into a pit, it should have granted this exemption in the case of injury as well. Why does the Torah's exemption apply only to the *death* of a person and not to *injury*? The Shittah Mekubbetzet (9a) answers that apparently it is not *always* an unusual occurrence for a person to fall into a pit. If the pit is a "lethal pit," i.e. one that could possibly cause death when a person falls into it (a 10-or-more Tefach deep pit), the average person will take great care to avoid falling into it. If, however, it is a shallow, "non-lethal" pit (a pit of less than 10 Tefachim), a person tends to be less cautious in its presence, and as a result he may fall into it. Therefore the Torah's exemption for paying for people who die by falling into one's pit is limited to cases where the person died in a 10 Tefach deep pit, a truly uncommon occurrence. It does not apply, however, to cases where the person only sustained injuries, in a less-than-10 Tefach deep pit, which is more commonplace.

III

The difference between the 2 approaches: Human injury in a 10 Tefach pit.

If we consider the two lines of reasoning offered above to explain the nature of the exemption from payment when a person falls into a pit, we will see that there is a great practical difference between the two theories. According to the first line of reasoning -- that the exemption is based on the fact that since the victim is not alive there is no one to be paid -- the exemption is clearly only applicable to cases where the victim died. According to the second approach, however -- that the exemption is based on the rarity of the event -- it is possible to apply the exemption to *every* case where a person falls into a "lethal" pit. Specifically, in a case where a person falls into a "lethal pit" (one deeper than ten Tefachim) -- which, as noted above, is considered an uncommon occurrence -- even if that person was in fact not killed, but only *injured*, there should be no liability for damages. (See also Meshech Chochmah Shmot 21:33, who comes to a similar conclusion.)

Since Rashi, in fact, subscribes to the second line of reasoning (see section II), it stands to reason that he would hold that *whenever* a person falls into a "lethal" pit, whether the person is killed or only hurt, there should be no liability upon the digger of the pit.

IV

An explanation of Rashi, in light of the above

We can now easily answer the problem we originally raised with Rashi Bava Kama 4b. Rashi implied that the exemption from liability for people falling into a pit applies *both* in the case of death and in the case of injury, while the Gemara in Bava Kama 28b clearly differentiates between the two. We may now suggest that, based on the above proposition, the Gemara in Bava Kama 28b must be re-read. The Talmud does not mean to distinguish between the injury of a person who falls into a pit (where there is liability), and his death (no liability). Rather, it means to distinguish between one who falls into a "lethal" pit of 10 Tefachim -- whether he is injured or dies -- and one who falls into a "non-lethal" pit, of less than 10 Tefachim, and sustains injuries. In the former case, the owner of the pit is exempt from payment, while in the latter, he is liable.

Now there is no longer any contradiction between Rashi (B.K. 4b) and the Gemara (B.K. 28b). Rashi, who implies that the exemption from liability for people falling into a pit applies *both* in the case of death and in the case of injury, is referring to a "lethal" pit. In such a pit, there truly is no distinction between injury done to a person and death, according to Rashi's understanding of the exemption (as we have shown above, section III). The Gemara in Bava Kama 28b, which says that one is *liable* for damages in cases of injury, only means to say that the owner is liable for injury incurred in a "non-lethal" pit, of less than 10 Tefachim. Since Rashi was not discussing such a pit in Bava Kama 4b, he was perfectly justified in saying that there is no liability upon the digger of the pit *whenever* a person falls into it!

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