Bava Kamma Chapter Five Mishnah Five
In the first mishnah of the tractate we learned that there are four archetypal causes of damage. Our mishnah and the two mishnayoth that we will learn tomorrow are concerned with the second cause of damage, namely the pit. Exodus 21:33-34 state: 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, but shall keep the dead animal. Our mishnah deals with several details concerning damages done by a pit.
1) If a man dug a pit in a private domain and opened it into the public domain,
a) or if he dug it in the public domain and opened it into a private domain,
b) or if he dug it in a private domain and opened it into another private domain,
c) he is liable [if any is injured by the pit].
2) If he dug a pit in the public domain and an ox or ass fell into and died, he is liable.
3) No matter whether he digs a pit, trench, or cavern, or ditches or channels he is liable.
a) If so, why does it say a pit (Exodus 21:33)?
b) Just as a pit which is deep enough to cause death is ten handbreadths deep, so anything is deep enough to cause death if it is ten handbreadths deep.
4) If they were less than ten handbreadths deep and an ox or an ass fell in and died, the owner is not liable;
a) but if it was damaged he is liable.
Sections one and two emphasize that the pit which is described in the Torah is a pit dug almost anywhere. The only exception would be a person who dug a pit on his own property and another person came onto his property without his permission and fell in the pit. In this case the owner would not be liable since the ox entered without his permission.
Section three states that one is obligated not only for damages caused by a pit but damages caused by any hole dug into the ground. There are many types of holes a person might dig for various reasons and they all have different names. The mishnah emphasizes that one is obligated not just for pits but for other holes as well. Section 3a asks a follow-up question. If the Torah meant to say that a person is obligated for any hole he dug in the ground or uncovered why did it specifically mention pit? The answer is that a pit is an example of how deep something has to be for it to be normal for it to cause the death of an animal that fell in. Ten handbreadths (=about one yard) is such a normal depth. Therefore we can conclude that any hole which is ten handbreadths deep is considered to be similar a pit and if an animal falls in and dies, the person who dug or uncovered the hole will be liable.
Section four is a follow-up to section three. If a person dug a hole or uncovered a hole less than ten handbreadths he does not, according to the mishnah, fit into the category mentioned in the Torah. Therefore if an animal does fall in and die he is not liable. However if the animal is injured he is liable since a hole less than ten handbreadths is likely to cause injury.
Questions for Further Thought:
· Why might you think that if a person digs a hole in the public domain he will not be liable?
· Why should a person not be liable if he dug a pit less than ten handbreadths?