Bava Kamma Chapter Five Mishnayoth Six and Seven

 

Introduction

Mishnah six continues to deal with damages done by a pit, a subject that we began to learn in mishnah five.  The Torah states that a person is obligated for damages caused by a pit which he dug or by a covered pit which he uncovered.  The first two sections of mishnah six deals with the duty to properly cover pits.  The third section of the mishnah deals with the cause of an animal’s falling into a pit.  The fourth section deals with damages done to the load carried by the animal when it falls into the pit.  The fifth section deals with irresponsible oxen, children and slaves who fall into the pit.

According to mishnah seven when the Torah states “ox” with regards to a number of laws, the intention is not that the law is limited to an ox.  Rather the laws of the Torah mentioned in this mishnah apply to any animal or bird.  This mishnah is an appendix to the laws that we have learned in the first five chapters, must of which were dealt with goring oxen and damages by a pit.  In both of these laws the Torah uses the example of an ox, and therefore it is essential that our mishnah emphasize that an ox is just an example.  These laws are equally applicable to other animals. 

 

Mishnah Six

1)                     If a pit belonged to two partners and one went over it and did not cover it, and the other also went over it and did not cover it, the second one is liable.

a)                                           If the first covered it and the second came and found it uncovered and did not cover it, the second one is liable.

2)                     If he covered it properly and an ox or an ass fell into it and died, he is not liable.

a)                                           If he did not cover it properly and an ox or an ass fell into it and died, he is liable.

3)                     If it fell forward [not into the pit, frightened] because of the sound of the digging, the owner of the pit is liable.

a)                                           But if backward [not into the pit, frightened] because of the sound of the digging, he is not liable.

4)                     If an ox and all of its trappings fell into it and they broke, or if an ass fell into it with its trappings and they were torn, he is liable for the beast but exempt for the trappings. 

5)                     If an ox that was deaf, insane or young fell in, the owner is liable.

a)                                           If a boy or a girl or a slave or a bondwoman fell in, he is not liable.

 

Mishnah Seven

1)                     An ox and all other beasts are alike under the laws concerning falling into a pit, keeping apart from Mount Sinai, two-fold restitution, the restoring of lost property, unloading, muzzling, diverse kinds, and the Sabbath. 

a)                                           So to wild animals and birds.

b)                                          If so, why is it written “an ox or an ass”?

c)                                           But Scripture spoke of prevailing conditions.

 

Explanation

Section one of mishnah six deals with the duty to cover a pit.  We learn here that if the pit was owned by two people, the last one to be at the pit is the one responsible for damages done if he left the pit uncovered. Even though the first person also left the pit uncovered, since the second person was the last to be at the pit, he is the one held accountable.

Section two states quite simply that if a person covers a pit properly and nevertheless an animal falls in and dies, he is not liable.

Section three deals with animals that are frightened by the sound of the digging and fall.  In other words the damage was caused not by the pit itself but by the digging of the pit.  According to our mishnah if they fall forward the owner is obligated but if they fall backward the owner is exempt.  This distinction is based on a midrash that demands that the ox is killed while walking forward and not while walking backward.  [I have explained this mishnah according to Albeck, but there are other explanations].

Section four deals with damages done to the load that the animal was carrying when it fell into the pit.  This law is also based on a midrash.  Exodus 21:33 states: “and an ox or an ass falls into it”.  The Rabbis learned in a midrash “an ox, and not a person; an ass and not trappings.”  Compensation for damages done by a pit are therefore limited to damages done to the animal itself.

Section five sets an important limit to the liability for the pit-owner.  The mishnah states that if a deaf ox, or an insane ox or a minor ox that had not yet learned to walk carefully fell into the pit the owner of the pit is liable.  By inference we can learn that if an adult capable ox fell into the pit the owner of the pit is exempt.  The second clause of this section states that this rule is not true with human beings.  As we learned in the aforementioned midrash, the Torah states that one is obligated when an animal falls into the pit and not when a human does.  Our mishnah emphasizes that even if the human was a child who is by nature not careful, the pit-owner is exempt. Furthermore, even if the human was a slave who, like an ox, belongs to someone else, the slave is still not an ox or an ass, and therefore the owner of the pit is exempt.

 

Mishnah seven lists several laws in which the Torah states “ox” or “beast” but the Rabbis hold that the law is true for all animals, including even wild animals and birds.  I will briefly explain these laws with their Biblical references:

Falling into the pit—this is our topic in Bava Kamma.

Keeping apart from Mount Sinai—see Exodus 19:13. There God tells Moses to keep everyone, including the animals away from the mountain before the Revelation.

Two-fold restitution—see Exodus 22:3, 8.  If a person steals something and is caught he must pay back double.

Restoring lost property—see Exodus 23:4, and Deuteronomy 22:1.

Unloading—see Exodus 23:5.  If one sees his enemy’s ox buckling under its load, he must help him unload the animal.

Muzzling—see Deuteronomy 25:4.  One is not allowed to muzzle an ox while it is threshing.  

Diverse kinds—see Leviticus 19:19 and Deuteronomy 22:10.  According to Leviticus one is not allowed to mate two different kinds of animals.  According to Deuteronomy one is not allowed to yoke an ox and an ass together.

The Sabbath—see Exodus 20:10 and Deuteronomy 5:14.  One must allow his animals to rest on the Sabbath.

 

According to our mishnah the reason why the Torah uses the word ox is that oxen were the most frequently used animals in those times. 

   

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