Babylonian Talmud: Tractate Baba Kamma

Folio 51a

No; it is because there was no unhealthy air there. But if so, why where it was injured in such a pit would there be liability since there was no unhealthy air there? — He replied: There was not unhealthy air there sufficient to kill, but there was unhealthy air there enough to injure.

A further objection was raised: The scaffold [for stoning] was of the height of two men's statures.¹  And it has been taught regarding this: When you add the stature of the convict there will be there the height of three statures. Now, if you assume that a fall can be fatal even from a height of less than ten handbreadths, why was such a great height as that necessary? — But even according to your argument, why not make the height ten handbreadths only? This must therefore be explained in accordance with R. Nahman, for R. Nahman stated that Rabbah b. Abbuha had said: Scripture says, And thou shalt love thy neighbour as thyself,²  [which implies], 'thou shalt choose for a convict the easiest possible execution.'³  But if so, why not raise it still higher? — He would then become disfigured altogether.

A further objection was raised: If any man fall from thence;⁴  'from thence' but not into it. How is that so? Where the public road was ten handbreadths higher than the roof, and a man might fall from the former on to the latter, there is no liability [in respect of a parapet], but if the public road was ten handbreadths lower than the roof, and a man might fall from the latter on to the former, that there will be liability [in respect of a parapet]. Now, if you assume that a fall could be fatal even from a height of less than ten handbreadths, why should it be necessary to have the public road lower by [full] ten handbreadths?⁵  — It was said in answer:⁶  There is a difference in the case of a house, since if it is less than ten handbreadths [in height] it could not be designated 'house'.⁷  But if so, even now when from the outside it is ten handbreadths high, were you to deduct from that the ceiling and the plaster, from the inside it would surely not have the height of ten handbreadths?⁸  — To this it was said in reply: [We are dealing here with a case] where, e.g., the owner of the house sank the floor from within.⁹  But if so, even where the height from the outside was not ten handbreadths, it could still be possible that from the inside it was ten handbreadths, as for instance where he sank the floor still more? — The reason of R. Nahman must therefore have been this: he considered that from the abdomen of the ox to the level of the ground must be [at least] four handbreadths, and the pond feeding the fields must be six handbreadths;¹⁰  this makes ten handbreadths, with the result that when the ox received the blow it was from the height of ten handbreadths that the blow was given.¹¹  But why then does the Mishnah say: 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]? Should not six handbreadths be enough?¹²  — We could reply that the Mishnah deals with a case where the ox rolled itself over into the pit.¹³

MISHNAH. WHERE THERE IS A PIT [IN CHARGE OF] TWO PARTNERS, IF THE FIRST ONE PASSES BY AND DOES NOT COVER IT, AND THE SECOND ONE ALSO [PASSES BY AND DOES] NOT COVER IT,¹⁴  THE SECOND WOULD BE LIABLE.

GEMARA. I would here ask, how can we picture a pit in charge of two partners? True, we can understand this if we take the view of R. Akiba, who said that a pit in private ground would involve liability,¹⁵  in which case such a pit could be found where they jointly own the ground and also a pit in it, and while they abandoned the ground [round about],¹⁶  they did not abandon the pit itself. But if we take the view that a pit on private ground would involve exemption,¹⁵  in which case liability could be found only where it was on public ground, how then is it possible for a pit in public ground to be in charge of two partners?¹⁷  [For if you say that] both of them appointed an agent and said to him: 'Go forth and dig for us', and he went and dug for them, [we reply that] there can be no agency for a sinful act.¹⁸  If again you say that the one¹⁹  dug five handbreadths and the other one¹⁹  dug another five handbreadths, [then we would point out that] the act of the former has become eliminated?²⁰  It is true that according to Rabbi,²¹  we can imagine a pit [in charge of two partners] in respect of mere injury.²²  But in respect of death even according to Rabbi, or in respect whether of death or of mere injury²²  according to the Rabbis,²¹  where could we find such a pit? — R. Johanan thereupon said: [We find such a pit] where e.g., both of them removed a layer of ground at the same time and thereby made the pit ten handbreadths deep.²³

What opinion of Rabbi and what opinion of the Rabbis [was referred to above]? — It was taught:²⁴  Where one had dug a pit of nine handbreadths [deep] and another one came along and completed it to a depth of ten handbreadths, the latter would be liable.²⁵  Rabbi says: The last one is responsible in²⁶  cases of death,²⁷  but both of them in cases of injury.²⁸  What was the reason of the Rabbis? — Scripture says; If a man shall open … or if a man shall dig …²⁹  Now if for mere opening there is liability, should there not be all the more so in the case of digging? [Why then mention digging at all?] It must be in order to lay down the rule [also] for [the case of] one person digging [in a pit] after another,³⁰  [namely,] that [in such a case] the act of the one who dug first³¹  is regarded as eliminated.³²  And Rabbi?³³  — He might rejoin that it was necessary to mention both terms,³⁴  as explained elsewhere.³⁵  And do not the Rabbis also hold that it was necessary?³⁵  — The reason of the Rabbis must therefore have been that Scripture says, If a man shall dig [indicating that] one person but not two persons [should be liable for one pit]. Rabbi, on the other hand, maintained that [the expression 'a man'] was needed to teach that if a man shall dig a pit [there would be liability] but not where an ox [dug] a 'pit'.³⁶  And the Rabbis?³⁷  [They might point out] 'a man … a pit' is inserted twice [in the same context].²⁹  And Rabbi? — He [could rejoin that] having inserted these words in the first text, Scripture retained them in the second also.

Now [according to the Rabbis who hold that Scripture intended to make only one person liable], whence could it be proved that it is the last person [that dug] who should be liable? Why not make the first person [who dug] liable? — Let not this enter your mind, since Scripture has stated, And the dead shall be his³⁸  [implying that the liability rests upon him] who made the pit capable of killing. But was not this [verse] 'And the dead shall be his' required for the lesson drawn by Raba? For did Raba not say:³⁹  If a sacred ox which has become disqualified [for the altar]⁴⁰  falls into a pit, there would be exemption, as Scripture says 'And the dead beast shall be his' [implying that it is only] in the case of an ox whose carcass could be his⁴¹  [that there would be liability]?⁴²  — To this I might rejoin: Can you not [at the same time] automatically derive from it that it is the man who made the pit capable of killing with whom we are dealing?

Our Rabbis taught: If one person has dug a pit to a depth of ten handbreadths and another person comes along and completes it to a depth of twenty, after which a third person comes along and completes it to a depth of thirty, they all would be liable. A contradiction was here pointed out:⁴³  If one person dug a pit ten handbreadths deep, and another came along and lined it with plaster and cemented it,⁴⁴  the second would be liable.

1. Sanh. 45a.
2. Lev. XIX, 18.
3. V. Sanh. ibid.
4. Deut. XXII, 8.
5. Why should there be no liability to construct a parapet even where the public road was lower by less than ten handbreadths.
6. Lit., 'He said to him'.
7. Cf. B.B. 7a.
8. In which case it would still not be termed house. Why then a parapet?
9. So that the vertical height inside was not less than ten handbreadths.
10. V. p. 292, n. 2.
11. And as a fall from the height of ten handbreadths can be fatal R. Nahman had to declare the ox trefa.
12. For from the abdomen of the ox to the level of the ground there are surely four handbreadths.
13. But where the ox fell while walking, even where the pit was only six handbreadths deep the blow would be fatal.
14. And damage occurred later.
15. Supra 50a.
16. In which case they cannot plead trespass on the part of the plaintiff as defence.
17. For it is the one who dug it that should be responsible.
18. It will accordingly be the agent and not the principal who will have to be subject to the penalty; cf. B.M. 10b.
19. Partner.
20. For it was the latter's act that made the pit complete and capable of causing all kinds of damage.
21. V. p. 295.
22. V. the discussion later.
23. In which case they both made it complete and capable of causing all kinds of damage.
24. V. supra 10a.
25. V. p. 294, n. 7.
26. Lit., 'after the last for'.
27. For without the latter the pit would have been unable to cause death.
28. For even without the latter the pit would have been able to cause injury.
29. Ex. XXI, 33.
30. The verse would thus imply a case where after one man opened the pit of nine handbreadths deep another man dug an additional handbreadth and thus made it a pit of ten handbreadths deep.
31. The nine handbreadths.
32. So that he should become released from any responsibility.
33. How does he interpret the verse?
34. Of opening and of digging.
35. Supra p. 285.
36. V. supra p. 272.
37. Whence do they derive this latter deduction?
38. Ex. XXI, 34.
39. Infra p. 310.
40. As it became blemished.
41. I.e., could be used by him as food for dogs and like purposes.
42. Excepting thus a scared ox falling into a pit and dying there, as no use could lawfully be made of its carcass.
43. From the following Baraitha.
44. Who thus made its width smaller and the air closer and more harmful.

Are we to say that the former statement¹  follows the view of Rabbi²  whereas the latter³  follows that of the Rabbis?³  — R. Zebid thereupon said that the one statement as well as the other could be regarded as following the view of the Rabbis.³  For even there [in their own case] the Rabbis would not say that the last digger should be liable, save in a case where the first digger did not make the pit of the minimum depth capable of killing, whereas [in this case] where the first digger made the pit of the minimum depth capable of killing even the Rabbis would agree that all the diggers should be liable.⁴  But, [what of] the case of [the second] lining it with plaster and cementing it,⁵  where the first digger made the pit of the minimum depth capable of killing, and yet it was said that the second would be liable? — It may be answered that the case there was where the unhealthy air was not sufficient to kill,⁶  and it was the other person who, by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of killing. Some report that R. Zebid said that the one statement as well as the other could he regarded as following the view of Rabbi.⁷  About the statement that they would all be liable there is [on this supposition] no difficulty. And as for the other statement that the second digger would be liable, this refers to a case where e.g., the unhealthy air was sufficient neither to kill nor to injure, and it was the other person who by diminishing the size of the pit increased the dangerous effect of the air so as to make it capable of both killing and injuring.⁸

Raba said: The case of a man putting a stone round the mouth of a pit and thereby completing it to a depth of ten handbreadths is one which brings us face to face with the difference of opinion between Rabbi and the Rabbis.⁹  Is this not obvious? — You might perhaps think that [the difference of opinion] was only where the increase in depth was made at the bottom, in which case it was the unhealthy air added by the second digger that caused death, whereas where the increase was made from the top,¹⁰  in which case it was not the unhealthy air added by him that caused the death, it might have been said that there was no difference of opinion.¹¹  We are therefore told¹²  [that this is not the case].

Raba raised the question: Where [the second comer] filled in the one handbreadth [which he had previously dug] with earth, or where he removed the stones [which he had previously put round the mouth of the pit], what would be the legal position? Are we to say that he has undone what he had previously done,¹³  or rather perhaps that the act of the first digger had already been merged [in the act of the second] and the whole pit had since then been in the charge of the second? — Let this remain undecided.

Rabbab b. Bar Hanah said that Samuel b. Martha stated: Where a pit is eight handbreadths deep, but two handbreadths out of these are [full] of water, there would be liability,¹⁴  the reason being that each handbreadth [full] of water is equivalent [in its capacity to cause death] to two handbreadths without water. The question was thereupon raised: Where a pit is of nine handbreadths but one of these is full of water, what should be the law? Should we say that since there is not so much water there, there is not [so much] unhealthy air,¹⁵  or rather that since the pit is deeper there is there [a quantity of] unhealthy air?¹⁶  [Again], where the pit is of seven handbreadths and out of these three handbreadths are full of water, what would be the legal position? Should we say that since there is much water there, the unhealthy air is there [in proportion],¹⁶  or rather that since it is not deep, there is no [great quantity of] unhealthy air there?¹⁵  — Let these queries remain undecided.

R. Shezbi inquired of Rabbah: If the second digger makes it wider, what would be the law? — He replied: Does he not thereby diminish the unhealthy air?¹⁷  Said the other to him: On the contrary, does he not increase the risk of injury?¹⁸  — R. Ashi thereupon said: We have to consider whether [the animal] died through bad air, in which case [the second digger could not be responsible as] he diminished the unhealthy air, or whether it died through the fall, in which case [the second digger should be responsible as] he increased the risk of injury. Some report that R. Ashi said: We have to see whether [the animal] fell from this side [which was extended], in which [case the second digger would be responsible as] he increased the risk of injury, or whether it fell from the other side, in which case [the second digger would not be to blame, as] he diminished the unhealthy air in the pit.

It was stated: In regard to a pit as deep as it is wide [there is a difference of opinion between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said that there is always unhealthy air in a pit unless where its width is greater than its depth,¹⁹  the other said that there could never be unhealthy air in a pit unless where its depth was greater than its width.²⁰

IF THE FIRST ONE²¹  PASSED BY AND DID NOT COVER IT … From what point of time will the first one²¹  be exempt from responsibility? — [There was a difference of opinion here between] Rabbah and R. Joseph, both of whom made their respective statements in the name of Rabbah b. Bar Hanah who said it in the name of R. Mani. One said, from the moment when the first partner leaves the second in the act of using the well; the other, from the moment when he hands over the cover of the well to him. [The same difference²²  is found] between the following Tannaim: If one [partner] was drawing water from a well and the other came along and said to him, 'Leave it to me as I will also draw water', as soon as the first left the second in the act of using it he would become exempt [from any responsibility]. R. Eliezer b. Jacob said: [The exemption commences] from the time that the first hands over the cover to the second. In regard to what principle do they differ? — R. Eliezer b. Jacob held that there is bererah²³  [so that] the one [partner] was drawing water from his own²⁴  and so also the other [partner] was drawing the water from his own,²⁵  whereas the Rabbis maintained that there is no bererah.²⁶  Rabina thereupon said: They²⁷  have followed here the same line of reasoning as elsewhere, as we have learnt, Where partners have vowed not to derive benefit from one another they would not be allowed to enter premises jointly owned by them. R. Eliezer b. Jacob, however, says: The one partner enters his own and the other partner enters his own.²⁸  [Now, it was asked there,] in regard to what principle did they differ? — R. Eliezer b. Jacob held that there is bererah so that the one partner would thus be entering his own and the other partner would similarly be entering his own, whereas the Rabbis maintained that there is no bererah.

R. Eleazar said: If a man sells a pit to another, as soon as he hands over the cover of the pit to him, the conveyance is complete. What are the circumstances? If money was paid, why was the conveyance not completed by the money?²⁹  If possession was taken [of the pit], why was the conveyance not completed by possession?²⁹  — In fact, we suppose possession to have been taken [of the pit], and it was still requisite for the seller to say to the buyer, 'Go forth, take possession and become the owner',³⁰  but as soon as he handed over the cover to him, this was equivalent [in the eyes of the law] to his saying to him, 'Go forth, take possession and complete the conveyance.'

R. Joshua b. Levi said: If a person sells a house to another

1. Making them all liable.
2. Who in the case of mere injury makes them all liable.
3. Making the second liable in all cases.
4. Hence the liability upon all of them in the former Baraitha.
5. V. p. 296, n. 7.
6. As where its width was more than its depth.
7. V. p. 296, n. 9.
8. In which case it stands to reason that the second person only should be liable.
9. As to whether the second person or both of them would be liable in cases of injury.
10. As in the case stated by Raba.
11. And that according to both Rabbi and the Rabbis the second person should not be liable.
12. By Raba.
13. And thus released himself from further responsibility.
14. If an animal fell in and was killed.
15. And should therefore be subject to the law applicable to a pit of less than ten handbreadths deep.
16. And should thus be equal to that of a pit ten handbreadths deep.
17. What liability had he thus incurred?
18. On account of which he should surely bear responsibility.
19. Implying that where the width is just equal to the depth there would still be unhealthy air there.
20. But where the depth just equalled the width there would be no unhealthy air there.
21. Of the partners.
22. Between Rabbah and R. Joseph.
23. I.e., retrospective designation, so that a subsequent selection or definition determines retrospectively a previous state of affairs that was undefined in its nature.
24. Though this water which he subsequently drew was by no means defined at the time when the partnership was formed.
25. So that one partner does not use the water of the other to become thereby a borrower of it and thus enter into responsibility regarding it.
26. So that the water drawn by each of them consists of two parts: one from his own and the other from that of his fellow-partner, with reference to which he in the position of borrower, assuming thus full responsibility also for the part of the partner who is the lender.
27. The Rabbis and R. Eliezer b. Jacob.
28. And are consequently not deriving any benefit from one another. (Ned. 45b).
29. In accordance with Kid. I, 5.
30. B.B. 53a.