Bava Kamma 50a — the Talmud in English

And they did not disagree

Rabbi Yishmael and Rabbi Akiva

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concerning a pit

that was dug

in his domain.

Rabbi Akiva held:

concerning

a pit in his domain also, he is liable,

as is demonstrated

by what is written

in the verse, “

the owner of the pit,”

so

the Merciful One says this concerning a pit that has an owner

that he is liable.

And Rabbi Yishmael held:

“the owner of the pit” that the Merciful One says does not mean one whose pit it is; rather, the intention is one who is

the owner of the hazard,

who created the hazard, but it is not his.

And concerning a pit in his domain—where he dug a pit in his domain and rendered his domain ownerless but did not render his pit ownerless—Rabbi Yishmael held that he is exempt, since the digger says: When I rendered my domain ownerless for the people of the public domain, I did not render it ownerless with the intention that I should become liable for the damage caused by the pit; rather, I permitted the people of the public domain to walk here, and they will guard themselves so that they do not fall into the pit.

And if he dug a pit in his domain and did not render his domain ownerless, it is obvious that he is exempt, because he says to the owner of the ox that fell into it: Your ox is in my domain—what is it doing!? For it should not have entered my domain at all.

And we raise an objection:

But,

if Rabbi Akiva holds that one is liable for a pit both when it is in the public domain and when it is in the private domain,

what is the meaning of “This is the pit mentioned in the Torah,” which Rabbi Akiva says

concerning one who rendered his domain ownerless but did not render his pit ownerless? But Rabbi Akiva agrees that even if he dug it in the public domain, he is liable; and that is to say, a pit in the public domain is also the pit mentioned in the Torah!?

And we answer: This is what Rabbi Akiva said to Rabbi Yishmael: How did you say that a pit in his domain is exempt?

But

this is the pit concerning which Scripture initially set forth

to explain

the payment

for a pit, for Scripture said, “the owner of the pit shall pay,” and that is a pit in his domain, because only concerning such a pit is he literally the owner of the pit!

And Rav Yosef said

to explain their disagreement as follows:

Concerning a pit in the private domain, everyone agrees that he is liable.

What is the reason? “The owner of the pit,” said the Merciful One.

It follows that

we are dealing with a pit that has an owner,

and the Torah made him liable.

Rather,

when they disagree, it is concerning a pit

that he dug

in the public domain.

Rabbi Yishmael held:

concerning

a pit in the public domain also, he is liable,

as is demonstrated

by what is written: “When a man opens

a pit, or

when he digs

a pit.”

Why do I need “when he digs,” which Scripture said? It can be learned by a kal va-chomer:

If for opening he is liable, for digging, is it not all the more so!?

Rather,

the verse comes to teach that the liability of the digger of the pit for damage caused by the pit

comes to him on account of matters of opening and digging.

That is, one who digs a pit in the public domain is liable even though the pit is not his, since he opened or dug the pit.

And Rabbi Akiva,

who holds that one is exempt for a pit in the public domain, said: Rabbi Yishmael’s proof from what is written, “when he opens and when he digs,” is not a proof, since

those verses are necessary.

For if the Merciful One had written only, “when he opens,”

alone,

I would have said

that concerning what is written afterward in the verse, “and he did not cover it,” from which we learn that if the opener covered it, he is exempt, since he guarded the pit from causing damage, this law was stated only

concerning one who opens

a pit that was already there, for

covering is sufficient for him,

but

one who digs,

who created the entire pit,

covering is not sufficient for him,

and responsibility for the damage caused by the pit would still remain upon him

until he fills [

that is, seals]

it

completely; therefore the verse teaches us through “when he digs” that for the digger also, covering is sufficient.

And if the Merciful One had written

only

“when he digs,” I would have said

that only for

digging is it

that the Merciful One made him liable and said

that covering is required because he performed an act,

for he dug the pit,

but concerning one who opens, who performed no act, I would say

that he is exempt

and covering also is not required; therefore it teaches us

that the opener too became liable for the responsibility for damage caused by the pit and is required to cover it.

And we raise an objection:

But then what is the meaning of “This is the pit mentioned in the Torah,” which Rabbi Yishmael says

concerning one who digs a pit in the public domain? For you said that he makes one liable even when he dug a pit in his domain.

And we answer: This is what Rabbi Yishmael said to Rabbi Akiva: Why do you say that a pit in the public domain is exempt?

For

this is the pit concerning which Scripture initially set forth liability for damages!

The pit concerning which the Torah wrote, “and an ox or a donkey falls there,” is a pit in the public domain, as is demonstrated by the superfluity of the verse, “when he opens and when he digs”!

He raises an objection

from that which was taught in a beraita:

One who digs a pit in the public domain and opens it into the private domain,

and an ox fell through the mouth of the pit that was in his domain,

the digger is exempt

[and it might have been thought that this applies even when he rendered his domain ownerless but did not render his pit ownerless, so that there is no claim of “Your ox is in my domain—what is it doing?”].

And even though he is not permitted to do so, because one does not make a cavity beneath the public domain,

nevertheless he is exempt.

One who digs pits, ditches, and caves in the private domain and opens them into the public domain

the digger

is liable,

for we follow the place of the mouth of the pit.

And one who digs pits in a private domain adjacent to the public domain, such as those who dig for foundations [

for the purpose of constructing the foundations of the walls of his house] is

exempt,

for he must do so, and this is not negligence.

And Rabbi Yosei son of Rabbi Yehuda holds him liable

even when he digs for foundations, and he is not exempt from his responsibility for the pit

until he makes a partition

between his pit and the public domain, at a height of

ten

handbreadths,

or until he distances

his digging

four handbreadths from the place where people tread and from the place where animals tread.

And we infer from the words of the first tanna, who exempted one who digs for foundations:

The reason is that

he dug

for foundations

that he is exempt.

But

if he dug

not for foundations,

but simply in his domain in a place adjacent to the public domain,

the digger is liable

.

It follows that he holds that the Torah made one liable even for a pit in his domain.

Who is this [beraita] according to?

Granted, according to Rabba,

who says that concerning a pit in the public domain everyone agrees that he is liable, and Rabbi Yishmael and Rabbi Akiva disagreed only concerning a pit in his domain, one can say:

The first part,

in which we learned that a pit in his domain is exempt, is

according to Rabbi Yishmael, and the latter part,

which makes one liable for a pit in his domain [as we infer from the fact that only one who digs for foundations is exempt], is

according to Rabbi Akiva,

who makes one liable for a pit in his domain.

But according to Rav Yosef,

who holds that it is concerning a pit in the public domain that they disagree, but concerning a pit in his domain everyone agrees that he is liable,

granted, the latter part,

from which we infer that one is liable for a pit in his domain, can be established

according to everyone. But the first part,

in which we learned that one is exempt for a pit in his domain,

who is it according to?

For it cannot be established

neither according to Rabbi Yishmael nor according to Rabbi Akiva,

since according to both of them one is liable for a pit in his domain.

And we answer:

Rav Yosef can say to you: The entire

beraita can be established as being

according to everyone.

And what

in the first part

we exempt a pit in his domain refers

to a case in which he rendered neither his domain nor his pit ownerless.

And in such a case everyone agrees that he is exempt, for the one who caused the damage says to him: Your ox is in my domain—what is it doing!?

This is not so in the latter part, which deals with one who digs adjacent to the public domain, as we learned in the beraita, for this claim does not apply.

Rav Ashi said: Now that you have established

this beraita according

to Rav Yosef as being according to everyone, according to Rabba also it cannot be established

that the beraita is

according to the tannaim,

with the first part according to Rabbi Yishmael and the latter part according to Rabbi Akiva, as we established above.

Rather,

from the first part

of the beraita, which exempted one for a pit in his domain, being

Rabbi Yishmael’s

view, who exempts for a pit in his domain,

the latter part also,

which makes one liable for a pit in his domain, is

according to Rabbi Yishmael.

And the inference that you made should not be difficult:

The reason

that one who digs in his domain

for foundations

is exempt is that so;

but

one who digs in his domain

not for foundations is liable,

from which it follows that a pit in his domain entails liability. For you can establish the latter part

as referring to a case in which he widened his domain toward the public domain,

where he set aside part of his domain for the use of the people of the public domain. It is in such a case that we say that one who digs for foundations is exempt, since it is customary to do so and he is not negligent; but if he dug not for foundations, he is liable even according to Rabbi Yishmael, who exempts for a pit in his domain, because here, although it is his domain, it is considered as though he dug a pit in the public domain, since he set this place aside for the people of the public domain.

He raises an objection: One who digs a pit in the private domain and opens it into the public domain

the digger

is liable.

One who digs a pit

in a private domain adjacent to the public domain

is

exempt.

And the Gemara infers: According to whose view was this beraita taught?

Granted, according to Rabba,

who holds that for a pit in the public domain everyone agrees that he is liable, and they disagree only concerning a pit in his domain, you can establish

the entire beraita according to Rabbi Yishmael.

Therefore, in the first part he is liable, since it is a pit in the public domain, and in the latter part he is exempt, since it is a pit in the private domain.

But according to Rav Yosef,

who holds that for a pit in his domain everyone agrees that he is liable, and they disagree concerning a pit in the public domain, if so,

granted, the first part,

which makes him liable in the public domain, let us establish it

according to Rabbi Yishmael,

who holds this way.

But the latter part,

which exempts for a pit in his domain,

who is it according to? It is established neither according to Rabbi Yishmael

nor

according to Rabbi Akiva,

for according to both of them a pit in his domain is exempt.

He can say to you

Rav Yosef: The latter part deals

with one who digs for foundations,

who is exempt according to everyone; therefore the beraita can be established as

according to everyone,

even according to me.

The Sages taught: One who dug

a pit or

opened

a covered pit

and handed

it

over to the public,

for their use, to drink the rainwater that collects there, and an ox fell there and was injured,

the digger is exempt,

since he handed it over to the public.

But if he

dug

a pit or

opened it and did not hand it over to the public,

he is

liable.

And so

was

the practice of Nahunya, the digger of pits, ditches, and caves [

so they called him],

that he would dig

pits

and open

pits

and hand them over to the public

for the needs of pilgrims who were found on the roads,

and when the Sages heard about this

matter,

they said: This one has fulfilled [

Nahunya]

this halakha,

that it is permitted to open pits and hand them over to the public.

And he raises an objection: Did Nahunya fulfill only this halakha,

and nothing more?

And we answer:

Rather, say:

Nahunya fulfilled

this halakha also.

The Sages taught: There was an incident involving the daughter of Nahunya, the digger of ditches, who fell into a large pit

full of water.

And they came and informed Rabbi Hanina ben Dosa

of this event.

The first hour

that she was in the pit,

he said to them

Rabbi Hanina ben Dosa:

Peace

is with her, and she did not die in the water; rather, she is still capable of living in the water.

And likewise at the

second hour he said to them:

She is still

at peace,

for she can still live.

And at the

third hour he said to them

Rabbi Hanina ben Dosa: She has already

risen

from the pit, for it is impossible for a living person to remain in water for more than three hours.

And when they saw her after she had risen,

they said to her: Who brought you up

from the pit?

She said to them: A male sheep [

the ram of Isaac]

was made available to me

in the pit,

and an old man [

our father Abraham]

was leading it,

and they brought me up from the pit!

They said to him,

to Rabbi Hanina ben Dosa: Are

you a prophet

that you knew she had risen from the pit?

He said to them: I am not a prophet and I am not the son of a prophet; rather, this is what I said

in my heart:

A matter over which that righteous man [

Nahunya]

toils

and labors

over it

to dig pits for pilgrims—

would he stumble

and suffer harm through

his offspring!?

Rabbi Aha said: Nevertheless, even so,

it happened afterward

that his son died

of Nahunya, the digger of ditches,

of thirst.

As it is stated: “And around Him it storms exceedingly,” teaching that the Holy One, blessed is He, examines those around Him [

these are the righteous who cleave to Him]

even to the thickness of a hair [

for “it storms” is an expression of authority].

Rabbi Nahunya said: From here

we learn it: for it is written,

“A God greatly revered in the council of the holy ones, and awesome over all around Him,”

and that is to say, He imposes the fear of His judgments upon those around Him, who are the righteous who cleave to Him.

Rabbi Hanina said: Whoever says that the Holy One, blessed is He, is forbearing

and overlooks the sins of Israel,

may his life be overlooked

and abandoned,

and his body,

which causes people to sin,

“for it is stated: ‘The Rock, His work is perfect, for all His ways are justice.’”

And it is demonstrated that His ways are with justice, and He does not overlook.