Bava Kamma 51a (נא.) — the Talmud in English

And we answer:

No!

The reason that Rav Naḥman exempts one for a pit less than ten handbreadths deep is

because it does not contain lethal vapor,

and although the animal can die from the impact, Rav Naḥman maintains the view of Rav, that one is never liable for damage caused by impact alone.

And we raise an objection:

If so,

in the latter clause of our Mishna, which teaches: “And if it was injured in it, he is liable,”

why is he liable?

why is he liable?

But

in a pit less than ten handbreadths deep,

there is no lethal vapor!

He said to him:

Indeed,

there is no lethal vapor,

but

there is vapor sufficient to cause damage

even in a pit less than ten handbreadths deep!

He raised an objection to him

from what we learned:

The stoning site

[where those liable to stoning were cast down from it]

was two stories high

[a story being three cubits].

And it was taught concerning it

in a beraita that one must add to the number of stories also

his own story

[the height of the person being stoned];

there are therefore three

stories—in other words, the impact was from a height of three stories.

And if it enters your mind that impact is lethal at a height of less than ten

handbreadths,

why do I need all these

stories? Why could he not be cast down from a height of several handbreadths, since he could also die from such a height?

And we reject this:

According to your reasoning,

if impact is not lethal at a height of less than ten, why was it necessary to make the stoning site these stories high? Why would it not suffice to

make

the stoning site

ten

handbreadths high, since you concede that impact from a height of ten causes death?

Rather,

one must certainly explain the matter

in accordance with Rav Naḥman’s explanation.

As Rav Naḥman said in the name of Rabba bar Avuha:

The reason that those liable to stoning are cast down from a considerable height is that

the verse states: “And you shall love your fellow as yourself,”

and therefore we require

that a pleasant death be selected for him,

so that he will die quickly. That is why we make the stoning site so high. But I can properly say that death can occur even from a height of less than ten handbreadths.

And we raise an objection to Rav Naḥman, who said this in the name of Rabba bar Avuha:

If so,

since we require that a pleasant death be selected,

let us raise

[raise it]

more

the stoning site, making it even higher, so that his death will be still quicker?

And we answer: We do not raise the stoning site any higher,

because the condemned person would thereby be disfigured,

as with such a throw he would be torn apart limb by limb.

The Gemara now raises another objection to Rav Naḥman, who maintains that impact is lethal at a height of less than ten, from a beraita: It is written in the passage concerning a parapet:

“For the one who falls shall fall from it.”

And the Sages interpreted this as follows: “

From it,” but not into it.

That is, the obligation to make a parapet applies when the roof of one’s house is ten handbreadths higher than the public domain, so that if the one who falls falls from it, he falls into the public domain. But one is not obligated to make a parapet if the roof of his house is lower than the public domain: if the one who falls falls, he falls from the public domain into his roof, and not from his roof.

How so? If the public domain was higher than it

[than the roof of his house]

by ten handbreadths, and he fell

[that is, if the one who falls should fall, he would fall]

from it

of the public domain

into it

of the roof, he is

exempt

from making a parapet along the edge of the public domain, to prevent the one who falls from falling from it onto the roof.

Only if the public domain was

deeper than it,

than the roof,

and he fell

[that is, if the one who falls should fall, he would fall]

from it

of the roof

into it

of the public domain,

is he liable

to make a parapet for the roof.

And if it enters your mind

that Rav Naḥman holds that

there is impact

that causes death even

at less than ten

handbreadths,

why do I need ten

handbreadths of height to make the roof subject to the obligation of a parapet?!

He said to him: “A house” is different,

as the commandment of a parapet was stated with regard to the roof of a house,

for anything less than ten is not a house.

The Gemara is astonished:

If so,

if the need for a height of ten is not due to the impact, but because the obligation applies only to the roof of a house, and a structure is not called a house unless it is ten high, then the height of the house must be measured by the height of its interior space. If so,

now too, when it is ten on the outside,

even if the roof is ten high on the outside,

subtract from it

the thickness of the

ceiling

of the house and the

plaster

upon it, and it follows that

on the inside,

on the interior side of the house,

it is not ten.

He said to him: “For example, he hollowed it out on the inside.”

The case is one in which he hollowed out the floor of the house and deepened it until the interior space of the house was ten handbreadths high.

The Gemara raises a difficulty:

If so,

since you established the case as one in which he deepened the floor of the house,

even when it is not

even if the roof is not ten high

on the outside

[that is, the height of the upper surface of the roof],

ten

handbreadths, it can nevertheless be the roof of a house whose interior is ten high, because

you can find it ten high on the inside, for example, if he hollowed it out further,

deepening the floor of the house considerably and completing the interior space to ten handbreadths on the inside. Why, then, must the height of the upper surface of the roof be ten handbreadths?

The Gemara therefore retracts and says that even according to Rav Naḥman, impact is not lethal at a height of less than ten handbreadths.

Rather, this is the reason for Rav Naḥman’s opinion:

He regarded the animal’s fall from the irrigation channel as a fall capable of crippling the animal, because

he held

that such a fall too is, according to this calculation, a fall of ten handbreadths:

From the belly of an ox to the ground, how much is it?

The belly of the animal is elevated above the ground

four

handbreadths.

The irrigation channel,

its height,

how much is it? Six,

six handbreadths

. And when we combine the height of six with the height of four,

that is ten

handbreadths.

It turns out

that

when it is struck, it is from a height of

the height of

ten that it is struck.

But as for the Mishna, which teaches: “Just as a pit that is sufficient to cause death is ten handbreadths deep, so too, anything that is sufficient to cause death is ten handbreadths deep,”

why is a height of ten handbreadths necessary? After all,

six is also sufficient,

a height of six handbreadths, together with the height of the animal’s belly above the ground, which is four handbreadths, for a total of ten handbreadths

!?

They said in the study hall, to explain this:

Our Mishna is speaking of an animal that rolled,

meaning that in our Mishna the ox was lying on the ground and rolled

into the pit,

so that its belly was not elevated above the ground at all

.

Mishna: A pit

that is

owned by two partners,

and

the first passed by it and did not cover it, and

the

second

also passed by it

and did not cover it,

then

the second is liable

for payment of the damages suffered by the one who fell into the pit. The Gemara explains that the first transferred the use of the pit to the second, or transferred to him the responsibility for covering the pit, and the second thereby accepted responsibility for guarding the pit upon himself; therefore, the second is liable and the first is exempt.

Gemara:

They said,

the members of the academy raised the following difficulty:

How can you find a pit owned by two partners

[how can you find a pit owned by two partners]?!

This works if we hold like Rabbi Akiva,

who says: A pit

that is

in his property,

he is

liable

for it. Indeed,

you can find it in a courtyard belonging to both of them, with a pit belonging to both of them, where they rendered their property ownerless but did not render their pit ownerless.

But if we hold that a pit

that is

in his property,

he is

exempt

for it, then

how can you find

a pit owned by two partners

for which he is liable?!

And we answer: It is

in the public domain

that you can find a pit owned by two partners.

The Gemara nevertheless asks:

And in the public domain, how can you find a pit owned by two partners?!

If both appointed an agent and said to him: “Go dig a pit for us,” and he went and dug it,

the case would mean that two people sent a third person to dig a pit for them in the public domain, and he went and dug it. But this cannot be the explanation, since we hold that:

There is no agency for a transgression;

an agent cannot operate in a matter involving a transgression so as to make the sender liable; rather, the agent himself is liable.

And if this one dug five, and that one five

[the first dug to a depth of five handbreadths, and the second came and dug an additional five handbreadths], so that through both of them a pit was dug whose measure is sufficient to cause death, this too cannot be the explanation, since:

The first act has been removed

by the second’s digging; that is, only the second is considered “the owner of the pit.”

This works according to Rabbi

below,

and

with regard to

damages

caused in the pit [but not death], indeed

you can find it

so that both become liable, when the first dug five handbreadths and the second dug five.

But according to Rabbi, and

with regard to

death,

so that both would be liable for the death of an animal in it—

and

likewise

according to the Sages,

who disagree with Rabbi and maintain that the pit is attributed only to the last person, and that the first person’s acts are removed even with regard to damages—

whether for death

or

whether for damages, how can you find it

that both become liable?!

He said

and explained

Rabbi Yoḥanan:

You can find a pit owned by two partners—

In a case where one dug a pit nine handbreadths deep, and

for example, both of them removed a section of earth

from the pit

simultaneously, and completed it to ten

handbreadths. In that case, according to both Rabbi and the Sages, both are considered owners of the pit, both with regard to death and with regard to damages.

And we explain:

What is Rabbi’s opinion, and what is the Sages’ opinion? As it was taught: One who digs a pit nine

handbreadths deep, which is a pit with regard to damages,

and another came and completed it

to ten

handbreadths, thereby making it a pit with regard to death,

the last

person alone

is liable

both with regard to death and with regard to damages, as the reason will be explained below. This is the opinion of the Sages.

Rabbi says: We follow the last

person only

with regard to death,

as he made it a pit capable of causing death,

but we follow both of them

we follow

with regard to damages,

since through the first person’s digging there was already a pit capable of causing damage; therefore, his act was not removed.

And we explain:

What is the reason for the Sages,

who maintain that the first person’s act is removed by the second’s digging even with regard to damages?

Because

the verse states

[Exodus 21:33]: “

When a man opens

a pit [the owner of the pit shall pay],”

and

it states further [there]: “Or

when he digs

a pit [the owner of the pit shall pay].” But this may be challenged:

If with regard to opening

an already-dug pit—which is merely the removal of protection—the Torah has already taught that the one who opens it

is liable

for the damage caused by the pit,

is it not all the more so with regard to digging,

that the one who digs it is liable for the damage caused by the pit? Why, then, was it necessary for the Torah to state additionally: “Or when a man digs a pit”?

Rather, it comes to include one who digs after another who dug, so that the first act is removed.

And Rabbi,

who disagrees and maintains that the first person’s act is not removed,

can say to you:

Those

—opening and digging—

are both necessary, as we said

above, 51a: either according to Rabbi Yishmael or according to Rabbi Akiva. Therefore, we cannot derive from them the case of one who digs after another and thereby removes the first person’s act.

And the Sages too:

are

both necessary

the verses, as we said!?

Rather,

because of this difficulty the Gemara retracts and explains that

this is the reason for the Sages:

Because

the verse states: “

Or

when a man

[in the singular]

digs a pit,”

which indicates that

one

person is liable for it

but not two; the verse comes to teach that the second person’s act removes the first person’s acts.

the verse comes to teach that the second person’s digging removes the first person’s act.

And Rabbi

can say to you:

That

verse, “a man’s pit,”

is needed

to teach:

“When a man digs a pit, but not when an ox digs a pit,”

for a person does not become the owner of a pit when his ox dug the pit.

And the Sages

can say to you:

Two

instances of “

a man’s pit”

are written

in the passage. The Torah says: “When a man opens a pit, or when a man digs a pit.” From one verse we derive the exclusion of an ox, and from the second we learn: one and not two.

And Rabbi

can say to you:

Since it wrote this, it also wrote

also

this,

since once it wrote “a man’s pit” with regard to opening, it also wrote “a man’s pit” with regard to digging.

The Gemara nevertheless challenges the Sages:

And from where

does the verse indicate that it came

to make the last one liable

rather than the first? How do we know that the verse came to make the second liable for the damages and exempt the first? Perhaps it came to make only the first liable and to exclude the second from liability for the damage caused by the pit?!

And we answer:

It cannot enter your mind

to explain it in this manner, because

the verse states: “The owner of the pit shall pay; he shall return money to its owner,

and the dead animal shall be his,”

which indicates that

the one who caused the death

is the one who is called “the owner of the pit.”

is the one called “the owner of the pit.”

And we challenge this:

And

but

this “

and the dead animal shall be his”

is needed for the teaching of Rava!?

As Rava said: