Bava Kamma 51b — the Talmud in English

Let us say: this

which teaches: all are liable

is Rabbi

who holds: the acts of the first did not depart through the digging of the second.

But

this

which teaches: the last is liable

is the Rabbis

who hold: the last—who added heat—removed the acts of the first.

Rav Zevid said:

Both this and that are the Rabbis

that is to say: this which you said—that when the first made ten and the second came and added ten, according to the Rabbis the acts of the first departed, and for that reason you said that the first beraita does not accord with the Rabbis—this is not so, for even the Rabbis agree in this manner that the acts of the first did not depart, because:

For

the Rabbis said only: the last is liable

and the first has departed,

when the first did not make the measure of a pit causing death

for he dug only nine, which is the measure of a pit for damage alone, and the second made it a pit causing death; only then did the second remove the act of the first, even with regard to damage—

but when the first also made

the

measure of a pit causing death

and the second was not the one who introduced death into the pit,

even the Rabbis agree that all are liable;

and if so, the first beraita is not necessarily according to Rabbi; rather, it is also according to the Rabbis.

And we raise an objection against it:

But what of the one who plastered and painted

in the second beraita,

where the first made the measure of a pit causing death, and

nevertheless

it teaches: the last is liable,

so at the very least, according to the Rabbis, even in this manner the acts of the first departed!?

They said

to resolve it:

There

in the second beraita, with what are we dealing?

With a case in which there was not in it heat sufficient to cause death

and although it was ten handbreadths deep, for example, its width was greater than its depth, so that it did not contain heat,

and another came and added heat sufficient to cause death to it

so that, since the second introduced death into it, he alone became the owner of the pit.

There are those who say

that

Rav Zevid said

to resolve it in another manner:

Both this and that

the two beraitot—

are Rabbi

’s.

This one, which teaches: all are liable, is well-founded

since this beraita holds like Rabbi.

But

this which teaches: the last is liable,

we are dealing

with a case such as one in which there was no heat in it, neither for death nor for damage, and another came and added heat to it, both for death and for damage

for in such a case even Rabbi agrees that only the second is liable, just as Rabbi agrees concerning a pit which the second completed to ten that, with regard to death, only the last is liable.

Rava said: If he placed a stone over the mouth of the pit

which had been nine handbreadths deep,

and completed it to

a depth of

ten

from the edge of the stone:

We have arrived at the dispute between Rabbi and the Rabbis

and according to Rabbi: the last follows the last with regard to death, and the one who follows both with regard to damage; whereas according to the Rabbis, the last follows the last both with regard to death and with regard to damage.

And we raise an objection against it: But

it is obvious

is it not!? For what difference is there to me if the last added below, and what difference if he added above?

And we answer: Rava teaches us a novelty, that the last is liable, for

lest you say:

he added

below—it is

that the last is liable for the death, since

it is through his heat that he killed him

his addition of heat killed the person,

but

when the last added

above, it is not through his heat that he killed

him,

say: no

the last should not be liable for his death, both according to Rabbi and according to the Rabbis—

it teaches us

Rava that the last is liable.

Rava inquired:

He filled

[filled in],

a handbreadth

that is to say: if the last—who added a handbreadth to the pit of nine made by the first, and became liable for damage alone according to the Rabbis—then went back and filled in that handbreadth which he had added.

And likewise, if the one who added a stone over the mouth of the pit went back

and removed

the

stones of his, what is

the law: should he be liable, according to the Rabbis, alone for the damage?

Do we say: whatever he did

this

he took away,

what the second did, he has removed, and the pit has returned to the first?

Or perhaps:

already

the acts of the first departed, and the whole

pit

stood in his authority

that is, in the authority of the second, and his removal is no longer effective for him.

And we conclude:

teyku.

Rav bar bar Hana said in the name of Shmuel bar Marta:

A pit

deep

eight

handbreadths,

and of them two handbreadths

of

water, its owner is liable

for the death, even though its depth is not ten, which is the measure of a pit for causing death.

And we explain:

What is the reason

that he is liable for death in a pit eight [handbreadths deep], which is not a pit for causing death?

Because

each handbreadth of water [

a handbreadth of water] with regard to adding vapor

is like two

handbreadths

of dry earth

—it follows that there are in the pit the equivalent of ten handbreadths of dry earth.

They raised a problem before them:

If there was a

pit

deep

nine

handbreadths,

and of them one handbreadth

of

water, what is

the law as to being liable for the death?

Do we say: Since the water is not plentiful

as in [a pit] eight [handbreadths deep] with two of them water,

there is no vapor in it [

since there is no abundance of water, there is no vapor in it], meaning: there is not in it vapor equivalent to two [handbreadths] of dry earth?

Or perhaps: Since it is deeper, there is vapor in it

since the water is located at a greater depth in the pit than in [a pit] eight handbreadths [deep] with two [handbreadths] of water, if so there is in it vapor, so that one handbreadth of water is like two of dry earth—even though, on the other hand, there is not an abundance of water in it—and it is therefore like a pit of ten handbreadths of dry earth.

They raised another problem before them:

A pit

that was deep

seven

handbreadths,

and of them three handbreadths were water, what is

the law as to becoming liable for the death?

Do we say: Since the water is more plentiful, there is vapor in it

since there is a much greater abundance of water in it than two handbreadths of water, if so there is in it vapor equivalent to two of dry earth, and he is liable for the death, even though the water is not at as great a depth as in a pit eight [handbreadths deep]?

Or perhaps: Since it is not deep, there is no vapor in it

since the water is not at as great a depth as in a pit eight [handbreadths deep] with one of them water, there is not in it vapor equivalent to two of dry earth, even though, on the other hand, there is a much greater abundance of water in it.

And we conclude:

It stands.

Rav Shizvi asked Rabba:

One dug a pit ten handbreadths [deep], and another came and

widened it; what is the law?

He said to him

Rabba to Rav Shizvi:

Behold, he diminished the vapor

—behold, he diminished the vapor of the pit; may blessing come upon him, and the second is not liable at all.

He said to him

Rav Shizvi to Rabba:

On the contrary, behold, he brought the damage closer

—for he diminished the place where the feet could stand, and perhaps the ox would not have proceeded to the place of the mouth of the pit as it was initially, and would not have fallen.

Rather, said Rav Ashi: Let us examine:

If it died through the vapor [

if the ox died because of the vapor],

behold, he diminished

the second

the vapor

and he is not liable at all.

If it died through impact [

and if the ox died because of the impact],

behold, he brought

the second

the damage closer

and he is liable.

There are those who say

that

Rav Ashi said so: Let us examine:

If it fell from that side [

if the ox fell from the side that the second widened],

behold, he brought

the second

the damage closer

and he is liable.

But if it fell from the other side [

if it fell from the side that the second did not widen],

behold, he diminished

the second

the vapor

and he is not liable for anything.

It was stated:

A pit whose

measure of

depth is like the

measure of its

width:

Rabba and Rav Yosef both said in the name of Rabba bar bar Hana, who said it in the name of Rabbi Mani

—that is, Rabba and Rav Yosef disagreed concerning what Rabba bar bar Hana said in the name of Rabbi Mani:

One

of them

said: There is always vapor in it, until its width is greater than its depth.

And one

of them

said: There is never vapor in it, until its depth is greater than its width.

We learned in the Mishna:

The first passed by it and did not cover it

and the second passed by it and did not cover it, the second is liable:

This that we learned: “He passed by it and did not cover it” is not to be understood literally, for if so, why should he be exempt? Behold, the duty of guarding it rests upon him just as upon the second, and he too was negligent. Rather, the intention is certainly that if the first stopped using it and the second came to use it, the first is exempt;

but

nevertheless,

from when is the first exempt [

from when is he exempt]?

One

of them

said: When he leaves it

the first to the second while he is

using

the second has already become liable for guarding the entire pit, because he becomes a borrower concerning the entire pit, and a borrower enters in place of the owners to be liable for damages, as explained in the Mishna above, 44b.

And one

of them

said:

only

when he hands it over to him

the first to the second,

his bucket [

it is the cover of the pit], then the first is exempt, because through this the second accepted upon himself the guarding of the pit, but use alone does not make him liable for more than his portion.

Rabba and Rav Yosef both said, in the name of Rabba bar bar Hana, who said it in the name of Rabbi Mani

—that is, Rabba and Rav Yosef disagreed concerning what Rabba bar bar Hana said in the name of Rabbi Mani:

It may be said, and the Gemara explains that their disagreement is

like [the disagreement between] tannaim

who already disagreed about this:

One who draws water from the pit, and his fellow came

who is his partner with him in the pit

and said to him: “

Leave it to me, and I will draw water,”

once he left it

the first to the second while he is

using it, the first is exempt

from liability for the pit.

Rabbi Eliezer ben Yaakov says:

only

when he hands it over to him

the first to the second

his bucket,

then the first is exempt.

And we explain:

Over what do they disagree

these tannaim [what is the reason for their disagreement]?

Rabbi Eliezer ben Yaakov holds: There is retroactive determination

to say: It is determined that

this one fills from his own [

he fills from his portion],

and this one fills from his own [

and the second too fills from his portion], and if so, he is not a borrower concerning the portion of the second, and until he accepts upon himself the guarding of the entire pit, the first is not exempt.

But

if

the Rabbis hold: There is no retroactive determination

to say that each one fills from his portion, and if so, he is a borrower concerning the portion of the first, and a borrower is liable for guarding against damages.

Ravina said: And they proceeded

Rabbi Eliezer ben Yaakov and the Rabbis

according to their principles [

according to their position];

as we learned

in Nedarim 45b:

Partners who vowed to derive benefit from one another are forbidden

both of them

to enter the courtyard

of the partners, for each one is found to use and derive benefit from his fellow’s portion.

Rabbi Eliezer ben Yaakov says:

They are permitted to enter the courtyard, for one does not use his fellow’s portion, but

this one enters into his own, and this one enters into his own.

Over what do they disagree?

Rabbi Eliezer ben Yaakov holds: There is retroactive determination,

and we say:

This one enters for himself, and this one for himself

enters [

this one enters into his own, and this one enters into his own].

But

if

the Rabbis hold: There is no retroactive determination.

Rabbi Elazar said:

One who sells a pit to his fellow:

Once he hands over to him his bucket [

its cover],

he acquires it,

and he proceeds to explain it.

And we object: Behold, land is acquired through money, a document, and possession, and if so,

what are the circumstances

—through what acquisition does he come to acquire it, that he requires the handing over of the cover!?

If through money [

if he came to acquire it through acquisition by money],

let him acquire

the pit

through money,

and why do I need the handing over of the cover!?

And

if through possession

he came to acquire it,

let him acquire it through possession!?

must say to him

And we answer:

In fact

we are dealing with one who came to acquire it

through possession, and

nevertheless, in order to acquire it

he needs him to say to him

the seller to the buyer: “

Go, take possession and acquire”—

But

this teaches us that

once he hands his bucket over to him, it is as though he said to him “

Go, take possession and acquire”

it is considered,

and he takes possession and acquires the pit.

Rabbi Yehoshua ben Levi said: