Bava Kamma 51b (נא:) — the Talmud in English

Let us say: This

that teaches: all of them are liable

is the opinion of Rabbi,

who holds that the actions of the first were not nullified when the second dug further.

Whereas

this

that teaches: the last one is liable

is the opinion of the Rabbis,

who hold that the last one—who increased the vapor—removed the effect of the first.

Rav Zevid said:

Both this and that are according to the Rabbis,

meaning: regarding the case you stated—that when the first dug ten handbreadths and the second came and added another ten, according to the Sages the actions of the first were nullified, and therefore you said that the first beraita cannot be according to the Rabbis—this is not so, for even the Sages agree in this case that the actions of the first were not nullified. This is because:

for

the Rabbis said only: The last one is liable

and the first is removed

when the first had not made a pit of lethal depth

[for he had dug only nine handbreadths, which is the measure of a pit for property damage alone, and the second made it a pit of lethal depth; only in that case did the second remove the effect of the first, even with regard to property damage]—

but when the first also made

even

a pit of lethal depth,

and the second was not the one who introduced the lethal danger into the pit,

even the Rabbis agree that all of them are liable;

and therefore the first beraita need not be according to Rabbi; it may even be according to the Rabbis.

And we raise an objection against this:

But what of the case of plastering and chiseling

in the second beraita,

where the first did make a pit of lethal depth, and

nevertheless

it teaches: The last one is liable

—does this not demonstrate that, at least according to the Rabbis, even in this case the actions of the first were nullified!?

They said

to resolve the matter:

There,

in the second beraita, what case are we discussing?

One in which there was no lethal vapor,

even though it was ten handbreadths deep—for example, its width was greater than its depth, so that it did not contain lethal vapor—

and another came and added lethal vapor to it,

for since the second introduced the lethal danger into it, he alone became the owner of the pit.

There are those who say that

There are those who say that

Rav Zevid said

to resolve the matter in another way:

Both this and that—

the two beraitot—

are the opinion of Rabbi,

.

the one that teaches: All of them are liable, is well-founded,

since this beraita follows Rabbi.

Whereas

the one that teaches: The last one is liable,

we are dealing

with a case in which there was no vapor, neither for lethality nor for damage, and another came and added vapor to it, whether for lethality or for damage,

for in such a case even Rabbi agrees that only the second is liable, just as Rabbi agrees that when the second completed a pit to ten handbreadths with regard to lethality, only the last one is liable.

Rava said: If one 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 upper surface of the stone:

We have arrived at the dispute between Rabbi and the Rabbis;

according to Rabbi, the last one is responsible for lethality, while both are responsible for damage; whereas according to the Rabbis, the last one is responsible both for lethality and for damage.

And we challenge this:

Is that not obvious!?

For what difference is there whether the last one added below, or whether he added above?

And we answer: Rava teaches us a novel point, that the last one is liable, for

it might enter your mind

that if he added

below, he

is liable for the death, since

it is his vapor that killed him

[his additional vapor caused the person’s death],

but

when the last one added

above, it is not his vapor that killed

him,

say that he is not

liable for his death, whether according to Rabbi or according to the Rabbis—

Rava teaches us

that the last one is liable.

Rava raised a dilemma:

If he filled in

[simply filled in]

one handbreadth

that is, if the last one—who added one handbreadth to the nine-handbreadth pit dug by the first and thereby became solely liable for damage according to the Rabbis—then returned and filled in the same handbreadth that he had added.

And likewise, if the one who added a stone over the mouth of the pit then returned

and removed

the

stones he had placed, what is the law

—is he liable alone for the damage according to the Rabbis?

Do we say: Whatever he did,

he

removed,

and what the second had done has been eliminated, so that the pit has reverted to the first?

Or perhaps:

the actions of the first

had already been nullified, and the entire

pit

stood in his possession,

that of the second, and removing his addition is no longer effective.

And we conclude:

The matter remains unresolved.

Rabba bar bar Ḥana said in the name of Shmuel bar Marta:

A pit

that is

eight

handbreadths deep,

and two handbreadths of it

are

water,

the owner of the pit is liable for the death, even though its depth is not ten handbreadths, which is the measure of a pit that causes 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 that causes death?

Because

each handbreadth of water

—a handbreadth of water—regarding the addition of lethal fumes

is like two

handbreadths

of dry earth,

so the pit contains the equivalent of ten handbreadths of dry earth.

They raised a dilemma before them:

If there was a

pit

that was

nine

handbreadths deep,

and one handbreadth of it

was

water, what is

the halakha as to whether he is liable for the death?

Do we say: Since there is not a great amount of water

as there is in a pit eight handbreadths deep, two of them water,

there are no lethal fumes in it

—since there is not a great amount of water, it does not contain fumes equivalent to those produced by two handbreadths of dry earth?

Or perhaps: Since it is deeper, there are lethal fumes in it,

since the water is located deeper in the pit than water in a pit eight handbreadths deep, two of them water. If so, it contains sufficient fumes for one handbreadth of water to be equivalent to two handbreadths of dry earth—even though, on the other hand, there is not a great amount of water in it—and it is therefore like a pit ten handbreadths deep containing dry earth.

They raised another dilemma before them:

A pit

that was

seven

handbreadths deep,

and three handbreadths of it were water, what is

the halakha as to whether he is liable for the death?

Do we say: Since there is a greater amount of water, there are lethal fumes in it,

since there is a considerably greater amount of water than the two handbreadths of water in the previous case, and therefore it contains fumes equivalent to those produced by two handbreadths of dry earth, so he is liable for the death, even though the water is not as deep as it is in a pit eight handbreadths deep?

Or perhaps: Since it is not deep, there are no lethal fumes in it,

since the water is not as deep as it is in a pit eight handbreadths deep, two of them one handbreadth, it does not contain fumes equivalent to those produced by two handbreadths of dry earth, even though, on the other hand, there is a considerably greater amount of water in it.

And we conclude:

The matter remains unresolved.

Rav Shizvi raised a question before Rabba:

One person dug a pit ten handbreadths deep, and another came and

widened it; what is the halakha?

He said to him,

Rabba said to Rav Shizvi:

He has thereby reduced the lethal fumes,

he reduced the fumes of the pit; may a blessing come upon him, and the second person is not liable at all.

He said to him,

Rav Shizvi said to Rabba:

On the contrary, he has brought the danger closer,

as he reduced the area on which the animal’s feet could stand, and perhaps the ox would not have proceeded to the location of the original opening of the pit and would not have fallen.

Rather, Rav Ashi said: Let us examine the matter:

If it died from the lethal fumes

—if the ox died because of the fumes—

the second person reduced

the

fumes

and is not liable at all.

If it died from the impact

—and if the ox died because of the impact—

the second person brought

the

danger closer

and is liable.

There are those who say

that

Rav Ashi said as follows: Let us examine the matter:

If it fell from that side

—if the ox fell from the side that the second person widened—

the second person brought

the

danger closer,

and is liable.

But if it fell from the other side,

—if it fell from the side that the second person did not widen—

the second person reduced

the

fumes,

and is not liable for anything.

It was stated:

A pit whose

measure of

depth is

equal to the measure of its

width:

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

meaning: Rabba and Rav Yosef disagreed concerning what Rabba bar bar Ḥana said in the name of Rabbi Mani:

One

of them

said: It always contains lethal fumes, until its width is greater than its depth.

And one

of them

said: It never contains lethal fumes, until its depth is greater than its width.

We learned in the Mishna:

“The first person passed by it and did not cover it,”

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

This statement 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? After all, the duty to guard it rests upon him just as it rests upon the second person, and he too acted negligently. Rather, it certainly means that if the first person stopped using the pit and the second person came to use it, the first person is exempt;

but

nevertheless,

from when is the first person exempt

—from what point is he exempt?

One

of them

said: From the moment he leaves it

the first person leaves it to the second person while he is

using

the pit, the second person has already become liable for guarding the entire pit, because he becomes a sho’el concerning the entire pit, and a sho’el assumes the owners’ responsibility to be liable for damages, as explained in the Mishna above, on page 44b.

And one

of them

said:

Only

when he hands it over to him

the first person hands the second person its

cover

—that is, the cover of the pit— is the first person exempt, because through this the second person accepts responsibility for guarding the pit, whereas use alone does not make him responsible for more than his own share.

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

meaning: Rabba and Rav Yosef disagreed concerning what Rabba bar bar Ḥana said in the name of Rabbi Mani:

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

as the disagreement between tanna’im,

who had already disagreed about this:

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

—who is his partner in the pit—

and said to him: “

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

once he leaves it

the first person leaves it to the second person while he is

using it, the first person is exempt

from liability for the pit.

Rabbi Eliezer ben Yaakov says:

Only

when he hands it over to him

the first person hands the second person its

cover

is the first person exempt.

And we explain:

Over what do they disagree,

these tanna’im [what is the reason for their disagreement]?

Rabbi Eliezer ben Yaakov maintains: There is retroactive designation,

meaning: it is established that

this one draws from his own

—he draws from his share—

and this one draws from his own

—the second person too draws from his share—and therefore he is not a sho’el concerning the other person’s share, and until he accepts responsibility for guarding the entire pit, the first person is not exempt.

But

if

the Rabbis maintain: There is no retroactive designation,

meaning: each one draws from his own share, and therefore he is a sho’el concerning the first person’s share, and a sho’el is liable for guarding against damages.

Ravina said: And

Rabbi Eliezer ben Yaakov and the Rabbis

follow their respective principles

—their respective approaches—

as we learned

in Tractate Nedarim 45b:

Partners who prohibited themselves by vow from deriving benefit from one another are forbidden,

both of them,

to enter the courtyard

belonging to the partners, since each one would thereby use and benefit from the other’s share.

Rabbi Eliezer ben Yaakov says:

They are permitted to enter the courtyard, for neither one uses the other’s share; rather,

this one enters his own portion, and that one enters his own portion.

Over what do they disagree?

Rabbi Eliezer ben Yaakov maintains: There is retroactive designation,

and we say:

this one enters for himself, and this one

enters for himself

—this one enters his own portion, and that one enters his own portion.

But

if

the Rabbis maintain: There is no retroactive designation.

Rabbi Elazar said:

One who sells a pit to another:

Once he hands over its cover

—its covering—

the buyer acquires it,

and the Gemara proceeds to explain this statement.

And we raise an objection: Land is acquired through money, a document, or taking possession. If so,

what are the circumstances,

by what act of acquisition does he come to acquire it, such that the handing over of the cover is necessary!?

If it is through money

—if he came to acquire it through the act of acquisition with money—

let him acquire

the pit

through money;

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

And

if it is through taking possession,

he came to acquire it

let him acquire it through taking possession!?

must say to him

And we answer:

Actually,

we are dealing with one who came to acquire it

through taking possession, but

nevertheless, in order to acquire it,

the seller must say to him

the buyer: “

Go, take possession and acquire it.”

And

it teaches us that

once he hands over its cover, it is as though he said to him: “

Go, take possession and acquire it,”

it is considered

as though he had said so, and he takes possession and acquires the pit.

Rabbi Yehoshua ben Levi said: