The Pits

Bava Kama (3:1) | Yisrael Bankier | 12 years ago

One of the categories of damage we learnt about this week was bor – literally a pit. Simply put if one digs a pit in the public domain and an animal falls and is damaged, the person who dug the pit is obligated to pay the damages. One Mishnah (3:1) taught that if a person’s jug broke in the public domain, and someone slipped on its content or the broken shared, then the (original) owner is liable for damages.

A debate in the Gemara (28a) ensues regarding the extent of the liability. Rav maintains that the liability is only if the victim clothes got dirtied by the water but he is exempt from any physical injuries caused. Shmuelargues that the hazard created as a result of the broken jug is equated with the category of bor. With respect to bor, one is liable for physical damage or death caused to animals or physical damage caused to humans where as they are exempt from damage caused to keilim (utensils/movable property). Consequently Shmuel takes the opposite position. 

Rav responds that obstacles can only be learnt from bor in the instance that the owner declared the spill ownerless. In this case however the spill is considered his property. Rashi explains that while the spill still belongs to the original owner it is equivalent to damaged caused by his ox. 

Rashi explains that the argument here is based on a more general argument relating to bor (50b). Rav explains that the liability of bor is due damaged caused by confined space (hevel) created in its digging. The ground however causes the damage resulting from the impact. Consequently impact alone is not the defining characteristic of bor. For Rav the fact that the person fell and hit the ground does not constitute bor – the broken jug was a merely a garam(cause) for the damage. Ravtherefore uses other metrics in order to categorise the damage.¹ Shmuel however argues that the digger is obligated for the hevel and even more so for the impact. Consequently, since the victim fell as a result of the obstacle it is considered bor. 

The Rashba quotes the Raavad who asks that according to Rav which category of shor does this fall under?  Both shen and regel are exempt in the public domain and if it were kerenthen only half the damages would need to be paid. The Raavad answers that it would be derived from keren and considered like a shor mu’ad. Since the person wishes to retain ownership and the items are a hazard it is equivalent to a shor mu’ad, a dangerous ox. 

¹ The Rashba explains that Rav therefore must hold the Mishnah is referring to when the owner is not mafkir the items that fell and split. Had he been mafkir than the owner would be patur from keilim since it is not his mammon and exempt from any physical damaged that is caused since it was caused by the impact of the ground.

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