Q&A: Migo in Damages
Migo in Damages
Question
The Talmud in Bava Kamma 52b discusses liability for oxen falling due to the worming/rotting of the pit cover, with a "migo" that he becomes liable because of the breaking of the cover by camels (which come there from time to time). Tosafot there makes it clear that this is not referring to the rule of "its beginning was in negligence and its end in an unavoidable accident." Could the Rabbi sharpen what exactly this "migo" means, and what the fundamental differences are (aside from the details that appear in Tosafot) between this rule and the rule of "its beginning was in negligence"? Thank you very much.
Answer
The medieval authorities (Rishonim) disagree about this there. Some indeed wrote that this is the beginning stage regarding theft and loss, which is like "its beginning was in negligence," only somewhat more lenient.
One can understand the migo as negligence that creates liability in its own right. That is, the very fact that you dug a pit with the potential to cause damage makes you liable; it is just that as long as no one has fallen into it, there is no one to pay. And when someone does fall in, you pay for the very digging of the pit. According to this, here he is liable even if there is no connection between the negligence and the accident (as Rabbi Akiva Eger explains the Rif's view according to Abaye).
Discussion
Discussion on Answer
Still, with regard to a pursuer who, during the pursuit, dug a pit, and the next day a certain ox was damaged by it, seemingly he should be liable.
And where do you get that from?
Notice that on 6a they derive "his stone, his knife, and his load" that caused damage after coming to rest, from fire and pit. Seemingly, what does fire have to do with this? The commentators there wrote that the wind helped create the pit (and not the act of damage, as in ordinary fire damages). That seemingly assumes that the creation of the pit is the element that creates liability in pit damages..
And one can likewise analyze the a fortiori argument from opening to digging, where here too they are dealing with the formation of the pit and not the damage itself (though that can be rejected)..
I mistakenly thought that the liability of a pursuer in the case of a pit was well known, and after I sent it I looked for discussion of it and didn't find any (hard to do from a phone). Until I asked T.H., may he live long, and he דווקא tended to think he is exempt (sad face). Regarding the creation of the pit, maybe one could say that they derive only the attribution to the owner of the stone, and the liability is a consequence of that, unlike a pursuer, where his exemption because of "he is liable for a greater punishment" applies to the liability itself?
I didn't understand regarding the a fortiori argument. If the liability is only at the time of the damage (and the opening is a condition), then is there a problem with an a fortiori argument from opening to digging?
Ah, I think I understood what there is to analyze and to reject. If the liability is in the damage, then this is not a case of "two hundred from one hundred" at all, but the hundred itself. And the rejection is that even if the liability is for the damage, there is still a condition that he open it, and even at the level of that condition we do not derive from logical inference.
That is exactly what I said.
Exactly.
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