Q&A: Damages Caused by a Pit
Damages Caused by a Pit
Question
Hello Rabbi,
While studying tractate Bava Kamma, I saw that liability for damages caused by a pit applies specifically to animals, as derived from the verse: “An ox—but not a person; a donkey—but not vessels.” Likewise, even regarding animals there is a further limitation on the liability of the person who dug the pit: only if the pit is 10 handbreadths deep or more is he liable for the animal’s death, whereas if it is less than that, liability is only for injury, as the Mishnah says there (5:5): “If so, why does it say ‘pit’? Just as a pit that is sufficient to cause death is ten handbreadths, so too anything sufficient to cause death is ten handbreadths.”
It is not clear to me why and how one can make such fixed determinations in this matter. After all, it depends very much on the speed at which the animal was walking or running, and on the angle at which it fell into the pit. Also, the width of the pit, which affects the manner of the fall, and other parameters are not taken into account here. More generally: why exempt a person who left such a serious hazard in the public domain—dug a pit in property that was not his own—and not obligate him for injury or death to a person, for objects that broke, or for an animal that died? What interest or logic is there in exempting such a person from the damage he caused through his foolishness? On the face of it, this seems to contradict logic and common sense.
It also does not seem reasonable to me to say that this is simply a biblical decree, because why should the Holy One, blessed be He, care if people decide among themselves that it makes sense to pay for the death of an animal even in a pit that is less than ten handbreadths deep, or for damage to a person and to vessels? Why intervene in such a case at all and lay down fixed rules?
In addition, suppose the town leaders were to come and decide that from now on, because of many cases of pits being dug in the city and repeated cases of animals and people dying after falling into them, it is now mandatory to pay even for a pit lower than 10 handbreadths and also for people who were injured or died—would that be considered acting against the Torah?
I would be glad to hear the Rabbi’s response on this matter.
Thank you
Answer
This is a very good question.
From the plain sense of the Talmudic passages, it appears that these measurements are biblical decrees, but that is indeed puzzling. There is also no source given for this, and it is quite clear that these are assessments made by the Sages of the Talmud. But one can see in other contexts where this is not adhered to strictly. For example, his stone, his knife, and his load left in the public domain (Bava Kamma 6a) are considered like a pit. In what respect? What is their measure? After all, they do not kill through impact air (according to the view that a pit kills through its airspace). Therefore, in my personal opinion, these distinctions should be applied according to our present-day knowledge and reality. There are pits that can kill and pits that can mainly injure, and each should be judged according to what it is. The measure is not specifically 9 or 10, and it is also not certain that this depends only on the depth of the pit.
I do not think this is the prevailing approach among halakhic decisors, but that is my opinion.
Discussion on Answer
It is clear to me that this does not apply today, based on what Meiri wrote—that the gentiles of his time (and all the more so in our time) are bound by the norms of the nations. See my article: Is There Enlightened Idolatry?
Why should this depend on their being bound by the norms of the nations? At the end of the day, they did not accept / do not accept the seven Noahide commandments or the Torah.
And according to the view of the other halakhic decisors, from what you understand, what is the law regarding a gentile who does accept upon himself the seven Noahide commandments? Would this discriminatory law not apply to him, or is this a general decree regarding gentiles?
Thank you.
Meiri wrote this regarding all the differences between Jews and gentiles. And he wrote this explicitly about this law itself in particular. Some understood that gentiles today have the status of a resident alien even without accepting it before a religious court (Rabbi Kook), but I do not think one needs to go that far. From the reasoning in the Talmud, it is clear that this does not apply to orderly, law-bound gentiles, whether specifically in this case or more generally. And certainly when that is the presumption regarding a gentile.
Hello Rabbi, and thank you for the previous reply,
Later in the above tractate (chapter 4, mishnah 3) there appears a Jewish law stating that if a Jew’s ox gores the ox of a gentile, he is exempt, whereas in the reverse case the gentile is liable for full damages (even in the case of a non-habitual ox). The Talmud there explains this based on the famous verse, “He stood and measured the earth; He saw and released the nations”—that since the nations did not accept upon themselves the seven Noahide commandments, or because they did not want to accept the Torah (each opinion according to its own reasoning), the Holy One, blessed be He, permitted their property.
To what extent is this law valid in the Rabbi’s view regarding gentiles today, assuming of course that Jewish authority were dominant?
And likewise, what is the law regarding a gentile who does accept upon himself the seven Noahide commandments—would this discriminatory law not apply to him, or is this a general decree regarding gentiles?
I would be glad to hear the Rabbi’s view on this matter (or if you could direct me to an article you wrote on the subject).
Thank you