Yerushalmi Bava Kamma 5:7 ירושלמי בבא קמא ה׳:ז׳

MISHNAH: A pit dug by two partners; if the first went by and did not cover it, the second and did not cover it, the second is liable. If the first covered it, the second came and uncovered it, the second is liable. If the first covered it, the second came, found it uncovered but did not cover it, the second is liable. If he covered it appropriately⁶⁵This will be defined in the Halakhah. but an ox or a donkey fell in and died, he is not liable⁶⁶Ex. 21:33 explicitly absolves him if the pit is covered.. If he did not cover it appropriately and an ox or a donkey fell in and died, he is liable. If it fell forward because of the noise of the excavation, he is liable, backward because of the noise of the excavation, he is not liable⁶⁷An animal falling backward is an unusual occurrence that cannot be foreseen; also in this case the animal fell on the ground and not into the pit.. If an ox and its equipment⁶⁸Harness and plough. fell in and broke, a donkey and its equipment⁶⁹Cover and saddle. was torn, he is liable for the animal but not liable for the equipment. If the ox falling in was deaf-mute, insane, or young, he is liable⁷⁰These categories do not apply to animals.; a son or daughter, a slave or slave-girl, he is not liable⁷¹Humans are supposed to watch where they are going..

HALAKHAH: “A pit dug by two partners,” etc. How is a pit of two partners possible⁷²Since the pit is dug in the public domain, it is the sole responsibility of the digger; there can be no joint ownership.? Rebbi Yannai said, explain it if they both together put in the last stone⁷³They together secured the rim lest the pit collapse. In the Babli, 51a, this explanation is ascribed to R. Joḥanan, R. Yannai’s student.. And why did they not explain that each of them dug ten handbreadths⁷⁴Halakhah 1:2, Note 107.? Because he wants to explain it for a pit ten handbreadths deep⁷⁵The mininum depth for which the digger is responsible if an animal is killed. The Mishnah is always formulated to apply to the borderline case. of two partners.

“If the first went by and did not cover it, the second and did not cover it, the second is liable.” Rebbi Abba bar Bizna⁷⁶An Amora of this name is not otherwise known. With all quotes in Medieval authors one should read “bar Bina (Abbina)”., Rebbi Yasa in the name of Rebbi Joḥanan: One gives him time to cut cedars from Lebanon⁷⁷In the interpretation of the Babli (52a): The first partner is freed from liability if the second had time to bring wood from Lebanon after being informed that the pit was not covered.. That can be a stringency and it can be a leniency⁷⁸It is missing the main point of a legal rule, to be equally applicable to everybody. In the Babli, Samuel therefore states that the first is freed from liability the moment the second becomes aware of the situation.. Sometimes he is close to the Lebanon, sometimes he is far from the Lebanon.

“If he covered it appropriately.” How much does it have to be covered? It shall be as we have stated there: “That [it can withstand] a truck full of stones driving over it.⁷⁹Mishnah Bava batra 3:12; cf. Bikkurim 1:1, Notes 19–20.”

Rebbi Yannai said, in front of him, whether forward ot behind he is (not) liable. Outside, forward he is (not) liable, behind he is [not] liable⁸⁰This refers to the case that the animal was frightened by the noise of the excavation. It is clear that in the entire statement, “not liable” has to be replaced by “liable", and vice versa. This is confirmed by Tosephta 6:13 which frees from liability only if the animal falls backward outside the pit; Mekhilta dR. Ismael Neziqin 11 (ed. Horovitz-Rabin p. 289), Mekhilta dR. Simeon b. Ioḥai 21:33 (ed. Epstein-Melamed p. 185 l. 13)..

“If an ox and its equipment⁶⁸Harness and plough. fell in and broke, a donkey and its equipment⁶⁹Cover and saddle. and was torn, he is liable for the animal but not liable for the equipment.” Samuel said, when it became disoriented because of the air⁸¹The bad air exuding from the pit., but if it hit the ground he is liable. Rebbi Joḥanan and Rebbi Simeon ben Laqish both say, even if it hit the ground, he is not liable⁸²In the Babli, 53a, Samuel’s statement is attributed to Rav, R. Joḥanan and Resh Laqish’s to Samuel. Since in the Babli practice follows Samuel and in the Yerushalmi R. Joḥanan, both Talmudim decide in the same way.: The Torah absolved from liability when it fell down. “An ox or a donkey fell in there;⁵⁶Ex. 21:33.” “an ox” and not an ox and its equipment; “a donkey” and not a donkey and its equipment⁸³Cf. Halakhah 3:1, Note 34, and the references given there.. Since it looked logical: If a pit of damages⁵⁸In the next Halakhah one deduces “an ox but not an ox with his vessels” from the language of the verse. Why does this not apply to damages in case the animal survives the fall? No answer is given; it must be that the award of damages in this case is a matter of common, not biblical law., where one is not liable for death, one is liable for vessels; would it not be logical that for a pit ten handbreadths deep, for which one is liable for death, should one not be liable for vessels?⁸⁴Mekhilta dR. Ismael Neziqin 11 p. 288 l. 16. The verse says, “an ox or a donkey fell in there;” “an ox” and not an ox and its equipment; “a donkey” and not a donkey and its equipment.

“If the ox falling in was deaf-mute, insane, or young, he is liable”. Rebbi Eleazar said, so is the Mishnah: an ox which is deaf-mute, an insane ox⁸⁵One should not read the Mishnah as: “An ox, a deaf-mute, an insane, or a minor,” the last three items referring to humans., [an underage ox]⁸⁶Addition from E and a Genizah fragment; also required by general Talmudic style.; “a son or daughter, a slave or slave-girl, he is not liable”.