Translation:Shulchan Aruch/Choshen Mishpat/410

Paragraph 1- A pit is one of the primary categories of damages, as the verse states, “when a person digs a pit,” making him liable for damages that occur once he has performed a damaging action. This refers to a case where his property damages in the place where he made it, in that it does not move from its place but remains still, and one who passes over it gets damaged. Thus, anything comparable to a pit in that it is his possession and remains in place and damages, would create liability for the owner, even if he poured water in the public domain and someone slipped on it.

Paragraph 2- Both one who digs a pit or opens a pit that another had dug and covered properly and now this second person comes and uncovers it, would be liable.

Paragraph 3- If one discovers a pit, covers it and then uncovers it, the owner of the pit is liable and this later person is exempt. If he filled it with dirt and removed all the dirt, he would liable, because once he stuffed it with dirt, the original action has been nullified.

Paragraph 4- The law applies to one who digs a pit, one who purchases a pit or one who receives it as a gift, as the verse states, “the owner of the pit shall pay,” which means a pit that has any kind of owner. Similarly, if the pit was dug on its own or an undomesticated or domesticated animal dug it in his possession, because the owner is required to fill it or cover it and did not do so, he is liable for the damages. Similarly, if someone else dug the pit in his possession and the owner of the courtyard found out about it, the owner of the courtyard is required to cover it. If he did not cover it, it is as if he dug it himself. The digger would be required to pay him for the damage to his courtyard.

Paragraph 5- If one’s ox dug in the public domain or someone else’s domain, the owner of the ox is exempt because the verse states, “when a person digs a pit,” which means a person’s pit and not an ox’s pit.

Paragraph 6- One who digs a pit in the public domain, digs a pit in his domain with the entrance in the public domain or another’s domain or digs with the entrance in his own domain and he made his domain ownerless but did not make the pit ownerless, would be liable for resulting damages. If he made his domain and pit ownerless, or made the pit in his domain ownerless, however, he would be exempt because the verse states, “the owner of the pit shall pay,” which limits liability to a pit with an owner and this pit is ownerless. When he dug the pit originally he had permission to do so because it was in his own domain.

Paragraph 7- If one digs a pit in the public domain for the public’s needs, and he handed its cover over to them or informed the court that he wants to remove himself from the pit so that they could deal with covering it, he would be exempt, assuming he dug in a place where he had permission to dig.

Paragraph 8- If one tells another to dig a pit in the public domain and he does so, the digger would be liable and the person that instructed him would be exempt.

Paragraph 9- If one builds near the public domain, he is permitted to dig for the sake of the foundation, even to make it wider towards the public domain. If one was damaged from the pit he would be exempt because he did it with permission.

Paragraph 10- The law applies to one who digs a pit, ditch or cave. Why does the Torah refer only to a pit? To signify that the pit must be large enough to kill, which is 10 tefachim deep. If it was less than 10 tefachim, however, and an ox or other domesticated animal, undomesticated animal or bird died, the owner would be exempt. If the pit damaged, the owner of the obstacle would be liable for the full damage.

Paragraph 11- If the pit was nine tefachim deep and one of those tefachim was filled with water, the owner would be liable because one tefach of water is considered like two tefachim of dry depth.

Paragraph 12- If the pit was eight tefachim deep, and two of the tefachim contained water, or it was seven tefachim deep and three of the tefachim had water, and an ox or something similar fell in and died, we would not require the owner to pay. If the victim seized, we would not remove what he seized. See above 388:1 and 7 where there are those who disagree.

Paragraph 13- If one person dug eight tefachim and another came and dug another tefach, both would be liable for their proportionate amount of damage.

Paragraph 14- If one digs a pit that is 10 tefachim, and another comes makes it 20, and another comes and makes it 30, they would all be liable.

Paragraph 15- If the first person dug less than 10 tefachim, even if it was only one tefach less, and the latter came and made it 10, regardless of whether he dug a tefach or lifted a building on the edge of the pit, the latter would be liable even for damages. If he closed up the tefach he added or destroyed the tefach he built, it is unclear whether his original action is now considered removed or if it is not yet removed.

Paragraph 16- If the first individual dug a deep pit, and another came and widened the pit and an ox fell in and died, and it died because of the fumes, the latter would be exempt because he reduced the flumes. If it died because of the impact, the latter would be liable because he brought the damage closer. Similarly, if the ox fell from the side the latter widened, he would be liable because he brought the damage of this pit closer, even if he died from the fumes. If he fell from the side the first person dug, the first person would be liable because the latter person minimized the fumes. There are those who say there is no distinction between a case where the animal died from fumes or where it died from impact. Rather, if it fell from the side the latter widened, he would be liable in all cases, and if it fell from the other side the latter would be exempt in all cases.

Paragraph 17- The type of pit that the Torah finds the owner liable for applies even where the animal only died from its fumes. It goes without saying that he would be liable where it died from impact. Thus, if the pit was as long as it was wide, there are no fumes and if the animal did not have an impact and died the owner of the pit would be exempt. If the pit was longer than it was wide, there are fumes and if the animal died he would be liable, even if there was no impact with the ground.

Paragraph 18- If one made a pile in the public domain, and the animal had impact from it and died, and the pile was 10 tefachim high, the owner would be required to pay. If it was less than 10 tefachim high, he would be exempt from paying for the animal’s death. If the animal were merely damaged, the owner would be liable for the full damage, even if the pile was a minute amount high or the pit was a minute amount deep, because damage at any amount is something common and known, whereas death at a small amount is not common and is considered an unavoidable accident.

Paragraph 19- Similarly, one is not liable for the death of animal in a pit or from its impact from a pile unless the animal was young, a deaf-mute, a fool, blind or it fell at night. If the animal was sane and it fell during the day and died, however, the owner would be exempt because this is like an unavoidable accident given that it is the practice of the animal to see and avoid obstacles.

Paragraph 20- Similarly, if a person fell in the pit and died, even if he was blind or fell at night, and regardless of whether he was free or a slave, the owner would be exempt. If a person or sane animal was damaged by the pit, the owner would be liable for the full damage. There are those who say that in the case of a sane animal the owner would even be exempt from damage if it fell during the day.

Paragraph 21- If vessels fell into a pit and were damaged or broke, the owner is exempt, because the verse states, “and an ox or donkey fell there.” “Ox” excludes a person and “donkey” excludes vessels. People are only excluded in a case of death but if a person was damaged, the owner of the pit would be liable. With respect to vessels, however, the owner is exempt, regardless of whether they completely broke or were just damaged.

Paragraph 22- If the owner covered the pit properly, even if it rotted from the inside and an ox fell in and died, he would be exempt, because the verse states, “and he did not cover it,” meaning that if he did cover it, he is exempt.

Paragraph 23-If the owner covered the pit with something that can withstand oxen but cannot withstand camels, and camels passed over it and made it shaky and then oxen passed over it and fell in, and camels are uncommon in that area, the owner would be exempt because that is an unavoidable accident. If a camel fell in, however, even if it was sane, he would be liable because the camel passed over it because he saw the cover. If camels come to that location, he would be liable, even if they only come on occasion.

Paragraph 24- If the cover rotted from within and oxen fell, even though camels were very common there and he was negligent vis a vis the camels, because the oxen fell due to the cover rotting, he would be exempt. The same applies to anything similar. There are those who make a distinction and say that this that he is exempt in such a case is only where had the camels passed they would have fallen with the cover, in which case he was not negligent at all vis a vis the oxen because had the camels passed the cover would have fallen off and the same oxen would not have passed once they see the pit is not covered. If the case is where had the camels passed the cover would not have fallen but only would have become shaky and if oxen would pass after them, they would fall, however, the owner would be liable even in a case where the cover rotted from within. Because he was negligent vis a vis the oxen, he is liable even in a case where the cover rotted.

Paragraph 25- If a pit belonged to two partners, and one passed by and did not cover it, and the second partner passed by and did not cover it, the first one is liable until he hands over the bucket to the second. There are those who say both partners are liable until he hands over the bucket to the second. Once he hands over the bucket to the second to draw with it, the first partner will be exempt and the second is required to cover it.

Paragraph 26- If the first partner covered it, and the second came and found it uncovered and did not cover it, the second would be liable. For how long would only the second partner be liable? Until the first one finds out and the time passes for him to have been able to hire workers, cut down cedar and cover it. If anything dies during that time period, the second partner is solely liable. They would both be liable for anything that dies after that time because they were both negligent. There are those who say that we give enough time for the second partner as well to be able to hire workers and cut down cedar, but there is no time given for him to be told.

Paragraph 27- There are those who say that if he can only find expensive cedar to purchase, he would be given the time needed to find cedar at their value.

Paragraph 28- In all damage cases, if it something that the person himself does not have the practice to remove, we would not find him liable to remove it until he has the time to hire workers. This is only in a case of an unavoidable accident, such as a pit that was covered properly and rotted. If he left the pit uncovered, however, he is negligent and would immediately be liable for any damages.

Paragraph 29- If one covers a pit with another’s bucket, and the owner of the bucket comes and takes the bucket, the owner of the pit would liable.

Paragraph 30- If one gives over his pit to a watchman, the watchman would be liable for any damage. If he gave it to a deaf-mute, fool or minor, even if it was covered, the owner would be liable, because a pit tends to get uncovered and these watchmen do not have the requisite capacity.

Paragraph 31- If a pit was dug and prepared, and a person comes to widen or deepen it, and an ox stood on the edge and was startled from the sound of the digger, and the ox fell in, regardless of whether it fell frontwards or backwards, the owner of the pit would be liable, even if the ox had the mental capacity and it was during the day, because the digger is exempt given that he was an indirect cause, and because it is impossible to collect from him, the owner of the ox would collect from the owner of the animal. If the ox was startled from the sound of the digging and fell behind the pit, however, the owner of the pit would be exempt.

Paragraph 32- If an ox pushed an animal into the pit and it died, and the ox was a warned ox, the owner of the pit would pay half and the owner of the ox would pay half. If the ox was unwarned, the owner of the ox would pay ¼ from the animal and the owner of the pit would pay ¾ from his best properties because the owner of the carcass can tell the owner of the pit that he has possession of the depreciation of this carcass, and although if this animal was large and sane, because it was pushed it is as if it fell at night, and what I can take from the owner of the ox I will take but you are required to pay me the rest.

Paragraph 33- Similarly, if one leaves a stone on the opening of the pit, and an ox comes and trips on it falls into the pit and dies, the person that placed the stone would pay half and the owner of the pit would pay half.

Paragraph 34- If a person and an ox pushed one ox into to a pit, and the person had done it unintentionally for had he done it intentionally the owner of the pit would be exempt, all three parties would be liable. If the ox was warned, they would divide the damage into three parts. If the ox was unwarned, the owner of the ox would pay 1/6 and the rest would be divided between the person and the owner of the pit.

Paragraph 35- If they pushed a woman and her offspring emerged, only the person would be liable and the owners of the ox and pit would be exempt.

Paragraph 36- If they pushed a person and he was damaged, all three would be liable for the damage, but the person himself would liable for the four other categories. If they pushed vessels and they broke, the person and the owner of the ox would be liable and the owner of the pit would be exempt.

Paragraph 37- There are those who say that the same would apply where two parties damage and both are those who would be liable, but one fled or does not have with what to pay, and the victim would collect from the remaining tortfeasor whatever amount he would have been liable had he committed the tort himself. There are those who disagree because since by law the other tortfeasor is required to pay back but just does not have the resources to do so, why should the remaining tortfeasor pay for him? Accordingly, if an ox pushed an animal into a pit today the owner of the pit would only pay ¾, even though the owner of the ox is exempt from ¼ because we do not judge penalty cases today, and the owner of the pit would not pay for him.

Paragraph 38- If one digs a pit in the public domain and an ox falls on him and kills him, the owner of the ox is exempt. If the ox dies, the owner of the ox would collect the value of the ox from the inheritors of the pit-owner.