Today’s daf is concerned with damages caused by a pit left uncovered. The discussion proceeds from a mishnah found on the bottom of yesterday’s daf:
One who digs a pit in the public domain and an ox or a donkey fell into it, he is liable. And it is the same whether he digs a pit, a ditch, a cave, a trench or a channel — in all these cases, he is liable …
If any of these excavations were less than ten handbreadths deep, and an ox or a donkey fell into one of them and died, he is exempt from paying damages. But if it was injured, he is liable.
Excavations in public spaces are a danger — particularly if they are more than 10 handbreaths (about two feet) deep. At that depth, the one who dug them becomes liable not just for injury but for the death of the animal that fell in.
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The Gemara presents a debate between Rav and Shmuel that takes into account the various ways in which an animal might be harmed by the fall into a pit: From the impact, yes, but also potentially from being trapped in the pit amidst noxious fumes, which can also lead to death. (This is a safety concern for manure pits today as well.) The cause of death in the pit may be important for determining liability, the debate suggests.
A particularly interesting problem is what happens if the animal is rescued from the pit, but has sustained serious injuries from the fall and might die. The rabbis explore this by relating a case:
A certain ox fell into a water channel, and its owner slaughtered it.
What’s going on here? An ox falls into a water channel and sustains injuries that its owner worries are fatal. Since water channels are shallow (generally less than 10 handbreadths deep) the owner will not be able to collect damages if the ox dies. To hedge against deep financial loss, he slaughters the animal and eats it.
The case highlights a difficulty of the talmudic law. On the one hand, water channels are shallow and falling into them is usually not fatal for an animal, so it would be draconian to make the person who dug the channel liable for freak accidents, even those that result in the death of livestock. On the other hand, if an animal dies unexpectedly from falling into a water channel, the owner of the animal has suffered undue financial loss without being able to collect compensation. In this case, the owner of the injured ox finds a clever solution to minimize the loss by slaughtering and consuming the animal.
But there’s a problem with this solution: The ox probably isn’t kosher. The Gemara points out that Rav Nahman has ruled that an animal with a condition that will cause it to die within the year cannot be slaughtered and consumed because it is treifa, unfit. A better choice, says Rav Nahman, would be to wait 24 hours to assess the severity of the injuries. If, after a day, the animal is still alive, it likely won’t die from its injuries and therefore can be slaughtered and consumed.
Of course, the whole point of this solution was to slaughter the animal because it was expected to die. So if the man waits to make sure the animal is healthy enough to slaughter and consume, his reasoning for doing so may have disappeared. On the other hand, if the animal is too injured to work, this still might be a way to derive more compensation for the damages.
In the end, there is no perfect legal solution to this unfortunate situation. One who digs a shallow water channel is not held liable for the unexpected situation in which an animal falls in and dies. When that happens, the owner cannot find recourse in slaughtering the animal to recoup some of the loss. The owner suffers (though, as a vegetarian I’m compelled to point out, not as badly as the ox). Sometimes pit happens.
Read all of Bava Kamma 51 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 23rd, 2023. If you are interested in receiving the newsletter, sign up here.
