(Permission is granted to print and redistribute this material
as long as this header and the footer at the end are included.)


prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

Previous daf

Bava Kama 51



(a) Since Rav Nachman currently holds that there is Chavatah by less than ten Tefachim, we ask on him from a Beraisa. According to the Tana there - the Beis ha'Sekilah (from which they would throw down a man who was Chayav Sekilah) was twice the average height of a person, plus the height of the man who was sentenced.

(b) The Kashya on Rav Nachman is - why the Beis ha'Sekilah needed to be so high?

(c) We retort that everyone agrees that there is Chavatah at ten Tefachim, so why did they need to make the Beis ha'Sekilah more than ten Tefachim. We answer this with a statement by Rav Nachman Amar Rabah bar Avuhah, who learns from the Pasuk "ve'Ahavta le'Re'acha Kamocha" - that even putting a person to death should be performed in the least painful way possible. Consequently, even though they would throw boulders on top of a person who did not die immediately, they would try to avoid this (by throwing him down from a greater height).

(d) And the reason that they did not make it higher still, to ensure that he died immediately was - in order to minimise the ugliness of his body breaking up (on account of Kavod ha'B'riyos [human dignity]).

(a) The Tana of the Beraisa Darshens from the Pasuk "Ki Yipol ha'Nofel *Mimenu*" - that it is only the roof of a house from which one can fall into the area below, that requires a Ma'akeh (a parapet), but not a raised area from which one falls on to the roof of a house below.

(b) Here too, we ask on Rav Nachman, why the Tana needs to specify that the house from which the Nizak fell, obligating the owner to pay, was ten Tefachim tall, seeing as, in his opinion, there is Chavatah at even less than ten Tefachim, and we answer - that the Torah confines the obligation to put up a Ma'akeh to a house, and a building of less than ten Tefachim tall is not considered a house.

(c) Seeing as a house, whose roof is ten Tefachim from the ground, after deducting the roof and the plaster, is not ten Tefachim from the inside (and therefore not considered a house) - we will have to establish the Mishnah by a house which is sunk below ground level (corresponding to the roof and the plaster), to make up the ten Tefachim.

(d) The problem with this answer is - that seeing as the Torah is talking about a house that is ten Tefachim tall on the inside, from where do we know from what height a Ma'akeh is required (seeing as the height of the outside of the house will depend on how deep he dug on the inside)?

(a) So we retract from our previous explanation of Rav Nachman. Rav Nachman really declared the ox a T'reifah, even though the canal was less than ten Tefachim deep - because seeing as it fell into the canal in a standing position, we need to add the four Tefachim space between its belly and the ground to the six Tefachim of the canal. Note, that according to this explanation, Rav Nachman now holds that there is no Chavatah (for Miysah) of less than ten Tefachim, and he could hold like Shmuel too.

(b) Our Mishnah specifies ten Tefachim (and not less) - because it speaks when the animal rolled into the pit, in which case there was no space between its belly and the ground, when it fell in.

(a) The Tana of our Mishnah says that in the case of a pit belonging to two partners, if first one partner, and then, the other, passed by the pit without covering it - both partners are liable.

(b) According to Rebbi Akiva (who holds that a Bor bi'Reshus ha'Yachid is Chayav) it is easy to figure out the case of a pit belonging to two partners. But it is not so easy to find the case by a Bor bi'Reshus ha'Rabim. The case cannot be when ...

1. ... Reuven and Shimon asked a Sheli'ach to dig a pit in the street on behalf of both of them - because of the principle 'Ein Sheli'ach li'D'var Aveirah' (in which case it would be the Sheli'ach who would be liable, and not Reuven and Shimon).
2. ... Reuven dug five Tefachim, and then Shimon added another five - because then Shimon alone would be Chayav, seeing as he is the one who made it into a pit that can kill.
(c) There is one case of Bor shel Shutfin where each one dug five Tefachim, according to Rebbi - namely, with regard to subsequent damages (but not for Miysah).

(d) Rebbi Yochanan finally teaches us the case of a Bor shel Shutfin in a Reshus ha'Rabim by Nizakin even according to the Rabbanan, and even by Miysah according to Rebbi. It is - when Reuven and Shimon pulled out the final clod of earth together, to bring the pit to a depth of ten Tefachim.

(a) According to the Tana Kama in the Beraisa, if Reuven digs a pit of five Tefachim, and Shimon adds another five, it is Shimon who is liable, not only for Miysah, but for damages, too. Rebbi maintains - that the Shimon is liable for Miysah, because *he* is the one who turned it into a pit that kills, but as far as damages is concerned, they are both liable?

(b) The Rabbanan derive their opinion from the Pasuk "Ki Yiftach" ... "ve'Chi Yichreh Ish Bor". Rebbi requires both Pesukim intrinsically - since we would not otherwise have know that both are equally Chayav by a pit of ten Tefachim, as we explained above.

(c) The Rabbanan too, agree with that D'rashah. So we change their source to "ve'Chi Yichreh *Ish* Bor" ('Echad, ve'Lo Shenayim'). Rebbi learns from "Ish Bor" - "Ish Bor", 've'Lo Shor Bor' (as we learned earlier).

(d) Here again, the Rabbanan agree with this D'rashah, and they learn to obligate only the last digger and to exempt the first - from the second "Ish Bor".

(e) Rebbi explains the second "Ish Bor" - as being superfluous, only because the Torah has to write "Ish Bor" once (to teach us the D'rashah introduced by Rebbi), it wrote it a second time, even though there, it is not necessary.

(a) The Rabbanan know that it is the last digger who is liable rather than the first - because the Torah says "ve'ha'Meis Yihyeh Lo", which teaches us that it is the one who caused the death who is responsible.

(b) Rava learns that a Bor is Patur if a Shor Pesulei ha'Mukdashin (i.e. a blemished Bechor [which belongs to the Kohen] or a blemished Korban that has been redeemed) falls into it - from "ve'ha'Meis Yihyeh Lo", and a Shor Pesulei is his to eat, but not to do with as he pleases.

(c) Rava speaks specifically about a Shor Pesulei ha'Mukdashin, and not an unblemished ox of Hekdesh - because in the latter case, one is not Chayav the damage done by a Shor either (since it is not included in "Shor Re'eihu"), whereas a Shor of Pesulei ha'Mukdashin is.

(d) Despite the fact that we need the Pasuk "ve'ha'Meis Yihyeh Lo" to teach us Rava's Din, the Rabbanan nevertheless learn from it that it is the last digger who is liable - because the Pasuk automatically implies that it is concerned specifically with an animal that was killed, in which case it is clearly the person who caused its death who is liable.

(a) In a case where the first digger digs a pit of ten Tefachim, the second, digs down to twenty, and the third, down to thirty Tefachim, the Beraisa considers them all liable for damages. Initially, we reconcile this with another Beraisa, which obligates only the last digger who plastered the wall of a pit which someone had dug with paintings - by establishing the first Beraisa like Rebbi, and the second, like the Rabbanan.

(b) Rav Z'vid however, establishes both Beraisos like the Rabbanan, even the first Beraisa, which obligates all the diggers - by differentiating between the original case, where the first digger did not dig sufficient to cause death, and this Beraisa, where each digger did.

(c) The basis for this distinction lies - in the source Pasuk "ve'ha'Meis Yihyeh Lo", which only precludes diggers who did not dig a Shiur Miysah, but not those who did.

(d) The Rabbanan need the Pasuk "Ki Yichreh Ish Bor" to learn that only one of the diggers is Chayav and not both. They cannot learn that from "ve'ha'Meis Yihyeh Lo" (despite the fact that they anyway learn from there that the second one is Chayav) - because that Pasuk is needed first and foremost to teach us the P'tur of Shor Pesulei ha'Mukdashin, and it is only once we know from another source that only of the diggers is Chayav, that we can use it to teach us which one (in the form of a revelation, rather than a full D'rashah.




(a) We reconcile the Reisha of the Beraisa, where, as we just explained, all the diggers are liable because they each dug sufficient to kill, with the Seifa, which obligates only the last 'digger', who plastered the wall of a pit which someone else had dug, with paintings, despite the fact that the first digger had dug a ten-Tefachim pit - by establishing the Seifa when initially, there was not sufficient vapor to kill an animal (which will be discussed later on the Amud). By adding plaster to the walls, the second man turned it into a pit which could.

(b) In the second Lashon, Rav Z'vid establishes the entire Beraisa like Rebbi. He establishes the Seifa, which obligates only the plasterer - when initially, there was not sufficient vapor even to damage either.

(c) According to this Lashon, in the Reisha of the Beraisa, even though each one dug a Shi'ur Miysah - the Rabbanan would nevertheless hold that only the last one would be liable.

(d) This is fine according to Rav, who holds 'le'Havla ve'Lo le'Chavatah' (and whose opinion Rav Z'vid appears to follow). For the Seifa to go like Rebbi, Shmuel would establish it - when the floor of the pit was lined with wads of cotton wool (eliminating the aspect of Chavatah).

(a) Rava states that someone who completes a pit of ten Tefachim deep by adding a stone on top, is involved in the Machlokes between Rebbi and the Rabbanan (whether the original digger alone is liable for damages too, or whether he is only liable for causing an animal's death). We might otherwise have thought that he will only be a partner in the damage when he digs at the bottom of the pit, and it is '*his*' vapor that participates in the damage or that causes the death of the animal that fell into it, but not when he builds at the top, where the section that he built does not produce any vapor (and he ought therefore to be Patur, both according to Rebbi and according to the Rabbanan).

(b) Rava asks what the Din will be if the person who dug the tenth Tefach or who completed a pit of ten Tefachim by placing a stone on top, subsequently filled in what he dug or removed the stone that he placed - whether we say what he dug, he removed (and he is Patur), or whether we say that, when he completed the pit, it became exclusively his, and there is no retracting.

(c) The outcome of Rava's She'eilah is - 'Teyku'.

(a) Rabah bar bar Chanah Amar Rav Shmuel bar Marsa states that someone who digs a pit to a depth of eight Tefachim, but which contains two Tefachim of water, is liable should an animal fall into it and die - because one Tefach of water is equivalent to two of space.

(b) We then ask about a case where someone digs a pit ...

1. ... of nine Tefachim, containing one Tefach of water - which might be Patur in spite of the previous case, because a mere Tefach of water is too small an amount to be considered like two Tefachim of air.
2. ... seven Tefachim, containing three Tefachim of water - which might be Patur in spite of the original case, because even though there is even more water than there is there, nevertheless, water lying on only seven Tefachim of air is not as lethal as less water lying in nine Tefachim.
(c) The outcome of these two She'eilos is -Teyku.
(a) Rav Shizbi asked Rabah whether someone who widened the mouth of a ten-Tefachim pit is Chayav. Despite the fact that he reduced the Hevel in the pit, he might nevertheless be liable - because he brought the Mazik closer to potential Nizakin.

(b) In the first Lashon, Rav Ashi resolves the She'eilah based on how the animal died - if it dies due to the vapor, he will be Patur (because if anything, he reduced the vapor, minimizing the chances for the animal to come to grief); whereas if it died through the knock, then he is liable, because by extending the mouth of the pit, he increased the chances of this happening, as we explained.

(c) Alternatively, he resolves the She'eilah - by investigating from which side the animal fell into the pit. If it fell in from the side where he dug, he will be held liable, but if it fell from the other side, he will be Patur.

(d) One does not contend with the vapor of a pit which is wider than it is deep, only with the knock (according to Shmuel). Rabah and Rav Yosef disagree over what Rabah bar bar Chanah said in the name of Rebbi Mani, and we do not know who said what. One of them says - that as long as the width of the pit does not exceed its depth, there is vapor; whilst the other says - that as long as the depth does not exceed the width, there is not.

(a) We learned in our Mishnah that if first one partner passes by the well without covering it, and then the second one, the second one is liable. When the Tana says 'passes by' - he means that he uses it. Otherwise, seeing as neither of them used the pit, why on earth would the first one be Patur?

(b) Here too, Rabah and Rav Yosef also disagree over what Rabah bar bar Chanah said in the name of Rebbi Mani regarding from which point the first partner becomes Patur. One of them says he is Patur if he leaves whilst the second partner is using it, the other one says - that he is only Patur when he actually hands him the bucket (with which they used to cover the pit when they had finished using it).

(c) We connect their Machlokes to a Machlokes Tana'im, who present the same opinions in a case where Reuven is drawing water from a pit, and Shimon asks to be allowed to draw. Rebbi Eliezer ben Ya'akov holds that Reuven is only Patur once he has handed Shimon the bucket to cover the pit. The Rabbanan declare him Patur - as long as Shimon is using the pit when he leaves.

(d) The basis of their Machlokes - lies in B'reirah.

1. The Rabbanan exempt Reuven from the moment he sees Shimon using the pit - because they hold 'Ein B'reirah', in which case it is as if Shimon has borrowed the pit from Reuven, exempting Reuven from all liability.
2. Rebbi Eliezer ben Ya'akov considers him liable even then - because he holds 'Yesh B'reirah', in which case, each one drinks from his own section, and Shimon's using his section of the pit does not exempt Reuven from covering his (only since their respective sections are undefined, this means that each one is liable for the whole pit).
(a) Ravina connects this Machlokes Tana'im with another Machlokes between the same disputants in a Mishnah in Nedarim. The Tana Kama there forbids two partners who made a Neder forbidding Hana'ah from each other, to enter their shared Chatzer . Rebbi Eliezer ben Ya'akov says - permits it .

(b) The Rabbanan hold - 'Ein B'reirah', Rebbi Eliezer ben Ya'akov - 'Yesh B'reirah')

(c) Rebbi Elazar states that if Reuven sells Shimon a water-pit, he acquires it as soon as Reuven hands him the bucket, and Rebbi Yehoshua ben Levi states the same with regard to handing Shimon the key, when he is purchasing a house. They cannot be referring to a case where Shimon is acquiring the pit or the house with money - because then, what purpose will the bucket and the key serve?

(d) They must therefore be speaking - when he intends to acquire it by means of a Kinyan Chazakah. It is however, necessary for the seller to first invite the purchaser to make the Kinyan, which is generally done by saying to him 'Lech Chazek u'K'ni'. The Chidush here is that handing him the bucket or the key is equivalent to 'Lech Chazek u'K'ni'.

Next daf


For further information on
subscriptions, archives and sponsorships,
contact Kollel Iyun Hadaf,