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Bava Kamma 10

Double digging.

On yesterday’s daf, we encountered a mishnah which taught that when a person who is responsible for safeguarding an object fails to do so, they are responsible for the damage it causes as if they had actively caused the damage themselves. This makes sense. If I am fully responsible for creating unsafe conditions, I bear full responsibility for the consequences of my actions (or, in this case, inactions). 

The second half of that mishnah is not as straightforward:

If I facilitated part of the damage, I am liable for payments for damage it caused, as if I were the one who facilitated the entire damage.

In other words, even if I am only partially responsible for creating the conditions that led to the damage, I am responsible to make restitution for the full amount. This needs further explanation. If I am responsible for only part of the danger, why should I be responsible to pay for all of it?

On today’s daf, the Gemara brings a beraita which seeks to clarify what the mishnah is talking about:

One who digs a pit to a depth of nine (handbreadths), and another comes and completes to ten (handbreadths), only the latter is liable.

A first read of this text suggests that a pit becomes legally dangerous once it is ten handbreadths deep. So the first digger, who only dug to a depth of nine handbreadths, has not created a danger. The second digger, however, although they only dug ten percent of the pit, has deepened the pit past the danger line and bears full responsibility for any damage it causes. Illustrated this way, the second part of the mishnah now appears to make sense.

Not so fast, says the Gemara, there is another opinion for us to consider:

Rabbi Yehuda HaNasi says: The latter is responsible for death, both of them are responsible for damages. 

Rabbi Yehuda HaNasi differentiates between a case where the pit causes death and a case where it causes only non-lethal damage. According to this view, the ten handbreadth depth sets the threshold for culpability for death, so only the second digger is responsible if an animal dies from falling into the pit. But responsibility for injury begins earlier (these texts don’t specify precisely where; there will be more about pits and damages later in the tractate), and so in the case of non-lethal damage, the diggers equally share responsibility.

Rabbi Yehuda HaNasi’s opinion disagrees only only with the first, anonymous opinion in the beraita, but also with the mishnah, which seems to be talking about restitution for any damages and not the more limited case of a fatality. Rav Pappa attempts to resolve this dispute by suggesting that the anonymous opinion is referring only to instances where an animal falls into the pit and dies, and Rabbi Yeuida HaNasi’s opinion is brought simply to remind us that the law for damages is different. But this still does not help us make sense of the mishnah. 

So perhaps the case of a pit dug to the depth of ten handbreadths by two diggers is not the best case to clarify the mishnah. The Gemara is not deterred, and goes on to consider cases of an ox owned by five people, a bench upon which five people are sitting that shatters when a sixth sits down with them, among other possibilities. Will these cases bear fruit? Read on to find out. 

Read all of Bava Kamma 10 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 12th, 2023. If you are interested in receiving the newsletter, sign up here.

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