The Open Pit and the Duty to Cover Danger in the Street

Mekhilta DeRabbi Shimon Ben Yochai 21:33

"If a man opens a pit" (Exodus 21:33). I know only of a man; from where a woman? Scripture says "the owner of the pit shall pay," whether a man or a woman. If so, why is "a man" stated? To exclude a minor; "a man" to exclude the Sanctuary. "If he opens." I know only of one who opens; from where one who digs? Scripture says "or if he digs." Let it say "the one who opens," who needs no digging, and if the one who opens is liable, all the more so the one who digs. Were it stated only thus I would have said the one who opens need only cover it, but the one who digs is not liable until he fills it in completely; therefore both "opens" and "digs" are stated. Might one think one who digs and opens on his own property is liable? Scripture says (Exodus 22:4) "and it feeds in another's field": just as that is outside his own domain, so all is outside his domain. Thus he is not liable until he digs in the public domain, or digs in his own domain and opens it onto the public domain. I know only of the one who opens and the one who digs; from where to include one who bought or was given [the pit] as a gift? Scripture says "the owner of the pit shall pay," in any case. Might one think that if he dug and opened and handed it over to the public he is liable? Scripture says "the owner of the pit shall pay": this excludes the one that has no owner. "Pit." I know only of a pit; from where ditches, trenches, cavities, and caves? Scripture says "and there falls into it": anything into which there can be a fall. If so, why is "pit" stated? Just as a pit is deep enough to kill, so all must be deep enough to kill. And how much is enough to kill? Ten handbreadths. "And does not cover it." Thus if he covered it he is exempt. "And there falls into it": only by way of falling, excluding an ox that recoiled at the sound of digging, turned backward, and fell. "An ox or a donkey." Why do I need this? "An ox" and not its equipment, "a donkey" and not its equipment. From here you say: if an ox and its equipment fell in and the equipment broke, or a donkey and its equipment fell in and the equipment tore, he is liable for the animal's damage and exempt for the equipment. The sages of Rabbi Ishmael said: it is stated here "an ox or a donkey," and stated elsewhere regarding the Sabbath (Exodus 23:12) "your ox and your donkey." Just as there other beasts, wild animals, and birds are treated like the ox, so here regarding damages other beasts, wild animals, and birds are treated like the ox.

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