THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean

Lesson # 316 (part five, PIT part 3) • Damage caused by a Pit (BOR)

We continue, as we shall IYH for many lessons, the laws of pit in halacha.
We shall now discuss the extent of liability of the person who dug the pit.

1. Regarding animals who were killed by falling into the pit:
a. If the animal is normal and grown, then there is liability if the animal fell in at night.
b. If the animal is normal and grown, there is no liability if the animal fell in during the day.
c. If the animal is young, there is liability if the animal fell in during any time, day or night.

2. Regarding animals that were injured (as distinguished from being killed) by falling into the pit: Reuven is liable, irrespective of whether it is day or night.

3. Regarding persons who fell into the pit:
Reuven is not liable if the person was killed, regardless of the person’s age or mental or physical capacity and whether day or night.
If the person who fell into the pit was injured (as distinguished from being killed)
a. If the person was normal there is liability if the person fell in at night
b. If the person was normal, there is no liability if the person fell in during the daytime.
c. If the person who fell in and was injured was mentally deficient, or a minor, Reuven is liable, whether day or night.
d. If the person who fell in was killed, there is no liability at any time to any person.

Reuven is not liable for any vessels belonging to Shimon that are damaged or destroyed by falling into the pit, regardless of the depth of the pit. This holds true whether the vessels fell into the pit together with the animal or person carrying them or wearing them, or fell by themselves into the pit when the animal or person fell into the pit. Reuven is liable for damage occurring to the ox, but not to the gear on it.

The highway department, when fixing a road, leaves a large uncovered hole in the road. Shimon drives down the road at less than the maximum speed permitted on that particular road. Shimon does not see the hole in the road and drives right into it. Shimon is killed and the car is destroyed. The highway department has no halachic liability since the tort of pit does not compensate for death caused to a person by a pit and also there is no liability for damages done to vessels (the automobile) that fall into a pit. In many countries there may be liability based on local legislation and that may be binding under the doctrine of Dina d'Malchuta Dina, following the laws of the land.

Aryeh tells Reuven to dig a pit, which Reuven does. Shimon falls into the pit and is injured. Reuven is liable, Aryeh is not. [There is a general principle in halacha that if Aryeh instructs Reuven to transgress the law and Reuven does so, Reuven is liable and Aryeh has no liability.] There is an exception if Reuven does not know that the place in which Aryeh instructs him to dig is a public street and Reuven digs there erroneously assuming it is Aryeh’s domain. Aryeh is liable in such a case. Aryeh is also liable if the person he tells to dig the pit is not legally competent, such as a deaf-mute, a mentally deficient person, or a minor.

Instances of non-liability or termination of liability
There are instances where Reuven is not liable for damages caused by the pit that he has dug. Reuven digs a pit in the public street. He then covers the pit with an appropriate cover. Somehow Shimon’s ox fell into the pit and is killed. Reuven is free of liability. Even if the cover was on the pit for some time and became worn out or worm-eaten, Reuven is still not liable. At the time when the law developed an “appropriate cover” was meant to be able to hold the weight of a wagon laden with stones or the traffic that used a public street. Nowadays it would probably mean a cover that could bear the weight of a laden truck. Reuven must anticipate that there might be an extraordinary heavy vehicle that might come through some day, even if it would be remote for such a community. If the cover was appropriate, Reuven is liable, even if the ox fell into the pit was a normal ox. The ox cannot tell the difference between an appropriate cover and one that is not.

Reuven covers his pit with Naftali’s cover without permission from Nafatli. Naftali removes the cover. Reuven is liable for any damage subsequently occurring. Reuven covers his pit with a cover that can bear the weight of oxen but not of camels. Camels are heavier than oxen and are more apt to break of roll the cover away. A camel walks on the cover and weakens it. Then Shimon’s ox walks on the cover and falls into the pit. Reuven’s liability depends upon the frequency of camels coming into that area. If it is unusual, then Reuven is free of liability. If they frequent the area, then he is liable since he should have anticipated the camels coming there and weakening the cover that he placed over the pit. This applies only to Reuven’s liability for causing injury or death of the oxen that fall into the pit after the camels have loosened or weakened its cover. However, should a camel fall into the covered pit, he is liable even of the camels are not frequent passersby in the area. If a cover that is not sufficient to hold a camel becomes worm-eaten and an ox falls into the pit despite the cover, Reuven is not liable. There is also an opinion that Reuven is liable under these circumstances.

IYH in the next lesson we shall discuss a pit involving more than one person and sub categories of pit.

The subject matter of this lesson is more fully discussed in volume X chapter 410 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il