Bava Kamma - Daf 50
- Machlokes if bor is liable in רשות הרבים or רשות היחיד
In a Baraisa, Rebbe Yishmael says that the bor described by the Torah is one whose opening is in רשות הרבים. Rebbe Akiva says the Torah’s bor is where one was mafkir his property but not his bor (i.e., a bor in רשות היחיד, where people may walk up to its edge). Rabbah explains that all agree that one is liable for a bor in רשות הרבים, because the passuk says "כי יפתח" – if a man shall uncover a [covered] pit, and adds "כי יכרה" – or if a man digs a pit, which appears superfluous (since one is even liable for uncovering someone else’s pit), to teach: שעל עסקי פתיחה ועל עסקי כרייה באה לו – that it is based on the matter of opening or digging the pit that [liability] comes to him, without owning it, thus referring to רשות הרבים. Their machlokes applies to a bor in רשות היחיד, for which Rebbe Akiva holds him liable because of the phrase "בעל הבור" – the owner of the pit, implying liability for an owned pit, whereas Rebbe Yishmael exempts him (and the digger of an ownerless pit is called the בעל התקלה – the “master” of the obstacle in his liability). Rav Yosef says that all Tannaim agree that one is liable for a pit in רשות היחיד, and the argument pertains to a bor in רשות הרבים.
- Nechunya, the ditch digger’s daughter and son – כל האומר הקב'ה ותרן הוא
The Gemara relates the story of נחוניא חופר שיחין, Nechunya, the ditch digger (who would dig pits along the roads to make water available to those coming to Yerushalayim for the רגלים), whose daughter fell into a pit. Rebbe Chanina ben Dosa was confident that no harm would befall her, because it was inconceivable that his daughter would be harmed through the very thing he sacrificed himself to provide the public. Still, Rebbe Acha said that his son died from thirst, because the Torah says: "וסביביו נשערה מאד" – and His surroundings are extremely turbulent, teaching שהקב"ה מדקדק עם סביביו אפילו כחוט השערה – that Hashem is exacting with those who surround him, even to within a hairsbreadth. Rebbe Nechunya provides another source: קל נערץ בסוד קדושים רבה ונורא על כל סביביו – Hashem is dreaded in the great counsel of the holy and is awesome over all those who surround Him. Rebbe Chanina said: כל האומר הקב"ה ותרן הוא – Anyone who says Hashem is disregarding of sin, יותרו חייו – his life shall be disregarded! Rather, the passuk describes all Hashem’s ways as משפט – justice.
- If bor is liable for הבלו or חבטו
Rav says: בור שחייבה עליו תורה– Regarding the pit for which the Torah held the digger liable, להבלו ולא לחבטו – his liability is for its foul air, but not for its impact in the fall. The Gemara observes that Rav holds about the damage of impact: קרקע עולם הוא דמזקא ליה – it is the ground of the earth which damaged him, which the digger does not own (as opposed to the foul air, which he generated through digging). Shmuel says: להבלו וכ"ש לחבטו – His liability is for its foul air, and certainly for its impact. The source he is also responsible for the foul air is because the bor of the Torah includes a pit filled with wads of wool, where there is no impact. A practical difference between these opinions is דעבד גובה ברה"ר – where he made an elevation in the public domain, and an animal fell off it. According to Rav, he is not responsible (since there is no foul air is this open area), and according to Shmuel, he is liable for the impact.
