Bava Kamma - Daf 52
- The first partner of a bor left it covered and the second found it uncovered
The next Mishnah states: כסהו הראשון – If the first [partner of a bor] covered it, ובא השני ומצאו מגולה ולא כסהו – and the second came and found it uncovered, השני חייב – the second one is liable. The Gemara asks until when the first partner is exempt, and three opinions are given. Rav says: בכדי שידע – He is exempt until enough time passes for him to know the pit is uncovered. Once he sees it uncovered, they again share responsibility. Shmuel says: בכדי שיודיעוהו – Until enough time passes for [people] to inform him the pit is uncovered, even if he did not see it himself. Rebbe Yochanan says: בכדי שיודיעוהו – Until enough time passes for [people] to inform him it is uncovered, וישכור פועלים ויכרות ארזים ויכסנו – and for him to hire workers, cut down cedar trees, and cover it with the wood.
- A cover strong enough for oxen but not for camels, was weakened by camels and oxen fell in
The Gemara asks, if one covers a pit with a cover strong enough to withstand the weight of oxen, but not that of camels, ואתו גמלים וארעוה – and camels came and weakened it by walking on it, ואתו שוורים ונפלי ביה – and oxen came and fell into [the pit], what is the halachah? The Gemara clarifies that the case is where camels are not common (if they were, he would be liable for the negligence), but they do come occasionally. Do we say: פושע הוא דאיבעי ליה אסוקי אדעתיה – he is negligent, because he should have considered the possibility that camels would come and weaken his cover, making it vulnerable even to oxen, or is he considered faultless since they do not commonly come? The Gemara suggests a proof from the Mishnah, which states that if one covered his pit and an animal fell in, he is exempt. If his cover was strong enough for these animals, how did it fall in? It must be where the cover was strong enough for the animal which fell in but was weakened by camels (which occasionally come in the area), and he is still exempt!? The Gemara answers that the cover was adequate, but שהתליע מתוכו – it became wormy from within, unbeknownst to the digger.
- A cover vulnerable to camels, but instead became wormy from within ("מגו")
In another version, the Gemara says the above case is not a question, because he is responsible for the camels which come occasionally. The question was asked (even) where camels are common, but they did not come; והתליע מתוכו – rather, it became wormy from within. Do we say: מגו דהוי פושע אצל גמלים – since he was negligent regarding damaging of the cover by camels, הוי פושע נמי לענין התלעה – he is also considered negligent regarding its becoming wormy? או דלמא לא אמרינן מגו – Or perhaps we do not say, “Since he was negligent, etc.”? The Gemara quotes a Baraisa which teaches that if an ox which is deaf, deranged, young, or blind, or a normal ox walking at night falls into a pit, the owner is liable. But if an intelligent ox falls into the pit, he is exempt, because the ox should have seen where it was going. The Gemara asks, we should say that since he was negligent regarding impaired oxen, he is also considered negligent regarding intelligent oxen!? This proves we do not say, “Since he was negligent, etc.”
