The Evi B. Sitt Edition and Audio Series of the Talmud Bavli, Massechet Baba Kamma, has been generously sponsored in our Daf Yomi program by our good friend and patron, and charter member of our Daf Yomi class, Siyahu Ashar Hakohen, and his dear wife, Rina. With God’s help, may they have continued success, prosperity, blessing in all the work of their hands, good health, happiness, prosperity, and much satisfaction from their children. May they enjoy many years of harmony in the home, tranquility, and peace of mind. Amen, amen.
We begin with the bottom line. Once he gives him the key, the acquisition is complete. If the buyer acquired it with money, the money is the acquisition. If he acquired it through possession, meaning that he performed an act of possession on the house, then that act is the acquisition.
Really, I will tell you that the man performed an act of possession, and then the owner came and said to him, “Go perform an act of possession and acquire it.” The question is: he should have told him before he performed the act of possession, “Go perform an act of possession and acquire it.” Once he gives him the key, however, it is as though he is telling him, “Go perform an act of possession and acquire it.” Therefore, once he performs the act of possession, even though he was not explicitly told to do so, the acquisition is effective.
The Gemara then brings a similar case involving a seller who sells a flock of sheep to his friend. Once he gives over the leading sheep, the acquisition is complete. The term for that sheep comes from the idea of drawing the flock; it is the animal that draws the other sheep toward the shepherd. We will see what exactly it is.
Again, the same question arises: what was the method of acquisition? If the acquisition was through pulling, then it is acquired through pulling. There are two ways to acquire an animal. One way is through pulling. What does that mean? You strike the animal, and it walks a few steps. You hit it, and it moves. That is called pulling, and the buyer should acquire it through that act.
Alternatively, one can acquire the animal through delivery. Pulling acquires the animal even in the seller’s domain. If I enter the seller’s domain with my stick, strike the animal, and it walks a few steps, I have performed an act of pulling, and the acquisition is effective even in the seller’s domain. Delivery, however, means that I actually pull the animal toward myself. That acquisition is effective even in a public domain.
Rashi explains that pulling is effective either in a shared domain or in a private domain, whereas delivery is effective in a public domain. Delivery means that I pull the animal toward myself.
So again, what are you telling me by saying that he had to give him this leading animal? How did he make the acquisition? Either through pulling—he struck it and the animal walked a few steps—or through delivery, in which case he pulled it toward himself.
Rather, the Gemara answers, the acquisition was really made through pulling. He struck the animal with a stick. But normally, before the act of pulling, the seller must tell the buyer, “Go pull it and acquire it.” Until he tells him that, the buyer cannot acquire it.
Once the seller gives over the leading sheep, however, it is as though he told him, “Go pull it and acquire it.” What is this leading sheep? That is a good question. It was translated as a bell. The shepherd stands in front of the sheep and rings the bell—ring, ring, ring—and this causes the animals to come toward him.
Rabbi Yaakov says that it is the goat that goes in front of the flock, and everyone follows that goat. It is therefore the animal that draws the flock; it is like the leader. Once the seller gives that animal to the buyer, it is as though he told him, “Go perform an act of pulling and acquire it.”
The Gemara relates that this was demonstrated by a man from the Galil in the presence of Rav Chisda. When a shepherd becomes angry with his flock, what does he do? He strikes the leading sheep and blinds it. Once the leading sheep is blinded, it walks in a crooked direction, and all the other sheep follow it in that direction and also fall into pits.
Why does the shepherd do this? When he is angry with the flock and wants to punish it, he punishes the leader. Since all the sheep follow the leader, they follow it into the pits.
Rashi explains that there is a sharp goat that goes at the head of the flock. The other sheep follow it. The shepherd blinds the one that draws the flock, causing it to stumble and fall into pits, and the flock follows it.
This is the moral lesson: when God becomes angry with the Jewish people, He appoints leaders who are not good. Those leaders direct the nation in the wrong way, and the nation is consequently punished. Just as a shepherd who becomes angry with his flock punishes the leader of the flock, knowing that the flock will follow the leader into the pits, so too, when God is angry with the Jewish people, He appoints bad leaders, and everyone follows them.
The point of the Gemara, however, is that there is a leading sheep. Once that animal is given over, it is as though the seller told the buyer, “Go perform an act of pulling and acquire it.”
The next Mishnah presents several interesting cases. The first case concerns two partners who own a pit. The first partner covered it, and the second partner came and found it uncovered. If the first partner covered it, how did it become uncovered? The cover became worm-eaten or deteriorated, and eventually fell apart. The second partner saw that it was uncovered and did not cover it.
We can understand why the second partner would be liable. He was a partner, he walked past the pit, saw that it had no cover, and did nothing. The Gemara will ask at what point the first partner’s liability ends and at what point the second partner becomes liable.
The second case is one in which the first partner covered the pit properly, but an ox or a donkey nevertheless fell into it and died. He is exempt. How could an ox fall into the pit if it had been covered properly? The point is that if he covered it properly and, somehow, the animal still fell in, he has fulfilled his responsibility.
The next case is obvious: if he did not cover it properly, and an ox or donkey fell into the pit and died, he is liable.
There is another case. A worker or some other person entered the pit and was working inside it, perhaps deepening or widening it. He was striking the ground with a hammer. As he was banging away, an animal walking beside the pit heard the noise, became frightened, and fell into the pit because of the hammering.
If the animal fell forward, headfirst, into the pit, he is liable. Rashi explains that construction was being done in the pit—deepening it, widening it, or performing some similar work—and an ox was walking along the edge. It heard the hammer and became frightened.
This is true even if it was an intelligent ox. One might have argued that the ox should have watched where it was going. Nevertheless, the noise frightened it, and therefore the owner of the pit is liable. The Gemara will ask why the owner of the pit should have to pay; perhaps the person who was digging and making the noise should be liable. For the moment, however, the assumption is that the animal was walking beside the pit, became frightened by the noise, and fell in.
The Mishnah then says that if the animal fell backward, on its back, into the pit, he is exempt. This follows the opinion of Rav, who says that what kills an animal in a pit is the harmful air in the pit. That is effective when the animal falls in headfirst. When it falls backward, its head remains above the pit, so it is not affected by that harmful air. This applies not only when it falls from the bank of the pit, but even if it falls in from another direction. As long as its head remains above the pit, the owner is exempt.
If an ox carrying earthenware vessels on its back fell into the pit, and the ox died while the vessels broke, or if a donkey carrying vessels fell in and the vessels were torn—for example, its saddle and similar items—the owner is liable for the animal but exempt for the vessels. There is a well-known rule that the owner of a pit is liable for an ox or a donkey, but exempt for vessels.
The Mishnah also discusses an animal that is deaf, an animal that is mentally incompetent, a minor animal, a blind animal, or an animal walking at night. The owner of the pit is liable. He is liable because these animals cannot adequately protect themselves.
The Gemara explains that the law of a pit is that one is liable for an ox but not for a person. A person who falls into a pit is not included in this liability, because a person is expected to watch where he is going. The novel point of the Mishnah is that this exemption applies not only to an adult, but even to a minor child, whether a boy or a girl, and even to a Canaanite servant or maidservant. If any of them falls into the pit, the owner is exempt from paying. The Gemara will explain all these details of the Mishnah.
We learned in the Mishnah the interesting case of the first partner who covered the pit, while the second partner found it uncovered and did not cover it. The law stated in the Mishnah is that the second partner is liable.
First, Rashi explains how the cover was removed even though the first partner had covered the pit. It became worm-eaten or spoiled, deteriorated, and fell apart. The second partner then came to use the pit and found it uncovered. The first partner is no longer liable, while the second partner is liable.
The Gemara asks: until when is the first partner free of responsibility? How long does responsibility rest solely on the second partner? It appears that there will come a point at which the first partner will also again be obligated to cover the pit. At what point does that happen?
The Gemara says, “Until he becomes aware.” According to Rashi, this means that he must physically pass by the pit and see that it is uncovered. Once he sees it with his own eyes, he becomes responsible again. Until he actually sees it, according to Rashi, he is not obligated. But once he walks by and says, “Look at this—the pit is uncovered,” he is responsible to the same degree as the second partner.
Shmuel says that responsibility returns when he is informed. According to Rashi, it is not necessary for him to see the pit with his own eyes. Even if he is at home and does not know what is happening with his pit, once someone comes and tells him, “Your pit is uncovered,” he must get up and cover it.
Nevertheless, he cannot be held liable immediately, because he needs time to respond. He must be given enough time to obtain wood, cut cedar trees, make a cover, and cover the pit. Shmuel adds that merely informing him is not enough; he must be given the amount of time necessary to cut cedar trees, make a cover, and cover the pit.
The second partner is different. The second partner had been using the pit and found it uncovered. He is liable immediately. We do not give him the amount of time needed to cut wood and create a cover. Rashi explains that the first partner was at home, and once he was informed that the pit was uncovered, his reaction time must be taken into account. The second partner, however, was working at the pit. Before walking away, he should have appointed someone to watch the pit so that nobody would fall in, and then he could have gone to make a new cover. Since he walked away without doing so, he is liable immediately.
There are several questions on the interpretation of Rashi. The major question is: what is the difference between his finding out that the pit is uncovered by seeing it himself and his finding out because someone tells him? In either case, there should be a period of time during which he can react.
There is also a difficulty with the wording of Rashi. The Gemara says that responsibility returns when he is informed. If one learns the Gemara literally, it means that someone actually came and told him that the pit was uncovered. But the wording can also sound like a measure of time—the amount of time that would potentially be sufficient for someone to inform him. According to the way Rashi understands it, however, the reference is to an actual report or to his actually seeing the pit. These are the two questions raised on Rashi, but this is his approach.
The Gemara continues: if the pit was covered properly, how could an animal have fallen into it? Rabbi Yitzchak bar Chana answers that the cover deteriorated from the inside. The cover was initially sound, and he did everything properly, but it may have been made of mud, clay, or a similar material rather than metal. It became worm-eaten, spoiled, and rotted until it fell apart.
The Gemara raises the following question. Suppose he covered the pit with a cover that could withstand the weight of oxen, but not the weight of camels. Camels came along and stepped on the cover, weakening it. Then oxen came and fell into the pit. What is the law?
If this was a place where camels were found, the owner should be liable, because he should have anticipated that camels might come and that the cover would have to be built to withstand their weight. If there were no camels in the area, it would not be his fault; he would not have to anticipate that a camel would come, step on the cover, and weaken it for the oxen.
The case in question is one in which camels came intermittently. Sometimes they came, and sometimes they did not. Since they were not present when he made and covered the pit, that is the question: is he liable because camels occasionally came to that place?
Let us formulate the case precisely. He covered the pit with a cover suitable for oxen, but camels came from time to time. The camels came, weakened the cover, and then oxen came and fell into the pit. Is he liable?
The Gemara attempts to bring a proof from the Mishnah: if he covered the pit properly and an ox or donkey fell into it and died, he is exempt. What is the case? If the cover was suitable for both oxen and camels, how could the animal have fallen in? It must be that the cover was suitable for oxen but not for camels. The camels came, weakened it, and then the ox fell in, and the Mishnah nevertheless says that he is exempt.
Perhaps the case is one in which camels are found in the area, in which case he should clearly be liable. Or perhaps there are no camels in the area, in which case it is an accident. It must therefore be a case in which camels come intermittently. The camels came, weakened the cover, and the oxen fell in, yet the Mishnah says that he is exempt. This would seem to prove that since camels were not there at the time he covered the pit, he is exempt even though they occasionally come.
The Gemara rejects the proof. No, the case may really be one in which the cover was suitable both for oxen and for camels. The animal fell in because the cover deteriorated from the inside. Nobody stepped on it. It simply became spoiled internally, and that is why it fell apart. The case has nothing to do with whether camels were present or whether they came intermittently. It is a simple case in which the pit was covered properly, the cover deteriorated, and the owner is exempt. Therefore, there is no proof regarding the case of the intermittent camels.
The Gemara attempts to bring another proof from the latter part of the Mishnah: if he did not cover the pit properly and an ox or donkey fell into it and died, he is liable.
What is the case? If he did not cover it properly for oxen or for camels, it is obvious that he is liable. The Gemara must therefore be discussing a case in which the cover was suitable for oxen but not for camels. If camels are commonly found there, he is negligent, because he should have anticipated their presence. If camels are not found there, it is an accident.
It must be that camels come intermittently. The camels came, weakened the cover, and then oxen came and fell in. If so, the owner should be liable, because he should have anticipated that the camels would come and damage the cover. This would appear to answer our question.
The Gemara rejects that proof as well. No, the case is one in which the cover was suitable for oxen but not for camels, and camels were present there. The camels came and weakened the cover, after which the oxen came and fell in. In that case, the owner is obviously negligent because camels were found in the area, and he should have built the cover strongly enough to withstand them. There is no novel point in the latter part of the Mishnah; it was brought merely because the first part had already discussed covering the pit, and the latter part states the corresponding case of liability. Therefore, it does not provide proof for the question of camels that come only intermittently.
Some present the entire discussion differently. The question is not whether the ox fell because the camel stepped on the cover. The question is this: he dug a pit and covered it with a cover suitable for oxen but not for camels. Camels came occasionally, weakened the cover, and then an ox fell in. The Gemara says that this is not a question; if camels come occasionally, he should have anticipated that possibility.
The real question is whether the principle of responsibility extends to a different cause. The ox did not fall because of the camel. The cover deteriorated from the inside, and that is why the ox fell in. Do we say that since the owner was negligent with regard to camels, because he failed to make the cover strong enough for them, he is also liable when the ox falls in for another reason? Or do we say that, in the final analysis, the reason the ox fell was not his fault? If the camel had caused the ox to fall, he would indeed be liable, but that did not happen.
We return to the Mishnah: if he covered the pit properly and an ox or donkey fell into it, he is exempt. Rabbi Yitzchak bar Chana explains that the animal fell in because the cover deteriorated from the inside.
What is the case? If the cover was suitable for both oxen and camels, and it deteriorated from the inside, it is obvious that he is exempt. What could he have done? It must be that the cover was suitable for oxen but not for camels, and camels were present in the area. Therefore, he would have been liable if a camel had fallen in, but a camel did not fall in. Instead, the cover deteriorated internally and the ox fell in. The Mishnah says that he is exempt.
This appears to show that we do not apply the principle that, since he was negligent with regard to camels, he is also liable for the ox. Rather, the case is as follows: the cover was suitable for oxen but not for camels, camels were present, and the ox fell in—not because of the camels, but because the cover deteriorated internally. The law is that he is exempt.
The Gemara again answers that the cover may have been suitable for everything. It was a strong pit with a strong cover, and the animal fell in because the cover deteriorated internally. What is the novel point? Obviously he is not liable; it was not his fault. The novel point is that one might have thought that he must periodically inspect the cover and strike it to make sure that it remains solid. The Mishnah teaches that once he initially placed a proper cover on the pit, he does not have to suspect that it will later deteriorate. This kind of deterioration is a rare occurrence, and as long as the cover was considered proper when he placed it there, he is exempt.
The Gemara makes one final attempt, from the second part of the Mishnah: if he did not cover the pit properly and an ox or donkey fell into it and died, he is liable.
If he did not cover the pit properly for either oxen or camels, it is obvious that he is liable. It must therefore be that the cover was suitable for oxen but not for camels. If camels were commonly found there, he was negligent and should have built the cover more strongly. If camels were not found there, it was an accident.
It must be that camels came intermittently. The camels came and weakened the cover, but the ox fell in because the cover deteriorated internally. Do we say that, since he was negligent with regard to camels, he is also liable in this case, even though the ox did not fall because of the camels?
The Gemara answers that there is no proof. The case may be one in which the cover was suitable for oxen but not for camels, and camels were commonly found there. The camels came and weakened the cover, and then the oxen fell in. In that case, he is plainly negligent. The latter part of the Mishnah is simply discussing a case in which the cover was not strong enough for the animals that could be expected to come there.
The final proof concerns the intelligence of the ox. The Mishnah says that if the ox was deaf, mentally incompetent, young, blind, or walking at night, the owner of the pit is liable. But if it was an intelligent ox walking during the day, he is exempt. Why? Because the ox should have been able to protect itself. It could have watched where it was going and avoided the pit.
The Gemara asks: why not say that, since the owner was negligent with regard to the pit, he should be liable even when the intelligent ox fell in during the day? The Gemara answers that the ox itself was responsible for failing to watch where it was going. Since the ox was intelligent and walking in daylight, and could have protected itself, the owner is exempt.