Based on shiurim by Rav Moshe Taragin

The mishna (9b) suggests a situation in which a person partially contributes to nezek, yet is forced to make full compensation.  In searching for an actual example to fit this description, the gemara suggests the following case:  If one digs a pit of nine tefachim (handbreadths - which has the capacity to cause damage but not to kill) and then someone else completes the extra tefach (endowing the bor with the ability to kill), who should pay? Clearly, the second person should cover the payment for death since HIS action and not former's was the true cause of death.  What about the payments for damages (nezek) if the animal does not actually die?  The gemara cites an argument between Rebbi and Rabanan regarding this case.  Rebbi maintains that the two should share responsibility for the damages, seeing as they each contributed to the bor that finally caused the damages.  Rabanan argue that the final 'digger' must make full payment for the damages while the initial person is completely excused. This position corresponds to the mishna's rule that a person who partially facilitates a nezek might be completely liable.  After all, he is a co-perpetrator of the damages, yet he remits full payment.

Rabanan's Position

How might we better understand the position of Rabanan? Particularly since Rebbi's position seems so logical - they each participated in creating a hazardous bor and each should be held equally liable for subsequent damages.  Granted, regarding potential deaths which might occur, only the final person can be held accountable.  Nevertheless, in what manner might we comprehend the position of Rabanan who obligate the final person to compensate all forms of damages?

Rabbenu Yonatan (cited in the Shitta Mekubetzet 10a) claims that by digging the extra tefach, the second person has 'UNDONE' the work of the first, almost as if he had refilled the pit and dug a new one.  The gemara in BK 29b invokes the same principle regarding someone who disposes refuse into the public domain, thereby creating a bor. If a second person moves the refuse to another location, he has effectively canceled the bor of the first party and created an entirely new entity.  According to Rabbenu Yonatan, Rabanan are invoking a similar concept in our case.  By adding an extra tefach to an already-dug pit, the second person is effectively assuming complete authorship of that bor.  It is as if the first had not contributed at all and the second one alone remains liable. 

         Two questions immediately present themselves regarding this position:

1) Does the logic really hold?  Indeed, if the second person refills the bor or relocates the refuse, he has UNDONE and thereby canceled the efforts of the first.  In our case, however, the second party is not undoing the first's effort but rather adding to it. Therefore, however, it is very hard to completely ignore the efforts of the first person. 

2) The gemara (BK 51) cites a position which might not accord with Rabbenu Yonatan's logic. The gemara claims that even Rabanan who obligate the second party, would admit to one case in which the two people share liability: If one digs ten tefachim and a second person digs another ten, they share the debt.  If indeed, the second digger CANCELS the actions of the first, why should this case be an exception? 

          Evidently, a different logic might be governing Rabanan's position.  The Me'iri explains that, according to Rabanan, the second one is responsible since he endowed the bor with the capacity to kill (a bor less than ten tefachim does not kill).  His actions do not cancel his predecessor's they merely augment them - quantitatively and qualitatively.  What is the logic behind the Me'iri's position?  After all, according to Rabanan, the final digger is obligated to pay for all damages, not only for deaths.  Why should his endowment of the capacity to kill obligate him to fully remunerate damages?

Nature of Bor

A better grasp of the Me'iri's position might necessitate a more complete understanding of the nature of bor.  Shiur #6 addressed the issue of the nature of an owner's obligation to pay for nizkei mammono.  We questioned whether his legal ownership dictates liability, or whether his negligence in watching makes him an accomplice to the crime.  Bor seems to defy each of these categories.  It is very difficult to obligate the bor digger because of his legal ownership, since he does not actually own the pit.  In addition, the said pit happens to be in reshut ha-rabim (public property - see BK 29b, which might be interpreted as establishing a novel category of ownership to cover this problem). Alternatively, his initial negligence only indirectly causes damage, which are the direct result of the actions of the animal that fall in to the pit.  By obligating bor payments, the Torah might have been suggesting a third model for liability: anyone who creates a public hazard and endangers others, pays FOR THE VERY CREATION OF THAT HAZARD.  Even though his association with the actual damage which occurred is very slight, he pays for having created a monster in the first place. The gemara itself might be suggesting as much when it claims that the digger is responsible 'al iskei keriya ve-al iskei peticha' for the actual digging and opening (of the pit) - see BK 49b. By emphasizing these initial perilous acts, the gemara might be reminding us that the digger of the bor does not pay for the damage he (or his possessions) caused, but rather for the VERY ACT of creating a hazard. 

         There might be several interesting halakhot of bor, which might corroborate our suggestion that bor is a unique mazik and that the digger's liability stems from his initial act of endangering others. Take, for example, the fact that one is exempt for compensating for utensils (keilim) which fall into one's pit (the only objects one must remunerate are animals and humans).  Why is this so?  Is this merely a formal or technical dispensation that the Torah affords to bor?  Or might we claim that bor obligates payment only for items which IT naturally and logically endangers (and not items which are actually damaged by them through some strange twist of fate).  Being that keilim are immobile, a bor never represents a hazard to them!  What exactly determines the petur keilim (exemption for utensils)?  Is it the formal status of keilim or the immovability of keilim?  The simplest way to check this question would be to examine keilim which are portable and non-keilim which are stationary.  These two test cases would help determine which of the two factors is dominant in generating the exemption.

The mishna in BK (53a) addresses a situation of an animal which falls into a bor with keilim on its back.  If these keilim were attached to the animal at the time the bor was dug, they were clearly endangered by the bor.  The mishna seems to extend the petur keilim even to these portable items. Does this suggest a more formal understanding of the petur keilim, thus allowing it to apply to any keilim, EVEN portable ones?  The reverse case – non-keilim which are stationary - is addressed by Tosafot (BK 10a). They claim that food is also exempt from bor payments.  This unprecedented extrapolation to food,  might be best understood by assessing the keilim extension as a logical, rather than a formal rule.  We never formally equate utensils and foodstuffs in other areas of halakha (tum'a for example).  If the exemption were purely formal, we would have a hard time justifying this extension. If, however, a bor is exempt from ALL non-portable items which it does not endanger, we would see little room to distinguish between actual keilim and foodstuffs.

         A second halakha which might reflect the unique nature of bor, is the rule regarding land.  The gemara distinguishes between bor and eish.  The latter pays for damages of all items - those which are regularly damaged by it and those which are not.  Bor, however, pays only for 'ra'ui lah' - items which are normally damaged by the bor.  Rashi notes that this gemara refers to land which is damaged by a bor.  He claims that bor is excluded from such payments simply because no such case exists - how could a pit damage land?  The Rashba argues with Rashi's contention and cites a sugya in the Yerushalmi which derives special exemption for land from a pasuk.  Even if circumstances could facilitate the damaging of land through a bor, no payments are obligated.

This exclusion might also signal our prior definition.  A person who digs a pit creates a hazard and for this he is liable.  Items which are not naturally endangered (even if they ultimately are damaged by the bor) are excluded from bor payments.  Land is the epitome of an immovable item which is not naturally endangered by bor.  Accordingly, from a fundamental standpoint - not only a technical one - no payments are obligated. 

         This might serve as the basis for Rabanan's position according to the Me'iri.  In assigning liability, we do not question who caused the ultimate damage, instead, we ask who created the current hazard.  By equipping the bor with the capacity to kill, the second party has created a completely different mazik and as the creator of such a monster, might have to remit full payment for any type of damage.  Had bor been a conventional form of mazik, we might have asked who CAUSED the ultimate damage.  Since bor is unique, we are forced to ask a different question - WHO CREATED THE MAZIK WE SEE BEFORE US?  This question leads us exclusively to the second digger who added the lethal component.

SUMMARY:

We have outlined two different approaches to understanding the position of Rabanan, which entirely obligates the second digger.  Either his actions cancel or nullify those of the first digger and we consider it as if he had dug the entire bor.  Or we attribute full liability to him because he added the lethal destructive component; bor demands an assessment not of who caused damage but who fashioned the monster. 

         Interestingly enough, the gemara itself (BK 51a) searches for a source to justify Rabanan's position (recognizing Rebbi's as more intuitive and less dependent upon a source).  The gemara provides two options which seem to echo the two models we suggested. First, the gemara defines the second digger as one who is 'mesalek ma'aseh rishon,' removing the actions of the first (as if he were filling in and re-digging the bor).  The gemara is somewhat skeptical of this source and responds with a second view: The pasuk writes, "If A PERSON digs a bor ..." suggesting that a bor is attributed to one person and not to two.  The first source clearly reflects the position of Rabbenu Yonatan and forms the basis for his importing the concept into our case. The second source might be more reflective of our second option: being that bor's liability stems from authorship and not causality, we are prone to locate a single author.

Practical Ramifications

The different ways of explaining Rabanan's position might lead to some very interesting practical ramifications.  What, for example, would Rabanan claim regarding a person who augments a bor from six tefachim to seven?  Would exclusive liability for the last digger still be maintained?  Or would they differentiate between the jump from nine to ten and the jump from six to seven?  This issue is debated by the Rishonim with Tosafot (51a) claiming that Rabanan would concede mutual liability in the six-seven case; while the Ra'a (cited by the Shitta Mekubetzet BK 51) claims Rabanan would still focus liability solely upon the second digger.  If the second digger's liability stems from his adding a lethal component and thereby becoming the author of this monster, we would agree with Tosafot and limit Rabanan's position to nine-ten - a case in which a new component was added.  If, however, Rabbenu Yonatan is correct and the very actions of the second digger neutralize the first, we might see little room to distinguish between nine-ten and six-seven. 

         What about a situation in which a person adds a lethal component but in no way nullifies his predecessor's efforts? Would Rabanan maintain full liability for the second party?  Such a situation is raised by the gemara itself in BK 51b when it asks about a second person who instead of digging an extra tefach deep, brings the height of the fall to ten by adding a tefach of wall at the top of the bor.  He has clearly conferred the capacity to kill onto this bor, but has he really imposed himself on the bor and eliminated the efforts of the former?  If he proceeds to dig an extra tefach, we might consider him eliminating the first person. After all, he removed the bottom of the pit uncovered by the first digger thereby establishing a totally new bottom to the pit. If the latter merely adds a tefach of height to the pit, can we apply the principle of 'mesalek ma'aseh rishon?'  By raising this question, the gemara might have been probing our very issue - why do Rabanan place full liability upon the second digger?  Ultimately, the gemara answers that even in this case the second party must pay according to Rabanan but the willingness to consider otherwise is somewhat striking.  Even when it reaches its conclusion the gemara might still be adopting Rabbenu Yonatan's view and merely redefining our case as an example of mesalek ma'aseh rishon. 

         What about an instance in which a person nullifies his predecessor, but does not confer any new threat?  What happens, the same gemara continues, if the second party digs the extra tefach and then fills it in?  His digging the extra tefach might be a cancellation of the efforts of the first digger, but in the final analysis, he has not conferred any new capacity and cannot be called the creator of this new monster.  The gemara does not offer any conclusive answer to this question, reaffirming our sense that indeed there was some debate even at the level of the Amoraim as to how we might understand Rabanan's position.

Rebbi's Position

To conclude, let us return to our point of departure - Rebbi's position.  The stance that initially seemed so obvious must now be reconsidered.  How would Rebbi respond to these explanations of Rabanan's position?  If we adopt Rabbenu Yonatan's approach, Rebbi's response would appear to be clear-cut. The notion of mesalek ma'aseh rishon is inapplicable to our case, and both parties ultimately contribute to the damage. If, however, Rabanan's placement of full liability upon the last digger reflects this novel approach to bor - one which inquires as to the creator of this mazik - what would Rebbi's position assume?  Would he entirely reject this notion, choosing instead a more conventional model for bor, which equally incriminates both diggers?  Or would Rebbi AGREE to Rabanan's structural definition of bor? Indeed, the creator of the ultimate mazik bears liability.  He only questions whom we identify as that author.  Granted, after the efforts of the second party, we have a more dangerous bor on our hands - but is it a completely NEW bor, different from the one we identified a moment earlier?  Do we see the transition from a bor of nine, capable of damaging, to one of ten, capable of killing, as a complete identity transformation?  Or do we recognize the same bor merely equipped with new capacity? Rebbi might have seen the change as gradual rather than dramatic and hence, as far as damages are concerned, the bor we see was crafted by two hands.

         This issue - whether a bor of nine which can damage and a bor of ten which can kill - are two varieties of the same object or completely different items, seems to propel the discussion of the gemara in BK 3a. The gemara initially thought that a bor of nine tefachim should be relegated to the status of tolada, while the position of av is reserved for a bor of ten tefachim.  The Mekhilta de-Rashbi presents an even more extreme hava amina - that a bor of nine tefachim should not obligate payments at all - not as an av nor as a tolada.  Though the gemara and the Mekhilta each retreat from their positions, the concluding statement remains ambiguous: "Sof sof zeh av le-mita ve-zeh av le-nezikin" - each are equal and assume the status of av in their respective roles.  Indeed, they are equal, but are they derivatives of one another or two separate tracks within the world of nezikin?  This question is greatly expounded upon by the Rishonim on BK 3a and affects the manner by which we derive these two tracks.  Do we require separate pesukim for these separate avot or can we assign these categories based upon the same pasuk?  Rashi in his first explanation inclines toward deriving both tracks from the same pasuk.  Tosafot and the Ra'avad cite the Yerushalmi which provides independent pesukim for each of these types of bor.

This question - about the level of integration between the bor of damage and the bor of death - might have been the very issue at the heart of the Rebbi - Rabanan debate.  They might each have adopted our bor model and might each be searching for the creator of the monster we currently face.  Rabanan see a completely NEW and DISTINCT mazik created solely by the second digger.  Rebbi might be viewing this bor of ten tefachim as essentially similar to our original bor and this final product - as the 'beta' version - bears the imprint of the original digger as well.

Mekorot for next week's shiur:

A.  Five People Assigned to Guard an Animal BK 10a

1) 10a "Matkif lah R. Zeira ... ka-avid."

Rashi 10b s.v. Mai, Tosafot s.v. Mai.

Rosh 1:9.

Talmidei Ha-Rashba Ve-Harosh s.v. Piska Hikhsharti.

B.  A Person Who Breaks a Bench on which Others are Sitting BK 10b

1) "Matkif lah Rav Pappa ... nami tava."

Rif 4b "Matkif ... tava."

Rambam Hilkhot Nizkei mammon 6:15.

2) BK 31a Mishna

Rashi 31b Hakhi garsinan (top of page).

Rambam Hilkhot Nizkei Mammon 13:8-9.

3) Nimukei Yosef BK 4b in the Rif's pages s.v. De-zafa.

Tosafot 10a s.v. Kegon.

4) Shittat Ha-kadmonim BK 10b s.v. Lo.

5) Rashi 10b s.v. De-belav ihu.

Questions:

Part A:

1) What is the machloket between Rashi and the Rosh?

2) What new element do the Talmidei Ha-rashba add?

3) Why can a shomer just decide to pick up and leave and rely upon his colleagues to "fill in?"

Part B:

1) How would we explain the Rambam's position which doesn't distribute the payments equally between all the sitters?

2) Do all the sitters have to be overweight?

3) Would we apply the gemara's rule in other forms of hezek - and not just 'Adam?'