Babylonian Talmud

Rodkinson 1918 — source 10, scan section 52

be no partnership, for the act of the first one can be taken into account according to Rabbi's theory only as to injuries; but even according to him as to death, and according to the rabbis* theory as to both injuries and death, it cannot be counted. How, then, can there be a partnership in a pit ? Said R. Jo- hanan: It is possible if both of them together removed a lump of earth from it which completed it to make it ten spans deep. Where are the theories of Rabbi and his colleagues, men- tioned above, stated ? In the following Boraitha: " If one dig a pit nine spans deep and another one complete it to make it ten deep, the latter one is liable. Rabbi, however, says: The latter one only is liable in case of death, and both are liable in case of injuries." What is the reason of the rabbis' theory ? It is written [ibid., ibid. 33] : " And if a ma7i dig a pit," which signifies that it must be by 07ie only. Rabbi, however, explains this passage to mean that it must be dug by a man and not by an ox. The rabbis taught: " If one dig a pit ten spans deep and another one complete it to make it twenty, and still another one make it thirty deep, all of them are liable." There is a contra- diction from what we have learned in the following: " If one dig a pit ten spans deep and another one plaster and lime it (and thereby makes it narrow and increases its vapors), the last one is liable." Shall we not assume that the one case (where all are liable) is according to Rabbi and the other is according to his colleagues ? Said R. Zbid : " Both maybe explained to be according to Rabbi only, thus: The case where all are liable is correct, as stated, and the case where only the last one is liable is where there were originally in it not sufficient vapors even to injure, and the other one by his acts produced so much vapors as to be sufificient both to injure and kill." Rabha said : " If one place a stone at the edge of a pit which is less than ten spans deep and thereby complete its walls to measure ten spans, whether he is responsible or not would raise the same difference of opinion as between Rabbi and his col- leagues stated above." Is this not self-evident? One might say that if one dig one span more in the bottom, and by doing so he increase the vapors to be sufficient to kill, he is liable, 122 THE BABYLONIAN TALMUD. because the vapors produced by him killed the animal; but if he raise the walls at the top (by placing the stone), by which he did not increase the vapors, as they were there already, one might say that he was not liable, because the animal was not killed by the vapors produced by him — he comes to teach us that there is no difference. Rabba bar bar Hana in the name of Samuel bar Martha said : A pit eight spans deep, two of which are filled with water, there is a liability. Why so ? Each span of water equals two of dry ground. The schoolmen propounded a question: If the pit was nine spans deep and only one span of them was filled with water, what is the law — shall we say that as there is only a little water there are no vapors in it, or shall we say that as it is nine spans deep the vapors of the water complete it to make it ten ? Again, if the pit was seven spans deep, three of which were filled with water, what is the law — shall we say that as there is much water in it there are vapors, or because it is not sufficiently deep there are none ? This remains unanswered. R. Shizbi questioned Rabba: ** If one dig a pit ten spans deep and another widen it (toward one direction only), what is the law ?" He answered: " Then he diminished the vapors! " The former rejoined: " But he increased the possibility of being injured ?" Rabba made no answer. Said R. Ashi: " A case of this kind must be examined. If he fell in through the side which was widened, then he surely increased the possibility of falling in, and he is responsible; if, however, he fell in through the other side, then he diminished the vapors, and he is not." It was taught: *' A pit the depth of which is of the same dimensions as its width, Rabba and R. Joseph, both in the name of Rabba bar bar Hana quoting R. Mani, differ as to the decision of those quoted : One holds that there are always vapors (sufficient to kill) therein unless the width exceeds its depth, and one holds that there are no vapors therein unless the depth exceeds its width." ** If one passed by and did not cover it.'* From what time on is he free ? (That we say that the other one was charged with covering it, for the case undoubtedly is that the first one not only passed by but also used the pit; because if not so, then the first one ought to be liable as well, as it was negligence also on his part not to cover it.) As to this the following Tanaim differs: " One Is drawing water from a well and another comes telling him to let him draw water, as soon as he lets him do so. TRACT BABA KAMA (THE FIRST GATE). 123 the liability. of the first ceases. R. Eliezer b. Jacob, however, says that the liability ceases from the moment he delivered him the cover of the well. On what point do they differ ? R. Eliezer b. Jacob holds that the theory of choice * applies to such a case, and each drew water from his own part (and therefore the second is not considered to have borrowed from the first his share, so as to be charged with the care of the whole, and for that reason both are liable in case of damages; but if he accepted the cover, he thereby became charged with the care of the whole), and the rabbis hold that the theory of choice does not apply to such a case. R. Elazar said : One who sells his well, title passes with the delivery of the cover. How was the case ? If he sold it for money, let the title pass by the payment of the money ; if by occupancy, let the title pass by this act ? The case was by occupancy, which requires that he should expressly tell him, " go and occupy and acquire title"; and if he deliv- ered the cover to him, it is considered as if he told him so. R. Jehoshua b. Levi said: One who sells his house, the title passes with the delivery of the keys (as it is the same as the delivery of the cover of the pit). Resh Lakish in the name of R. Janai said: " One who sells a flock of cattle, title passes with the delivery of the Mashkhuk- hith (the drawing-rope). How was the case ? If he drew them (removed them from one place to another), let title pass by this act ? If by delivery, let title pass by doing this ? The case was that he drew them, which requires that the vendor shall tell the vendee expressly, " Draw them and acquire title," and as soon as he delivered the Mashkhukhith it is considered as if he told