Misva #53: The commandment on the court to judge the damages of a pit

The Torah in Parashat Mishpatim (Shemot 21:33) addresses the case of a person who opens a pit in a public area, and an animal falls in and dies. The person who dug the pit is responsible to compensate the animal’s owner for his financial loss. The Gemara explains that although the person cannot be said to legally own the pit, as it is situated in the public domain, nevertheless, the Torah places it under his ownership so that he can be held responsible to pay. Like the other laws of damage liability, this Halacha demonstrates the Torah’s demand that we live with a sense of responsibility to the people around us, and exercise care in ensuring we do not cause people harm. This command is directed at Bet Din, requiring them to rule these cases appropriately, and hold the guilty party responsible to pay. A person who digs a put in a public area is responsible only for the damages caused to animals who fall into the pit. He is not responsible if a person falls in, because people are expected to watch carefully where they walk. If a person falls into a pit, he is to blame for failing to exercise caution as he walks, and thus he cannot claim damages from the person who dug the pit. For the same reason, the person who made the pit is not responsible for damages caused to utensils, which quite obviously do not travel on their own, but are rather carried by human beings, who are expected to carefully watch where they walk to avoid harm. The person who opened a pit is responsible for damages only if the pit is at least ten Tefahim (handbreadths) deep, because otherwise, it is not considered capable of killing an animal who falls inside. In certain circumstances, a person is allowed to place something in the public domain even though it might pose a hazard. For example, a drain pipe from the roof of a house is allowed to extend into the public domain, since this serves a necessary purpose. Likewise, when building a home, one is allowed to keep building materials piled in the public domain near the building site. Nevertheless, although in these cases the person is allowed to create a potential hazard, he is responsible to pay for damages it causes. The Sefer Ha’hinuch writes that if one needs to erect a foundation around the building site as he constructs a home, and this foundation extends into the public domain, then he is not held responsible for damages it causes. Since this is something which people generally need to do when building, and it is thus necessary for ensuring sufficient housing, people implicitly waive each other’s responsibility for damages caused by these structures.