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Rambam - 3 Chapters a Day

Hilchot Nizkei Mamon - Chapter Twelve, Hilchot Nizkei Mamon - Chapter Thirteen, Hilchot Nizkei Mamon - Chapter Fourteen

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Hilchot Nizkei Mamon - Chapter Twelve

1

When a person digs a cistern1 in the public domain, and an ox or a donkey falls into it and dies,2 the owner of the cistern is liable and is required to pay the full amount of the damages, as [Exodus 21:34] states: "The owner of the cistern must pay." [This applies] even if the cistern was filled with wads of wool or the like.3 [The intent] is not only an ox or a donkey, but any animal, beast or fowl. An ox and a donkey are mentioned only because these are the commonplace [examples].

א

הַחוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים וְנָפַל לְתוֹכוֹ שׁוֹר אוֹ חֲמוֹר וּמֵת אֲפִלּוּ הָיָה הַבּוֹר מָלֵא גִּזּוֹת שֶׁל צֶמֶר וְכַיּוֹצֵא בָּהֶן הֲרֵי בַּעַל הַבּוֹר חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם שֶׁנֶּאֱמַר (שמות כא לד) "בַּעַל הַבּוֹר יְשַׁלֵּם". וְאֶחָד שׁוֹר וַחֲמוֹר אוֹ שְׁאָר מִינֵי בְּהֵמָה חַיָּה וְעוֹף לֹא נֶאֱמַר (שמות כא לג) "שׁוֹר וַחֲמוֹר" אֶלָּא בָּהוֹוֶה:

2

[The above applies] regardless of whether the person digs a cistern in the public domain,4 he digs it in his own property - but it is open to the public domain or to a domain belonging to a colleague5 - or he digs it in his own property with the opening to his own property, but afterwards, he declares the property - but not the cistern - ownerless.6 In all these instances, [the person who digs the cistern] is liable for the damages suffered. If, however, he declared his domain and the cistern ownerless, or he declared the cistern ownerless [while retaining possession of] his domain, or he consecrated it, he is not liable. [This is derived from the phrase:] "The owner of the cistern will pay." [Implied is that the cistern] must have an owner, while this cistern is ownerless. [Moreover, it cannot be compared to a cistern dug in the public domain,] since at the outset he was permitted to dig [the cistern], because it was on his property.

ב

אֶחָד הַחוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים אוֹ הַחוֹפֵר בּוֹר בִּרְשׁוּתוֹ וּפִתְחוֹ לִרְשׁוּת הָרַבִּים אוֹ פָּתַח לִרְשׁוּת חֲבֵרוֹ אוֹ שֶׁחָפַר וּפָתַח לִרְשׁוּתוֹ וְהִפְקִיר רְשׁוּתוֹ וְלֹא הִפְקִיר בּוֹרוֹ הֲרֵי זֶה חַיָּב בִּנְזָקָיו. אֲבָל אִם הִפְקִיר רְשׁוּתוֹ וּבוֹרוֹ אוֹ שֶׁהִפְקִיר בּוֹרוֹ שֶׁבִּרְשׁוּתוֹ אוֹ הִקְדִּישׁוֹ הֲרֵי זֶה פָּטוּר שֶׁנֶּאֱמַר (שמות כא לד) "בַּעַל הַבּוֹר יְשַׁלֵּם" מִי שֶׁיֵּשׁ לוֹ בְּעָלִים וְזֶה הֶפְקֵר וּבַתְּחִלָּה בִּרְשׁוּת חָפַר מִפְּנֵי שֶׁחָפַר בִּרְשׁוּתוֹ:

3

[The above applies whether the person] dug the cistern himself, it came into being [on his property] through natural means, or it was dug by an animal or a beast.7 Since he is required to fill it up or cover it, and he did not, he is liable for the damages. [Similarly, the above applies] whether the person digs [the cistern himself] or purchases or receives as a present [a domain with a cistern]. This is derived from the phrase:] "The owner of the cistern will pay." [Implied is that if the cistern] has an owner [he is liable].

ג

אֶחָד הַחוֹפֵר בּוֹר אוֹ שֶׁנֶּחְפַּר מֵאֵלָיו אוֹ שֶׁחֲפָרַתּוּ בְּהֵמָה אוֹ חַיָּה הוֹאִיל וְהוּא חַיָּב לְמַלְּאוֹתוֹ אוֹ לְכַסּוֹתוֹ וְלֹא עָשָׂה הֲרֵי זֶה חַיָּב בִּנְזָקָיו. ואֶחָד הַחוֹפֵר אוֹ הַלּוֹקֵחַ אוֹ שֶׁנִּתַּן לוֹ בְּמַתָּנָה שֶׁנֶּאֱמַר (שמות כא לד) "בַּעַל הַבּוֹר יְשַׁלֵּם" מִי שֶׁיֵּשׁ לוֹ בְּעָלִים מִכָּל מָקוֹם:

4

Just as a person who digs [a cistern is liable], so too, is one who opens a cistern that was covered, as [Exodus 21:33] states: "If a person opens a cistern, or if a person digs a cistern." If [an owner] covered up a cistern in an appropriate manner and the cover decayed from within, and [because of this], an ox fell into the cistern and died, the owner is not liable. For the above verse continues: "And he did not cover it." And in this case, he covered it.8 [The following laws apply if the owner] covered [the cistern] with a covering that was strong enough to have oxen tread on it, but was not strong enough to have camels tread on it, camels trod on it and it became weakened, and then oxen trod on it and fell in. If camels are not [usually] found in such a place, [the owner] is not liable,9 for this is considered a factor beyond his control. If camels pass through this place, even infrequently, he is liable.10

ד

אֶחָד הַחוֹפֵר אוֹ הַמְגַלֶּה מָקוֹם שֶׁהָיָה מְכֻסֶּה שֶׁנֶּאֱמַר (שמות כא לג) "כִי יִפְתַּח אִישׁ בּוֹר אוֹ כִּי יִכְרֶה". וְאִם כִסָּהוּ כָּרָאוּי אַף עַל פִּי שֶׁהִתְלִיעַ מִתּוֹכוֹ וְנָפַל לְתוֹכוֹ שׁוֹר וּמֵת פָּטוּר שֶׁנֶּאֱמַר (שמות כא לג) "וְלֹא יְכַסֶּנּוּ" הָא אִם כִּסָּהוּ פָּטוּר. כִּסָּהוּ בְּדָבָר שֶׁיָּכוֹל לַעֲמֹד בִּפְנֵי שְׁוָרִים וְאֵינוֹ יָכוֹל לַעֲמֹד בִּפְנֵי גְּמַלִּים וְהָלְכוּ עָלָיו גְּמַלִּים וְנִתְרוֹעֵעַ וְהָלְכוּ עָלָיו שְׁוָרִים וְנָפְלוּ בּוֹ. אִם אֵין הַגְּמַלִּים מְצוּיִין בְּאוֹתוֹ מָקוֹם הֲרֵי זֶה פָּטוּר מִפְּנֵי שֶׁזֶּה אֹנֶס. וְאִם יָבוֹאוּ שָׁם גְּמַלִּים אֲפִלּוּ לִפְרָקִים הֲרֵי זֶה חַיָּב:

5

If [the cover] decayed from within and oxen fell into [the cistern], [the owner] is not liable. [This applies even when] camels frequent this area, and [the owner] is consider negligent with regard to the camels. Nevertheless, since the oxen fell into [the cistern], because [the cover] decayed [it is considered to be a loss beyond the owner's control].11 The same applies in all similar situations.

ה

הִתְלִיעַ מִתּוֹכוֹ וְנָפְלוּ בּוֹ שְׁוָרִים אַף עַל פִּי שֶׁהַגְּמַלִּים מְצוּיִין שָׁם תָּמִיד וַהֲרֵי הוּא פּוֹשֵׁעַ לַגְּמַלִּים הוֹאִיל וּמֵחֲמָת שֶׁהִתְלִיעַ נָפְלוּ בּוֹ הַשְּׁוָרִים הֲרֵי זֶה פָּטוּר. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:

6

When a person discovers a cistern and covers it, and afterwards uncovers it, the owner12 of the cistern is liable, and the person who [covered and uncovered it] is not liable.13 If, however, he filled [the cistern] with earth and then removed the earth, he [and not the original owner of the cistern] is liable. Since he filled the cistern with earth, the actions of the person who originally [dug the cistern] are considered to have been nullified.14

ו

הַמּוֹצֵא בּוֹר וְכִסָּהוּ וְחָזַר וְגִלָּהוּ בַּעַל הַבּוֹר חַיָּב וְזֶה הָאַחֲרוֹן פָּטוּר. סְתָמוֹ בְּעָפָר וְחָזַר וְהוֹצִיא אֶת כָּל הֶעָפָר זֶה הָאַחֲרוֹן חַיָּב שֶׁכֵּיוָן שֶׁסְּתָמוֹ בְּעָפָר נִסְתַּלְּקוּ מַעֲשֵׂה הָרִאשׁוֹן:

7

[The following rules apply when] a cistern is owned by two partners. If the first passed by and did not cover it, and then the second passed by and did not cover it, the first is liable15 until he gives his buckets16 to the second [partner]. Once he gives his buckets to the second partner to draw water from it, the first is freed of liability, and the second becomes liable. If the first [partner] covered it, and the second partner passed by and saw it uncovered and left it so, he is liable.17 Until when does the second [partner] bear the sole responsibility of covering it? Until the first [partner] becomes aware18 that it is open and has the opportunity to hire workers to cut down trees and cover it. If any animal dies during this time, the second partner alone is liable. If an animal dies afterwards, both [partners] are liable, for they both were negligent.

ז

בּוֹר שֶׁל שְׁנֵי שֻׁתָּפִין וְעָבַר הָרִאשׁוֹן וְלֹא כִּסָּהוּ הַשֵּׁנִי וְלֹא כִּסָּהוּ הָרִאשׁוֹן חַיָּב עַד שֶׁיִּמְסֹר דִּלְיוֹ לַשֵּׁנִי. וּמִשֶּׁמָּסַר דִּלְיוֹ לַשֵּׁנִי לִדְלוֹת מִמֶּנּוּ נִפְטַר הָרִאשׁוֹן וְנִתְחַיֵּב הַשֵּׁנִי לְכַסּוֹתוֹ. כִּסָּהוּ הָרִאשׁוֹן וּבָא הַשֵּׁנִי וּמְצָאוֹ מְגֻלֶּה וְלֹא כִּסָּהוּ הַשֵּׁנִי חַיָּב. וְעַד אֵימָתַי יִהְיֶה הַשֵּׁנִי לְבַדּוֹ חַיָּב. עַד שֶׁיֵּדַע הָרִאשׁוֹן שֶׁהַבּוֹר מְגֻלֶּה וּכְדֵי שֶׁיִּשְׂכֹּר פּוֹעֲלִים וְיִכְרֹת אֲרָזִים וִיכַסֶּנּוּ. וְכָל שֶׁיָּמוּת בּוֹ תּוֹךְ זְמַן זֶה הֲרֵי הַשֵּׁנִי לְבַדּוֹ חַיָּב בּוֹ וְכָל שֶׁיָּמוּת בּוֹ אַחַר זְמַן כָּזֶה שְׁנֵיהֶן חַיָּבִין לְשַׁלֵּם שֶׁהֲרֵי שְׁנֵיהֶן פָּשְׁעוּ בּוֹ:

8

When a person transfers [the responsibility for] his cistern to a watchman, [the watchman] is liable for the damages. If, however, the owner gave it to a deaf mute, a mentally incompetent individual or a minor to watch, the owner is liable. [This applies] even if he left it covered, because it is likely that a cistern will be uncovered, and these individuals are not mentally competent [to know that it must be covered at all times].19

ח

הַמּוֹסֵר בּוֹרוֹ לְשׁוֹמֵר חַיָּב בִּנְזָקָיו. וְאִם מְסָרוֹ לְחֵרֵשׁ שׁוֹטֶה וְקָטָן אַף עַל פִּי שֶׁהָיָה מְכֻסֶּה הֲרֵי הַבְּעָלִים חַיָּבִין שֶׁהַבּוֹר עָשׂוּי לְהִתְגַּלּוֹת וְאֵלּוּ אֵין בָּהֶן דַּעַת:

9

When a person covers his cistern with buckets belonging to a colleague,20 and then the owner of the buckets comes and takes them, the owner [of the cistern] is liable.21

ט

הַמְכַסֶּה בּוֹרוֹ בְּדִלְיוֹ שֶׁל חֲבֵרוֹ וּבָא בַּעַל הַדְּלִי וְנָטַל דִּלְיוֹ בַּעַל הַבּוֹר חַיָּב:

10

[The above laws apply whether] one digs a cistern, a ditch, a cave or a trench. Why does the Torah mention a cistern? [To teach that its depth] must be sufficient to kill. How much is considered sufficient to kill? A depth of ten handbreadths.22 If a cistern was less than ten handbreadths deep23 and an ox or another animal, beast or fowl falls in and dies, [the one responsible for the obstruction] is not liable.24 If the animal is damaged, the one responsible for the obstruction must pay the full extent of the damages.

י

אֶחָד הַחוֹפֵר בּוֹר אוֹ שִׁיחַ אוֹ מְעָרָה אוֹ חָרִיץ. וְלָמָּה נֶאֱמַר (שמות כא לג) "בּוֹר" עַד שֶׁיִּהְיֶה בּוֹ כְּדֵי לְהָמִית. וְכַמָּה כְּדֵי לְהָמִית עֹמֶק עֲשָׂרָה טְפָחִים אֲבָל אִם הָיָה פָּחוֹת מֵעֲשָׂרָה וְנָפַל לְתוֹכוֹ שׁוֹר אוֹ שְׁאָר בְּהֵמָה חַיָּה וְעוֹף וּמֵת פָּטוּר. וְאִם הֻזְּקוּ חַיָּב בַּעַל הַתַּקָּלָה נֵזֶק שָׁלֵם:

11

If a cistern was nine handbreadths deep, and one of those handbreadths was filled with water, [the owner] is liable [if an animal falls in and dies]. [The rationale is] that one handbreadth with water is considered equivalent to two handbreadths without water.25 If [the cistern] was eight [handbreadths] deep and two handbreadths [were filled with] water, or it was seven [handbreadths] deep and three handbreadths [were filled with] water, and an ox or the like fell in and died, [the owner of the cistern] is not held liable to pay [for the death of the animal]. If [the owner of the animal seized [compensation for his loss from the owner of the cistern's property],26 [the property he seized] is not expropriated from him. [The rationale is] that there is a doubt regarding this issue.27

יא

הָיָה עֹמֶק הַבּוֹר תִּשְׁעָה וּמֵהֶן טֶפַח אֶחָד מַיִם חַיָּב. שֶׁהַטֶּפַח שֶׁל מַיִם חָשׁוּב כְּעֹמֶק שְׁנֵי טְפָחִים בַּיַּבָּשָׁה. הָיָה עָמֹק שְׁמוֹנָה וּמֵהֶן שְׁנֵי טְפָחִים מַיִם אוֹ שֶׁהָיָה עָמְקוֹ שִׁבְעָה וּמֵהֶן שְׁלֹשָׁה טְפָחִים מַיִם וְנָפַל לְתוֹכוֹ שׁוֹר וְכַיּוֹצֵא בּוֹ וּמֵת אֵין מְחַיְּבִין אוֹתוֹ לְשַׁלֵּם. וְאִם תָּפַשׂ הַנִּזָּק אֵין מוֹצִיאִין מִיָּדוֹ שֶׁהַדְּבָרִים הָאֵלּוּ יֵשׁ בָּהֶן סָפֵק:

12

When one person digs a cistern ten handbreadths deep, a second person comes and [digs deeper], making it twenty handbreadths deep, and a third person comes and [digs deeper], making it thirty handbreadths deep, they all share in the liability.28 When the first digs even one handbreadth less than ten handbreadths, and another makes it ten handbreadths deep - either by digging another handbreadth deeper or building a rim of a handbreadth at its edge - the latter person [alone] is liable.29 If afterwards he filled up the handbreadth he added or destroyed the rim he built, it is unresolved whether the first person's deed is no longer considered of consequence30 [and therefore, he is not liable,] or whether his actions are still considered significant.31

יב

הַחוֹפֵר בּוֹר עָמֹק עֲשָׂרָה טְפָחִים וּבָא אַחֵר וְהִשְׁלִימוֹ לְעֶשְׂרִים וּבָא אַחֵר וְהִשְׁלִימוֹ לִשְׁלֹשִׁים כֻּלָּן חַיָּבִים. חָפַר הָרִאשׁוֹן פָּחוֹת מֵעֲשָׂרָה אֲפִלּוּ טֶפַח וּבָא הָאַחֲרוֹן וְהִשְׁלִימוֹ לַעֲשָׂרָה בֵּין שֶׁחָפַר בּוֹ טֶפַח אוֹ שֶׁהִגְבִּיהַּ בִּנְיָן עַל שְׂפָתוֹ טֶפַח זֶה הָאַחֲרוֹן חַיָּב. סָתַם טֶפַח שֶׁהוֹסִיף אוֹ שֶׁסָּתַר טֶפַח שֶׁבָּנָה הֲרֵי זֶה סָפֵק אִם כְּבָר נִסְתַּלֵּק מַעֲשֶׂה רִאשׁוֹן אוֹ עֲדַיִן לֹא נִסְתַּלֵּק:

13

[The following rules apply when a person] dug a deep cistern,32 another person came and made it wider, and an ox fell into it and died. If [it is obvious that33 the ox] died because of the air within the cistern, the second person is not liable, for [his act] improved [the quality of] the air.34 If [it is obvious that the ox] died because of the blow [it received], the second person is liable, for [his act] brought closer [the possibility] that this cistern would cause damage.35 Similarly, if the ox fell from the side that the person widened, [and died because of the air of the cistern],36 the second person is held liable despite the fact that [the ox] died from [the cistern's foul] air.37 If [the ox] fell from the side that was dug by the first person, the first person is liable, for the second person improved [the quality of] the air.38

יג

חָפַר הָרִאשׁוֹן בּוֹר עָמֹק וּבָא הָאַחֲרוֹן וְהִרְחִיבוֹ וְנָפַל לְתוֹכוֹ שׁוֹר וּמֵת. אִם מֵחֲמַת הֶבְלוֹ מֵת הָאַחֲרוֹן פָּטוּר שֶׁהֲרֵי מִעֵט הֶבְלוֹ וְאִם מֵחֲמַת חֲבָטוֹ מֵת הָאַחֲרוֹן חַיָּב שֶׁהֲרֵי הוּא הִקְרִיב הֶזֵּק בּוֹר זֶה. וְכֵן אִם נָפַל הַשּׁוֹר מֵאוֹתוֹ הַצַּד שֶׁהִרְחִיב הָאַחֲרוֹן הָאַחֲרוֹן חַיָּב שֶׁהֲרֵי הִקְרִיב הֶזֵּק בּוֹר זֶה אַף עַל פִּי שֶׁמֵּת מִן הַהֶבֶל. וְאִם מִן הַצַּד שֶׁחָפַר הָרִאשׁוֹן נָפַל הָרִאשׁוֹן חַיָּב שֶׁזֶּה הָאַחֲרוֹן מִעֵט הֶבְלוֹ:

14

The liability that the Torah imposed for [damages caused by falling into] a cistern applies even when the animal died merely because of the [foul] air within the cistern. Needless to say, it applies when the animal dies because of the blow it received.39 If the width of the cistern was the same as its depth, it will not have [foul] air. Thus, if the animal did not receive a blow [when it fell] and yet it died, [the owner of the cistern] is not liable.40 If the depth exceeds its width, it has [foul] air. If an animal dies [after falling in], [the owner] is liable, even though it did not receive a blow from the bottom [of the cistern].41

יד

בּוֹר שֶׁחִיְּבָה עָלָיו הַתּוֹרָה אֲפִלּוּ לֹא מֵתָה הַבְּהֵמָה אֶלָּא מֵהֶבְלוֹ וְאֵין צָרִיךְ לוֹמַר אִם מֵתָה מֵחֲבָטוֹ. לְפִיכָךְ אִם הָיָה עֹמֶק הַבּוֹר כְּרָחְבּוֹ אֵין לוֹ הֶבֶל. וְאִם לֹא נֶחְבְּטָה בּוֹ הַבְּהֵמָה וּמֵתָה פָּטוּר. הָיָה עָמְקוֹ יֶתֶר עַל רָחְבּוֹ יֵשׁ לוֹ הֶבֶל וְאִם מֵתָה בּוֹ הַבְּהֵמָה חַיָּב אַף עַל פִּי שֶׁלֹּא נֶחְבְּטָה בְּקַרְקָעִיתָהּ:

15

[The following rules apply when] a person erects a high mound in the public domain, and an animal receives a blow from it and dies.42If [the mound] was ten handbreadths high, he is liable to pay [for the damages]. If it was less than ten handbreadths high, he is not liable if the animal dies. If, however, an animal is merely injured, he is liable for the full extent of the damages. Even if a mound is of minimal height, or one digs [a pit of] minimal depth, [and an animal is injured, one is liable]. For it is a frequent occurrence for injuries to be caused by a mound or a pit of minimal height or depth. For [an animal] to die because of such a mound or pit is not a frequent occurrence; it is considered to be an event beyond one's control.43

טו

עָשָׂה תֵּל גָּבוֹהַּ בִּרְשׁוּת הָרַבִּים וְנֶחְבְּטָה בּוֹ הַבְּהֵמָה וּמֵתָה. אִם הָיָה גָּבוֹהַּ עֲשָׂרָה טְפָחִים חַיָּב לְשַׁלֵּם. וְאִם הָיָה פָּחוֹת מֵעֲשָׂרָה פָּטוּר עַל מִיתַת הַבְּהֵמָה. אֲבָל אִם הֻזְּקָה בִּלְבַד חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם. וַאֲפִלּוּ בְּתֵל גָּבוֹהַּ כָּל שֶׁהוּא אוֹ בַּחֲפִירָה כָּל שֶׁהִיא. שֶׁהַנֵּזֶק בְּכָל שֶׁהוּא דָּבָר מָצוּי וְיָדוּעַ וְאֵין הַמִּיתָה בְּכָל שֶׁהוּא מְצוּיָה וַהֲרֵי הוּא כְּמוֹ אֹנֶס:

16

Similarly, a person is not liable for the death of an animal that [fell] into a cistern or that received a blow from a mound unless the animal was small, a deaf mute or mentally incompetent,44or it was blind, or it fell at night.45 If, however, the animal was mentally competent, and it fell into [the cistern] during the day, [the owner of the cistern] is not liable. This is considered like an event beyond a person's control. For it is the ordinary practice for an animal to see where it is going and to avoid obstacles. Similarly, if a human fell into the pit and died, the owner is not liable.46 This applies even if he was blind or fell at night,47 and regardless of whether he was a free man or a servant. If a mentally competent human or animal suffered injury because of [the cistern], [the owner] is liable for the full extent of the damages,48 as explained [in the previous halachah].49

טז

וְכֵן אֵינוֹ חַיָּב עַל מִיתַת הַבְּהֵמָה בְּבוֹר אוֹ עַל חֲבִיטָתָהּ בְּתֵל. אֶלָּא אִם הָיִתָה הַבְּהֵמָה קְטַנָּה אוֹ חֵרֶשֶׁת אוֹ שׁוֹטָה אוֹ סוּמָא אוֹ שֶׁנָּפְלָה בַּלַּיְלָה. אֲבָל אִם הָיְתָה פִּקַּחַת וְנָפְלָה בַּיּוֹם וּמֵתָה פָּטוּר שֶׁזֶּה כְּמוֹ אֹנֶס מִפְּנֵי שֶׁדֶּרֶךְ הַבְּהֵמָה לִרְאוֹת וְלָסוּר מִן הַמִּכְשׁוֹלוֹת. וְכֵן אִם נָפַל לְתוֹכוֹ אָדָם וּמֵת אֲפִלּוּ הָיָה סוּמָא אוֹ שֶׁנָּפַל בַּלַּיְלָה בֵּין שֶׁהָיָה בֶּן חוֹרִין אוֹ עֶבֶד הֲרֵי זֶה פָּטוּר. וְאִם הֻזַּק בּוֹ הָאָדָם אוֹ הַבְּהֵמָה הַפִּקַּחַת חַיָּב נֵזֶק שָׁלֵם כְּמוֹ שֶׁבֵּאַרְנוּ:

17

If an ox that had been consecrated as a sacrificial offering and then disqualified50 fell into [the cistern] and died, the owner is not liable.51 [This law is derived as follows. Exodus 21:34] states: "The dead body will belong to [its owner]." [The liability for the animal's death stated in the verse applies only] when the dead body belongs to [the owner].52 This excludes the case at hand, for it is forbidden to benefit from [the body of this animal], and it must be buried.53

יז

נָפַל לְתוֹכוֹ שׁוֹר פְּסוּלֵי הַמֻּקְדָּשִׁין וּמֵת הֲרֵי זֶה פָּטוּר שֶׁנֶּאֱמַר (שמות כא לד) "וְהַמֵּת יִהְיֶה לּוֹ" מִי שֶׁהַמֵּת שֶׁלּוֹ יָצָא זֶה שֶׁהוּא אָסוּר בַּהֲנָאָה וְדִינוֹ שֶׁיִּקָּבֵר:

18

[The following laws apply when] a person was digging a cistern and the noise of the digging caused an animal to fall into the pit and die. If [the animal] fell forwards, [the owner of the cistern] is liable. If it fell backwards - i.e., it was startled [by the sound] and retreated and then fell - [the owner] is not liable. [The latter law is derived as follows. Exodus 21:33 states: "When an ox...] falls," [implied is that for the person to be liable], the ox must fall in an ordinary manner.54 If [the animal] fell forward outside the cistern because of the sound of the digging and died, the court does not hold the owner of the cistern liable.55 If the person [whose ox died] seizes property [belonging to the owner of the cistern], it is not expropriated from him. If [the animal] fell backward outside the cistern and died or was injured, the owner of the cistern is not liable.

יח

הָיָה חוֹפֵר בַּבּוֹר וְנָפְלָה הַבְּהֵמָה בְּתוֹךְ הַבּוֹר מִקּוֹל הַחֲפִירָה וּמֵתָה. אִם נָפְלָה מִלְּפָנֶיהָ חַיָּב. מֵאַחֲרֶיהָ כְּגוֹן שֶׁנִּבְעֲתָה וְחָזְרָה עַל עֲקֵבָהּ לְאָחוֹר וְנָפְלָה וּמֵתָה פָּטוּר שֶׁנֶּאֱמַר (שמות כא לג) "וְנָפַל" עַד שֶׁיִּפּל דֶּרֶךְ נְפִילָה. נָפְלָה לְפָנֶיהָ מִקּוֹל הַחֲפִירָה חוּץ לַבּוֹר וּמֵתָה אֵין בֵּית דִּין מְחַיְּבִין אוֹתוֹ. וְאִם תָּפַשׂ הַנִּזָּק אֵין מוֹצִיאִין מִיָּדוֹ. וְאִם נָפְלָה לַאֲחוֹרֶיהָ חוּץ לַבּוֹר וּמֵתָה אוֹ הֻזְּקָה בַּעַל הַבּוֹר פָּטוּר:

19

[The following rules apply when] an ox pushes another animal into a cistern and it dies. If [the ox] is mu'ad,56 the owner of the cistern is required to pay half [the damages], and the owner of the ox the [other] half.57 If [the ox] is tam, the owner of the ox must pay one-fourth [of the damages] from the body of the ox,58 while the owner of the cistern must pay three-fourths of the damage from his most choice property. For the owner of the dead animal may say to the owner of the cistern: "You owe me for the depreciation in value of this dead animal. Although it was a mature animal and mentally competent, it is as if it fell at night.59 I will collect whatever I can from the owner of the ox. You are liable to pay me the remainder."60

יט

שׁוֹר שֶׁדָּחַף בְּהֵמָה לְתוֹךְ הַבּוֹר וּמֵתָה. אִם מוּעָד הוּא בַּעַל הַבּוֹר מְשַׁלֵּם מֶחֱצָה וּבַעַל הַשּׁוֹר מֶחֱצָה. וְאִם תָּם הוּא בַּעַל הַשּׁוֹר מְשַׁלֵּם רְבִיעַ מִגּוּפוֹ וּבַעַל הַבּוֹר מְשַׁלֵּם שְׁלֹשָׁה חֲלָקִים מִן הַיָּפֶה שֶׁבִּנְכָסָיו. שֶׁבַּעַל הַנְּבֵלָה אוֹמֵר לְבַעַל הַבּוֹר פְּחַת נְבֵלָה זוֹ יֵשׁ לִי אֶצְלְךָ אַף עַל פִּי שֶׁהִיא גְּדוֹלָה וּפִקַּחַת כֵּיוָן שֶׁנִּדְחֲפָה הֲרֵי זוֹ כְּמִי שֶׁנָּפְלָה בַּלַּיְלָה כָּל שֶׁאֲנִי יָכוֹל לְהוֹצִיא מִבַּעַל הַשּׁוֹר אֲנִי מוֹצִיא וְהַשְּׁאָר אַתָּה חַיָּב לְשַׁלְּמוֹ:

20

Similarly, if a person places a stone at the edge of a cistern, and an ox stumbles over it and falls into the cistern and dies, the person who placed the stone there must pay [half the damages],61 and the owner of the cistern must pay the [other] half.

כ

וְכֵן הַמַּנִּיחַ אֶבֶן עַל פִּי הַבּוֹר וּבָא הַשּׁוֹר וְנִתְקַל בָּהּ וְנָפַל לַבּוֹר וּמֵת. הַמַּנִּיחַ אֶת הָאֶבֶן מְשַׁלֵּם מֶחֱצָה וּבַעַל הַבּוֹר מֶחֱצָה:

21

Similarly,62 [the following laws apply when] an ordinary ox and an ox that was consecrated as a sacrifice and then disqualified gored another ox together. If the ordinary ox is a tam, [its owner] should pay half the damages. If it is mu'ad, [its owner] must pay the entire damages. [The entire burden falls on this person,] because the owner of the ox that suffered the damage will say to him: "I will collect all that I can from the other ox, and you are liable for the remainder. In this instance, since the other ox is consecrated and therefore [its owner is] not held liable,63 you must pay me the entire amount."

כא

וְכֵן שׁוֹר שֶׁל הֶדְיוֹט וְשֶׁל פְּסוּלֵי הַמֻּקְדָּשִׁין שֶׁנָּגְחוּ כְּאֶחָד. אִם תָּם הוּא זֶה שֶׁל הֶדְיוֹט מְשַׁלֵּם חֲצִי נֵזֶק וְאִם מוּעָד נֵזֶק שָׁלֵם. שֶׁהַנִּזָק אוֹמֵר לוֹ כָּל שֶׁאוּכַל לְהוֹצִיא מִזֶּה אוֹצִיא וְהַשְּׁאָר מִמְּךָ וְזֶה הוֹאִיל וְהֶקְדֵּשׁ הוּא וּפָטוּר אַתָּה תְשַׁלֵּם לִי הַכּל:

22

When a person was digging a cistern in the public domain, and an ox fell upon him and killed him, the owner of the ox is not liable.64 If the ox dies, the owner of the ox may collect the value of his ox from the heirs of the owner of the cistern.65

כב

מִי שֶׁהָיָה חוֹפֵר בּוֹר בִּרְשׁוּת הָרַבִּים וְנָפַל עָלָיו שׁוֹר וַהֲרָגוֹ. בַּעַל הַשּׁוֹר פָּטוּר. וְאִם מֵת הַשּׁוֹר נוֹטֵל בַּעַל הַשּׁוֹר דְּמֵי שׁוֹרוֹ מִיּוֹרְשֵׁי בַּעַל הַבּוֹר:

Footnotes
1.

The Rambam has completed his discussion of the first two general categories of damages: grazing and goring. He now goes on to the third category. The damages caused by a cistern.Payment of these damages is also considered one of the Torah's 613 mitzvot (Sefer HaMitzvot, Positive Commandment 238, and Sefer HaChinuch, Mitzvah 53). This mitzvah can be defined as compensating a person for the death or damage to animals he owns that came as a result of an object owned by another person, which serves as a stumbling block.

2.

The Rambam's wording is taken from Exodus 21:33.

3.

In which case the death of the animal was not caused by its fall, but by the foul air of the cistern. Even so, the owner of the cistern is held liable.

4.

Although the cistern does not actually belong to him - for it is in the public domain - since he dug it without permission, the Torah holds him liable for the damages as if it were his own.

5.

Since the opening of the cistern is accessible to others, its owner should have taken precautions and made certain that it was covered.The Tur (Choshen Mishpat 410) maintains that this applies only until the owner of the adjoining courtyard is made aware of the cistern's presence. Once the owner of the courtyard knows about the presence of the cistern, he is liable.

6.

Since he declared the property ownerless, the cistern is accessible to others and therefore should be covered.

7.

This applies even when the cistern was dug by an animal belonging to someone else. As long as a cistern accessible to the public exists within a person's domain, he is liable to cover it. Moreover, the Tur and the Ramah (Choshen Mishpat 410:4) add that even if the cistern is dug by another human being, the owner of the cistern is liable for any damages caused as soon as he discovers it.

8.

From this, Ki'nat Eliyahu draws the conclusion that the owner is not required to check the cover continually to see that it is strong enough to serve its purpose.

9.

The Tur and the Ramah (Choshen Mishpat 410:23) state that if, however, a camel falls into the cistern, the owner is liable. This is not considered a factor beyond his control.

10.

For he should have protected against such a possibility.

11.

The Ra'avad objects to the Rambam's ruling, explaining as follows: As mentioned in Chapter 2, Halachah 15, even though ultimately damage was caused because of forces beyond one's control, if one has been negligent at the outset, one is liable. Therefore, in this instance, although the decay of the cover is considered to be beyond the owner's control, since he had been negligent in not covering the cistern with a cover strong enough to support camels, he should be held liable.The Maggid Mishneh justifies the Rambam's ruling, explaining that the above principle applies when the negligence can, at least to a certain extent, be considered a cause of the loss suffered by forces beyond one's control. In this instance, however, the fact that the cover was not sufficient to support camels can in no way be considered a cause of the decay of the cover.The Maggid Mishneh's resolution is accepted by the Shulchan Aruch (Choshen Mishpat 410:24). Note the Tur and the Ramah, who develop the latter principle further.

12.

I.e., the one who dug the cistern in the public domain, who is held responsible for its damages.

13.

For he has merely returned the situation to its original state.Note the comments of the Maggid Mishneh, who - in response to the objections of the Ra'avad - explains that this law applies even when the owner saw the other person covering the cistern. The owner should know not to rely on a person who is not the cistern's owner (Sefer Me'irat Einayim 410:3).

14.

It is as if the second person had dug the cistern himself (ibid.:4).

15.

It appears that the Rambam's intent is that only the first partner is liable. Rabbenu Asher and his conception is quoted by the Tur and the Ramah (Choshen Mishpat 410:25) explains that since both partners saw the cistern uncovered, they are both liable. The Talmud's intent by saying the first is liable, is that he must share in the liability. He cannot excuse himself by saying: Since the other partner saw it after me, he must bear the entire responsibility.

16.

Note the Lechem Mishneh who, based on Halachah 9, explains that the buckets were used as the covering for the cistern. See the commentaries of Rashi and Rabbenu Chanan'el on Bava Kama 51b.

17.

The Tur and the Ramah (Choshen Mishpat 410:26) explain that the second partner is also given time to hire workers to cover the cistern.

18.

The Ra'avad interprets the Rambam's words as meaning until he would ordinarily know, while the Maggid Mishneh explains that the intent is until he actually finds out.

19.

The Ra'avad objects to the Rambam's ruling, explaining that if the cistern is covered thoroughly, the owner is not held liable. The Maggid Mishneh upholds the Rambam's ruling, and Sefer Me'irat Einayim 410:45 explains that furthermore, we have reason to believe that the mentally incompetents opened the covering themselves.

20.

That were taken without his colleague's permission.

21.

For he should have taken into consideration the possibility that the owner of the buckets would take them back. The owner of the buckets is not obligated to notify him.

22.

For a cistern is usually at least ten handbreadths deep, while the others may not be that deep.See parallels to this ruling in Hilchot Shechitah 9:8 and Hilchot Rotzeach 3:7.

23.

Even if its depth is small, if it presents a difficulty that could cause an animal to stumble and suffer damage, the owner is liable (Maggid Mishneh). See Halachah 15.

24.

For under ordinary circumstances, a fall of less than ten handbreadths will not cause an animal to die.

25.

The rationale is that the water impairs the quality of the air in the cistern and hastens the animal's death.

26.

See Chapter 1, Halachah 11 and notes.

27.

Therefore, the money is allowed to remain in the possession of the litigant - either the owner of the pit or the owner of the animal - in whose possession it is at the time the matter is brought to court.

28.

Since each of them dug an amount sufficient to cause death, the damages are equally divided among them.

29.

He is solely liable both for damages and for death. The rationale is that the original cistern was not deep enough to cause death. Hence, when the second person deepened it, making it deep enough to cause death, he is considered to have brought into being a new entity for which he alone is liable if it causes damages.

30.

According to this view, once the second person deepened the cistern, it is considered to be his handiwork entirely, as if the first person no longer had any connection to it. Therefore, the second person has the responsibility of covering the cistern, and paying for any damages that might be caused.

31.

Therefore, neither of the people who dug the cistern can be held liable. According to the views that maintain that a person who seizes property when an unresolved doubt exists is allowed to maintain possession, if the person whose property was damaged seizes property from either or both of the persons who dug the cistern, he is entitled to maintain possession (Sefer Me'irat Einayim 410:33).

32.

I.e., ten or more handbreadths deep.

33.

This addition is made based on the comments of Sefer Me'irat Einayim 410:24. It helps reconcile the difficulties with the Rambam's interpretation mentioned in the notes that follow.

34.

By widening the cistern, he enabled more fresh air to circulate.

35.

By widening the cistern, he made it more likely that an animal would fall in. Therefore, he is considered to be the owner of the cistern and is held responsible for the damages, even when the animal fell from the other side.

36.

This addition is made on the basis of the comments of Sefer Me'irat Einayim 410:25.

37.

And the second person improved the quality of the air. Nevertheless, he is held liable, because had he not widened the cistern, it is possible that the ox would not have fallen in.

38.

The Rambam's ruling has attracted the attention of the commentaries, because it appears to fuse together two dissenting Talmudic opinions (Bava Kama 51b). As the Maggid Mishneh explains, according to the first of the opinions mentioned in that passage, it appears that what is significant is whether the animal died because of the blow it received or because of the foul air in the cistern, while according to the second opinion, what is significant is the side from which the animal fell.The Kessef Mishneh reconciles the Rambam's interpretation, explaining that the Rambam did not see the two interpretations as being contradictory, for if that were the case, each one could be refuted by an obvious question. According to the first opinion: Why would the first person be held liable if the ox died because of the air in the cistern if the ox fell in from the side that the other person widened? Had he not widened it, the ox might not have fallen in.According to the second opinion, the question arises: Since the second person's action makes him liable if an ox falls in, what difference does it make from which side it fell.For these reasons, the Rambam maintains that the two opinions are complementary. See the D'rishah (Choshen Mishpat 410), which offers an alternate resolution of the Rambam's view. Rabbenu Asher, the Tur, and the Ramah (Choshen Mishpat 410:16) differ with the Rambam and follow the second opinion, which maintains that the liability depends on the side from which the ox fell.

39.

This ruling is the subject of a difference of opinion among the Sages of the Talmud (Bava Kama 50b). The Rambam accepts the opinion of the sage Shmuel.

40.

For the animal is considered to have died because of forces beyond the owner's control (Sefer Me'irat Einayim 410:28).

41.

I.e., there were substances at the bottom of the cistern that cushioned the animal's fall (Tur, Choshen Mishpat 410).

42.

The Rambam's wording is carefully chosen. As opposed to the owner of a cistern, who can be held liable whether the animal dies from the blow it receives or from the foul air, a person who erects a mound can be held liable only when the animal dies because of the blow it receives.

43.

See Hilchot Chovel UMazik 1:18.

44.

In all three of these instances, the person who dug the cistern or who erected the mound is liable, for the animal is considered to be mentally incompetent and unable to appreciate the danger that the cistern or mound could cause.

45.

In these instances, although the animal was mentally competent, since it could not see the cistern or the mound, it was unable to appreciate the danger.

46.

This is a decree of Torah law. Commenting on Exodus 21:33: If an ox or a donkey fall into it, Bava Kama 28b, 52a states: An ox' and not a man, a donkey,' and not utensils.

47.

For the leniency is not a result of the fact that a person takes care while walking, but a result of the Torah's decree.

48.

Although the owner must pay the full extent of the damages, he is not liable for the medical treatment, pain, embarrassment, and loss of employment suffered by the person, as stated in Chapter 14, Halachah 15.

49.

With regard to an injury suffered by a human being, Tosafot, Bava Kama 27b explains that the Torah freed the owner of a cistern from liability only when a person died because of a fall (as is the case in the verse cited above), and not when he became injured. Even if the injury is suffered during the day, the person is liable, because it is not common for a person to look carefully at the road on which he is walking.With regard to an injury suffered by an animal, the Rambam's ruling is the subject of a difference of opinion among our Rabbis. The Ra'avad maintains that just as the owner of the cistern is not liable for the death of a mentally competent animal that falls during the daytime, he is not liable for its injury.The Maggid Mishneh justifies the Rambam's ruling, explaining that although an animal may act with caution with regard to obstacles that can cause more severe damages, it will not be as sensitive with regard to obstacles that can cause lesser damages. The Shulchan Aruch (Choshen Mishpat 410:20) quotes the Rambam's view, while the Tur and the Ramah follow that of the Ra'avad. Note, however, the ruling of the Shulchan Aruch (Choshen Mishpat 412:3), which appears to follow the approach of the Ra'avad.

50.

E.g., an animal that suffered a disqualifying physical blemish after being consecrated. This law applies even in the present age, with regard to a firstborn animal.

51.

In Hilchot Chovel UMazik 6:16, the Rambam states that this leniency applies even when the animal is merely injured.

52.

And he is permitted to benefit from it.

53.

Note the Ra'avad, who states that this leniency applies even when the disqualified animal has already been redeemed by its owner. Although the Rambam's wording does not appear to include such an instance (for then, it is permitted to benefit from the animal), the Maggid Mishneh states that he would accept the Ra'avad's ruling.

54.

The Ra'avad questions the Rambam's ruling, because it appears to contradict the understanding of Bava Kama 52b-53a. First of all, the Talmud explains that this matter is dependent on a difference of opinion between Rav and Shmuel. In Halachah 15, the Rambam rules according to Shmuel, while here his ruling appears closer to that of Rav. According to the Ra'avad, if the animal fell backwards into the cistern, the owner of the cistern is not held liable, but if the owner seizes property belonging to the other, it is not expropriated from him.The Rambam's interpretation of this passage is obviously problematic. In his Commentary on the Mishnah (Bava Kama 5:6), his interpretation also appears to differ from this halachah. There he writes that if the ox falls backwards into the cistern, the owner of the cistern is liable. If he falls backwards outside the cistern, the owner of the cistern is not liable. This understanding is reflected in the ruling of the Shulchan Aruch (Choshen Mishpat 410:31).

55.

For the animal died because of the blow it received from the land in the public domain, and not that of the cistern. The Ra'avad differs with regard to this clause as well and maintains that the property of the cistern's owner may not be seized. The Shulchan Aruch (Choshen Mishpat 410:31) also follows that understanding.

56.

In which case, its owner is ordinarily responsible for the full extent of the damages it causes.

57.

The ox that pushes the animal and the cistern into which it fell are considered equally responsible for the damage. Had the ox not been pushed, it would not have fallen. Had the cistern not been uncovered in the public domain, the ox would also not have fallen.

58.

For the owner of an ox that is tam is required to pay half of the damages (in this case, half of a half), and that payment can be expropriated only from the body of the ox that did the damage. If the ox is not worth that amount, the owner is not obligated to pay any more.

59.

I.e., one cannot say that the animal should have avoided the obstacles.

60.

For had the cistern not been there, the animal would not have died.

61.

As explained in the following chapter, placing any obstacle in the public domain is a derivative of digging a cistern and causes one to be liable for the damages suffered. In this instance, the person who placed the stone and the one who dug the cistern are considered to be partners in this liability, for were it not for the stone, the animal would not have fallen. And were it not for the cistern, the fall would not have resulted in its death.

62.

This is another example of a case where two people are considered to be partners in damage that is caused. Each is considered to be liable for the entire amount. Nevertheless, since the person whose property was damaged does not have to receive more than the amount he lost, the loss is divided between the two (Bava Kama 53a). In this instance, as in Halachah 19, the owner of the dead animal cannot collect from the owner of the ox that was disqualified as a sacrifice. Hence, he collects the entire amount from the owner of the other ox.

63.

See Chapter 8, Halachah 1, from which it is evident that the present halachah refers to an ox that was consecrated, disqualified, but not redeemed as yet.

64.

I.e., he does not have to pay an atonement fine, nor is the ox stoned, as reflected by the ruling in Chapter 10, Halachah 9. The person digging the cistern is considered to be negligent, and the fact that the ox fell is his responsibility.

65.

See Hilchot Malveh V'Loveh 11:4.

Hilchot Nizkei Mamon - Chapter Thirteen

1

When utensils fall into a cistern and break, the owner of the cistern is not liable.1 [This is derived from Exodus 21:33, which] states: "And an ox or a donkey fell there." The Oral Tradition interprets2 this as an exclusion: "'An ox' and not a man;3 'a donkey' and not utensils." Even when an ox fell [into a cistern] when carrying utensils and died and broke the utensils, the owner is liable for the ox, but not for the utensils.

א

כֵּלִים שֶׁנָּפְלוּ לַבּוֹר וְנִשְׁתַּבְּרוּ בַּעַל הַבּוֹר פָּטוּר שֶׁנֶּאֱמַר (שמות כא לג) "וְנָפַל שָׁמָּה שּׁוֹר אוֹ חֲמוֹר" מִפִּי הַשְּׁמוּעָה לָמְדוּ שׁוֹר וְלֹא אָדָם חֲמוֹר וְלֹא כֵּלִים. אֲפִלּוּ נָפַל שׁוֹר בְּכֵלָיו וּמֵת הַשּׁוֹר וְנִשְׁתַּבְּרוּ כֵּלָיו חַיָּב עַל הַבְּהֵמָה וּפָטוּר עַל הַכֵּלִים:

2

A cistern is considered one of the general categories of causes of damage. Its derivatives, like it, are considered mu'adim from the outset. Whenever a person leaves an obstacle [in the path of other living beings], it is considered to be a derivative of a cistern.4 If a person or an animal is injured because of it, the person who caused the obstacle to exist is liable, whether or not he renounced ownership of it. If it caused damage to utensils, [the person responsible] is not held liable.

ב

הַבּוֹר מֵאֲבוֹת נְזִיקִין הוּא וְתוֹלְדוֹתָיו כָּמוֹהוּ מוּעָדִין מִתְּחִלָּתָן. וְכָל הַמַּנִּיחַ תַּקָּלָה הֲרֵי זוֹ תּוֹלֶדֶת הַבּוֹר וְאִם הֻזַּק בָּהּ אָדָם אוֹ בְּהֵמָה מְשַׁלֵּם זֶה שֶׁהִנִּיחַ הַתַּקָּלָה נֵזֶק שָׁלֵם בֵּין הִפְקִיר הַתַּקָּלָה בֵּין לֹא הִפְקִירָהּ. וְאִם הֻזְּקוּ בָּהּ כֵּלִים פָּטוּר:

3

What is implied? When a person leaves his stone, his knife, his straw, his burden or the like in the public domain, and they cause injury to another human or to an animal, [the first person] is liable for the full amount of the damages. Similarly, if he left such items on his property and declared his property - but not these items - ownerless, and a person stumbled on the ground5 and received a blow from such an item that caused him injury, the person who caused the obstacle to exist is liable. If the person's utensils became damaged or soiled in such a situation, [the person who caused the obstacle to exist] is not liable.

ג

כֵּיצַד. הַמַּנִּיחַ אַבְנוֹ אוֹ סַכִּינוֹ אוֹ תִּבְנוֹ אוֹ מַשָּׂאוֹ וְכַיּוֹצֵא בָּהֶן בִּרְשׁוּת הָרַבִּים וְהֻזְּקוּ בָּהֶן בֵּין אָדָם בֵּין בְּהֵמָה חַיָּב נֵזֶק שָׁלֵם. וְכֵן אִם הִנִּיחָן בִּרְשׁוּתוֹ וְהִפְקִיר רְשׁוּתוֹ וְלֹא הִפְקִירָן נִתְקָל בַּקַּרְקַע וְנֶחְבָּט בְּתַקָּלָה זוֹ וְהֻזַּק בָּהּ חַיָּב בַּעַל הַתַּקָּלָה. וְאִם הֻזְּקוּ כֵּלִים בְּכָל אֵלּוּ אוֹ נִטַּנְּפוּ פָּטוּר:

4

If a person brought his ox into a courtyard belonging to another person without permission, the ox defecated, and the feces soiled utensils belonging to the owner, [the owner of the ox] is not liable. For the feces are considered to be a derivative of a cistern, and [the owner of] a cistern is never liable for damage to utensils.

ד

הִכְנִיס שׁוֹרוֹ לַחֲצַר בַּעַל הַבַּיִת שֶׁלֹּא בִּרְשׁוּת וְהִרְבִּיץ גְּלָלִים וְנִטַּנְּפוּ בָּהֶן כֵּלָיו שֶׁל בַּעַל הַבַּיִת פָּטוּר. שֶׁהַגָּלָל זֶה תּוֹלֶדֶת בּוֹר הוּא וְלֹא מָצָאנוּ בּוֹר שֶׁחִיֵּב בּוֹ עַל הַכֵּלִים:

5

[The following laws apply when a person] leaves his jug in the public domain, and a passerby stumbles over it and breaks it. The passerby is not liable, because it is not the practice of people to look out on the way as they walk. If [the passerby] was injured, the owner of the jug is liable for his injury. [This applies] even if he declared his jug ownerless. For whenever a person declares ownerless an obstacle that he has created in a domain in which he has no permission to place it at the outset,6 he is liable, as if he had never declared it ownerless.

ה

הַמַּנִּיחַ אֶת הַכַּד בִּרְשׁוּת הָרַבִּים וְהָלַךְ [הַמְהַלֵּךְ] וְנִתְקַל בָּהּ וּשְׁבָרָהּ פָּטוּר לְפִי שֶׁאֵין דֶּרֶךְ בְּנֵי אָדָם לְהִתְבּוֹנֵן בַּדֶּרֶךְ כְּשֶׁהֵן מְהַלְּכִין. וְאִם הֻזַּק בָּהּ הֲרֵי בַּעַל הַכַּד חַיָּב בִּנְזָקָיו וַאֲפִלּוּ הִפְקִיר הַכַּד. שֶׁכָּל הַמַּפְקִיר נְזָקָיו בְּמָקוֹם שֶׁאֵין לוֹ רְשׁוּת לַעֲשׂוֹתָהּ מִתְּחִלָּה חַיָּב כְּאִלּוּ לֹא הִפְקִירָן:

6

If the person placed the jug down in a place where he had permission to place it - e.g., the marketplace before the wine vats or the like7 - and a passerby stumbles over it and breaks it, [the passerby] is liable. If the passerby was injured, the owner of the jug is not liable, because [the passerby] should have looked to see [if there was anything in his way].8 If it was dark or [if the owner of the jugs] filled the entire path with jugs, the passerby is not liable for breaking it. If he is injured, the owner of the jugs is liable.9 Similar laws apply in all analogous situations.

ו

הִנִּיחַ אֶת הַכַּד בְּמָקוֹם שֶׁיֵּשׁ לוֹ רְשׁוּת לְהַנִּיחָהּ שָׁם כְּגוֹן מְקוֹם הַקְּרָנוֹת שֶׁל גִּתּוֹת וְכַיּוֹצֵא בָּהֶן וְנִתְקַל בָּהּ וּשְׁבָרָהּ חַיָּב. וְאִם הֻזַּק בָּהּ הַמְהַלֵּךְ בַּעַל הַכַּד פָּטוּר מִפְּנֵי שֶׁהָיָה לוֹ לְהִסְתַּכֵּל. וְאִם הָיְתָה אֲפֵלָה אוֹ שֶׁמִּלֵּא כָּל הַדֶּרֶךְ כַּדִּים פָּטוּר עַל שְׁבִירָתָהּ. וְאִם נִתְקַל בָּהּ הֲרֵי בַּעַל הַכַּד חַיָּב. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה:

7

[The following rules apply when] a jug belonging to a person breaks [accidentally] in the public domain, and another person slips on the water [that spilled] or receives a blow from its shards. The owner cannot be held liable by an earthly court, because [the jug] was broken by accident.10 He has, however, a moral and a spiritual obligation, because he did not gather the shards.11 The shards and the water are like ownerless entities, [even though] he did not rescind his ownership until after the accident, he is not held liable. If he intended to take possession of the shards, and another person was damaged by them, he is liable. Similar laws apply to a person whose camel fell and he did not raise it up, or the like.12 In all these situations, if utensils were damaged, the owner of the obstacle is not liable, whether he declared his object ownerless or not, as we have explained.13

ז

נִשְׁבְּרָה כַּדּוֹ בִּרְשׁוּת הָרַבִּים וְהֻחְלַק אֶחָד בַּמַּיִם אוֹ שֶׁלָּקָה בַּחֲרָסֶיהָ פָּטוּר מִדִּינֵי אָדָם לְפִי שֶׁאָנוּס הוּא. וְחַיָּב בְּדִינֵי שָׁמַיִם מִפְּנֵי שֶׁלֹּא סִלֵּק הַחֲרָסִים. וַהֲרֵי הַחֲרָסִים וְהַמַּיִם כְּהֶפְקֵר וְלֹא הִפְקִיר אֶלָּא אַחַר שֶׁנֶּאֱנַס וּלְפִיכָךְ פָּטוּר. וְאִם נִתְכַּוֵּן לִזְכּוֹת בַּחֲרָסֶיהָ וְהֻזַּק בָּהֶן אַחֵר חַיָּב. וְהוּא הַדִּין לְנָפְלָה גְּמַלּוֹ וְלֹא הֶעֱמִידָהּ וְכָל כַּיּוֹצֵא בָּהּ. וְאִם הֻזְּקוּ כֵּלִים בְּכָל אֵלּוּ פָּטוּר בֵּין הִפְקִיר בֵּין לֹא הִפְקִיר כְּמוֹ שֶׁבֵּאַרְנוּ:

8

[The following laws apply when] two potters were following each other on a path, the first tripped and fell, and the second tripped over the first. If the first could have stood up but failed to do so, he is liable for the damages suffered by the second. Although he accidentally fell, the accident did not [force him to remain] lying in the road. [Therefore,] since he could have stood up, [he is liable].14 If he was unable to have risen [before the second potter tripped over him], he is not liable. [This applies] even though he did not warn [the potter] who tripped over him. [The rationale is] that he is concerned with his own [difficulties].15

ח

שְׁנֵי קַדָּרִין שֶׁהָיוּ מְהַלְּכִין בַּדֶּרֶךְ זֶה אַחַר זֶה וְנִתְקַל הָרִאשׁוֹן וְנָפַל וְנִתְקַל הַשֵּׁנִי בָּרִאשׁוֹן. אִם הָיָה לָרִאשׁוֹן לַעֲמֹד וְלֹא עָמַד חַיָּב הָרִאשׁוֹן בְּנִזְקֵי שֵׁנִי שֶׁאַף עַל פִּי שֶׁהוּא אָנוּס בִּשְׁעַת נְפִילָה אֵינוֹ אָנוּס בִּהְיוֹתוֹ מֻטָּל בַּדֶּרֶךְ וַהֲרֵי הוּא יָכוֹל לַעֲמֹד. וְאִם לֹא הָיָה לוֹ לַעֲמֹד פָּטוּר וְאַף עַל פִּי שֶׁלֹּא הִזְהִיר לָזֶה שֶׁנִּתְקַל בּוֹ מִפְּנֵי שֶׁהוּא טָרוּד בְּנַפְשׁוֹ:

9

When do we say that he is liable for the damages to the second [potter]? When he suffers damage to his body. If, however, his utensils are damaged, [the first potter] is not liable. For [an owner of] a cistern is not liable for the damage to utensils, and any obstacle is considered to be a derivative of a cistern, as explained above.16

ט

בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁהוּא חַיָּב בִּנְזָקָיו שֶׁל שֵׁנִי כְּשֶׁהֻזַּק גּוּפוֹ שֶׁל שֵׁנִי. אֲבָל אִם הֻזְּקוּ כֵּלָיו פָּטוּר שֶׁאֵינוֹ חַיָּב עַל הַכֵּלִים בַּבּוֹר וְכָל תַּקָּלָה תּוֹלֶדֶת בּוֹר הוּא כְּמוֹ שֶׁבֵּאַרְנוּ:

10

[The following rules apply when] potters, glass blowers and the like were walking one after the other, the first one tripped and fell, the second tripped over the first one, and the third tripped over the second. Each of them had time to stand up, but failed to do so. The first is liable for the damages to the body of the second, regardless of whether he was injured by the body of the first person who is lying on the earth,17 or he was injured by his burden.18 The second is liable for the injuries suffered by the body of the third person if he was injured by the second person's body. If, however, he was injured by the second person's burden, [the second person] is not liable. For he will say: "I did not dig this cistern - i.e., my burden." For it was the first person who caused the second person and his burden to fall.19 In all cases, [if the person who fell] warned [the person who tripped over him or his burden], [the person who fell] is not liable.

י

הַקַּדָרִים וְהַזַּגָּגִים וְכַיּוֹצֵא בָּהֶן שֶׁהָיוּ מְהַלְּכִין זֶה אַחַר זֶה וְנִתְקַל הָרִאשׁוֹן וְנָפַל וְנִתְקַל הַשֵּׁנִי בָּרִאשׁוֹן וְהַשְּׁלִישִׁי בַּשֵּׁנִי וְכָל אֶחָד מֵהֶן יֵשׁ לוֹ לַעֲמֹד וְלֹא עָמַד. הָרִאשׁוֹן חַיָּב בְּנִזְקֵי גּוּפוֹ שֶׁל שֵׁנִי בֵּין שֶׁהֻזַּק בְּגוּפוֹ שֶׁל רִאשׁוֹן הַמֻּטָּל בָּאָרֶץ בֵּין שֶׁהֻזַּק בְּמַשָּׂאוֹ. וְהַשֵּׁנִי חַיָּב בְּנִזְקֵי גּוּפוֹ שֶׁל שְׁלִישִׁי אִם הֻזַּק בְּגוּפוֹ שֶׁל שֵׁנִי. אֲבָל אִם הֻזַּק בְּמַשָּׂאוֹ שֶׁל שֵׁנִי שֶׁנָּפַל פָּטוּר. שֶׁהֲרֵי אוֹמֵר לוֹ הַשֵּׁנִי בּוֹר זֶה שֶׁהוּא מַשָּׂאִי אֵין אֲנִי הַכּוֹרֶה אוֹתוֹ שֶׁהֲרֵי הָרִאשׁוֹן הִפִּיל הַשֵּׁנִי עִם מַשָּׂאוֹ. וְאִם הִזְהִירוּ זֶה אֶת זֶה כֻּלָּן פְּטוּרִין:

11

If the first person fell and was lying lengthwise across the road and one person tripped over his head, another [tripped] over his legs and a third over his abdomen, he is liable for the injuries each suffered, for he had the potential to arise.

יא

נָפַל הָרִאשׁוֹן וְהָיָה מֻטָּל לְרֹחַב הַדֶּרֶךְ וְנִתְקַל אֶחָד בְּרֹאשׁוֹ וְאֶחָד בְּרַגְלָיו וְאֶחָד בְּבִטְנוֹ הֲרֵי הוּא חַיָּב בְּנִזְקֵי כֻּלָּן הוֹאִיל וְהָיָה לוֹ לַעֲמֹד וְלֹא עָמַד:

12

When a person pours water into the public domain, and another person is injured by it, [the one who poured out the water] is liable for the damages.20 If the other person's garments were soiled, [the one who poured out the water] is not liable, as we have explained.21 If the water was absorbed by the earth, but the earth remained slippery,22 and a person slipped and fell and was injured by the ground, [the one who poured out the water] is liable.23

יב

הַשּׁוֹפֵךְ אֶת הַמַּיִם בִּרְשׁוּת הָרַבִּים וְהֻזַּק בָּהֶן אַחֵר חַיָּב בִּנְזָקָיו. וְאִם נִטַּנְפוּ כֵּלָיו פָּטוּר כְּמוֹ שֶׁבֵּאַרְנוּ. נִבְלְעוּ הַמַּיִם בָּאָרֶץ וְנִשְׁאֲרָה הָאָרֶץ חֲלָקָה וְהֻחְלַק וְנָפַל וְהֻזַּק בַּקַּרְקַע הֲרֵי זֶה חַיָּב בִּנְזָקָיו:

13

All those who open their sewage vats and rake out their cesspools do not have permission to pour this water into the public domain during the summer months.24 In the rainy season, a person has permission [to release such sewage].25 Nevertheless, if a person or an animal is damaged by the water, the one who released it is responsible for the entire sum of the damages.26

יג

כָּל אֵלּוּ שֶׁפּוֹתְקִין בִּיבוֹתֵיהֶן וְגוֹרְפִין מְעָרוֹתֵיהֶן אֵין לָהֶן רְשׁוּת לִשְׁפֹּךְ הַמַּיִם בִּרְשׁוּת הָרַבִּים בִּימוֹת הַחַמָּה אֲבָל בִּימוֹת הַגְּשָׁמִים יֵשׁ לָהֶן רְשׁוּת. וְאַף עַל פִּי כֵן אִם הֻזַּק אָדָם אוֹ בְּהֵמָה בַּמַּיִם חַיָּבִין נֵזֶק שָׁלֵם:

14

A person should not take his straw and hay out to the public domain so that it will be trod upon and become fit to use as fertilizer. If he did take it out, our Sages penalized him and declared the straw to be ownerless. The first person to take possession of it acquires it as his own, once it has been trod upon and its value has increased.27 If a person took possession of it before that time - i.e., directly after it was taken out to the public domain - it should not be expropriated from him.28 Although the straw and the hay are ownerless, if [they cause damage to] a person or an animal, the person who brought it out [to the public domain] must compensate [for the damages].29

יד

לֹא יוֹצִיא אָדָם תִּבְנוֹ וְקַשּׁוֹ לִרְשׁוּת הָרַבִּים כְּדֵי שֶׁיָּדוּשׁוּ וְיַעֲשׂוּ לוֹ זֶבֶל. וְאִם הוֹצִיא קְנָסוּהוּ חֲכָמִים שֶׁיִּהְיוּ כְּהֶפְקֵר וְכָל הַקּוֹדֵם בָּהֶן זָכָה מֵעֵת שֶׁנִּדּוֹשׁוּ וְהִשְׁבִּיחוּ. וְאִם קָדַם אָדָם וְזָכָה בָּהֶן מִשְּׁעַת הוֹצָאָה לִרְשׁוּת הָרַבִּים אֵין מוֹצִיאִין מִיָּדוֹ. וְאַף עַל פִּי שֶׁהֵן כְּהֶפְקֵר אִם הֻזַּק בָּהֶן אָדָם אוֹ בְּהֵמָה הֲרֵי זֶה הַמּוֹצִיא חַיָּב לְשַׁלֵּם:

15

A person may take out compost and manure to the public domain at a time when everyone does so and amass them there for 30 days so that they will be trodden upon by people and animals. Although [permission is granted], if these substances cause damage the owner is liable for the damages. [If another person takes] this manure,30 he is liable for theft. Since its value will not increase [appreciably] by being trodden upon, [our Sages] did not penalize him [by declaring it ownerless].31

טו

יֵשׁ לְכָל אָדָם לְהוֹצִיא אֶת הַזֶּבֶל וְהַגְּלָלִים לִרְשׁוּת הָרַבִּים בִּשְׁעַת הוֹצָאַת זְבָלִים וְלִצְבֹּר אוֹתָן שָׁם שְׁלֹשִׁים יוֹם כְּדֵי שֶׁיִּהְיֶה נִשּׁוֹף בְּרַגְלֵי אָדָם [וְרַגְלֵי בְּהֵמָה]. וְאַף עַל פִּי כֵן אִם הִזִּיק חַיָּב לְשַׁלֵּם. וְחַיָּבִין עַל זֶה הַגָּלָל מִשּׁוּם גֵּזֶל כֵּיוָן שֶׁאֵין בּוֹ שֶׁבַח אִם נִדּוֹשׁ לֹא קָנְסוּ בּוֹ:

16

Mortar may not be left to soak in the public domain, nor may bricks be fashioned there.32 One may, however, mix mortar33 in the public domain. One may not, however, mix bricks.

טז

אֵין שׁוֹרִין טִיט בִּרְשׁוּת הָרַבִּים וְאֵין לוֹבְנִים לְבֵנִים. אֲבָל גּוֹבְלִין טִיט בִּרְשׁוּת הָרַבִּים אֲבָל לֹא לְבֵנִים:

17

When a person constructs a building in the public domain, the one who brings stones may bring stones, and the one who builds may build. If any of them causes damage, they are obligated to pay for the entire sum of the damages.34

יז

הַבּוֹנֶה בִּרְשׁוּת הָרַבִּים הַמֵּבִיא אֲבָנִים מֵבִיא וְהַבּוֹנֶה בּוֹנֶה. וְכֻלָּן שֶׁהִזִּיקוּ חַיָּבִין לְשַׁלֵּם נֵזֶק שָׁלֵם:

18

When a quarrier hews out a stone and gives it to a stonecutter, and it causes damage to a human or an animal, the stonecutter is liable. If the stonecutter gives it to a donkey-driver35 [and it causes damage], the donkey-driver is liable. If the donkey-driver gives it to a porter36 [and it causes damage], the porter is liable. If the porter gives it to a builder [and it causes damage], the builder is liable. If the builder gives it to the person who positions it on the building [and it causes damage], the latter is liable. If they were working as contractors [in a partnership], and after it was positioned in its place on the building it fell and caused damage, they all share in the liability.37 If they are hired laborers, the one [who positioned the stone in its place] is liable, and the others are not liable.38

יח

הַחוֹצֵב שֶׁחָצַב אֶבֶן וּמְסָרָהּ לְסַתָּת וְהֻזַּק בָּהּ אָדָם אוֹ בְּהֵמָה הַסַּתָּת חַיָּב. וְסַתָּת שֶׁמָּסַר לְחַמָּר הַחַמָּר חַיָּב. מָסַר חַמָּר לְכַתָּף הַכַּתָּף חַיָּב. מָסַר כַּתָּף לְבוֹנֶה הַבּוֹנֶה חַיָּב. מְסָרָהּ הַבּוֹנֶה לְזֶה שֶׁמְּתַקֵּן יְשִׁיבָתָהּ בַּבִּנְיָן הַמְתַקֵּן חַיָּב. וְאִם אַחַר שֶׁהֶעֱלוּהָ עַל גַּבֵּי הַדִּימוֹס נָפְלָה וְהִזִּיקָה וְהָיוּ עוֹשִׂין בְּקַבְּלָנוּת כֻּלָּן חַיָּבִין. וּבִשְׂכִירוּת הָאַחֲרוֹן חַיָּב וְכֻלָּן פְּטוּרִין:

19

When a wall or a tree falls into the public domain and causes damage,39 the owner is not required to compensate [for the damages].40 [This applies] even when he declared [the tree or the wall] ownerless.41 [The rationale is that these entities] do not resemble a cistern, for at the outset, [it is not likely] that they will cause damage. If they were not sturdy, the court sets a time for the person by which he must cut down the tree and tear down the wall. How much time is granted him? Thirty days.42 If the tree or the wall falls within this time and causes damage, he is not liable. [If it falls] afterwards, he is liable, because he delayed [beyond the limits set].

יט

הַכֹּתֶל וְהָאִילָן שֶׁנָּפְלוּ לִרְשׁוּת הָרַבִּים וְהִזִּיקוּ פָּטוּר מִלְּשַׁלֵּם וְאַף עַל פִּי שֶׁהִפְקִירָן. לְפִי שֶׁאֵינָן דּוֹמִים לַבּוֹר שֶׁהֲרֵי אֵין תְּחִלָּתָן לְהַזִּיק. וְאִם הָיוּ רְעוּעִין בֵּית דִּין קוֹבְעִין לוֹ זְמַן לָקֹץ אֶת הָאִילָן וְלִסְתֹּר אֶת הַכֹּתֶל. וְכַמָּה הַזְּמַן שְׁלֹשִׁים יוֹם. נָפְלוּ בְּתוֹךְ הַזְּמַן וְהִזִּיקוּ פָּטוּר לְאַחַר הַזְּמַן חַיָּב מִפְּנֵי שֶׁשִּׁהָה אוֹתָן:

20

When a person places thorns or glass [within a wall], or when a person makes a fence of thorns that project into the public domain, and it causes damage to another person,43 he is liable for the full extent of the damages. If he makes a fence of thorns that are contained within his property,44 he is not held liable, for it is not ordinary for people to rub against a wall [in the public domain].

כ

הַמַּצְנִיעַ אֶת הַקּוֹץ וְאֶת הַזְּכוּכִית וְהַגּוֹדֵר גְּדֵרוֹ בְּקוֹצִים וְהִפְרִיחַ לִרְשׁוּת הָרַבִּים וְהֻזַּק אֶחָד בָּהֶן חַיָּב נֵזֶק שָׁלֵם. וְאִם גָּדַר בְּקוֹצִים בְּצִמְצוּם בְּתוֹךְ רְשׁוּתוֹ פָּטוּר לְפִי שֶׁאֵין דֶּרֶךְ בְּנֵי אָדָם לְהִתְחַכֵּךְ בַּכְּתָלִים:

21

[The following laws apply when] a person hid his thorns and [fragments of] glass in a wall belonging to a colleague, the owner of the wall came and tore down his wall into the public domain, and [the thorns or glass] caused damage. If the wall was shaky,45 the person who hid [the thorns or glass] is liable. If the wall was strong, its owner is liable.46

כא

הַמַּצְנִיעַ קוֹצָיו וּזְכוּכִיּוֹתָיו בְּתוֹךְ כָּתְלוֹ שֶׁל חֲבֵרוֹ וּבָא בַּעַל הַכֹּתֶל וְסָתַר אֶת כָּתְלוֹ וְנָפַל לִרְשׁוּת הָרַבִּים וְהִזִּיק. אִם כֹּתֶל רָעוּעַ הָיָה הַמַּצְנִיעַ חַיָּב. וְאִם כֹּתֶל בָּרִיא הוּא בַּעַל הַכֹּתֶל חַיָּב:

22

The pious men47 of the early generations would bury thorns and [fragments of] glass in their fields [at least] three handbreadths below the ground, so they would not be lifted up by a plow. Others would burn them in fire. Still others would throw them to the sea or to the river so that other people would not be injured by them.

כב

חֲסִידִים הָרִאשׁוֹנִים הָיוּ מַצְנִיעִין אֶת הַקּוֹצִים וְאֶת הַזְּכוּכִיּוֹת בְּתוֹךְ שְׂדוֹתֵיהֶם בְּעֹמֶק שְׁלֹשָׁה טְפָחִים בָּאָרֶץ כְּדֵי שֶׁלֹּא תַּעֲלֵם הַמַּחֲרֵשָׁה. וַאֲחֵרִים שׂוֹרְפִים אוֹתָן בְּאֵשׁ. וַאֲחֵרִים מַשְׁלִיכִים אוֹתָן לַיָּם אוֹ לַנָּהָר כְּדֵי שֶׁלֹּא יֻזַּק בָּהֶן אָדָם:

23

A person should not clear stones from his private property into the public domain.48 One should not dig a cavity, a cistern, a trench or a cave under the public domain.49 [This applies] even when [the covering of the cavity is so strong] that it can support a carriage laden with stones, for there is the possibility that [at a later date] it will open from below without his knowledge. It is permitted for a person to dig a cistern for the needs of people at large.50

כג

לֹא יְסַקֵּל אָדָם מֵרְשׁוּתוֹ לִרְשׁוּת הָרַבִּים. ואֵין עוֹשִׂין חָלָל תַּחַת רְשׁוּת הָרַבִּים וְלֹא בּוֹרוֹת וְלֹא שִׁיחִין וְלֹא מְעָרוֹת וְאַף עַל פִּי שֶׁהָעֲגָלָה יְכוֹלָה לְהַלֵּךְ עַל גַּבֵּיהֶן וְהִיא טְעוּנָה אֲבָנִים שֶׁמָּא תִּפָּחֵת מִלְּמַטָּה שֶׁלֹּא מִדַּעְתּוֹ. וְהַחוֹפֵר בּוֹר לְצָרְכֵי רַבִּים מֻתָּר:

24

One should not build projections and balconies that protrude into the public domain unless it is possible for a camel and its rider51 to pass beneath, and provided it does not cast shadows on the people in the public domain. If he desires, he can withdraw the walls [of his building into his own domain] and build [the projection].52 If he did withdraw the walls [of his building], but has not built [a projection], he may do so at any time he desires. Never, however, may he return the walls to their original place. Once people at large have been granted permission to pass through a particular property, it cannot be withdrawn.53

כד

אֵין מוֹצִיאִין זִיזִין וּגְזוּזְטְרָאוֹת לִרְשׁוּת הָרַבִּים אֶלָּא אִם כֵּן הָיוּ לְמַעְלָה מִגָּמָל וְרוֹכְבוֹ. וְהוּא שֶׁלֹּא יַאֲפִיל הַדֶּרֶךְ עַל בְּנֵי רְשׁוּת הָרַבִּים. וְאִם רָצָה כּוֹנֵס לְתוֹךְ שֶׁלּוֹ וּמוֹצִיאוֹ. כָּנַס וְלֹא הוֹצִיא הֲרֵי זֶה מוֹצִיא כָּל זְמַן שֶׁיִּרְצֶה. אֲבָל אֵינוֹ יָכוֹל לְהַחְזִיר כְּתָלִים לִמְקוֹמָן לְעוֹלָם. שֶׁכָּל מֵצַר שֶׁהֶחְזִיקוּ בּוֹ רַבִּים אָסוּר לְקַלְקְלוֹ:

25

When a person purchased a courtyard with projections and balconies protruding into the public domain, we operate under the presumption [that they were built legally].54 If the building falls, he is allowed to rebuild it according to its original proportions.

כה

לָקַח חָצֵר וּבָהּ זִיזִין וּגְזֻזְטְרָאוֹת יוֹצְאוֹת לִרְשׁוּת הָרַבִּים הֲרֵי זוֹ בְּחֶזְקָתָהּ וְאִם נָפְלָה חוֹזֵר וּבוֹנֶה אוֹתָהּ כְּשֶׁהָיְתָה:

26

When [the foliage of] a tree leans into the public domain, it should be trimmed so that a camel and its rider can pass under it. An empty space should be left next to the banks on both sides of a river wide enough for the crewmen who descend and pull a boat.55 Any tree that is found in this space should be cut down immediately. A warning need not be given to its owner,56 for it blocks the crewmen from pulling ships.

כו

אִילָן שֶׁהוּא נוֹטֶה לִרְשׁוּת הָרַבִּים קוֹצֵץ כְּדֵי שֶׁיִּהְיֶה הַגָּמָל עוֹבֵר בְּרוֹכְבוֹ. וּמַנִּיחִין מָקוֹם פָּנוּי מִשְּׁתֵי שִׂפְתוֹת הַנָּהָר כְּרֹחַב כִּתְפֵי הַמַּלָּחִים שֶׁיּוֹרְדִין שָׁם וּמוֹשְׁכִין הַסְּפִינָה. וְכָל אִילָן הַנִּמְצָא בְּרֹחַב זֶה קוֹצְצִין אוֹתוֹ מִיָּד וְאֵין מַתְרִין בִּבְעָלָיו שֶׁהֲרֵי מְעַכֵּב מוֹשְׁכֵי הַסְּפִינָה:

27

[The following rules apply when] there was a path for people at large passing through a person's field, he expropriated the path and prepared a new path at the side of the field. What he granted them, they acquire possession of,57 but he does not acquire possession of [the land] he took. How wide is a path for people at large? Not less than sixteen cubits.58

כז

מִי שֶׁהָיְתָה דֶּרֶךְ הָרַבִּים עוֹבֶרֶת בְּתוֹךְ שָׂדֵהוּ נְטָלָהּ וּנְתָנָהּ לָהֶם מִן הַצַּד מַה שֶּׁנָּתַן נָתַן וְזָכוּ בּוֹ וְזֶה שֶׁנָּטַל לֹא זָכָה בּוֹ. וְכַמָּה רֹחַב דֶּרֶךְ הָרַבִּים אֵין פָּחוֹת מִשֵּׁשׁ עֶשְׂרֵה אַמּוֹת:

Footnotes
1.

Similarly, as stated in the following halachah, the owner of thecistern is not held liable if the utensils are damaged. With regard toa human, by contrast, the owner is liable for damages. (See Chapter12, Halachah 16; Shulchan Aruch, Choshen Mishpat 410:21.)

2.

See Bava Kama 28b, 53b.

3.

See Chapter 12, Halachah 16.

4.

See the Tur (Choshen Mishpat 410), which defines thederivatives of a cistern as including any property that causesdamage in its place, which does not move. Although the Rambammentions a moving obstacle in Chapter 2, Halachah 19, the intentis that the obstacle is being moved by another force.

5.

The person stumbled on the earth, and this is what caused theinjury. Nevertheless, since the earth is ownerless, he collects thedamages from the person who left the obstacle in its place. Were itnot for the obstacle, the damage would not have taken place.

6.

If, however, he left a jug on his own property and then declared itownerless, he is not liable. At the outset, he had permission to leavethe jug there. See Chapter 12, Halachah 2.

7.

I.e. a place in front of oil vats or beehives, where jugs of oil orhoney would be filled.

8.

Although, as stated above, it is not the general practice forpeople to watch for obstacles as they walk, since jugs are often lefton the ground in places like these, a passerby should watch his step(Kessef Mishneh).

9.

In the dark, the owner of the jugs should have removed them beforenightfall, for he knows that a passerby will not be able to see. If hefilled the path with jugs, he made it likely that a person would breaka jug as he passed by.Note the quotation of this law in the Shulchan Aruch(Choshen Mishpat 412:2). There a further category is added: aninstance where a person places so many jugs in the road that it isimpossible for people to pass without breaking some of the jugs: thepasserby is not liable even if he intentionally broke enough jugs toallow him to pass.

10.

Since the jug broke accidentally, the owner is not considerednegligent with regard to the damages that were caused. For thisreason, the laws stated in Halachah 5 are not applied to him.

11.

If he did not have time to gather the shards before the otherperson was injured, he does not have such a moral obligation(Shulchan Aruch, Choshen Mishpat 412:4.)

12.

For the camel, like the broken pitcher, fell accidentally as thepitcher broke, and is thus considered to be an obstacleunintentionally placed in the public domain. Bava Kama 29astates that this is speaking of an instance where the camel died, andits owner rescinded his ownership over its carcass. Otherwise, hewould be held liable.

13.

Halachah 1.

14.

I.e., his body is considered like an obstacle in the publicdomain.

15.

Although one might think that he could have been held liable fornot warning his colleague, this presumption is not accepted. Hisconcern for his own welfare takes priority. Rabbenu Asher (and hisopinion is accepted by the Tur and the Ramah ChoshenMishpat 413:1) differs and maintains that if the first potterhad the opportunity to warn the second and failed to do so, he isliable.

16.

Halachah 2. Implied by the Rambam's wording in this halachah (andthe following one) is that the body of the first potter is consideredto be an obstacle. He is not considered to have caused damage to hiscolleague with his person.

17.

This reflects the concept mentioned in the previous note. Aperson's body is considered to be an obstacle. Therefore, the Rambammentions damage to the body of the second person, implying that if thesecond person's utensils were damaged, the first would not be heldliable.

18.

From Halachah 7, it would appear that this ruling applies onlywhen the potter did not declare his wares ownerless. See the Ra'avad,the Maggid Mishneh, the Tur and the Ramah (ChoshenMishpat 413:2).

19.

This argument does not apply, however, with regard to injurycaused by the body of the second person. Since he had time to rise, heis liable for the injuries suffered.

20.

In this instance, there is no difference whether or not the persondeclared the water ownerless, as reflected in Halachot 2 and 7.

21.

For the owner of a derivative of a cistern is not liable fordamages to property (Halachot 1 and 2).

22.

The Ra'avad explains that this ruling applies only when the groundis still muddy because of the water. The Maggid Mishneh states that even when the water has been absorbed totally, if the ground is still slippery, the person is liable. The Shulchan Aruch (Choshen Mishpat 412:5) appears to follow the Ra'avad's view.

23.

Although the ground did not belong to him, since the fall wascaused by the water that he poured, he is liable.

24.

During these months, the streets are clean and it is forbidden forsomeone to soil them. Moreover, in Eretz Yisrael it does notrain during these months, and the sewage will remain in the streetsfor months.

25.

For the streets are muddy at that time, and there is water flowingto wash away the sewage. Needless to say, as our sewage and sidewalkshave become more sophisticated, the relevance of these laws hasfaded.

26.

Although our Sages granted a person permission to release hissewage at this time, they did not absolve him of responsibility.

27.

There is an unresolved difference of opinion among the Sages(Bava Kama 30b) if the penalty takes effect from the time thestraw was taken out, or from the time it became useful asfertilizer.Note the Tur and the Ramah (Choshen Mishpat 414:1), whostate that at the outset a person who asks whether he may take thestraw and the hay, should not be told that he may retain possession ofits initial value. Instead, he should be told that he may keep onlythe increment. After the fact, he is allowed to keep the initial valueas well.

28.

The Tur and the Ramah differ with regard to this point as well and maintain that in this instance, the straw should be expropriated from the person who took possession of it.

29.

Whenever damage is caused by an object that was declared ownerlessafter being placed in the public domain without permission, the personwho placed it there is liable.

30.

As stated in Hilchot Gezelah 6:5, this applies even if aperson takes his compost out at a time when it is forbidden to do so.A person who takes it is liable for theft.

31.

The Tur and the Ramah (Choshen Mishpat 414:2) statethat if the compost causes damage, it is considered to be ownerless,and it may be taken by another person.

32.

For these will remain in the public domain for an extendedperiod.

33.

To be used for building in the near future.

34.

In this instance as well, the license to perform an activity inthe public domain does not absolve a person of liability.

35.

To transport to a construction site.

36.

To carry it to the builder.

37.

If they were partners, once the task is completed they all sharein the responsibility. Until the entire task is completed, however,the person who is responsible for the activity at the time the damagewas caused must pay for the damages, even when they were allpartners.

38.

I.e., each person is liable for the portion of the task that heperforms.

39.

The Maggid Mishneh emphasizes that this applies when damageis caused by the tree or the wall as it falls. After it falls and thetree or the stones are lying in the public domain, the owner is notliable, if he declares them ownerless.

40.

This is considered an oness, a loss due to forces beyond hiscontrol. The Maggid Mishneh clarifies that this applies onlywhen the wall was constructed properly to begin with. When, however,it is built faultily, the owner is liable.

41.

Generally, despite the fact that a person declares an obstacle that he created in the public domain as ownerless, he is liable. In this instance, however,since he had permission to plant the tree or build the wall, and itfell because of forces beyond his control, he is not heldresponsible.The Maggid Mishneh explains that the owner is liable, if he desires toestablish his possession over the entities which fell.The Tur and the Ramah (loc. cit.) differ.

42.

As Bava Metzia 118a states, this is the ordinary timegranted by the court to adjust difficulties.

43.

The thorns or glass that projects is considered to be an obstacleplaced in the public domain.

44.

Even if they project beyond the wall itself, as long as they arecontained within the owner's property, he is not liable.

45.

And thus one could assume that it would be torn down in the nearfuture.

46.

The owner of the thorns or glass is not liable, because he had noreason to think that someone would tear down a sturdy wall. If thedamage was done when the wall was being destroyed, the owner of thewall is liable, because he should have taken care that no passersbywere hurt. If the damage was done after the wall was destroyed, theowner of the wall is liable, because he was responsible for clearingthe debris remaining from his wall (Tur, Beit Yosef, ChoshenMishpat 415).

47.

I.e., men who went beyond the measure of the law. This teaching isbased on the examples of sages cited by Bava Kama 30a.

48.

Lest another person stumble over them and be injured.

49.

The Ramah (Choshen Mishpat 417:1) states that in his era, ithad already become customary to dig below the streets of the publicdomain. This is surely the case in our age, when engineering hasprogressed to the point that safety is not compromised by digging inthis manner.

50.

E.g., to provide travelers with drinking water.This law is stated in a separate paragraph, because as is stated inthe Tur and the Shulchan Aruch (Choshen Mishpat410:7, but see 417:1), it is a separate clause, and not a continuationof the previous idea. The Tur and the Shulchan Aruch alsomention that the person must cover the cistern and entrust the coverto the trustees of the people at large, or at the very least informthe court that he has dug a cistern for people, but is expecting thecourt to arrange for its being covered.

51.

A camel was the highest popular means of conveyance in Talmudictimes. Needless to say, in every era, the height should be adjusted to fit the highest contemporary means of conveyance, e.g., in the present era, allowances should be made for semi-trailers.

52.

I.e., knock down the existing walls and build new walls furtherremoved from the public domain.

53.

If, however, people do not frequently walk through this space(e.g., the person prevented that by building a platform there), he mayrebuild the walls in their original place when he desires RabbenuYerucham; Beit Yosef, Ramah (Choshen Mishpat 417:2).

54.

I.e., that the person who originally constructed the buildingbuilt its walls removed from the public domain, so that theprotrusions and balconies were permitted.

55.

I.e., the rivers of Eretz Yisrael and Babylon were for themost part neither wide nor deep. When a ship wanted to dock, severalof its crewmen would descend and they would pull the ship to the riverbank by ropes. This halachah requires that enough empty space be leftalong the river banks to allow these crewmen to maneuver. FromHilchot Geneivah 8:2, it appears that we are speaking about fourcubits.

56.

This can be derived by the conduct of Rabbah bar Rav Nachman(Bava Metzia 108a), who cleared space without informing theowner of the property.

57.

See Halachah 24.

58.

This is derived from the width of the public thoroughfare in thecamp of the Jews in the desert.

Hilchot Nizkei Mamon - Chapter Fourteen

1

When a person kindles a fire in a field belonging to someone else1 and the fire spreads and causes damage, [the person who kindled it] is liable to pay the full extent of the damages,2 as [Exodus 22:5] states: "When a fire spreads through thorns and consumes bound or standing grain..., [the one who started the fire] must pay." Kindling a fire is considered one of the major categories of sources of damage.3

א

הַמַּדְלִיק בְּתוֹךְ שְׂדֵה חֲבִרוֹ וְעָבְרָה הַדְּלֵקָה [וְהִזִּיקָה] חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם שֶׁנֶּאֱמַר (שמות כב ה) "כִּי תֵצֵא אֵשׁ וּמָצְאָה קֹצִים וְנֶאֱכַל גָּדִישׁ אוֹ הַקָּמָה" וְגוֹ' שַׁלֵּם יְשַׁלֵּם הַמַּבְעִר וְגוֹ'. וְהַבְּעֵרָה מֵאֲבוֹת נְזִיקִין הִיא:

2

When a person kindles [a fire] on his own property, he must retreat a sufficient distance from his boundary to ensure that the fire will not spread to a field belonging to a colleague.4 How far must he move? Everything depends on the height of the fire.5 If he did not retreat an adequate distance and the fire spread and caused damage, he is liable to pay the full extent of the damages. If he retreated an appropriate distance, and [the fire] nevertheless spread and caused damage, he is not liable. This is considered an act of heaven. Similarly, if [the fire] crossed a stream6 or a pond of rainwater that was [at least] eight cubits wide, [the person who kindled the fire] is not liable.7

ב

הִדְלִיק בְּתוֹךְ רְשׁוּתוֹ צָרִיךְ לְהַרְחִיק מִסּוֹף הַמֵּצַר כְּדֵי שֶׁלֹּא תַּעֲבֹר הַדְּלֵקָה לִשְׂדֵה חֲבֵרוֹ. וְכַמָּה שִׁעוּר הַהַרְחָקָה הַכּל לְפִי גֹּבַהּ הַדְּלֵקָה. וְאִם לֹא הִרְחִיק כָּרָאוּי וְעָבְרָה הָאֵשׁ וְהִזִּיקָה חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם. הִרְחִיק כָּרָאוּי וְעָבְרָה וְהִזִּיקָה פָּטוּר שֶׁזּוֹ מַכָּה בִּידֵי שָׁמַיִם הִיא. וְכֵן אִם עָבְרָה נָהָר אוֹ שְׁלוּלִית שֶׁיֵּשׁ בָּהֶן מַיִם וְרָחְבָּן שְׁמוֹנֶה אַמּוֹת פָּטוּר:

3

If the fire passed a wall, we measure the height of the wall and the height of the fire and the amount of foliage8 and bramble found there.9 If the fire was not of sufficient size to pass the wall ordinarily, he is not liable. If it is large enough, he is liable. When does the above apply? To a piercing flame].10 If, however, the flame ascends upward and warps downward because of the height of the flame, and there were trees11 there, we do not make an estimation. Even if the fire spread for 1000 cubits, [the person who kindled it] is liable.12

ג

עָבְרָה גָּדֵר אוֹמְדִין גֹּבַהּ הַגָּדֵר וְגֹבַהּ הַדְּלֵקָה וְהָעֵצִים אוֹ הַקּוֹצִים הַמְּצוּיִין שָׁם אִם אֵינָהּ רְאוּיָה לַעֲבֹר פָּטוּר וְאִם רְאוּיָה לַעֲבֹר חַיָּב. בַּמֶּה דְּבָרִים אֲמוּרִים בְּאֵשׁ הַקּוֹדַחַת. אֲבָל אִם הָיָה לָהּ לַהַב גָּדוֹל הָעוֹלֶה וְנִכְפָּף מִגֹּבַהּ עֲלִיַּת הַלַּהַב וְהָיוּ עֵצִים מְצוּיִין שָׁם אֵין לָהּ אֹמֶד אֶלָּא אֲפִלּוּ עָבְרָה אֶלֶף אַמָּה חַיָּב:

4

[The following rules apply when] a fire breaks out in a person's domain,13 and his wall falls from causes other than the fire.14 If he had had the opportunity to rebuild the wall that fell, and he neglected to do so, he is liable. To what can the matter be compared?15 To a person's ox that broke loose16 and caused damage. For [the owner] was responsible for guarding him, and he failed to do so.

ד

נָפְלָה דְּלֵקָה בַּחֲצֵרוֹ וְנָפַל גָּדֵר שֶׁלֹּא מֵחֲמַת הַדְּלֵקָה וְעָבְרָה הַדְּלֵקָה בְּחָצֵר אַחֶרֶת. אִם הָיָה יָכוֹל לִגְדֹּר הַגָּדֵר שֶׁנָּפַל וְלֹא גְּדָרוֹ חַיָּב. לְמָה הַדָּבָר דּוֹמֶה לְשׁוֹרוֹ שֶׁיָּצָא וְהִזִּיק שֶׁהָיָה לוֹ לְשָׁמְרוֹ וְלֹא שְׁמָרוֹ:

5

A person who sends a fire in the hands of a deaf mute, a mentally incompetent person or a child is not held liable by an earthly court;17 he does, however, have a moral and a spiritual obligation [to make restitution for the damages].18 When does the above apply? When he gave them a coal and they fanned it into a flame, for it is normal for a coal to burn out before it causes a flame. If, however, [the person] gave them a flame, he is liable, for his deeds caused the damage.19

ה

הַשּׁוֹלֵחַ אֶת הַבְּעֵרָה בְּיַד חֵרֵשׁ שׁוֹטֶה וְקָטָן פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁמָּסַר לָהֶן גַּחֶלֶת וְלִבּוּהָ שֶׁדֶּרֶךְ הַגַּחֶלֶת לְהִכָּבוֹת מֵאֵלֶיהָ קֹדֶם שֶׁתַּעֲבֹר וְתַדְלִיק. אֲבָל אִם מָסַר לָהֶן שַׁלְהֶבֶת חַיָּב שֶׁהֲרֵי מַעֲשָׂיו גָּרְמוּ:

6

When a person sends a fire with a mentally competent individual, the agent who spread the flame is liable, and the principal is free of liability.20 Similarly, if he charged a watchman with guarding a fire, [and the fire nevertheless caused damage,] the watchman is liable.21

ו

שָׁלַח אֶת הַבְּעֵרָה בְּיַד פִּקֵּחַ זֶה הַפִּקֵּחַ שֶׁהִבְעִיר חַיָּב לְשַׁלֵּם וְהַשּׁוֹלֵחַ פָּטוּר. וְכֵן אִם הִנִּיחַ שׁוֹמֵר לִשְׁמֹר הַבְּעֵרָה הַשּׁוֹמֵר חַיָּב:

7

When one person brings a flame, and [then] another person brings the wood, [and a fire is started, which causes damage], the person who brought the wood is liable.22 When one person brings the wood, and [then] another person brings a flame, [and a fire is started, which causes damage,] the person who brought the flame is liable.23 If another person comes and fans the fire, he is liable.24 If the fire is fanned by an uncommon wind,25 none of them is held liable.26 If a person fanned a fire, but it was also fanned by the wind, the person is liable, for his [actions] caused damage.27 And whenever a person's [actions] cause damage, he is liable to pay for the full amount of the damages from the choicest property he owns, as if the damage was inflicted directly.

ז

אֶחָד הֵבִיא אֶת הָאוּר וְאֶחָד הֵבִיא אֶת הָעֵצִים הַמֵּבִיא אֶת הָעֵצִים חַיָּב. אֶחָד הֵבִיא אֶת הָעֵצִים וְאֶחָד הֵבִיא אֶת הָאוּר הַמֵּבִיא אֶת הָאוּר חַיָּב. בָּא אַחֵר וְלִבָּהּ הַמְלַבֶּה חַיָּב. לִבַּתּוּ רוּחַ שֶׁאֵינָהּ מְצוּיָה תָּמִיד הֲרֵי כֻּלָּן פְּטוּרִין. לִבָּה וְלִבַּתּוּ הָרוּחַ חַיָּב שֶׁהֲרֵי הוּא גָּרַם וְכָל הַגּוֹרֵם לְהַזִּיק מְשַׁלֵּם נֵזֶק שָׁלֵם מִן הַיָּפֶה שֶׁבַּנְּכָסִים כִּשְׁאָר כָּל הַמַּזִּיקִין:

8

When a fire spread and consumed wood, stone or earth,28 [the person who kindled the fire] is obligated to make restitution, as it is written: "[When a fire] spreads through thorns [and consumes...] a field." [The following rules apply when] a fire consumes a grain heap or the like and there were utensils hidden in the grain heap. If [the utensils include] a thresher, a yoke for cattle or other articles that it is likely for farmers to hide in their grain heaps, [the person who kindled the fire] is liable.29 If [the utensils include] clothes, glassware and the like, he is not liable for the damage to the utensils.30

ח

אֵשׁ שֶׁיָּצְאָה וְאָכְלָה עֵצִים אוֹ אֲבָנִים אוֹ עָפָר חַיָּב לְשַׁלֵּם שֶׁנֶּאֱמַר (שמות כב ה) "וּמָצְאָה קֹצִים" כוּ' (שמות כב ה) "אוֹ הַשָּׂדֶה". אָכְלָה גָּדִישׁ וְכַיּוֹצֵא בּוֹ וְהָיוּ כֵּלִים טְמוּנִים בְּתוֹךְ הַגָּדִישׁ אִם הָיוּ כְּגוֹן מוֹרִיגִים וּכְלֵי בָּקָר וְכַיּוֹצֵא בָּהֶן מִדְּבָרִים שֶׁדֶּרֶךְ אַנְשֵׁי הַשָּׂדֶה לְטָמְנָם בַּגָּדִישׁ חַיָּב לְשַׁלֵּם. הָיוּ בְּגָדִים וּכְלֵי זְכוּכִית וְכַיּוֹצֵא בָּהֶן פָּטוּר עַל הַכֵּלִים:

9

When does the above apply? When a person kindles a fire in a field belonging to a colleague.31 If, however, he kindles the fire in his own [domain] and it spreads to a colleague's field, he is not liable for utensils hidden in a grain heap.32 He must, however, compensate [the owner] as if the space taken by the utensils had been filled with wheat or with barley.33

ט

בַּמֶּה דְּבָרִים אֲמוּרִים בְּמַדְלִיק בְּתוֹךְ שְׂדֵה חֲבֵרוֹ. אֲבָל בְּמַדְלִיק בְּתוֹךְ שֶׁלּוֹ וְעָבְרָה לִשְׂדֵה חֲבֵרוֹ פָּטוּר עַל כָּל הַכֵּלִים הַטְּמוּנִים בַּגָּדִישׁ אֲבָל מְשַׁלֵּם הוּא שִׁעוּר מְקוֹם הַכֵּלִים וְרוֹאִין אוֹתוֹ כְּאִלּוּ הוּא מָלֵא גָּדִישׁ שֶׁל חִטִּים אוֹ שֶׁל שְׂעוֹרִים:

10

A person who kindles a fire in a field belonging to a colleague is also liable [in the following instance]. The fire spread and consumed a kid that was tied to the grain heap or a servant near the grain heap.34 For this is also the ordinary practice near a grain heap. If, however, the servant was tied [to the grain heap], or the goat was near the grain heap, [the person who kindled the fire is not liable].35

י

הַמַּדְלִיק בְּתוֹךְ שְׂדֵה חֲבֵרוֹ וְיָצְאָה הָאֵשׁ וְנֶאֱכַל הַגָּדִישׁ וְהָיָה גְּדִי כָּפוּת לוֹ וְעֶבֶד סָמוּךְ לוֹ וְנִשְׂרַף עִמּוֹ חַיָּב. שֶׁכֵּן דֶּרֶךְ בְּנֵי אָדָם לַעֲשׂוֹת בְּגָדִישׁ. הָיָה עֶבֶד כָּפוּת לוֹ וּגְדִי סָמוּךְ לוֹ וְנִשְׂרַף עִמּוֹ פָּטוּר:

11

When a person lends a colleague space to make a grain heap, the colleague makes that grain heap and hides utensils in it, and then the person who lent him the space burns the grain heap, [the person who kindled the fire] is liable to pay [his colleague] only for the grain heap.36 If he lent him space to make a heap of wheat and he made a heap of barley,37 or he lent him space to make a heap of barley and he made a heap of wheat,38 or he made a heap of wheat and covered it with barley,39 or he made a heap of barley and covered it with wheat,40 [the person who kindled the fire] is not liable to pay any more than the value of a heap of barley.

יא

הַמַּשְׁאִיל מָקוֹם לַחֲבֵרוֹ וְהִגְדִּישׁ בּוֹ וְהִטְמִין בּוֹ כֵּלִים וְהִדְלִיק הַמַּשְׁאִיל וְשָׂרַף הַגָּדִישׁ אֵינוֹ מְשַׁלֵּם אֶלָּא דְּמֵי גָּדִישׁ בִּלְבַד. הִשְׁאִילוֹ מָקוֹם לְהַגְדִּישׁ חִטִּים וְהִגְדִּישׁ שְׂעוֹרִים אוֹ לְהַגְדִּישׁ שְׂעוֹרִים וְהִגְדִּישׁ חִטִּים אוֹ שֶׁהִגְדִּישׁ חִטִּים וְחִפָּם בִּשְׂעוֹרִים אוֹ שֶׁהִגְדִּישׁ שְׂעוֹרִים וְחִפָּם בְּחִטִּים אֵינוֹ מְשַׁלֵּם לוֹ אֶלָּא דְּמֵי שְׂעוֹרִים בִּלְבַד:

12

When a person sets fire to a home belonging to a colleague, he must compensate for everything it contains,41 for it is the ordinary practice for people to keep all their utensils and possessions in their homes. The person whose house [was burned] is entitled to collect everything he claims,42 provided he takes an oath while holding a [sacred] article.43 This oath is a Rabbinic institution, as will be explained.44 [The above applies] provided he claims articles that we can assume he owns45 or that it is customary for others to entrust to him.

יב

הַמַּדְלִיק אֶת הַבִּירָה שֶׁל חֲבֵרוֹ מְשַׁלֵּם כָּל מַה שֶּׁבְּתוֹכָהּ. שֶׁכֵּן דֶּרֶךְ בְּנֵי אָדָם לְהַנִּיחַ כָּל כְּלֵיהֶם וְכָל חֶפְצֵיהֶם בַּבָּתִּים. וְכָל שֶׁיִּטְעֹן בַּעַל הַבַּיִת הֲרֵי זֶה נִשְׁבָּע בִּנְקִיטַת חֵפֶץ וְנוֹטֵל. וּשְׁבוּעָה זוֹ מִדִּבְרֵי סוֹפְרִים כְּמוֹ שֶׁיִּתְבָּאֵר. וּבִלְבַד שֶׁיִּטְעֹן דְּבָרִים שֶׁהוּא אָמוּד בָּהֶן אוֹ שֶׁהוּא לָמוּד לִהְיוֹת אוֹתָן הַדְּבָרִים שֶׁטָּעַן פִּקָּדוֹן אֶצְלוֹ:

13

[The following rules apply when] a camel that is loaded with flax passes through the public domain, the flax that enters the shop46 is ignited by the lamp belonging to the shopkeeper and then sets fire to the entire building. The owner of the camel is liable, because he overloaded [his beast].47 [This applies regardless of] whether or not the animal stood.48 If the shopkeeper had placed his lamp outside, the shopkeeper is liable and must reimburse the camel driver even for the flax that burned, because he placed his lamp outside.49 [This applies] even with regard to a Chanukah lamp,50 for he should have sat [there] to guard it [from causing damage].

יג

גָּמָל שֶׁהוּא טָעוּן פִּשְׁתָּן וְעוֹבֵר בִּרְשׁוּת הָרַבִּים וְנִכְנַס פִּשְׁתָּנוֹ לְתוֹךְ הַחֲנוּת וְדָלְקָה בְּנֵרוֹ שֶׁל חֶנְוָנִי וְהִדְלִיק אֶת כָּל הַבִּירָה בַּעַל הַגָּמָל חַיָּב מִפְּנֵי שֶׁהִרְבָּה בְּמַשּׂאוֹי בֵּין שֶׁעָמְדָה הַבְּהֵמָה בֵּין שֶׁלֹּא עָמְדָה. הִנִּיחַ הַחֶנְוָנִי נֵרוֹ מִבַּחוּץ הַחֶנְוָנִי חַיָּב אַף בִּדְמֵי פִּשְׁתָּן מִפְּנֵי שֶׁהִנִּיחַ נֵרוֹ מִבַּחוּץ. וַאֲפִלּוּ נֵר חֲנֻכָּה הָיָה לוֹ לֵישֵׁב וְלִשְׁמֹר:

14

[The following rule applies when] a person bends standing grain belonging to a colleague toward a fire until it ignites. If the fire would not reach the grain unless it was spread by an uncommon wind, [the person who bent the grain] is not held liable by a mortal court.51 He does, however, have a moral and spiritual obligation to make reimbursement.52 When a person buries standing grain belonging to a colleague in earth or straw,53 and then a fire passes and consumes it, the person who buried [the grain] is not held liable by a mortal court.54 He does, however, have a moral and spiritual obligation to make reimbursement, because the person who kindled the fire is not liable for [the destruction of property that was] hidden.55

יד

הַכּוֹפֵף קָמָתוֹ שֶׁל חֲבֵרוֹ לִפְנֵי הָאֵשׁ עַד שֶׁתִּדְלַק אִם אֵין הָאֵשׁ מַגַּעַת לָהּ אֶלָּא בְּרוּחַ שֶׁאֵינָהּ מְצוּיָה פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם. וְהַטּוֹמֵן קָמָתוֹ שֶׁל חֲבֵרוֹ בְּעָפָר אוֹ בְּתֶבֶן וְעָבְרָה הָאֵשׁ וְאָכְלָה אוֹתָהּ הֲרֵי הַטּוֹמֵן פָּטוּר מִדִּינֵי אָדָם וְחַיָּב בְּדִינֵי שָׁמַיִם מִפְּנֵי שֶׁהַמַּדְלִיק אֶת הָאֵשׁ פָּטוּר עַל הַטָּמוּן:

15

When a fire spreads and harms a human being and injures him, the person who kindled the fire is liable for the damages, unemployment benefits, medical costs, pain and embarrassment suffered by the injured party,56 as if he had personally injured him. Although fire is one of a person's possessions, it is as if he caused him damage with his arrows.57 If, by contrast, injury to a man is caused by a person's animal or cistern, he is liable for the damages alone, as we have explained.58

טו

אֵשׁ שֶׁעָבְרָה וְהִזִּיקָה אֶת הָאָדָם וְחָבְלָה בּוֹ הֲרֵי הַמַּבְעִיר חַיָּב בִּנְזָקָיו וּבְשִׁבְתּוֹ וּבְרִפּוּיוֹ וּבְצַעֲרוֹ וּבְבָשְׁתּוֹ כְּאִלּוּ הִזִּיקוֹ בְּיָדוֹ. שֶׁאַף עַל פִּי שֶׁאִשּׁוֹ מָמוֹנוֹ הוּא הֲרֵי הוּא כְּמוֹ שֶׁהִזִּיקָה בְּחִצָיו. אֲבָל אִם הִזִּיקָה בְּהֶמְתּוֹ אוֹ בּוֹרוֹ אֶת הָאָדָם אֵינוֹ חַיָּב אֶלָּא בְּנֵזֶק בִּלְבַד כְּמוֹ שֶׁבֵּאַרְנוּ:

16

[The laws pertaining to] all the derivatives of fire59are the same as [those pertaining to] fire itself. What is implied? If a person placed a stone, a knife or a burden on his roof, and it fell because of an ordinary wind and caused damage, he must pay the full extent of the damages. All these are derivatives of fire.60 If it was an uncommon wind that caused them to fall and create damage, he is not liable.61

טז

כָּל תּוֹלְדוֹת הָאֵשׁ הֲרֵי הֵן כְּאֵשׁ. כֵּיצַד. הִנִּיחַ אֶבֶן אוֹ סַכִּין אוֹ מַשָּׂא בְּרֹאשׁ גַּגּוֹ וְנָפְלוּ בְּרוּחַ מְצוּיָה וְהִזִּיקוּ חַיָּב לְשַׁלֵּם נֵזֶק שָׁלֵם שֶׁכָּל אֵלּוּ וְכַיּוֹצֵא בָּהֶן תּוֹלְדוֹת הַבְּעֵרָה הֵן. וְאִם נָפְלוּ בְּרוּחַ שֶׁאֵינָהּ מְצוּיָה וְהִזִּיקוּ פָּטוּר: סְלִיקוּ לְהוּ הִלְכוֹת נִזְקֵי מָמוֹן בְּסַ''ד

Footnotes
1.

Without permission.

2.

This is considered as one of the 613 mitzvot of the Torah by Sefer HaMitzvot (positive commandments 241) and Sefer HaChinuch (Mitzvah 56).As the Tur and the Ramah (Choshen Mishpat 418:2) pointout, this applies even when the person took the precautions mentionedin the following halachot. Since he kindled a fire on his colleague'sproperty without permission, he must bear the consequences.

3.

As the Rambam states in Halachah 16, a major category hasderivatives. The derivatives of fire are any asset that one owns thatis transported further by the wind and causes damage.

4.

This communicates a fundamental principle. Although he is actingwithin his own domain, a person must take the necessary precautions toensure that he will not cause damage to another person's property.

5.

I.e., the higher the fire, the further he must retreat.

6.

The Hebrew wording used by the Rambam leads to the inference that astream or irrigation ditch that is dried out is not considered to be asufficient fire barrier.

7.

For it is not usual for a fire to spread across a body of waterthat size.

8.

Or wood. The Hebrew term used by the Rambam could be translatedeither way. The intent is combustible fuel.

9.

Here too, the assessment is simple. The higher the flame, thehigher the fence must must be.

10.

We find this term in Deuteronomy 32:22: There is a piercingfire in My nostrils. From the commentary of Rabbenu Chanan'el(Bava Kama 61a), it appears that the intent is a very hot firethat burns powerfully, but does not produce a high flame.

11.

Or wood. The Hebrew term used by the Rambam could be translatedeither way. The intent is combustible fuel.

12.

When a flame is this high, there are no limits to the extent thefire may spread.

13.

I.e., he kindled a fire, and the flame flew out of control.

14.

Had the wall not fallen, it would ordinarily have been consideredsufficient to impede the spread of the fire. If the fire was so greatthat it toppled the wall, the person would be liable for the damagesthe fire caused. In the instance at hand, however, the question is: Ishe held responsible for the damages the fire caused, because he couldhave rebuilt the wall and thus prevented the fire from spreading.

15.

The comparison is taken from (Bava Kama 23a).

16.

I.e., the ox was placed in a corral that was not securely locked. (See Chapter 4, Halachah 1.)

17.

These three individuals are not liable, because their incompetencecauses them to be freed of responsibility for their conduct. Theperson who gave them the fire is not held liable, for he did not setthe fire himself.

18.

For he is an indirect cause of the damage.

19.

In this instance, he is considered a direct cause of thedamage.

20.

This follows the principle When a student's (the principal whocharged the agent with causing damage) words conflict with a master's(God's, who forbade causing damage), whose words should be heeded?Since the agent is mentally competent, he must accept responsibilityfor his conduct.

21.

When he accepted the responsibility to guard the fire, he alsoaccepted the liability if he failed to do so adequately. See Chapter4, Halachah 4 and notes.

22.

For were it not for the wood, the fire would not have spread.

23.

Since the wood was already there, it is the person who kindled thefire who must accept responsibility.

24.

Because it is the fanning that causes it to spread.

25.

If, however, such winds are common, the persons who brought thewood and started the fire must accept responsibility. They should havetaken this factor into consideration.Note Maggid Mishneh and the gloss of Sefer Me'iratEinayim 418:9, who explain that the term an uncommon winddoes not refer to a storm wind that rarely comes, but rather to a windthat is an infrequent and out-of-the-ordinary matter, but still asomewhat recurrent meteorological occurrence.

26.

For without the wind's influence, the fire would not havespread.If, however, the wind is blowing at the time a person is involvedwith the fire, and he ignores the possible danger, he is held liable(Maggid Mishneh; Ramah, Choshen Mishpat 418:9).The Ramah (based on the Tur) also maintains that if it is acommon wind that caused the fire to spread, the last person who hadanything to do with the fire is liable.

27.

The Ra'avad objects to the Rambam's statements, maintaining thatthe liability of the person who fanned the fire is dependent on theviability of his deeds. Were his fanning sufficient to have caused thefire to spread even if it had not been fanned by the wind, he isliable. If not, he is not held liable.The Maggid Mishneh justifies the Rambam's ruling, citingseveral interpretations by the Sages in Bava Kama 60a. Henevertheless questions the Rambam's decision here, based on theRambam's own words in Hilchot Sh'chenim 11:1-2.The Kessef Mishneh resolves this difficulty, explaining thatin Hilchot Sh'chenim, the Rambam mentions a situation in which aperson winnows grain in his own domain, but the wind carries the chaffoutside his domain. There, even though an ordinary wind is involved,the person is not held liable. This appears to contradict the rulinghere. Nevertheless, as the Rambam himself states in HilchotSh'chenim, had it not been for the wind, the chaff would never havecaused damaged. In this instance, the person's fanning of the firewould have caused it to spread sufficiently to cause damage.

28.

Wood is consumed entirely by fire. Stone and earth are notconsumed entirely. Nevertheless, a fire might cause them todeteriorate until they are no longer useful (or as useful as they hadbeen). The liability for both these types of substances is alluded toin the verse the Rambam cites: Thorns are consumed entirely byflames (as are standing and bound grain, which the verse alsomentions). Why does the verse also mention a field (for the liabilityfor standing grain is mentioned explicitly)? To teach that even whenthe field is lying fallow, but its value deteriorates because it ischarred, the person is held liable. See Bava Kama 60a.

29.

Since it is the ordinary practice for such articles to be hiddenin a grain heap, the person who kindled the fire should haveconsidered this possibility. Therefore, he is liable for theirdestruction.

30.

Since it is abnormal for such articles to be hidden in a grainheap, the person who kindled the fire is not held liable. As stated inthe notes on the following halachah, the place taken by the utensilsis considered as if filled with grain, and restitution for that mustbe made.

31.

As in Halachah 1, since he kindled a fire in another person'sdomain without permission, stricter rules apply.

32.

Bava Kama 60a derives this law from the above verse, whichmentions standing grain. It comments: Just as standing grain isopenly revealed, so too, a person is liable only for entitiesthat are openly revealed.Note the Tur and Shulchan Aruch (Choshen Mishpat418:13), which state that this applies in an instance where the firewould have been stopped by a wall, the wall fell for reasons notdependent on the fire, and the person had the opportunity to repairthe wall. Although he is liable for the grain heap, he is not liablefor the articles hidden in it.The rationale is: If the fire were large enough to spread byitself, the person would be liable. If its spread was caused byfactors not dependent on the person who kindled the fire - e.g., anabnormal wind - he is also not liable for the grain heap.

33.

I.e., if the utensils took up a cubic foot of space,the person who kindled the fire must pay for a cubic foot of grain. This also applies with regard to a person who burnsclothes or glassware hidden in a grain heap, as mentioned in theprevious halachah.

34.

The Rambam's words are based on the Mishnah (Bava Kama 6:7).The Maggid Mishneh states that the intent is that the person isliable only for the kid. Since the kid is tied, it cannot flee. He isnot liable for the servant, because the servant is mentally competentand should have fled.

35.

He is not held liable financially for the death of the servant,because he is considered to have murdered him, and is liable forcapital punishment for his death. Therefore, we follow the principlethat a person who is liable for capital punishment (even when thatsentence cannot be administered) is free of liability for monetaryloss.There is a question if he is liable for the loss of the kid in thisinstance even when a servant is not killed.. Some explain that he is not liable, because the kid should have fled. Others explain that a kid is not of sufficient mental competence to know whether or not to flee (Maggid Mishneh). Significantly, these laws are not mentioned by the Tur and the Shulchan Aruch.

36.

For he gave him permission to store grain in his domain, notutensils.

37.

Wheat is more valuable than barley. Nevertheless, since inactuality it was barley that was burned, the person who kindled thefire is liable only for the barley.

38.

In this instance, he is liable to pay him only for barley, becausethat is what he gave him permission to store.

39.

This applies even if he was granted permission to make a heap ofwheat. Since the person who kindled the fire saw only barley, he isliable only for that (Sefer Me'irat Einayim 418:20).

40.

If he gave him permission to make a heap of barley, he is liableto pay him only for the barley. If he gave him permission to make aheap of wheat, he is liable to pay the value of the wheat that wasactually burned, and the value of remainder of the barley (SeferMe'irat Einayim 418:21).

41.

I.e., all the personal goods the person claims.

42.

Note the gloss of the Maggid Mishneh, which states that whenit is supported by an oath, the claim of the house owner is accepted,not only when the person who kindled the fire is uncertain about thevalue of the articles in the home he destroyed, but even when heclaims to be certain that they were not worth the money the houseowner demands.

43.

A Torah scroll (Hilchot Sh'vuot 11:8). In certaincircumstances, tefillin are substituted for a Torah scroll(Ibid.:12).

44.

See Hilchot Chovel UMazik 7:17; Hilchot To'en V'Nit'an1:2. (See also Hilchot Sh'vuot 11:6.)

45.

I.e., that according to his standard of living, one might assumethat he owns.

46.

In that era, retail outlets were usually stalls in the publicdomain, rather than enclosed edifices. The flax protruded into thestall, where it caught fire from the shopkeeper's oil lamp.

47.

And caused the flax to protrude beyond the borders of the publicdomain and enter the confines of the shopkeeper's stall.

48.

If the animal stands still, there is more reason to hold the cameldriver liable, for once the fire was kindled, he should move his beastto prevent it from spreading the blaze. Nevertheless, even when hedoes keep his animal moving, since he caused the fire to start, he isliable for all the damages.

49.

This is considered an act of negligence on the part of theshopkeeper. For the camel drivers and wagon drivers in the publicdomain do not suspect that there are lamps hanging there.

50.

Which we are commanded to place at the outside of our homes.

51.

In and of themselves, the actions of the person who bent the grainwere not sufficient to cause the fire to reach the grain; theinfluence of the wind was also necessary. Since the fire was spread byan uncommon wind, it is considered a factor beyond the person'scontrol, and he is not liable.

52.

For had he not bent the grain, the fire would not have reached it,even though an uncommon wind was blowing. As mentioned in the notes onHalachah 7, if the uncommon wind was blowing at the time the personbent the grain toward the fire, he is liable.

53.

The two examples are carefully chosen. Earth reduces thelikelihood that the grain will be consumed by fire, while strawincreases it. Nevertheless, in either case the same laws apply.

54.

For he himself did not set the fire.

55.

See Halachot 8 and 9.

56.

See Hilchot Chovel UMazik, ch. 1, for a detailed explanationof these five categories of compensation.

57.

This is the subject of a difference of opinion among our Sages(Bava Kama 22a). Rabbi Yochanan maintains, as the Rambam rules,that kindling a fire is regarded like shooting an arrow. Resh Lakishdiffers and maintains that a fire is regarded no differently from aperson's cistern or his animals.To explain Rabbi Yochanan's opinion: When a person shoots an arrow,he is considered to have caused damage with his person although thedamage took place far from him. So too, when he kindles a fire,despite the fact that the damage occurs in a distant place, it is asif he caused the damage with his person.Note the Maggid Mishneh, who points to an apparentcontradiction in the Rambam's rulings. For Rabbi Yochanan does notfree a person of liability for articles that are buried. It is,however, possible to explain that the Rambam does not accept RabbiYochanan's perspective blindly. He accepts it in this instance, butfollows the other interpretations with regard to buried property.

58.

Chapter 11, Halachah 6, and Chapter 13, Halachah 2.

59.

The Shulchan Aruch (Choshen Mishpat 418:1) defines thederivatives of fire as referring to any property that one owns that istransported further by the wind and causes damage.

60.

For just as a person is liable when an ordinary wind spreads afire, so too, he is liable for any other damage his property causesthat comes as a result of an ordinary wind.

61.

Just as he is not liable when an uncommon wind causes a fire tospread (Halachah 7).

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in the one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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