(33-36) The legislation slides from rights of persons to rights of property easily and without effort, by passing from the injuries which cattle cause to those which they suffer. They are injured (1) by the culpable laches of persons leaving their pits uncovered; (2) by hurts which one man's cattle inflict upon another's. Both kinds of loss have to be made good.
(33) If a man shall open a pit.--Rather, uncover a well. The wells in the East commonly have covers, which are removed when water is drawn, and then replaced. If a man neglected to replace a cover, he was rightly answerable for any damage that might ensue. The case was the same if he dug a new well, and neglected to cover it over.
Verse 33. - If a man shall open a pit. Rather, "If a man shall uncover a cistern." Cisterns, very necessary in Palestine, were usually closed by a flat-stone, or a number of planks. To obtain water from them, they had to be uncovered; but it was the duty of the man who uncovered them, to replace the covering when his wants were satisfied. Or dig a pit and not cover it. A man who was making a cistern might neglect to cover it while it was in course of construction, or even afterwards, if he thought his own cattle would take no hurt. But in the unfenced fields of Palestine it was always possible that a neighbour' s cattle might go astray and suffer injury through such a piece of negligence. An ox, or an ass, falling into a cistern, would be unable to extricate itself, and might be drowned.
21:22-36 The cases here mentioned give rules of justice then, and still in use, for deciding similar matters. We are taught by these laws, that we must be very careful to do no wrong, either directly or indirectly. If we have done wrong, we must be very willing to make it good, and be desirous that nobody may lose by us.
If a man shall open a pit,.... That has been dug in time past, and filled up again, or take the covering from it, and leave it uncovered: "or if a man shall dig a pit, and not cover it": a new one, in the street, as the Targum of Jonathan; or in a public place, as Jarchi and Aben Ezra; otherwise a man might dig one for water, in his own fields, in enclosed places, where there was no danger of cattle coming thither, and falling therein:
and an ox or an ass fall therein; or any other beast, as Jarchi observes; for these are mentioned only as instances, and are put for all others. Maimonides (s) says,"if a man digs a pit in a public place, and an ox or ass fall into it and die, though the pit is full of shorn wool, and the like, the owner of the pit is bound to pay the whole damage; and this pit (he says) must be ten hands deep; if it is less than that, and an ox, or any other beast or fowl fall into it and die, he is free,''
(s) Hilchot Niske Maimon. c. 12. sect, 1, 10. so Bartenora in Misn. Bava Kama, c. 1. sect. 1.
(33-36) The legislation slides from rights of persons to rights of property easily and without effort, by passing from the injuries which cattle cause to those which they suffer. They are injured (1) by the culpable laches of persons leaving their pits uncovered; (2) by hurts which one man's cattle inflict upon another's. Both kinds of loss have to be made good.
(33) If a man shall open a pit.--Rather, uncover a well. The wells in the East commonly have covers, which are removed when water is drawn, and then replaced. If a man neglected to replace a cover, he was rightly answerable for any damage that might ensue. The case was the same if he dug a new well, and neglected to cover it over.
and an ox or an ass fall therein; or any other beast, as Jarchi observes; for these are mentioned only as instances, and are put for all others. Maimonides (s) says,"if a man digs a pit in a public place, and an ox or ass fall into it and die, though the pit is full of shorn wool, and the like, the owner of the pit is bound to pay the whole damage; and this pit (he says) must be ten hands deep; if it is less than that, and an ox, or any other beast or fowl fall into it and die, he is free,''
(s) Hilchot Niske Maimon. c. 12. sect, 1, 10. so Bartenora in Misn. Bava Kama, c. 1. sect. 1.