The Root of Liability for Bor Damages (1)

When describing the liability of a person who digs a pit, or bor, the Torah writes that the ba'al ha-bor, the owner of the bor is obligated to pay. This presentation implies that ownership over the bor is the source of liability and would make liability for bor damages consistent with the obligations of the owner of an animal to pay for the damages of the animal. Just as the Torah obligates the ba'al ha-shor or the owner of the ox to pay, the Torah obligates the owner of the bor to pay.

But can a person really own a bor? Firstly, a classic bor is located in reshut ha-rabim, which cannot be owned by a private person. Secondly, the bor is a hole in the ground, and not something tangible which can be owned. How can the Torah obligate a person for ownership of something which, according to halakhic guidelines, can't be legally owned?

One possible solution stems from a gemara in Bava Kamma (29b) which identifies chametz and a bor as two items which defy classic parameters of ownership. Chametz can’t be legally owned since it is assur ba-hana'a and items which provide no permissible utility cannot be owned. Yet despite the lack of classic ownership, the Torah obligates us to rid chametz lest we violate the prohibition of bal yeira'eh. Evidently even though chametz deviates from classic ownership patterns, the Torah endows an unnatural status of ownership which generates a prohibition of bal yeira'eh.

Similarly, the gemara claims, even though Bor doesn’t conform to typical items which are owned, as it is intangible and is located in a reshut ha-rabim. Yet the Torah establishes liability for the "owner" of the bor, effectively endowing a form of ownership to the digger even though the pit defies typical characteristics of owned items.

A different gemara (Bava Kamma 49b) suggests a completely different basis for the liability for damages caused by bor. The Torah introduces the laws of bor with the phrase "if a person uncovers a bor which had been covered by someone else or digs a new bor … " (Exodus 21:33). The gemara ponders why the Torah, having already established liability for uncovering a bor, still delineates that a person is liable for a newly dug bor. The gemara replies that this double language instructs that liability for a bor stems from "iskei keriya u'peticha" or the action of digging or opening up. This gemara claims that a bor isn’t owned by the digger and certainly isn’t owned by the person who removed the cover. Yet despite the absence of legal ownership, a person is obligated for the act of creating a bor- either through digging or through removing the cover. Even though there is no legal ownership upon the bor, the act of digging creates a public hazard which obligates the person for any damages which the public hazard causes. In fact, the gemara coins a phrase which captures this concept: the digger is considered a ba'alhatakala. Namely though the digger of the bor doesn’t own the item, he is the creator of the hazard or the mazik.

Namely, there are two different ways to understand the liability of bor: One possibility is that the person who digs the bor is awarded legal ownership by the Torah even though a pit doesn’t conform to the classic parameters of ownership. Alternatively, a person may be obligated since by digging the pit they created a mazik. Creating a public hazard is sufficient to create liability even upon an item which isn’t legally owned.

A Bor in a Private Domain

The classic bor described by the Torah is dug in the public domain. Would liability exist for a bor dug in a private reshut? Of course, if a person illegally walks into another persons land and falls into a pit, the homeowner is legally exempt since the trespasser had no rights to enter. What would happen though if the owner of the land not only dug a pit in his land but relinquished ownership over the land, effectively inviting people to walk through his property? This exact issue was debated by Rabbi Yishma’el and Rabbi Akiva, and it cuts to the heart of the greater bor conundrum.

Rabbi Yishma’el (at least according to the first reading of the gemara 49b-50a) claims that a person is only liable for a bor in reshut ha-rabim and not for a bor in reshut ha-yachid. Perhaps Rabbi Yishma'el claimed that the liability for a bor is due to creating a public hazard. A bor in reshut ha-rabim endangers the public and is considered a mazik. By contrast, a pit which was dug in private property may not be considered a hazard at the point of creation since at that time no one had the right to enter. The bor didn’t endanger anyone since no one was expected to enter. Even though subsequently ownership was relinquished and entry was permitted, there can be no obligation since a mazik was never created through digging.

Rabbi Akiva disagrees, and extends the liability for bor even to a pit which was dug in a private property (assuming of course, that subsequently the public was allowed to enter).

One way to explain Rabbi Akiva's position is that he associated liability for a bor with legal ownership. Though bor defies the classic characteristics of ownership, the Torah creates virtual ownership. If the Torah can endow virtual ownership and liability for a pit in a reshut ha-rabim it can certainly endow ownership for a pit dug in private property. Namely, Rabbi Akiva argues with Rabbi Yishma'el about the fundamental mechayav or root obligation of a bor. Rabbi Yishma'el believed that the mechayav is the creation of a mazik and therefore he limited liability only to a bor which imperils the public at the point of creation. A bor dug in a private domain doesn’t yet endanger the public and isn’t considered a mazik. In contrast, Rabbi Akiva believed that the root mechayav of bor is ownership and extended liability even to a bor in reshut ha-yachid.

Alternatively, Rabbi Akiva may have fundamentally agreed with Rabbi Yishma'el that the mechayav of bor is the creation of the mazik. However, he claimed that digging a bor in a private area and subsequently inviting people to walk through is considered one extended process of creating a mazik. The public hazard doesn’t have to exist at the point of digging. By digging and then inviting people to walk through the vicinity of my bor, I have created a public hazard.

Relinquishing Ownership of the Bor

Did Rabbi Akiva base bor liability upon ownership, or does he base the liability upon a creating a mazik but asserts that digging a bor and inviting people near the bor is tantamount to creating a mazik?

This internal question within Rabbi Akiva's logic may be at the heart of a debate between Rashi and Tosafot. What if a person dug a pit in their private reshut, and subsequently relinquished ownership both upon their land AND upon the bor. Rashi (Bava Kamma 27b s.v. d'afkarinhu) claims that the person is still liable. Tosafot (s.v. hani mili) disagree and claim that by relinquishing ownership upon the pit the person is no longer liable.

Perhaps Tosafot and Rashi disagree about Rabbi Akiva's internal logic. Tosafot believed that Rabbi Akiva extended liability a bor in a private property because he viewed ownership as the root of bor liability. The Torah awards ownership for a bor in reshut ha-rabim and therefore the digger is liable. In a reshut ha-yachid a person naturally owns a bor and is liable. If however the digger/owner explicitly renounces ownership of a bor in his private property, they are no longer considered the owner of the bor and aren’t liable.

Rashi, however claimed that Rabbi Akiva obligates the bor digger for creating a hazard- even if the bor was initially dug in a private property. Relinquishing ownership upon a bor doesn’t reduce the public hazard which was created and the digger remains liable.

A Bor Which Only Endangers One Person

A second machloket between Rashi and Tosafot may also reflect their differing understandings of Rabbi Akiva. The mishna in Bava Kamma (49b) speaks cryptically of a bor which is dug "in a private domain and opened up into a private domain.” Tosafot decode the case as a reference to a pit which was dug in the diggers private domain but whose entry was located in a different person's private property. The person who dug the bor in his own property is liable for damages caused to his neighbor in whose property the opening of the bor is located. Rashi disagrees with this reading and reinterprets the mishna to refer to a completely different scenario.

Perhaps Rashi was opposed to any liability for a bor which effectively only imperils one person. By digging a bor in my private property whose opening is in my neighbors property I have created a hazard which only endangers my neighbor. As he hasn’t invited the public to walk through his land, only he is imperiled. A bor which imperils one person or family isn’t considered a mazik and doesn’t create liability. By contrast, Tosafot may have viewed Rabbi Akiva's position as based on ownership. I own the bor and therefore am liable when my neighbor is damaged by falling into the bor which I own.

(Edited by Zachary Beer)