“‘When a man opens a pit, or digs a pit and does not cover it, and an ox or a she-donkey falls into it, the one responsible for the pit must make restitutionâ€¦.”
I’ve never seen an ox in my life, except in movies. Or a donkey, for that matter, he or she. “Face it, rabbi. The Torah is full of such useless pronouncements.”
Too many people make that argument. To them, I offer one word: Snow.
Yes, snow. With all the snow we had last year, a friend asked whether “the Torah” has anything to say about clearing away the snow from walkways and sidewalks. This friend also wanted to know what a person must do if he or she is not home during a winter snowstorm.
I provided an answer in a column published last February 28. I am revisiting these questions in the wake of this week’s storm, and the probability of more snow falling before winter’s end.
My answer to the first part is to quote the very same “open pit” law of Exodus 21:33-34. My answer to the second part is to cite a verse often quoted here in different contexts-the Law of the Parapet.
Let us deal with the open pit first. It has less to do with whether an animal falls into an open hole, and more to do with whether we create an obstruction of some kind that creates a public hazard.
To dig into this pit a bit more deeply, we turn to a discussion in the Babylonian Talmud tractate Bava Kama 52a:
According to the Mishnah, “If [the owner of a pit] covered it properly and an ox or a she-donkey [nevertheless] fell into it and was killed, he would be exempt” from penalty. The pit owner, after all, took all the necessary precautions.
Except for one thing: To the rabbis of the Gemara, the Mishnah has a huge open pit of its own. “But if he ‘covered it properly,’ how did an animal fall [into the pit]?” the Gemara asks. “Said Rabbi Yitzchak bar Bar Chana: [The cover] rotted on its underside [and thus wasn’t visible to the owner].” In other words, since he took every precaution, yet could not see that anything was wrong, he is exempt.
Wood, however, rots. A reasonable person needs to inspect a cover made out of wood every now and then to be certain it is still in good condition. So the Gemara needs to find another reason for the apparent contradiction.
An anonymous sage therefore asks, “What if he had covered it in such a way that it was able to hold [the weight of] oxen, but not of camels, and camels came by first and weakened the cover, and oxen then came and fell into it [the pit], then what?”
Comes the answer: It all depends on whether camels are normally found in the area. If “camels used to pass from time to time, he was certainly carelessâ€¦.”
Obviously, then, if camels are rarely seen in the area, or are never seen there, he probably was not careless.
In other words, it is a matter of anticipation.
That brings us to Maimonides (the Rambam). In his Mishneh Torah, the Laws of the Murderer and the Saving of Lives 6:4 and 6, he puts it this way:
“There is a person who kills unintentionally, whose acts resemble those willfully perpetrated. Specifically, these acts involve negligence, or that care should have been taken [with regard to a certain factor] and it was not….”
We will return to this in a moment.
The laws regarding the goring ox that immediately precede the discussion of the open pit (Exodus 22:28-32) make clear the need to anticipate hazards. If a person knows that his ox is prone to harming people or property, but he does not take preventive measures, he is as responsible as the ox for any damage, and even must pay with his life if life was taken.
In other words, if you know that a problem is likely to occur, you have to take precautions.
Which brings us to the parapet. If a person decided to leave the snow zone and winter in Florida, say, that person must nevertheless arrange for snow removal back home, especially in any part of his home to which the public could gain access, such as sidewalks and even pathways to the house. (Neither snow nor sleet must deter a mailman, but he or she does not have to slip and slide to deliver the mail.)
Torah law requires that when a person is building a house, he must build a parapet around the roof, “that you should not bring any blood upon your house, if any man falls from there.” (Deuteronomy 22:8)
This law is subject to the broadest interpretation possible, as rabbinic decisions make clear. Thus, we are told in BT Bava Kama 15b that a person may not even keep a damaged ladder in his home because of it.
In addition to the Rambam passage cited earlier that “care should have been taken,” other commentators also note, as does Rabbi Samson Raphael Hirsch, that this Torah law even requires “local civil authorities to intervene to have anything at all that might be dangerous removed” from a person’s home.
Finally, there is the question my friend did not ask: What if the snow falls on Shabbat?
There is a complicated road that leads to a simple answer: Snow may not be removed on Shabbat from any areas around the home where it does not create a safety hazard for anyone. If the snow (or ice) does pose a safety hazard, “Preservation of life takes precedence even over Shabbat.” (See the discussion at BT Shabbat 132a.)
There is nothing anachronistic about the Torah’s laws. There is much wrong in thinking that there is.