Of oxen, open pits, and falling snow

Of oxen, open pits, and falling snow

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 restitution….

“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 have had of late, a friend asked whether “the Torah” has anything to say about clearing away the snow from walkways and sidewalks. And what if a person is not home during a winter snowstorm?

My answer to the first part is to quote the very same “open pit” law from Exodus 21:33-34. My answer to the second part is to cite a verse oft 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 and could not see that anything was wrong, he is exempt.

Wood, however, rots. A reasonable person has to inspect a cover made out of wood every now and then to be certain it is still in good condition. So the Gemara must find another reason for the apparent contradiction.

An anonymous someone 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, 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 careless….”

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 about the goring ox that immediately precede the open pit (Exodus 22:28-32) make clear the need to anticipate hazards. If a person knows his ox is prone to harming people or property but 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, that person nevertheless must arrange for snow removal back home.

Torah law requires that when building a house, a person 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).

Rabbinic decisions make clear that this law is subject to the broadest interpretation possible. Thus, we are told in BT Bava Kama 15b that you may not keep a damaged ladder in your home because of it.

In addition to the Rambam 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 which 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, but there is much wrong in thinking that there is.