The laws in Parshas Mishpatim (Exodus 21:33-34) address damages caused by a **Bor** (a pit or obstacle). The Torah states: "And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or a donkey falls therein; the owner of the pit shall make restitution..."
In a practical scenario, if someone digs a hole in the public domain and leaves it uncovered, and a neighbor's ox—valued at $5,000—falls in and dies, the person who dug the hole is liable to pay the full $5,000 to the ox's owner.
### The Core Legal Paradox: "The Owner of the Pit"
The Torah refers to the liable party as the **Baal HaBor** (the owner of the pit). However, this occurs in **Reshus HaRabim** (the public domain), where no individual owns the space. Moreover, the person who dug the hole typically abandons it (**hefker**), having no intention to retain possession. Legally and literally, the digger is neither the owner of the land nor the owner of the pit itself. How, then, can the Torah designate him as the "owner of the pit" and hold him fully liable for damages?
### Resolution: Master of the Obstacle
Rashi explains that **Baal HaBor** does not refer to ownership of the real estate or the physical pit. Instead, it means **Baal HaTakala**—the master or "owner" of the obstacle/hazard. The Torah establishes a unique legal principle: liability can exist without physical ownership. Even though the person does not own the land or the pit, because he created the hazard in a public space, he is assigned the legal status of "ownership" for the sole purpose of accountability for resulting damages.
### Talmudic Parallels: Liability for the Ownerless
A related Talmudic principle (Bava Kamma) states that there are two things not truly in a person's domain, yet the Torah treats them as if they are:
- A pit dug in the public domain: the digger does not own it, but remains liable.
- Chametz (leavened bread) on Passover: a person must disown their chametz before the holiday. Once disowned, it legally belongs to no one. Yet if it remains in their possession during Pesach, they are still held responsible for "possessing" it.
In both cases, the Torah creates a legal fiction of responsibility for something the person does not actually own.
### Contrasting Bor with Other Categories of Damage
The laws of **Bor** differ from the other primary categories of damage (**Avos Nezikin**):
- **Shor** (Ox): Liability arises because the owner possesses the ox. An ownerless ox that causes damage leaves no one liable. Ownership directly triggers responsibility.
- **Eish** (Fire): A person who lights a fire remains liable even if wind carries it elsewhere. While he does not "own" the fire itself, igniting and directing it constitutes an active extension of his action (**kocho**).
- **Bor** (Pit): The pit is passive. The digger is not actively causing damage at the moment of the accident. Liability stems purely from creating and leaving a hazard in the public domain. [אד"ש]
### Alternative View vs. Talmudic Consensus
Ibn Ezra suggests the term "owner of the pit" applies because the person dug it for a specific purpose or need, implying personal interest. However, the dominant Talmudic view (aligned with Rashi) rejects this requirement. Liability applies even if the pit was dug and completely abandoned with no interest or intended use. Responsibility is based solely on the creation of the hazard (**Takala**), not on ongoing personal benefit.
### Broad Definition of Bor
**Bor** is not limited to an excavated hole. Any hazard placed or left in the public domain falls under this category, including:
- Leaving a pitcher or jug in the street
- Placing a large stone on the sidewalk
- Dumping manure or garbage in a public thoroughfare
If a pedestrian or animal trips over such an item, or if an animal falls into a pit and dies (even from toxic fumes rather than the fall itself), the person who created/left the obstacle is liable under the laws of Bor.
### Rambam's Perspective
The Rambam views Bor as a distinct category. While damages from an ox or fire involve failure to properly guard (**shmirah**) one's property, Bor centers on the very act of creating a hazard in a place where it does not belong. The moment an obstacle is placed in the public domain, an infraction occurs, and absolute responsibility follows for all resulting consequences.
### Conclusion
The term **Baal HaBor** is not about real-estate ownership; it declares ultimate accountability for creating a public hazard. The Torah holds the creator of the obstacle responsible, even without conventional ownership, establishing a unique framework of liability centered on the existence of the danger itself.
להעיר מדברי תוספות חכמי אנגליה וז"ל י"ל להכי נקט הכי שהכתוב קראו בעל דכתיב בעל הבור ובחמץ כתיב לא יראה לך שלך אבל גבי אש לא מצינו אלא ויצא אש ומבואר בדבריהם דרק בבור חייב בגלל שממונו הזיק משום דהתורה עשאתו ברשותו אבל באש שלא כתוב שם בעל האש לכן יתחייב באש רק בגלל הפשיעה שיצר מזיק ולא בגלל שממונו הזיק. ועי' בס' בית האוצר על בב"ק עמ' כ"ח ועוד הרבה ספרים שדנו בזה עפ"י חיפוש במילים של התוספות באוצר החכמה.
