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When two people dig a pit—one to nine tefachim, another to ten—who is liable if an animal falls and dies? The shiur analyzes the dispute between the Shita and Tosafos (תוספות) over whether liability follows whoever creates a lethal depth (shem misah) or whoever digs last when the first did not create a lethal depth. The underlying chakira: does the Torah (תורה) assign bor ownership through shem misah, or through a rule of siluk maisa rishon?
This shiur examines a fundamental sugya in Bava Kamma 10a-b concerning the liability of two people who jointly dig a pit. The Mishna establishes that if one person digs nine tefachim and another completes the pit to ten tefachim (the minimum depth for a lethal pit), the second person is liable. The Gemara (גמרא) raises the question of whether this principle applies only when the first person did not create a shem misah (a lethal pit), or whether it extends to other scenarios such as ten to twenty tefachim or even six to seven tefachim. The shiur explores the machlokes between the Shita and Tosafos (תוספות). Tosafos on amud beis argues that if both people contributed to making the pit lethal (e.g., six to seven tefachim), both are liable. Tosafos reasons that the principle of acharon chayav (the last one is liable) applies only when the first person did not create a shem misah. If the first person already created a shem misah, the gezeiras hakasuv that only one person is the baal habor (pit owner) does not remove the first person's liability. By contrast, the Shita holds that whenever someone digs second and makes the pit deeper, the gezeiras hakasuv assigns full ownership and liability to the second person, removing the first person from liability entirely.
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Bava Kamma 10a-b
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