The commandment on the court to judge the damages of a pit: To judge about the laws of one who opens a pit in a place where it is an obstacle for people, as it is stated (Exodus 21:33), “If a man opens a pit” — as it is explained in the section. And it is not specifically a pit, but rather even a ditch or a cave (Bava Kamma 50b), but it only stated “pit” to teach that there needs to be enough [depth] to it to kill — which is twenty fingerbreadths.
Its roots have already been written. Its laws are, for example, that which they said (Bava Kamma 53b), “‘An ox’ and not a man — ‘a donkey’ and not vessels; one who digs a pit in his [own] domain and abandons his domain but not his pit is liable, [but] if he abandons his pit as well, he is exempt, since he dug it in his [own] domain — which is not the case if he dug in the public domain, since he was not allowed to dig it to begin with, and therefore he is liable in every way; so [too] one who digs a pit in his domain, immediately adjacent to the public domain and did not abandon his pit but there is nothing intervening between the pit and the public domain — like those that dig for ushin, the understanding of which is foundations — is exempt, even though it is impossible for the public to guard itself from it, since it is so adjacent to the path, as it is impossible to inhabit the world without everyone [building] foundations for their homes; the law of one who opens a pit even though he did not dig it, [about] which they, may their memory be blessed, said (Bava Kamma 49b), that he is liable, since he is nonetheless the responsible party for the mishap; the difference among the laws that come with the matter of opening of a pit according to the strength or weakness of the pit’s cover; the law of partners in the matter of the covering (Bava Kamma 51a); the law of a pit that was dug by two people, one after another, as to which of them has the liability (Bava Kamma 51a); and the laws of the obligation that a person has to distance the [danger], so that damage does not happen to people through his waters, his thorns and his glass (Bava Kamma 31a). And the rest of its details are elucidated in the third and fifth chapters of Bava Kamma and in Bava Batra. (See Tur, Choshen Mishpat 410.)
And [it] is practiced by males, since it is upon them to administer justice; but not upon females, since they do not judge. But nonetheless, [women] are included in the law of payments, whether they caused damage or had damage caused to them.
מִצְוַת בֵּית דִּין לָדוּן בְּנִזְקֵי הַבּוֹר – לָדוּן בְּדִינֵי הַפּוֹתֵחַ בּוֹר בְּמָקוֹם שֶׁהוּא כִּשָּׁלוֹן לִבְנֵי אָדָם, שֶׁנֶּאֱמַר (שמות כא לג) כִּי יִפְתַּח אִישׁ בּוֹר, כְּמוֹ שֶׁכָּתוּב בַּפָּרָשָׁה. וְלָאו דַּוְקָא בּוֹר אֶלָּא אֲפִלּוּ שִׁיחַ וּמְעָרָה (ב"ק נ, ב) וְלֹא נֶאֱמַר בּוֹר אֶלָּא לְלַמֵּד שֶׁיְּהֵא בּוֹ כְּדֵי לְהָמִית דְּהַיְנוּ עֲשָׂרָה טְפָחִים.
The commandment on the court to judge the damages of a pit: To judge about the laws of one who opens a pit in a place where it is an obstacle for people, as it is stated (Exodus 21:33), “If a man opens a pit” — as it is explained in the section. And it is not specifically a pit, but rather even a ditch or a cave (Bava Kamma 50b), but it only stated “pit” to teach that there needs to be enough [depth] to it to kill — which is twenty fingerbreadths.
שָׁרָשֶׁיהָ כְּבָר נִכְתַּב. דִּינֶיהָ, כְּגוֹן מַה שֶׁאָמְרוּ (שם נג ב) שׁוֹר וְלֹא אָדָם, חֲמוֹר וְלֹא כֵּלִים. חוֹפֵר בּוֹר בִּרְשׁוּתוֹ וְהִפְקִיר רְשׁוּתוֹ וְלֹא בּוֹרוֹ, שֶׁחַיָּב. הִפְקִיר בּוֹרוֹ גַּם כֵּן, פָּטוּר, לְפִי שֶׁבִּרְשׁוּתוֹ חָפַר. מַה שֶׁאֵין כֵּן בְּחוֹפֵר בִּרְשׁוּת הָרַבִּים שֶׁאֵינוֹ חוֹפֵר בִּרְשׁוּת מִתְּחִלָּה, וּלְפִיכָךְ חַיָּב בּוֹ בְּכָל צַד, וְכֵן הַחוֹפֵר בּוֹר בִּרְשׁוּתוֹ סָמוּךְ לִרְשׁוּת הָרַבִּים מַמָּשׁ וְלֹא הִפְקִיר בּוֹרוֹ וְאֵין שׁוּם דָּבָר מַפְסִיק בֵּין הַבּוֹר לִרְשׁוּת הָרַבִּים, כְּגוֹן אֵלּוּ הַחוֹפְרִין לְאֻשִּׁין פֵּרוּשׁ יְסוֹדוֹת לְכָתְלֵיהֶן פָּטוּר. וּמִפְּנֵי כֵן פָּטוּר, אַף עַל פִּי שֶׁאִי אֶפְשָׁר לָרַבִּים לְהִשָּׁמֵר אַחַר שֶׁהוּא סָמוּךְ לַדֶּרֶךְ כָּל כָּךְ, שֶׁאִי אֶפְשָׁר לְיִשּׁוּב הָאָרֶץ בִּלְתִּי שֶׁיַּעֲשׂוּ כָּל אֶחָד יְסוֹדוֹת לְבָתֵּיהֶם, וְדִין הַמְגַלֶּה בּוֹר אַף עַל פִּי שֶׁלֹּא חֲפָרוֹ, שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"ק מט ב) שֶׁחַיָּב, דְּמִכָּל מָקוֹם בַּעַל הַתַּקָּלָה הוּא, וְחִלּוּק הַדִּינִין הַבָּאִים בְּעִנְיַן הַגִּלּוּי לְפִי כִּסּוּיוֹ שֶׁל בּוֹר בְּחָלְשׁוֹ וְחָזְקוֹ, וְדִין (שם נא א) בּוֹר שֶׁל שֻׁתָּפִין בְּעִנְיַן הַכִּסּוּי, וְדִין (שם) בּוֹר שֶׁחֲפָרוּהוּ שְׁנַיִם זֶה אַחַר זֶה עַל מִי מֵהֶן חִיּוּבוֹ, וְדִינֵי (שם לא א) חִיּוּב שֶׁיֵּשׁ לוֹ לָאָדָם בְּהַרְחָקַת הַנֶּזֶק כְּדֵי שֶׁלֹּא יָבֹא הַנֶּזֶק לִידֵי אָדָם בְּמֵימָיו וְקוֹצָיו וּבִזְכוּכִיּוֹתָיו, וְיֶתֶר פְּרָטֶיהָ מְבֹאָרִים בְּפֶרֶק שְׁלִישִׁי וַחֲמִישִׁי מִקַּמָּא וּבָתְרָא [שם תי]
Its roots have already been written. Its laws are, for example, that which they said (Bava Kamma 53b), “‘An ox’ and not a man — ‘a donkey’ and not vessels; one who digs a pit in his [own] domain and abandons his domain but not his pit is liable, [but] if he abandons his pit as well, he is exempt, since he dug it in his [own] domain — which is not the case if he dug in the public domain, since he was not allowed to dig it to begin with, and therefore he is liable in every way; so [too] one who digs a pit in his domain, immediately adjacent to the public domain and did not abandon his pit but there is nothing intervening between the pit and the public domain — like those that dig for ushin, the understanding of which is foundations — is exempt, even though it is impossible for the public to guard itself from it, since it is so adjacent to the path, as it is impossible to inhabit the world without everyone [building] foundations for their homes; the law of one who opens a pit even though he did not dig it, [about] which they, may their memory be blessed, said (Bava Kamma 49b), that he is liable, since he is nonetheless the responsible party for the mishap; the difference among the laws that come with the matter of opening of a pit according to the strength or weakness of the pit’s cover; the law of partners in the matter of the covering (Bava Kamma 51a); the law of a pit that was dug by two people, one after another, as to which of them has the liability (Bava Kamma 51a); and the laws of the obligation that a person has to distance the [danger], so that damage does not happen to people through his waters, his thorns and his glass (Bava Kamma 31a). And the rest of its details are elucidated in the third and fifth chapters of Bava Kamma and in Bava Batra. (See Tur, Choshen Mishpat 410.)
וְנוֹהֶגֶת בִּזְכָרִים, שֶׁעֲלֵיהֶם לַעֲשׂוֹת דִּין וְלֹא בִּנְקֵבוֹת שֶׁהֵן אֵינָן דָּנוֹת, אֲבָל מִכָּל מָקוֹם בִּכְלַל דִּין הַתַּשְׁלוּמִין הֵן, בֵּין הִזִּיקוּ אוֹ הֻזְּקוּ.
And [it] is practiced by males, since it is upon them to administer justice; but not upon females, since they do not judge. But nonetheless, [women] are included in the law of payments, whether they caused damage or had damage caused to them.