In an introduction to this week’s Torah portion of Mishpatim, the Rashbam mentions that even though the specific halachos gleaned from the Torah portion are the most important thing, which could be found in the Talmud and is brought by his grandfather, Rashi’s commentary on the Torah, here in there, but the Rashbam is coming to explain the basic understanding of each pasuk, and therefore he will explain each mitzvah and law according to derech eretz, the proper mussar lesson, i.e. character development, that can be learned through the general understanding of the pesukim. (Click Here for Hebrew text.)
As an example, within the Torah portion there is the discussion of the laws of damages, including damages due to a pit. “And if a person opens a pit, or if a person digs a pit and does not cover it, and a bull or a donkey falls into it, the owner of the pit shall pay; he shall return money to its owner, and the dead body shall be his” (Shemos 21:34, 34). The Gemara in Bava Kamma 51a asks why the Torah has to mention both opening and digging a pit, for if one is liable for opening a pit, all the more so he should be liable for digging a pit? The Rashbam on the Torah answers this question saying, “When a person opens a pit which is deep and finishes his job already and is negligent and does not close the pit, or even if a person digs a pit and does not cover it each day by nightfall when he finishes his work, since he has to enter it the next day and dig some more, and it’s a hassle for him to cover it each day, nevertheless he is liable.”
The Rashbam is answering the gemara’s question by saying that if one is in the midst of digging a pit, let say at a jobsite, he has every excuse, which might even make sense, or he can at least convince himself he has a logical argument of why it’s not worth covering the pit at the end of every workday as long as he has not finished the job yet. Maybe he blocked it off, put warning signs next to it, but to properly cover it, why should that be needed; what could really happen from now until the job is finished? The Torah is emphasizing that this is a lazy excuse, and one must take proper precautions to remove the potential damage one creates, even if it means covering and uncovering the pit each day until the job is done.
The Chizkuni alludes to the point the Rashbam is making and then explains in more detail the parameters of this damage. There is an important lesson that will be learnt through our responsibility to act as cognizant, mindful human beings. The Chizkuni says, “Either when a person opens a pit which was already finished for some time, or even if he digs a pit now and does not cover it in the evening because he wants to come back to it the next day to do more work of digging in the pit and he does not cover it [then he is liable]. But if he covers it then he is exempt, but only if it was covered properly. What is considered properly? Heavy enough for a wagon carrying stones to be able to ride over it, as stated in the Gemara Yerushalmi Bava Kamma 5:6, ‘Don’t make a hole under the street unless a wagon carrying stones can ride over it.’ Now if an ox falls into the open pit [then there is liability], but not if a person falls in because a person is a mindful being who would be watching where he is going, so if he falls in, he is the cause of hurting himself. The pasuk also mentions a donkey, to exclude vessels, for vessels don’t move without the protection of a person, and since he didn’t watch them well, he caused a loss to himself.” (Click here for Hebrew text.)
The Chizkuni explained all the basic laws of damages due to a pit. Whether a person opened a pit that was completed a while ago, or he is in the midst of digging a pit and is too lazy to cover it at the end of each day, which is granted not easy to do because the covering must be heavy and sturdy enough to hold a wagon carrying stones going across it. However, liability is only for animals that fall into it or tripped over it; injuries to human beings and their possessions who are not animals that have a “mind of their own,” the one responsible for the pit is exempt for those damages in general because a person is expected to have enough sense to take care of himself and his possessions and be cognizant of his surroundings.
One can still wonder why this is true, for the person who opened or dug up the pit was acting negligibly by not covering it up properly, and even with all his excuses and rationales he is still liable if an animal gets hurt by the pit. So why should human injury and his vessels be any different? The pit owner was still negligent, that hasn’t changed; why should anyone else be more careful, shouldn’t it be the person who dug up or opened the pit’s fault for causing such an obstruction and danger in the street?
We see from here, and when looking into the matter this is true by other damages as well, that Hashem expects human beings to use the gift He gave us of intellect and thought in order to be cognizant of our surroundings and to take proper precautions to not hurt anyone, but also not to get hurt when it can be avoided. It does not make a difference if you are the victim or the perpetrator you are still a human being and there are expectations from Hashem to use the gifts He has endowed us with. Even if there are times when the perpetrator isn’t liable for the damage to the victim because the victim is responsible to take care of himself that still does not exempt the perpetrator from putting in his efforts to avoid the damage, he just isn’t liable if damage happens. If we don’t use our sechel prpoerly then excuses we make up are just excuses.