Exodus 21:33

And if a man openeth a pit in the street, and doth not cover it, and an ox or an ass fall therein;

וכי יפתח איש בור, one which was already deep enough to cause fatal harm to animals when not covered; when the owner deepened it further, his sin being that he did not cover it to render it harmless. כי יכרה איש בור, or even if the man in question only digs a hole and fails to cover it at the end of the day, seeing he did not complete it until the following day, and he considered it too much bother to put a temporary cover on it pending his completing his excavation, he is held responsible for any damage thus caused.

ונפל שמה שור, “and an ox falls into that pit;” (because it was not covered); Rashi explains that the Torah chose the ox as an example which applies to all other domestic animals also. Wherever the word שור occurs in the Torah, it serves as an example applicable to other domestic animals. When both שור and חמור, “ox and donkey” are mentioned, what is meant is “an ox as opposed to a human being,” and the word חמור, donkey, is meant to be contrasted with “inert vessels.” If you were to argue that the word שור at least once, is needed in order to establish its connection to the Sabbath laws where the Torah wrote in Exodus 23,12 that “your ox must rest on the Sabbath,” the answer is that unless we were to deduce from the repeated use of these types of animals and no others that they were meant to exclude human beings and inert vessels from the respective legislation under discussion, the Torah did not have to use either example, and simply write that something will fall into the pit, without listing any example. If this is so, i.e. that the word ונפל, “it falls,” includes both ox, donkey, etc.; just as these words do in connection with the Sabbath rest to be observed by the possessions of a Jew on the Sabbath, the words “ox” and “donkey” are available for teaching us additional rules. Nonetheless, it is still difficult to understand why the Torah chose as its examples animals and not human beings that would fall into the pit of which our verse speaks. This can be deduced from the words: והמת יהיה לו, “and the carcass will be his;" i.e. he who owned this animal while alive is permitted to make use of its carcass other than consuming it. This makes clear that the owner of the offending animal is not permitted to make any use of the animal or vessel his ox had killed or destroyed. This has been pointed out already in the Jerusalem Talmud in connection with a different problem, namely if an owner of a Canaanite slave who has not yet been circumcised and undergone immersion in a ritual bath, is permitted to start working for his owner. The reason why the dead animal is forbidden to be made any use of is derived from Deuteronomy 21,1 where the subject of the heifer that is killed as symbolic atonement for the people in whose vicinity an anonymous person had been murdered, their declaring that he had not been denied food or shelter in their town. In that verse the Torah uses the apparently unnecessary word שם, “there,” as it does in connection with the death of Miriam in Numbers 20,1. The rabbis conclude from these two unnecessary words, that just as a human carcass is forbidden to be made any use of, so it is forbidden to make any use of the carcass of the heifer discussed in Deuteronomy 21,4. [This editor does not understand why the author ever assumed that a human being could have served as the example in our verse, as when a human being falls into a pit the person who had failed to cover it is not responsible, as human beings have been given eyes to see with and a brain to use to watch where they are going.] (Compare Rashi, who contrasts שור with אדם, i.e. no compensation is payable for human beings who fall into the pit.] The Talmud in tractate Avodah zarah folio 29, quotes the school of Yannai as saying that the reason why such making use of the dead is prohibited, is that death is associated with atonement, i.e. כפר לעמך ישראל, “grant atonement for Your people of Israel,” [so that they will regain their status as being holy, Ed.] and just as something holy must not be used for a secular use, so also the dead who have achieved forgiveness through having died, and have recaptured their former status as innocent holy beings.