Halakhah su Esodo 21:33

But there is nothing that will clarify the difference between a negation and a prohibition to you besides the content of the statement. Indeed it will surely not be clarified by the word, for the word for negation and prohibition are the same in Hebrew; and that is the word, lo. So one learned must understand the content of the statement. And then he will quickly grasp which negative statement is a negation and which negative statement is a prohibition, according to our preceding explanation. And [the Sages], peace be upon them, already alluded to this matter. And that is in that which we find disagreement about a certain negative statement, as to whether it is a negation or a prohibition. And that is His saying regarding a bird sin-offering (Leviticus 5:8), "pinching its head at the nape, and he does not sever it." For behold our tanna - and that is the tanna that speaks in the mishnah (Zevachim 6:4) - holds that this is a prohibition; and therefore said that if he separated it, it is disqualified. And according to this, this negative statement would have to be a negative commandment. That is that if he severed it, it is disqualified - as if he brought leaven or honey [on the altar]. But Rabbi Elazar (ben Shimon) holds that this negative statement is a negation and not a prohibition; and that His saying, "he does not sever it," is intending to say, one does not have to sever the head, but rather one can cut it in any way that it might be. And hence - according to his opinion - if one severed it, it is [still] fit. And accordingly, they said in the Gemara, Zevachim (Zevachim 65b), "Rabbi Elazar ben Shimon would say, 'I have heard that we sever the bird sin-offering.' [Then] what is [the meaning of], 'he does not sever it?' He does not have to sever it." And they asked about this and said, "But from this - concerning a pit, about which it is written (Exodus 21:33), "and he does not cover it," is it also the same?" And the answer was, "There, it is written (Exodus 21:34), 'The one responsible for the pit must make restitution' - it is implied that he needs to cover it." Behold it has been clarified that they took a proof as to whether it is a negation or a prohibition from the content of the statement. And from it, it has become clear that His saying, "he does not sever it," is a negative commandment - according to what is written in the mishnah. And it has [also] become clear that His saying with a bird burnt-offering (Leviticus 1:17), "And he shall tear it open by its wings, he does not sever it," is inappropriate to count as a negative commandment - as it is a negation. And according to everyone, if he severs it, it is [still] fit. For it is because He said with an animal fire-offering (Leviticus 1:12), "And you shall cut it up into sections," that it would enter your mind that a bird burnt-offering is also like this. So He said that you do not need to sever it, but just tear it. So if he severed it, it is [still] fit - as is explained in its place.

I mention this interpretation to counter the heretics who do not believe the words of our Rabbis that the Sabbath extends from dusk to dusk. The true interpretation is what the Rabbis recorded, namely, that the Sabbath was given at Marah.⁷ “Israel was instructed in ten laws at Marah. Seven of these were accepted by the descendents of Noah. Three additional laws were courts, Sabbath, and respect for parents” (Sanhedrin 56b). The incident at Marah (Exodus 15:22–26) took place before the appearance of the manna (ibid., chapter 16). Scripture mentions “tomorrow” and not “this night,” for Scripture usually speaks of what is common, namely, that people work during the day. The meaning of “holy Sabbath” is that they should rest, and that is what they did, “The nation rested on the seventh day” (ibid. 16:30). In Jeremiah it is written: “to sanctify the Sabbath day by not working on it” (17:24). Moses mentioned “tomorrow,” which is daytime, because he addressed what is common. Similarly, “Man goes out to his activity and to his work until evening” (Psalms 104:23). Likewise, “You should not eat meat that was torn in the field” (Exodus 22:30), although the same prohibition applies to what was torn in a house. Similarly, “an occurrence at night” (Deuteronomy 23:11);⁸ This does not exclude an occurrence of the day. “an ox or a donkey fell there” (Exodus 21:33);⁹ Ox or donkey are not exclusive. and many more in the Torah like these.

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.

That is that He commanded us to administer the laws of the pit [that causes damage]. And that is His, may He be blessed, saying, "And when a man opens a pit" (Exodus 21:33). And the analyses of the law of this commandment have already been explained in the third and fifth [chapters] of [Bava] Kamma. (See Parashat Mishpatim; Mishneh Torah, Damages to Property 12.)