Talmud - Bava Kamma 43a בבא קמא מ״ג א׳

and subsequently married a Canaanite slave who had also been emancipated, and became pregnant from him, or if she was a convert who became pregnant from a male convert, and both the husband and wife died without heirs, the assailant gains by not having to pay, since there are no heirs. In any event, it is explicitly stated in the baraita that the beneficiary of the compensation due to her, including that which she would have received during her lifetime, is not her husband but rather her heirs.

Rabba said: This baraita relates to a divorcée; since they got divorced, the husband does not inherit from her. Likewise, Rav Naḥman said: The baraita relates to a divorcée.

The Sages said in response: If she is a divorcée, she should also share in the compensation for the miscarried offspring. Why should her ex-husband receive the full payment?

Rav Pappa said: The Torah awarded the payment of compensation for miscarried offspring to the husband, even if he is not actually her legal husband but rather engaged in licentious sexual intercourse with her. Although he has no rights to her property, the damages for the miscarried offspring belong to him alone, as he is the father of the offspring. What is the reason? The verse states: “As the husband [ba’al] of the woman shall impose upon him” (Exodus 21:22), indicating that damages are not collected by the woman, but by the man who engaged in intercourse [ba’al] with her, impregnating her. Therefore, if they got divorced, the ex-husband receives the payment.

The Gemara asks: Why do Rabba and Rav Naḥman explain this baraita as referring to a divorcée? They could have answered, in accordance with their own opinions elsewhere (Bava Batra 124b), that it is referring to payments that are not considered to have been in the woman’s possession during her lifetime, but rather are considered property due to the woman, which her husband does not inherit. Let us establish this baraita, according to Rabba, as referring to a case where they collected money for the damage and pain, and according to Rav Naḥman, where they collected land.

As with regard to the right of a firstborn to receive a double portion of the inheritance of his father, he receives a double portion only of the property possessed by his father, not of the property due to him. In a case where money was owed to the father, Rabba says: If the heirs collected the debt from land, the firstborn has the right to a double portion, since it is considered property that was already in the father’s possession. If they collected money, he does not have a double portion, as it is considered property due to the father. And Rav Naḥman says: If they collected money, he has a double portion, and if they collected land, he does not have a double portion.

The Gemara answers: That statement applies according to the residents of the West, i.e., Eretz Yisrael, in accordance with the opinion of the Rabbis, who limit the rights of a firstborn to his father’s property to the extent that they hold he does not receive a double portion of any appreciation in the property occurring after his father’s death.

By contrast, when they state that this baraita here relates to a divorcée, it is in accordance with the opinion of Rabbi Yehuda HaNasi that the firstborn receives a double portion even in the appreciation of the property occurring after the father’s death. According to this opinion, clearly everything due to the father is considered to be in his possession, whether he receives his compensation in money or in land. The same applies to a husband, who inherits the rights to inherit compensation for damage and pain inflicted on his wife. That is why Rabba and Rav Naḥman had to interpret this baraita as relating to a divorcée.

§ Rabbi Shimon ben Lakish says: With regard to an ox that killed a Canaanite slave unintentionally, the owner is exempt from paying the fine of thirty shekels, as it is stated: “He shall give to their master thirty shekels of silver, and the ox shall be stoned” (Exodus 21:32). It is derived from the verse that the liability to pay thirty shekels is dependent on the stoning of the ox; whenever the ox is liable to be killed by stoning, the owner pays thirty shekels as compensation for the damage. If the ox is not liable to be killed by stoning, e.g., if it killed unintentionally, the owner does not pay thirty shekels.

Similarly, Rabba says: With regard to an ox that killed a freeman unintentionally, its owner is exempt from paying ransom; as it is stated: “The ox shall be stoned, and its owner also shall be put to death. If a ransom is laid on him” (Exodus 21:29–30). This indicates that whenever the ox is liable to be killed by stoning the owner pays ransom; and if the ox is not liable to be killed by stoning the owner does not pay ransom.

Abaye raised an objection to Rabba’s statement from a mishna: If a person admits: My ox killed so-and-so, or: My ox killed the ox of so-and-so, this owner pays based on his own admission (Ketubot 41a). This cannot be referring to the payment of a fine, as a person who admits his responsibility for an act incurring a fine is exempt from paying the fine. Clearly, it must be referring to a payment for which one can render himself liable through admission. What, is it not referring to the payment of ransom? If so, this proves that payment of ransom is not dependent on whether the ox is liable to be killed by stoning, as the ox cannot be killed based on its owner’s admission alone.

The Gemara answers: No, it is referring to payment of the monetary value of the victim. Although he is not liable to pay ransom, as the ox is not killed, nevertheless, since by his own admission his ox caused damage, he is liable to pay damages.

Abaye challenged this answer: If it is referring to the value of the victim, say the latter clause of that mishna: If a person admits: My ox killed the Canaanite slave of so-and-so, he does not pay based on his own admission. And if, as you claim, the mishna is referring to the value of the victim, not to the thirty-shekel fine, why should he not pay?

Rabba said to Abaye: I could have answered you by saying that the former clause, which discusses an ox killing a freeman, is referring to the value of the victim, and the latter clause, which relates to an ox that gored a slave, is referring to payment of the thirty-shekel fine. But I will not answer you with a forced answer. Instead, I will answer as follows: Both this clause and that clause refer to the value of the victim;

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 43a examines inheritance rights over compensation for a miscarried fetus, debating whether a divorced husband or the woman's heirs collect payment.