Talmud - Bava Kamma 49a בבא קמא מ״ט א׳

If so, the consequences would be absurd, as when a woman gives birth her value increases. Rather, the court appraises how much the offspring are worth, and the one liable for the damage gives that amount to the husband. And if she does not have a husband, e.g., her husband died, he gives the money to his heirs.

If the pregnant woman was a Canaanite maidservant and then she was emancipated, or a convert, and she was married to an emancipated Canaanite slave or to a convert who died without any heirs, the one who caused the damage is exempt from paying compensation for miscarried offspring. This is because this payment is made specifically to the husband, not to the woman.

GEMARA: The first clause of the mishna indicates that the reason the owner is exempt from paying compensation for the offspring when an ox unintentionally gores a pregnant woman is specifically that it was intending to gore another ox. By inference, if it was intending to gore the woman, the owner pays compensation for miscarried offspring. Shall we say that this should be a conclusive refutation of the opinion of Rav Adda bar Ahava, as Rav Adda bar Ahava says: With regard to oxen that intended to gore a woman and then did so, the owners are exempt from paying compensation for miscarried offspring?

The Gemara answers that Rav Adda bar Ahava could have said to you: The same is true, that even if the oxen intended to gore the woman, the owners are also exempt from paying compensation for miscarried offspring. As for that which is taught in the mishna: An ox that was intending to gore another ox, it is taught this way since it wants to teach the latter clause: A person that was intending to injure another person, as this case is written explicitly in the verse: “And if men struggle and hurt a pregnant woman and her offspring emerge” (Exodus 21:22). In the case in the verse, the assailant intended to injure another person but injured the woman instead. Therefore, the mishna also teaches the first clause in that style: An ox that was intending to gore another ox.

Rav Pappa says: In the case of an ox that gored a Canaanite maidservant, and her offspring emerged due to miscarriage, the owner pays compensation for miscarried offspring. What is the reason? The ox injured a mere pregnant donkey. With regard to the matter of compensation for offspring, who would be the property of the master were they to be born, a Canaanite slave is considered property of the master. As the verse states that Abraham addressed Eliezer, who was a Canaanite, by saying: “You remain here with [im] the donkey” (Genesis 22:5), on which the Sages expound that he was alluding to the idea that Eliezer is of a people [am] that is similar to a donkey. Therefore, the case of an ox goring a Canaanite maidservant is not included in the Torah’s exemption from paying compensation for miscarried offspring.

§ The mishna teaches: How does he pay compensation for miscarried offspring? The court appraises how much the value of the woman increased due to the offspring. The Gemara asks: Would this be a correct interpretation of the term: Compensation for miscarried offspring? If this is how the sum is calculated, the mishna should have stated: How does he pay the increase in value due to the offspring? The Gemara answers: That is also what the tanna is saying: How does he pay compensation for miscarried offspring and the increase in value due to the offspring? In other words, apart from evaluating the compensation for the miscarried offspring, the court also appraises the value of the woman by calculating how much she would be worth if sold as a maidservant before giving birth, and how much she would be worth after giving birth.

§ The mishna teaches: Rabban Shimon ben Gamliel said: If so, the consequences would be absurd, as when a woman gives birth her value increases. The Gemara asks: What is Rabban Shimon ben Gamliel saying? Rabba said: This is what he is saying: But is the monetary value of a woman higher before she gives birth than after she gives birth? But isn’t the opposite true, that the monetary value of a woman is higher after giving birth than before giving birth, since the concern for her dying during childbirth, which lowers her monetary value prior to giving birth, is no longer a concern? Rather, the court appraises the value of the fetuses and gives that amount to the husband.

This explanation of Rabban Shimon ben Gamliel’s statement is also taught in a baraita: But is the monetary value of a woman higher before she gives birth than after she gives birth? But isn’t the opposite true, that the monetary value of a woman is higher after giving birth than before giving birth? Rather, the court appraises the value of the fetuses and gives that amount to the husband.

Rava said: This is what Rabban Shimon ben Gamliel is teaching: But is the value of the woman higher only for the one for whom she gives birth, i.e., her husband, and she herself does not have any increase in value at all due to the offspring? A pregnant woman’s monetary value is increased on account of her pregnancy, beyond the monetary value of the offspring. Rather, the court appraises the value of the offspring and gives it to the husband. And in addition, the husband and wife divide the increase in her value due to the offspring.

This explanation of Rabban Shimon ben Gamliel’s opinion is also taught in a baraita: Rabban Shimon ben Gamliel said: But is the value of the woman higher only for the one for whom she gives birth, i.e., her husband, and she herself does not have any increase in value at all due to the offspring? Rather, the court appraises damage by itself and pain by itself, and appraises the value of the offspring and gives it to the husband, and the husband and wife divide the increase in her value due to the offspring.

The Gemara asks: The opinion of Rabban Shimon ben Gamliel in the first baraita, that the woman’s value decreases because of pregnancy, poses a difficulty for that of Rabban Shimon ben Gamliel in the second baraita, that it increases.

The Gemara answers: This is not difficult, since each baraita is referring to a different case: Here, the first baraita, which stated that the woman’s value increases after giving birth, is referring to a woman giving birth to her firstborn. Her value decreases prior to birth out of concern that she might die in childbirth. There, the second baraita, which stated that her value increases due to pregnancy, is referring to a woman who is not giving birth to her firstborn.

The Gemara asks: And what is the reason of the Rabbis in the second baraita, who say: The increase in her value due to the offspring is also given to the husband? The Gemara answers: They derive it from a redundancy in a verse, as we learned in a baraita: The verse states: “And hurt a pregnant woman and her offspring emerge” (Exodus 21:22). From the fact that it is stated: “And her offspring emerge,” don’t I know by inference that she was pregnant? If so, what is the meaning when the verse states: “A pregnant woman,” and not just “a woman”? To inform you that even the increase in her value due to the pregnancy is given to the husband.

The Gemara asks: And what halakha does Rabban Shimon ben Gamliel expound on this extra word “pregnant”? The Gemara answers: He requires it for that which is taught in a baraita: Rabbi Eliezer ben Ya’akov says that one who injures a woman is never liable to pay compensation for miscarried offspring unless he strikes her opposite the womb, i.e., on the abdomen. Rav Pappa said: Do not say that it must be literally opposite the womb. Rather, he is liable if she was struck anywhere that the wound’s impact could reach the offspring, i.e., any part of the torso, to exclude a wound to her hand or foot, for which he is not liable, since it could be argued that it was not the wound to the hand or foot that caused the miscarriage.

§ The mishna teaches: If the pregnant woman was a maidservant and then she was emancipated, or a convert, he is exempt from the payment of damages for miscarried offspring. Rabba says: They taught this halakha only in a case where one injured her during the lifetime of the convert, i.e., her husband, and the convert died before the payment was given. The reason for this is that since the assailant injured her during the lifetime of the convert, the convert acquires the money, although it is still in the possession of the one liable for the damage. And once the convert dies without heirs, the money is ownerless. Therefore, the assailant acquires it from the convert. Since anyone can assume ownership of ownerless property, the assailant, who already possesses the money, becomes the owner. But if he injured her after the convert had died, she acquires the money, and he must pay the woman herself.

Rav Ḥisda said in amazement: Master of this ruling! Is that to say that compensation for the offspring is like bundles of money, and she acquires them when her husband dies? Rabba seems to understand that the pregnant woman assumes ownership of the offspring by virtue of being in possession of them when the husband dies, and therefore has the right to compensation for them. That is not the case. Rather, if the husband is present, the Merciful One grants compensation for the offspring to him, but if the husband is not alive, the Torah does not grant compensation to anyone else.

The Gemara raises an objection against the opinion of Rabba from the following: If the assailant struck the woman and her offspring emerged due to miscarriage, he gives compensation for damage and pain to the woman and compensation for miscarried offspring to the husband. If the husband is not alive, he gives the compensation for the offspring to his heirs. If the woman is not alive, he gives the payment owed to her to her heirs. If she was a maidservant and then she was emancipated, or a convert, the assailant acquires the money. This indicates that if the husband is no longer alive, the woman doesn’t receive anything.

The Sages said in response to this: But is the baraita preferable to the mishna, which we interpreted as referring to a case where he injured her during the lifetime of the convert, and the convert then died? Here also, it must be explained that he injured her during the lifetime of the convert, and the convert then died. And if you wish, say instead that he injured her even after the death of the convert.

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

BavaKamma 49a explores compensation for miscarried offspring after an ox gores a pregnant woman, weighing intent and payment owed to her husband.