Bava Kamma 043

1:

Before we begin our study of this mishnah let me remind everybody that today, April 19th 2010, is Memorial Day in Israel. This is the day upon which we collectively remember the 22,682 souls who, since 1860, gave their lives that the Jewish State might come into being, survive and prosper. There is no way that we can repay the debt of gratitude that we owe them except through remembrance. Today's shiur is dedicated to the memory of all the soldiers and civilians who by their death gave us life. May their memory be an undying blessing.

2:
In order to understand our mishnah we must first consider its biblical origins. The Torah [Exodus 21:22-25] rules:

As far as our present discussion is concerned there are two situations described:

1. If two men are engaged in a fight and one of them accidentally hits a female bystander who, as result, aborts her child, the man who struck her must pay recompense.
2. If, however, the woman not only miscarries but also suffers further injury or death then due punishment must be exacted according to law.

3:
The first clause of our mishnah states that if an ox accidentally causes a woman to miscarry, the ox's owner is excused from payment of the stipulated compensation. This seems quite obvious since there is no way to determine the intentions of an animal for a certainty so we must presume accidental injury. However, even this is unnecessary since the sages have determined that the intention of the Torah in this ruling was that it be applied solely to human beings who cause a miscarriage, to the exclusion of animals. This consideration, however, makes the whole of the first clause of our mishnah superfluous. In fact it is superfluous and the sages, rather lamely, explain that the reference to the ox is a kind of link from the previous mishnahs and is purely rhetorical, forming a kind of parallel to the reference to human beings which follows.

4:
The next clause of our mishnah establishes what we already know: that a man who accidentally causes a woman to miscarry must pay 'fetus money'. This is the monetary compensation stipulated by the Torah and it is payable to the woman's husband. (We are dealing with rules and regulations for a patriarchal society.)

5:
Our mishnah now addresses the question of how such a compensation is to be paid. The Torah says that the amount of compensation is determined by the husband, but the courts will, of course, have to decide whether the sum demanded is reasonable under the prevailing circumstances.

6:
Two answers to the question are given by our mishnah. The first is the answer offered by Tanna Kamma. This answer requires the court to make an evaluation: if this woman were sold in the local slave market while still pregnant how much would she have fetched? They must then evaluate how much she would fetch now that she has miscarried; the difference between the two sums is the compensation to be paid by the accidental assailant to the woman's husband. This answer assumes that the value of the woman would decrease as a result of her miscarriage.

7:
Rabban Shim'on ben-Gamli'el questions the appropriateness of such an arrangement. It is mistaken, he claims, to assume that the woman's value would decrease; surely it would rather increase! The realities of life in the ancient world were such that a woman's life was considered to be in danger while pregnant because she might well die in childbirth. So, she would be worth more after her miscarriage than before, and the husband would get nothing.

8:
Rabban Shim'on ben-Gamli'el offers a different method of calculating the amount of compensation to be paid. Rather than making the estimation in terms of the mother it should be made in terms of the child: how much would the child have fetched on the slave market if it had survived? That is the amount of loss sustained by the husband.

9:
However, halakhah follows Tanna Kamma and not Rabban Shim'on ben-Gamli'el: a woman is worth more when pregnant because she would provide the owner with an extra slave; after her miscarriage her value would decrease considerably and it is the amount of the estimated loss that must be paid to the husband. (This compensation is in lieu of the extra working hands that have been lost to the husband; the woman, of course, would receive greater compensation than the monies payable to her husband because she would be entitled to compensation for the pain and suffering she has been obliged to endure. We shall learn about this kind of compensation in detail when we reach chapter 8.)

10:
The Torah makes it quite clear that the compensation must be paid to the husband. But what it the woman does not have a husband? If the husband had died during the woman's pregnancy the compensation must be paid to the man's legal heirs – most probably, but not necessarily, other surviving children. But there could be other situations in which this poor woman does not have a husband and yet the assailant is excused from all payment because the deceased husband had no heirs.

11:
In a patriarchal society that a man should have no heirs at all was quite impossible: if he had no children his property would go to his brother, his brother's sons, his nephews, his uncles and so forth, according to the tree of inheritance. There could only be two men who could actually have no legitimate heirs. If the woman was married to another slave and they were both manumitted at the same time it is possible that her husband would die with no legitimate heirs. Alternatively, if the woman were a convert married to another convert it is possible that the husband would have no heirs. In both these cases there is no family provenance, as it were, so the husband's heirs could only be his own natural increase: failing that he has no heirs.

I take this opportunity of wishing everybody a very happy Yom Atzma'ut. May the 63rd year of the State of Israel bring peace and prosperity.