Bava Kamma 43a (מג.) — the Talmud in English

Or

that she was

a convert

who married a convert, became pregnant from him, and her children were born, after which both of them died, and they are “like a child newly born,” so that they have no heirs—

the one who struck

acquires whatever is in his possession, and pays nothing at all for the offspring, damage, or pain; because everything belonging to an emancipated slave or a convert is ownerless, and he is the first to acquire it.

And this is difficult: Why do her heirs acquire the payments for her damage and pain, while her husband does not acquire them!?

He said

—he explained—

Rabba, and likewise Rav Naḥman said:

This Mishna, which we learned, “A woman does not give [the payments] to her heirs,”

deals with

a divorced woman, and therefore her relatives acquire the payments for damage and pain. But if she has a husband, he takes precedence over her relatives in acquiring them.

The students of the academy said

to challenge this explanation:

A divorced woman should also take a share

of the payment for the offspring!

That is, if the beraita deals with a divorced woman, why should the husband who divorced her acquire the payment for the offspring? The Torah says, “as the husband of the woman shall impose it,” and this man is not the husband of the woman, since he divorced her. And if he does not acquire it, she should acquire the payment for the offspring!?

He said

—he explained—

Rav Pappa: The Torah granted the payment for the offspring to the husband even when he had intercourse with her licentiously,

when he is not her husband. For the right to the payment for the offspring depends not on his being “the husband of the woman,” but on his being the man who had intercourse with the woman.

What is the reason?

Because

the verse says,

“as the husband of the woman shall impose it.”

The Torah thus took care to refer to the man who had intercourse with her.

We challenge Rabba and Rav Naḥman, who answered the earlier question by saying that the beraita deals with a divorced woman: Why does he not give the payments for damage and pain to her husband?

Why did this pose a difficulty for them!? Although the debt for damage and pain was created before the woman’s death, the beraita could be dealing with a case in which the damage and pain were paid after her death. This is comparable to a debt that the woman had before she died and that was collected after her death, concerning which Rabba and Rav Naḥman disputed under what circumstances it is considered “expected” property and under what circumstances it is “held” property

.

If so,

let us establish it,

interpret the beraita as referring to property that is “expected” rather than “held,” as follows:

According to Rabba: For example, when they collected

the heirs, after the woman’s death,

money [

and not land] for the damage and pain. In such a case, according to Rabba—as will be explained—it is “expected” and not “held.”

And according to Rav Naḥman: For example, when they collected

the heirs, after the woman’s death,

land

for the damage and pain, for according to his view—as will be explained—it is “expected.”

As Rabba said—with regard to a firstborn who receives a double portion of his father’s inheritance but does not receive a double portion of “expected” property as he does of “held” property—that if their father had a debt owed to him by another person and died:

concerning a firstborn who takes a double portion in his father’s inheritance, but does not take a double portion in what is “expected” as in what is “possessed”—that if their father had a debt owed to him by another person, and he died:

If

the orphans collected

the

land

against their father’s debt,

he has

the firstborn has a double portion of it, for it is considered “held” property, since the land had already been encumbered during the father’s lifetime.

But if

they collected money, he does not have

a double portion, since this is “expected” property, and a firstborn does not receive a double portion of expected property as he does of held property. According to his view, we interpret our case as one in which they collected money.

And

if

Rav Naḥman said—with regard to a firstborn—the opposite:

concerning the firstborn—in the reverse:

If they collected

the orphans

money, he has

the firstborn has a double portion, since this is not “expected” property, because “their father lent money and they took money”; but if

they collected

the orphans

land, he does not have

a double portion, since this is “expected” and not “held” property, even though the land was encumbered during their father’s lifetime. According to his view, we interpret our case as one in which they collected land.

a. It was taught in a beraita brought in Bava Batra 124a: “A firstborn does not receive a double portion of the increase in value by which the assets increased [which the father bequeathed; for example, he left them a date palm bearing blossoms that became dates] after their father’s death [before they divided the estate; because it is ‘expected’ property]. Rabbi says: I say that a firstborn receives a double portion of the increase in value by which the assets increased [on their own] after their father’s death,” because in his view naturally occurring increase is not considered “expected” property.

b. We also read in Bava Batra 124b: “They sent word from there [the sages of the West sent from Eretz Yisrael, saying]: A firstborn receives a double portion of a loan [the repayment of a debt owed to their father by others], but not of interest [which the gentile borrower became obligated to pay after the father’s death

].”

And the Gemara explains there that the sages of the West distinguished between a loan and interest only according to the Sages, who hold that a firstborn does not receive a double portion of the increase by which assets increased on their own. Therefore, he does not receive a double portion of interest, which is an automatically accruing increase of the debt, but he does receive a double portion of the loan itself, since repayment is not like an increase in the debt that accrued after death. But according to Rabbi, who does not consider naturally occurring increase “expected” property, he receives a double portion even of interest, since interest is no worse than naturally occurring increase, of which the firstborn receives a double portion. The students of the academy said

to resolve the matter:

This applies—that a loan is never considered “held” property—

that a loan is not considered “possessed” in every circumstance—

to

the view of

the sages of the West according to the Sages,

who say in their view that although a firstborn does not receive a double portion of an increase, he does receive a double portion of a loan. They disputed when a loan has an advantage over an increase—when land is collected or when money is collected—

When they said—Rabba and Rav Naḥman—

Rabba and Rav Naḥman

here,

where a loan is considered held property in every case, they spoke

according to Rabbi,

who holds that even of an increase by which the assets increased on their own, a firstborn receives a double portion. If so, any repayment of a loan is no worse than naturally occurring increase, and it is not considered “expected” property.

Rabbi Shimon ben Lakish said: An ox that killed a slave unintentionally,

and therefore is not liable to be stoned, is

exempt

even

from the thirty sela,

because

it is stated,

“He shall give thirty sela of silver to his master, and the ox shall be stoned.”

And we learn:

Whenever the ox is subject to stoning, the owners pay thirty sela;

but if

the ox is not subject to stoning, the owners do not pay thirty sela.

Rabba said: An ox that killed a free person unintentionally,

and therefore is not liable to be stoned, is

exempt from ransom,

because

it is stated:

“The ox shall be stoned and its owner shall also be put to death.

If a ransom is imposed upon him,”

and we learn:

Whenever the ox is subject to stoning, the owners pay ransom; if the ox is not subject to stoning, the owners do not pay ransom.

Abaye challenged Rabba,

who held that when the ox is not subject to stoning, the owners do not pay ransom, from a Mishna in tractate Ketubot 41a:

For we learned there: If a person confessed and said,

“My ox killed so-and-so,”

or

he confessed and said, “My ox killed

so-and-so’s ox,”

he pays on his own admission,

because the admission of a litigant is equivalent to one hundred witnesses.

And

is it not

the meaning of the Mishna that if he confessed and said, “My ox killed so-and-so,” he pays

ransom

? It is therefore evident that although the ox is not subject to stoning, since it is not killed on the basis of its owner’s admission, the owners nevertheless pay ransom. This is a difficulty for Rabba!?

Rabba said to Abaye:

No,

it does not mean, as you explained, that he pays ransom as atonement on the basis of his own admission. Rather,

monetary compensation

for the victim is what he pays, not as “ransom” but as ordinary damage.

Abaye said to him:

If

your words are correct—that where there is no ransom, there is an obligation of

monetary compensation

for the death of a person, like other damages—then the same should apply to a slave: Where there is no fine, there should be an obligation to pay his master monetary compensation for his death, like other damages. If so,

consider the latter clause:

If he confessed and said,

“My ox killed so-and-so’s slave,”

he does not pay on his own admission,

because the thirty sela for a slave is a fine, and a person does not pay a fine on the basis of his own admission.

And if

your words are correct—that there is an obligation of

monetary compensation

for the death of a person like other damages—then even in the case of a slave,

why does he not

pay monetary compensation to the master on the basis of his own admission? He should be liable for monetary compensation like other damages that he caused to the master’s property. Rather, it is certainly the case that if there is no fine, he also pays no monetary compensation, because there is no monetary payment for killing a person. If so, in the case of ransom as well, if he did not pay ransom because the ox is not subject to stoning, he would not pay monetary compensation either. It must therefore be that he pays ransom even though the ox is not subject to stoning.

Rabba said to him

Abaye:

I can answer you

that

the first clause

deals with

monetary compensation,

and

whereas

the

the

latter clause

deals with a

fine—but in truth he is liable for monetary compensation.

And

what is this? This is a strained emendation; I will not offer you strained emendations [

I do not wish to give you forced answers, and therefore I will say to you]:

Both this and that [

both the opening clause and the concluding clause] deal with liability for

monetary compensation

as in the case of other damages; and as for your difficulty: What is different about the case of killing a free man based on the owner’s own admission, where he is not liable for kofer because the ox is not subject to execution, yet he nevertheless pays monetary compensation, whereas in the case of killing a slave based on the owner’s own admission, he does not pay a fine because the ox is not subject to execution [and because he admitted liability for a fine], and he is not liable for monetary compensation—this is your answer: