Bava Kamma 49a — the Talmud in English

Rabban Shimon ben Gamliel said: ![](pamud.bmp "

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If so, when the woman gives birth, she becomes more valuable; rather, the value of the offspring is assessed according to how attractive they are —

Гемаре] —

and he gives—

according to the assessment of the first tanna, or according to the assessment of Rabban Shimon ben Gamliel—

to the husband.

And if she has no husband—

because he died—

he gives it to his heirs,

the husband’s heirs.

And if

she was—

this woman who has no husband—

a maidservant and was freed,

that is, the woman was a freed maidservant who married a freed slave who has no heirs, as “he is like a newborn child,”

or

she was

a female convert

who married a male convert who has no heirs, as “he is like a newborn child”—

and they injured her and her children emerged, and her husband died, the one who struck her is

exempt,

because all the property of the freed slave and the convert is ownerless, and this person acquired the debt of the value of the offspring that was in his possession.

Gemara:

We learned in the Mishna: If an ox intended to gore another ox struck a woman and her children emerged, it is exempt from payment of the value of the offspring:

And we infer:

The reason is that it intended to gore another ox,

and therefore the ox is exempt;

but if it intended

the ox

to gore the woman,

then it

pays the value of the offspring—

and if so,

let us say that

our Mishna is

a refutation of Rav Adda bar Ahava,

above, on page 42a,

who said: Oxen,

even when they

intended to gore the woman, are exempt from payment of the value of the offspring!?

Rav Adda bar Ahava could have said to you:

The same law applies even when they intended

the oxen

to gore the woman: they too are exempt from payment of the value of the offspring—

And the fact that it teaches: An ox that intended to gore another ox,

this is not stated specifically, but

since

вдобавок к этому ]

it needed to teach in the latter clause: “

A person who intended to strike another person,”

and the Mishna specifically stated this case because

that is how the verse is written —

this is the manner described by the verse—for the verse says: “When men quarrel and one strikes a pregnant woman and her children emerge,” indicating that the quarrel and fight were between two men, while the woman was struck unintentionally—

therefore

it also teaches in the first clause: “

An ox that intended to gore another ox,”

but as a matter of law there is no difference between whether it intended to gore another ox or whether it intended to gore the woman; in every case the owner of the ox is exempt from payment of the value of the offspring.

Rav Pappa said:

Although the Torah rendered oxen liable for the value of the offspring, this applies only to the offspring of free women. But

if an ox gored a maidservant and her children emerged,

it

pays the value of the offspring

to the master.

And we explain:

What is the reason?

He merely injured a pregnant she-donkey

[that is, this is no different from one who injures another’s pregnant she-donkey],

as the verse says,

which Abraham said concerning his servant Eliezer: “

Sit here with the donkey,”

and we expound: “

with one who resembles a donkey.”

That is, the Torah exempted him only from liability for the value of the offspring when that payment belongs to the husband. But the offspring of a maidservant belong to the master, like all his other slaves who belong to him. In this regard the Torah did not exempt him. Just as the offspring of the master’s she-donkey are paid for by the ox that causes the damage because they are the master’s property, so the ox that causes damage pays for the offspring of the master’s maidservant.

We learned in the Mishna:

How does he pay the value of the offspring?

The woman’s value is assessed, how much she was worth before she gave birth and how much she is worth after she gave birth:

And we question: Surely, “How does he pay

the value of the offspring and the enhancement of the offspring”

should have been required of him to teach!? For this assessment includes both the value of the offspring themselves—that is, “the value of the offspring”—and the amount by which the woman herself decreases in value after giving birth. When she is pregnant, she appears more attractive and fuller-bodied, and her value is greater than after she gives birth; this value is “the enhancement of the offspring” [that is, the woman’s enhancement on account of the offspring], and not “the value of the offspring.” The tanna should have stated this explicitly!?

Ведь эта оценка включает и стоимость самих зародышей, то есть «деньги за потерю зародышей», и сумму, на которую уменьшается стоимость самой женщины после родов. Пока она беременна, она выглядит более полной и обладает большей телесной ценностью, поэтому стоит дороже, чем после родов. Эта разница и называется «приростом стоимости из-за зародышей» [то есть приростом стоимости женщины благодаря зародышам], а не «деньгами за потерю зародышей». Следовало прямо сказать именно это?!

And we answer:

This is also what

the tanna of the Mishna

said: “How does he pay the value of the offspring and the enhancement of the offspring? The woman’s value is assessed, how much she was worth before she gave birth and how much she is worth after she gave birth,”

because the enhancement of the offspring belongs to the husband.

We learned in the Mishna:

Rabban Shimon ben Gamliel said: If so, when the woman gives birth, she becomes more valuable,

rather, the offspring are assessed according to how attractive they are, and he gives it to the husband:

And we question:

What is he saying,

Rabban Shimon ben Gamliel!? That is, Rabban Shimon ben Gamliel’s words imply that he is wondering at the first tanna, who holds, “When the woman gives birth, she becomes more valuable,” whereas this is not so; according to the first tanna, she is more valuable before she gives birth!?

He

explained,

Rabba said: This is what

Rabban Shimon ben Gamliel said to the first tanna:

Is it possible

that

a woman becomes more valuable before she gives birth than after she gives birth? Surely,

on the contrary:

a woman becomes more valuable after she gives birth than before she gives birth!?

Because before the birth she was in danger of dying. And if you assess the value of the offspring according to the change in the woman’s value, you disadvantage the husband, because the value of the offspring is offset by the increase in the woman’s own value.

Rather, this is how he pays “the value of the offspring”:

так он выплачивает «деньги за потерю зародышей»:

the offspring themselves are assessed,

themselves,

and their value is given to the husband,

their monetary value.

It was taught likewise,

as Rabba explained:

Rabban Shimon ben Gamliel said:

Is it possible that a woman becomes more valuable before she gives birth than after she gives birth? Surely a woman becomes more valuable after she gives birth than before she gives birth. Rather, the offspring are assessed, and their value is given to the husband.

Rava said: This is what it teaches:

Rabban Shimon ben Gamliel always agrees that the woman becomes more valuable before she gives birth than after she gives birth. Rather, Rabban Shimon ben Gamliel wonders at the first tanna’s ruling, that the entire enhancement of the offspring belongs to the husband, just as the value of the offspring themselves does; and this is what he said:

Does a woman become more valuable only for the one to whom she gives birth,

alone,

become more valuable,

that is, is it legally appropriate that the enhancement of the offspring be given to the one to whom the Torah granted the value of the offspring alone?

And does she herself have no share at all in the enhancement of the offspring!?

Surely the enhancement comes to her also on account of her body, in addition to its being on account of the offspring, and it is legally appropriate that she too receive a share in the enhancement of her body.

Rather, the offspring themselves are assessed,

that is, “the value of the offspring,”

and it is given to the husband,

for that is what the Torah stated: the value of the offspring belongs to the husband.

And

if

the enhancement

of the offspring is concerned,

then the man and the woman

divide it,

because the increase in her bodily fullness, by which she appears more attractive and fuller-bodied, results from the offspring and the woman together.

It was taught likewise,

as Rava explained:

Rabban Shimon ben Gamliel said: Is a woman enhanced only for the one to whom she gives birth, and does she herself have no share in the enhancement of the offspring!?

Rather, the

ее

damage

that is, the loss to the woman’s body caused by the blow

is assessed separately,

and the one who struck her pays it to the person to whom he pays the rest of the woman’s injury payments.

And the pain

of the woman

is assessed separately,

and he pays it to the person to whom he pays the rest of a woman’s pain payment.

And the offspring are assessed,

that is, “the value of the offspring,”

and it is given to the husband,

to whom the Torah granted it.

And

if “

the enhancement of the offspring”

that is, the decrease in the value of the woman’s bodily fullness due to the emptying of the fetus—then the husband and the woman

divide it.

And we ask: If so,

there is a difficulty from Rabban Shimon ben Gamliel against Rabban Shimon ben Gamliel:

for in one beraita it is explained in accordance with Rabba’s words, while in a second beraita it is explained in accordance with Rava’s words!?

And we answer:

There is no difficulty:

Here—

the beraita in which it is explained in accordance with Rabba, that the woman does not increase in value through her giving birth—

is referring to a first-time mother,

for this is her first birth, and her value is reduced because of the danger involved in childbirth.

Here—

the beraita in which it is explained in accordance with Rava, that her value is not reduced when she gives birth—

is referring to one who is not a first-time mother.

And

we ask against

the Rabbis who say, “

the increase in value of the offspring”

is also for the husband: What is the reason!?

As it was taught:

It is written: “And when men fight and strike a pregnant woman and her children emerge,” and

from the implication that it says: “and her children emerge,”

do I not know that she is pregnant!?

And

what does it teach by saying “

pregnant”?

To tell you: The increase in value of

the woman on account of

pregnancy

also

belongs to the husband.

And

we ask against

Rabban Shimon ben Gamliel,

who disagrees with the first tanna concerning the law of the increase in value of the offspring, and maintains that it does not all belong to the husband, but that they divide it:

this “

pregnant”

what does he expound from it!?

And we explain:

He needs it

Rabban Shimon ben Gamliel needs the verse “pregnant”

for that which was taught: Rabbi Eliezer ben Yaakov says:

He is never liable

for the payments for the offspring

until he strikes

the woman

opposite the place of the womb, and he derives it from what is stated: “pregnant.”

and he derives this from the word “pregnant.”

Rabbi Pappa said,

he explained

Rabbi Pappa

the words of Rabbi Eliezer ben Yaakov:

Do not say that it means directly opposite the place of the womb, but

opposite

any place from which heat rises into the fetus [

any place from which heat reaches the fetus], that is, the entire cavity of the abdomen; and

to exclude

if he struck her with

her hand or foot

and her children emerged,

for he does not

pay the payments for the offspring.

We learned in the Mishna:

If she was a maidservant and was emancipated, or a female convert, he is exempt:

Rabba said:

They taught

that one who injures these women is exempt

only

when he

injured her during the life of the convert

when the offspring belonged to him,

and

afterward

the convert died—

Since he injured her during the life of the convert, the convert acquired them

as a debt consisting of the payments for the offspring,

and since the convert died, he acquired

the striker

them [

the debt consisting of the payments for the offspring]

from the convert,

like all those liable to a convert who acquired what was in their possession.

But if he injured her after the death of the convert, she acquired them [

the woman acquired—the moment her husband died—the offspring themselves] from ownerless property, like the other property of a convert, which is ownerless,

and

the striker is liable

to pay her herself [

to pay the woman], for she is, after all, the owner of the offspring.

Rabbi

wondered,

Rabbi Hisda:

Master of this statement [

master of this teaching]! That is: What was there for the master of this teaching to say this way!?

But

are the offspring money-pouches [

bundles of coins and funds],

so that she acquires

the woman

them!? That is: Does the husband have a monetary right in the bodies of the offspring, so that it can be said: Once the husband died, they became ownerless, and the woman acquired them as ownerless property!?

That is: Does the husband have a monetary right in the fetuses themselves, so that it could be said that when the husband died they became ownerless and the woman acquired them as ownerless property!?

Rather, if the husband is present,

if the husband is alive at the time of the injury,

the Merciful One granted him

the husband the payment of the payments for the offspring; but

if the husband is not present

at the time of the injury,

the Merciful One did not

grant any person the payments for the offspring.

He raised an objection against Rabba, who holds that upon the convert’s death she acquired the offspring:

if one struck the woman and her children emerged, he gives the payment for injury and pain to the woman, and the payments for the offspring to the husband.

If he struck the woman and her children emerged, he gives the payment for injury and pain to the woman, and the compensation for the offspring to the husband.

If the husband is not present

to be given the payment for the fetuses because he died, then he

gives

the payment for the fetuses

If the husband is absent,

so that the payments for the offspring cannot be given to him because he died, he

gives

the payments for the offspring

to his heirs

of the husband.

If the woman is absent,

so that the payment for injury and pain cannot be given to her, he gives the payments for the injury and pain

to her heirs.

and she married an emancipated slave, became pregnant by him, and he died,

or

she was

If she was a maidservant and was emancipated

and married an emancipated slave, became pregnant by him, and he died,

or

she was a

female convert

and married a convert, became pregnant by him, and he died, he acquired the striker what was in his possession. And it entered our minds that the beraita deals with a case in which he injured her after the death of the slave or the convert, and nevertheless it teaches that this person acquired what was in his possession, and he does not give the payments for the offspring to the woman; it is therefore clear that the woman did not acquire the offspring when her husband, the emancipated slave or the convert, died!?

to resolve the difficulty:

Is the beraita more authoritative

than

They said,

the members of the academy offered an answer:

Is the beraita preferable

than our

Mishna,

in which we established what we learned in it—“If she was a maidservant and was emancipated, or a female convert, he is exempt”—that this is specifically when he

injured her during the life of the convert and the convert died!? And

here too, in the beraita, we shall interpret: What are we dealing with? With a case such as

he injured her during the life of the convert, and the convert died;

but if he injured her after the convert’s death, the striker did not acquire anything; rather, she first acquired the offspring, and he pays her.

And if you wish, say

to resolve the matter:

The beraita is indeed dealing with a case in which he injured her

after the convert’s death—