Bava Kamma 49a (מט.) — the Talmud in English

Rabban Shimon ben Gamliel said:

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 —

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!?

See above, on page 42a, where Rashi and Tosafot disagree in their explanation of the dispute there between Abaye and Rava and Rav Adda bar Ahava. According to Rashi, they did not disagree at all concerning an ox’s liability for the value of the offspring; according to everyone, oxen are exempt from the value of the offspring in every case; ; and:

Rav Adda bar Ahava could have said to you:

; and:

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

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!?

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”:

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

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 challenge this: If so,

there is a difficulty between the statement of Rabban Shimon ben Gamliel and the statement of Rabban Shimon ben Gamliel—

for in one beraita the matter is explained in accordance with Rabbah, whereas in a second beraita it is explained in accordance with Rava!?

And we answer:

There is no difficulty:

Here—

the beraita in which the ruling is explained in accordance with Rabbah, that the woman does not increase in value through giving birth—

is referring to a first-time mother,

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

Here—

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

is referring to a woman who is not giving birth for the first time.

And

we challenge

the Rabbis who say that “

the increase in value of the offspring”

also belongs to the husband: What is the reason!?

As it is taught:

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

from the implication of what is stated, ‘and her children emerge,’

do I not know that she was pregnant!?

And

what does the verse come to teach by stating “

pregnant”?

It comes to teach you: The increase in value of

the woman on account of

pregnancy

also

belongs to the husband.

And

we challenge

Rabban Shimon ben Gamliel,

who disagrees with the first tanna regarding the law of the increase in value of the offspring and maintains that it does not all belong to the husband, but is divided: What does he expound from

this word “

pregnant”?

What does he expound from it!?

And we explain: It is

needed by him, by Rabban Shimon ben Gamliel, as the source for the word “pregnant,”

for what is taught:

Rabbi Eliezer ben Yaakov says:

He is never liable

for compensation for the offspring

until he strikes

the woman

opposite the womb,

as derived from what is stated: “pregnant.”

Rav Pappa

explained

the words of Rabbi Eliezer ben Yaakov:

the words of Rabbi Eliezer ben Yaakov:

Do not say that this means directly opposite the womb; rather,

opposite

any place from which heat can rise to the fetus [

any place from which heat reaches the fetus], meaning the entire abdominal cavity;

excluding

a case where he struck her with her

hand or foot,

and her children emerged:

he does not

pay compensation for the offspring.

We learned in the Mishna:

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

Rabbah said:

They taught

that one who injures one of these women is exempt

only

when he

injured her during the lifetime of the convert,

when the offspring belonged to him,

and

afterward

the convert died—

Since he injured her during the convert’s lifetime, the convert acquired them

as a claim for the compensation for the offspring;

and since the convert died, the one who struck her acquired

the claim

from him

as a claim for the compensation for the offspring

from the convert,

like the other debtors of a convert who acquire what is in their possession.

But if he injured her after the convert’s death, she acquired them

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

and he is liable

the one who struck her

to pay her herself

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

Rav Ḥisda

remarked

in astonishment:

The master of this teaching

[the author of this statement]! That is, what could have prompted the author of this teaching to say this!?

And is it so?

Are the offspring bundles of money

[bundles of coins and funds],

so that she acquired

the woman

them!?

That is: Does the husband have a monetary right in the offspring themselves, so that one could say that once the husband dies they become ownerless and the woman acquires 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 compensation 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 payment of compensation for the offspring.

Meytivi

to Rabbah, who maintains that when the convert dies she acquires the offspring:

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 whom the compensation for the offspring could be given because he died, he

gives

the compensation for the offspring

to his heirs,

the husband’s heirs.

If the woman is not present

to whom the payment for injury and pain could be given,

he gives

the payment for injury and pain

to her heirs.

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

If she was a maidservant and was emancipated,

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

or

she was a

convert

who married a convert, became pregnant by him, and he died,

the one who struck her acquired

whatever was in his possession.

And the initial assumption was that the beraita is dealing with a case in which he injured her after the death of the emancipated slave or the convert, yet it nevertheless teaches that this person acquired whatever was in his possession, and he does not give the compensation for the offspring to the woman. It therefore follows that the woman did not acquire the offspring when her husband, the emancipated slave or the convert, died!?

The members of the academy said

to resolve the difficulty:

Is the beraita superior

to the

Mishna

[our Mishna]

that we established

the statement we learned there—“If she was a maidservant and was emancipated, or a convert, he is exempt”—as referring specifically to a case

where he injured her during the convert’s lifetime and the convert died!?

For

here too,

we will explain that the beraita is dealing with a case such as

where he injured her during the convert’s lifetime, and the convert died;

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

And if you wish, say

to resolve the difficulty:

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

after the convert’s death—