Babylonian Talmud: Tractate Baba Kamma

Folio 49a

R. SIMEON B. GAMALIEL SAID: IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE.¹  IT IS THEREFORE THE VALUE OF THE EMBRYOS WHICH HAS TO BE ESTIMATED, AND THIS AMOUNT WILL BE GIVEN TO THE HUSBAND. IF, HOWEVER, THE HUSBAND IS NO LONGER ALIVE, IT WOULD BE GIVEN TO HIS HEIRS. IF THE WOMAN WAS A MANUMITTED SLAVE OR A PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE COMPLETE EXEMPTION.²

GEMARA. The reason why there is exemption is because the ox was charging another ox, from which we infer that if it was charging the woman, there would be liability to pay. Will this not be in contradiction to the view of R. Adda b. Ahabah? For did not R. Adda b. Ahabah state³  that [even] where Cattle were charging the woman, there would [still] be exemption from paying compensation for [the loss] of the embryos? — R. Adda b. Ahabah might reply: The same ruling [of the Mishnah] would apply even in the case of Cattle making for the woman, where there would similarly be exemption from paying compensation for [the loss of] the embryos. And as for the Mishnah saying IF AN OX WHILE CHARGING OTHER CATTLE, the reason is that, since it was necessary to state in the concluding clause BUT IF A MAN WHILE MEANING TO STRIKE ANOTHER MAN, this being the case stated in Scripture,⁴  it was also found expedient to have a similar text in the commencing clause IF AN OX WHILE CHARGING ANOTHER OX.

R. Papa said: If an ox gores a woman-slave, causing her to miscarry, there would be liability to pay for the loss of the embryos, the reason being that [in the eyes of the law] it was merely a case of a pregnant she-ass being injured, for Scripture says, Abide ye here with the ass,⁵  thus comparing this folk to an ass.⁶

HOW IS THE COMPENSATION FOR THE LOSS OF EMBRYOS FIXED etc.? 'COMPENSATION FOR THE EMBRYOS'? Should it not [also] have been 'Compensation for the increase in [the woman's] value caused by the embryos'?⁷  — This indeed was what was meant: How is the compensation for the embryos and for the increase [in the woman's value] due to embryos fixed? Her estimated value before miscarriage is compared with her value after miscarriage.⁸

BUT R. SIMEON B. GAMALIEL SAID; IF THIS IS SO, A WOMAN AFTER HAVING GIVEN BIRTH INCREASES IN VALUE. What did he mean by this statement?⁹  — Rabbah said; He meant to say this; Does a woman increase in value before giving birth more than after? Does not a woman increase in value after giving birth¹⁰  more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. It was taught to the same effect; Does the value of a woman increase more before giving birth than after giving birth? Does not the value of a woman increase after having given birth¹⁰  more than before giving birth? It is therefore the value of the embryos which has to be estimated, and this amount will be given to the husband. Raba, however, said: What is meant is this.¹¹  'Is a woman's increase in value wholly for [the benefit of the husband for] whom she bears, and has she no share at all in the increase [in the value]¹²  due to the embryo? It is therefore the value of the embryos which has to be estimated and this amount will be given to the husband, whereas the amount of the increase [in the value]¹²  caused by the embryos will be shared equally [between husband and wife].' It was similarly taught: R. Simeon b. Gamaliel said: Is the increase in a woman's value wholly for [the benefit of the husband for] whom she bears, and has she herself no share at all in the increase [in her value] due to the embryos? No; there is a separate estimation for Depreciation¹³  and also for Pain,¹³  and the value of the embryos is estimated and given to the husband, whereas the amount of the increase in her value caused by the embryos will be shared equally [between husband and wife]. But is not R. Simeon b. Gamaliel contradicting himself [in this]?¹⁴  — There is no contradiction, for one case¹⁵  is that of a woman pregnant for the first time,¹⁶  and the other of a woman who had already given birth to children.¹⁷

What was the reason of the Rabbis who stated that the amount of the increase [in the woman's value] due to the embryos also belongs to the husband? — As it was taught: From the words, so that her fruit depart from her,¹⁸  cannot I understand that the woman was pregnant? Why then [the words] with child?¹⁸  To teach you that the increase in her value due to pregnancy belongs to the husband. How then does R. Simeon b. Gamaliel expound the phrase 'with child'? — He required it for the lesson taught in the following: R. Eliezer b. Jacob says: Liability is never incurred save when the blow is given over against the place of the womb. R. Papa said: You are not to understand from this just over against the place of the womb, for wherever the bruise could be communicated to the embryo [will suffice];¹⁹  what is excluded is a blow on the hand or foot, where there would be liability.

IF THE WOMAN WAS A MANUMITTED SLAVE, OR PROSELYTESS [AND THE HUSBAND, ALSO A PROSELYTE, IS NO LONGER ALIVE], THERE WOULD BE EXEMPTION ALTOGETHER.²⁰  Rabbah said: This rule applies only where the blow was given during the lifetime of the proselyte [husband] and it was only after this that he died, for since the blow was given during the lifetime of the proselyte, he acquired title to the impending payment, so that when he subsequently died²¹  the defendant became quit of it as it was an asset of the proselyte.²¹  But where the blow was given after the death of the proselyte it was the mother who acquired title to the embryos, so that the defendant would have to make payment to her. Said R. Hisda: O, master of this [teaching]! Are embryos packets of money to which a title can be acquired? It is only when the husband is there²²  that the Divine Law grants payment to him, but not when he is no more.

An objection was raised:²³  'Where a woman is struck and a miscarriage results, compensation for Depreciation and Pain is to be paid to the woman, but for the loss of the embryos to the husband; where the husband is no more alive it²⁴  is given to his heirs; so also where the woman is no more alive, it²⁵  is given to her heirs. Should she be a slave who has been manumitted, or a proselytess [whose husband, also a proselyte, is no longer alive], the defendant becomes entitled to it'?²⁶  — I would reply: Is there anything more in this case than in that of the Mishnah, which has been interpreted to refer to where the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died?²⁷  [Why therefore not interpret the text] here also as referring to a case were the blow was given during the lifetime of the proselyte and [where it was only after this that] the proselyte died!²⁷  More-over, if you wish you may [alternatively] say that it might have referred even to a case where the blow was given after the death of the proselyte,

1. V. the explanation in the Gemara.
2. The reason being that in this case there is no legitimate plaintiff.
3. Supra p. 239.
4. Ex. XXI, 22.
5. Gen. XXII, 5.
6. I.e. a mere chattel of the Master.
7. Before the miscarriage took place. For besides the loss of the value of the embryos there was a loss of the value of the woman herself that was increased by the embryos making her look bigger and stouter. [Rashi reads: 'Is this (referring to the valuation laid down in the Mishnah) compensation for the embryos? Is it not also compensation for the increase etc.?']
8. [This valuation, that is to say, serves as compensation both for the embryos and for the increase etc.]
9. For surely the anonymous Tanna expressed himself to the contrary.
10. Through having emerged safely from the dangers of childbirth.
11. By R. Simeon b. Gamaliel.
12. Of her own body.
13. Cf. supra p. 243 and Keth. VI, 1.
14. For according to his other statement a woman increases in value after giving birth more than before.
15. Where he stated that the value of a woman after having given birth is greater than that prior to having given birth.
16. Where the circumstances are more complicated.
17. In which case her value later is less than that prior to giving birth
18. Ex. XXI, 22.
19. To create liability.
20. V. p. 277, n. 6.
21. Without issue, leaving thus no heirs.
22. I.e. alive.
23. Cf. supra p. 234.
24. I.e. the payment for the loss of the embryos.
25. I.e. the payment for Depreciation and Pain.
26. Even, it would seem, when the blow was given after the death of the proselyte, which contradicts the view of Rabbah.
27. V. p. 280, n. 5.

but read in the text 'she would become entitled to it'.¹

May we say that there is on this point²  a difference between Tannaitic authorities? [For it was taught:] If a daughter of an Israelite was married to a proselyte and became pregnant by him, and a blow was given her during the lifetime of the proselyte,³  the compensation for the loss of the embryos will be given to the proselyte. But if after the death of the proselyte!⁴  — One Baraitha teaches that there would be liability, whereas another Baraitha teaches that there would be no liability. Now, does this not show that Tannaim differ on this [point]?⁵  According to Rabbah there is certainly a difference between Tannaim on this matter.⁶  But what of R. Hisda?⁷  Must he also hold that Tannaim were divided on it? — [No; he may argue that] there is no difficulty,⁸  as one [Baraitha] accepts the view of the Rabbis⁹  whereas the other follows that of R. Simeon b. Gamaliel.¹⁰  But if [the Baraitha which says that there is liability follows the view of] R. Simeon b. Gamaliel, why speak only of compensation after the death [of the proselyte]? Would she even during [his] lifetime not have [a half of the payment]? — During [his] lifetime she would have only a half, whereas after death she would have the whole.¹¹  Or if you wish you may say that both this [Baraitha]¹²  and the other follow the view of R. Simeon b. Gamaliel,¹⁰  but while one¹²  deals with the increase in the value [of the woman caused] by the embryos, the other¹³  refers to the compensation for the loss of the value of the embryos [themselves].¹⁴  I would here ask, why not derive from the rule¹²  regarding the increased value due to the embryos the other rule regarding the value of the embryos themselves?¹⁵  And again, why not derive from the ruling¹²  of R. Simeon b. Gamaliel also the ruling of the Rabbis?¹⁶  — It may, however, be said that this could not be done. For as regards the increased value [of the woman due] to the embryos, seeing that she has some hold upon it,¹⁷  she can acquire a title to the whole of it,¹⁸  whereas in regard to the compensation for the embryos themselves, on which she has no hold,¹⁹  she can acquire no title to them at all.

R. Yeba the Elder enquired of R. Nahman: If a man has taken possession of the deeds of a proselyte,²⁰  what is the legal position? [Shall we say that] a man who takes possession of a deed does so with intent to acquire the land [specified in the document], but has thereby not taken possession of the land, nor does he even acquire title to the deed, since his intent was not to obtain the deed?²¹  Or [shall we] perhaps [say] that his intent was to obtain the deed also?²¹  — He²²  said to him: Tell me, Sir, could he need it to cover the mouth of his flask? — He²³  replied: Yes indeed, [he could need it] to cover[ the flask].

Rabbah stated: If the pledge of an Israelite is in the hands of a proselyte [creditor], and the proselyte dies [without any legal issue] and another Israelite comes along and takes possession of it,²⁰  it would be taken away from him, the reason being that as the proselyte has died, the lien he had upon the pledge has disappeared. But if a pledge of a proselyte [debtor] is in the hands of an Israelite, and the proselyte dies and another Israelite comes along and takes possession of it, the creditor would become owner of the pledge to the extent of the amount due to him, while the one who took possession of it would own the balance. Why should the premises [of the creditor where the pledge was kept] not render him the owner [of the whole pledge]? Did not R. Jose b. Hanina say that a man's premises effect a legal transfer [of ownerless property placed there] even without his knowledge? — It may be said that we are dealing here with a case where the creditor was not there.²⁴  For it is only where he himself²⁵  is there,²⁴  in which case should he so desire he would be able to take possession of it,²⁶  that his premises could [act on his behalf and] effect the transfer, whereas where he himself²⁵  was absent, in which case were he to desire to acquire title to it²⁶  he would have been unable to take possession of it, his premises could similarly not effect a transfer. But the law is that it is only where it [the pledge] was not [kept] in the [creditor's] premises that he would acquire no title to it.²⁷

MISHNAH. IF A MAN DIGS A PIT IN PRIVATE GROUND AND OPENS IT ON TO A PUBLIC PLACE, OR IF HE DIGS IT IN PUBLIC GROUND AND OPENS IT ON TO PRIVATE PROPERTY, OR AGAIN, IF HE DIGS IT IN PRIVATE GROUND AND OPENS IT ON TO THE PRIVATE PROPERTY OF ANOTHER, HE BECOMES LIABLE²⁸  [FOR ANY DAMAGE THAT MAY RESULT].

GEMARA. Our Rabbis taught: If a man digs a pit on private ground and opens it on to a public place, he becomes liable, and this is the Pit of which the Torah²⁹  speaks. So R. Ishmael. R. Akiba, however, says: When a man abandons his premises without, however, abandoning his pit, this is the Pit of which the Torah²⁹  speaks. Rabbah thereupon said: In the case of a pit on public ground there is no difference of opinion that there should be liability. What is the reason? — Scripture says, If a man open or if a man dig.²⁹  Now, if for mere opening there is liability, should there not be so all the more in the case of digging? [Why then mention digging at all?] Scripture must therefore mean to imply that it is on account of the act of opening and on account of the act of digging that the liability is at all brought upon him.³⁰  A difference arises

1. In accordance with the view of Rabbah.
2. In which Rabbah and R. Hisda differ.
3. And a miscarriage resulted.
4. I.e. if the blow was given after the death of the proselyte.
5. I.e., whether the mother acquires a title to the embryos on the death of her husband, the proselyte, or not.
6. He therefore followed the view of the former Baraitha laying down liability.
7. Stating exemption.
8. I.e., no contradiction between the two Baraithas, which do not deal with the payment for the loss of the embryos but with the payment for the loss of the increment in the value of the woman herself due to the embryos.
9. Maintaining that the payment for the loss of the increment in the value of the woman herself also belongs to the husband, so that where he was a proselyte dying without issue there would be no liability at all upon the defendant.
10. According to whom the payment for the loss of the increment in the value of the woman herself has to be shared by the mother and father, so that where he was a proselyte dying without issue she will surely not forfeit her due, but as to the embryos, all agree that the woman acquires in no circumstance title to them.
11. For since the mother is a joint plaintiff with her husband regarding this payment, where he was a proselyte dying without issue she will remain the sole plaintiff and thus be entitled to the full payment.
12. Stating liability.
13. Stating exemption.
14. To which the mother was never a plaintiff.
15. That payment should be made to the mother, in contradiction to the view of R. Hisda.
16. [That she should have the whole where the proselyte husband is no longer alive.]
17. Even during the lifetime of her husband.
18. At the demise of the proselyte without any legal issue.
19. V. p. 282, n. 10.
20. V. p. 282, n. 11.
21. I.e., the mere value of the paper of the deed.
22. R. Nahman.
23. R. Yeba.
24. [I.e., 'in town' (Rashi), or (according to Tosaf.) 'beside the premises,' v. B.M. 11a: 'non-guarded premises confer title only when the owner is standing beside them.']
25. I.e., the owner of the premises.
26. I.e., the pledge or any other ownerless article.
27. For where the pledge was kept in the creditor's premises at the time of the demise of the proselyte without issue, the creditor would acquire title to the whole of it, though the creditor were out of town (Rashi). [Tosaf. renders, 'where the creditor was not beside the premises.']
28. V. Gemara.
29. Ex. XXI, 33-34
30. I.e. where the ground of the pit that did the actual damage was not his at all.