Before us is Mishnah 4 in the fifth chapter of Tractate Bava Kamma, the last one before we begin discussing the primary category of damage of a pit. Its topic deviates slightly from the order of the chapter: the laws of demei velados (the value of offspring) - the financial compensation paid by a person who caused a pregnant woman to miscarry.
The source of the law in the Torah:
The halachah is derived from the verse in Parashas Mishpatim (Shemos 21:22): "If men fight and they strike a pregnant woman and her children come out, and there is no fatality - he shall surely be punished as the woman's husband will place upon him".
"If men fight" - when men are fighting with each other. The word "men" is significant according to most opinions: specifically people, and not animals, and from here we learn that if an animal caused a miscarriage, there is no obligation to pay compensation.
"And they strike a pregnant woman and her children come out" - one of them strikes a pregnant woman, and she miscarries.
"And there is no fatality" - no one died as a result of the blow. The unborn fetus died, but a living, whole person did not die.
"He shall surely be punished as the woman's husband will place upon him" - the one who caused the miscarriage must be financially penalized, as appropriate, and the payment is collected and given to the husband of the woman who lost her child.
Thus, the payment is given under normal circumstances to the husband who loses his child, and not to the woman, even though she is the one who actually lost it. This is a financial compensation for the loss of the fetus itself - an independent and separate payment from the regular payments made for injury.
When a person injures his fellow, there are five types of payments (and their details will be explained in chapter 8):
Nezek - the depreciation in value.
Tza'ar - the payment for physical pain.
Boshes - the emotional suffering.
Sheves - the loss of work days.
Ripui - the medical expenses.
Our Mishnah discusses a case where the woman was pushed in her stomach without permanent injury, without shame, and without substantial pain, and the fetus came out. Even so, there is a loss of the fetus here, which obligates compensation in its own right.
It is worth paying attention to the condition "and there is no fatality": if the woman had sustained a severe injury that caused her death, Heaven forbid, we would enter the category of kim lei b'd'rabbah mineih (he is subject to the greater punishment) - meaning that when an act is committed that incurs the death penalty, financial payments are not considered at all. Here we are dealing with a purely financial payment.
The words of the Mishnah:
"Shor shehayah miskaven lachaveiro v'hikkah es ha'ishah v'yatz'u yeladeha - patur midmei velados" - an ox that aimed to attack another ox, missed its target, and struck a pregnant woman, and she miscarried: the owner of the damaging ox is exempt, and does not pay anything to the father of the fetus. The reason, as stated: the verse specified "men" - people, to exclude animals.
"V'adam shehayah miskaven lachaveiro v'hikkah es ha'ishah v'yatz'u yeladeha - meshalem demei velados" - Reuven who wanted to strike Shimon, and struck a pregnant woman instead and she miscarried, is obligated to pay the value of the offspring to the husband.
How does he pay the value of the offspring?
The Mishnah explains the method of calculation: "Shamin et ha'ishah kamah hi yafah ad shelo yaldah vechamah hi yafah misheyaldah" - they appraise the difference between her value, hypothetically as a maidservant, before the miscarriage, and her value afterward. This loss - the loss of the baby and the decline in her childbearing capacity - is what obligates the payment.
The Gemara explains that this difference includes two separate components:
The value of the fetus itself, as an added value to the woman.
The appearance of the pregnant woman: A pregnant woman looks healthier, more robust, heavier, and larger, which in Mishnaic times was considered attractive and appealing. Once she loses her pregnancy, she loses this aspect as well, and this is also included in the loss.
"Amar Rabban Shimon ben Gamliel: Im ken, misheha'ishah yoledet mashbachat" - Rabban Shimon ben Gamliel objects to this method of calculation: According to this approach, at least regarding her first birth, the woman's value actually increases after giving birth.
The reason for this is that a person buying a pregnant maidservant is afraid that the pregnancy might not end well and she could die in childbirth. Maternal death during childbirth was common, especially during a first pregnancy, and if she was completely unable to give birth, it would be fatal. It is estimated that about two percent of all births in the ancient world ended in the mother's death - a dangerous reality. Therefore, buyers would prefer a woman who is not expecting, as they do not have to deduct from her value the risk that she might not survive.
"Ela shamin et haveladot kamah hen yafin venoten laba'al" - in his opinion, we calculate the value of the offspring on its own. There are various opinions regarding the exact method of calculation, but fundamentally: If the owner of a pregnant maidservant were asked how much he would pay to ensure the baby is born safely and not miscarried, this type of compensation is what is owed to the father of the offspring.
To whom are the funds paid?
The starting point is that there is a husband to whom the money is given. Payments for damage to the woman herself - if she were physically injured, such as losing a hand, or if she suffered severe physical pain - go into her own pocket. However, the loss of the offspring, as well as the loss of her pregnant figure, are losses whose compensation goes to the father of the child. The Mishnah uses the term "husband", but in reality, the one entitled to the payment is the father, even if hypothetically they were not married.
Since this is a monetary payment, if the father passed away in the meantime and it is impossible to pay him - to whom does the payment go? To this the Mishnah states: "Ve'im ein laba'al - noten leyorshav" - if there is no husband, he gives it to his heirs. We do not give it to the woman, but rather to the husband's heirs, since the monetary payment is owed to him, and consequently his heirs are the ones entitled to it.
The Rambam rules that if the father was already dead at the time of the miscarriage, he was never entitled to the payment to begin with, and the funds go to her rather than to his heirs. The Shulchan Aruch cites this view, but others disagree, maintaining that the funds always go to the father's heirs, even if he died prior to the miscarriage.
A freed maidservant and a convert:
"Hayesa shifchah venishtachrerah o giyores" - if she was a maidservant who was freed or a convert. This refers to a woman who lost her fetus and does not have a husband, and she herself is a freed maidservant who was married to a freed slave, or a convert who was married to a convert.
Every Jew by birth has heirs, since a relative can always be found in the family tree, and all of the Jewish people are ultimately relatives. In contrast, a convert is considered like a newborn child, and if he does not have his own children, he is halachically disconnected from his family tree: his parents, uncles, and the like are not his heirs.
It turns out that in a case where both the woman and her husband have no heirs, there is no one to pay the compensation for the offspring. The rule is that when a convert without heirs dies, his property becomes ownerless, and whoever takes possession of it first acquires it, and it does not pass to anyone as an inheritance. Therefore, when there is a payment owed to the father of the lost fetus, and there is no father to receive it and no heirs to inherit this debt, the money remains in the pocket of the damager.
In summary: In this Mishnah we learned the law of compensation for offspring, derived from the verse "If men strive together": monetary compensation for the loss of the fetus, which is separate from the five payments of one who injures another. An ox that caused this damage is exempt, as it says "men" and not animals, whereas a person is liable. We discussed the two methods of appraisal - evaluating the difference in the woman's value before and after the miscarriage, as opposed to the opinion of Rabban Shimon ben Gamliel who evaluates the value of the offspring themselves - and the question of to whom the compensation is paid: to the husband, and when he is no longer alive, to his heirs, and when there are no heirs at all, the money remains in the hands of the damager.
In the next section, we will proceed to discuss the primary category of damage of a pit.