ו׳ בתמוז ה׳תשע״ו (July 12, 2016)

Bava Kamma 42a-b: Compensation for a Miscarriage

Is there any reason to distinguish between payments made for damages done to a man and those made for damages done to a woman?

The Torah is emphatic that injuries done to men and women will be punished the same way (see, for example Shemot 21:28 and 21:29). In discussing this point, the Gemara brings a baraita that teaches that if a pregnant woman is injured, leading her to miscarry, the woman will receive payments of nezek and tza’ar (damage to her as well as pain and suffering) while her husband will receive the penalty meted out for the loss of the unborn child – known as demei veladot – as stipulated in the Torah (see Shemot 21:22).

Tosafot explain that the reason the baraita mentions only nezek and tza’ar, with no discussion of the other payments that are ordinarily made in situations of damage, is because the pain and damage to her from an incident like this are greater than they would have been in a normal delivery. We can assume, however, that medical costs and loss of time at work (ripuy and shevet) will be no greater in this case than had she given birth naturally, so she will not receive any such payments from the individual who caused the miscarriage. Boshet (embarrassment) will not be paid for a technical reason. As the case is presented in the Torah, the woman was hit accidentally; the person who hurt her had meant to strike someone else. Since, “Nitkaven le-vayesh et zeh u’biyyesh et zeh, patur – when someone intended to embarrass one person and mistakenly embarrassed another, he is not obligated to pay,” there is no payment of boshet in our case.

The Me’iri argues that ripuy and shevet payments will be made to the husband. Based on agreements made in the ketuba and by Rabbinic ordinance a man is obligated to pay his wife’s medical bills, and receives her income in exchange for keeping her fed. Therefore it is only reasonable that he will receive payments related to those two areas of expense or loss. According to the Me’iri, the value of boshet and who receives it will depend on the nature and extent of the embarrassment that she suffers.

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