Chovel uMazzik - Chapter 4

This law is derived from Exodus 21:22, which states: “If men strive together, and a pregnant woman is struck and she miscarries....” It would appear that the man who caused the injury did not seek to harm the woman, and yet the Torah holds him liable.

The above verse continues “as the woman’s husband will claim against him,” indicating that the fundamental claim is made by the husband.

For these affect her body.

If sold as a servant in the market place. A pregnant woman would obviously bring a higher price, since the purchaser is also paying for the fetus, which will become his property.

I.e., her value after a normal birth. This is more than her value after the miscarriage, but the damage to her body because of the miscarriage is paid to her as a separate assessment.

And not to the woman, for it is considered to be his property.

Since her husband did not acquire money or the rights to it during his lifetime, he cannot therefore transfer it to his heirs. Moreover, there is an indication in the above verse that a woman has a claim to the fetus, for it states “and she loses her fetuses,” instead of saying “she loses the fetuses,” adding the word “and” (Kessef Mishneh).
The Ra’avad differs with the Rambam and maintains that even in such an instance, the husband’s heirs are entitled to receive the assessment for the fetus[es]. The Shulchan Aruch (Choshen Mishpat 423:1) cites the Rambam’s view, while the Tur and the Ramah follow the Ra’avad’s approach.

For any property owned by a convert who does not leave any heirs is free to be acquired by anyone (Hilchot Zechiyah Umatanah, Chapter 2). Hence, it is as if the person who caused the injury acquired it.

Even the opinions that differ with regard to a woman whose husband has heirs, agree in this instance.

At the time she is converted or is freed, she is considered to be a new entity and she has no marriage ties to anyone. Similarly, the fetus is considered a new halachic entity. Thus, there is no “woman’s husband” - to refer to the wording of the verse - and the right to the assessment reverts to her. This applies even if a woman and her husband convert, and he is the natural father of the fetus.
Rabbenu Asher differs and states that if the father of the fetus is alive, the assessment is due him. If the father is not alive, the person who caused the injury is not liable at all. The Rambam’s opinion is quoted by the Shulchan Aruch (Choshen Mishpat 423:3), while that of Rabbenu Asher is cited by the Tur and the Ramah. [Significantly, in his Commentary on the Mishnah (Bava Kama 5:4), the Rambam offers an interpretation similar to that of Rabbenu Asher, and his ruling in the Mishneh Torah represents a change of position.]

I.e., one might think that since the person is not liable for capital punishment because he struck the woman unintentionally, he would then be liable for a financial payment. The Rambam counters this hypothesis in the remainder of the halachah.

The Torah never holds a person liable both for capital punishment and for financial compensation (Hilchot Geneivah 3:1). This halachah explains that even when capital punishment is not administered, since the deed is punishable by capital punishment, there is no financial penalty.

Because he did not intend to kill her - although he did intend to strike her - he is considered to have killed her unintentionally.

The Rambam’s ruling here has aroused the attention of the commentaries. The basis for his decision is a difference of opinion between our Sages (Sanhedrin 19b) whether a person who intends to kill one person, but instead kills another, is liable. The Rambam rules according to Rabbi Shimon, who does not hold such a person liable for capital punishment. Since he is not liable for capital punishment, he is liable to make financial compensation (Maggid Mishneh).
The Ra’avad objects to the Rambam’s ruling, noting that the Rambam himself follows the opinion of Chizkiyah in the previous halachah, in Hilchot Na’arah Betulah 1:13 and in other sources. The law stated in this halachah appears to be the subject of a difference of opinion between Rav Ada bar Ahavah (Bava Kama 42a) and Chizkiyah (Sanhedrin 79b), and Chizkiyah states that one is not liable for financial payment. Seemingly, the Ra’avad argues, the Rambam should follow his opinion in this instance as well.
The Maggid Mishneh and the Radbaz (Volume VI, Responsum 2250) rationalize the Rambam’s ruling, explaining that one can accept Chizkiyah’s ruling quoted in the previous halachah and still follow Rav Ada bar Ahavah’s ruling with regard to the financial penalty stated in this halachah. The Shulchan Aruch (Choshen Mishpat 423:4) quotes the Rambam’s ruling, while the Tur and the Ramah follow that of the Ra’avad.

As stated in Hilchot Mamrim 5:5, a person who strikes his parents is liable for execution only when he draws blood.

For he has not violated a sin punishable by execution.

In which case he would not be liable for execution.

Halachah 5.

I.e., although injuring a colleague is basically a destructive act, when a person wounds a colleague in anger, he is considered to be performing a constructive act, because he is calming his feelings and causing his anger to subside [Hilchot Shabbat 8:8; Rambam’s Commentary on the Mishnah (Bava Kama 8:8)].

Drawing blood on Yom Kippur, in contrast to the Sabbath, is not punishable by execution, but by lashes.

See Hilchot Geneivah 3:1 for a precise statement of this general principle.

There is also another exception, eidim zomemim, perjurious witnesses. See Hilchot Sanhedrin 18:1.

The Rambam is emphasizing that there is no difference between Yom Kippur and an ordinary case of injuring a colleague, for every time a person injures a colleague intentionally, he violates a transgression punishable by lashing. See Chapter 5, Halachah 3, which gives an example of an instance when lashes are actually administered for injuring a colleague.

For the Canaanite servant is considered to be his personal property and does not have any financial capacity. Everything that the servant owns or earns - and similarly, any damages that must be paid because of him - belong to the servant’s master.
See Sefer Me’irat Einayim 424:4, which states that the master is also not punished by lashing for transgressing the prohibition against striking a colleague. He does, however, cite other views that indicate that he should be lashed.

For a Hebrew servant is not considered his master’s property and possesses an independent financial capacity.

For a master is entitled to the proceeds from his Hebrew servant’s labor.

E. g., it was estimated that it would take ten days of medical treatment to heal the servant. The person who injured him is required to pay for the ten days of treatment, even though the owner used extremely powerful medication that enabled the servant to be healed more speedily.

Thirty silver shekalim, as stated in Exodus 21:32 and explained in Hilchot Nizkei Mammon 11:1.

This fine is paid only to the owner of a servant, and as the Rambam continues to explain, the owner no longer has any rights over this servant.

Bava Kama 42b leaves unresolved the question of whether or not the bill of release establishes the servant’s financial authority. Since the question is left unresolved, neither the servant nor the owner can issue a definite claim against the person who caused the injury.
The Ra’avad and the Tur (Choshen Mishpat 424) state that the owner and the servant can give each other power of attorney and together lodge a suit against the person who caused the injury.

As Exodus 21:26 states, if an owner knocks out his servant’s tooth or blinds him, he is required to free him. Since the owner is required to free the servant for the first injury, one might think that the servant could collect financial recompense for the second injury. Nevertheless, this is not so, for he has not established his financial authority yet.

I.e., whether injured by his master or another person, if the servant seizes his due, the money is not expropriated from him according to the Rambam (but not according to the Ashkenazic authorities). For since the question is left unresolved, once the money is in the possession of the servant, the person who caused the injury cannot prove that the sum is not due the servant.

E. g., a servant was owned by two partners - one of them freed him, and one did not.

The Ra’avad protests and states that rather than have the servant work in the manner described by the Rambam, the owner is compelled to free the servant, and the servant must pay for the remainder of his worth from his future earnings. The Maggid Mishneh states that this law applies only to a maid-servant, but not to a male servant. For the owner of a maid-servant is not compelled to free her. The Radbaz (Volume VI, Responsum 2249), however, justifies the Rambam’s view.

The rationale is evident from the Rambam’s later statements. The injury will impede the servant’s ability to work, and the loss will thus be the owner’s and not the servant’s.
The Tur (Choshen Mishpat 424) explains that the Rambam’s ruling applies to the ultimate benefits the servant will receive for his inability to work due to the injury. With regard to the minimal payments that he would receive for not working during the days following the injury (see Chapter 2, Halachah 11), these should be given to the servant’s owner, since the owner is entitled to that benefit. The commentaries also emphasize that the assessment for the servant’s medical treatment should be used immediately to pay his bills.

For the money belongs to the servant, since he is not considered his owner’s property.

See Halachah 19 and notes. The Tur and the Ramah (Choshen Mishpat 424:6) cite opinions that maintain that the principles mentioned there with regard to sons apply also with regard to daughters, and other opinions that favor the daughters even more than sons.

Alternatively, for selling her as a servant.

For this reason, he receives the unemployment benefits.

For this reason, he receives the payment for her injuries.

The pain and the embarrassment are losses that she suffers personally, and the medical expenses must be paid for her care.

I.e., an injury that does not detract from the girl’s appearance or ability to perform work.

For the other two assessments are his, as explained above.

For he is obligated to pay her medical expenses, and he is entitled to her wages.

Since he will also suffer shame from having a wife who is disfigured.

Others maintain that the translation should be: “If the embarrassment was performed in a private place and was not public knowledge.” For any permanent damage to a woman’s features must be compensated as damages.

Although the majority of the embarrassment is felt by the woman, even a woman’s private embarrassment affects her husband. Therefore, he is entitled to a share of the assessment.

As he is entitled to benefit from any property that the woman owns. If the woman becomes divorced or widowed, the land becomes her own entirely; her husband’s heirs have no claim to its profits.

If another person injured a woman, her husband would be granted a share (either one third or two thirds) of these assessments. There are certain opinions (e.g., Bayit Chadash, Even HaEzer 83) that maintain that the husband is therefore required to pay only the share that his wife would receive. The Rambam differs and maintains that the punishment given the husband is more comprehensive, and he is required to pay the entire assessment for these damages.

Just as another person would be required to make such payments, so, too, is her husband. He is not required to pay for her unemployment, for he is entitled to receive the benefits of her labor.

Although a husband is normally entitled to receive the benefit from property his wife owns, an exception is made in this instance. Since he injured her, he is punished and the benefit from this property is not granted to him.

Although a husband has the right to engage in relations with his wife, he has no right to injure her and must accept the consequences of his behavior.

She is obligated to pay him for the damages, but she does not have any independent financial capacity with which to pay him. Her husband has the right to manage all of her property and derive the benefits from it.

In addition to the minimum amounts (200 zuz for a virgin, 100 for a non-virgin) prescribed by our Sages, it was customary in the Talmudic period (and this custom is preserved unto the present day) for a man to commit himself to his wife for a larger amount. (See Hilchot Ishut 10:7.) If the husband divorces his wife or dies, he or his estate is obligated to pay his wife this sum.

But not to others. We fear that if she sold this right to someone else and then became reconciled with her husband, she would waive the right to this money to free her husband from the obligation. If this were the case, the person who purchased the rights to her ketubah would not be entitled to collect anything (Bava Kama 89a).

The purchaser would not be required to pay the entire amount due the woman by virtue of her ketubah, because there is no certainty that the woman’s husband will die or divorce her. Instead, an amount is calculated that takes into consideration the risks involved.

This is a Rabbinic decree, attaching financial consequences to divorce so that a man will view it as a serious matter and think earnestly before taking such a step (Hilchot Ishut 10:10).

Payable to him or his estate upon divorce or death, from the money due his wife by virtue of her ketubah.

The Maggid Mishneh states that these laws apply to daughters as well as sons. According to his interpretation, the intent in Halachah 14 is daughters who are not dependent on the father for their livelihood.

In this regard there is no difference between his sons and others. He must pay the five assessments mentioned previously.

I.e., although rightfully the money should be given to them - since they are immature and might squander it, our Sages required that the money be placed in a durable investment that will produce some revenue.
The Rambam’s ruling is cited by the Shulchan Aruch (Choshen Mishpat 424:7). The Tur and the Ramah mention that a Torah scroll should be purchased instead. It, like land, is durable. The child can study from it, and this takes the place of the revenue that could be received from land.

Since he provides for their livelihood, any income they earn belongs to him. Therefore, he is not required to compensate them.
The Shulchan Aruch (Choshen Mishpat 424:7) quotes the Rambam’s ruling. The Tur and the Ramah differ. They explain that since he provides for his son’s livelihood, the father is entitled to the wages his son earns. Therefore, it is reasonable to free him from the unemployment assessment. The other four assessments, by contrast, are not related to the son’s wages, and the father should therefore be required to pay them.

I.e., if others cause the injury, there is no difference with regard to the payment of damages whether or not the children are dependent on their father for their livelihood.

This is the version of the standard texts of the Mishneh Torah. The version possessed by the Tur [and quoted by the Shulchan Aruch (loc. cit.)], however, stated “The father is entitled to the profits....”

His liability is not always complete, for there is no obligation to compensate a mental incompetent for embarrassment, or a minor for loss of employment. Nevertheless, whatever damages there are must be paid for.

Since they are not fully mentally competent, they are not held responsible for their actions. See Hilchot Nizkei Mammon 10:6, which states that they should be reprimanded and given physical punishment, to train them not to repeat such conduct.

See Halachot 13 and 15.

For while the woman is married and the servant is owned by his master, neither has an independent financial capacity. Any property they own is controlled by the husband or the master.
The Shulchan Aruch (Choshen Mishpat 424:9) quotes the Rambam’s ruling. The Tur and the Ramah differ and maintain that if the woman owns property, she is required to sell the right to that property in the event that she is divorced or widowed, to pay for the damages she caused.

Because the servant has the mental capacity to know what to do - and put that knowledge into practice - to save his own life. The Ramah (Choshen Mishpat 418:18) states that if the servant is a minor who lacks such mental competence, the person who placed the coal down is liable.

For an animal is considered to be lacking the mental competence to know what is necessary to save its life. The Ramah (ibid.) and the Tur maintain that the person is liable only when the animal is bound. If the animal is not bound, we assume that it has the instinctual awareness to flee from fire.

Even if the owner of the garment saw the person place the coal on it and did nothing to save his property, the person who caused the damages is liable.