1)

OTHER PAYMENTS WITH DEMEI VLADOS [Nezikim: Demei Vlados]

(a)

Gemara

1.

(Beraisa): If Reuven hit a woman, making her lose her fetus, he pays Nezek and pain to her, and Demei Vlados (compensation for the fetus) to her husband.

2.

59a (Beraisa - R. Yosi): We deduct the cost of a midwife (from Demei Vlados);

3.

Ben Azai says, we deduct the additional food that she would have eaten in the days of Kishuy (when she is in pain, before the birth).

4.

R. Yosi holds that all the more so we deduct the additional food.

5.

Ben Azai holds that we do not deduct the cost of a midwife. Her husband can say that his wife does not need one.

6.

Kesuvos 65b (Mishnah): If one wounded a married woman, the payments for embarrassment and Pegam (blemish) are hers;

7.

R. Yehudah ben Beseira says, for damage to a covered part of the body, she receives two thirds of the payment and he gets a third. For damage to an exposed part, she receives a third and he gets two thirds.

(b)

Rishonim

1.

Rambam (Hilchos Chovel u'Mazik 4:1): If one hit a woman and caused a miscarriage, even though he did not intend, he pays for the fetus to the husband, and the Nezek (damage) and pain to the woman.

i.

Magid Mishneh: Rashi explains that the payment for Nezek is like that for standard Nezek to a woman, like it says in Kesuvos. The Rambam rules like the simple reading of the Beraisa, that she gets all of it.

2.

Rosh (5:5): The Beraisa did not mention payment for embarrassment, for it varies. If it was concealed, she gets two thirds and he gets one third. If it was open, he gets two thirds and she gets one third.

i.

Yam Shel Shlomo (5:16): It seems that Nezek (for causing a miscarriage) is fixed, i.e. she always receives two thirds, for it is always in a covered place. Embarrassment depends not on which limb was hit, rather, on whether or not it was in public. Therefore, this varies. The Rosh says so in Teshuvah 40:1; this is like Tosfos. Pegam depends on the part of the body. The Rambam equates embarrassment to Pegam. The Tur (EH 83) equates embarrassment to Pegam only when there is a wound. When there is no wound, e.g. verbal abuse (and the damage consented to pay), the division of embarrassment depends on whether or not it was in public. Tosfos' opinion is primary.

ii.

Yam Shel Shlomo: However, it seems that the Rosh holds that she gets all the Nezek. If the Tana taught Nezek, relying on the Mishnah in Kesuvos that teaches how it is divided, he should have similarly taught embarrassment! Chachamim enacted that a husband receives part of the payments for damage to his wife, for he is also embarrassed and pained by the Pegam. This is to appease him. Here, he need not be appeased, for he receives most of the payments, i.e. Demei Vlados. Rashi holds that the embarrassment is divided; the Tana did not teach about embarrassment, for he exempts one who did not intend for this person, like Tosfos says (see below). The Rosh's opinion is better, for the Beraisa discusses 'one who hit a woman.' This connotes that he intended for her.

iii.

Tosfos (42b DH Nosen): The Beraisa mentions Nezek and pain because normally these are more for one who miscarries due to a blow than for one who delivers normally. It omits Refu'ah and Sheves (temporary inability to work), for normally these are not greater due to the blow than for a normal delivery. The Tana omits embarrassment, for he exempts one who hit someone he did not intend for; the verse connotes that he did not intend for her.

(c)

Poskim

1.

Shulchan Aruch (CM 423:1): If one hit a woman and caused a miscarriage, even though he did not intend, he pays for the fetus to the husband, and to the woman the damage and pain.

i.

SMA (2 and Prishah 1): In EH 83, the Tur and Shulchan Aruch say that her husband gets a share of the payments for Nezek and pain. That refers to when someone cut off her hand or a limb that diminishes her ability to work, therefore he gets a share. Here, the miscarriage interferes with her ability to work only until she recovers. Her husband receives (only) payment for this temporary loss. It is almost certain that she will recover to her initial status.

ii.

Rebuttal (Taz): In EH we say that they share also Pegam, which does not interfere with work!

iii.

Question (Gra 1): The Beraisa is like the first Tana, but we hold like R. Yehudah ben Beseirah! This is not difficult according to Rashi in Kesuvos and the Rosh, who explains that they argue only about embarrassment. However, in Bava Kama Rashi says that he gets a share also in Nezek!

2.

Rema: We estimate how much more pain and Nezek there is when one miscarries due to a blow than for one who delivers normally. The same applies to Refu'ah and Sheves, if these are needed.

i.

Question (SMA 4): Why did the Shulchan Aruch omit the law of embarrassment?

3.

Shulchan Aruch (EH 83:1): If one hit a married woman, Sheves and Refu'ah go to her husband, and pain is hers. If the damage was open, e.g. on her face, neck, hand or arm, she gets a third of the embarrassment and Nezek, and her husband gets two thirds. If it was concealed, he gets a third, and she gets two thirds.

i.

Beis Yosef (DH u'Mah she'Chosav Rabeinu Hainu): The Tur says that Pegam, i.e. Nezek, is his. He means that he gets a share of it. Alternatively, he calls it 'his' because even her share is used to buy land, and he eats the Peros.

ii.

Bach (DH u'Mah) and Prishah (2): The correct text of the Tur says 'it is his and hers.'

iii.

Gra (4): In Bava Kama, it says that she gets embarrassment and Nezek. The Rosh connotes that she gets all the Nezek, but embarrassment is shared. The Tur rules like the Rosh regarding a blow that caused a miscarriage, but like the Rambam regarding other damage (both are shared). The Yam Shel Shlomo's distinction between these is difficult.

Other Halachos relevant to this Daf: