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BAVA KAMA 49

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SUMMARY

If a person causes a woman to miscarry the value of the unborn child is given to the husband and if he dies it is given to his inheritors.
 
An ox that causes a woman to miscarry is Patur from paying whether it intended to gore the woman or someone else.
 
R. Papa says that if a Shor causes a maidservant to miscarry he is Chayav because a servant is compared to a donkey.
 
The Tana Kama holds that if a person causes a woman to miscarry we evaluate how much she was worth prior to the miscarriage and after the miscarriage and he pays the difference.
 
R. Shimon Ben Gamliel holds that the unborn child is evaluated separately and that is the amount that the Mazik must pay the husband.
 
R. Shimon Ben Gamliel holds that the amount that the pregnant woman appreciated as a result of the pregnancy is split between the husband and the wife. (1)
 
R. Shimon Ben Gamliel holds that when a woman gives birth for the first time she is worth more after she gives birth because of the danger of giving birth.
 
R. Eliezer Ben Yakov says that a person who causes a woman to miscarry is only Chayav if he hits her in the middle of her body.
 
If a maidservant or a Giyores was married to a Ger or a freed servant if a person causes her to miscarry and the husband dies without children he is Patur from paying. (2)
 
Rabah says that if the wife of the Ger was hit after the death of her husband the perpetrator is obligated to pay the wife for the value of the unborn child.
 
R. Chisda says that even if he hit her after the death of her husband the Ger he is Patur from paying because the Torah only grants the Demei Vlados to the husband but not to anyone else.
 
If a person hits a woman and causes her to miscarry he gives the Nezek and Tza'ar to the woman and if she dies it is given to her inheritors.
 
R. Chisda says that according to R. Shimon Ben Gamliel who holds that the Shevach Vlados is split between the husband and the wife if she is married to a Ger and she is hit after his death she is Zocheh in all of the Shevach Vlados.
 
It is a Safek if a person is Machzik in the Shtar that a Ger possessed whether he is Zocheh in the Shtar or not. (3)
 
If person has a Mashkon in the hands of a Ger and the Ger dies and someone is Machzik in the Mashkon we take it away from him because once the Ger dies the Shibud of the Mashkon is suspended.
 
If a Ger has a Mashkon in the hands of his Ba'al Chov and the Ger dies and someone is Machzik in the Mashkon the Ba'al Chov is Koneh for the amount that he is owed and the person who was Machzik is Koneh the remainder. (4)
 
The courtyard of a person is Koneh even without the owner's knowledge.
 
If someone digs a Bor in Reshus ha'Yachid and opens it into a Reshus ha'Rabim or vice versa, or he digs a Bor in Reshus ha'Yachid and opens it into another Reshus ha'Yachid he is Chayav. (5)
 
R. Yishmael says that the Bor that is mentioned in the Torah is a Bor in Reshus ha'Rabim, while R. Akiva says that the Bor that is mentioned in the Torah is a case where he was Mafkir his Reshus but not his Bor. (6)

A BIT MORE

1. According to the Tana Kama the amount that she appreciated from the pregnancy is given completely to the husband.
 
2. Because a Ger who dies without children has no inheritors and his property is Hefker and therefore the Mazik is Zocheh in the unpaid Demei Vlados.
 
3. He is not Koneh the Karka that is Meshu'abad by way of the Shtar and maybe he does not have in mind to be Koneh the actual Shtar.
 
4. The person is only Koneh the remainder of the Mashkon if the Ba'al Chov is not in his courtyard at the time of the death of the Ger, but if he is in his courtyard at the time of the death of the Ger his courtyard is Koneh the entire Mashkon.
 
5. Certainly he is also Chayav if he digs a Bor in Reshus ha'Rabim and opens it into a Reshus ha'Rabim.
 
6. Rabah says that everyone agrees that a Bor in Reshus ha'Rabim is Chayav and R. Yishmael and R. Akiva are arguing if a Bor in Reshus ha'Yachid is Chayav.

BRIEF INSIGHT

A HUMAN DONKEY
 
R. Papa says that if a Shor causes a maidservant to miscarry he is Chayav because a servant is compared to a donkey. The Mishnah states that if a servant falls into a Bor he is Patur because a Bor is not Chayav for the death of a servant. Why don't we say the same Sevara with regards to a Bor that a servant is compared to a donkey? The Rashba answers that a servant is not exactly like a donkey and what the Gemara means is that with respect to Demei Vlados a servant is like a donkey because the Torah does not Patur a Shor for Demei Vlados unless the payment is made to the husband but if the payment is made to the master it is Chayav.

QUICK HALACHAH

DEMEI VLADOS
 
If someone hits a pregnant woman and causes her to miscarry he must pay the value of the unborn child to the husband and the Nezek and Tza'ar to the woman. How do we evaluate the worth of the unborn child? We estimate how much the woman was worth previously and how much she is worth now and the difference is given to the husband, but if she is hit after the death of her husband even the Demei Vlados is given to the woman. (Rambam Hilchos Chovel u'Mazik 6:9)
 
It is not correct that the woman is given the Demei Vlados if she is hit after the death of her husband. Even according to Rabah who holds that if the wife of a Ger is hit after the death of her husband she is given the Demei Vlados that is only because she is the wife of a Ger who has no inheritors, but the wife of a Yisrael who has inheritors we give the Demei Vlados to the inheritors. (Ra'avad)

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