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Bava Kama, 43

1) A "GERUSHAH" WHO WAS HIT AND LOST HER "VLAD"

QUESTIONS: Rebbi Akiva teaches that a husband inherits his wife mid'Oraisa. The Gemara questions this from a Beraisa which teaches that when a pregnant woman is hit and the fetus is lost, the money of the "Demei Vlados" is given to the husband, and the Nezek and Tza'ar that the woman suffered is paid to her. If the husband dies, then the Demei Vlados is given to his heirs. If the woman dies, the Nezek and Tza'ar is given to her heirs, and not to her husband. If a husband inherits his wife, then why should the husband not receive his wife's Nezek and Tza'ar?

The Gemara answers that the Beraisa is discussing a situation where the woman who was hit was a divorcee (Gerushah). Therefore, her former husband does not inherit her if she dies.

RASHI explains that the woman was divorced *after* she was hit.

(a) Why does Rashi explain that the woman was divorced after she was hit? He should have explained that even before she was hit, she was divorced, and that is why her husband does not inherit her Nezek and Tza'ar. What difference does it make if she was divorced before or after the time that she was hit? (SHITAH MEKUBETZES)

(b) If the Beraisa is discussing a woman who was divorced after she was hit, then the next words in the Gemara are very difficult to understand. The Gemara asks that if she was divorced, then why does she receive only Nezek and Tza'ar? She should also receive a share of the Demei Vlados, asks the Gemara. If the Gemara means to suggest that when the woman is divorced after the beating she still deserves a share in the Demei Vlados, then why is it asking its question on the case that the Gemara establishes that the Beraisa is discussing -- the case of a woman who was divorced? It should have asked its question on the Beraisa itself: Why does the Beraisa say that when the husband dies, his heirs inherit the Demei Vlados? If the husband died, even after the beating, before the Demei Vlados was paid, then the woman was single at that point and no longer in her husband's domain! Hence, she has the exact same status as a woman who was divorced after she was hit! Since the Gemara assumes that a woman who was divorced after she was hit deserves a portion of the Demei Vlados, then a woman whose husband died after she was hit also deserves a portion of the Demei Vlados! Why should it go entirely to the husband's heirs? (REBBI AKIVA EIGER in GILYON HA'SHAS)

ANSWERS:

(a) The RASH cited by the SHITAH MEKUBETZES answers that Rashi had to say that the woman was divorced *after* being hit, because if she was divorced at the time that she was hit, then the Beraisa would not need to teach us that she alone receives the Nezek and Tza'ar, for it is obvious that she receives it, and that her heirs inherit it if she dies. It must be that she was divorced *after* being hit, and that is why we might have thought that the husband would have a claim to the Nezek and Tza'ar.

The Rash continues and says that Rashi might have found support for this interpretation of the Beraisa from the wording of the Gemara's next question. The Gemara asks that if the woman is a Gerushah, she should *split* the Demei Vlados with her former husband. The Gemara assumes at this point that the Demei Vlados are awarded to the husband *not* because he fathered the Vlados, but because of the rights he has over his wife. Why, then, does the Gemara ask that the wife should *split* the Demei Vlados with the former husband is she is a divorcee? If she was divorced before being hit, she should receive *all* of the Demei Vlados! What right should her husband have to it at all? (See Shitah Mekubetzes in the name of the RASHBA and others who explains that the word "Tiflog" ("split") in our Gemara is not being used in its normal sense, but rather it means "Tishkol" ("take"). Some Rishonim even change the Girsa to "Tishkol" in our Sugya. See also TOSFOS HA'ROSH, cited by the Shitah Mekubetzes, who is bothered by this question.)

The Gemara must have understood that the Beraisa can be discussing a woman who was divorced after the damage was done, and that is why the husband would have some right to receive the money. Had she remained married until the money was paid, the husband would have received all of the Demei Vlados. Since he divorced her before the money was paid, he and she should split the Demei Vlados, since they both have some entitlement to it.

(b) When the Mishnah says that the husband's heirs receive the Demei Vlados when he dies, it might be referring to when the husband dies after the Gemar Din. Since he was alive at the time of the Gemar Din, he receives the full share of the Demei Vlados. The Gerushah, though, to whom the Beraisa refers, was divorced *before* the Gemar Din. Therefore, the verdict should have given equal rights in the Demei Vlados to the man and the woman, since they were divorced at the time the ruling was issued.

Rebbi Akiva Eiger did not accept this answer, probably because if this were true, the Gemara should have answered that the Beraisa is discussing a woman who was divorced *after* the Gemar Din, and that is why the husband receives the full share of the Demei Vlados. Why did the Gemara not give this answer?

To defend Rashi, we could suggest that perhaps the Gemara could indeed have given this answer, except the Gemara says that the truth is that it is not necessary to suggest such an answer, since the Torah gives the Demei Vlados to the *father* of the children, and not to the *husband* of the woman.

Additionally, if the Gerushah's entitlement to the Demei Vlados varies depending on *when* she was divorced, then the Beraisa should have been more specific, and not just have made a blanket statement that the woman's (Gerushah's) heirs always receive the Nezek and Tza'ar. In the first part of the Beraisa, though, the Beraisa did not have to specify that the husband died after the Gemar Din, since it is obvious that he did *not* die *before* the Gemar Din, for had he died before the Gemar Din it would not be possible to state, "While he is alive, he receives the Demei Vlados" -- he does not receive anything before the Gemar Din! (M. Kornfeld)

(See also RASHASH, who discusses Rebbi Akiva Eiger's question at length.)

QUESTION: The Gemara says that according to Rabah -- who teaches that when a Shor kills without intent to kill, the owner is exempt from paying Kofer -- the owner must nevertheless pay the heirs of the victim a monetary reimbursement ("Damim") equal to the value of the deceased.

The Gemara (40a) teaches that Tana'im argue about whether the value of Kofer is equal to the value of the Mazik (the owner of the Shor) or to the value of the Nizak (the person who was killed). According to the opinion that holds that Kofer is equivalent to the value of the Nizak, what difference is there whether the owner of the Shor pays Kofer or pays compensation for the Nizak? In either case, he is paying the same sum of money!

ANSWERS:

(a) TOSFOS (DH Mai) explains that Kofer is a more lenient payment. Since Kofer is meant to atone for the owner of the Shor that killed, it is comparable to a Korban, because a Korban also atones for the person who did a sin. Just like a Korban that provides atonement (such as a Chatas) cannot be brought after a person dies because "Ein Kaparah l'Meisim" (no atonement can be provided for a person who is already dead), so, too, if the owner of the Shor dies, he (his heirs) will not have to pay Kofer. However, he *will* have to pay compensation (Damim) if the Shor killed without intent to kill.

According to Tosfos, it is not clear why the Torah should exempt the owner from paying compensation when he pays Kofer. He (his heirs) should have to pay after his death in order to compensate the Nizak even though it is too late to provide atonement!

Perhaps Tosfos understood that since Kofer is a Kaparah, atonement, it is comparable to a physical punishment, such as Misah or Galus, which also serves to provide Kaparah, and just like a person does not have to pay for an act for which he receives a punishment because of the rule of "Kam Lei bid'Rabah Minei," so, too, the Chiyuv of Kofer exempts him from having to pay compensation. (Although Tosfos on 4a, DH k'Re'i, and 26a, DH v'Yehei, rules that "Kam Lei" does *not* exempt a person from a payment that is related to the sin that caused the punishment, nevertheless Tosfos agrees that according to most Tana'im one does not pay monetary compensation for killing a person b'Mezid. See Sanhedrin 79a.)

(b) RASHI here explains that the difference between Kofer and Damim is as follows. Since Kofer is a Kaparah, when there is a Chiyuv Kofer one must pay Kofer in order to receive atonement. If he has no money and cannot pay Kofer, then he will be punished at the hands of Shamayim.

It is not clear what the practical difference is, since, if a person is penniless, there is nothing he can do about it, even if he has to pay Kofer.

The SHITAH MEKUBETZES explains that the practical difference is that he is required to go begging until he has money to pay Kofer and receive atonement.

Another practical difference might be, as the RA'AVAD writes, that when a person owes money, we normally do not force him to sell his basic necessities, whereas in order to pay Kofer perhaps he would have to sell them in order to gain atonement.

Another practical difference according to Rashi would be in a case where a person is uncertain whether or not he has an obligation to pay. If the payment is simply monetary (Damim), then he will not have to pay out of doubt, because of the rule, "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." However, if the payment that he must pay is Kofer, then, out of doubt, he will still have to pay in order to gain atonement in case he was Chayav (as the NIMUKEI YOSEF writes).

(c) TOSFOS suggests another answer. If the Chiyuv is because of Kofer, then the heirs of the Nizak cannot be Mochel, they cannot forego the payment, since the Mazik is obligated to pay in order to gain atonement for himself. (See Tosfos in Kesuvos 29a, DH v'Al Eshes Achiv, in the name of the Yerushalmi, and Tosfos in Kesuvos 30b, DH Zar, citing Terumos 6:1.)

How can Tosfos write that the heirs of the Nizak cannot be Mochel the Kofer? Who will force them to take it if they are not interested in receiving it? (If the Mazik pays them against their will, it will be a "payment against one's will," see Insights to Gitin 75a, and see MAHARAM SHIF here.) Perhaps Tosfos means that if the heirs are Mochel and then they change their mind, the Mazik will have to pay Kofer, since their Mechilah does not take effect. If the heirs refuse to take the Kofer, the Mazik will have to beg them to take it in order for him to receive atonement.

(d) The RA'AVAD and RE'AH write that the opinion that maintains that Kofer is the value of the Nizak does not mean that one pays the value of the Nizak had he been an Eved. Rather, since Kofer is an atonement, one pays the value that the Torah attributes to the Nizak, which is taken from the value of Erchin (as mentioned in Parshas Bechukosai). However, if a person pays Damim, he pays the value of the Nizak as an Eved. Hence, there is a significant difference between the payment of Kofer and the payment of Damim.

However, the RASHBA rejects this explanation based on the Gemara (42b) that says that one pays "the full value."

(e) The BA'AL HA'ME'OR explains that the Gemara does not mean that according to Rabah one pays Damim if the Shor kills a person. Rather, when the Beraisa says that one pays when the Shor intended to kill one person but killed another, it does not mean that the Shor actually killed the second person, but that he put the second person on the verge of death. Since the Shor did not kill the person, there is a monetary obligation for the damages, just like in any case that the Shor damages a person, and these are the damages to which the Gemara here refers.

This explanation creates a serious problem with understanding the Beraisa, because our Gemara concludes that the Beraisa differentiates between when the Shor kills a free man and when he kills an Eved. There is a Chiyuv to pay Damim for killing a free man, but there is no Chiyuv Damim for killing an Eved. According to the Ba'al ha'Me'or who says that killing means putting on the verge of death, why should there be no Chiyuv to pay for damages done to an Eved? Since the Eved did not die, the Chiyuv of Sheloshim Shekalim does not apply, and thus one should pay for damages as usual! See the ME'IRI who deals with this question at length.

The RAMBAN in Milchamos rejects the Ba'al ha'Me'or's explanation for this and other reasons. He asks that the Gemara later says that a Bor that causes the same damage as the Shor of the Beraisa does not have to pay. Why should the owner of the Bor be Patur if the Bor did not kill the person? He should be Chayav to pay like in every case of damages!

(The Ba'al ha'Me'or perhaps was not bothered by this question, because he learns like Rashi on 4b, DH Tana Adam. As we explained in the Insights there, Rashi maintains that when a Bor is deep enough to kill a person, then the owner of the Bor is exempt for paying for damages done to a person as well, and not just exempt for killing him.)

According to all of these answers (except for that of the Ra'avad), these distinctions between Kofer and Damim apply even if Kofer is considered Mamon, a monetary payment (and not Kaparah). The opinion that says that Kofer is Mamon does not mean that Kofer does not provide atonement, because the Torah states clearly that Kofer provides atonement ("Pidyon Nafsho," Shemos 21:30). Rather, it means that the atonement is acquired through paying the compensation of Damim to the heirs of the Nizak. Hence, if the compensation of Damim is not given, the person does not receive atonement, and therefore he has the added obligation of Kaparah requiring him to pay (as well as the obligation of compensation).

According to the answer of the Ra'avad, this Gemara must be following the view that Kofer is a Kaparah, and that is why the payment is determined by the Parshah of Erchin.

43b