Bava Kamma 46

Does fetal crime pay?

On today’s daf, we start the fifth chapter of tractate Bava Kamma (we’re almost at the halfway point!), which continues the Talmud’s discussions of goring and the laws of the pit. One issue we’re going to see come up again and again in the chapter is how to calculate the financial damages when the injury or death included the loss of a pregnancy. This issue is introduced in the very first mishnah of the chapter: 

An ox that gored a cow, and its fetus was found dead at its side, and it is not known whether the cow gave birth before the ox gored it, or whether it gave birth after the ox gored it. 

The rabbis of the Mishnah know that there is no visual difference between a newborn calf and a full term bovine fetus. So in trying to determine whether the goring ox injured the cow and caused a delivery of the fetus, or whether the cow had just given birth to a stillborn calf that was not involved in the goring, they cannot use visual cues. 

Instead, they enact a statute that applies to both cases: 

The owner of the goring ox pays half the damage for the cow and one quarter of the damage for the offspring. 

From this rabbinic math, we can learn two things. First, the ox we’re talking about here is one who has never gored before, so its owner is only liable to pay for half the damage to the cow. Second, the cow’s fetus is legally considered a victim of the ox that gores. In this case, the court halves the damages owed by the ox’s owner for the fetus because it is uncertain whether or not the fetus was still a fetus or had been born. 

The mishnah next asks a question that might seem stranger to us modern readers: If the fetus can be considered a victim of goring, can it also be considered a perpetrator? This is complicated, but let’s see how the rabbis come to that idea:

Likewise, a cow that gored an ox, and its offspring was found at its side, and it is not known whether she gave birth before she gored or whether she gave birth after she gored. 

In this case, it is not the ox that gored but the cow. (A quick note that in most species of bovine, either both males and females have horns, or neither does. Today farmers often remove the horns of dairy cows to prevent goring and other kinds of harm in close quarters.) When humans stumble on the scene of the crime, they find the goring cow with a newborn calf next to it, but cannot determine whether the cow had been pregnant when she gored the ox, or had just given birth and so was postpartum. As we have already learned, when an animal with no prior history of violence gores, the owner of that animal is required to pay half the value of their goring animal. But a pregnant cow is worth more than a postpartum cow, as the fetus is worth something too. So how do we factor in the value of the fetus when we aren’t sure if the cow was pregnant at the moment of goring? 

Half the damage is paid from the cow and one quarter of the damage from the offspring.

Again we see that, to take account of the uncertainty of whether the calf was born before or after the goring, the courts assess one quarter of the damage of the value of the calf. A simple solution that opens up a huge can of worms — after all, the damages are only assessed from the guilty party, the cow that gored. So does assessing damages from the fetus mean the fetus is considered a perpetrator? And what should we make of that depiction? For that, we’ll have to keep reading!

Read all of Bava Kamma 46 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 18th, 2023. If you are interested in receiving the newsletter, sign up here.

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