QUESTION: The Mishnah (48b) states that if a man intended to hit another man but instead accidentally struck a pregnant woman and caused her to miscarry, he must pay Demei Vlados, the monetary value of the embryo, to the father. The Mishnah explains how the Demei Vlados is assessed. According to the Tana Kama, the mother's value before and after birth is assessed (based on her value if she were to be sold as a maidservant in the marketplace), and the difference is the Demei Vlados.

Raban Shimon ben Gamliel disagrees with this form of evaluation; he argues that a woman is worth more after childbirth than before childbirth. He rules instead that the value of the baby is assessed directly and that is what must be paid to the father.

RASHI (49a, DH v'Halo) explains that the reason why a woman is worth more after childbirth than before, according to Raban Shimon ben Gamliel, is that before she gives birth her life is at risk from the dangers of childbirth.

The Gemara asks that Raban Shimon ben Gamliel seems to contradict himself. A Beraisa quotes Raban Shimon ben Gamliel who says, "Does the woman's Shevach (the increase in value of her body as a result of having a greater volume; Rashi DH v'Chi} go only to her husband and she receives no share in this? The Shevach should be split between the husband and wife." Rashi (DH Kasha) points out that Raban Shimon ben Gamliel's ruling in this Beraisa clearly shows that he maintains that a woman is worth more before birth than after the birth. The Gemara answers that Raban Shimon ben Gamliel in the Beraisa refers to a woman's subsequent births, which pose a much smaller danger to her life than her first birth.

The Gemara implies that a woman's life considered in serious danger only at the time of her first birth. This assumption, however, seems to contradict the words of TOSFOS in Kesuvos. The Mishnah there (83a) states that when a man signs that he will not contest the rights of ownership to his wife's property, he nevertheless inherits her when she dies. His commitment not to contest ownership is valid only while she is alive; it gives her the rights to sell or give away her property without his consent.

The Gemara there (83b) explains that the reason he why a man agrees not to contest ownership of his wife's property is that it is common that a man's wife dies in his lifetime, and it is not common that she sells her property. Therefore, when a man relinquishes certain rights to his wife's property, it is assumed that he gives up only his rights which result from an uncommon occurrence. It is not assumed that he waives his rights which result from a common occurrence.

Tosfos there (DH Misah) explains that it is considered common that a woman dies during her husband's lifetime because of the many incidents in which a woman dies during childbirth.

Tosfos implies that for all births, and not just for the first, a woman is in danger. How are the words of Tosfos there to be reconciled with the Gemara here which assumes that only the first birth is considered significantly dangerous?

(a) The TIFERES YISRAEL (Boaz #2) points out that this question appears to be difficult not only according to Raban Shimon, but also according to the Tana Kama. The Tana Kama states that Demei Vlados is always assessed by determining the difference between the woman's value before and after birth. The Tana Kama apparently maintains that even during her first pregnancy, a woman's value is greater before birth than after birth. This implies that she is not in significant danger even at her first birth, a contradiction to the assertion of Tosfos in Kesuvos.

The Tiferes Yisrael answers that everyone agrees that the value of the woman herself is less before birth than after, because she is in danger. However, when the value of a pregnant woman is assessed, not only is her value assessed but the embryo's value is also assessed. Although a person who purchases a pregnant maidservant takes a risk with his investment because she might die in childbirth, he has an upside risk as well: if she survives the birth, he will own both her and the baby. Therefore, he is willing to pay more for a pregnant maidservant than for one who is not pregnant. The potential gain of owning two servants overrides the risk that one or both might die during childbirth.

In contrast, Raban Shimon maintains that since the risk of danger at the first birth is greater than any other birth and the chances of losing both the mother and the baby are significant, a purchaser does not the risk of buying the mother. The risk of the potential loss overrides the potential gain of both a mother and a child.

(b) Another solution may be suggested based on the words of the TOSFOS SHANTZ in Kesuvos (83b). The Tosfos Shantz states that the reason why it is common that a wife dies before her husband is that "oftentimes she is in danger through birth." The Tosfos Shantz does not say that in the majority of births she is danger, but rather that she is often in danger.

It is possible that Tosfos also means that she is often in danger, but only in the majority of cases. Therefore, although there is a significant danger of dying in childbirth, nevertheless this risk is not great enough to lower her market value before birth to less than her value after birth. (D. Bloom)

QUESTION: The Mishnah mentions three different cases in which one is liable for the damage caused by his Bor: one digs a Bor in Reshus ha'Yachid and its opening is in Reshus ha'Rabim, one digs a Bor in Reshus ha'Rabim and its opening is in Reshus ha'Yachid, and one digs a Bor in Reshus ha'Yachid and its opening is in a different Reshus ha'Yachid.

RASHI (DH Chayav) explains that in the third case, the digger of the Bor is liable only if he declared as ownerless the domain into which the Bor opened. (Rashi (DH b'Reshus ha'Rabim) explains that if he did not make his domain ownerless, he is exempt because he may argue that the object that fell into his Bor had no right to be in his domain.)

TOSFOS (DH b'Reshus ha'Yachid) infers from the words of Rashi that Rashi does not mean that the opening of the Bor was in someone else's Reshus ha'Yachid, but that both domains belonged to the same person. Tosfos quotes the RI who explains the third case differently. The person dug a Bor in his own Reshus ha'Yachid and dug its opening in the Reshus ha'Yachid of his neighbor. Although the opening is open only to Reshus ha'Yachid where few people walk, nevertheless if someone is damaged by the Bor there, the one who dug the Bor is liable.

Tosfos questions the Ri's explanation. Why is the one who dug the Bor liable for what fell into it when it is no longer in his yard? Since he is obligated to pay his neighbor for the damage he did to him by opening a Bor in his yard, the responsibility to fill in or cover the Bor should now rest on his neighbor. If the neighbor does not fill in or cover the Bor, the neighbor should be liable for any damage that it causes. The Gemara (48a) teaches that one who is required to fill in a Bor but fails to do so is liable; his failure to fill in or cover the Bor is considered equivalent to digging it himself. Why, then, does the Ri state that the person whose domain contains the opening of the Bor is not obligated to pay for the damages?

(a) The NIMUKEI YOSEF (21b of the pages of the Rif) writs that the Mishnah refers specifically to a case in which someone was damaged by the Bor before the person whose domain in which it was dug knew that it was there. If he knew about it before it damaged, he is responsible for any damage that it subsequently caused because he was obligated to fill it in and failed to do so. This answer is also given by the SHITAH MEKUBETZES in the name of the ROSH, and by the TUR (CM 410:3).

(b) The IMREI MOSHE (29:8) points out that there is a significant difference between the case of Tosfos and the case of the Gemara (48a). The Gemara discusses a case in which one brought his ox into his friend's yard without permission, and the ox subsequently dug holes in the yard. The Gemara says that the owner of the ox must pay for the damage done to the yard, but the owner of the yard must pay for the damage done by the holes, since he should have filled them in. The Imrei Moshe points out that the animals that were damaged by falling into the holes entered the yard without permission. The person whose ox dug the holes is exempt because he is not considered to have damaged the animals; the animals that were damaged should not have been there anyway. However, the owner of the yard is obligated to pay if he was Mafkir the Bor.

In contrast, in the case of the Mishnah, the person opened the Bor into the yard of his neighbor, and the animals of his neighbor were damaged in the Bor. The Ri maintains that the person who dug the Bor is liable because he had no right to dig there, while the owner of the yard certainly has the right to let his own animals roam in his yard. (D. Bloom)