Injury to Bystanders and the Meaning of "יהיה אסון"/2

Injury to Bystanders and the Meaning of "וְלֹא יִהְיֶה אָסוֹן"

Exegetical Approaches

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Woman or Fetus

The Torah contrasts an incident in which neither the pregnant woman nor her child suffer an "אָסוֹן", with a case in which one or the other is hurt.

Sources:Karaites, Cassuto, Modern scholars

וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה – Cassuto explains that the Torah describes a brawl between two men during which one man meant to hit the other, but accidentally struck a pregnant lady instead.

"וְיָצְאוּ יְלָדֶיהָ" – According to these sources, this phrase refers to a premature birth, but not to a miscarriage.

Definition of "אָסוֹן" – This position could understand the word in one of two ways:

• Death – Y. Hadassi the Karaite and Cassuto understand the word to refer to death.¹ The Torah teaches that if despite the early delivery, neither the mother nor her child die, the perpetrator only pays a monetary fine.  However, if either mother or child dies, he pays a "soul for a soul".  According to this read, it is not clear why the Torah then continues with a list of penalties for other bodily injuries (an "eye for an eye" etc.) which are unrelated to the case at hand.
• Injury – Alternatively, it is possible that the word refers to an injury and the Torah is contrasting a case in which neither mother nor child suffered any physical harm from the accidental strike, with a case in which any injury, from loss of a tooth to death, occurred.  As such, it is obvious why the Torah does not suffice with mentioning the penalty of "soul for soul" but continues with an "eye for an eye" etc.

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן" – According tot his position, these two phrases reinforce each other, with both stressing how the victims were not unduly harmed.²

Why pay a monetary fine? If both mother and fetus survive intact, it is not clear why there should be a monetary fine at all:

• The Karaites suggest that the aggressor is paying for the woman's suffering ("צער") or embarrassment ("בושת"), rather than bodily damage.³ 

• Cassuto, in contrast, suggests that though no one died, there might have been other damage to the victims which needs compensation.⁴

Status of unborn fetus – This position views the fetus as having independent status, equivalent to any other person, as Y. Hadassi the Karaite writes, "אפילו העובר אשר במעיים כי גם הוא אדם".  As such, causing his death constitutes murder.

Biblical parallels – "אֹתוֹ וְאֶת בְּנוֹ" – The Karaites understand the prohibition to kill an animal "with its son" to refer to a pregnant animal; this is worse than killing a lone animal since both mother and fetus have independent status.

נתכוון להרוג את זה והרג את זה – These sources disagree regarding the penalty of one who meant to kill one person but killed another:

• Death – The Karaites understand "and you shall give a should for a soul" literally and punish this crime with death.  Although there is an unintentional aspect to the act, since there is still both intent to kill and a death, the perpetrator is considered no different than other intentional murderer.
• Monetary fine – Cassuto, in contrast, asserts that the phrase "a soul for a soul" (like the term "an eye for an eye" and those that follow) should not be taken literally and merely means that one must pay the value of the life lost.⁵  Since the women's death was unintentional, the killer should not be viewed with the same severity as a murderer.

No "אָסוֹן" to Fetus

Sources:SeptuagintShemot 21:22-23About the Septuagint, PhiloOn Special Laws 3:86-87On Special Laws 3:108-109on special laws 3:117-118About Philo

No "אָסוֹן" to Woman

No "אָסוֹן"to Man

¹ This could work with the usage of the word in Bereshit 42 and 44, where Yaakov is loathe to send Binyamin to Egypt, lest an "" occur to him.  Yaakov's comparison to Yosef, whom he believed to be dead, suggests that he feared that Binyamin, too, might die.

² See below that most of the other positions read them as standing in contrast to one another.

³ R. D"Z Hoffmann questions why the Torah would need to present a unique case so as to teach these laws, as they are included in the previous laws of verses 18-19. These sources might answer that in fact the Torah really brought the case only for its second half, when the bystander is actually harmed, since that law is not previously covered and not necessarily self-evident.

⁴ This is consistent with his understanding of the word "" as death.  Those who read it as injury, however, would have to explain like the Karaites, that the fine compensates for the woman's suffering or embarrassment.

⁵ See "עַיִן תַּחַת עַיִן" – An Eye for an Eye for elaboration.