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

Injury to Bystanders and the Meaning of "יִהְיֶה אָסוֹן"

Exegetical Approaches

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To the Fetus

The "אָסוֹן" spoken of in the verses refers to what happened to the fetus. Since the fetus is considered an independent entity, causing it an "אָסוֹן" incurs the same punishment as one receives for doing so to an adult.  This approach subdivides regarding the circumstances of the opposite case in which there is no "אָסוֹן":

Fetus Survived

The "לֹא יִהְיֶה אָסוֹן" scenario describes an incident in which neither the pregnant woman nor her unborn child suffer an "אָסוֹן", and the baby is born alive.  Thus, only monetary compensation is required.

Sources:Karaite commentatorsYehuda Hadassi, the Karaite, Eshkol HaKofer 270Aharon b. Eliyahu, the Karaite, Keter Torah Shemot 21, CassutoShemot 21:22-23About Prof. Umberto Cassuto

The case – "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, not to a miscarriage.  It might be equivalent to the similar phrase in Bereshit 38, "זֶה יָצָא"‎, which refers to a live birth.

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

• Death – Y. Hadassi the Karaite and Cassuto understand "אָסוֹן" to refer to death.¹ The Torah teaches that if despite the early delivery, neither the mother nor her child die, the assailant 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 "אָסוֹן" refers to any injury² 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 damage, 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", accounting for a variety of potential injuries.

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן" – According to this position, these two phrases reinforce each other, with both stressing how the victims were not unduly harmed.³

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:

• According to Aharon b. Eliyahu the karaite, the attacker is paying for the woman's suffering ("צער"), rather than for bodily damage.⁴ 
• Cassuto, in contrast, suggests that though no one died, there might have been other damage to the victims which needs compensation.⁵

Status of unborn fetus – This position views the fetus as having its own 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 in Vayikra 22 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.
• "שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם דָּמוֹ יִשָּׁפֵךְ" – This position could read this verse as does R. Yishmael in Bavli Sanhedrin, to mean "one who spills the blood of man [which is] in another man [i.e.a fetus], his blood shall be spilled."

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 soul for a soul" literally and punish this crime with death.  Apparently, 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 any 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.⁶  It is possible that he thinks that since the woman was not the target of the strike, the killer should not be viewed with the same severity as a full murderer.⁷ 

Unformed Fetus

The "לֹא יִהְיֶה אָסוֹן" scenario speaks of a case in which a blow to the mother causes her to miscarry a fetus which is not yet fully formed.  As such, the penalty is only a monetary one.

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

The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"

• Unintended target – The Septuagint apparently understands that the man accidentally hit the woman instead of his foe.
• Intended target – Philo, in contrast, assumes that the assailant attacked the pregnant woman intentionally.⁸   It is possible that according to him, the case is one in which the woman is related to one of the quarreling men and actively involved in the skirmish.⁹

"וְיָצְאוּ יְלָדֶיהָ" – These sources understand this to mean that the woman miscarried her infant.

Definition of "אָסוֹן" – It is unclear how these sources would translate the word as they only give a general interpretation of the verse.¹⁰  Since they maintain that according to both scenarios the infant died, they would have to ascribe a different definition to the word "אָסוֹן".  According to them it could mean tragedy,¹¹ and the verse would be saying that when the fetus is as of yet unformed, and thus there is no tragedy, there is only a fine, but when it is fully formed and there is a tragedy, then the act is considered a capital crime.

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא/ יִהְיֶה אָסוֹן" – These sources read the term "וְיָצְאוּ יְלָדֶיהָ" as a heading which then subdivides into two potential scenarios regarding the stillbirth: either the fetus was not yet formed, or it was fully formed.

Status of unborn fetus – These sources distinguish the status of a fully fashioned fetus from one which is still unformed.  Killing the former is a capital offense, as Philo explains, "for such a creature as that is a man". Once the baby is formed it has full human status.¹²

Biblical parallels

• "אֹתוֹ וְאֶת בְּנוֹ" – According to Philo, this verse prohibits killing and sacrificing a pregnant animal, since here, too, the Torah views "the animals which are still in the womb as equal to what has just been born".  Philo explains that for this reason, too, if a pregnant woman is deserving of capital punishment, one may not execute her until after she gives birth.

נתכוון להרוג את זה והרג את זה

• According to the Septuagint, this law teaches that one who meant to kill one person but killed another is fully culpable. The fact that the woman missed his intended target does not diminish his guilt and he must give a "soul for a soul".
• According to Philo who assumes that the pregnant woman was struck intentionally, the verse is not speaking of such a case at all, allowing for the possibility that killing an unintended target is not a capital crime.¹³

To the Woman

The text speaks of an "אָסוֹן" that happened to the pregnant woman.  Since a fetus is not considered on equal footing with an adult, only when an "אָסוֹן" befalls the pregnant woman and not her fetus, is the attacker fully culpable, meriting the punishment of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ" (you shall give a soul for a soul).  If only the fetus is killed, a lesser fine is incurred.

Sources:JosephusAntiquities 4:8:33About Josephus, Mekhilta DeRabbi YishmaelNezikin 8About Mekhilta DeRabbi Yishmael Shemot, Bavli SanhedrinSanhedrin 78b-79bAbout the Bavli, Targum Pseudo-JonathanShemot 21:22-23About Targum Pseudo-Jonathan, RashiShemot 21:22-23About R. Shelomo Yitzchaki, RashbamShemot 21:22-23About R. Shemuel b. Meir, Ibn EzraShemot Long Commentary 21:22-23Shemot Short Commentary 21:22-23About R. Avraham ibn Ezra, R. Yosef Bekhor ShorShemot 21:22-23About R. Yosef Bekhor Shor, ShadalShemot 21:22-23About R. Shemuel David Luzzatto, R. David Zvi HoffmannShemot 21:18About R. David Zvi Hoffmann, and many others

The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – According to this position the Torah speaks of a fight between two men during which one attempts to strike the other but unintentionally hits a pregnant bystander instead.

"וְיָצְאוּ יְלָדֶיהָ" – These sources maintain that the phrase connotes a miscarriage.

Definition of "אָסוֹן" – These commentators all assert that "אָסוֹן" refers to death.  The Mekhilta writes that even though there is no solid proof for this definition, there is a hint to it from Yaakov's concerns regarding Binyamin, "פֶּן יִקְרָאֶנּוּ אָסוֹן", which it understands to mean "lest he die".

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן" – This position reads the two phrases as standing in contrast to one another.  Though the fetus was aborted and died, the mother did not.

Status of unborn fetus – R. Yitzchak in the Mekhilta explains that the fetus is not considered a viable human being, and thus killing it cannot be a capital crime.  R. Yaakov b. Efraim adds that it and the mother are viewed as one being and not two distinct entities. As such, one might view the death of the fetus as injury to the woman, but not as murder.

Biblical cases

• Yehuda and Tamar – R. Yaakov b. Efraim points to Yehuda's decision to burn the pregnant Tamar as evidence that a fetus is not considered a distinct being.  If it had been, Yehuda would not have asked that Tamar be executed until after the child's birth.¹⁴
• "אֹתוֹ וְאֶת בְּנוֹ" – These sources assume that this verse is prohibiting the killing of a parent animal and her child rather than a pregnant animal.  See Ibn Ezra who asserts that the verse is not even limited to a mother, but refers to a father as well.

נתכוון להרוג את זה והרג את זה – These sources disagree whether one is liable for death in such a case:

• Capital punishment – The first opinion in Mishnah Sanhedrin and the Mekhilta and Rabbanan in Bavli Sanhedrin all read "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ" literally to mean that the assailant incurs the death penalty for killing the woman, despite not having targeted her originally.¹⁵  Since the man had intent to kill, this cannot be considered inadvertent murder.  Ibn Ezra supports this read by pointing out that had the men just been culpable of a fine, why distinguish the case of the fetus dying from that of the mother if the law is the same?  Moreover, why would the Torah use different language for each?
• Monetary compensation – R. Shimon in Mishnah Sanhedrin¹⁶ and Rebbbe in the Mekhilta disagree, asserting that "a soul for a soul" is metaphoric and refers only to monetary payment.  They equate the language of "giving" (וְנָתַן בִּפְלִלִים) in verse 22 which clearly refers to a fine, and the language of "giving" (נָתַתָּה נֶפֶשׁ) in verse 23, and suggest that one can learn from one case to another.

To the Man

The "אָסוֹן" mentioned in the passage relates to the death of one of the assailants. Only in such a case is there capital punishment.  If, on the other hand, he is not hurt and only the fetus dies, only a monetary payment is necessary.  The Torah does not speak of the fate of the mother at all.

Sources:Perhaps Tanna deBei Chizkiyah in Bavli SanhedrinSanhedrin 78b-79bAbout the Bavli,¹⁷ RambamCommentary on the Mishna Ketubot 3:2Hilchot Rozeach 4:1About R. Moshe b. Maimon

The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – According to the Rambam, the assailant hit his combatant, who in turn collided with a pregnant woman. In contrast to most of the other commentators, he does not view this as a case in which an innocent bystander is hit instead of the intended target, but that in which both are hit with the same blow.

"וְיָצְאוּ יְלָדֶיהָ" – Rambam asserts that the blow caused a miscarriage.

Definition of "אָסוֹן" – Rambam understands "אָסוֹן" to refer to the death of one of the assailants.

Status of unborn fetus – Like Chazal, Rambam maintains that the unborn fetus does not have the same status as a regular person and thus his death only incurs a fine.

נתכוון להרוג את זה והרג את זה – According to Rambam, one who meant to kill one person but killed another is not liable. This position is likely what motivates him to read the case as one which is speaking only about the death of the intended assailant (and fetus) and not the pregnant lady. One advantage of this reading is that it enables him to maintain the literal understanding of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ".¹⁸

Purpose of the case – According to Rambam, the Torah would seem not to be teaching anything new in this law, as it has previously been taught that the punishment for intentional killing is death. He explains that really the Torah is coming to teach the principle of "קים ליה בדרבה מיניה".  If in one action someone commits two crimes, he is only punished for the more severe one.  Thus, in a case where one of the combatants is killed, the assailant incurs the death penalty but does not also have to pay a fine for the death of the fetus.

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

² Such an understanding would suggest that when Yaakov fears that Binyamin will suffer an "אָסוֹן" he is worried not only about potential death, but any tragedy that might harm him.

³ See below that most of the other positions read the two terms as standing in contrast to one another.

⁴ 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 the law of "נתכוון להרוג את זה והרג את זה" and the consequences of killing a fetus are not previously covered and not necessarily self-evident.

⁵ This is consistent with his understanding that the phrase "וְלֹא יִהְיֶה אָסוֹן" means that no one died.  Those who read it to mean that there was no physical injury, however, would have to explain like the Karaites, that the fine compensates for the woman's suffering or embarrassment.

⁶ See "עַיִן תַּחַת עַיִן" – An Eye for an Eye for elaboration.

⁷ As such, according to him, there is really no difference between the first and second scenarios, since in both he assumes that the assailant is paying a monetary fine for damages. This leads one to wonder why the verse needed to use the unique (and misleading) language of giving a "soul for a soul" rather than putting both scenarios together under the punishment of "עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה". 
He might suggest that the Torah wanted to highlight how the payment is really in lieu of giving a life for a life.  Alternatively he might maintain that to begin with the fighting men had not been hitting with intent to kill, in which case even if they hit their target they might not be fully culpable and this is not a case of נתכוון להרוג את זה והרג את זה at all.

⁸ See TosafotSanhedrin 79aAbout Ba'alei HaTosafot who also raise this possibility.

⁹ See the similar case in Devarim 25:11 where the identical term "כִּי יִנָּצוּ אֲנָשִׁים" appears and explicitly involves the intervention of a woman.

¹⁰ Some have suggested that the Septuagint is working off a different version of the Hebrew text.  See S. Isser, "Two Traditions: The Laws of Exodus 21:22-23 Revisited," CBQ 52, 990: 30-45.

¹¹ In Bereshit 42 and 44, the Septuagint translates the word as sickness, but it would be hard to apply that specific definition here.

¹² See also Josephus, Against Apion who declares that a woman who aborts her child is considered a murderer.

¹³ ElsewhereOn Special Laws 3:86-87About Philo, though, Philo asserts that even if one intends to kill another but in the end the other survives, he is nonetheless considered a murderer and liable for death.  As such, it is likely that in principle Philo would agree that one who targets one and actually kills another is culpable, even if he does not think that this verse is coming to teach that law.

¹⁴ See Mishna ArakhinArakhin 1:4About the Mishna that codifies this as law; the fact that a woman is pregnant is not enough to stay her execution if she is culpable of a capital crime.

¹⁵ See also Josephus,  Ibn Ezra Short Commentary,  R" Bekhor Shor, and Shadal.

¹⁶ In the mishnah, R. Shimon only states that one who intended to kill a certain person but killed another is exempt.  It is the gemara that adds that he must be reading the verse like Rebbe.

¹⁷ See Tosafot Rosh on Bavli Ketuvot who understands him to be reading the verses in this manner.

¹⁸ Cf. the opinions above who try to reread it as referring to money.  Rambam is more similar to the reading offered by Philo, who also maintains that the case is one of intentional killing ad not about hitting the wrong target.