Kommentar zu Schemot 21:23

ואם אסון יהיה AND IF THERE BE ANY FURTHER MISCHIEF — in the case of the woman,

ונתתה נפש תחת נפש, "you shall give life for life." The meaning of these words is disputed. The Mechilta quotes opinions according to which the Torah speaks of an actual death penalty even though the killer had intended to kill another party, whereas other sages hold that the Torah speaks of monetary compensation for such a life (unborn child). According to the latter opinion the words ונתתה, "you shall give," are most appropriate seeing that monetary compensation is something that is given from one hand to another. According to the opinion that the Torah speaks of an actual death penalty, we must understand the word ונתתה as contrast to the situation described in verse 22 when no fatality occurred; instead of monetary compensation for the injury described in verse 22, something involving several types of payments such as for pain, shame, etc; in this instance there is only one exchange, i.e. the life of the guilty party for the harm done. We have learned previously that whenever a party is guilty of the death penalty no additional fines are imposed. The exception is a situation we have described in verse 18 when death did not occur promptly.

ונתתה נפש תחת נפש. There will not be additional financial damages payable.

אם אסון יהיה, “if an unexpected complication resulted, such as the premature stillborn death of the fetus, etc.” according to the scholar in the Talmud who holds that if a person intended to kill A and killed B instead by mistake, he is still considered guilty of murder, seeing that he had violated the commandment of “a life for a life,” as having to be understood literally, there is no problem here. According to the scholar who holds that these words here are not to be taken literally, but that what is meant is a financial penalty/compensation, to be paid by the perpetrator. The third opinion in the Talmud, Tanna de bey Chiskiyah, holds that the perpetrator does not even have to pay a financial penalty to the heirs of the victim. This opinion is expressed in the tractate Baba Kamma, folio 35, and is based on the following interpretation of our verse: The words: אם אסון יהיה, “if a mishap will occur,” are referring to the woman pregnant with child, not to her fetus; then the rule נפש תחת נפש, “a life for a life is applied,” seeing she, a living human being had been killed. The author adds that it appears to him that what went wrong here was that the killer had intended to kill the man he was fighting with, but had erroneously killed this woman. If we had not had this verse we might have thought that no death penalty would apply seeing that what he had intended to do had not been carried out; the Torah therefore repeats this expression “a life for a life,” to remind us that regardless of who had been killed by him he deserves death for having intended to kill a human being, something he had intended to do, and something which carries the death penalty.

ונתת נפש תחת נפש THEN THOU SHALT GIVE SOUL FOR SOUL. Our Rabbis differ as to the explanation of the word נפש the first time it occurs here. There are some who say that it actually signifies “life” (i. e. life for life), others say that it means monetary compensation but not literally life, and they say that this must be so because he who intends to kill a certain person and inadvertently kills another instead, (as is the case here), is exempt from the death penalty, and has only to pay to his heirs his value estimating this as though he were sold as a slave in the market (Sanhedrin 79a).