Шмот 21:22 Комментарий: Rashi, Chizkuni, Ramban & Or HaChaim

וכי ינצו אנשים IF MEN STRIVE with each other and one intended to strike the other and inadvertently struck the woman (Sanhedrin 79b).

וכי ינצו אנשים, “if men fight,” why was there a need for this verse? Seeing that from verse 14 where we were told only that deliberate killing of one’s enemy is punishable by death, we would not have known that when one kills one’s friend instead of one’s enemy in a fight, he would not be considered as a murderer, we are told now that when the objective of an altercation was to kill one’s adversary, it does not matter that one had killed the wrong target by mistake. There are some commentators who do not understand this verse as prescribing the death penalty for the killer, but that he is only liable for monetary compensation to be assessed by the court. (Rabbi Yitzchok in Mechilta Mishpatim chapter 8) He interprets our verse along the following lines: as long as we had only heard Leviticus 24,17: if someone deliberately smites a human being (so that he dies) the killer must be executed, even if that human being had been born after a pregnancy of only eight months, (which according to the Talmud is not considered a baby with a regular life expectancy). The Torah here describes the premature birth of such a baby as a result of the mother having been struck as having given birth to a נפש אדם a human being in the full sense of the word. The wording in our verse makes it clear that only if the mother had been struck in the region of her body to which her fetus is sensitive, does the attacker deserve the penalty prescribed, not when she was hit on the head or other parts of her body not related to her pregnancy. An alternate explanation: even if only one of her fetuses was killed. [The wording in the verse speaks about fetuses, plural. Ed.]

AND IF MEN STRIVE TOGETHER, AND HURT A WOMAN WITH CHILD, SO THAT HER FRUIT DEPART, AND YET NO HARM FOLLOW, HE SHALL BE SURELY FINED, ‘KA’ASHER’ THE WOMAN’S HUSBAND SHALL LAY UPON HIM. “This means: ‘when’¹⁴⁵Rashi is thus explaining the letter kaf in the word ka’asher not in the sense of “as,” indicating degree or extent (“according as”), but in the sense of “when” — when the woman’s husband takes him to court. the husband will summon him before the court in order that they put a fine on him for it.” Thus far Rashi’s language. And it is correct [to interpret here the letter kaf in the word ka’asher as meaning “when”, and not “as”]. A similar case is the expression, ‘ka’asher’ (when) it shall be well with thee,¹⁴⁶Genesis 40:14. and there are many other such cases. And the intention of the verse is that the assailant has to pay compensation for the miscarriage when the husband takes him to court, not when the woman does so, as the compensation is not hers. Onkelos, however, translated: “according to the amount [that the woman’s husband] shall lay upon him.”
Rabbi Abraham ibn Ezra explained the verse as follows: according as the woman’s husband shall lay upon him, or¹⁴⁷The Hebrew word v’nathan, which is generally translated “and he shall pay” — as the judges determine, Ibn Ezra interprets to mean “or he shall pay,” and the purport thereof is as explained in the text. he shall pay as the judges determine, as if to say that the assailant should come to agreement with the husband on a fixed sum, or he should pay compensation as the court will assess him. This is not correct, for what reason is there to mention this?¹⁴⁸For surely if the parties voluntarily agree on a sum there is no necessity for them to go to court, and if they fail to agree on a sum it is self-understood that the court will have to assess the fine.
In my opinion, since the damage done is one that is not discernible in the unborn children themselves — for who could know their fortune — therefore Scripture said, that although he cannot be made to pay a precise monetary compensation, he should nonetheless be fined as a sort of penalty in the form of a sum of money¹⁴⁹See my Hebrew commentary p. 424 for further elucidation of this phrase of Ramban “a sort of penalty.” which others [i.e., the judges] shall impose upon him. A similar usage [of the term onesh — punishment] is also found in these verses: and he put the land to ‘onesh’ (a fine);¹⁵⁰II Kings 23:33. they drink the wine of them that have been ‘anushim’ (fined).¹⁵¹Amos 2:8. Scripture is thus stating that the punishment be entirely as the woman’s husband shall lay upon him, because he desires his children and they are important to him, but he [i.e., the husband] should fix the sum through the judges, in order that he should not impose upon him an exorbitant sum. In the words of the Mechilta:¹³⁶Mechilta here on the Verse., “According as the woman’s husband shall lay upon him. I might think this to mean, whatever he pleases; Scripture therefore says, and he shall pay as the ‘pelilim’ determine, and pelilim always means judges.”

ונגפו AND HURT [A WOMAN WITH CHILD] — The root נגף always signifies “dashing against” and “striking”. Examples are: (Psalms 91:15) “lest thou dash (תגוף) thy foot against a stone”; (Jeremiah 13:16) “and before your feet dash (יתנגפו)”; (Isaiah 8:14) “but for a stone of dashing (נגף).