Says the Gemara [Bava Kamma 42b-43a]:
ובנזקין לא אמר ר"ע
The Gemara asks: And with regard to damages, did Rabbi Akiva not say that damages due to a wife are paid to her heirs and not to her husband?
והתניא הכה את האשה ויצאו ילדיה נותן נזק וצער לאשה ודמי ולדות לבעל אין הבעל נותן ליורשיו אין האשה נותנת ליורשיה היתה שפחה ונשתחררה
But isn’t it taught in a baraita: If an assailant struck the woman and her offspring emerged due to miscarriage, he gives compensation for damage and pain to the woman and compensation for miscarried offspring to the husband. If the husband is not alive, he gives the compensation for the offspring to his heirs. If the woman is not alive, he gives the payment owed to her to her heirs. If she was a Canaanite maidservant and then she was emancipated, and subsequently married a Canaanite slave who had also been emancipated, and became pregnant from him
או גיורת זכה
or if she was a convert who became pregnant from a male convert, and both the husband and wife died without heirs, the assailant gains by not having to pay, since there are no heirs. In any event, it is explicitly stated in the baraita that the beneficiary of the compensation due to her, including that which she would have received during her lifetime, is not her husband but rather her heirs.
אמר רבה בגרושה וכן אמר ר"נ בגרושה
Rabba said: This baraita relates to a divorcée; since they got divorced, the husband does not inherit from her. Likewise, Rav Naḥman said: The baraita relates to a divorcée.
אמרי גרושה נמי תיפלוג בדמי ולדות
The Sages said in response: If she is a divorcée, she should also share in the compensation for the miscarried offspring. Why should her ex-husband receive the full payment?
אמר רב פפא התורה זכתה דמי ולדות לבעל אפילו בא עליה בזנות מאי טעמא אמר קרא (שמות כא, כב) כאשר ישית עליו בעל האשה
Rav Pappa said: The Torah awarded the payment of compensation for miscarried offspring to the husband, even if he is not actually her legal husband but rather engaged in licentious sexual intercourse with her. Although he has no rights to her property, the damages for the miscarried offspring belong to him alone, as he is the father of the offspring. What is the reason? The verse states: “As the husband [ba’al] of the woman shall impose upon him” (Exodus 21:22), indicating that damages are not collected by the woman, but by the man who engaged in intercourse [ba’al] with her, impregnating her. Therefore, if they got divorced, the ex-husband receives the payment.
When did they get divorced?
Rashi explains:
They got divorced AFTER she miscarried.
If that is so - then why would the Gemara ask that the woman should share in the compensation for the miscarried offspring? The husband already was owed the money before the divorce??
This question bothered many. What do you think?
Also, what compelled Rashi to say that? Maybe it is talking about where the miscarriage occurred after the divorce, maybe it is talking about when it occurred before the divorce or maybe about both cases. Why was Rashi so sure it happened before the divorce?
