Paying Kofer

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The Gemora (Bava Kamma 4a) explained the Mishna according to Rav as follows: The nature of ox, that it pays kofer (if the ox kills a person, the owner is liable to pay a kofer payment), is not the same as the nature of a person, who does not pay kofer (and therefore, if the Torah would only write that one is liable for an ox, we would not necessarily know that one is liable for his own damaging).

Tosfos asks: Why is the fact that an ox pays kofer regarded as a stringency? The reason why a person does not pay kofer when he kills someone is because of the principle of kim leih bid’rabbah minei - (whenever someone is deserving of two punishments, he receives the one which is more severe). And since a man is executed for killing another man, he is not required to pay the kofer payment. It emerges that not paying the kofer is not a leniency, but rather, it is due to a stringency, namely – that he is put to death!?

The Riva answers that a person would not pay kofer even if he would not be executed. This would be in a case of an accidental killing.

The Darchei Dovid explains: Although this is also a type of kim leih bid’rabbah minei; whenever someone accidentally does something - and this same action, if it would have been done intentionally, would have exempted him from a monetary payment – it exempts him from the payment in this case as well; nevertheless, it must be regarded as a lenient ruling, for the bottom line is that he is not executed and he is not obligated to pay anything.

Alternatively, Tosfos answers that he is not exempt from the kofer payment due to kim leih bid’rabbah minei.

The Maharam explains: The principle of kim leih bid’rabbah minei only applies when he committed an action that he deserves to be executed for, and simultaneously, he does something else that he is required to pay money for. However, in our case, where a man killed someone, the punishment of execution and the kofer payment are both coming for the same reason. Kim leih bid’rabbah minei will not apply here.

The Reshash explains Tosfos to mean that the principle of kim leih bid’rabbah minei does not apply in this case because the kofer payment serves as an atonement for the killing. Kim leih bid’rabbah minei exempts a money obligation which is a payment because of compensation; however, it does not exempt payments on account of forgiveness.

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Can a Tereifah Have Children?

The Gemora cites a braisa (Daf Yomi: Gittin 43a) : If an ox kills one who is a half-slave, half-free man, the (ox) owner gives half the fine (if the ox is a habitual gorer, the owner must pay thirty shekels as a penalty) to his master and half the kofer payment (the value of the victim as determined by what price he would have fetched at the slave market; this serves as an atonement for the owner of the ox) to the slave’s heirs. The Gemora points out that if the kiddushin of a half-slave, half-free man is invalid, how does he have inheritors?

Rav Adda bar Ahavah answers: The case is where he was gored and made a tereifah (deathly ill, where he was going to eventually die from his wounds). The “inheritors” referred to here actually means to the slave himself.

Rava retorted that there are two reasons to refute this answer. One is that the braisa says the money is given to his inheritors (not himself). Additionally, the payment is kofer, and Rish Lakish says that kofer is only paid after an actual death (not when someone is made deathly ill)!

The Peri Chadash asks: Why couldn’t the Gemora use the following case? He was gored and rendered a tereifah. The ox owner is required to pay the penalty after he dies. Before he died, however, the master emancipated him, he married and begot children. Afterwards, he died, and the ox owner should now be obligated to pay to his heirs!?

He proves from this that it must be that a tereifah is not capable of having children.

The Chazon Ish asks that even if we will assume that a tereifah cannot have children, there is another possibility. He was gored and injured so badly that he was dangerously close to death (yet he was not ruled to be a tereifah). The ox owner is required to pay the penalty after he dies. Before he died, however, the master emancipated him, he married and begot children. Afterwards, he died due to the injury, and the ox owner should now be obligated to pay to his heirs!?

He answers that a slave has no lineage, and therefore any children born from him while he was a slave are not regarded as his children. After he is emancipated, and now his children are considered his children, that is only for all matters that are applicable after his death. However, with respect to the obligation of the kofer payment, that is a payment that is owed to the victim’s heirs. If, at the time he was gored, he did not have any inheritors, the owner will not be obligated to pay to the heirs that came about at a later date.

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