Tosefta Bava Qamma 9:20

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Inheritance of a freedman and a convert
3d CE
Syria Palaestina
Literary genre: 
Legal text
Title of work: 
Bava Qamma 9:20

This passage from the Tosefta deals with a case mentioned in Exodus 21:22 of a person who while fighting with another man accidentally caused a woman to miscarry her foetus (for more about this law in the Bible, ancient Near Eastern laws and other texts, see Samuel Greengus, Laws, p. 141-147). The text is specifically concerned with compensation and payments that should be paid by the one who hurts the woman. This text is important for our discussion since it specifically singles out the case in which the father of the child is a convert or a freedman, as a new “citizen” within the people of Israel (more about conversion can be found in the commentary for Mishnah Bikkurim 1:4-5).

Section A enumerates the various payments, dividing them between those due to the woman and those paid to the father of the child. The woman receives all payments that are usually given in a case of injury (see Mishnah Bava Qamma 8:1). Among these are the payments for the damage made to her body (for the injury), the pain, medical expenses, loss of income for the time of healing, and her shame. It is clear that the text sees the child as belonging to the father, to whom the compensation for the child is paid. The passage cites a verse to prove that actually this payment belongs to the father of the child.

Section B discusses a scenario in which a woman was married and became pregnant, divorced and remarried, and was then struck and lost the baby. In such a case, there are two possible beneficiaries: the father of the child and the current husband of the woman. The Tosefta concludes that the father of the foetus should receive the payment even though he is no longer married to the injured woman.

Section C is the most relevant passage for our discussion, since it deals with a woman (an Israelite, convert or freedwoman) who is married to a convert or a freedman. The text first states that also in this case the compensation for the child goes to its father. Then, the text explains that if the father – a convert or a freedman – has died, the one who struck the woman does not have to pay. This law fits the rabbinic view according to which a convert or a freed slave cannot bequeath their assets to sons who were conceived before their conversion or manumission. Their previous family ties are cut, and thus, if they died before compensation was paid, the one who struck the pregnant woman carrying their child retains this money, since the beneficiary had no one to inherit from them (see also Tosefta Bava Batra 7:1). At least regarding freed slaves, this rule of inheritance resembles the Roman law regarding slaves and freedmen. As Henrik Mouritsen notes, “in Roman law the slave, being socially ‘dead,’ had no recognised parents or children. In the same way they had no civic persona, so they were also deprived of any familial identity, formally not being the child of their parents or parents of their children” (The Freedman, p. 37). Jane F. Gardner similarly explains that “Freedmen … had no agnates, because as slaves they had had, in the eyes of the law, no recognized family relationships” (Family and Familia, p. 18).

The case of the convert, however, may be explained in the context of Roman laws regarding new citizens. As I have showed elsewhere, there are striking parallels between these rabbinic laws and the Roman legislation which also associates a father’s loss of paternal authority upon gaining citizenship with his children’s loss of status as heirs (including Gaius, Institutes, 1.93-94; 3.19-20). It therefore seems that tannaitic halakhah reflects an internalization of particular features of the status of new Roman citizens that were then applied to converts (Wilfand, “A Proselyte”). 

The freedman and the convert are often paired together in rabbinic texts (see for example Tosefta Qiddushin 5:1-2). Slavery of non-Jews within Jewish households was considered an opportunity for slaves to join Judaism, and hence to undergo a conversion. In our sources, both freedmen and converts have no heirs, and therefore no one can inherit the compensation for their miscarried offspring.

Mishnah Bava Qamma 5:4 discusses the method for calculating the compensation for the lost child, and instructs an assessment of the miscarried baby (or babies), the money then being given to the pregnant woman’s husband. The Mishnah then adds:

    A)            ואם אין לה בעל נותנין ליורשיו.

     B)            היתה שפחה ונישתחררה. או גיורת פטור.

A)    But if she has no husband, they give [the payment] to his heirs.

B)    If she were a slave who was freed or [if she were] a convert – he is exempt [from payment].

While section A of this text discusses a woman who was married to an Israelite Husband, it seems that Section B discuses a freedwoman and a female convert. However, most commentators explain this mishnah as discussing a woman who was married to a freedman or a convert, and a situation in which the father of the child died, as in the Tosefta. Indeed, as Henrik Mouritsen points out, “former slaves almost exclusively married people of similar background” (“The Families,” p. 143). Yet, the text specifically mentions the woman and not the father, thus, such an explanation assumes that converts marry each other, and so do freed slaves. Saul Lieberman offers another explanation: the female convert became pregnant before she converted, and the freedwoman became pregnant when she was still a slave, then, after the woman became Jewish or a freedwoman, she was struck and miscarried. In such case, the ones who hit the woman are not obliged to pay compensation for the child because from a legal point of view previous family connections are severed with conversion or manumission (Lieberman, Tosefta Ki-Feshutah, Vol. 9, p. 104-105; see also David Halivni, “Mishnas,” p. 72-76). In both cases, these sources (our tosefta and the Mishnah Bava Qamma 5:4) provide yet more examples of rabbinic halakhah connecting the freed slave and the convert together.

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Tosefta Bava Qamma 9:20
Author(s) of this publication: Yael Wilfand
Publishing date: Fri, 07/05/2019 - 12:36
Visited: Mon, 03/01/2021 - 21:11

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