שמות, פרק כ״א, פסוק כ״ב

A violent physical brawl between two individuals can easily spiral out of control, leading to devastating and unpredictable consequences. In the heat of a struggle where two men intend to strike or even kill one another, an innocent bystander might be caught in the crossfire. The primary approach among commentators is that during such a fierce fight, the men accidentally strike a pregnant woman who is either standing nearby or attempting to break up the altercation. However, liability is not absolute. The offenders are only held responsible if they were aware of the woman's presence. If she appeared suddenly and was struck before they could notice her, the event is considered an unavoidable accident, and they are exempt from penalty [אור החיים]. Notably, unlike other ancient legal codes, the Torah applies this law equally across all social classes and ensures that only the actual offender is punished, rather than his family [קאסוטו].

The accidental blow causes the woman to miscarry, and the offender is liable for this loss whether she was carrying a single child or twins. The central condition for imposing a financial penalty is that no further tragedy occurs. Commentators agree that this tragedy refers specifically to the death of the mother, not the unborn children. Under Jewish law, an unborn fetus is not yet considered a fully independent life that would warrant capital punishment for its loss. Therefore, causing a miscarriage, whether by accident or on purpose, results in a monetary fine rather than a death sentence. This establishes a crucial legal principle: if the ultimate tragedy does occur and the woman dies from the blow, the attacker faces execution. Consequently, he is exempt from paying the monetary compensation for the lost fetuses, following the rule that a person facing the severe penalty of death is freed from lesser financial obligations.

If the woman survives, the offender must be fined. Because the future of an unborn child is uncertain and it is impossible to know if the pregnancy would have successfully resulted in a healthy birth, this payment is not considered standard financial restitution. Instead, it is a specific penalty imposed upon the offender against his will [רמב״ן]. The amount is calculated by assessing the woman's hypothetical value in a labor market while pregnant, compared to her value after the miscarriage; the difference constitutes the penalty.

The compensation for the unborn children belongs to the husband, who brings the claim against the attacker. He is granted the right to demand payment for the loss of his children, a right he retains even if the pregnancy stemmed from a forbidden relationship [תורה תמימה]. However, to prevent a grieving or angry husband from demanding an extortionate amount, the legal system steps in. The final sum is not left to the husband's arbitrary discretion but is evaluated and confirmed by a court of judges to ensure it reflects the true extent of the damage. Alternatively, the parties might first attempt to reach a private settlement based on the husband's demands. If the attacker refuses to pay or they cannot reach an agreement, the judges will then intervene to determine and enforce the appropriate penalty [אבן עזרא, קאסוטו].