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June 13, 2017 | ื™ืดื˜ ื‘ืกื™ื•ืŸ ืชืฉืขืดื–

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Bava Batra 142

Rav Sheshet holds that a fetus can acquire items. ย He brings a source to support his opinion but it is rejected. ย A source is brought to reject Rav Sheshet’s opinion. ย But it too is rejected as it can be explained as referring to something else. ย The debate continues regarding whether a fetus can acquireย items or not. ย And the gemara concludes that we hold that it cannot, however our mishna is an exception since it is to his own son.


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ื•ืœื™ืžื ืœื™ื” ื“ืืžืจ ืœื›ืฉืชืœื“ ืจื‘ ื”ื•ื ื ืœื˜ืขืžื™ื” ื“ืืžืจ ืจื‘ ื”ื•ื ื ืืฃ ืœื›ืฉืชืœื“ ืœื ืงื ื”


The Gemara proposes another resolution to Rav Naแธฅmanโ€™s objection: But let Rav Huna say to Rav Naแธฅman that the mishna is referring to one who says that the transfer of ownership should take effect when she gives birth, at which point the child already exists. The Gemara rejects this resolution: Rav Huna does not interpret the mishna in this way, because Rav Huna conforms to his line of reasoning, as Rav Huna says: Even if one says that the transfer of ownership should take effect when she gives birth, the fetus does not acquire it.


ื“ืืžืจ ืจื‘ ื ื—ืžืŸ ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื” ืœื›ืฉืชืœื“ ืงื ื” ื•ืจื‘ ื”ื•ื ื ืืžืจ ืืฃ ืœื›ืฉืชืœื“ ืœื ืงื ื” ื•ืจื‘ ืฉืฉืช ืืžืจ ืื—ื“ ื–ื” ื•ืื—ื“ ื–ื” ืงื ื”


The Gemara clarifies: As Rav Naแธฅman says: With regard to one who transfers ownership of an item to a fetus, the fetus does not acquire it. But if he says that the transfer of ownership of the item should take effect when she gives birth, the fetus acquires it. And Rav Huna says: Even if he says that the transfer of ownership of the item should take effect when she gives birth, the fetus does not acquire it, because the fetus did not exist in the world when he transferred ownership. And Rav Sheshet says: In both this case and that case, the fetus acquires the item.


ืืžืจ ืจื‘ ืฉืฉืช ืžื ื ืืžื™ื ื ืœื” ื“ืชื ื™ื ื’ืจ ืฉืžืช ื•ื‘ื–ื‘ื–ื• ื™ืฉืจืืœ ื ื›ืกื™ื• ื•ืฉืžืขื• ืฉื™ืฉ ืœื• ื‘ืŸ ืื• ืฉื”ื™ืชื” ืืฉืชื• ืžืขื•ื‘ืจืช ื—ื™ื™ื‘ื™ืŸ ืœื”ื—ื–ื™ืจ ื”ื—ื–ื™ืจื• ื”ื›ืœ ื•ืื—ืจ ื›ืš ืฉืžืขื• ืฉืžืช ื‘ื ื• ืื• ืฉื”ืคื™ืœื” ืืฉืชื• ื”ื—ื–ื™ืง ื‘ืฉื ื™ื” ืงื ื” ื•ื‘ืจืืฉื•ื ื” ืœื ืงื ื”


Rav Sheshet said: From where do I say that the fetus acquires the item? As it is taught in a baraita: With regard to a convert who died, apparently without offspring, and Jews plundered [uvizbezu] his property, assuming that he had no heirs and his property was therefore ownerless, and subsequently they heard that he had a son or that his wife was pregnant, they are obligated to return the property. If they returned it all, and then they heard that his son died or that his wife miscarried, if one took possession at the second time, after hearing about the death or the miscarriage, he acquired the property, but if one took possession only at the first time, before it was known there was an heir at all, he did not acquire the property.


ื•ืื™ ืกืœืงื ื“ืขืชืš ืขื•ื‘ืจ ืœื ืงื ื™ ืœืžื” ืœื”ื• ืื—ื–ื•ืงื™ ื‘ืฉื ื™ื” ื”ื ืื—ื–ื™ืงื• ืœื”ื• ื—ื“ื ื–ื™ืžื ื


Rav Sheshet explains: And if it enters your mind that a fetus does not acquire property, why do they need to take possession again the second time? Didnโ€™t they already take possession one time? Evidently, the miscarried fetus had acquired ownership in the meantime.


ืืžืจ ืื‘ื™ื™ ื™ืจื•ืฉื” ื”ื‘ืื” ืžืื™ืœื™ื” ืฉืื ื™ ืจื‘ื ืืžืจ ืฉืื ื™ ื”ืชื ื“ืจืคื•ื™ ืžืจืคื™ืืŸ ื‘ื™ื“ื™ื™ื”ื• ืžืขื™ืงืจื


Abaye said in reply to Rav Sheshet: Inheritance, which comes into the possession of the heir by itself without a formal act of acquisition, is different. Even if a fetus inherits property, it may not be able to acquire property in any other manner, e.g., receiving a gift. Rava said: It is different there, in the case where they plundered the property of the convert, as the property was initially only loosely held in their hands, as they did not clearly know whether or not the deceased convert had heirs. Therefore, the first time they took possession was not sufficient, and they needed to take possession again in order to acquire the property.


ืžืื™ ื‘ื™ื ื™ื™ื”ื• ืื™ื›ื ื‘ื™ื ื™ื™ื”ื• ืฉืฉืžืขื• ื‘ื• ืฉืžืช ื•ืœื ืžืช ื•ืื—ืจ ื›ืš ืžืช


The Gemara asks: What is the difference between Abayeโ€™s refutation and Ravaโ€™s refutation? The practical difference between them is in a case where they initially heard with regard to the fetus that he had died, and they then took possession of the property. But in reality, he had not died, and then he died. According to Abaye, a fetus inherits property. Therefore, the property was not ownerless, and the plunderers did not acquire it. According to Rava, since the plunderers heard that the fetus had died, they took a firm hold upon the property, and they acquired it the first time.


ืชื ืฉืžืข ืชื™ื ื•ืง ื‘ืŸ ื™ื•ื ืื—ื“ ื ื•ื—ืœ ื•ืžื ื—ื™ืœ ื‘ืŸ ื™ื•ื ืื—ื“ ืื™ืŸ ืขื•ื‘ืจ ืœื ื”ื ืืžืจ ืจื‘ ืฉืฉืช ื ื•ื—ืœ ื‘ื ื›ืกื™ ื”ืื ืœื”ื ื—ื™ืœ ืœืื—ื™ืŸ ืžืŸ ื”ืื‘ ื•ื“ื•ืงื ื‘ืŸ ื™ื•ื ืื—ื“ ืื‘ืœ ืขื•ื‘ืจ ืœื ืžืื™ ื˜ืขืžื


The Gemara offers another refutation of the opinion of Rav Sheshet: Come and hear a proof from a mishna (Nidda 43bโ€“44a): A one-day-old child inherits property and bequeaths property. One can infer that if the child is one day old, yes, he inherits property; but a fetus does not. The Gemara replies: Doesnโ€™t Rav Sheshet say that the mishna teaches a different halakha? The mishna teaches that a one-day-old child inherits his motherโ€™s property the moment he is born, so that he is able to bequeath it, if he then dies, to his heirs who are not the motherโ€™s heirs, e.g., his paternal brothers. This halakha specifically applies from when he is one day old, but a fetus whose mother died does not inherit from her. What is the reason for this?


ื“ื”ื•ื ืžื™ื™ืช ื‘ืจื™ืฉื ื•ืื™ืŸ ื”ื‘ืŸ ื™ื•ืจืฉ ืืช ืืžื• ื‘ืงื‘ืจ ืœื”ื ื—ื™ืœ ืœืื—ื™ืŸ ืžืŸ ื”ืื‘


The reason is that we presume that the fetus died first, before its mother died, and the son does not inherit from his mother while in the grave, in order to bequeath the inheritance to his paternal brothers. The halakha is that if a son dies, and afterward his mother dies, the deceased son does not inherit from his mother and subsequently bequeath the inheritance to his paternal brothers, who are not related to the mother. But in other cases, where it is not his motherโ€™s estate, a fetus inherits property.


ืœืžื™ืžืจื ื“ื”ื•ื ืžื™ื™ืช ื‘ืจื™ืฉื ื•ื”ื ื”ื•ื” ืขื•ื‘ื“ื ื•ืคืจื›ืก ืชืœืชื ืคืจื›ื•ืกื™ ืืžืจ ืžืจ ื‘ืจ ืจื‘ ืืฉื™ ืžื™ื“ื™ ื“ื”ื•ื” ืื–ื ื‘ ื”ืœื˜ืื” ืฉืžืคืจื›ืกืช


The Gemara asks: Is this to say that it is certain that the fetus died first? But there was an incident where the mother died and the fetus made three spasmodic motions afterward. Apparently, a fetus can die after the mother. Mar bar Rav Ashi said: That incident was just as it is with the tail of the lizard, which jerks after being severed from the lizard, but it is just a spasmodic motion which does not indicate that it is still alive.


ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ืืžืจ ืœื•ืžืจ ืฉืžืžืขื˜ ื‘ื—ืœืง ื‘ื›ื•ืจื” ื•ื“ื•ืงื ื‘ืŸ ื™ื•ื ืื—ื“ ืื‘ืœ ืขื•ื‘ืจ ืœื ืžืื™ ื˜ืขืžื ื•ื™ืœื“ื• ืœื• ืืžืจ ืจื—ืžื ื


Mar, son of Rav Yosef, says in the name of Rava: The mishna comes to say that a one-day-old child reduces the portion of the firstborn. The firstborn is entitled to a double portion of the inheritance, and this is calculated taking into account the portion due to his dead brother. And it is in this context that specifically the portion of a one-day-old child is taken into account, but the portion of a fetus is not taken into account, even though a fetus also inherits property. What is the reason for this? The Merciful One states concerning the portion of the firstborn: โ€œIf a man has two wives, the one beloved, and the other hated, and they bore him children, both the beloved and the hated; and if the firstborn son be hers that was hatedโ€ (Deuteronomy 21:15). The term โ€œchildrenโ€ excludes a fetus.


ื“ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ื‘ืŸ ืฉื ื•ืœื“ ืœืื—ืจ ืžื™ืชืช ืื‘ื™ื• ืื™ื ื• ืžืžืขื˜ ื‘ื—ืœืง ื‘ื›ื•ืจื” ืžืื™ ื˜ืขืžื ื•ื™ืœื“ื• ืœื• ืืžืจ ืจื—ืžื ื ื•ื”ื ืœื™ื›ื


This is similar to another halakha, as Mar, son of Rav Yosef, says in the name of Rava: A son who was born after his fatherโ€™s death does not reduce the firstbornโ€™s portion. What is the reason for this? The Merciful One states in the Torah: โ€œAnd they bore him children,โ€ and this term โ€œchildrenโ€ does not apply to a fetus.


ื‘ืกื•ืจื ืžืชื ื• ื”ื›ื™ ื‘ืคื•ืžื‘ื“ื™ืชื ืžืชื ื• ื”ื›ื™ ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ื‘ื›ื•ืจ ืฉื ื•ืœื“ ืœืื—ืจ ืžื™ืชืช ืื‘ื™ื• ืื™ื ื• ื ื•ื˜ืœ ืคื™ ืฉื ื™ื ืžืื™ ื˜ืขืžื ื™ื›ื™ืจ ืืžืจ ืจื—ืžื ื ื•ื”ื ืœื™ืชื ื“ื™ื›ื™ืจ ื•ื”ืœื›ืชื ื›ื›ืœ ื”ื ื™ ืœื™ืฉื ื™ ื“ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื


The Gemara notes: In Sura they taught Marโ€™s statement that way, but in Pumbedita they taught it this way: Mar, son of Rav Yosef, says in the name of Rava: A firstborn who was born after his fatherโ€™s death does not receive a double portion. What is the reason for this? The Merciful One states in the Torah: โ€œBut he shall acknowledge the firstborn, the son of the hated, by giving him a double portionโ€ (Deuteronomy 21:17), and in this case the father is not there that he can acknowledge him. The Gemara concludes: And the halakha is in accordance with all these versions of that which Mar, son of Rav Yosef, says in the name of Rava. Accordingly, a one-day-old child reduces the portion of the firstborn, a son born after his fatherโ€™s death does not reduce the firstbornโ€™s portion, and a firstborn born after his fatherโ€™s death does not receive a double portion.


ืืžืจ ืจื‘ื™ ื™ืฆื—ืง ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื” ื•ืื ืชืืžืจ ืžืฉื ืชื™ื ื• ื”ื•ืื™ืœ ื•ื“ืขืชื• ืฉืœ ืื“ื ืงืจื•ื‘ื” ืืฆืœ ื‘ื ื•


ยง Rabbi Yitzแธฅak says that Rabbi Yoแธฅanan says: With regard to one who transfers ownership of an item to a fetus, the fetus does not acquire the item. And if you say that the statement of our mishna (140b), with regard to one who gives a gift to his unborn child, indicates that an item can be transferred to a fetus, the circumstances there are unique. Since the disposition of a person is to be inclined toward his son, the Sages validated such a transfer, but one cannot transfer an item to the unborn child of another.


ืืžืจ ืœื™ื” ืฉืžื•ืืœ ืœืจื‘ ื—ื ื ื‘ื’ื“ืชืื” ืคื•ืง ืื™ื™ืชื™ ืœื™ ื‘ื™ ืขืฉืจื” ื•ืื™ืžืจ ืœืš ื‘ืืคื™ื™ื”ื• ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืงื ื” ื•ื”ืœื›ืชื ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื”


Shmuel said to Rav แธคana of Baghdad: Go out and bring me an assembly of ten men, and I will say a halakha to you in their presence, so that it will be well publicized. The halakha was: With regard to one who transfers ownership of an item to a fetus, the fetus acquires the item. The Gemara concludes: And the halakha is that with regard to one who transfers ownership of an item to a fetus, the fetus does not acquire the item.


ื”ื”ื•ื ื“ืืžืจ ืœื“ื‘ื™ืชื”ื• ื ื›ืกื™ ืœื‘ื ื™ ื“ื™ื”ื•ื• ืœื™ ืžื™ื ื™ืš ืืชื ื‘ืจื™ื” ืงืฉื™ืฉื ืืžืจ ืœื™ื” ื”ื”ื•ื ื’ื‘ืจื ืžืื™ ืชื™ื”ื•ื™ ืขืœื™ื” ืืžืจ ืœื™ื” ื–ื™ืœ ืงื ื™ ื›ื—ื“ ืžื‘ืจื ื”ื ืš ื•ื“ืื™ ืœื ืงื ื• ื“ืื›ืชื™ ืœื™ืชื ื”ื•


ยง The Gemara relates: There was a certain man who said to his wife, before she conceived: My property is given to the sons that I will have from you. His older son from a previous marriage came and said to him: That man, i.e., me, what will become of him, i.e., will I receive nothing? He said to his son: Go and acquire a portion like one of the sons who will be born, i.e., you will receive a share as well. The Gemara comments: Those sons who were not yet born certainly did not acquire the property, and do not receive more than their share as heirs, as they are not yet in existence.


ื”ืื™ ืื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืื• ืœื™ืช ืœื™ื” ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืจื‘ื™ ืื‘ื™ืŸ ื•ืจื‘ื™ ืžื™ื™ืฉื ื•ืจื‘ื™ ื™ืจืžื™ื” ื“ืืžืจื™ ืื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืจื‘ื™ ืื‘ื”ื• ื•ืจื‘ื™ ื—ื ื™ื ื ื‘ืจ ืคืคื™ ื•ืจื‘ื™ ื™ืฆื—ืง ื ืคื—ื ื“ืืžืจื™ ืœื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื


The Gemara asks: With regard to this son, does the young man [letalya] receive an additional share of the inheritance in a case where there are other sons from the second wife, since his father gave him an additional share, or does the young man not receive an additional share of the inheritance where there are other sons? There are Rabbi Avin, and Rabbi Meyasha, and Rabbi Yirmeya, who all say: The young man does receive an additional share of the inheritance where there are other sons. And there are Rabbi Abbahu, and Rabbi แธคanina bar Pappi, and Rabbi Yitzแธฅak Nappaแธฅa, who all say: The young man does not receive an additional share of the inheritance where there are other sons.


ืืžืจ ืœื™ื” ืจื‘ื™ ืื‘ื”ื• ืœืจื‘ื™ ื™ืจืžื™ื” ื”ืœื›ืชื ื›ื•ื•ืชืŸ ืื• ื”ืœื›ืชื ื›ื•ืชื™ื™ื›ื• ืืžืจ ืœื™ื” ืคืฉื™ื˜ื ื“ื”ืœื›ืชื ื›ื•ื•ืชืŸ ื“ืงืฉื™ืฉื ื ืžื™ื ื™ื™ื›ื• ื•ืœืื• ื”ืœื›ืชื ื›ื•ื•ืชื™ื™ื›ื• ื“ื“ืจื“ืงื™ ืืชื•ืŸ ืืžืจ ืœื™ื” ืžื™ื“ื™ ื‘ืงืฉื™ืฉื•ืชื ืชืœื™ื ืžื™ืœืชื ื‘ื˜ืขืžื ืชืœื™ื ืžื™ืœืชื ื•ื˜ืขืžื ืžืื™ ื–ื™ืœ ืœื’ื‘ื™ื” ื“ืจื‘ื™ ืื‘ื™ืŸ ื“ืืกื‘ืจืชื” ื ื™ื”ืœื™ื”


Rabbi Abbahu said to Rabbi Yirmeya: Is the halakha in accordance with our opinion, or is the halakha in accordance with your opinion? Rabbi Yirmeya said to Rabbi Abbahu: It is obvious that the halakha is in accordance with our opinion, as we are older than you, and the halakha is not in accordance with your opinion, as you are youngsters [dardekei]. Rabbi Abbahu said to Rabbi Yirmeya in reply: Does the matter depend upon age? The matter depends upon the reason behind the ruling. Rabbi Yirmeya asked him: And what is your reason? Rabbi Abbahu replied: Go to Rabbi Avin, as I explained this halakha to him,


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Bava Batra 142

The William Davidson Talmud | Powered by Sefaria

Bava Batra 142

ื•ืœื™ืžื ืœื™ื” ื“ืืžืจ ืœื›ืฉืชืœื“ ืจื‘ ื”ื•ื ื ืœื˜ืขืžื™ื” ื“ืืžืจ ืจื‘ ื”ื•ื ื ืืฃ ืœื›ืฉืชืœื“ ืœื ืงื ื”


The Gemara proposes another resolution to Rav Naแธฅmanโ€™s objection: But let Rav Huna say to Rav Naแธฅman that the mishna is referring to one who says that the transfer of ownership should take effect when she gives birth, at which point the child already exists. The Gemara rejects this resolution: Rav Huna does not interpret the mishna in this way, because Rav Huna conforms to his line of reasoning, as Rav Huna says: Even if one says that the transfer of ownership should take effect when she gives birth, the fetus does not acquire it.


ื“ืืžืจ ืจื‘ ื ื—ืžืŸ ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื” ืœื›ืฉืชืœื“ ืงื ื” ื•ืจื‘ ื”ื•ื ื ืืžืจ ืืฃ ืœื›ืฉืชืœื“ ืœื ืงื ื” ื•ืจื‘ ืฉืฉืช ืืžืจ ืื—ื“ ื–ื” ื•ืื—ื“ ื–ื” ืงื ื”


The Gemara clarifies: As Rav Naแธฅman says: With regard to one who transfers ownership of an item to a fetus, the fetus does not acquire it. But if he says that the transfer of ownership of the item should take effect when she gives birth, the fetus acquires it. And Rav Huna says: Even if he says that the transfer of ownership of the item should take effect when she gives birth, the fetus does not acquire it, because the fetus did not exist in the world when he transferred ownership. And Rav Sheshet says: In both this case and that case, the fetus acquires the item.


ืืžืจ ืจื‘ ืฉืฉืช ืžื ื ืืžื™ื ื ืœื” ื“ืชื ื™ื ื’ืจ ืฉืžืช ื•ื‘ื–ื‘ื–ื• ื™ืฉืจืืœ ื ื›ืกื™ื• ื•ืฉืžืขื• ืฉื™ืฉ ืœื• ื‘ืŸ ืื• ืฉื”ื™ืชื” ืืฉืชื• ืžืขื•ื‘ืจืช ื—ื™ื™ื‘ื™ืŸ ืœื”ื—ื–ื™ืจ ื”ื—ื–ื™ืจื• ื”ื›ืœ ื•ืื—ืจ ื›ืš ืฉืžืขื• ืฉืžืช ื‘ื ื• ืื• ืฉื”ืคื™ืœื” ืืฉืชื• ื”ื—ื–ื™ืง ื‘ืฉื ื™ื” ืงื ื” ื•ื‘ืจืืฉื•ื ื” ืœื ืงื ื”


Rav Sheshet said: From where do I say that the fetus acquires the item? As it is taught in a baraita: With regard to a convert who died, apparently without offspring, and Jews plundered [uvizbezu] his property, assuming that he had no heirs and his property was therefore ownerless, and subsequently they heard that he had a son or that his wife was pregnant, they are obligated to return the property. If they returned it all, and then they heard that his son died or that his wife miscarried, if one took possession at the second time, after hearing about the death or the miscarriage, he acquired the property, but if one took possession only at the first time, before it was known there was an heir at all, he did not acquire the property.


ื•ืื™ ืกืœืงื ื“ืขืชืš ืขื•ื‘ืจ ืœื ืงื ื™ ืœืžื” ืœื”ื• ืื—ื–ื•ืงื™ ื‘ืฉื ื™ื” ื”ื ืื—ื–ื™ืงื• ืœื”ื• ื—ื“ื ื–ื™ืžื ื


Rav Sheshet explains: And if it enters your mind that a fetus does not acquire property, why do they need to take possession again the second time? Didnโ€™t they already take possession one time? Evidently, the miscarried fetus had acquired ownership in the meantime.


ืืžืจ ืื‘ื™ื™ ื™ืจื•ืฉื” ื”ื‘ืื” ืžืื™ืœื™ื” ืฉืื ื™ ืจื‘ื ืืžืจ ืฉืื ื™ ื”ืชื ื“ืจืคื•ื™ ืžืจืคื™ืืŸ ื‘ื™ื“ื™ื™ื”ื• ืžืขื™ืงืจื


Abaye said in reply to Rav Sheshet: Inheritance, which comes into the possession of the heir by itself without a formal act of acquisition, is different. Even if a fetus inherits property, it may not be able to acquire property in any other manner, e.g., receiving a gift. Rava said: It is different there, in the case where they plundered the property of the convert, as the property was initially only loosely held in their hands, as they did not clearly know whether or not the deceased convert had heirs. Therefore, the first time they took possession was not sufficient, and they needed to take possession again in order to acquire the property.


ืžืื™ ื‘ื™ื ื™ื™ื”ื• ืื™ื›ื ื‘ื™ื ื™ื™ื”ื• ืฉืฉืžืขื• ื‘ื• ืฉืžืช ื•ืœื ืžืช ื•ืื—ืจ ื›ืš ืžืช


The Gemara asks: What is the difference between Abayeโ€™s refutation and Ravaโ€™s refutation? The practical difference between them is in a case where they initially heard with regard to the fetus that he had died, and they then took possession of the property. But in reality, he had not died, and then he died. According to Abaye, a fetus inherits property. Therefore, the property was not ownerless, and the plunderers did not acquire it. According to Rava, since the plunderers heard that the fetus had died, they took a firm hold upon the property, and they acquired it the first time.


ืชื ืฉืžืข ืชื™ื ื•ืง ื‘ืŸ ื™ื•ื ืื—ื“ ื ื•ื—ืœ ื•ืžื ื—ื™ืœ ื‘ืŸ ื™ื•ื ืื—ื“ ืื™ืŸ ืขื•ื‘ืจ ืœื ื”ื ืืžืจ ืจื‘ ืฉืฉืช ื ื•ื—ืœ ื‘ื ื›ืกื™ ื”ืื ืœื”ื ื—ื™ืœ ืœืื—ื™ืŸ ืžืŸ ื”ืื‘ ื•ื“ื•ืงื ื‘ืŸ ื™ื•ื ืื—ื“ ืื‘ืœ ืขื•ื‘ืจ ืœื ืžืื™ ื˜ืขืžื


The Gemara offers another refutation of the opinion of Rav Sheshet: Come and hear a proof from a mishna (Nidda 43bโ€“44a): A one-day-old child inherits property and bequeaths property. One can infer that if the child is one day old, yes, he inherits property; but a fetus does not. The Gemara replies: Doesnโ€™t Rav Sheshet say that the mishna teaches a different halakha? The mishna teaches that a one-day-old child inherits his motherโ€™s property the moment he is born, so that he is able to bequeath it, if he then dies, to his heirs who are not the motherโ€™s heirs, e.g., his paternal brothers. This halakha specifically applies from when he is one day old, but a fetus whose mother died does not inherit from her. What is the reason for this?


ื“ื”ื•ื ืžื™ื™ืช ื‘ืจื™ืฉื ื•ืื™ืŸ ื”ื‘ืŸ ื™ื•ืจืฉ ืืช ืืžื• ื‘ืงื‘ืจ ืœื”ื ื—ื™ืœ ืœืื—ื™ืŸ ืžืŸ ื”ืื‘


The reason is that we presume that the fetus died first, before its mother died, and the son does not inherit from his mother while in the grave, in order to bequeath the inheritance to his paternal brothers. The halakha is that if a son dies, and afterward his mother dies, the deceased son does not inherit from his mother and subsequently bequeath the inheritance to his paternal brothers, who are not related to the mother. But in other cases, where it is not his motherโ€™s estate, a fetus inherits property.


ืœืžื™ืžืจื ื“ื”ื•ื ืžื™ื™ืช ื‘ืจื™ืฉื ื•ื”ื ื”ื•ื” ืขื•ื‘ื“ื ื•ืคืจื›ืก ืชืœืชื ืคืจื›ื•ืกื™ ืืžืจ ืžืจ ื‘ืจ ืจื‘ ืืฉื™ ืžื™ื“ื™ ื“ื”ื•ื” ืื–ื ื‘ ื”ืœื˜ืื” ืฉืžืคืจื›ืกืช


The Gemara asks: Is this to say that it is certain that the fetus died first? But there was an incident where the mother died and the fetus made three spasmodic motions afterward. Apparently, a fetus can die after the mother. Mar bar Rav Ashi said: That incident was just as it is with the tail of the lizard, which jerks after being severed from the lizard, but it is just a spasmodic motion which does not indicate that it is still alive.


ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ืืžืจ ืœื•ืžืจ ืฉืžืžืขื˜ ื‘ื—ืœืง ื‘ื›ื•ืจื” ื•ื“ื•ืงื ื‘ืŸ ื™ื•ื ืื—ื“ ืื‘ืœ ืขื•ื‘ืจ ืœื ืžืื™ ื˜ืขืžื ื•ื™ืœื“ื• ืœื• ืืžืจ ืจื—ืžื ื


Mar, son of Rav Yosef, says in the name of Rava: The mishna comes to say that a one-day-old child reduces the portion of the firstborn. The firstborn is entitled to a double portion of the inheritance, and this is calculated taking into account the portion due to his dead brother. And it is in this context that specifically the portion of a one-day-old child is taken into account, but the portion of a fetus is not taken into account, even though a fetus also inherits property. What is the reason for this? The Merciful One states concerning the portion of the firstborn: โ€œIf a man has two wives, the one beloved, and the other hated, and they bore him children, both the beloved and the hated; and if the firstborn son be hers that was hatedโ€ (Deuteronomy 21:15). The term โ€œchildrenโ€ excludes a fetus.


ื“ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ื‘ืŸ ืฉื ื•ืœื“ ืœืื—ืจ ืžื™ืชืช ืื‘ื™ื• ืื™ื ื• ืžืžืขื˜ ื‘ื—ืœืง ื‘ื›ื•ืจื” ืžืื™ ื˜ืขืžื ื•ื™ืœื“ื• ืœื• ืืžืจ ืจื—ืžื ื ื•ื”ื ืœื™ื›ื


This is similar to another halakha, as Mar, son of Rav Yosef, says in the name of Rava: A son who was born after his fatherโ€™s death does not reduce the firstbornโ€™s portion. What is the reason for this? The Merciful One states in the Torah: โ€œAnd they bore him children,โ€ and this term โ€œchildrenโ€ does not apply to a fetus.


ื‘ืกื•ืจื ืžืชื ื• ื”ื›ื™ ื‘ืคื•ืžื‘ื“ื™ืชื ืžืชื ื• ื”ื›ื™ ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื ื‘ื›ื•ืจ ืฉื ื•ืœื“ ืœืื—ืจ ืžื™ืชืช ืื‘ื™ื• ืื™ื ื• ื ื•ื˜ืœ ืคื™ ืฉื ื™ื ืžืื™ ื˜ืขืžื ื™ื›ื™ืจ ืืžืจ ืจื—ืžื ื ื•ื”ื ืœื™ืชื ื“ื™ื›ื™ืจ ื•ื”ืœื›ืชื ื›ื›ืœ ื”ื ื™ ืœื™ืฉื ื™ ื“ืืžืจ ืžืจ ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืžืฉืžื™ื” ื“ืจื‘ื


The Gemara notes: In Sura they taught Marโ€™s statement that way, but in Pumbedita they taught it this way: Mar, son of Rav Yosef, says in the name of Rava: A firstborn who was born after his fatherโ€™s death does not receive a double portion. What is the reason for this? The Merciful One states in the Torah: โ€œBut he shall acknowledge the firstborn, the son of the hated, by giving him a double portionโ€ (Deuteronomy 21:17), and in this case the father is not there that he can acknowledge him. The Gemara concludes: And the halakha is in accordance with all these versions of that which Mar, son of Rav Yosef, says in the name of Rava. Accordingly, a one-day-old child reduces the portion of the firstborn, a son born after his fatherโ€™s death does not reduce the firstbornโ€™s portion, and a firstborn born after his fatherโ€™s death does not receive a double portion.


ืืžืจ ืจื‘ื™ ื™ืฆื—ืง ืืžืจ ืจื‘ื™ ื™ื•ื—ื ืŸ ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื” ื•ืื ืชืืžืจ ืžืฉื ืชื™ื ื• ื”ื•ืื™ืœ ื•ื“ืขืชื• ืฉืœ ืื“ื ืงืจื•ื‘ื” ืืฆืœ ื‘ื ื•


ยง Rabbi Yitzแธฅak says that Rabbi Yoแธฅanan says: With regard to one who transfers ownership of an item to a fetus, the fetus does not acquire the item. And if you say that the statement of our mishna (140b), with regard to one who gives a gift to his unborn child, indicates that an item can be transferred to a fetus, the circumstances there are unique. Since the disposition of a person is to be inclined toward his son, the Sages validated such a transfer, but one cannot transfer an item to the unborn child of another.


ืืžืจ ืœื™ื” ืฉืžื•ืืœ ืœืจื‘ ื—ื ื ื‘ื’ื“ืชืื” ืคื•ืง ืื™ื™ืชื™ ืœื™ ื‘ื™ ืขืฉืจื” ื•ืื™ืžืจ ืœืš ื‘ืืคื™ื™ื”ื• ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืงื ื” ื•ื”ืœื›ืชื ื”ืžื–ื›ื” ืœืขื•ื‘ืจ ืœื ืงื ื”


Shmuel said to Rav แธคana of Baghdad: Go out and bring me an assembly of ten men, and I will say a halakha to you in their presence, so that it will be well publicized. The halakha was: With regard to one who transfers ownership of an item to a fetus, the fetus acquires the item. The Gemara concludes: And the halakha is that with regard to one who transfers ownership of an item to a fetus, the fetus does not acquire the item.


ื”ื”ื•ื ื“ืืžืจ ืœื“ื‘ื™ืชื”ื• ื ื›ืกื™ ืœื‘ื ื™ ื“ื™ื”ื•ื• ืœื™ ืžื™ื ื™ืš ืืชื ื‘ืจื™ื” ืงืฉื™ืฉื ืืžืจ ืœื™ื” ื”ื”ื•ื ื’ื‘ืจื ืžืื™ ืชื™ื”ื•ื™ ืขืœื™ื” ืืžืจ ืœื™ื” ื–ื™ืœ ืงื ื™ ื›ื—ื“ ืžื‘ืจื ื”ื ืš ื•ื“ืื™ ืœื ืงื ื• ื“ืื›ืชื™ ืœื™ืชื ื”ื•


ยง The Gemara relates: There was a certain man who said to his wife, before she conceived: My property is given to the sons that I will have from you. His older son from a previous marriage came and said to him: That man, i.e., me, what will become of him, i.e., will I receive nothing? He said to his son: Go and acquire a portion like one of the sons who will be born, i.e., you will receive a share as well. The Gemara comments: Those sons who were not yet born certainly did not acquire the property, and do not receive more than their share as heirs, as they are not yet in existence.


ื”ืื™ ืื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืื• ืœื™ืช ืœื™ื” ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืจื‘ื™ ืื‘ื™ืŸ ื•ืจื‘ื™ ืžื™ื™ืฉื ื•ืจื‘ื™ ื™ืจืžื™ื” ื“ืืžืจื™ ืื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื ืจื‘ื™ ืื‘ื”ื• ื•ืจื‘ื™ ื—ื ื™ื ื ื‘ืจ ืคืคื™ ื•ืจื‘ื™ ื™ืฆื—ืง ื ืคื—ื ื“ืืžืจื™ ืœื™ืช ื—ื•ืœืง ืœื˜ืœื™ื ื‘ืžืงื•ื ื‘ื ื™ื


The Gemara asks: With regard to this son, does the young man [letalya] receive an additional share of the inheritance in a case where there are other sons from the second wife, since his father gave him an additional share, or does the young man not receive an additional share of the inheritance where there are other sons? There are Rabbi Avin, and Rabbi Meyasha, and Rabbi Yirmeya, who all say: The young man does receive an additional share of the inheritance where there are other sons. And there are Rabbi Abbahu, and Rabbi แธคanina bar Pappi, and Rabbi Yitzแธฅak Nappaแธฅa, who all say: The young man does not receive an additional share of the inheritance where there are other sons.


ืืžืจ ืœื™ื” ืจื‘ื™ ืื‘ื”ื• ืœืจื‘ื™ ื™ืจืžื™ื” ื”ืœื›ืชื ื›ื•ื•ืชืŸ ืื• ื”ืœื›ืชื ื›ื•ืชื™ื™ื›ื• ืืžืจ ืœื™ื” ืคืฉื™ื˜ื ื“ื”ืœื›ืชื ื›ื•ื•ืชืŸ ื“ืงืฉื™ืฉื ื ืžื™ื ื™ื™ื›ื• ื•ืœืื• ื”ืœื›ืชื ื›ื•ื•ืชื™ื™ื›ื• ื“ื“ืจื“ืงื™ ืืชื•ืŸ ืืžืจ ืœื™ื” ืžื™ื“ื™ ื‘ืงืฉื™ืฉื•ืชื ืชืœื™ื ืžื™ืœืชื ื‘ื˜ืขืžื ืชืœื™ื ืžื™ืœืชื ื•ื˜ืขืžื ืžืื™ ื–ื™ืœ ืœื’ื‘ื™ื” ื“ืจื‘ื™ ืื‘ื™ืŸ ื“ืืกื‘ืจืชื” ื ื™ื”ืœื™ื”


Rabbi Abbahu said to Rabbi Yirmeya: Is the halakha in accordance with our opinion, or is the halakha in accordance with your opinion? Rabbi Yirmeya said to Rabbi Abbahu: It is obvious that the halakha is in accordance with our opinion, as we are older than you, and the halakha is not in accordance with your opinion, as you are youngsters [dardekei]. Rabbi Abbahu said to Rabbi Yirmeya in reply: Does the matter depend upon age? The matter depends upon the reason behind the ruling. Rabbi Yirmeya asked him: And what is your reason? Rabbi Abbahu replied: Go to Rabbi Avin, as I explained this halakha to him,


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