בבא בתרא קמא

בבא בתרא קמא

אֶלָּא לְאַבָּיֵי, מַאי ״נִיזּוֹן כְּבַת״? וּלְטַעְמָיךְ – לְרָבָא מַאי ״יוֹרֵשׁ כְּבֵן״? אֶלָּא רָאוּי לִירַשׁ – וְאֵין לוֹ; הָכָא נָמֵי, רָאוּי לִזּוֹן – וְאֵין לוֹ.

But according to the opinion of Abaye, what does it mean that the tumtum is sustained as a daughter, since Abaye maintains that the tumtum does not have the rights of a daughter? The Gemara responds: And according to your reasoning, even according to Rava, what does it mean that a tumtum inherits as a son, since Rava concedes that the tumtum and sons do not actually inherit anything? Rather, the baraita means that it is fitting for the tumtum to inherit but he does not actually inherit. Here too, with regard to sustenance, according to Abaye, the baraita means that it is fitting for the tumtum to be sustained, but he is not actually sustained.

הָאוֹמֵר: אִם יָלְדָה אִשְׁתִּי זָכָר וְכוּ׳. לְמֵימְרָא דְּבַת עֲדִיפָא לֵיהּ מִבֵּן? וְהָא אָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי שִׁמְעוֹן בֶּן יוֹחַאי: כֹּל שֶׁאֵינוֹ מַנִּיחַ בֵּן לְיוֹרְשׁוֹ – הַקָּדוֹשׁ בָּרוּךְ הוּא מָלֵא עָלָיו עֶבְרָה, שֶׁנֶּאֱמַר: ״וְהַעֲבַרְתֶּם אֶת נַחֲלָתוֹ לְבִתּוֹ״ – וְאֵין ״הַעֲבָרָה״ אֶלָּא עֶבְרָה, שֶׁנֶּאֱמַר: ״יוֹם עֶבְרָה הַיּוֹם הַהוּא״!

§ The mishna teaches: With regard to one who says: If my wife gives birth to a male the offspring shall receive one hundred dinars, if she in fact gave birth to a male, the offspring receives one hundred dinars. If he says: If my wife gives birth to a female the offspring shall receive two hundred dinars, if she in fact gave birth to a female, the offspring receives two hundred dinars. The Gemara asks: Is this to say that for him a daughter is preferable to a son? But this seems to contradict what Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yoḥai: With regard to anyone who does not leave behind a son to inherit from him, the Holy One, Blessed be He, is filled with wrath upon him, as it is stated: “If a man dies, and has no son, then you shall cause his inheritance to pass [veha’avartem] to his daughter” (Numbers 27:8). The term ha’avara means nothing other than wrath, as it is stated: “That day is a day of wrath [evra]” (Zephaniah 1:15).

לְעִנְיַן יְרוּשָּׁה – בֵּן עֲדִיף לֵיהּ. לְעִנְיַן הַרְוָוחָה – בִּתּוֹ עֲדִיפָא לֵיהּ.

The Gemara resolves the contradiction: With regard to the matter of inheritance, for him a son is preferable to a daughter, as a son bears his name and retains his ancestral heritage within his father’s tribe, but with regard to the matter of providing for his offspring’s comfort, for him his daughter is preferable to his son, as a son is more capable of coping for himself and the daughter needs more support.

וּשְׁמוּאֵל אָמַר: הָכָא בִּמְבַכֶּרֶת עָסְקִינַן, וְכִדְרַב חִסְדָּא – דְּאָמַר רַב חִסְדָּא: בַּת תְּחִלָּה – סִימָן יָפֶה לְבָנִים. אִיכָּא דְּאָמְרִי: דִּמְרַבְּיָא לַאֲחָהָא, וְאִיכָּא דְאָמְרִי: דְּלָא שָׁלְטָא בֵּיהּ עֵינָא בִּישָׁא. אָמַר רַב חִסְדָּא: וּלְדִידִי – בְּנָתָן עֲדִיפָן לִי מִבְּנֵי.

And Shmuel said: Here we are dealing with a mother who is giving birth for the first time, and this is in accordance with the statement of Rav Ḥisda, as Rav Ḥisda says: If one gives birth to a daughter first, it is a good sign for sons. There are those who say that this is because she raises her brothers, i.e., helps in their upbringing, and there are those who say that this is because the evil eye does not have dominion over the father. Rav Ḥisda said: And as for myself, I prefer daughters to sons.

וְאִיבָּעֵית אֵימָא: הָא מַנִּי – רַבִּי יְהוּדָה הִיא.

The Gemara adds: And if you wish, say: In accordance with whose statement is this mishna in which preference is given to the daughter? It is in accordance with the statement of Rabbi Yehuda.

הֵי רַבִּי יְהוּדָה? אִילֵימָא רַבִּי יְהוּדָה דְּ״בַכֹּל״ – דְּתַנְיָא: ״וַה׳ בֵּרַךְ אֶת אַבְרָהָם בַּכֹּל״ – רַבִּי מֵאִיר אוֹמֵר: שֶׁלֹּא הָיָה לוֹ בַּת. רַבִּי יְהוּדָה אוֹמֵר: שֶׁהָיְתָה לוֹ בַּת, וּ״בַכֹּל״ שְׁמָהּ. אֵימוֹר דְּשָׁמְעַתְּ לֵיהּ לְרַבִּי יְהוּדָה – בְּרַתָּא נָמֵי לָא חַסְּרֵיהּ רַחֲמָנָא לְאַבְרָהָם; דַּעֲדִיפָא מִבֵּן מִי שָׁמְעַתְּ לֵיהּ?!

The Gemara asks: Which statement of Rabbi Yehuda is this referring to? If we say it is referring to the statement of Rabbi Yehuda with regard to the term “with everything [bakkol],” that is difficult. The Gemara cites Rabbi Yehuda’s statement. As it is taught in a baraita: “And Abraham was old, well stricken in age; and the Lord had blessed Abraham with everything [bakkol]” (Genesis 24:1). Rabbi Meir says: The blessing was that he did not have a daughter. Rabbi Yehuda says: The blessing was that he had a daughter, and her name was Bakkol. Evidently, Rabbi Yehuda understands the birth of a daughter to be a blessing. The Gemara explains the difficulty: Say that you heard Rabbi Yehuda explain that the blessing was that the Merciful One did not even deprive Abraham of a daughter, in addition to his sons. Did you hear him say that a daughter is preferable to a son?

אֶלָּא הָא רַבִּי יְהוּדָה – דְּתַנְיָא: מִצְוָה לָזוּן אֶת הַבָּנוֹת, וְקַל וָחוֹמֶר לַבָּנִים – דְּעָסְקִי בַּתּוֹרָה, דִּבְרֵי רַבִּי מֵאִיר. רַבִּי יְהוּדָה אוֹמֵר: מִצְוָה לָזוּן אֶת הַבָּנִים, וְקַל וָחוֹמֶר לִבָּנוֹת – דְּלָא לִיתַּזְלָן.

The Gemara proposes another of Rabbi Yehuda’s statements: Rather, it is referring to this other statement of Rabbi Yehuda, as it is taught in a baraita: One is not halakhically obligated to provide sustenance for his children beyond the age of six. Nevertheless, it is a mitzva to provide sustenance for the daughters. And one can infer a fortiori that it is certainly a mitzva to provide for sons, who are engaged in the study of the Torah; this is the statement of Rabbi Meir. Rabbi Yehuda says: It is a mitzva to provide sustenance for the sons. And one can infer a fortiori that it is certainly a mitzva to provide for daughters, so that they not be disgraced by having to beg for their livelihood. This indicates that with regard to providing sustenance for one’s children, Rabbi Yehuda gives preference to the daughters.

אֶלָּא הָא דְּתַנְיָא: יָלְדָה זָכָר וּנְקֵבָה – הַזָּכָר נוֹטֵל שִׁשָּׁה דִּינָרִין, וְהַנְּקֵבָה נוֹטֶלֶת שְׁנֵי דִּינָרִין; בְּמַאי?

§ The mishna discusses a case where one stipulated that if his wife gives birth to a male the offspring shall receive one hundred dinars, and if she gives birth to a female the offspring shall receive two hundred dinars. The mishna states that if she gave birth to both a male and a female, the male receives one hundred dinars and the female receives two hundred. The Gemara asks: But with regard to that which is taught in a baraita (Tosefta 9:4): If she gave birth to a male and a female, the male receives six dinars of gold, which are equivalent to one hundred fifty dinars of silver, and the female receives two dinars of gold, equivalent to fifty dinars of silver, with what situation is this baraita dealing?

אָמַר רַב אָשֵׁי: אַמְרִיתַהּ לִשְׁמַעְתָּא קַמֵּיהּ דְּרַב כָּהֲנָא: בִּמְסָרֵס, דְּאָמַר: ״זָכָר תְּחִלָּה – מָאתַיִם, נְקֵבָה אַחֲרָיו – וְלָא כְּלוּם. נְקֵבָה תְּחִלָּה – מָנֶה, זָכָר אַחֲרֶיהָ – מָנֶה״. וְיָלְדָה זָכָר וּנְקֵבָה, וְלָא יָדְעִינַן הֵי מִינַּיְיהוּ נְפַק בְּרֵישָׁא. זָכָר שָׁקֵיל מָנֶה מִמָּה נַפְשָׁךְ, אִידַּךְ מָנֶה – הָוֵה מָמוֹן הַמּוּטָּל בְּסָפֵק, וְחוֹלְקִין.

Rav Ashi said: I said this halakha before Rav Kahana, and he explained it as teaching about one who inverted the stipulations of his gift. The baraita is referring to one who said: If a male is born first he will receive two hundred dinars, and if a female is born after him she will receive nothing. And if a female is born first she will receive one hundred dinars, and if a male is born after her he will receive one hundred dinars. And the mother gave birth to a male and a female, but we do not know which of them emerged from the womb first. In this case, the male takes one hundred dinars, as whichever way you look at it, this sum is due to him. The other one hundred dinars are property of uncertain ownership and are divided equally between the male and female.

וְהָא דְּתַנְיָא: יָלְדָה זָכָר וּנְקֵבָה – אֵין לוֹ אֶלָּא מָנֶה, הֵיכִי מַשְׁכַּחַתְּ לַהּ? אָמַר רָבִינָא: בִּ״מְבַשְּׂרֵנִי״ –

The Gemara asks: And with regard to that which is taught in another baraita: If she gave birth to a male and a female, he receives only one hundred dinars, how can you find these circumstances? Ravina said: This is referring to one who said: I shall give a certain sum to whoever informs me.

דְּתַנְיָא: ״הַמְבַשְּׂרֵנִי בַּמֶּה נִפְטַר רַחְמָהּ שֶׁל אִשְׁתִּי; אִם זָכָר – יִטּוֹל מָנֶה״, יָלְדָה זָכָר – נוֹטֵל מָנֶה. ״אִם נְקֵבָה – מָנֶה״; יָלְדָה נְקֵבָה – נוֹטֵל מָנֶה, יָלְדָה זָכָר וּנְקֵבָה – אֵין לוֹ אֶלָּא מָנֶה.

This is as it is taught in a baraita (Tosefta 9:5): In a case where one said: Whoever informs me as to what opened my wife’s womb, i.e., what the sex of her child is, if it is a male, the one who informs me shall receive one hundred dinars. Therefore, if the wife gave birth to a male, the one who informed him receives one hundred dinars. If he also said: If it is a female he shall receive one hundred dinars, if she gave birth to a female, he receives one hundred dinars. If she gave birth to a male and a female, he receives only one hundred dinars.

וְהָא ״זָכָר וּנְקֵבָה״ לָא אֲמַר! דְּאָמַר נָמֵי ״אִם זָכָר וּנְקֵבָה נָמֵי – יִטּוֹל מָנֶה״. אֶלָּא לְמַעוֹטֵי מַאי? לְמַעוֹטֵי נֵפֶל.

The Gemara challenges: But since he did not say anything about a male and a female, if she gave birth to a male and a female, he should not receive anything. Why does the baraita state that he receives one hundred dinars? The Gemara answers: This is referring to where he also said: If she gives birth to a male and a female he shall also receive one hundred dinars. The Gemara asks: But if he stated all of the possibilities, what did his stipulations serve to exclude? The Gemara answers: They serve to exclude a case where she gives birth to a non-viable newborn, in which case he receives nothing.

הָהוּא דַּאֲמַר לַהּ לִדְבֵיתְהוּ: נִכְסַי לְהַאי דִּמְעַבְּרַתְּ. אָמַר רַב הוּנָא: הָוֵי מְזַכֶּה לְעוּבָּר, וְהַמְזַכֶּה לְעוּבָּר לֹא קָנָה.

§ The Gemara relates: There was a certain man who said to his wife: My property is given to the one with whom you are pregnant. Rav Huna said: This is a case of one who transfers ownership of an item to a fetus, and in the case of one who transfers ownership of an item to a fetus, the fetus does not acquire the item.

אֵיתִיבֵיהּ רַב נַחְמָן לְרַב הוּנָא: הָאוֹמֵר ״אִם יָלְדָה אִשְׁתִּי זָכָר – יִטּוֹל מָנֶה״, יָלְדָה זָכָר – נוֹטֵל מָנֶה! אֲמַר לֵיהּ: מִשְׁנָתֵינוּ – אֵינִי יוֹדֵעַ מִי שְׁנָאָהּ.

Rav Naḥman raised an objection to the opinion of Rav Huna from the mishna, which states: With regard to one who says: If my wife gives birth to a male the offspring shall receive one hundred dinars, if she in fact gave birth to a male, the offspring receives one hundred dinars. This indicates that the fetus did acquire the money. Rav Huna said to him: I do not know who taught our mishna. It is not identifiable with a known opinion, and presumably the text has been corrupted.

וְלֵימָא לֵיהּ: רַבִּי מֵאִיר הִיא, דְּאָמַר: אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם!

The Gemara asks why Rav Huna replied in this manner: But let him say to Rav Naḥman: It is in accordance with the opinion of Rabbi Meir, who says: A person can transfer ownership of an entity that has not yet come into the world, e.g., produce that has not yet grown. Just as he maintains that one can transfer ownership of an entity that has not yet come into the world, so too, he maintains that one can transfer ownership of an item to a fetus, who has not yet been born.

אֵימוֹר דְּשָׁמְעַתְּ לֵיהּ לְרַבִּי מֵאִיר – לְדָבָר שֶׁיֶּשְׁנוֹ בָּעוֹלָם; לְדָבָר שֶׁאֵינוֹ בָּעוֹלָם מִי שָׁמְעַתְּ לֵיהּ?!

The Gemara rejects this explanation: Say that you heard Rabbi Meir express this opinion with regard to transferring ownership of an entity that has not yet come into the world to an entity that is in the world. Did you hear him speak of transferring ownership to an entity that has not yet come into the world, e.g., a fetus?

וְלֵימָא לֵיהּ: רַבִּי יוֹסֵי הִיא, דְּאָמַר: עוּבָּר קָנֵי! דִּתְנַן: עוּבָּר פּוֹסֵל וְאֵינוֹ מַאֲכִיל, דִּבְרֵי רַבִּי יוֹסֵי.

The Gemara proposes another resolution to Rav Naḥman’s objection: But let Rav Huna say to Rav Naḥman: It is in accordance with the opinion of Rabbi Yosei, who says: A fetus acquires ownership, as we learned in a mishna (Yevamot 67a): With regard to an Israelite woman who married a priest and he died and left her pregnant, the fetus disqualifies its father’s Canaanite slaves from partaking of teruma, because until it is born the fetus is not considered a priest, and the slaves, who are part of its inheritance, are not the slaves of a priest. And the fetus does not enable its mother to partake of teruma, even though it is the child of a priest. This is the statement of Rabbi Yosei. It is evident from this mishna that Rabbi Yosei holds that a fetus inherits its father’s property.

שָׁאנֵי יְרוּשָּׁה, הַבָּאָה מֵאֵילֶיהָ.

The Gemara rejects this explanation: Inheritance is different, since, unlike a gift, it comes into the possession of the heir by itself, without a formal act of acquisition. Therefore, a fetus can acquire an inheritance, but not a gift.

וְלֵימָא לֵיהּ: רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה הִיא, דַּאֲמַר: לָא שְׁנָא יְרוּשָּׁה וְלָא שְׁנָא מַתָּנָה! דִּתְנַן, רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר: אִם אָמַר עַל מִי שֶׁרָאוּי לְיוֹרְשׁוֹ – דְּבָרָיו קַיָּימִין!

The Gemara proposes another resolution to Rav Naḥman’s objection: But let Rav Huna say to Rav Naḥman: It is in accordance with the opinion of Rabbi Yoḥanan ben Beroka, who says: The case of an inheritance is not different, and the case of a gift one gives to his heir is not different, i.e., the same halakhot apply to both. As we learned in a mishna (130a): Rabbi Yoḥanan ben Beroka says: If one said about a person who is fit to inherit from him, e.g., one of his sons: This person will inherit all of my property, his statement stands.

אֵימוֹר דְּשָׁמְעַתְּ לֵיהּ לְרַבִּי יוֹחָנָן בֶּן בְּרוֹקָה – לְדָבָר שֶׁיֶּשְׁנוֹ בָּעוֹלָם; לְדָבָר שֶׁאֵינוֹ בָּעוֹלָם מִי אָמַר?!

The Gemara rejects this explanation: Say that you heard Rabbi Yoḥanan ben Beroka express this opinion with regard to a gift given to an entity that already exists in the world, but does he say anything with regard to a gift given to an entity that has not yet come into the world?

וְלֵימָא לֵיהּ: רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה הִיא, וְסָבַר לַהּ כְּרַבִּי יוֹסֵי! מִי יֵימַר דְּסָבַר לַהּ?

The Gemara proposes another resolution to Rav Naḥman’s objection: But let Rav Huna say to Rav Naḥman: It is in accordance with the opinion of Rabbi Yoḥanan ben Beroka, who compares a gift to an inheritance, and he holds in accordance with the opinion of Rabbi Yosei, that a fetus is fit to inherit. The Gemara rejects this explanation: Who says that Rabbi Yoḥanan ben Beroka holds in accordance with the opinion of Rabbi Yosei?

וְלֵימָא לֵיהּ: בִּ״מְבַשְּׂרֵנִי״! אִי הָכִי, דְּקָתָנֵי סֵיפָא: וְאִם אֵין שָׁם יוֹרֵשׁ אֶלָּא הוּא – יוֹרֵשׁ הַכֹּל; אִי בִּ״מְבַשְּׂרֵנִי״, יוֹרֵשׁ מַאי עֲבִידְתֵּיהּ?

The Gemara proposes another resolution to Rav Naḥman’s objection: But let Rav Huna say to Rav Naḥman that the mishna is referring not to one who gave a gift to the fetus, but to one who said: I shall give a certain sum to whoever informs me. This person is in the world. The Gemara rejects this explanation as well: If that is so, then concerning that which the last clause of the mishna teaches: And if there is no heir other than the tumtum, the tumtum inherits all of the estate, if the mishna is referring to one who said: I shall give a certain sum to whoever informs me, what is the purpose of mentioning an heir, since the mishna is not discussing a gift to the heir at all?

וְלֵימָא לֵיהּ בְּשֶׁיָּלְדָה! אִי הָכִי, דְּקָתָנֵי סֵיפָא: וְאִם אָמַר ״כׇּל מַה שֶּׁתֵּלֵד אִשְׁתִּי – יִטּוֹל״, הֲרֵי זֶה יִטּוֹל; ״כׇּל שֶׁתֵּלֵד״?! ״כָּל שֶׁיָּלְדָה״ מִיבְּעֵי לֵיהּ!

The Gemara proposes another resolution to Rav Naḥman’s objection: But let Rav Huna say to Rav Naḥman: The mishna is referring to a case where the gift was made after his wife had already given birth but he did not yet know the sex of the baby. The Gemara rejects this explanation as well: If that is so, then concerning that which the latter clause of the mishna teaches: Whatever offspring my wife gives birth to shall receive a certain sum, and she gave birth to a tumtum, the tumtum receives it, there is a difficulty. According to this explanation, the phrase: Whatever offspring my wife gives birth to, is incorrect. The mishna should have said: Whatever offspring my wife gave birth to.