Bava Batra 140b — the Talmud in English

What is the law regarding his wife’s daughter: does she diminish the property?

With regard to his wife’s daughter, the debt is less strong than a creditor’s debt, for if she dies, the obligation lapses.

And if nevertheless we say that she diminishes the property, since even if she marries she receives sustenance, there is still room for inquiry:

What is the law regarding his widow: does she diminish the property?

With regard to his widow, the debt is less strong than that of his wife’s daughter, for if his widow marries another, the obligation lapses; and therefore the Gemara raises the inquiry concerning her.

Thus far are the words of the one who raises the inquiry: “On the other hand.”

And now the Gemara brings that Rabbi Yirmeya raised an additional inquiry:

His widow and his daughter—

which of them has precedence?

When there is property sufficient to provide sustenance for only one of them, who has precedence? Is it that a person’s disposition is closer to his daughter, and therefore she receives the property, or does he take greater care of his widow, and she has preference over the daughter?

He said to him

Rabbi Abbahu:

At least resolve one,

it is possible to resolve at least the last problem:

For Rabbi Abba said that Rav Asi said: They treated a widow in relation to a daughter

The Sages instituted that when there is a widow and a daughter, and there is property sufficient to provide sustenance for only one of them,

as a daughter in relation to brothers when the property is meager.

Just as with a daughter in relation to brothers, the daughter is sustained, while the brothers must go begging from door to door,

as in a case where there are a daughter and brothers and there is little property, the Sages instituted that the daughter receives it, since a daughter has preference over the brothers.

So too, with a widow in relation to a daughter,

when there is a widow and a daughter,

the widow is sustained, while the daughter must go begging from door to door.

And the inquiry above is resolved: the widow has preference over the daughter.

We learned in the Mishna:

Admon says: Because I am male, have I lost out!?

From Admon’s words it is evident that there is an advantage to being male, on account of which he should have been given preference. Therefore the Gemara asks:

What is he saying!?

To what advantage was Admon referring?

Abaye said: This is what he is saying:

This was his intention in saying:

Because I am male, and I am fit to engage in Torah study, have I lost out!?

For a male is subject to the mitzva of Torah study, whereas a female is not; therefore sons should be given preference over daughters with regard to sustenance.

Rava said to him: If so, is it one who engages in Torah study who inherits, while one who does not engage in Torah study does not inherit!?

It follows from your words that one who engages in Torah study is fit to inherit more than one who does not engage in Torah study; and when there are two sons, only the one who engages in Torah study will inherit!?

Rather, Rava said: This is what he is saying:

This is Admon’s intention:

Because I am male, and I am fit to inherit when the property is abundant,

for a male inherits when the property is abundant, whereas a female does not inherit at all; and if so, a male has a greater right to the property than daughters, and therefore

have I lost out when the property is meager!?

Rather, the sons should be given preference, and certainly not the daughters. And therefore he disputes the institution concerning meager property, and all of them are sustained together.

Mishna:

If one dies and

leaves sons, daughters, and a tumatum,

who is of uncertain sex, whether male or female, and therefore is placed at a disadvantage,

when the property is abundant,

when the sons have the advantage, since then they inherit all the property, while the daughters receive only sustenance, then

the males push it away

the tumatum

to the females,

to the daughters, so that it receives sustenance only like them, and no share in the inheritance.

But when the father left

meager property,

when the daughters receive the property for their sustenance, while the sons go begging from door to door [as explained in the preceding Mishna], and the females have the advantage, therefore

the females push it away

the tumatum

to the males,

to the sons, and it receives nothing.

If one says: If my wife gives birth to a male, he shall take one hundred zuz.

One who assigns a portion of his property to the fetus in his wife’s womb, and does so through an act of acquisition or merely through a statement, and the case is that after the statement he dies, and there is now a mitzva to fulfill the words of the deceased.

If she gives birth to a male, he shall take one hundred zuz.

His words stand, and if it becomes clear at the end that the fetus is male, he receives one hundred zuz. There is no deficiency here on account of the fact that it is impossible to effect an acquisition for a fetus, as will be explained below.

And likewise, if he said:

If it is female,

if my wife gives birth to a female, she shall take

two hundred,

he assigns to her now two hundred zuz; therefore, if indeed

she gives birth to a female, she takes

two hundred,

as he assigned to her.

And in both these cases, if she gives birth to what he did not specify—for example, he said “male” and she gave birth to a female—she receives nothing, since his intention was only for a male. And likewise in the reverse case. And this is the novelty of the Mishna.

But if he said:

If it is male, one hundred; if it is female, two hundred,

here he revealed through his intention that he wishes to assign property to the fetus in every case, whether it will be male or whether it will be female.

And

therefore, if

she gives birth to a male or a female [

that is, a male or a female],

the male takes one hundred, and the female takes two hundred.

But if she gives birth to twins, they receive nothing, since his intention was not for twins.

If she gives birth to a tumatum,

whose sex is unknown, whether male or female,

it does not take

anything. [

And this is apparently contradicted by the beginning of the Mishna, where it is explained that a tumatum takes, on account of the uncertainty, as little as possible; and if so, here too it should receive at least one hundred, like a male. This will be explained below in the Gemara.]

But

if he said: Whatever my wife gives birth to, he shall take!

Here he does not specify what she will give birth to, but intends to assign property to whoever will be born; therefore

it shall take,

even if she gives birth to a tumatum.

And now the Mishna returns to the first law, that a tumatum is at a disadvantage with regard to inheritance and sustenance.

If there is no heir other than it,

for there are no sons and daughters, but only a tumatum, then it

inherits everything,

since, in the end, it is his son, even though it is not known what its sex is.

Gemara:

We learned in the first clause of the Mishna: if there are sons, daughters, and a tumatum,

they push it away

to the females.

And the Gemara is astonished:

And

for

when it takes like a daughter,

is the law that the sons do not give it what they would give a son, but it receives like a daughter, on account of the uncertainty?

But it teaches in the latter clause,

for we learned in the latter clause that if he said, “A male shall receive one hundred, and a female two hundred,”

she gives birth to a tumatum, it does not take!

And it is proven from here that a tumatum is not a male of uncertain sex or a female of uncertain sex; rather, it is a new type of being, and therefore it has neither the law of a son nor the law of a daughter. If so, it is difficult: why in the first clause does it receive?

Abaye said: They push it away, and it has nothing.

The intention of the Mishna is to say that the sons push it away to the daughters, but the daughters too push it back to the sons, and it receives nothing.

And Rava said:

The intention of the first clause is to say:

They push it away, and it has something.

And this is as the questioner understood.

And the latter clause, we come to

the latter clause follows

the

position of

Rabban Shimon ben Gamliel,

who holds that a tumatum is a being in its own right, and not a male or female of uncertain sex; therefore a tumatum receives nothing at all.

As it was taught: If she gives birth to a tumatum or an androgynos,

a female animal that was pregnant, and he consecrated the fetus, saying that if it gives birth to a male it will be a burnt-offering, and if it gives birth to a female it will be an offering of lesser sanctity, and it gave birth to a tumatum or an androgynos [which has signs of a male and signs of a female].

Rabbi Shimon ben Gamliel says: Sanctity does not take effect upon them!

The offspring is not consecrated at all, since it is neither male nor female, but a being in its own right.

And the latter clause holds in accordance with his opinion.

And the Gemara raises an objection against Abaye, who establishes that the tumatum in the Mishna receives nothing.

It was raised as an objection,

from a beraita, in which we learned: there is a case in which

a tumatum inherits like a son, and

there is a case in which it is

sustained like a daughter.

Granted, according to Rava,

who holds that according to the words of the Mishna a tumatum has the status of a daughter, it is well possible to establish what the beraita first said, “A tumatum inherits like a son,” as referring

to meager property,

where the daughters have the advantage, receiving sustenance while the sons do not receive; that is, its law is like that of sons with regard to inheritance, in that when the property is meager it does not inherit, just as the sons do not inherit there. And what the beraita subsequently said,

“and is sustained like a daughter,”

can be established as referring

to abundant property,

where the sons have the advantage; therefore it receives only sustenance, like a daughter.