Bava Batra 142a — the Talmud in English

But the Gemara still asks:

And let him say to him,

that Rav Huna should establish the Mishna

as speaking of one who says, “When she gives birth,”

so that he acquires only after the child is born, whereas Rav Huna spoke of one who acquires for him while he is still a fetus!? And we answer:

Rav Huna follows his own reasoning,

for Rav Huna himself does not make this distinction.

For Rav Huna said: Even “when she gives birth,”

even in the case of one who acquires for him after he is born,

he does not acquire.

And the explanation of the matter is that, since at present he is unable to acquire, it is impossible to acquire for him at a later time.

For Rav Nahman said: One who acquires for a fetus

that it should acquire now,

does not acquire.

But if he says

“When she gives birth,” he acquires. For

although acquiring for a fetus today is indeed impossible, it is considered somewhat as though it is already in the world, and therefore it is possible to acquire for it for the future, when it is born. But if his wife is not pregnant, then even if he says that he acquires for her fetus when she gives birth, it is ineffective, because the purchaser still does not exist.

And

if

Rav Huna

disagreed with Rav Nahman, and

said, “Even ‘when she gives birth,’ he does not acquire!”

Therefore, in conclusion, the words of Rav Huna do not accord with the Mishna.

And the Gemara brings a third position concerning one who acquires for a fetus:

And Rav Sheshet said: Both this one,

one who acquires for a fetus now,

and this one,

one who acquires for it when she gives birth,

acquires.

Rav Sheshet said: From where do I say it?

What is my source that it is possible to acquire for a fetus?

For it was taught:

from what we learned in a beraita:

A convert who died,

and left property, which is now ownerless,

and Israelites seized his property,

took possession of the property through acquisition in order to acquire it,

and

afterward

heard that he had a son

who inherits his property, and their taking possession of his property had been taking possession in error,

or

they heard

that his wife was pregnant,

and the fetus inherits his property,

they are obligated to return

the property of which they had taken possession.

And if it happened that

they returned everything, and afterward heard that his son had died, or that his wife had miscarried,

and the property again became ownerless—then the one who

took possession a second time,

after the heir died,

acquired

the property,

but the first time,

the one who took possession before the heir died,

did not acquire,

since at that time the property belonged to the heir.

And from here Rav Sheshet infers:

And if it enters your mind

to say that

a fetus does not acquire,

because there is no acquisition for a fetus,

why did they need to take possession a second time!?

Why did they need to take possession a second time in the case where his wife was pregnant? After all,

they had already taken possession once,

for they had taken possession once, and the acquisition was not nullified so long as he had not been born.

Rather, it is proven from here that there is acquisition for a fetus, and therefore it was necessary to take possession a second time after his death.

Abaye said,

Abaye rejects Rav Sheshet’s proof:

An inheritance that comes on its own is different.

An inheritance that comes by itself is different from property that must be transferred to a fetus.

And another rejection of Rav Sheshet’s proof:

Rava said: There it is different,

the beraita differs from Rav Sheshet’s law,

for they held it loosely in their hands from the outset.

At the beginning they took possession in an uncertain manner, since they were concerned that the convert might have heirs; therefore they needed to take possession a second time, because there was a deficiency in the intention to acquire, but in truth it is possible that a fetus has no acquisition.

And the Gemara asks:

What is the difference between them?

What is the difference between Abaye’s and Rava’s rejections?

And it explains:

There is a difference between them

in a case where

they heard concerning him that he had died,

the first taking of possession was after they heard that his heirs had died, and therefore there was intention for a complete acquisition. And indeed, this was in error,

but he did not die,

for afterward it became clear that his heirs had not died,

and afterward he died.

According to Abaye, that a fetus inherits through an inheritance that comes on its own, the first ones did not acquire, since it belonged to the fetus. But according to Rava, who holds that there is no acquisition for a fetus, here the first ones acquired, since they took possession with the intention to acquire.

And the Gemara attempts to prove that a fetus does not inherit:

Come and hear

a proof from what we learned:

A one-day-old infant inherits,

inherits his share of the property,

and

after he dies,

bequeaths,

he bequeaths his share to his paternal brothers, who inherit from him.

And the Gemara infers: specifically,

a one-day-old infant

who has already been born, but

a fetus does not.

It does not inherit, and therefore it does not bequeath, and this is difficult for Rav Sheshet.

And the Gemara rejects this:

Rav Sheshet said: It inherits

the one-day-old infant

from the property of the mother, to bequeath to the paternal brothers.

Thus, Rav Sheshet established the Mishna in a particular manner: that it concerns a case where the infant has brothers from a common father, but they were not born to the same mother, and therefore they have no rights to the property of the infant’s mother. Only if he has already been born and inherited his mother, and afterward he dies, do his paternal brothers inherit from him. But when he dies before his mother and afterward his mother dies, he does not inherit her in the grave in order to transfer the inheritance to his paternal brothers.

Therefore,

specifically a one-day-old infant,

who has already inherited his mother, and afterward dies, bequeaths to his paternal brothers,

but a fetus does not.

If his mother dies while he is still a fetus, he does not inherit from his mother while he is still a fetus, in order to bequeath his mother’s property to his paternal brothers.