Bava Batra 142a (קמב.) — the Talmud in English

But the Gemara still asks:

And let him say to him,

that Rav Huna should establish the Mishna

as referring to one who says, “When she gives birth,”

meaning that he grants the acquisition only after the child is born, whereas Rav Huna was speaking of one who grants it to him while he is still a fetus!? And we answer:

Rav Huna follows his own reasoning;

Rav Huna himself does not make this distinction.

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

even when he grants it after the child is born,

he does not acquire it.

The explanation is that since at present he cannot acquire it, it is impossible to grant it to him at a later time.

For Rav Naḥman said: One who grants an acquisition to a fetus

so that it should acquire it now,

does not acquire it.

But if he says

“When she gives birth,” he acquires it. For

although it is impossible for a fetus to acquire something today, it is considered somewhat as though it already exists in the world; therefore, it is possible to grant it to him for the future, when he is born. But if his wife is not pregnant, then even if he says that he grants the acquisition to her fetus when she gives birth, it is ineffective, because the intended acquirer does not yet exist.

And

if

Rav Huna

disagreed with Rav Naḥman and

said, “Even when he says, ‘When she gives birth,’ he does not acquire it,”

then, in conclusion, Rav Huna’s words are not consistent with the Mishna.

The Gemara presents a third opinion concerning one who grants an acquisition to a fetus:

And Rav Sheshet said: Both this one,

one who grants the acquisition to the fetus now,

and this one,

one who grants it to him when she gives birth,

acquires it.

Rav Sheshet said: From where do I say this?

What is my source that it is possible to grant an acquisition to a fetus?

As it was taught:

from what we learned in a beraita:

If a convert died,

and left property, which is now ownerless,

and Jews seized his property,

taking possession of the property through an act of acquisition in order to acquire it,

and

afterward

they heard that he had a son

who inherits his property, and their taking possession of his property had been based on an error,

or

they heard

that his wife was pregnant,

and the fetus would inherit his property,

they are obligated to return

the property they had taken possession of.

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 whoever

took possession a second time,

after the heir had died,

acquired

the property,

but the first time,

the one who had taken possession before the heir died

did not acquire it,

since at that time the property belonged to the heir.

Rav Sheshet infers from here:

And if it should enter your mind

that

a fetus does not acquire,

because a fetus cannot acquire property,

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

Why did they need to take possession again when his wife had been pregnant? After all,

they had already taken possession once,

and the acquisition should not have been nullified so long as the child had not been born.

Rather, it is proven from here that a fetus can acquire property; therefore, it was necessary to take possession a second time after the fetus’s death.

Abaye said:

Abaye rejects Rav Sheshet’s proof:

Inheritance that comes automatically is different.

An inheritance that comes on its own differs from property that must be granted to a fetus.

There is another rejection of Rav Sheshet’s proof:

Rava said: There, it is different,

the beraita differs from Rav Sheshet’s ruling,

as initially they held it loosely in their hands.

At first they took possession in a doubtful manner, because they were concerned that the convert might have heirs. Therefore, they needed to take possession again, since their original intention to acquire was deficient; but in truth, it is possible that a fetus cannot acquire property.

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 that he had died,

meaning that the first taking of possession occurred after they heard that the heirs had died, and therefore they intended a complete acquisition. It was indeed based on an error,

but he did not die,

as it subsequently became clear that his heirs had not died,

and afterward he died.

According to Abaye, a fetus inherits through inheritance that comes automatically, so the first people did not acquire the property, since it belonged to the fetus. But according to Rava, who maintains that a fetus cannot acquire property, the first people acquired it, since they had taken possession with the intention of acquiring it.

The Gemara attempts to prove that a fetus does not inherit:

Come and hear

a proof from what we learned:

A child who is one day old inherits,

he inherits his share of the property,

and

after he dies,

bequeaths,

he transfers his share by inheritance to his paternal brothers, who inherit from him.

The Gemara infers: Specifically,

a child who is one day old,

who has already been born; but

a fetus does not.

He does not inherit, and therefore cannot bequeath, which is difficult for Rav Sheshet.

The Gemara rejects this:

Rav Sheshet said that he inherits

the child who is one day old

from his mother’s property, in order to bequeath it to his paternal brothers.

Rav Sheshet therefore established the Mishna in a particular manner: It is speaking of a child who has paternal brothers, but they were not born to the same mother, and therefore they have no rights to their mother’s property. Only if the child has already been born and inherited from his mother, and then dies, do his paternal brothers inherit from him. But if he dies before his mother, and afterward his mother dies, he does not inherit from her in the grave in order to transfer his mother’s inheritance to his paternal brothers.

Therefore,

specifically a child who is one day old,

who has already inherited from his mother and then died, can bequeath the property 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 still a fetus in order to bequeath his mother’s property to his paternal brothers.