Babylonian Talmud: Tractate Baba Bathra

Folio 142a

But let him reply to him [that our Mishnah speaks of the case] where he said, 'After she will have born [the child'!¹  — R. Huna follows his own view. For R. Huna said: [A child] does not acquire ownership²  even [where the father had said].³  'after she⁴  will have born [him]⁵  'For. [it was stated.] R. Nahman said: If a person conveys possession. through the agency of a third party. to an embryo.[the latter] does not acquire ownership. [If however, he said].]³  'After she will have born'.⁵  [the child] does acquire ownership. But R. Huna said: Even [where he said]. 'After she will have born'. [the child] does not acquire ownership. R. Shesheth however said: Whether he used the one, or the other expression.⁶  [the child] acquires ownership.

Said R. Sheshet: Whence do I derive this? — From the following:⁷  If a proselyte died⁸  and Israelites plundered his estate; and [subsequently] they heard that he had a son or that his wife was pregnant. they must return [whatever they have appropriated].⁹  [If]. having returned everything they subsequently heard that his son died or that his wife miscarried, he who took possession the second [time]¹⁰  has acquired ownership;¹¹  but [he who took possession] the first [time] has not acquired ownership. Now, if it could be assumed [that] an embryo does not acquire ownership why should they¹²  need to take possession a second time? They have, surely. already taken possession once!¹³

Abaye [however] said: An inheritance which comes [to one] under the ordinary laws of succession¹⁴  is different¹⁵  Raba said: There¹⁶  it is different,¹⁷  because at first¹⁸  they¹⁹  were really uncertain of the legality of their acquisition.²⁰  What [practical difference is there] between them?²¹  There is [a difference] between them [in the case] where a report was brought²²  that he²³  died, while [in fact] he was not dead. and after that he died.²⁴

Come and hear: 'A babe [who is] one day old inherits and transmits²⁵  [From this it follows that only] one [who is] one day old [may inherit]²⁶  but not an embryo!²⁷ — Surely R. Shesheth had explained²⁸  [this as meaning]: He²⁹  inherits the estate of his mother to transmit [it]³⁰  to his paternal brothers;³¹  hence, only [then when he is] one day old but not [when] an embryo.What is the reason?

1. So that a born child, not an embryo, would acquire possession. Hence, no objection could be raised from our Mishnah against R. Huna's statement.
2. Of a sum of money that his father had assigned to him before his birth, while still an embryo.
3. That the child shall acquire possession.
4. The mother.
5. The child to whom the assignment was made.
6. Lit., 'whether this or this'.
7. Lit., 'for it was taught'.
8. And, having left no children, his possessions become public property, and whosoever takes possession of them acquires ownership.
9. Since the son or the embryo. as legal heir. acquired the ownership of the estate as soon as the proselyte died.
10. After the death of the son or the miscarriage.
11. Since at that time there were no legal heirs
12. In the case where there was no born son, but an embryo.
13. The existence of the embryo if it could not acquire possession, should not have made any difference to their right of ownership. Consequently it follows, as R. Shesheth had stated, that an embryo does acquire possession.
14. Lit., 'of itself'.
15. Though an embryo may acquire ownership of an estate which is due to him as the legal heir, it does not follow that it can also acquire the ownership of a gift or any other assignment.
16. n the case of the estate of a proselyte.
17. From other cases of acquisition.
18. Before it was known whether there were any legal heirs.
19. Who seized the estate.
20. Lit., 'it was really loose in their hands at first'. While seizing the property, they were well aware that they might loose it at any moment should a legal heir appear. Hence, ownership cannot be acquired unless possession was taken after it had been ascertained that there were no legal heirs.
21. In either case, whether the reason is that given by Abaye or that of Raba, the first acquisition is invalid.
22. Lit., 'they heard'.
23. The legal heir.
24. In such a case, the plunderers, since they thought that the heir was dead, have from the very beginning taken definite and certain possession of the estate which, according to Raba, would consequently become their legal property. even if they did not take possession of it a second time. According to Abaye. however. their first acquisition is of no avail since the embryo was at that time the legal owner of the estate.
25. Nid. 44a. 'Ar. 7a.
26. Lit.. 'yes'.
27. Had an embryo been able to inherit, there would be no need to specify the limitation,'one day old'. Now, if an embryo cannot acquire possession of a legal inheritance how much less could it acquire possession of a gift! How, then, could R. Shesheth maintain that an embryo can acquire possession of a gift?
28. v.. Nid. loc. cit.
29. An infant who Is one day old.
30. When he dies.
31. Born from the same father and not the same mother.

— Because [the embryo] dies first¹  and no son in the grave²  may inherit from his mother to transmit [the inheritance] to his paternal brothers 'Do you mean to say that it³  dies first, surely there was a case when it made three convulsive movements?⁴  — Mar. son of R. Ashi, replied: Those were only [reflex movements] like those of the tail of the lizard which moves convulsively [even after it has been cut of].⁵

Mar, the son of R. Joseph, said in the name of Raba: This⁶  teaches⁷  that he⁸  causes a diminution in the portion of the birthright.⁹  [This] however [applies] only [to a child who is] one day old, but not to an embryo.¹⁰  What is the reason? — The All Merciful said, And they have born to him.¹¹  For [so] said Mar, the Son of R. Joseph. in the name of Raba: 'A son who was born after the death of his father does not cause a diminution In the portion of the birthright. What is the reason? The All Merciful said, And they shall have born to him,¹¹  which is not [the case here].¹²

Thus¹³  it was taught at Sura. At Pumbeditha. [however]. it was taught as follows:¹⁴  Mar. the son of R. Joseph, said in the name of Raba: A firstborn son who was born after the death of his father¹⁵  does not receive a double portion. What is the reason? The All Merciful said, He shall acknowledge,¹⁶  and, surely. he is not [alive] to acknowledge [him]. And the law is in accordance with all those versions which Mar the son of R. Joseph quoted in the name of Raba.

R. Isaac said in the name of R. Johanan: If possession was given to an embryo [through the agency of a third party]. it does not acquire ownership. And if objection should be raised from¹⁷  our Mishnah,¹⁸  [it may be replied that there it is different] because a person is favourably disposed towards his son.¹⁹

Samuel said to R. Hana of Bagdad: 'Go. bring me a group of ten [people] and I will tell you in their presence²⁰  [that] if possession Is given to an embryo [through the agency of a third party]. it does acquire ownership'. But the law is that if possession is given to an embryo [through the agency of a third party]. it does not acquire ownership.

Once a certain man said to his wife, 'My estate [shall belong] to the children that I shall have from you'. His eldest son²¹  came [and] said to him, 'What shall become of me?'²²  He replied to him, 'Go acquire possession as one of the [other] sons'.²³  Those²⁴  [can] certainly acquire no ownership.²⁵  since they are not yet in existence; has [however]. this lad²⁶  an [additional] share beside²⁷  the [other] sons,²⁸  or has the lad no [additional] share beside²⁷  the [other] sons? — R. Abin and R. Measha and R. Jeremiah say: The lad receives an [additional] share beside the [other] sons. R. Abbahu and R. Hanina b. Papi and R, Isaac Nappaha say: The lad receives no [additional] share beside the [other] sons.

R. Abbahu said to R. Jeremiah. 'Is the law in accordance with our view²⁹  or in accordance with yours?' He replied to him, 'It is obvious that the law' is in accordance with our view because we are older than you. and [that] the law' [can] not be according to your view because you are [only] juniors.' The other retorted, 'Does the matter then depend on age? [Surely] the matter depends on reason!' 'And what is the reason?' [R. Jeremiah asked.] 'Go to R. Abin,' [replied R. Abbahu.] 'to whom I have explained the matter

1. Before the mother.
2. I.e. after his death.
3. An embryo.
4. After the mother was dead.
5. Such movements are no signs of life.
6. The Mishnah of Niddah cited, wherein a child one day old is mentioned, implying the exclusion of an embryo.
7. Lit.. 'to say'.
8. A child who is one day old.
9. I.e., if there are, e.g.. two brothers exclusive of the child, the estate is divided not into three portions (two for the two ordinary portions of the two brothers and one for the birthright, but into four portions. Each brother, including the child, receives one such portion and the firstborn receives the additional fourth portion as his birthright. The firstborn thus receives, as the portion of his birthright, a quarter of the estate, and not, (as would have been the case if the child were excluded). a third.
10. An embryo. though receiving a portion of the estate, does not reduce the portion of the birthright. In the case mentioned, e.g., in the previous note. the estate would first be divided into three portions (as if the embryo did not exist) and the firstborn would receive as his birthright, one of these, i.e., a third of the estate. The remaining two thirds would then he divided into three equal shares, each of the three brothers receiving one, i.e., two ninths of the estate. The full portion of the firstborn would accordingly amount to 1/3 + 2/9 = 3/5) five ninths of the estate, while where the child was one day old, the firstborn's full portion would amount to half the estate only. I.e., (5/9 - 1/2 = 1/18), one eighteenth less.
11. Deut. XXI 15 This implies that, as regards the birthright, the children must have been actually born. An embryo cannot come under this category and is, therefore, regarded as non-existent in this respect.
12. The son having been born after his father's death. Thus, according to Mar the son of R. Joseph, it is possible to concede that an embryo may die after its mother and that consequently, as R. Shesheth maintained, it inherits her estate which it then transmits to its paternal brothers.
13. The version just given.
14. Lit., 'thus'.
15. I.e., where his widow bore twins or where he left two widows and both bore sons one of whom was the firstborn,
16. Deut. XXI, 17.
17. Lit., 'and if you will say'.
18. From which it might be inferred, as R. Nahman suggested supran that an embryo does acquire ownership.
19. Hence he wholeheartedly transfers ownership to the embryo. In the case of a stranger however, this principle is inapplicable.
20. To give the matter due publicity.
21. From his first wife.
22. Lit., of that man, i.e., himself.
23. That were to be born from the second wife
24. The future children who at the time of the assignment were not even in embryo. (
25. Of the estate, merely by virtue of the father's assignment.
26. The eldest son.
27. Lit., 'in place'.
28. When, in due course they inherit the estate by the right of succession would he, in addition to what is due to him as one of the sons, receive also a share by virtue of the special assignment made to him by his father?
29. Lit., 'us'.