תלמוד על בבא בתרא 283:4

Samuel said, one can transfer benefits to fetuses; Rebbi Eleazar said, one cannot transfer benefits to fetuses²⁴The question whether an unborn child can inherit and receive gifts is discussed in Babli Baba Batra141b/142a, Yerushalmi Baba Batra 9:1 in a similar way. The opinion of R. Eleazar is attributed to (the slightly older) Rav Huna in the Babli.. Rebbi Yose²⁵R. Yose, the fifth generation Amora, colleague of R. Jonah. In ms. A, the name appears as ר׳ יונסה, a confluence of both names. said, even though Samuel said, one can transfer benefits to fetuses, he agrees that most of [the fetus’s] head and body must come out alive²⁶In Babli Baba Batra 142a, that a gift to a minor is acquired only at the time of birth is the opinion of Rav Naḥman, Samuel’s foremost student in matters of civil law.. That is the Mishnah, “if somebody performed ḥalîṣah with his sister-in-law but she turns out to have been pregnant,” as you say here, retroactively ḥalîṣah did not touch her, so retroactively the child is a son and receives the benefit²⁷After birth, the gift is valid from the time it was given but it is not acquired (and cannot be invested by the baby’s trustees) before birth.. There, we have stated: “If somebody says, if my wife gives birth to a male, he shall take a mina²⁸100 drachmae. In the parallel, Baba batra 141b, only the male baby is mentioned. In Yerushalmi Baba batra9:2, edited by a different group, and Tosephta Baba batra 9:5, a different text, the male gets double the amount of the female., if she gave birth to a male, [the male baby] will take a mina. If a female, 200 [drachmae], if she gave birth to a female, that one will take 200.” Rebbi Eleazar said, this is only for his son, but not for any other. Rebbi Yasa²⁹It seems here that instead of ר׳ יוסה (in both mss.) one should read ר׳ יסה; he is R. Yasa (Assi), contemporary of R. Eleazar. said, even any other. In the opinion of Rebbi Eleazar, only from a sick person, but not a healthy one; only movables but not real estate³⁰The rules of emergency wills, which are much more lenient than those of standard wills, are detailed in tractates Giṭṭin and Baba batra. Real estate can be acquired only if all rules are followed; since the fetus cannot perform the act of acquisition, no real estate can be transferred to him on the death bed.. A baraita disagrees with Rebbi Eleazar. “³¹A similar baraita in Babli Baba batra 142a. If a proselyte has no children after he became Jewish, his estate has no heirs; so anybody who wants to may take it. It is assumed here that if the deceased had a wife, he died without a will and she was not present since either way she immediately could lay claim to the entire property. Therefore, it is stated that only later it became known that the widow was pregnant. If a proselyte died and Jews plundered his estate, then it became known that he had a son overseas or that [his wife] was pregnant, everybody is required to return [what he took].” What does Rebbi Eleazar do with this³²The unborn baby inherits his father’s estate. This is a biblical decree (Num. 27:8).? There is a difference because it is his child. The second part [of the Mishnah] disagrees with Samuel in the interpretation of Rebbi Yose: “If they returned everything and then the son died³³And again there are no legal heirs. or she had a miscarriage³⁴If a fetus cannot acquire, then the first group of people who had returned what they had taken, simply should be given back what they had returned. If a fetus can acquire, then the first group took the possession illegally and they should not be considered as owners., anybody who takes first after that acquires it.” The first group did not acquire. Even at the beginning they should not have acquired! Did not Rebbi Yose say, even though Samuel said, one can transfer benefits to fetuses, he agrees that most of [the fetus’s] head and body must come out alive. He was not living³⁵In the interpretation of R. Yose, the return was in error and the people who took first should take their property back.! Rebbi Isaac bar Eleazar³⁶In Baba batra 9:1 this is an anonymous statement of the editors. In ms A: R. Eleazar. Cf. Berakhot 7:117. said, because of abandoning³⁷The owners had given up hope to recover their property. Then they had given up ownership. Loss of ownership by giving up hope of recovery is the topic of Baba meṣi‘a 2.. The rabbis of Caesarea, R. Ḥiyya bar Abba, Rebbi Abba bar Natan³⁸A Babylonian in Galilee, older than R. Ḥiyya bar Abba, student of Rav Huna. The next name, R. Nathan, seems to be corrupt; possibly one should read “R. Eleazar”. Unfortunately, two lines are missing here in ms. A.: Rebbi Natan changed his mind because of that Mishnah: “If a male, a mina, if a female, 200.” Is a female in this situation not like an outsider³⁹Since in the presence of sons she does not inherit (but can claim support from the estate and a dowry).? Bar Qappara stated: “On transfers benefit to a one day old.⁴⁰He denies that an unborn child can inherit or receive gifts; cf. Mishnah Niddah 5:3.”