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Bava Basra, 142

1) GIVING OWNERSHIP TO A FETUS

QUESTION: The Gemara discusses a case in which a man said to his pregnant wife, "My property is hereby given to the fetus with which you are pregnant." Rav Huna rules that it is a case of attempting to grant ownership to a fetus, and a fetus cannot acquire ownership (since it is not considered to have come into the world yet). The Gemara questions Rav Huna's ruling from our Mishnah (140b) which clearly implies that a fetus *can* acquire ownership of a gift. Rav Huna answers that he found no Tana who could be the author of the Mishnah (and thus it is presumably mistaken). The Gemara suggests several ways in which Rav Huna could explain the Mishnah, but it refutes them.

The Gemara then says that perhaps when the Mishnah (in the Seifa) says that when the father says, "Whatever my wife will give birth to (a boy, girl, or Tumtum) shall receive a Maneh," the gift takes effect and the child receive a Maneh when born, it is referring to a case when the father said, "l'ch'she'Teled" -- for when she gives birth. That is, he is not giving the Maneh to the fetus now, but rather he is saying that the Maneh should be given to the child after he is born, and thus the Mishnah is *not* saying that a fetus can be Koneh.

The Gemara answers that Rav Huna cannot explain the Mishnah this way, because Rav Huna himself says that even such a Kinyan does not work, since at the time that the man makes the Kinyan (saying that he will give the gift to the child after the child is born), the fetus is not fit to acquire it and thus the gift does not take effect.

Rav Nachman, however, argues, and says that saying "l'ch'she'Teled" *does* work. The RASHBAM (DH l'ch'she'Teled Kanah) points out that even though Rav Nachman himself maintains that a person *cannot* be Makneh a "Davar she'Lo Ba l'Olam," here Rav Nachman maintains that the Kinyan works because the object being acquired exists, and the fetus also exists and is considered to be in the world already. The one who gives the gift, though, must phrase the gift in the appropriate way ("l'ch'she'Teled") so that it refers to when the fetus is *completely fit* to acquire ownership (i.e. after it is born).

Why, though, must he phrase the giving of the gift in such a manner? If the fetus is considered to be in the world now, then it should be able to be Koneh the gift now! Rather, it must be that even though the fetus is in the world now, it is lacking the ability to acquire ownership, to be Koneh. However, if this is the reason why it is not Koneh now, then why should it be Koneh later, when it is born? At the time that the giving of the gift was expressed, it was still not fit to be Koneh! This is comparable to the case in which a man says to a woman (who is married to a different man) that he is being Mekadesh her for after she gets divorced. In such a case, even though the woman is "in the world," she does not become Mekudeshes to him after her divorce, because right now she is not fit to become Mekudeshes to him! Why, then, is the case of a fetus different? (KOVETZ SHI'URIM)

ANSWER: The KOVETZ SHI'URIM answers that in the case of a woman who is presently married the reason why Kidushin to a different man cannot take effect is because there is an essential action that is missing ("Mechusar Ma'aseh") -- the act of Gerushin, divorce, from the present husband. Therefore, the Kidushin that a second man gives her now cannot take effect later, because an essential act is missing. In the case of a fetus, though, there is no essential act missing; rather, the only thing that is missing is the child's birth, and the birth is considered something that will inevitably occur with the passage of time. Therefore, one *can* be Makneh a gift to the fetus *now* for after it is born. (See Kovetz Shi'urim for a question on this approach; see also CHIDUSHEI HA'GAON RABEINU CHAIM, Hilchos Ishus 7:16; KETZOS HA'CHOSHEN 210:2) (I. Alsheich)

142b

QUESTION: Rebbi Yitzchak says in the name of Rebbi Yochanan that "ha'Mezakeh l'Ubar Lo Kanah" -- if a person attempts to give ownership of an object to a fetus, the fetus does not acquire it (because a fetus is not considered to be in the world yet). Rebbi Yitzchak adds that the reason why our Mishnah (140b) does not contradict this even though it says that a fetus *can* be Koneh is because our Mishnah is discussing a gift being given by a father to his unborn child, and "Da'ato Shel Adam Kerovah Etzel Beno" -- a man feels close to his own son.

How does this reason -- that a person feels close to his own son -- help to make the Kinyan take effect for a "Davar she'Lo Ba l'Olam" (the fetus)?

We find that there are three basic reasons given in the Acharonim for why, in general, a Kinyan does not take effect on an item that has not yet come into the world ("Davar she'Lo Ba l'Olam"), or to someone who has not yet come into the world ("l'Davar she'Lo Ba l'Olam"). The first reason is that the Makneh (the person transferring the ownership of the item to someone else) or the Koneh (the person acquiring ownership of the item) does not have absolute resolve ("Gemirus Da'as") when the item (or recipient) does not yet exist in the world. This is the simple understanding of the Gemara in Bava Metzia (16a) when it says that the reason a person is not be Koneh a "Davar she'Lo Ba l'Olam" is because "Lo Samchah Da'atei" -- "he did not have full intention." (See RA'AVAD to Terumos 8:4.)

Others explain that the reason is because the Makneh does not have full ownership of the item (since it does not exist), and thus it is not considered to be within his domain such that he may give it to someone else. Likewise, the Koneh cannot acquire ownership because it does not yet exist.

A third way of explaining the problem with being Koneh a "Davar she'Lo Ba l'Olam" is that the Kinyan itself has nothing upon which to take effect, since the item is not in existence.

According to the first reason -- that a person does not have absolute resolve to make a Kinyan when the item does not yet exist, or when the recipient does not yet exist -- we can understand how this logic of "Da'ato Shel Adam Kerovah Etzel Beno" works to make the Kinyan take effect. Since the person feels especially close to his own son, he *does* have absolute resolve to be Makneh the object to his son, even if the object, or if his son, does not yet exist in the world.

According to the other two explanations, though, how does this logic of "Da'ato Shel Adam Kerovah Etzel Beno" help make the Kinyan work? It does not matter what the Makneh thinks or feels towards his own son -- it is not in his power to be Makneh an object that does not yet exist, either because his ownership of the object is lacking, or because the Kinyan itself cannot take effect in such a situation!

Indeed, the TOSFOS HA'ROSH (cited by the Shitah Mekubetzes) proves from here that the reason why a Kinyan does not work for a "Davar she'Lo Ba l'Olam" is only because of the lack of "Gemirus Da'as," absolute resolve, of the Makneh.

According to the third reason for why a Kinyan cannot take effect for a "Davar she'Lo Ba l'Olam," we can also understand how the logic of "Da'ato Shel Adam Kerovah Etzel Beno" helps make the Kinyan take effect in the case of our Gemara. In the case of our Gemara, the problem is not that the object being transferred does not yet exist, but rather the *recipient* (the child) does not yet exist. Since the problem with transferring ownership of a "Davar she'Lo Ba l'Olam," according to this explanation, is because of the inability for a Kinyan to take effect on a non-existent item, this is *not* a problem in our case, where the object *does* exist in the world (and only the recipient does not yet exist). Since the object is in the world, the Kinyan can take effect on it. The only problem is that when the recipient does not yet exist, the owner does not have absolute resolve to give it to a non-existent person. However, when the recipient is his own unborn son, then he *does* have absolute resolve to be Makneh it to him and the Kinyan takes effect.

How, though, are we to understand the second explanation in light of our Gemara? According to the second explanation, one cannot be Makneh an object that has not yet entered the world because he does not fully own the object. Similarly, when the object is in the world but the recipient is not in the world, the recipient cannot fully own the object to make a Kinyan on it! It does not matter that the Makneh has absolute resolve to give it to him! How, then, does the logic of "Da'ato Shel Adam Kerovah Etzel Beno" help? (See TOSFOS HA'ROSH in SHITAH MEKUBETZES, NIMUKEI YOSEF Bava Metzia 66a; NODA B'YEHUDAH EH II #54; KOVETZ SHI'URIM #276, and YOSEF DA'AS here.)

ANSWER: A number of Acharonim (TESHUVOS CHEMDAS SHLOMO, cited by IMREI BINAH in Kuntrus ha'Kinyanim #2; HA'GAON REBBI SHIMON SHKOP) posit that the primary force in effecting a Kinyan is the intention of the Makneh. The Koneh, the recipient, merely receives the object from the Makneh. The Makneh is the one who effects the actual transfer of ownership.

According to the approach of these Acharonim, when an object exists in the world but the recipient does not exist, the Kinyan *can* take effect, since the primary force in making the Kinyan is the Makneh, and since the object is in the world he has full ownership over it to be Makneh it. The fact that the recipient cannot have full ownership over the item because he himself does not yet exist in the world is not a factor that prevents the Kinyan from taking effect, since the Kinyan depends primarily on the Makneh's ability to transfer the object and not on the Koneh's ability to acquire it. Since the only problem is that he might not have "Gemirus Da'as" to be Makneh the object to someone who does not yet exist, this is solved by the logic of "Da'ato Shel Adam Kerovah Etzel Beno" when the recipient is his son. (I. Alsheich)

QUESTION: The Gemara discusses a case in which a man allocated his property to the children who would be born to him, in the future, from his second wife. He then said that his son from his first wife should receive an equal portion together with the future children of his second wife. The Gemara questions whether later, when the father dies, the older son receives a portion as a gift in addition to the portion that he receives as his inheritance (this is done, the Rashbam explains, by dividing the property among the total number of sons and then giving one of those equal portions to the older son and then dividing the rest among all of the sons and giving it to them as their inheritance), or whether he only receives a portion as a Yerushah but not as a gift (because his gift was compared to the gift given to the unborn children, which does not take effect).

Rebbi Avin, Rebbi Meyasha, and Rebbi Yirmeyah ruled that the older son *does* receive an additional portion as a gift. Rebbi Avahu, Rebbi Chanina bar Papi, and Rebbi Yitzchak Nafcha ruled that he does *not* receive an additional portion as a gift.

The Gemara relates that Rebbi Avahu asked Rebbi Yirmeyah, "Does the Halachah follow our opinion, or does the Halachah follow your opinion?"

Rebbi Yirmeyah answered, "It is obvious that the Halachah follows our opinion, because we are older than you, and the Halachah does not follow your opinion, because you are young."

Rebbi Avahu retorted, "Does the matter depend on who is older? It depends on [whose] reasoning [is more logical]!" and he proceeded to explain the reasoning for why the older son should not receive an additional portion as a gift.

What was Rebbi Avahu's question to Rebbi Yirmeyah in the first place, "Does the Halachah follow our opinion, or does the Halachah follow your opinion?" What was Rebbi Avahu's doubt, if he knew (as he expressed later) that his opinion was supported by more logical reasoning? In addition, what did Rebbi Yirmeyah mean when he said that the Halachah follows his opinion "because we are older than you?"

ANSWER: The KOVETZ SHI'URIM explains that whenever the Gemara rules in favor of one opinion over another opinion, there are two ways to explain the ruling: (a) it is either because in all other instances of a Machlokes between these two sages, the opinion of one of them was consistently found to be more accurate in its reasoning and logic, and thus a rule was established that the Halachah should always follow that sage's opinion (such as in cases of Machlokes between Rebbi Meir and Rebbi Yehudah, in which all of the issues of dispute were researched and the opinion of Rebbi Yehudah was always found to be more Halachicly logical, and thus a principle was established that the Halachah always follows Rebbi Yehudah when he argues with Rebbi Meir); or (b) there was actually no way to determine whether the view of one sage was more logical than the view of the other in this particular issue, but rather the Halachah was determined based on the fact that one sage was more reliable ("Bar Samcha") for establishing the Halachah in accordance with his view, and therefore the Halachah always follows him.

Accordingly, this is what Rebbi Avahu was asking Rebbi Yirmeyah: which one of us is more fit to be relied upon l'Halachah, for cases in which it is not possible to determine which opinion is correct by examining the Halachah itself, and thus one opinion must be followed merely based on who said it?

Rebbi Yirmeyah responded that because of his advanced age, he is more fit to be relied upon when deciding the Halachah. Rebbi Avahu argued and said that such a matter does not depend on age. (I. Alsheich)