Yevamos - Daf 67
- עבדי צאן ברזל who belong in part to an עובר may not eat terumah
The next Mishnah states:בת ישראל שניסת לכהן – A bas-Yisoel (or a bas Levi) that is married to a Kohen, ומת והניחה מעוברת – and he dies and leaves her pregnant, לא יאכלו עבדיה בתרומה מפני חלקו של עובר– her tzon-barzel slaves may not eat terumah on account of the fetus’ share in the slaves, שהעובר פוסל ואינו מאכיל – for a fetus disqualifies others from eating terumah and it does not entitle others to eat terumah, דברי רבי יוסי – these are the words of Rebbe Yose. Rashi explains the case is that she already has other children from the Kohen, which entitles her to continue to eat. The reason that the tzon-barzel slaves may not eat is that they are now considered the property of the heirs, and since the unborn child is also an heir, he does not entitle them to eat. Rabbah said Rebbe Yose’s reason is because he holds עובר במעי זרה זר הוא – a fetus in the womb of a zar is a zar and does not entitle the slaves to eat. Rav Yosef said that Rebbe Yose holds ילוד מאכיל שאין ילוד אינו מאכיל – a born Kohen entitles others to eat terumah while an unborn Kohen cannot entitle others to eat terumah. The nafka minah between the two explanations is a fetus in the womb of a Koheness. According to Rabbah, the slaves would be entitled to eat terumah since she is not a zarah, whereas according to Rav Yosef they could not eat because they belong in part to a non-born Kohen.
- Machlokes whether המזכה לעובר קונה
Rav Yehudah said in the name of Shmuel: These are the words of Rebbe Yose, but the Chochomim disagree and say: יש לו בנים אוכלים משל בנים – If the deceased Kohen has other children aside from the fetus, the slaves may eat terumah on account of the children. If he has no other children, the slaves may eat on account of the Kohen’s brothers. If he has no brothers, אוכלים משום משפחה כולה – they eat terumah on account of the other relatives in the Kohen’s family. Rashi explains that they hold עובר לית ליה זכיה – a fetus does not have a right in the deceased father’s estate as an heir, and therefore does not disqualify the tzon-barzel slaves from eating terumah. The Gemara clarifies that Shmuel holds like Rebbe Yose that המזכה לעובר קונה – an עובר can acquire ownership of assets prior to its birth, and therefore he inherits a portion of the עבדי צאן ברזל, preventing them from eating terumah.
- Rebbe Shimon bar Yochai’s position of זכרים יאכלו
The Gemara brought a Baraisa which taught that Rebbe Shimon bar Yochai says: זכרים יאכלו – That if there are any male offspring among the surviving children the slaves may eat terumah. Rashi explains that Rebbe Shimon bar Yochai holds like Rebbe Yose that an עובר acquires inherited property, but even if there is only one surviving male child, the slaves may continue to eat, even though the עובר is considered an heir as well. When the Gemara asks how Rebbe Shimon bar Yochai could discount the presence of the עובר, it answers אין חוששין למיעוטא – we do not concern ourselves with the minority. Rashi explains that there is a fifty percent possibility that the fetus is a female, who will not inherit along with the brothers, and even if it is a male, there exists the possibility that the woman will miscarry, and that the fetus will never acquire these slaves. Alternatively, it could be that Rebbe Shimon bar Yochai does hold we do concern ourselves with the minority, but the slaves may still eat terumah, דעבדינן ליה תקנתא – for we can remedy the situation and have Beis Din appoint an אפוטרופוס, a guardian, who can choose other assets for the fetus to inherit, leaving the עבדי צאן ברזל to be inherited by the living brothers.
