Bava Basra - Daf 142
- People acquired a deceased גר’s property, but heard his wife was pregnant, and then she miscarried
Rav Sheishess says that an עובר can acquire property and quotes a Baraisa as his source: גר שמת ובזבזו ישראל נכסיו – if a convert died and Jews [acquired] his possessions, and they heard he has a son or a pregnant wife, they are obligated to return the property, since it was not hefker. If they returned it and heard that the son died, or his wife miscarried, החזיק בשניה קנה – then the one who acquired the second time (after the child’s death) acquires, but the first kinyan is ineffective. But if an עובר does not acquire, then their first acquisition (while he was viable) should have been effective!? Abaye answers: ירושה הבאה מאיליה שאני – inheritance, which comes automatically, is different, and is acquired even by an עובר, but one cannot transfer property to an עובר. Rava answers that in the Baraisa’s case, רפוי מרפיאן בידייהו מעיקרא – [the גר’s possessions] were weak in their hands. Because they were uncertain if the גר had a child, they lacked the full confidence required for their kinyan to be effective. A practical difference between these answers is if the kinyan was made after hearing his child had died, but the child actually died afterwards.
- Laws of bechor do not apply to an עובר
Rav Sheishess was challenged from a Mishnah: תינוק בן יום אחד נוחל ומנחיל – a one-day-old baby inherits and bequeaths, which implies that an עובר does not inherit, and certainly cannot acquire gifts!? After the Gemara explains how Rav Sheishess interpreted the Mishnah, it quotes two versions of how Rava explained it: (1) The Mishnah means that a baby is ממעט בחלק בכורה – reduces the firstborn’s extra share (because the brothers inherit from him, not the father). This does not apply to an עובר, because the passuk says "וילדו לו" – and they bear to him, requiring that the child was born during the father’s lifetime. (2) Alternatively, the Mishnah refers to a bechor’s inheriting his double portion (if another child is born after him), teaching that בכור שנולד לאחר מיתת אביו אינו נוטל פי שנים – a bechor who is born after his father’s death does not take a double portion, because the passuk says "יכיר" – he shall recognize, which excludes a bechor born after the father’s death. The halachah follows both versions of Rava’s interpretation.
- If an existent child acquires a gift where other (future) recipients do not
A man told his wife, “My possessions are given to the future children I have from you.” His older son from another wife protested that nothing would be left for him, and the father responded: זיל קני כחד מברא – “Go acquire a share like one of the sons I will have from my second wife.” The gift to the future children is not effective, because they did not exist then (and although Rebbe Yochanan concluded that one can gift his own עובר, this man’s wife was not yet pregnant). Amoraim debate if the older child acquired a share through the father’s gift (in addition to his inheritance together with the future sons). Some say: אית חולק לטליא במקום בניא – the child has a share in the gift given together with the future sons (although they do not), and Rebbe Abahu and others say he does not. Rebbe Abahu explained: אילו א"ל קני כחמור מי קני – if he had told [his son], “Acquire like the donkey acquires,” would he acquire anything? Since a donkey cannot acquire, one who acquires “like” it acquires nothing. Here too, since the future children cannot acquire, this son does not either.
