1) GIVING OWNERSHIP TO A FETUS

QUESTION: The Gemara relates an incident in which a man said to his pregnant wife, "My property is hereby given to the fetus you are carrying." Rav Huna ruled that the gift was invalid because a fetus cannot acquire property (since it is not considered to have come into the world yet). The Gemara challenges Rav Huna's ruling from the Mishnah (140b) which 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 presumably is mistaken). The Gemara suggests several ways in which Rav Huna could explain the Mishnah, but it refutes them.

The Gemara then quotes the Seifa of the Mishnah which states that when a man says, "Whatever my wife will give birth to (a boy, girl, or Tumtum) shall receive a Maneh," the gift takes effect and the child receives a Maneh when born. The Gemara suggests that the Seifa may refer to a case in which the father says, "l'cheshe'Teled" -- for when she gives birth. That is, his intention is not to give the Maneh to the fetus immediately, but rather after the child is born. If the Mishnah may be understood in this way, then it does not imply that a fetus can be Koneh.

The Gemara answers that Rav Huna cannot explain the Mishnah in 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 (and says that the gift should be given 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, disagrees and says that a gift given with the stipulation of "l'cheshe'Teled" does take effect. The RASHBAM (DH l'cheshe'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 agrees that the Kinyan works because both the object exists and the fetus exists. The one who gives the gift, though, must phrase the gift in the appropriate way ("l'cheshe'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 gift in such a manner? If the fetus is considered in existence already, then it should be able to be Koneh the gift immediately. It must be that even though the fetus is in existence, it lacks the ability to acquire ownership, to be Koneh. However, if the fetus cannot be Koneh immediately for this reason, then why should it be Koneh later, when it is born? At the time that the statement of the gift is made, the fetus is not fit to be Koneh. This should be comparable to a case in which a man says to a woman (who is married to a different man) that he is 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 at the time of his statement 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 Kidushin to a different man cannot take effect 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 cannot take effect later, because an essential act has not been done. In the case of a fetus, though, there is no essential act missing; rather, the only thing that must take place is the child's birth, and the birth is something that inevitably will occur with the passage of time. Therefore, a person can be Makneh a gift to a fetus 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, and KETZOS HA'CHOSHEN 210:2.) (I. Alsheich)

142b----------------------------------------142b

2) A PERSON FEELS ESPECIALLY CLOSE TO HIS OWN SON

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 although the Mishnah (140b) says that a fetus can be Koneh, the Mishnah refers only to a gift that a father gives to his unborn child, and "Da'ato Shel Adam Kerovah Etzel Beno" -- a man feels close to his own son. Thus, the Mishnah does not contradict the general rule that a fetus cannot acquire anything.

How does the fact that a person feels close to his own son account for the efficacy of a Kinyan? How does it allow a Kinyan to take place to a "Davar she'Lo Ba l'Olam" (the fetus)?

The Acharonim give three basic reasons as to why, in general, a Kinyan cannot be made on an item that has not yet come into the world ("Davar she'Lo Ba l'Olam"), or to a recipient who has not yet come into the world ("l'Davar she'Lo Ba l'Olam"). One reason is that the Makneh (the person who transfers the ownership of the item to the recipient) or the Koneh (the person who acquires the item) does not have absolute resolve ("Gemirus Da'as") when the item (or recipient) does not yet exist. This is the simple explanation of the Gemara in Bava Metzia (16a) which says that the reason a person cannot be Koneh a "Davar she'Lo Ba l'Olam" is that "Lo Samchah Da'atei" -- "he did not have full intention." (See RA'AVAD to Terumos 8:4.)

Others explain that the Makneh does not have full ownership of the item (since it does not exist), and it therefore is not considered to be within his domain to allow him to transfer its ownership. Likewise, the Koneh cannot acquire its ownership because it does not yet exist.

A third explanation 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 or the recipient does not yet exist, it is understandable that the logic of "Da'ato Shel Adam Kerovah Etzel Beno" can make the Kinyan take effect. Since a person feels especially close to his own son, he will have absolute resolve to be Makneh an object to his son, even if the object does not yet exist or his son has not yet been born.

According to the other two explanations, however, it is difficult to understand how the logic of "Da'ato Shel Adam Kerovah Etzel Beno" causes the Kinyan to work. If the problem with a "Davar she'Lo Ba l'Olam" is that the Makneh does not have the requisite ownership of the object in order to make a Kinyan, or that the Kinyan itself cannot take effect when the object does not exist, then the Makneh's feelings toward his son should be irrelevant.

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

According to the third understanding for why a Kinyan cannot take effect on a "Davar she'Lo Ba l'Olam," it is possible to suggest an explanation for why the Kinyan takes effect in the case of the Gemara here. In the case of the Gemara here, the problem is not that the object being transferred does not yet exist; rather, the recipient of the Kinyan (the child) does not yet exist. If a person cannot acquire (or give over) a "Davar she'Lo Ba l'Olam" because a Kinyan cannot take effect on a nonexistent item, that would not be a problem in this case, since the object does exist (and only the recipient does not yet exist). Since the object is "in the world," a Kinyan can take effect on it. In general, even the Acharonim who take the third approach would have to explain that when the recipient does not yet exist, the reason why the Kinyan cannot take effect is that the owner does not have absolute resolve to give the item to a person who does not exist. 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, can the second approach of the Acharonim be reconciled with the Gemara here? According to the second approach of the Acharonim, a person cannot fully own an object that has not yet entered the world. Similarly, a person who has not yet entered the world cannot make a Kinyan even on an object that does exist, even if the Makneh has absolute resolve to give it to him. How, then, can the Gemara state that a person can be Makneh an item to his unborn son due to the logic of "Da'ato Shel Adam Kerovah Etzel Beno"? (See TOSFOS HA'ROSH as cited by the Shitah Mekubetzes, NIMUKEI YOSEF to Bava Metzia 66a, NODA B'YEHUDAH EH 2:54, KOVETZ SHI'URIM #276, and YOSEF DA'AS here.)

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

According to this approach, when an object exists but the recipient does not exist, the Kinyan can take effect, since the intention of the Makneh is the primary force behind the Kinyan, and since the object already exists, the Makneh has full ownership to be Makneh it. The fact that the recipient cannot acquire full ownership over the item (because he does not yet exist) 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. The only possible problem is that the Makneh might not have "Gemirus Da'as" to be Makneh the object to someone who does not yet exist. This problem is resolved by the logic of "Da'ato Shel Adam Kerovah Etzel Beno" when the recipient is his son. (I. Alsheich)

3) "THE HALACHAH IS LIKE US BECAUSE WE ARE OLDER"

QUESTION: The Gemara relates an incident 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 a certain son from his first wife should receive an equal portion together with the future children of his second wife. The Gemara inquires 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 (the Rashbam explains that in such a case the total amount of property would be divided by the total number of sons, and that son would receive one of those portions as a gift, after which the remaining property would be divided as an inheritance among all the sons), or whether he receives only one portion as a Yerushah but not an additional portion 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 why the older son should not receive an additional portion as a gift.

Why, in the first place, did Rebbi Avahu ask Rebbi Yirmeyah, "Does the Halachah follow our opinion, or does the Halachah follow your opinion?" What was Rebbi Avahu's doubt, if he knew (as he stated later) that his opinion was supported by more logical reasoning? Moreover, on what basis did Rebbi Yirmeyah state 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 sage over another, there are two ways to explain the ruling: (a) the view of that sage was found to be more logical, and the Gemara reasoned that the Halachah follows his opinion (such as in disputes between Rebbi Meir and Rebbi Yehudah, wherein -- the Kovetz Shi'urim suggests -- all of the issues of dispute were researched and the opinion of Rebbi Yehudah was always found to be more logical, and therefore a principle was established that the Halachah always follows Rebbi Yehudah when he argues with Rebbi Meir); or (b) there was no way to determine whether the view of that sage was more logical with regard to this particular issue, but the Halachah was determined based on the fact that this sage was more reliable ("Bar Samcha") to establish the Halachah in accordance with his view, and therefore the Halachah follows his opinion.

Accordingly, this is what Rebbi Avahu asked Rebbi Yirmeyah: in cases in which it is not possible to examine the Halachah itself to determine which opinion is correct, which of the two of them is more reliable for the Halachah to be decided in accordance with his opinion? In such cases it is necessary to determine which of the sides in the dispute is more of a "Bar Samcha" so that the Halachah may decided in accordance with his opinion.

Rebbi Yirmeyah responded that because of his advanced age, he was considered more reliable to decide the Halachah. Rebbi Avahu argued that such a matter does not depend on age. (I. Alsheich)

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