י״ט בסיון ה׳תשע״ז (June 13, 2017)

Bava Batra 142a-b: A Gift to the Unborn

According to Jewish law, can a gift be given to an unborn child?

As we learned on yesterday’s daf, from the simple reading of our Mishna, it would appear that a gift can be given to an unborn child. Nevertheless, the Gemara on today’s daf clearly rules that ha-mezakeh le-ubar lo kanah – that when someone attempts to give a gift to an unborn child – the kinyan, the act of ownership – does not take effect. How can this ruling be reconciled with the Mishna that allows a father to give gifts to his unborn children? The Gemara explains that the case in our Mishna is unique because da’ato shel adam kerovah etzel beno – a person’s thoughts are particularly close regarding his son.

From the Rashbam’s commentary it appears that he interprets this answer as meaning that the problem with an unborn child taking possession of gifts does not stem from a difficulty with the kinyan, rather its source is the inability of the person giving the present to have sufficient da’at makneh – he cannot possibly have full intent to give the gift if the intended recipient is not yet in this world.

Another approach is suggested by Rav Hai Gaon, the Rambam, Ritva, and others. They explain the case of our Mishna to be referring specifically to a case of a shekhiv me-ra – someone on his deathbed – who is granted unique rights to divide up his property even without a kinyan as is ordinarily required. This enactment was established by out of sensitivity to the situation of someone who, in the last hours of his life, wants reassurance that his wishes are being fulfilled. According to this approach, the law that appears in the Mishna is part of this unique enactment that is made so that the shekhiv me-ra will not lose his sanity, since da’ato shel adam kerovah etzel beno. It would not work in any other case, however. In all other cases an unborn child is not considered to be a person who can take possession of property.

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