Bava Batra 142

What happens if you give a fetus a present? That’s the question the Talmud has been trying to answer over the last two pages. The debate wraps up today, so let’s take a step back and think about the discussion as a whole.

The Talmud initially presents two positions. First, Rav Huna insists that one cannot gift property to a fetus who has not yet been born. But Rav Nahman argues, based on potential analogies with other mishnahs, that a fetus can in fact acquire property in utero. The Talmud next offers six potential rebuttals to Rav Nahman’s position, each of which is dismissed in turn, making him the apparent winner: It seems fetuses can receive gifts. 

Today’s daf adds three elements to this debate. First, in what functions as the Talmud’s seventh and final rebuttal of Rav Nahman’s original position, the daf reinterprets his words: 

As Rav Nahman says: One who transfers ownership to a fetus, it does not acquire it. When she gives birth, the fetus acquires it.

And Rav Huna says: Even when she gives birth, the fetus does not acquire.

According to this restatement, Rav Nahman actually agrees with Rav Huna that a fetus cannot acquire property in utero, but understands the fetus to acquire it after birth (whereas Rav Huna thinks property given to a fetus never transfers to them). This restatement changes the terms of the debate entirely. The rabbis couldn’t dismiss Rav Nahman’s position on the basis of rabbinic logic so they had to fundamentally reinterpret it to (mostly) agree with Rav Huna. 

So does that mean we’ve successfully and definitely answered the original question by saying that a fetus cannot acquire while in utero? That takes us to the second element added by today’s daf. Just when the debate appears settled, the Talmud introduces a third named rabbi with another perspective:

And Rav Sheshet says: In both this and that, it acquires.

Rav Sheshet counters both Rav Huna and the reinterpreted Rav Nahman to insist that a fetus can acquire property — both immediately in utero and when the property is transferred on condition of a healthy birth. 

Just as it did with Rav Nahman’s original statement, the Talmud next attempts to disprove Rav Sheshet’s position by offering four different challenges, each of which is (again) successfully rebutted. 

At this point, we might be expecting Rav Sheshet’s position to win. After all, each of the potential challenges is successfully rebutted, upholding Rav Sheshet’s original logic. But now the anonymous voice of the Talmud adds that third element, closing the discussion with a general rule: 

And the halakhah is: One who transfers ownership to a fetus, it does not acquire.

The Talmud’s compilers agree with Rav Huna, even in the face of many compelling challenges from his interlocutors.

The extensive discussion over the last three days highlights two things for us. First, even when it is obvious (to the Talmud’s compilers) that one position is correct and the others are wrong, they still spend time trying to understand the logic of the rejected opinion. For the rabbis, even wrong ideas (at least about some things) are worth interrogating and trying to understand. 

Second, the Talmud doesn’t always resolve debates but in this case it’s clear that the editors really don’t think that a fetus can acquire property in utero (or maybe even on condition of being born). Whether that is for practical reasons (who takes charge of caring for the property before the baby is born?), conceptual reasons (what would the ability to acquire property mean for fetal personhood?) or because that’s the position that most of the rabbis inherited, the text doesn’t tell us. But the resistance is clear. So, according to the rabbis, if you want to give a fetus a present, you’re going to have to wait until it’s not a fetus at all. 

Read all of Bava Batra 142 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 14, 2024. If you are interested in receiving the newsletter, sign up here.