Today’s daf continues our discussion of what to do when more than one person claims ownership over a specific piece of property. As part of this discussion, the Talmud revisits a mishnah that we first read on Baba Metzia 100a:
One who exchanges a cow for a donkey and it calved, and similarly one who sells his enslaved woman and she gave birth, and this one says: “She gave birth before I sold her,” and that one says: “She gave birth after I purchased her” — they should divide the offspring.
The rabbis of late antiquity, like many people of that time, treated enslaved people and animals as legal parallels in numerous cases. It should not surprise us, therefore, that the mishnah treats both cases as one.
It turns out that while the pregnant mother is property, no one owns her fetus until the moment of its birth — so it really matters when the birth occurs. If the buyer and the seller both claim that the birth took place in their domain, the court has them divide the offspring.
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To be clear, no one is suggesting splitting the baby or the calf in two. Instead, what the mishnah means is that the two disputed owners should split the value of the baby or calf. One can buy out the other or they can sell the newborn and split the proceeds.
I’ve discussed this so far in a fairly straightforward manner. But of course, even if “everyone was doing it,” the idea of owning a human being is morally repugnant. It is even more repugnant to contemplate separating a newborn baby from its mother — in an age without ready infant formula, no less — in order to solve a dispute between two free men of property. So it behooves us to read this text carefully and ask: What else might we notice if we center the mother at the heart of the case?
Here’s what I notice: While it’s true that non-human animals don’t use language the way we do, enslaved people presumably spoke the same language as their enslavers. That means that, in the case of the enslaved woman who has given birth, the easiest solution to this debate over ownership would be to just ask the woman when she gave birth. But the mishnah never suggests that they do this, and the rabbis of the Gemara — in their discussion of the case — never do either. While that might simply be because enslaved women can’t testify in rabbinic court on issues of ownership, it also suggests that this woman is not thought to be a reliable witness.
And of course she isn’t a reliable witness! If she says she gave birth before she was sold, her newborn will be taken from her and given to her former owner. I can’t imagine a newborn mother who would let that happen.
In some ways, then, when we look at what the mishnah doesn’t say, a very different picture begins to emerge: A picture where enslaved people had families of their own, with powerful bonds even in the face of the ever-present threat of sale. A picture of enslaved women who would do anything they could — including lie — to keep their families together. And while, according to the mishnah’s rules, that didn’t always work, we can still see these women in the background of the text, fighting like hell.
Read all of Bava Batra 35 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 30, 2024. If you are interested in receiving the newsletter, sign up here.
