Prayer: Rambam, Laws of Marriage, Chapter 7, Halacha 16

One who says to his friend, "If your wife gives birth to a female, she is hereby betrothed to me," has said nothing (the betrothal is invalid). However, if his friend's wife was already pregnant and the fetus was recognizable, she is betrothed. Yet, it appears to me that he must go back and betroth her again from her father after she is born, in order to enter her into a betrothal that is without any flaw.
The critique of the Raavad: "And if his friend's wife was pregnant and the fetus was recognizable, she is betrothed." Avraham (the Raavad) says: According to the Halacha, it is not said that "if her fetus is recognizable, she is betrothed" except according to the opinion of Rabbi Eliezer ben Yaakov, who says that a person can transfer ownership of something that has not yet come into the world. However, the Halacha does not follow his opinion.
Ketzos HaChoshen
Chapter 210 - One Who Transfers Ownership to His Own Fetus or to Another's Fetus
Containing 3 sections
1. A person cannot transfer ownership to someone who has not yet come into the world. Therefore, one who grants a right to the fetus of another person, the fetus does not acquire it, even if he said, "When it is born, it shall acquire it." Rema's Gloss: And this is unlike those who disagree and hold that if the grantor did not die or retract his offer before the birth, [A] and it was acquired through meshichah (the physical act of pulling to acquire), and it is still in the possession of the acquirer when the child is born, then he acquires it, [B] provided he said "when it is born" (the Ramah; and see later in Chapter 222, the Tur in the name of the Rosh and Rabbeinu Chananel). [C] And if it was his own son, he acquires it, even if he did not say "when it is born," provided his wife was already pregnant at the time of the gift. [D] And similarly, his grandson is considered like a stranger (Responsa of the Rosh, Rule 82, Section 4). And there are those who say that the rule that one who grants to his own fetus acquires it applies specifically to a shechiv mera (a person dangerously ill), but a healthy person's grant is not acquired.
2. If one transferred a portion of his property to an animal or to someone who has not yet come into the world, and then went back and said to his friend, "Acquire this just as this animal or this fetus acquires," he has acquired nothing.
3. If he said to him, "Acquire my property or this specific object, you and this animal," or "you and this fetus," [E] he acquires half. One who transfers something to a deceased person, as long as it is for the sake of his burial and honor, he acquires it (Responsa of the Rashba, Section 375).
[A] And it was acquired through meshichah (pulling) - See what I have written above in Chapter 197 (Sub-section 4).
[B] Provided he said "when it is born" - This is also the opinion of Rabbeinu Chananel in the Gemara Bava Basra (141b), the Rashbam (ibid. 142b), and the Rosh (Bava Basra, Chapter 9, Section 5), following Rav Nachman who says that one who grants to a fetus does not acquire it, but if he says "when she gives birth," he does acquire it.
The Rashbam writes in the chapter "Mi SheMeis" (Bava Basra 142a), and these are his words: "Even though regarding the fruits of a palm tree, even if they came into the world he can retract, and even if he says 'when it comes into the world,' this is because a fetus is considered to have partially come into the world. Therefore, if he says 'when it is born,' it is effective." See there.
And in the Hagahos Asheri (Bava Basra, Chapter 9, Section 5 on the Rosh) there, it states that the same law applies to one who sells the fetus of his cow; if he says "when it is born," the acquisition is effective. Since regarding a human fetus it is effective when she gives birth, all the more so regarding selling an animal's fetus. For even according to the one who says a person can transfer ownership of something that has not come into the world, he concedes that one cannot transfer something that has not come into the world to something that has not come into the world. See there.
According to this, if there is no fetus and it has not been conceived at all, and one grants to whoever will be born, even if he says "when he is born," it is not effective. This is similar to the fruits of a palm tree, where it is not effective even if he says "when it comes into the world." This is what the Gemara questions in the first chapter of Gittin (13b) regarding Ma'amad Shlashtan (a legal mechanism involving three parties present together), that it is as if he says, "I am obligated to you and to anyone who comes by your authority." The Gemara asks: "If so, if he transferred ownership to those yet to be born, would it also not be effective?" See there. We do not say that it is as if he said "when he is born," because it is specifically when there is a fetus that it is considered to have partially come into the world. But for someone who will be born where there is not even a fetus yet, saying "when he is born" is not effective.
I saw in the book Pnei Yehoshua on the first chapter of Gittin (13b) there, on the Tosafos starting with the words "To something that is not in the world, who said?", and these are his words: "Seemingly, their words are not absolute, for one could say that both of them hold that transferring to something that has not come into the world is worse than transferring something that has not come into the world. Rather, they merely disagree on the logic of whether a fetus is considered to have come into the world, etc. And so the Rashbam explained, etc."
However, I saw in the Chiddushim of the Rashba on the third chapter of Kiddushin (62b), who wrote in the name of Rabbeinu Hai Gaon that according to everyone, a fetus is considered something that has not come into the world. But Rav Nachman, who says that if he says "when she gives birth" he acquires it, holds the opposite of Rav Huna. Rav Huna says a person cannot transfer ownership of something that has not come into the world, but he can transfer ownership to something that has not come into the world. Rabbeinu Hai Gaon ruled like Rav Nachman in this matter of "when she gives birth." And regarding betrothal, he ruled that even if his wife is pregnant, she is not betrothed. And it appears explicitly that the Rosh zt"l ruled this way as well.
But there is a great difficulty for Rabbeinu Hai Gaon and the Rosh who ruled like Rav Nachman, which is the opposite of Rav Huna. If so, why did the Rosh write in our Talmudic passage that Ma'amad Shlashtan is a Halacha without a logical reason? Let him derive it from the fact that according to Rav Nachman, it is a Halacha with a logical reason, because it is as if he says, "I am obligated to you and to anyone who comes by your authority." And even for those yet to be born it is effective, even according to the Sages who argue with Rabbi Meir, for they concede that transferring to something that has not come into the world is acquired, similar to "when she gives birth." This requires further study. Thus far are his words.
Behold, one who examines the Chiddushim of the Rashba will see clearly that they only wrote this regarding a fetus. But where there is not even a fetus, it is certainly not effective to say "when she gives birth." See there, these are his words: "And the Rambam (Chapter 7 of the Laws of Marriage, Halacha 16) wrote that if her fetus is recognizable, she is betrothed, etc. But in the Sefer HaMekach of Rabbeinu Hai Gaon, I saw that he ruled in this case that she is not betrothed. And regarding one who grants to a fetus, he ruled like Rav Nachman who says that if he says 'when she gives birth,' he acquires it. It appears that he holds that a person cannot transfer ownership of something that has not come into the world, even if he says 'when they come into the world,' because the essence of the object being acquired must actually be in the world. However, when the essence of the object being acquired is in the world, even though the acquirer is not actually in the world—such as a recognizable fetus that has not fully come into the world and is lacking an action that is not in his hands—even so, if he says 'when he comes into the world,' he acquires it, according to Rav Nachman. And even though there we say the opposite: 'Say that you heard Rabbi Meir state that a person can transfer ownership of something that has not come into the world; but did you hear him say one can transfer to something that has not come into the world?' Rav Nachman holds the opposite." Thus far are his words.
So we have before us that even for Rabbeinu Hai Gaon, who prefers the ability to transfer to something that has not come into the world, this is only regarding a fetus, which is considered to be partially in the world. And regarding the object being acquired, we require it to be entirely and actually in the world. But where the acquirer has not come into the world at all, even for Rabbeinu Hai Gaon it is not effective. For regarding one who grants to a fetus, he wrote, "even though the acquirer is not actually in the world, such as a recognizable fetus that has not fully come into the world." This implies explicitly that if the fetus is not recognizable, granting to the fetus is not effective, even if he says "when she gives birth."
And the opinion of the Rosh (Bava Basra, Chapter 9, Section 5) who also holds this, is only when the fetus is recognizable. In this case, the acquirer is considered stronger than the object being acquired. But for something that has not come into the world at all, it is certainly not effective to say "when she gives birth." If so, Ma'amad Shlashtan must be a Halacha without a logical reason, since even if he transferred ownership to those yet to be born who have not come into the world at all, Ma'amad Shlashtan is effective.
And regarding what the Rashba wrote (ibid. 62b), "And even though there we say the opposite, etc., 'did you hear him say one can transfer to something that has not come into the world?' Rav Nachman holds the opposite."
According to his words, the acquirer is not stronger than the object being acquired except where he has partially come into the world. But if he has not come into the world at all, he is not stronger. If so, the Talmudic passage can well be established even according to Rav Nachman. For transferring to those yet to be born means when they have not come into the world at all. Certainly, for Rav Nachman, since the acquirer is at least stronger when he has partially come into the world, then for Rabbi Meir as well, the acquirer is at least no worse than the object being acquired, and it would be effective even for those yet to be born. Therefore, perforce, the passage follows Rav Huna, for whom the object being acquired is stronger than the acquirer. However, for us, since we rule like Rav Nachman, the acquirer is also not stronger unless he has partially come into the world. If so, Ma'amad Shlashtan remains a Halacha without a logical reason, as I have written.
And according to this, the words of Tosafos there are also resolved, for they wrote that the passage follows Rav Huna. This is because for Rav Nachman, the acquirer is at least no worse than the object being acquired, and on the contrary, he is stronger at least when he has partially come into the world. And this is clear.
[C] And if it was his own son - The Responsa of Maharam of Rothenburg wrote, and these are his words: "And you wrote that we rule in the chapter 'Mi SheMeis' (Bava Basra 142b) like Rabbi Yochanan who says that one who grants to a fetus acquires it, since a person's mind is close to his son. This is indeed so. Even though there is room to wonder: if so, we find that a fetus can bequeath! For example, if his mother granted him property, since he acquired it, he can bequeath it to his paternal brothers. Yet we learned in a Mishnah that specifically a one-day-old infant (can inherit and bequeath) (Niddah 44a). One can establish that we do not find a fetus inheriting and bequeathing, but here he acquired it through the law of a gift, not through the law of inheritance." Thus far are his words.
And according to what the Ramban wrote in his Chiddushim on the chapter "Almanah LeKohen Gadol" (Yevamos 67a), these are his words: "And the Raavad zt"l said, since we rule that one who grants to his own fetus acquires it because a person's mind is close, etc., all the more so regarding inheritance which comes automatically. But this is not an answer, because that law only states that he acquires it, and specifically for a shechiv mera (a dangerously ill person). And it is not that he acquires it from now, but rather when he is born he acquires it, similar to an inheritance, so that his mind should not become distressed. And this is not the law for a healthy person." Thus far are his words.
And since he only acquires it when he is born, if so, he cannot bequeath it while he is still a fetus.
[D] And similarly, his grandson is considered like a stranger - This is in the Responsa of the Rosh (Rule 82, Section 4). He wrote there from his own reasoning that a person's mind is not as close to his grandson (as it is to his son).
But in the Terumas HaDeshen (Section 350) he wrote, and these are his words: "This is not the case in our situation, for we say in the chapter 'Yesh Nochalim' and in the chapter 'Mi SheMeis' that a person's mind is close to his son. And the same applies presumably to his granddaughter. And we can say that he fully resolved to transfer to her the 100 litras from his property without any condition." Thus far are his words.
And the Rema wrote here in accordance with the words of the Rosh, but in Chapter 257 (Section 2) it implies that he holds in accordance with the words of the Terumas HaDeshen. This requires further study.
[E] He acquires half - In the chapter "Mi SheMeis" (Bava Basra 143a): "Acquire, you and a donkey." Rav Nachman says he acquires half. Rav Hamnuna says he has said nothing (the acquisition is entirely void). And Rav Sheshes says he acquires everything.
And the Halacha was decided according to Rav Nachman who says he acquires half. And so wrote the Rambam (Chapter 2 of the Laws of Sales, Halacha 12), the Tur, and the Shulchan Aruch.
The Rishonim raised a difficulty from the Talmudic passage in Kiddushin (51a) there, regarding the incident of five women, among whom were two sisters. A man gathered a basket of figs that belonged to them, etc., and said, "Behold, all of you are betrothed to me with this basket." One of them accepted it on behalf of all of them. The Sages said, "The sisters are not betrothed." The Gemara asks: "This implies the unrelated women are betrothed! But why? It is a case of 'you and a donkey' (where part of the transaction is inherently invalid)!" The Gemara resolves this by establishing the case as one where he said, "The one among you who is fit for cohabitation shall be betrothed to me." But how could the Gemara ask that it is a case of "you and a donkey," since we rule like Rav Nachman who says he acquires half (meaning the valid part of the transaction should stand)?
And even more perplexing are the words of the Rambam (Chapter 9 of the Laws of Marriage, Halacha 2), who wrote in accordance with the conclusion of the Talmud, that it is a case where he says, "The one among you who is fit for cohabitation." See there.
Since he ruled like Rav Nachman that he acquires half, why does he need to say "The one among you who is fit, etc."?
And my student, the sharp Torah scholar, Moreinu HaRav Yitzchak Frankel (may his light shine), son-in-law of the famous wealthy Torah scholar Moreinu HaRav Yosef Meisels of Lvov, answered this. He explained it based on what is written in the Mordechai regarding an incident where someone transferred to his friend through a kinyan sudar (acquisition by means of a garment) lands, movable items, and coins all at once. The sages of the generation debated the matter. Some say it is similar to "acquire, you and a donkey" from the chapter "Mi SheMeis." Just as he does not acquire the coins because a coin cannot be acquired through exchange (chalipin), he also does not acquire the movable items and the land, etc. See there.
But this is perplexing, for we rule like Rav Nachman who says he acquires half! And a gloss there wrote on this, and these are his words: "Here in this case, the sages of the generation debated it because it is not similar to that case. Because in this case, we apply a migo (a legal deduction: 'since X is true, Y is true'). And this is what he wrote: 'Just as he does not acquire the coins because a coin cannot be acquired through exchange, he also does not acquire the movable items and the lands.' And one cannot refute this by asking why we do not also apply a migo regarding 'acquire, you and a donkey.' Because it is not applicable to say a migo there, as Rashi explained, for it is as if he explicitly said, 'He gets half and you get half.' And why should the man lose his portion because of the donkey? For he did not make them dependent on one another." See there.
The essence of his words is that where the acquisition is for one person but involves two items, and for one item the acquisition is effective but for the second it is not effective, we apply a migo: since he did not acquire this, he acquires nothing. However, if the acquisition is for two people, even though one did not acquire, the second one, who is capable of acquiring, acquires half. And this is the ruling of Rav Nachman.
And this case of "all of you are betrothed to me" is similar to one who transferred ownership to a single person. For Tosafos wrote in the chapter "Eizehu Neshech" (Bava Metzia 71b), see there (starting with the words "Seifa LeChumra"), and these are their words: "It is a wonder why it is not considered absolute ribis (forbidden interest) when he established the loan with a Jew, for the second Jew becomes the agent of the first to receive his debt. One can answer that even if he could acquire a lost object on his behalf, here his receiving from the non-Jew does not acquire it for his fellow Jew. For granted, if the non-Jew had declared his money ownerless, he could have acquired it for his friend. But now, since the non-Jew is not declaring it ownerless but is coming to transfer his money to this lender via the borrower, he has no power to acquire it. For if so, the Jew receiving it would be the agent of the non-Jew, and there is no agency for a non-Jew. Therefore, it is only forbidden as a stringency." Thus far are their words.
It is clear from their words that anyone who transfers ownership to his friend via a third party, the one acquiring must be the agent of the one transferring. If so, here too, this woman who accepted the betrothal on behalf of all of them was the agent of the one transferring, who is the betrother. The Gemara rightly asks that it is a case of "you and a donkey." That is to say, since the agency is void regarding the sisters, the agency is entirely void, even regarding the unrelated women. For regarding a single person, we apply a migo: since he did not acquire this, he acquires nothing. And here too, since the agency did not take effect regarding the sisters, everything is voided and there is no agency here at all. To this, the Gemara answers that it is a case where he says, "The one among you who is fit, etc." And the words of the Rambam (Chapter 9 of the Laws of Marriage, Halacha 2) are resolved. For specifically with two people, like the case of Rav Nachman, do we say he acquires half. But here, regarding the incident of the five women, it is like a single person, since we require agency, and it is like that incident in the Mordechai where he acquires nothing.
And with this, it is also resolved to explain the words of the Rashbam in the chapter "Mi SheMeis" (Bava Basra 143a) regarding the Gemara's question there, "But why? It is a case of 'you and a donkey'!" The Rashbam wrote there, and these are his words: "Just as the sisters did not acquire, the unrelated women also should not acquire. Rather, deduce from this that whatever he has the power to acquire, he acquires entirely, like Rav Sheshes." Thus far are his words.
His words are perplexing, for how is there a proof for Rav Sheshes? For according to Rav Nachman it is also resolved, as he says he acquires half! But according to what I have written, it is resolved. For if we say he acquires half, he would acquire nothing, due to the migo that since the agency is void regarding the sisters, it is void regarding all of them. Rather, deduce from this like Rav Sheshes, and if so, the entire agency takes effect regarding the unrelated women. Examine this carefully, for his words are correct.