Q&A: Something Not Yet in Existence
Something Not Yet in Existence
Question
Hello Rabbi,
It is well known that Rabbeinu Tam’s view in Tosafot on Sanhedrin and Bekhorot (3a, s.v. “deka,” for example) is that a fetus is something not yet in existence, and therefore it cannot be transferred. Seemingly, this is difficult in light of the passage in Kiddushin about one who says to his fellow, “If your wife gives birth to a female,” etc., where the Talmud concludes that if the fetus is already recognizable, the betrothal is valid. According to the passage in Kiddushin, it is possible to transfer ownership of a fetus (and even betroth with it) — but according to Rabbeinu Tam, such a thing should be impossible.
Thank you very much
Answer
See Ketzot HaChoshen, sec. 209, subsection 1, who raised this question against Maimonides, and in the Dzhimitrovsky edition in the various references. Here I will write a few directions offhand:
- There are views that these are disputes between different Talmudic passages and Amoraim.
- In Rabbeinu Tam, I have not seen that he said this also in a case where the fetus is already recognizable.
- There are views that in consecration to the Temple—and, as is well known, betrothal is compared to consecration in several places—one can transfer something not yet in existence.
- It is also possible to distinguish between a transfer taking effect now and a transfer taking effect from the time of birth. Perhaps in betrothal one can betroth effective from the time of birth, and then it works even for something not yet in existence.