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Yevamos, 67


QUESTION: The Beraisa says that if a Kohen dies, leaving sons and a wife who is pregnant, the Kohen's Avdei Tzon Barzel may not eat Terumah, due to the portion of the Avadim which is in the possession of the fetus. RASHI (DH Avdei) explains that the Beraisa means that since the fetus owns part of the Avadim and we do not know which of the Avadim are eventually going to be given to him, therefore the Avadim may not eat Terumah.

Rashi's words are very perplexing. Why does Rashi write that we do not know which portion will come to the fetus, implying that the reason why the Avadim may not eat Terumah is because later, after the estate is divided, the fetus might receive some of the Avadim, and since the fetus might have ownership of some of the Avadim, none of them may eat Terumah. This implies that if the fetus would not receive any of the Avadim, but would receive some other part of the estate, then the Avadim would be permitted to eat Terumah. This, however, means that Rashi is explaining the Sugya according to the opinion that holds "Yesh Bereirah." According to those who hold Yesh Bereirah, brothers who divide up an inherited estate have a status of pure heirs ("ha'Achin she'Chalku, Yorshin Hen"). When they divide the property between them, it becomes clarified that what they received is what they actually inherited, originally, at the time that their father died (They are not considered to be "trading" portions with each other.)

Why should Rashi explain the Beraisa according to the opinion that "Yesh Bereirah?" That is not the Halachah! We rule that "Ein Bereirah" when it comes to an Isur d'Oraisa like eating Terumah. Rashi, then, should have given a more basic explanation, that since the fetus inherits a portion of the estate and *right now* the estate is not yet divided, the fetus owns a small part of each Eved, and that is why the Avadim may not eat Terumah! (RASHBA)


(a) The RASHBA suggests that perhaps Rashi holds "Yesh Bereirah" even when it is relevant to a Halachah d'Oraisa, contrary to the conclusion of the Gemara in Beitzah (38a). (Alternatively, we could suggest that Rashi is explaining why the Eved may not eat even Terumah d'Rabanan.)

(b) The Rashba appears to assume that if we hold "Ein Bereirah," then the fetus owns one small portion of each and every part of the estate that the brothers inherit together. However, this is not agreed upon by all. The Gemara in Gitin (47b) discusses a field owned jointly by a Jew and a Nochri, and it says that the produce that grows in the field is a complete mix of Tevel and Chulin. TOSFOS there (DH Tevel) explains that even if one separates Terumah from one part of that field on behalf of another part of that field, it will not be effective because perhaps the part that one separated did not belong to the Jew but belonged to the Nochri (in which case one separated Terumah from fruit that was exempt on behalf of fruit that was obligated in Terumah, and it cannot become Terumah).

Likewise, in our case, perhaps it is incorrect to assume that the fetus owns a portion of every single Eved. Rather, he owns an unspecified portion of the estate in general. Rashi might be saying that since it is *possible* that the fetus owns a part of this Eved *right now*, therefore the Eved cannot eat Terumah. Rashi is not saying that in the future the fetus might end up owning this Eved, but rather that *perhaps* the fetus now owns this Eved.

However, this does not fully answer the question. Rashi in Gitin there argues with Tosfos and writes that one *may* separate Terumah from one part of the field on behalf of the other part of the field, because it is clear that one half of every single stalk belongs to the Jew, for every single stalk is divided between the owners. That is, if we hold "Ein Bereirah," then until the field is divided later, each owner has partial ownership of each and every section. Accordingly, Rashi here should have been consistent with his opinion in Gitin and he should have said that the fetus owns part of each Eved, and not that we do not know which portion the fetus will inherit.

(c) Rashi, however, might be following his own opinion elsewhere regarding the meaning of "Ein Bereirah." Most Rishonim explain that "Ein Bereirah" means that one cannot effect a Kinyan, or a change of status, at the present moment based on the outcome of a future event. If one attempts to do so, the Kinyan will not take effect at all (see RAN in Nedarim 45b).

Rashi, though, seems to take a different approach. In many places, Rashi explains that even if we hold "Ein Bereirah," the Kinyan still takes effect, but the details which were dependent upon the outcome of the future event remain in doubt. For example, in a case where a person had two fruits in front of him and he said, "If it rains tomorrow, the one on the right will be Terumah, and if it does not rain tomorrow, the one on the left will be Terumah," most Rishonim say that neither fruit is Terumah, because "Ein Bereirah" dictates that a present Kinyan cannot be made dependent on a future event. Rashi, however, says that one of the fruits is Terumah, but it remains in doubt which one is Terumah. The change of status is effected, but the details which were dependent upon the future event remains in doubt, even when the future event occurs. The reason for this is that when a Kinyan is made dependent on a future event, it is not really dependent on what actually happens in the future (since the Kinyan must take place *right now*). Rather, it is dependent on what *is destined to happen* in the future at this point in time. Therefore, even if it did rain tomorrow (in the above example), those who rule Ein Bereirah maintain that we cannot know that on the previous day, when the condition was made, *it was destined* to rain tomorrow. (TOSFOS Eruvin 37b, DH Ela, cites a similar ruling in the name of MAHARI; see also CHIDUSHEI REBBI AKIVA EIGER in Ma'arachah #4, on Eruvin 38a, DH v'Nir'eh d'Vein; we discussed this further in our Insights to Eruvin 37:1:c.)

Rashi, therefore, is not explaining our Sugya according to the opinion that "Yesh Bereirah." On the contrary, he is saying that we hold "Ein Bereirah." Because we hold Ein Bereirah, we do cannot determine which of the slaves was destined to belong to which of the inheriting brothers based on the way they split the slaves at a later time. That is what Rashi means when he says that we do not know now "which Eved will come into his possession."

(In Gitin, where Rashi says that each owner has an equal portion according to those who maintain Ein Bereirah, he is discussing a field that was still owned in partnership and was not yet divided. If the owners split the field, then Rashi (Gitin 47b, DH Shel Yisrael) implies that we do not know, retroactively, which portion belonged to whom at the time the grain was grown, because of "Ein Bereirah.")


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