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How a Cucumber Decides Whether a Son Inherits Over a Donkey

With surprising analogous thinking, ancient Talmudic sages tackled very modern questions—by accident or foresight, depending on how liberal your views—of transgender rights, the rights of unborn fetuses, women’s rights, and wealth distribution

Adam Kirsch
June 20, 2017
Inset photo: The U.S. National Archives via Flickr Commons
Inset photo: The U.S. National Archives via Flickr Commons
Inset photo: The U.S. National Archives via Flickr Commons
Inset photo: The U.S. National Archives via Flickr Commons

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

When I write about my Daf Yomi reading, there are some topics that I tend to skip over because they are both complicated and distant from contemporary Jewish life. One of the these is teruma, which is sometimes translated as “heave offering”—the tithe on produce that Jews were commanded to give to the priesthood. Yet the truth is that if you were to measure which subjects receive the most coverage in the Talmud, teruma would come near the top. The rabbis frequently discuss what can be offered as teruma, how it is measured, and who has the right to consume it. Indeed, the very first Mishna in Tractate Berachot, with which the Daf Yomi cycle began almost five years ago, mentions teruma: The evening Shema, it says, should be recited at the hour when the priests enter the Temple to eat teruma.

This week, in chapter nine of Tractate Bava Batra, we saw an example of how the laws of teruma can serve the rabbis to elucidate a very different area of halachah. Chapter Nine continues the discussion of the laws of inheritance, addressing the status of bequests promised to a child born posthumously. The Mishna in Bava Batra 140b imagines a situation in which a dying man who is an expectant father bequeaths money to his unborn child, saying, “If my wife gives birth to a male, the offspring shall receive a gift of 100 dinars,” or “If my wife gives birth to a female the offspring shall receive 200 dinars.” The law is that these are binding bequests, and once the children are born they receive the designated amount from the estate.

This is clear enough, but the rabbis identify two possible ambiguities. What if the wife gives birth to twins, a boy and a girl? In this case, both children are given the promised sum, 100 dinars for the boy and 200 for the girl. And what if the child is born neither male nor female? What if the issue is a tumtum, the legal term for a person whose sex organs are concealed and is thus of indeterminate gender?

The tumtum, it turns out, fares badly when it comes to inheritance. In general, when a man dies leaving both sons and daughters, the daughters’ sustenance is prioritized. If there is a large estate, the sons inherit it and are obligated to use the proceeds to provide support for their sisters. If the estate is too small to support all the children, the daughters are given sustenance and the sons get nothing, even if this means they have to beg “for charity at the doors.” But a tumtum gets the worst of both worlds. If the estate is large, s/he is treated like a daughter and does not inherit property but receives only support. If the estate is small, on the other hand, s/he is treated like a son and gets nothing.

And if a dying father bequeaths sums for a son or a daughter, but his wife gives birth to a tumtum, s/he gets nothing, because legally s/he has the status of neither. The only way the tumtum can inherit is if s/he is the only living heir, or if the father made explicit provision for this possibility, by saying, “Whatever my wife gives birth to” shall receive a certain sum. The existence of a legal category for intersex people is one of the more intriguing aspects of Jewish law. In the 21st century, some rabbis use the tumtum as a halachic basis for establishing transgender rights, while others deny that the two identities are truly analogous.

The Gemara points out a surprising feature of the mishnaic example: It seems to value daughters more highly than boys. Why, the rabbis ask, should a son receive 100 dinars and a daughter 200? After all, in other parts of the Talmud, it is stated clearly that it is better to have a son than a daughter. Rabbi Yochanan repeats that idea here: “Anyone who does not leave a son to inherit from him, the Holy One, Blessed be He, is filled with wrath upon him.”

The rabbis offer alternative explanations for the Mishna’s meaning. Perhaps, according to Rav Chisda, we are dealing with a mother who is pregnant for the first time, in which case it is preferable to have a girl because her future children are more likely to be male: “A daughter first is a good sign for sons.” Indeed, Rav Chisda goes even further, saying, “For myself, I prefer daughters to sons.” (There is something rather sad about the Koren Talmud’s footnote to this remark, which explains that, according to later commentaries, Rav Chisda only said this because he had such meritorious sons-in-law.) Or perhaps, the Gemara proposes, daughters receive more money than sons not because they are a greater blessing but simply because they stand in greater need: “With regard to the matter of comfort,” a daughter needs more than a son does.

In the course of this discussion, teruma comes up unexpectedly. In Bava Batra 143a, the rabbis debate whether a fetus can legally own property. This question follows from the initial example, in which a father makes a bequest to a child who has not yet been born. This seems to imply that a fetus can own property; otherwise, how could the father bestow money on an unborn child? But this contradicts Rabbi Yochanan’s view, which is that “one who transfers ownership of an item to a fetus, the fetus does not acquire the item.” The Rabbis agree with this as a general rule, but they create a loophole for deathbed bequests to heirs. Still, it is only permitted to give property to your own unborn child, because “the disposition of a person is to be inclined toward his son.” One may not give property to someone else’s unborn child.

While addressing this question, the rabbis ask about the legal status of a gift when it is given to two parties, one of whom is legally ineligible to receive it. Say, for instance, that a man says to his son, “You and a donkey shall acquire my property.” It’s never made quite clear why someone would say this, except perhaps as a joke or an insult, since, of course, a donkey can’t own property. So does this mean that the human recipient of the gift receives it all—because he couldn’t split it with the donkey—or that the whole gift is void?

Rav Sheshet rules that the human receives the whole gift, and he bases his reasoning on a case involving teruma. Produce that is designated teruma must be of superior quality since it is being given to the priests to consume. What if you are dealing with cucumbers, which can be bitter and inedible on the inside, though the outer part of the vegetable is good for eating? Can a cucumber be given as teruma? The answer is yes: Apparently, Rav Sheshet deduces, the good part of the offering is not invalidated by the bad part. The same principle should apply to a bequest. The bad part of the promise (the gift to the donkey) does not invalidate the good part (the gift to a human being). This is an ingenious example of a common Talmudic technique, drawing analogies between two apparently disparate areas of law. Tempting though it might be, you can’t pass too quickly over teruma—you never know when it will come in handy.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.