Babylonian Talmud: Tractate Baba Bathra

Folio 126a

and [in the case of] a loan that is with him¹  [the portion of the birthright] is to be divided [between him and the other heirs].²

R. Huna said in the name of R. Assi: [If] the firstborn son had protested [against the proposed improvements in the bequeathed estate]³  his protest is valid.⁴

Rabbah said: [The law] of R. Assi stands to reason in [the case] where grapes were cut⁵  [or] where olives were plucked;⁶  but where these were pressed⁷  [the firstborn does] not [receive a double portion].⁸  But R. Joseph said: Even if they were pressed. 'If,' [you said], 'they were pressed', [surely] at first [they were] grapes; now [they turned into] wine!⁹  — As R. 'Ukba b. Hama said [elsewhere]. 'Compensation is to be paid to him for any damaged grapes',¹⁰  [so] here, also, compensation is paid to him for any damaged grapes.¹¹

In what connection¹²  was [the statement] of R. 'Ukba b. Mama made?¹³  [In connection] with what Rab Judah said in the name of Samuel: Where a father bequeathed to a firstborn, and to an ordinary son grapes which they cut¹⁴  [or] olives which they plucked, the firstborn receives a double portion even if they pressed [the grapes]. '[If] they pressed [the grapes]', it was asked, '[were these not] first grapes [and] now [they are turned into] wine?'¹⁵  [To this] R. 'Ukba b. Mama replied. 'Compensation is paid to him for any damaged grapes.'¹¹

R. Assi said: If a firstborn son accepted a share [of a field]¹⁶  equal [to that of] any other [brother], he has renounced [the claims of his birthright]. What [is meant by] 'renounced'? — R. Papa said in the name of Raba: He renounced his claim upon that field only.¹⁷  R. Papi in the name of Raba said: He renounced [thereby] his claims upon the entire estate. R. Papa had said in the name of Raba [that] he renounced his claim upon that field only, [for] he is of the opinion [that] the firstborn is not regarded as legal possessor of [his share] before the division [between the heirs takes place];¹⁸  and R. Papi had said in the name of Raba that he renounced. [thereby]. his claim upon the entire estate, [because] he is of the opinion [that] the firstborn is considered [legal] possessor of [his share] before the division takes place, and [it is assumed that], since he has renounced his claim over that [one field] he has [also] renounced his claim upon all the others.

And the [statements reported by] R. Papi and R. Papa [in the name of Raba] were not made¹⁹  explicitly [by him], but inferred [by them]. For there was a certain firstborn son who went [and] sold his own property²⁰  and [that] of his other [brother].²¹  [When] the orphans, the sons of the other [brother], went to eat [of] the dates of the buyers, the latter beat them. 'Is it not enough', said the [orphans'] relatives to them, 'that you bought up their property, but you must also beat them?' They came before Raba, [and] he said to them: 'The sale is invalid'.²²

1. With the firstborn. I.e., when he himself owes money to his father.
2. He takes one half, and the others take the other half. The portion of the birthright is, in this case, of 'doubtful ownership'. If the loan in question were to be regarded as an ordinary debt, the firstborn would have had no claim at all to the double portion of the birthright. Since, however, the loan is in his own possession, it might he argued that he is entitled to the full share of his birthright. Hence the compromise.
3. Demanding the distribution of the property prior to the introduction of the improvements; and the other heirs effected them against his wish.
4. Lit., 'he protested'. He is entitled to a double portion even in the appreciation that was produced by their efforts.
5. By the heirs.
6. Since the appreciation in these cases has not produced any radical change in the fruit.
7. Into wine or oil.
8. Even though he protested; because, in this case, there was complete transformation of the original bequest. The wine or oil was never in the possession of the deceased.
9. The wine has never been in the possession of the deceased, why then should the firstborn be entitled to a double portion in the wine?
10. Lit., 'to give him the value (money) of the damage of his grapes'.
11. The firstborn receives a double portion. not in the wine, but in value of the grapes that were lost or damaged in the process of the manufacturing of the wine. The heirs, who made the change in disregard of his protest, must hear the loss.
12. Lit.,'where'.
13. Lit., 'said'.
14. Despite the protest of the firstborn.
15. Since this is a case of complete transformation. why should he receive a double portion? v. p. 522. n. 9. and n. 10.
16. Bequeathed by his father.
17. He may, however, still claim his rights in any of the other parts of the estate.
18. Hence, he can only renounce his share in that field which has been divided, but not in those parts of the estate which have not yet been divided, since no man can renounce or confer possession of a thing which is not his. (Rashb.)
19. Lit., 'said'.
20. His double portion in the bequeathed stare of his father.
21. I.e., he sold the entire estate, before It had been divided between him and his brother, without the consent of the latter.
22. Lit., 'he (the firstborn) has not done anything'.

[One] master¹  holds the opinion [that Raba's meaning was that the sale] of a part²  [only of the estate was] invalid, and the [other] Master³  holds the opinion [that Raba's meaning was that] the entire [sale was invalid].⁴

[A message] was sent from Palestine:⁵  [If] a firstborn son had sold [his share] before the division [of the estate took place, that sale] is invalid.⁶  This shows that the firstborn is not regarded as the [legal] possessor of his share⁷  before distribution [had taken place]. And the law is that the firstborn is the possessor of his share⁸  [even] before distribution [of the estate had taken place].

Mar Zutra of Darishba divided a basket⁹  of pepper with [his] brothers in equal [shares].¹⁰  [When] he came before R. Ashi, [the latter] said to him: 'Since you have renounced [your rights in] a part [of the estate]¹¹  you have [implicitly] renounced [them] in all of it'.¹²

MISHNAH. [IF] ANY ONE SAID,¹³  'MY FIRSTBORN SON, SHALL NOT RECEIVE A DOUBLE PORTION,' [OR] 'X, MY SON, SHALL NOT BE HEIR WITH HIS BROTHERS', HIS INSTRUCTIONS ARE DISREGARDED,¹⁴  BECAUSE HE MADE A STIPULATION [WHICH IS] CONTRARY TO WHAT IS WRITTEN IN THE TORAH.¹⁵  IF ONE¹⁶  DISTRIBUTED HIS PROPERTY VERBALLY, [AND] GAVE TO ONE [SON] MORE, AND TO [ANOTHER] ONE LESS, OR [IF] HE ASSIGNED TO THE FIRST BORN A SHARE EQUAL TO THAT OF HIS BROTHERS,¹⁷  HIS ARRANGEMENTS ARE VALID.¹⁸  IF, [HOWEVER], HE SAID, AS AN INHERITANCE',¹⁹  HIS INSTRUCTIONS ARE DISREGARDED.²⁰  [IF] HE WROTE,²¹  EITHER AT THE BEGINNING OR THE MIDDLE OR THE END, 'AS A GIFT',²²  HIS INSTRUCTIONS ARE VALID.²³

GEMARA. [Must] it be said [that] our Mishnah²⁴  is not in accordance with R. Judah? For, if [it be suggested that it is in accordance with] R. Judah. surely he said, [it may be asked]. [that] in money matters one's stipulation is valid'.²⁵  For it was taught: If a man said to a woman, 'Behold thou art consecrated unto me²⁶  on condition that thou shalt have no [claim] upon me [for] food, raiment and conjugal rights' she is consecrated²⁷  but the stipulation is null;²⁸  these are the words of R. Meir. R. Judah said: In respect of the money matters his stipulation is valid!²⁹  [Our Mishnah] may be said [to be in agreement] even [with the view of] R. Judah; [only] there,³⁰  she knew [his conditions] and renounced her privilege³¹  [but] here,³²  [the son] did not renounce [his privileges].³³

R. Joseph said: [If] one said, 'X is my firstborn son', [the latter] is to receive a double portion.³⁴  [But if he said]. 'X is a firstborn' [the latter] is not to receive a double portion, for he may have meant,' the firstborn son of his mother'.³⁵

A certain [person once] came before Rabbah b. Bar Hana [and] said to him, 'I am certain that this [man] is a firstborn'. He said to him: 'Whence do you know [this]?' 'Because his father called him foolish³⁶  firstborn' 'He might have been the firstborn of his mother [only], because the firstborn of a mother is also called foolish firstborn.'³⁷

A certain [person once] came before R. Hanina [and] said to him, 'I am certain that this [man] is firstborn'. He said to him, 'Whence do you know [this]?' — [The other] replied to him: 'Because when [people] came to his father,³⁸  he used to say to them: Go to my son Shikhath, Who is firstborn and his spittle heals'. — Might he not have been the firstborn of his mother [only]? — There is a tradition that the spittle of the firstborn of a father is healing, but that of the firstborn of a mother is not healing.

R. Ammi said: A tumtum³⁹  [firstborn] who, having been operated upon⁴⁰  was found to be a male, does not receive a double portion [as heir], for Scripture says. And if the firstborn son be hers that was hated,⁴¹  [which implies that he cannot be regarded as firstborn] unless⁴²  he was a son at the beginning⁴³  of [his] being.⁴⁴  R. Nahman b. Isaac said: Neither is he tried as a 'stubborn and rebellious son';⁴⁵  for Scripture says, If a man have a stubborn and rebellious son,⁴⁶  [which implies that] he must have been⁴⁷  a son at the beginning⁴⁸  of[his] being.⁴⁹

1. R. Papi.
2. Lit., 'half'. That part which belonged to his brother. The sale of his own share, however, is valid since, according to R. Papi. the firstborn comes into the possession of his own share even before the distribution had taken place.
3. R. Papa
4. Because, according to R. Papa, the firstborn does not come into the possession of his share heir the distribution had taken place.
5. Lit., 'from there'.
6. V. note 3.
7. Lit., 'he has not'
8. Lit., 'he has'.
9. Lit., 'in a basket'.
10. Though he was the firstborn, he renounced his claim upon the double portion.
11. The pepper.
12. Lit., 'in all the property'.
13. Prior to his death.
14. Lit., 'he said nothing'.
15. One has no right to give instructions which are contrary to the law of the Torah which has entitled every son to a portion, and the firstborn to a double portion, in the father's estate.
16. A man on his death-bed.
17. Lit., 'he made the firstborn equal to them'.
18. Because a person is entitled to dispose of his property, as a gift, in any manner that appeals to him.
19. I.e., if he distributed the shares as portions of an inheritance and not as gifts.
20. V. supra n. 2 and 1.
21. Disposing of his property in a written will.
22. Though he used the expression of 'inheritance' also.
23. Lit., 'his words stand'. So long as the expression. 'as a gift', was used, the other expression. 'as an inheritance'. that may have been used with it, does not affect the validity of the testator's instructions.
24. Which forbids any stipulation that is contrary to a law of the Torah.
25. Even if it is contrary to a law of the Torah Since our Mishnah deals with money matters and yet it is stated that one's stipulation that is contrary to the Torah, is invalid, it obviously cannot agree with R. Judah's view.
26. The formula of marriage used by the bridegroom is, 'Behold, thou art consecrated unto me by this ring according to the law of Moses and Israel'.
27. Becomes his legal wife.
28. Because it is contrary to the law of the Torah. Cf. Ex. XXI, 10.
29. I.e., her 'food and raiment'. Now since the law is always decided in accordance with the view of R. Judah, in opposition to the rival view' of R. Meir, is it likely that our Mishnah is contrary to the accepted law?
30. In the stipulation about the food and clothing of one's wife.
31. By the acceptance of his proposal. Hence the validity of the stipulation.
32. The case in our Mishnah.
33. Which the Torah had conferred upon him. Hence the law that the stipulation is null.
34. His father's word is sufficient in this case to establish his right.
35. Such a firstborn has to be redeemed from the priest in the same way as the firstborn of a father, but is not entitled to a double portion.
36. The witness assumed that 'foolish firstborn' implied that he was 'firstborn to his father' and 'weak in intellect'.
37. 'Foolish', implying that he has the title 'firstborn' without the rights and privileges attached to it.
38. Complaining of certain pains or eruptions on their bodies.
39. [H] one whose sexual organs are undeveloped or concealed.
40. Lit., 'who was torn'.
41. Deut. XXI, 15.
42. Lit., 'until'.
43. Lit., 'from the moment'.
44. [H] being', 'existence', comes from the same root as [H] 'and if … be', in the text cited.
45. V. Deut. XXI, 28-21.
46. Ibid. v. 28.
47. Lit., 'until he shall be'.
48. V. supra n. 3.
49. Cf. I.e. n. 4. The Heb. for have in the text cited, is [H] of the same root as [H]