Bava Batra 126
ΧΦΌΧΦ΄ΧΦ°ΧΦΈΧ Χ©ΧΦΆΧ’Φ΄ΧΦΌΧΦΉ, Χ€ΦΌΦΈΧΦ°ΧΦ΄Χ.
And as for a loan that is with the firstborn, i.e., he had borrowed money from his father, then his father died, it is uncertain whether the payment should be considered property due to the father or property possessed by him. Therefore, the firstborn and his brothers divide the additional portion.
ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ ΧΧΦΌΧ ΦΈΧ ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ ΧΦ·Χ‘ΦΌΦ΄Χ: ΧΦΌΦ°ΧΧΦΉΧ¨ Χ©ΧΦΆΧΦΌΦ΄ΧΧΦΈΧ β ΧΦ΄ΧΧΦΈΧ.
Β§ With regard to the halakha that the firstborn is not entitled to a double portion of the enhancement of the property resulting from the actions of the heirs, Rav Huna says that Rav Asi says: A firstborn who protested the efforts of enhancing the property before it is divided has protested, and if the brothers use resources from the estate to enhance it against his will, he is entitled to a double portion of the enhanced value.
ΧΦΈΧΦ·Χ¨ Χ¨Φ·ΧΦΌΦΈΧ: ΧΦ΄Χ‘Φ°ΧͺΦΌΦ·ΧΦΌΦ΅Χ¨ ΧΦ·Χ’Φ°ΧΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨Φ·Χ ΧΦ·Χ‘ΦΌΦ΄Χ ΧΦΌΦ·Χ’Φ²Χ ΦΈΧΦ΄ΧΧ β ΧΦΌΧΦ°Χ¦ΦΈΧ¨ΧΦΌΧ, ΧΦ΅ΧΧͺΦ΄ΧΧ β ΧΦΌΧΦ°Χ‘ΦΈΧ§ΧΦΌΧ; ΧΦ²ΧΦΈΧ ΧΦΌΦ°Χ¨ΦΈΧΧΦΌΧ β ΧΦΈΧ. ΧΦ°Χ¨Φ·Χ ΧΧΦΉΧ‘Φ΅Χ£ ΧΦΈΧΦ·Χ¨: ΧΦ²Χ€Φ΄ΧΧΦΌΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΧΦΌΧ.
Rabba said: Rav Asiβs opinion is reasonable in a case where they inherited grapes on a grapevine and the brothers harvested them against the will of the firstborn, or if they inherited olives on olive trees and the brothers harvested them, as in these cases, the produce itself did not change. But if they treaded on them, converting them into wine or oil, even if the firstborn protested their doing so, he is not entitled to a double portion. And Rav Yosef said: Even if they treaded on them, the firstborn is entitled to a double portion.
ΧΦΌΦ°Χ¨ΦΈΧΧΦΌΧ?! ΧΦ΅Χ’Φ΄ΧΧ§ΦΌΦΈΧ¨ΦΈΧ Χ’Φ΄ΧΧ Φ°ΧΦ΅Χ, ΧΦ·Χ©ΧΦ°ΧͺΦΌΦΈΧ ΧΦ·ΧΦ°Χ¨ΦΈΧ!
The Gemara asks: Why is he entitled to a double portion, according to Rav Yosef, even if they treaded on them? Since the brothers transformed the produce, as initially it was in the form of grapes and now it is wine, they have acquired it in the same manner that a thief acquires an item he stole. Therefore, the firstborn should have no share of the enhancement.
ΧΦΌΦ΄ΧΦ°ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ Χ’ΧΦΌΧ§Φ°ΧΦΈΧ ΧΦΌΦ·Χ¨ ΧΦΈΧΦΈΧ: ΧΦ΄ΧΧͺΦΌΦ΅Χ ΧΧΦΉ ΧΦΌΦ°ΧΦ΅Χ ΧΦΆΧΧΦΌΦ΅Χ§ Χ’Φ²Χ ΦΈΧΦΈΧΧ; ΧΦΈΧΦΈΧ Χ ΦΈΧΦ΅Χ β Χ ΧΦΉΧͺΦ΅Χ ΧΧΦΉ ΧΦΌΦ°ΧΦ΅Χ ΧΦΆΧΧΦΌΦ΅Χ§ Χ’Φ²Χ ΦΈΧΦΈΧΧ.
The Gemara answers: Rav Yosef did not mean that the firstborn is entitled to a double portion of the enhanced value of the wine. Rather, his intention was the same as that which Rav Ukva bar αΈ€ama says in a different context, that the ruling is referring to a case where the wine spoiled, its value decreasing to below the initial value of the grapes, in which case the brothers must give the firstborn payment for the damage to his additional portion of the grapes. Here, too, Rav Yosef meant that the brothers must give the firstborn payment for the damage to his grapes.
ΧΦ΅ΧΧΦΈΧ ΧΦ΄ΧΧͺΦΌΦ°ΧΦ·Χ¨ ΧΦΌΦ°Χ¨Φ·Χ Χ’ΧΦΌΧ§Φ°ΧΦΈΧ ΧΦΌΦ·Χ¨ ΧΦΈΧΦΈΧ? ΧΦ·ΧΦΈΧ β ΧΦΌΦ°ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ ΧΦ°ΧΧΦΌΧΦΈΧ ΧΦΈΧΦ·Χ¨ Χ©ΧΦ°ΧΧΦΌΧΦ΅Χ: ΧΦΌΦ°ΧΧΦΉΧ¨ ΧΦΌΧ€ΦΈΧ©ΧΧΦΌΧ Χ©ΧΦΆΧΦ΄Χ ΦΌΦ΄ΧΧΦ· ΧΦΈΧΦΆΧ ΧΦ²ΧΦ΄ΧΧΦΆΧ Χ’Φ²Χ ΦΈΧΦ΄ΧΧ, ΧΦΌΧΦ°Χ¦ΦΈΧ¨ΧΦΌΧ; ΧΦ΅ΧΧͺΦ΄ΧΧ, ΧΦΌΧΦ°Χ‘ΦΈΧ§ΧΦΌΧ β ΧΦΌΦ°ΧΧΦΉΧ¨ Χ ΧΦΉΧΦ΅Χ Χ€ΦΌΦ΄Χ Χ©ΧΦ°Χ Φ·ΧΦ΄Χ, ΧΦ²Χ€Φ΄ΧΧΦΌΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΧΦΌΧ. ΧΦΌΦ°Χ¨ΦΈΧΧΦΌΧ?! ΧΦ΅Χ’Φ΄ΧΧ§ΦΌΦΈΧ¨ΦΈΧ Χ’Φ΄ΧΧ Φ°ΧΦ΅Χ, ΧΦ·Χ©ΧΦ°ΧͺΦΌΦΈΧ ΧΦ·ΧΦ°Χ¨ΦΈΧ! ΧΦΈΧΦ·Χ¨ ΧΦΈΧ¨ Χ’ΧΦΌΧ§Φ°ΧΦΈΧ ΧΦΌΦ·Χ¨ ΧΦΈΧΦΈΧ: ΧΦ΄ΧΧͺΦΌΦ΅Χ ΧΧΦΉ ΧΦΌΦ°ΧΦ΅Χ ΧΦΆΧΧΦΌΦ΅Χ§ Χ’Φ²Χ ΦΈΧΦΈΧΧ.
The Gemara explains: Where, i.e., in what context, was the statement of Rav Ukva bar αΈ€ama stated? It was in reference to that which Rav Yehuda says that Shmuel says: With regard to a firstborn and an ordinary son whose father left them grapes and they harvested them, or if he left them olives and they harvested them, the firstborn takes a double portion. This is the halakha even if they treaded on them. The Gemara asks: Why is he entitled to a double portion if they treaded on them; initially they were grapes, and now it is wine? Mar Ukva bar αΈ€ama says: Shmuel did not mean that he is entitled to a double portion of the wine; rather, the reference is to a case where the wine spoiled, its value decreasing to below the initial value of the grapes, in which case the ordinary brother must give the firstborn payment for the damage to his grapes.
ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ ΧΦ·Χ‘ΦΌΦ΄Χ: ΧΦΌΦ°ΧΧΦΉΧ¨ Χ©ΧΦΆΧ ΦΌΦΈΧΦ·Χ ΧΦ΅ΧΦΆΧ§ ΧΦΌΦ°Χ€ΦΈΧ©ΧΧΦΌΧ β ΧΦ΄ΧΧͺΦΌΦ΅Χ¨. ΧΦ·ΧΧ Χ΄ΧΦ΄ΧΧͺΦΌΦ΅Χ¨Χ΄? Χ¨Φ·Χ Χ€ΦΌΦΈΧ€ΦΌΦΈΧ ΧΦ΄Χ©ΦΌΧΦ°ΧΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΦΈΧ ΧΦΈΧΦ·Χ¨: ΧΦ΄ΧΧͺΦΌΦ΅Χ¨ ΧΦΌΦ°ΧΧΦΉΧͺΦΈΧΦΌ Χ©ΧΦΈΧΦΆΧ. Χ¨Φ·Χ Χ€ΦΌΦ·Χ€ΦΌΦ΄Χ ΧΦ΄Χ©ΦΌΧΦ°ΧΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΦΈΧ ΧΦΈΧΦ·Χ¨: ΧΦ΄ΧΧͺΦΌΦ΅Χ¨ ΧΦΌΦ°ΧΧΧ ΧΦ·Χ ΦΌΦ°ΧΦΈΧ‘Φ΄ΧΧ ΧΦΌΧΦΌΧΦΌΦΈΧ.
Β§ Rav Asi says: A firstborn who took a portion of the property like that of an ordinary heir has relinquished his right to an additional portion. The Gemara asks: What does it mean that he has relinquished his additional portion? Rav Pappa says in the name of Rava that he has relinquished his additional portion only with regard to that field that was divided, since he did not exercise his right to an additional portion, but he has not relinquished his right to receive an additional portion of the rest of the estate. Rav Pappi says in the name of Rava that he has relinquished his additional portion with regard to all of the property.
Χ¨Φ·Χ Χ€ΦΌΦΈΧ€ΦΌΦΈΧ ΧΦ΄Χ©ΦΌΧΦ°ΧΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΦΈΧ ΧΦΈΧΦ·Χ¨: ΧΦ΄ΧΧͺΦΌΦ΅Χ¨ ΧΦΌΦ°ΧΧΦΉΧͺΦΈΧΦΌ Χ©ΧΦΈΧΦΆΧ β Χ§ΦΈΧ Χ‘ΦΈΧΦ·Χ¨: ΧΦ΅ΧΧ ΧΧΦΉ ΧΦ·ΧΦΌΦ°ΧΧΦΉΧ¨ Χ§ΧΦΉΧΦΆΧ ΧΦ²ΧΧΦΌΧ§ΦΌΦΈΧ; ΧΦΌΧΦΈΧ ΧΦΌΦ·ΧΦ²ΧͺΦΈΧ ΧΦ΄ΧΧΦ΅ΧΧΦΌ β ΧΦ·ΧΦ΅ΧΧ, ΧΦ΄ΧΧΦΌΦ·ΧΦ° ΧΦΈΧ ΧΦ·ΧΦ΅ΧΧ.
The Gemara explains: Rav Pappa says in the name of Rava that he has relinquished his additional portion only with regard to that field that was divided, because he holds that a firstborn does not have a right to his additional portion before the division of the property. And therefore, he has waived his additional portion of what has already reached his possession, namely, the field that was divided, but he has not waived his portion of the other fields of the estate.
ΧΦ°Χ¨Φ·Χ Χ€ΦΌΦ·Χ€ΦΌΦ΅Χ ΧΦ΄Χ©ΦΌΧΦ°ΧΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΦΈΧ ΧΦΈΧΦ·Χ¨: ΧΦ΄ΧΧͺΦΌΦ΅Χ¨ ΧΦΌΦ°ΧΧΧ ΧΦ·Χ ΦΌΦ°ΧΦΈΧ‘Φ΄ΧΧ ΧΦΌΧΦΌΧΦΌΦΈΧ β Χ§ΦΈΧ Χ‘ΦΈΧΦ·Χ¨: ΧΦ΅Χ©Χ ΧΧΦΉ ΧΦ΄ΧΦ°ΧΧΦΉΧ¨ Χ§ΧΦΉΧΦΆΧ ΧΦ²ΧΧΦΌΧ§ΦΌΦΈΧ; ΧΦΌΧΦ΄ΧΦΌΦ°ΧΦ·ΧΦ΅ΧΧ ΧΦΌΦ°ΧΦΈΧ β ΧΦ·ΧΦ΅ΧΧ ΧΦΌΦ°ΧΧΦΌΧΦΌΦ°ΧΧΦΌ.
And Rav Pappi says in the name of Rava that he has relinquished his additional portion with regard to all of the property, as he holds that a firstborn has a right to his additional portion before the division of the property. And therefore, since he waived his additional portion in this field, he has waived his portion of all of the property.
ΧΦ°ΧΦΈΧ ΧΦΌΦ°Χ¨Φ·Χ Χ€ΦΌΦ·Χ€ΦΌΦ΅Χ ΧΦ°Χ¨Φ·Χ Χ€ΦΌΦΈΧ€ΦΌΦΈΧ β ΧΦΈΧΧ ΧΦΌΦ°Χ€Φ΅ΧΧ¨ΧΦΌΧ©Χ ΧΦ΄ΧΧͺΦΌΦ°ΧΦ·Χ¨, ΧΦΆΧΦΌΦΈΧ ΧΦ΄ΧΦΌΦ°ΧΦΈΧΦΈΧ ΧΦ΄ΧΧͺΦΌΦ°ΧΦ·Χ¨ β ΧΦΌΦ°ΧΦΈΧΧΦΌΧ ΧΦΌΦ°ΧΧΦΉΧ¨ ΧΦΌΦ·ΧΦ²ΧΦ·Χ ΧΦ·ΧΦΌΦ΅ΧΧ Χ Φ΄ΧΦ°Χ‘Φ΅Χ ΧΦΌΦ΄ΧΧΦ΅ΧΧΦΌ ΧΦΌΧΦ°Χ€ΦΈΧ©ΧΧΦΌΧ. ΧΦ²ΧΧΦΌΧ ΧΦ·ΧͺΦ°ΧΦ΅Χ ΧΦΌΦ°Χ Φ΅Χ Χ€ΦΌΦΈΧ©ΧΧΦΌΧ ΧΦ°ΧΦ΅ΧΧΦ·Χ ΧͺΦΌΦ·ΧΦ°Χ¨Φ΅Χ ΧΦ΅ΧΦΈΧ Φ°ΧΧΦΌ ΧΦΈΧ§ΧΦΉΧΧΦΉΧͺ, ΧΦ°ΧΧΦΉΧ Φ°ΧΧΦΌ. ΧΦΈΧΦ°Χ¨Φ΄Χ ΧΦ°ΧΧΦΌ Χ§Φ°Χ¨ΧΦΉΧΦ΄ΧΧ: ΧΦΈΧ ΧΦ΄ΧΧ‘ΦΌΦΈΧͺΦ°ΧΦΈΧΧ ΧΦΌΦ΄ΧΦ°ΧΦ·Χ Φ°ΧͺΦΌΦ΄ΧΧ Φ°ΧΧΦΌ ΧΦ°Χ Φ΄ΧΦ°Χ‘Φ·ΧΦ°ΧΧΧΦΌ, ΧΦΆΧΦΌΦΈΧ ΧΦ΄ΧΧΦ°ΧΦ΅Χ Χ ΦΈΧΦ΅Χ ΧΦΈΧΦ΄ΧΧͺΧΦΌ ΧΦ°ΧΧΦΌ? ΧΦ²ΧͺΧΦΉ ΧΦ°Χ§Φ·ΧΦΌΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨ΦΈΧΦΈΧ, ΧΦ²ΧΦ·Χ¨ ΧΦ°ΧΧΦΌ: ΧΦΉΧ Χ’ΦΈΧ©ΧΦΈΧ ΧΦ°ΧΦΉΧ ΧΦ°ΧΧΦΌΧ.
The Gemara notes: And this dispute of Rav Pappi and Rav Pappa was not stated explicitly; rather, it was stated by inference. As there was a certain firstborn who went and sold his property and the property of his deceased ordinary brother, i.e., their respective portions of their fatherβs property, before the property was divided. The orphan sons of the ordinary brother went to eat dates from the field that was now in the possession of those purchasers, due to their fatherβs share in the field. The purchasers hit them, as though they were thieves. The relatives of the orphans said to the purchasers: Not only did you purchase their property illegally, but you now hit them as well? They came before Rava, who said to them: The firstborn has done nothing. His sale was not valid.
ΧΦΈΧ¨ Χ‘ΦΈΧΦ·Χ¨: ΧΦΉΧ Χ’ΦΈΧ©ΧΦΈΧ ΧΦΌΦ°ΧΧΦΌΧ β ΧΦΌΦ°Χ€Φ·ΧΦ°ΧΦΈΧ. ΧΦΌΧΦΈΧ¨ Χ‘ΦΈΧΦ·Χ¨: ΧΦΌΦ°ΧΧΦΌΧΦΌΦ°ΧΧΦΌ.
Rav Pappi and Rav Pappa disagree with regard to Ravaβs intention. One Sage, Rav Pappi, holds that he has done nothing with regard to his brotherβs portion, as he had no right to sell it; with regard to his own additional portion, the sale was valid, as it was in his possession even before the division of the property. And one Sage, Rav Pappa, holds that he has done nothing with regard to all of the property, as he does not possess the additional portion before the property is divided between the brothers.
Χ©ΧΦ°ΧΦ·ΧΧΦΌ ΧΦ΄ΧͺΦΌΦΈΧ: ΧΦΌΦ°ΧΧΦΉΧ¨ Χ©ΧΦΆΧΦΌΦΈΧΦ·Χ¨ Χ§ΧΦΉΧΦΆΧ ΧΦ²ΧΧΦΌΧ§ΦΌΦΈΧ β ΧΦΉΧ Χ’ΦΈΧ©ΧΦΈΧ ΧΦΌΦ°ΧΧΦΌΧ. ΧΦ·ΧΦ°ΧΦΈΧ ΧΦ΅ΧΧ ΧΧΦΉ ΧΦ·ΧΦΌΦ°ΧΧΦΉΧ¨ Χ§ΧΦΉΧΦΆΧ ΧΦ²ΧΧΦΌΧ§ΦΌΦΈΧ. ΧΦ°ΧΦ΄ΧΦ°ΧΦ°ΧͺΦΈΧ: ΧΦ΅Χ©Χ ΧΦ·ΧΦΌΦ°ΧΧΦΉΧ¨ Χ§ΧΦΉΧΦΆΧ ΧΦ²ΧΧΦΌΧ§ΦΌΦΈΧ.
The Gemara notes that they sent a ruling from there, Eretz Yisrael: A firstborn who sold his additional portion before the division of the property has done nothing. Apparently, the Sages of Eretz Yisrael hold that a firstborn does not have a right to his additional portion before the division. But the halakha is that a firstborn has a right to his additional portion before the division.
ΧΦΈΧ¨ ΧΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ΄ΧΦΌΦ°Χ¨Φ΄ΧΧ©ΧΦ°ΧΦΌΦΈΧ Χ€ΦΌΦ°ΧΦ·Χ ΧΦΌΦ°Χ¦Φ·Χ ΦΌΦΈΧ ΧΦ°Χ€Φ΄ΧΦ°Χ€ΦΌΦ°ΧΦ΅Χ ΧΦΌΦ·ΧΦ²ΧΦ΅Χ ΧΦ·ΧΦ΄ΧΧ, ΧΦΌΦ°Χ©ΧΦΈΧΦΆΧ. ΧΦ²ΧͺΦΈΧ ΧΦ°Χ§Φ·ΧΦΌΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨Φ·Χ ΧΦΈΧ©ΧΦ΅Χ, ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΧΦΉΧΦ΄ΧΧ ΧΦ΄ΧΧͺΦΌΦ·Χ¨Φ°ΧͺΦΌΦΈΧ ΧΦΌΦ°ΧΦ΄Χ§Φ°Χ¦ΦΈΧͺ β ΧΦ΄ΧΧͺΦΌΦ·Χ¨Φ°ΧͺΦΌΦΈΧ ΧΦΌΦ°ΧΧΧ ΧΦ·Χ ΦΌΦ°ΧΦΈΧ‘Φ΄ΧΧ ΧΦΌΧΦΌΧΦΌΦΈΧ.
The Gemara relates: Mar Zutra of the house of Rishba, who was a firstborn, divided a basket of peppers from the estate of his father with his brothers equally. He came before Rav Ashi to claim a double portion of the rest of the estate. Rav Ashi said to him: Since you relinquished your additional portion with regard to some of the estate, you have relinquished your additional portion with regard to all of the property, as a firstborn has a right to his additional portion before the division.
ΧΦ·ΧͺΦ°Χ Φ΄ΧΧ³ ΧΦΈΧΧΦΉΧΦ΅Χ¨: Χ΄ΧΦ΄ΧΧ©Χ Χ€ΦΌΦ°ΧΧΦΉΧ Φ΄Χ ΧΦΌΦ°Χ Φ΄Χ ΧΦΌΦ°ΧΧΦΉΧ¨ ΧΦΉΧ ΧΦ΄ΧΦΌΧΦΉΧ Χ€ΦΌΦ΄Χ Χ©ΧΦ°Χ Φ·ΧΦ΄ΧΧ΄; Χ΄ΧΦ΄ΧΧ©Χ Χ€ΦΌΦ°ΧΧΦΉΧ Φ΄Χ ΧΦΌΦ°Χ Φ΄Χ ΧΦΉΧ ΧΦ΄ΧΧ¨Φ·Χ©Χ Χ’Φ΄Χ ΧΦΆΧΦΈΧΧΧ΄ β ΧΦΉΧ ΧΦΈΧΦ·Χ¨ ΧΦΌΦ°ΧΧΦΌΧ, Χ©ΧΦΆΧΦ΄ΧͺΦ°Χ ΦΈΧ Χ’Φ·Χ ΧΦ·Χ Χ©ΧΦΌΦΆΧΦΌΦΈΧͺΧΦΌΧ ΧΦΌΦ·ΧͺΦΌΧΦΉΧ¨ΦΈΧ.
MISHNA: In a case of one who says: So-and-so, my firstborn son, will not take a double portion of my estate; or one who says: So-and-so, my son, will not inherit my estate among his brothers, he has said nothing, as he has stipulated counter to that which is written in the Torah.
ΧΦ·ΧΦ°ΧΦ·ΧΦΌΦ΅Χ§ Χ Φ°ΧΦΈΧ‘ΦΈΧΧ Χ’Φ·Χ Χ€ΦΌΦ΄ΧΧ; Χ¨Φ΄ΧΧΦΌΦΈΧ ΧΦ°ΧΦΆΧΦΈΧ ΧΦΌΧΦ΄ΧΧ’Φ΅Χ ΧΦ°ΧΦΆΧΦΈΧ, ΧΦ°ΧΦ΄Χ©ΧΦ°ΧΦΈΧ ΧΦΈΧΦΆΧ ΧΦΆΧͺ ΧΦ·ΧΦΌΦ°ΧΧΦΉΧ¨ β ΧΦΌΦ°ΧΦΈΧ¨ΦΈΧΧ Χ§Φ·ΧΦΌΦΈΧΧΦ΄ΧΧ. ΧΦ°ΧΦ΄Χ ΧΦΈΧΦ·Χ¨ ΧΦ΄Χ©ΦΌΧΧΦΌΧ ΧΦ°Χ¨ΧΦΌΧ©ΦΌΧΦΈΧ β ΧΦΉΧ ΧΦΈΧΦ·Χ¨ ΧΦΌΦ°ΧΧΦΌΧ. ΧΦΌΦΈΧͺΦ·Χ ΧΦΌΦ΅ΧΧ ΧΦΌΦ·ΧͺΦΌΦ°ΧΦ΄ΧΦΌΦΈΧ ΧΦΌΦ΅ΧΧ ΧΦΌΦΈΧΦΆΧΦ°Χ¦Φ·Χ’ ΧΦΌΦ΅ΧΧ ΧΦΌΦ·Χ‘ΦΌΧΦΉΧ£ β ΧΦ΄Χ©ΦΌΧΧΦΌΧ ΧΦ·ΧͺΦΌΦΈΧ ΦΈΧ, ΧΦΌΦ°ΧΦΈΧ¨ΦΈΧΧ Χ§Φ·ΧΦΌΦΈΧΧΦ΄ΧΧ.
With regard to one on his deathbed who apportions his property orally, granting it to his sons as a gift, and he increased the portion given to one of his sons and reduced the portion given to one son, or equated the portion of the firstborn to the portions of the other sons, his statement stands. But if he said that they will receive the property not as a gift but as inheritance, he has said nothing. If he wrote in his will, whether at the beginning, or in the middle, or at the end, that he is granting them the property as a gift, his statement stands.
ΧΦΌΦ°ΧΦΈΧ³ ΧΦ΅ΧΧΦΈΧ ΧΦ·ΧͺΦ°Χ Φ΄ΧΧͺΦ΄ΧΧ ΧΦΌΦ°ΧΦΈΧ ΧΦΌΦ°Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ°ΧΧΦΌΧΦΈΧ? ΧΦΌΦ°ΧΦ΄Χ Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ°ΧΧΦΌΧΦΈΧ, ΧΦΈΧΦΈΧΦ·Χ¨: ΧΦΌΦ°ΧΦΈΧΦΈΧ¨ Χ©ΧΦΆΧ ΧΦΈΧΧΦΉΧ ΧͺΦΌΦ°Χ ΦΈΧΧΦΉ Χ§Φ·ΧΦΌΦΈΧΧ!
GEMARA: The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Yehuda, as if it is in accordance with the opinion of Rabbi Yehuda, doesnβt he say elsewhere that if one stipulates counter to that which is written in the Torah with regard to monetary matters, his stipulation stands?
ΧΦΌΦ°ΧͺΦ·Χ Φ°ΧΦΈΧ, ΧΦΈΧΧΦΉΧΦ΅Χ¨ ΧΦ°ΧΦ΄Χ©ΦΌΧΦΈΧ: Χ΄ΧΦ²Χ¨Φ΅Χ ΧΦ·ΧͺΦΌΦ° ΧΦ°Χ§ΧΦΌΧΦΌΦΆΧ©ΧΦΆΧͺ ΧΦ΄Χ, Χ’Φ·Χ ΧΦ°Χ ΦΈΧͺ Χ©ΧΦΆΧΦ΅ΧΧ ΧΦ΄ΧΧΦ° Χ’ΦΈΧΦ·Χ Χ©ΧΦ°ΧΦ΅Χ¨ ΧΦΌΦ°Χ‘ΧΦΌΧͺ ΧΦ°Χ’ΧΦΉΧ ΦΈΧΧ΄ β ΧΦ²Χ¨Φ΅Χ ΧΧΦΉ ΧΦ°Χ§ΧΦΌΧΦΌΦΆΧ©ΧΦΆΧͺ, ΧΦΌΧͺΦ°Χ ΦΈΧΧΦΉ ΧΦΌΦΈΧΦ΅Χ; ΧΦΌΦ΄ΧΦ°Χ¨Φ΅Χ Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ΅ΧΦ΄ΧΧ¨. Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ°ΧΧΦΌΧΦΈΧ ΧΧΦΉΧΦ΅Χ¨: ΧΦΌΦ°ΧΦΈΧΦΈΧ¨ Χ©ΧΦΆΧ ΧΦΈΧΧΦΉΧ β ΧͺΦΌΦ°Χ ΦΈΧΧΦΉ Χ§Φ·ΧΦΌΦΈΧΧ!
As it is taught in a baraita (Tosefta, Kiddushin 3:7): If one says to a woman: You are hereby betrothed to me on the condition that you have no ability to claim from me food, clothing, and conjugal rights, she is betrothed and his stipulation is void; this is the statement of Rabbi Meir. Rabbi Yehuda says: With regard to monetary matters, such as food and clothing, his stipulation stands, despite being counter to that which is written in the Torah. According to the opinion of Rabbi Yehuda, one should be able to stipulate that his firstborn son not receive a double portion, or that one of his sons not inherit from him at all, as inheritance is a monetary matter.
ΧΦ²Χ€Φ΄ΧΧΦΌΧΦΌ ΧͺΦΌΦ΅ΧΧΦΈΧ Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ°ΧΧΦΌΧΦΈΧ: ΧΦΈΧͺΦΈΧ ΧΦΈΧΦ°Χ’ΦΈΧ ΧΦ°Χ§ΦΈΧ ΧΦΈΧΦ²ΧΦΈΧ, ΧΦΈΧΦΈΧ ΧΦΈΧ Χ§ΦΈΧ ΧΦΈΧΦ΅ΧΧ.
The Gemara rejects this suggestion: Even if you say that the mishna is in accordance with the opinion of Rabbi Yehuda, there, the woman knew of his stipulation and waived her rights. Therefore, the stipulation stands. Here, the son whose portion was reduced did not waive his portion. Therefore the stipulation is not valid.
ΧΦΈΧΦ·Χ¨ Χ¨Φ·Χ ΧΧΦΉΧ‘Φ΅Χ£, ΧΦΈΧΦ·Χ¨: Χ΄ΧΦ΄ΧΧ©Χ Χ€ΦΌΦ°ΧΧΦΉΧ Φ΄Χ ΧΦΌΦ°Χ Φ΄Χ, ΧΦΌΦ°ΧΧΦΉΧ¨Φ΄Χ ΧΧΦΌΧΧ΄ β Χ ΧΦΉΧΦ΅Χ Χ€ΦΌΦ΄Χ Χ©ΧΦ°Χ Φ·ΧΦ΄Χ. Χ΄ΧΦ΄ΧΧ©Χ Χ€ΦΌΦ°ΧΧΦΉΧ Φ΄Χ ΧΦΌΦ°ΧΧΦΉΧ¨ ΧΧΦΌΧΧ΄ β ΧΦ΅ΧΧ ΧΦΉ Χ ΧΦΉΧΦ΅Χ Χ€ΦΌΦ΄Χ Χ©ΧΦ°Χ Φ·ΧΦ΄Χ, ΧΦΌΦ΄ΧΦ°ΧΦΈΧ ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ΄ΧΦΌΦΈΧ Χ§ΦΈΧΦΈΧΦ·Χ¨.
Β§ Rav Yosef says that if a man says: So-and-so is my firstborn son, the son takes a double portion of his inheritance based on this testimony. If he says: So-and-so is a firstborn, the son does not take a double portion, as perhaps the man was saying that the son is his motherβs firstborn but not his own firstborn.
ΧΦΈΧΧΦΌΧ ΧΦΌΦ·ΧΦ²ΧͺΦΈΧ ΧΦ°Χ§Φ·ΧΦΌΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨Φ·ΧΦΌΦΈΧ ΧΦΌΦ·Χ¨ ΧΦΌΦ·Χ¨ ΧΦΈΧ ΦΈΧ, ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΧΦΌΧΦ°ΧΦ°Χ§Φ·Χ Φ΄Χ ΧΦΌΦΈΧΦΆΧ Χ©ΧΦΆΧΧΦΌΧ ΧΦΌΦ°ΧΧΦΉΧ¨. ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΦ°Χ ΦΈΧ ΧΦΈΧΦ°Χ’Φ·ΧͺΦΌΦ°? ΧΦΌΦ·ΧΦ²ΧΦΈΧ Χ§ΦΈΧ¨Φ΅Χ ΧΦ΅ΧΧΦΌ ΧΦ²ΧΧΦΌΧΦΌ Χ΄ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ Χ‘Φ·ΧΦ°ΧΦΈΧΧ΄. ΧΦΌΦ΄ΧΦ°ΧΦΈΧ ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ΄ΧΦΌΦΈΧ ΧΧΦΌΧ, ΧΦΌΦ°ΧΧΧ ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ΄ΧΦΌΦΈΧ Χ ΦΈΧΦ΅Χ Χ΄ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ Χ‘Φ·ΧΦ°ΧΦΈΧΧ΄ Χ§ΦΈΧΧ¨ΧΦΌ ΧΦ΅ΧΧΦΌ.
The Gemara relates: There was a certain man who came before Rabba bar bar αΈ€ana and said to him: I know that this man is a firstborn. Rabba bar bar αΈ€ana said to him: From where do you know? He answered: Because his father would call him a foolish firstborn. Rabba bar bar αΈ€ana replied: Perhaps he is his motherβs firstborn, as any firstborn of a mother is also called a foolish firstborn.
ΧΦΈΧΧΦΌΧ ΧΦΌΦ·ΧΦ²ΧͺΦΈΧ ΧΦ°Χ§Φ·ΧΦΌΦ΅ΧΧΦΌ ΧΦΌΦ°Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ²Χ Φ΄ΧΧ ΦΈΧ, ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΧΦΌΧΦ°ΧΦ°Χ§Φ·Χ Φ΄Χ ΧΦΌΦΈΧΦΆΧ Χ©ΧΦΆΧΧΦΌΧ ΧΦΌΦ°ΧΧΦΉΧ¨. ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΦ°Χ ΦΈΧ ΧΦΈΧΦ°Χ’Φ·ΧͺΦΌΦ°? ΧΦ²ΧΦ·Χ¨ ΧΦ΅ΧΧΦΌ: ΧΦΌΦ°ΧΦ΄Χ ΧΦ²ΧΧΦΉ ΧΦΈΧͺΧΦΌ ΧΦ°ΧΦ·ΧΦΌΦ΅Χ ΧΦ²ΧΧΦΌΧΦΌ, ΧΦ²ΧΦ·Χ¨ ΧΦ°ΧΧΦΌ: ΧΦ΄ΧΧΧΦΌ ΧΦ°ΧΦ·ΧΦΌΦ΅Χ Χ©ΧΦ΄ΧΦ°ΧΦ·Χͺ ΧΦΌΦ°Χ¨Φ΄Χ, ΧΦΌΦ°ΧΧΦΌΧΦ°Χ¨ΦΈΧ ΧΧΦΌΧ ΧΦΌΧΦ·Χ‘ΦΌΦ΅Χ Χ¨ΧΦΌΧ§ΦΌΦ΅ΧΧΦΌ.
The Gemara relates: There was a certain man who came before Rabbi αΈ€anina and said to him: I know that this man is a firstborn. Rabbi αΈ€anina said to him: From where do you know? He said to Rabbi αΈ€anina: Because when people would come before his father to obtain a cure for their ailing eyes, he would say to them: Go to my son ShikhαΈ₯at, as he is a firstborn and his saliva heals this ailment.
ΧΦ°ΧΦ΄ΧΦ°ΧΦΈΧ ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ΄ΧΦΌΦΈΧ ΧΧΦΌΧ! ΧΦΌΦ°ΧΦ΄ΧΧ¨Φ΄Χ: ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ·ΧΦΌΦΈΧ β ΧΦ·Χ‘ΦΌΦ΅Χ Χ¨ΧΦΌΧ§ΦΌΦ΅ΧΧΦΌ, ΧΦΌΧΦΌΧΦ°Χ¨ΦΈΧ ΧΦ°ΧΦ΄ΧΦΌΦΈΧ β ΧΦΈΧ ΧΦ·Χ‘ΦΌΦ΅Χ Χ¨ΧΦΌΧ§ΦΌΦ΅ΧΧΦΌ.
The Gemara asks: But perhaps he is his motherβs firstborn? The Gemara answers: It is learned as a tradition that the saliva of a fatherβs firstborn heals this ailment but the saliva of a motherβs firstborn does not heal this ailment.
ΧΦΈΧΦ·Χ¨ Χ¨Φ·ΧΦΌΦ΄Χ ΧΦ·ΧΦΌΦ΅Χ: ΧΧΦΌΧΦ°ΧΧΦΌΧ Χ©ΧΦΆΧ ΦΌΦ΄Χ§Φ°Χ¨Φ·Χ’ ΧΦ°Χ Φ΄ΧΦ°Χ¦ΦΈΧ ΧΦΈΧΦΈΧ¨, ΧΦ΅ΧΧ ΧΦΉ Χ ΧΦΉΧΦ΅Χ Χ€ΦΌΦ΄Χ Χ©ΧΦ°Χ Φ·ΧΦ΄Χ; ΧΦΌΦ°ΧΦΈΧΦ·Χ¨ Χ§Φ°Χ¨ΦΈΧ: Χ΄ΧΦ°ΧΦΈΧΦΈΧ ΧΦ·ΧΦΌΦ΅Χ ΧΦ·ΧΦΌΦ°ΧΧΦΉΧ¨ ΧΦ·Χ©ΦΌΧΦ°Χ Φ΄ΧΧΦΈΧΧ΄ β Χ’Φ·Χ Χ©ΧΦΆΧΦΌΦ°ΧΦ΅Χ ΧΦΌΦ΅Χ ΧΦ΄Χ©ΦΌΧΦ°Χ’Φ·Χͺ ΧΦ²ΧΦΈΧΦΈΧ.
Β§ Rabbi Ami says: In the case of one whose sexual organs are indeterminate [tumtum] and whose skin became perforated so that his genitals were exposed and he was found to be a male, he does not take a double portion of his fatherβs estate. As the verse states: βAnd if the firstborn son was [vehaya] hers that was hatedβ (Deuteronomy 21:15), which is interpreted to mean that he is not considered a firstborn unless he is recognized as a son, i.e., male, from the moment of his coming into being [havaya], i.e., his birth.
Χ¨Φ·Χ Χ Φ·ΧΦ°ΧΦΈΧ ΧΦΌΦ·Χ¨ ΧΦ΄Χ¦Φ°ΧΦΈΧ§ ΧΦΈΧΦ·Χ¨: ΧΦ·Χ£ ΧΦ΅ΧΧ ΧΦΉ Χ Φ΄ΧΧΦΌΧΦΉΧ ΧΦΌΦ°ΧΦ΅Χ Χ‘ΧΦΉΧ¨Φ΅Χ¨ ΧΦΌΧΧΦΉΧ¨ΦΆΧ, ΧΦΌΦ°ΧΦΈΧΦ·Χ¨ Χ§Φ°Χ¨ΦΈΧ: Χ΄ΧΦΌΦ΄Χ ΧΦ΄ΧΦ°ΧΦΆΧ ΧΦ°ΧΦ΄ΧΧ©Χ ΧΦΌΦ΅Χ Χ‘ΧΦΉΧ¨Φ΅Χ¨ ΧΦΌΧΧΦΉΧ¨ΦΆΧΧ΄ β Χ’Φ·Χ Χ©ΧΦΆΧΦΌΦ°ΧΦ΅Χ ΧΦΌΦ΅Χ ΧΦ΄Χ©ΦΌΧΦ°Χ’Φ·Χͺ ΧΦ²ΧΦΈΧΦΈΧ.
Rav NaαΈ₯man bar YitzαΈ₯ak says: A tumtum who was found to be male is also not judged as a stubborn and rebellious son, as the verse states: βIf there will be [yihyeh] to a man a stubborn and rebellious sonβ (Deuteronomy 21:18), which is interpreted to mean that one is not judged in this manner unless he is recognized as a son from the moment of his coming into being.