Bava Batra 127

אמימר אמר אף אינו ממעט חלק בכורה שנאמר וילדה לו בנים עד שיהא בן בשעת לידה

Ameimar says: A tumtum who was found to be male also does not reduce the additional portion of the firstborn. His portion is not taken into account in the calculation of the firstborn’s additional portion. For example, if there are three brothers: A firstborn, an ordinary brother, and a tumtum, the firstborn receives one-third of the property as his additional portion, as he would if he and the ordinary brother were the only heirs, and the remaining two-thirds are divided among all three brothers. This is because it is stated with regard to the portion of the firstborn: “And they have borne him sons” (Deuteronomy 21:15), which is interpreted to mean that the brother of a firstborn does not affect his additional portion unless he is recognized as a son at the moment of his birth.

רב שיזבי אמר אף אינו נימול לשמנה דאמר קרא אשה כי תזריע וילדה זכר וביום השמיני ימול עד שיהא זכר משעת לידה

Rav Sheizevi says: A tumtum who was found to be male is also not circumcised on the eighth day, if his eighth day occurs on Shabbat, although the mitzva of circumcision on the eighth day generally overrides Shabbat prohibtions. As the verse states: “If a woman bears seed and gives birth to a male then she shall be unclean seven days; as in the days of the impurity of her sickness shall she be unclean. And on the eighth day the flesh of his foreskin shall be circumcised” (Leviticus 12:2–3), which is interpreted to mean that he is not circumcised on the eighth day, in the event that it occurs on Shabbat, unless he is recognized as a male from the moment of his birth.

רב שרביא אמר אף אין אמו טמאה לידה דאמר קרא אשה כי תזריע וילדה זכר וטמאה שבעת ימים עד שיהא זכר משעת לידה

Rav Sherevya says: His mother is also not rendered ritually impure due to his birth, as the verse states: “If a woman bears seed and gives birth to a male, then she shall be unclean seven days,” which is interpreted to mean that she is not rendered impure unless he is recognized as a male from the moment of his birth.

מיתיבי המפלת טומטום ואנדרוגינוס תשב לזכר ולנקיבה תיובתיה דרב שרביא תיובתא

The Gemara raises an objection from a mishna (Nidda 28a): A woman who miscarries a tumtum or a hermaphrodite [ve’androginos] observes the strictures of a woman who gave birth to a male and to a female. Since it is uncertain whether the fetus is male or female, the woman must observe the halakhot of ritual impurity according to both possibilities. This appears to be a conclusive refutation of the statement of Rav Sherevya that a woman who gives birth to a tumtum is not rendered impure at all. The Gemara affirms: This is a conclusive refutation.

לימא תיהוי תיובתא דרב שיזבי

The Gemara asks: Shall we say it is also a conclusive refutation of the statement of Rav Sheizevi with regard to circumcision, as the halakha of circumsicion is stated together with the halakha of ritual impurity?

תנא ספוקי מספקא ליה ולחומרא

The Gemara answers: The tanna of the mishna in tractate Nidda is uncertain whether the birth discussed in the verse includes that of a tumtum, and therefore he rules stringently, that she should observe the halakhot of ritual impurity for both possibilities. Rav Sheizevi’s ruling can follow the same logic: The infant should not be circumcised on Shabbat, as it is uncertain whether the mitzva of his circumcision overrides the prohibitions of Shabbat.

אי הכי תשב לזכר ולנקבה ולנדה מיבעי ליה קשיא

The Gemara asks: If so, that the tanna of the mishna in tractate Nidda is uncertain whether the birth discussed in the verse includes that of a tumtum, the mishna should have stated that the woman observes the strictures of a woman who gave birth to both a male and to a female, and also as a menstruating woman. If it is uncertain whether the halakhot of ritual purity after birth pertain to a woman who gives birth to a tumtum at all, she should observe the halakhot of ritual impurity for any blood that emerges in the time period following the birth, as it should have the status of the blood of a menstruating woman. The Gemara concludes: This poses a difficulty.

אמר רבא תניא כוותיה דרבי אמי בן ולא טומטום בכור ולא ספק

Rava says that it is taught in a baraita in accordance with the opinion of Rabbi Ami that a tumtum firstborn does not receive a double portion of the inheritance. The baraita states: From the phrase “the firstborn son” (Deuteronomy 21:15) it is derived that only a son receives a double portion, but not a tumtum, and only a definite firstborn receives a double portion, but not one about whom it is uncertain if he is a firstborn.

בשלמא בן ולא טומטום כדרבי אמי אלא בכור ולא ספק לאפוקי מאי

The Gemara asks: Granted, the halakha that a son receives a double portion but a tumtum does not is understandable, as it is in accordance with the statement of Rabbi Ami, but what case does the halakha that only a definite firstborn receives a double portion but not one about whom it is uncertain if he is a firstborn serve to exclude? Why would one about whom it is uncertain if he is a firstborn receive a double portion?

לאפוקי מדדרש רבא דדרש רבא שתי נשים שילדו שני זכרים במחבא כותבין הרשאה זה לזה

The Gemara answers: It serves to exclude that which Rava taught, as Rava taught that if two wives of the same husband gave birth to two males in hiding, so that it is unknown which son was born first, and the husband subsequently had other sons, each of the two possible firstborns writes an authorization to the other. Since their brothers can claim against each of them individually that he is not the firstborn and does not deserve a double portion, each writes the other an authorization to collect his portion, so that they can jointly claim the additional portion in any event.

אמר ליה רב פפא לרבא והא שלח רבין דבר זה שאלתי לכל רבותי ולא אמרו לי דבר ברם כך אמרו משום רבי ינאי הוכרו ולבסוף נתערבו כותבין הרשאה זה לזה לא הוכרו אין כותבין הרשאה זה לזה

Rav Pappa subsequently said to Rava: But didn’t Ravin send a letter from Eretz Yisrael to Babylonia, stating: I asked all my teachers about this matter and they did not tell me anything; but this is what they said in the name of Rabbi Yannai: If the two sons were initially recognized, i.e., it was known which one of them was the firstborn, and they were ultimately mixed, and now the firstborn cannot be identified, each writes an authorization to the other. If they were not initially recognized, each does not write an authorization to the other.

הדר אוקי רבא אמורא עליה ודרש דברים שאמרתי לכם טעות הן בידי ברם כך אמרו משום רבי ינאי הוכרו ולבסוף נתערבו כותבין הרשאה זה לזה לא הוכרו אין כותבין הרשאה זה לזה

Rava then established an amora to repeat his lesson to the masses aloud and taught: The statements that I said to you are a mistake on my part. But this is what they said in the name of Rabbi Yannai: If the two sons were initially recognized and were ultimately mixed, each writes an authorization to the other. If they were not initially recognized, each does not write an authorization to the other.

שלחו ליה בני אקרא דאגמא לשמואל ילמדנו רבינו היו מוחזקין בזה שהוא בכור ואמר אביו על אחר בכור הוא מהו שלח להו כותבין הרשאה

§ The residents of Akra De’Agma sent the following inquiry to Shmuel: Teach us, our master: If the court had a presumption concerning this son, that he is a firstborn, and his father says concerning another son of his: He is his firstborn, what is the halakha? Shmuel sent to them in response: Both of these sons write an authorization,

זה לזה

each to the other.

מה נפשך אי כרבנן סבירא ליה לישלח להו כרבנן אי כרבי יהודה סבירא ליה לישלח להו כרבי יהודה

The Gemara questions this ruling: Whichever way you look at it, Shmuel’s opinion is difficult. If he holds in accordance with the opinion of the Rabbis with regard to this issue, he should have sent them a response in accordance with the opinion of the Rabbis, and if he holds in accordance with the opinion of Rabbi Yehuda, he should have sent them a response in accordance with the opinion of Rabbi Yehuda. Shmuel’s response is not in accordance with either tannaitic opinion.

מספקא ליה אי כרבי יהודה אי כרבנן

The Gemara answers: He is uncertain whether the halakha is in accordance with the opinion of Rabbi Yehuda or in accordance with the opinion of the Rabbis. Therefore he sent them a response that incorporates both opinions.

מאי היא דתניא יכיר יכירנו לאחרים

The Gemara explains: What is the dispute between Rabbi Yehuda and the Rabbis? As it is taught in a baraita: Expounding the verse: “He shall acknowledge the firstborn” (Deuteronomy 21:17), the Sages said: He shall acknowledge him to others. In other words, a father is deemed credible to tell others that this is his firstborn.

מכאן אמר רבי יהודה נאמן אדם לומר זה בני בכור וכשם שנאמן אדם לומר זה בני בכור כך נאמן אדם לומר זה בן גרושה וזה בן חלוצה וחכמים אומרים אינו נאמן

From here, Rabbi Yehuda says that a man is deemed credible to say: This is my firstborn son, even if he has sons presumed to be older. And just as a man is deemed credible to say: This is my firstborn son, so too, a man who is a priest is deemed credible to say about his son: This is a son of a divorced woman, or: This is a son of a yevama who has performed ḥalitza [ḥalutza], in which cases he is disqualified from the priesthood due to his flawed lineage [ḥalal]. And the Rabbis say: He is not deemed credible.

אמר ליה רב נחמן בר יצחק לרבא בשלמא לרבי יהודה היינו דכתיב יכיר אלא לרבנן יכיר למה לי

Rav Naḥman bar Yitzḥak said to Rava: Granted, according to Rabbi Yehuda, this is the reason that it is written: “He shall acknowledge;” he derives from these words that a father is deemed credible to attest to the identity of his sons. But according to the Rabbis, why do I need the term “he shall acknowledge”?

בצריך היכרא

The Gemara answers: It is necessary for a case when he requires identification, i.e., when there is no presumption as to the identity of the firstborn. In such a situation the verse teaches that the father is deemed credible. The Rabbis disagree with Rabbi Yehuda’s opinion only in a case where another son is presumed to be the firstborn.

למאי הלכתא למיתבא לו פי שנים לא יהא אלא אחר אילו בעי למיתבא ליה במתנה מי לא יהיב ליה

The Gemara asks: According to the Rabbis, with regard to what halakha is it necessary for the verse to teach that a father’s identification of his firstborn is deemed credible? If it is with regard to giving him a double portion, it is superfluous. Let the son be only like another person, i.e., one who is not an heir; if the father wants to give him a double portion of his estate as a gift, can he not give it to him? Since the father can give a double portion to the firstborn without having to testify that he is his firstborn, it cannot be that the verse is teaching us that he is deemed credible with regard to the halakha that a firstborn receives a double portion.

לא צריכא בנכסים שנפלו לו לאחר מכאן

The Gemara answers: No, it is necessary with regard to property that came into the father’s possession afterward, after he testified that his son is his firstborn. He could not have given him this property as a gift, as at the time of his testimony, the property did not yet belong to him, and one cannot transfer ownership of an item that one does not own. Therefore, it is necessary for the verse to teach that the father’s testimony is deemed credible so that the son can receive a double portion of the father’s future property as well.

ולרבי מאיר דאמר אדם מקנה דבר שלא בא לעולם יכיר למה לי

The Gemara asks: And according to Rabbi Meir, who says that a person can transfer an entity that has not yet come into the world, which would mean that one can give away his property even before it enters his possession, why do I need the term “he shall acknowledge”?

בנכסים שנפלו לו כשהוא גוסס

The Gemara answers: The term is necessary for a case where property came into the father’s possession when he was moribund, at which point he cannot transfer ownership of any of his property to others. It is with regard to such property that the verse states: “He shall acknowledge,” to teach that the son who the father states is the firstborn will receive a double portion even of that property.

תנו רבנן היו מוחזקין בו שהוא בכור ואמר אביו על אחר שהוא בכור נאמן היו מוחזקין בו שאינו בכור ואמר אביו בכור הוא אינו נאמן

The Sages taught in a baraita (Tosefta 7:3): If the court had a presumption concerning a son that he is a firstborn, and his father said concerning another son of his that he is his firstborn, the father’s statement is deemed credible. If the court had a presumption concerning a son that he is not a firstborn, and his father said that he is his firstborn, the father’s statement is not deemed credible.

רישא רבי יהודה וסיפא רבנן

The Gemara asserts that as the two halakhot of the baraita seem to contradict each other, it must be that the first clause represents the opinion of Rabbi Yehuda, and the latter clause represents the opinion of the Rabbis.

אמר רבי יוחנן אמר בני הוא וחזר ואמר עבדי הוא אינו נאמן עבדי הוא וחזר ואמר בני הוא נאמן דמשמש לי כעבדא קאמר

§ Rabbi Yoḥanan says that if one says about another: He is my son, and then says: He is my slave, his latter statement is not deemed credible. It cannot disqualify him from marrying a Jewish woman or exclude him from his inheritance. Conversely, if he first says: He is my slave, and then says: He is my son, his latter statement is deemed credible, as in his first statement he presumably was saying: He serves me as a slave does.

וחילופיה אבית המכס היה עובר על בית המכס ואמר בני הוא וחזר ואמר עבדי הוא נאמן אמר עבדי הוא וחזר ואמר בני הוא אינו נאמן

And the opposite halakha applies to one at the tax house: If one is passing the customs house and says about a certain person: He is my son, and then later says: He is my slave, his latter statement is deemed credible, as he presumably says that the other is his son only to evade paying a tax for possessing a slave. Conversely, if he says at the customs house: He is my slave, and then later says: He is my son, his latter statement is not deemed credible, as one would not unnecessarily render himself liable to pay a tax.

מיתיבי היה משמשו כבן ובא ואמר בני הוא וחזר ואמר עבדי הוא אינו נאמן היה משמשו כעבד ובא ואמר עבדי הוא וחזר ואמר בני הוא אינו נאמן

The Gemara raises an objection from a baraita: If one was serving another person like a son serves his father, and the person being served came and said: He is my son, and then said: He is my slave, his latter statement is not deemed credible. Additionally, if one was serving another person like a slave serves his master, and the one being served came and said: He is my slave, and then said: He is my son, his latter statement is not deemed credible. This contradicts Rabbi Yoḥanan’s statement that if he first says that he is his slave and then says that he is his son, his latter statement is deemed credible.

אמר רב נחמן בר יצחק התם דקארו ליה עבדא מצר מאה מאי מצר מאה מצר עבדא מאה זוזי

Rav Naḥman bar Yitzḥak said: There, in Rabbi Yoḥanan’s statement, it is a case where he is presumed to be a slave because everyone calls him: A slave on whose border [metzar] are one hundred. Since everyone is referring to him in this manner, the person he served cannot call into question his status as a slave by saying that he is his son. The Gemara asks: What does it mean that on his border [metzar] are one hundred? The Gemara answers: One hundred dinars are adjacent to [metzar] this slave. In other words, he is worth one hundred dinars.

שלח ליה רבי אבא לרב יוסף בר חמא האומר לחבירו עבדי גנבת והוא אומר לא גנבתי מה טיבו אצלך אתה מכרתו לי

§ Rabbi Abba sent several rulings from Eretz Yisrael to Rav Yosef bar Ḥama, including the following: In the case of one who says to another: You stole my slave, and he says in response: I did not steal him, and when the first inquires: If so, what is the nature of his presence in your possession, the latter responds: You sold him to me,