Talmud - Mas. Baba Bathra 101a
AND SIX1 HANDBREADTHS IN WIDTH.2 R. SIMEON SAYS: THE CENTRAL SPACE OF THE GROTTO MUST CONTAIN [AN AREA OF] SIX CUBITS BY EIGHT. AND THIRTEEN CHAMBERS ARE TO OPEN OUT INTO IT; FOUR ON ONE SIDE, FOUR ON THE OTHER. THREE IN FRONT [OF THE ENTRANCE]. ONE ON THE RIGHT OF THE ENTRANCE AND ONE ON THE LEFT.3 OUTSIDE THE ENTRANCE TO THE GROTTO IS TO BE MADE A COURT OF SIX [CUBITS] BY SIX, [WHICH IS] THE SPACE THE BIER AND THOSE WHO BURY IT OCCUPY. TWO GROTTOS4 ARE TO BE OPENED OUT INTO IT; ONE ON THE ONE SIDE AND ONE ON THE OTHER.5 R. SIMEON SAYS: FOUR; [ONE] FOR [EACH OF] ITS FOUR SIDES.6 R. SIMEON B. GAMALIEL SAYS: ALL DEPENDS ON [THE QUALITY OF] THE ROCK.7
GEMARA. Where are these two [chambers]8 to project? If outwards,9 they would, surely, be trodden upon!10 Furthermore, we have learnt:11 'He who stands12 in the court of a [family] grave is [Levitically] clean'.13 - R. Jose b. Hanina replied: They are made in the shape of a door-bolt.14 But, Surely. R. Johanan said:
(1) Or one cubit.
(2) A space of one cubit was allowed for each of the walls intervening between the sepulchral chambers, and half a cubit space was left at the end of each wall. The two longer walls of the grotto, being respectively six cubits in length, could, therefore, contain three chambers each: The chambers, each of one cubit in width, occupying three cubits; the two walls between them, two cubits; and the two half cubit spaces at the corners, another cubit. The shorter wall facing the entrance, being four cubits long, could contain two chambers only: the chambers occupying two cubits; the intervening wall, one cubit; and the two half cubit spaces at the corners, another cubit.
(3) According to R. Simeon, the longer walls, being eight cubits in length. provide space for four one-cubit chambers each, allowing three cubits for the intervening one-cubit walls, and one cubit space for the two half cubit spaces at the corners. The wall opposite the entrance, being six cubits in length, can contain three one-cubit chambers, the space for the two one-cubit intervening walls and the two half-cubit spaces at the corners. This gives a total of, (4 + 4 + 3), eleven sepulchral chambers. The location of the last two is dealt with in the Gemara infra.
(4) The one mentioned, and another facing it.
(5) The following diagram represents the plan and the area of the entire cave, court, grottos and sepulchral chambers, in accordance with the regulations laid down by the Rabbis, (the representatives of the anonymous opinion cited first in the Mishnah).
(6) According to R. Simeon the plan and dimensions of the grave are as follows:
(7) If the rock is hard, more sepulchral chambers may be cut, since less space is required for the intervening walls. If, on the other hand, the ground is soft, more space would be required for the walls and, consequently, the number of chambers would have to be reduced.
(8) Which, according to R. Simeon, are to be cut on the right and on the left of the entrance.
(9) Under the floor of the court.
(10) By those who have to pass the court into the grottos; and treading upon a grave is an insult to the dead, which is forbidden.
(11) Oh. XV, 8.
(12) I.e., if he was carried into the court, not having trodden upon the surrounding graves.
(13) But if the graves were projecting into the court, as assumed, he would have become Levitically unclean on account of his treading on these graves.
(14) The chambers are dug vertically and the bodies are placed in an upright Position.
Talmud - Mas. Baba Bathra 101b
'This1 is the burial of asses'? - According to R. Johanan they are made in the corner[s].2 But, surely, the chambers would touch3 each other? - R. Ashi replied: One can make them deeper.4 For if you would not say so,5 how can four grottos be constructed according to R. Simeon? Surely [some of] the chambers [of adjacent grottos] would be touching6 each other! But [this. you would say, can be avoided] by digging [the overlapping chambers] deeper [than the others];7 in this case also, [the touching of chambers may be avoided] by digging [the corner chambers] into the wall deeper [than the adjacent ones]. R. Huna the son of R. Joshua stated: The [affected chambers in the] four grottos, according to R. Simeon, were made in the shape of palm-wigs.8 But this [statement of R. Huna b. R. Joshua is [to be] rejected.9 For, it is to be observed, every cubit square has a diagonal of a cubit and two fifths [approximately]. [The diagonal of the square formed by the adjacent walls of any two grottos] measures eleven cubits and a fifth,10 [approximately]. Is not the number of the chambers eight?11 How, [then], is it possible [to make eight [chambers]12 in [a width of] eleven [cubits] and a fifth? But that [statement] of R. Huna b. R. Joshua must be rejected. If you like, it may be said: As R. Shisha son of R. Idi [referred the case, infra,] to miscarriages, [so] here also [the chambers in question are for the burial] of miscarriages.13 We have learnt elsewhere [in a Mishnah]:14 If a corpse is found15 lying [in a grave] in the usual manner.16 both the corpse and the earth surrounding it are to be removed.17 [If] two [corpses, in similar conditions, are found], they and the earth surrounding them are to be removed.
(1) I.e., burial in an upright position.
(2) The corners formed by the wall facing the entrance and the respective two walls adjacent to it, the chambers projecting into the corners in a slanting direction. .
(3) A width of one cubit is required for each chamber, while the entire space vacant in the corners is only half a cubit in either wall, thus leaving no intervening walls between the chambers in the corners and the adjacent chambers on either side.
(4) The deeper one digs into the corners in a slanting direction, the further becomes the distance between the corner chambers and those adjacent to them (Rash.) R. Gershom explains that he digs the corner ones deeper in the ground, that is lower than the adjacent ones, cf. Jerushalmi, a.l.
(5) That some of the chambers were dug deeper than the others.
(6) The chamber in the northwestern corner of the eastern grotto, for example. would coalesce with the south-eastern chamber of the northern grotto.
(7) Deeper in the ground and lower than the corresponding chambers in the other grotto.
(8) Fan shape; and this would avoid overlapping or coalescing and the necessity for deeper digging.
(9) ברותא var. lec. בדותא 'imaginary'. V. B.M. 9a. n. 00.
(10) Each of the two walls being eight cubits in length, a square is formed whose diagonal is 8 + ( 8X2 / 5 ) = 11 1/5 cubits approximately.
(11) Four in the wall of each grotto.
(12) Each one of which is to be a cubit in width. Add to this the widths of the seven intervening walls, each also of one cubit, making a total of fifteen cubits.
(13) Or, newly-born infants. The corner chambers as well as those which, according to R. Simeon's plan, would overlap, are to be used for burial of small bodies which occupy little space. Small burial chambers would not coalesce with, or touch the others.
(14) Oh. XVI, 3.
(15) In an area which is not known to be a graveyard and, therefore, Levitically clean.
(16) Showing that Israelites had buried it and that death was due to natural causes; and the question, therefore, arises whether that area was not once used as a regular graveyard. In the case of a mutilated corpse or non-Jewish mode of burial, that question does not arise, since it is obvious that the corpse was buried in that spot by mere accident.
(17) If the area is to remain Levitically clean. The discovery of one corpse does not establish the area as a graveyard, and the removal of the corpse in the manner prescribed, renders the area again Levitically clean.
Talmud - Mas. Baba Bathra 102a
If three [corpses] were [similarly] found, [then], if [the distance] between them1 is from four, to eight [cubits], the area] is [to be considered] a grave-yard;2 and a search3 must [also] be made [over a distance of] twenty cubits,4 from that spot onwards. [If] at the end of twenty cubits a corpse is found, a search of [another] twenty cubits from that spot onwards must be made; for there is reasonable ground5 for the assumption6 [that even the single grave is an indication of the existence there of other graves]; although if [the single corpse] had been found first7 it should have been removed together with the earth surrounding it.8 The Master stated, 'from four to eight cubits'.9 According to whom [is this Mishnah]? If according to the Rabbis, surely they said [that the area of a grotto is to be] four cubits by six? If according to R. Simeon, surely he said [that the grotto must contain an area of] six [cubits] by eight? - [This Mishnah] is, in fact, [in agreement with] R. Simeon; but it is [in accordance with the version of R. Simeon's view as reported by] the following Tanna. For it has been taught: 'If they10 were found close to one another, and there was not a distance of four to eight cubits between them, the earth surrounding their bodies belongs to them but they do not constitute the ground as a graveyard. R. Simeon b. Judah said in the name of R. Simeon: The intervening ones are regarded as if they did not exist and the rest are combined,11 [if the distance is] from four to eight cubits'.12 Since this13 has been assumed to be in accordance with R. Simeon, explain the final clause [which reads]: A search must [also] be made [over a distance of] twenty cubits from that spot onwards. According to whom [is this]? If according to R. Simeon, [the distance] should be twenty-two;14 if according to the Rabbis,15 it should be eighteen?16 It may, in fact, be according to the Rabbis but there is a possibility that he made the search diagonally.17 But since the one [grotto is assumed to be searched] diagonally, the other also [should be assumed to be searched] diagonally [and, consequently, the distance] should be twenty-two [cubits]?18 - One diagonal [search] is expected; two diagonal [searches] are not.19
(1) Between the first and the third.
(2) According to this Tanna, a grotto which forms part of a family grave contains an area of four by eight cubits. If the three corpses were found within four cubits, it is assumed that the wide side of such a grotto had been found. If within eight cubits, the long side of such a grotto is assumed to have been discovered. In either case, the discovery points to the existence of a family grave in that area which is, therefore, to be regarded as a grave. yard, the extent of which must be ascertained.
(3) To ascertain whether any other graves are to be found in the vicinity, and to determine the extent of the area that is henceforward to be regarded as Levitically unclean.
(4) I.e., the approximate length of the court (six cubits) and of the two grottos that open out from its opposite sides (eight cubits each, according to the Tanna.) The actual length is, of course, twenty two cubits and the discrepancy is discussed in the Gemara.
(5) Lit., 'feet' on which to stand.
(6) Since one group of graves had already been discovered within twenty cubits.
(7) Before the other three corpses, without any further search having had to be made.
(8) V, supra n.1.
(9) That a spot to be regarded as a graveyard must contain three corpses within four to eight cubits.
(10) I.e., the corpses.
(11) To constitute the ground as a graveyard.
(12) This author it is who is of the opinion that according to R. Simeon these are the dimensions.
(13) Tho Mishnah of Ohaloth mentioned.
(14) The length of the court is six cubits, and the length of each of the two grottos is eight cubits.
(15) Though the first clause will still be according to R. Simeon.
(16) The length of each grotto is six cubits and that of the court also six.
(17) Though the length of the grotto is only six cubits, the diagonal of the area of the graves (the sepulchral chambers) thus searched would be longer. The diagonal of four, (respective lengths of chambers), by six, (length of grotto wall), is more than seven cubits in length sq rt.42 + 62 = sq. rt 52, say roughly eight cubits. Add length of court (six cubits) and length of corresponding grotto (six cubits) and the total obtained is roughly twenty.
(18) Eight for the diagonal of each grotto and six for the court.
(19) Since no corpses were found in the first.
Talmud - Mas. Baba Bathra 102b
R.Shisha b. R. Idi said: It1 may, in fact, be in accordance with the view of R. Simeon,2 but here it dealt with the case of miscarriages.3 But since the one [is] for miscarriages, the other also [should be] for miscarriages, [and the distance] should, [consequently], be eighteen [cubits]! - One [grotto] for miscarriages is assumed, two [grottos] for miscarriages are not.
Contradictions were pointed out between two statements of the Rabbis4 and [also] between two statements of R. Simeon. For we learnt:5 [If] a vineyard is planted on [an area of] less than four cubits, R. Simeon says it is not [regarded as] a vineyard, and the Sages say: [It is regarded as] a vineyard, the intervening vines being treated as if they were not in existence. [Is not the statement] of the Rabbis [there]6 contradictory to their statement [with reference to corpses];7 and [the statement there] of R. Simeon8 contradictory to his [statement here]?9 - There is no contradiction between the two statements of R. Simeon; [for] there, people do not plant [vines] with the object of pulling10 [them] out, [but] here, [a burial] may sometimes take place at twilight and [the corpse] is put down temporarily.11 There is also no contradiction between the two statements of the Rabbis; [for] here, since [the body] is disgraced, [the spot] cannot be designated a grave,12 [but] there, [the owner, when planting the vines,] may think whichever tree will be sound will remain,13 and whichever is a failure will be [used] for firewood.14
MISHNAH. IF ONE SAYS TO ANOTHER: 'I SELL YOU A BETH KOR15 OF ARABLE LAND',16 [AND] IT CONTAINED CLEFTS TEN HANDBREADTHS DEEP, OR ROCKS TEN HANDBREADTHS HIGH, THESE ARE NOT TO BE MEASURED WITH IT. [IF THEY ARE] LESS THAN THIS,17 THEY ARE TO BE MEASURED WITH IT. IF, HOWEVER, HE SAID TO HIM, 'ABOUT A BETH KOR OF ARABLE LAND, EVEN IF [THE LAND] CONTAINED CLEFTS DEEPER THAN TEN, OR ROCKS HIGHER THAN TEN HANDBREADTHS, THEY ARE TO MEASURED WITH IT.
GEMARA. We learnt elsewhere: He who consecrates his field18 in the time [when the laws] of the jubilee year19 [are in force], must pay for an area in which a homer20 of barley may be sown, fifty shekels of silver.20 If it contained clefts ten handbreadths deep, or rocks ten handbreadths high
(1) The final clause of the Mishnah of Ohaloth requiring a search along a distance of twenty cubits.
(2) Who requires the area of a grotto for adults to be six by eight.
(3) Miscarriages occupy a grotto which is only six cubits in length. The total length, therefore, is six (grotto for miscarriages), plus eight (the grotto for adults, on the other side of the court), plus six (court), total twenty cubits.
(4) Lit., 'that of the Rabbis upon the Rabbis'.
(5) Kil. V, 2; supra 37b, 83a.
(6) Where the intervening vines are disregarded.
(7) All of which are counted.
(8) Counting in all the vines.
(9) Where the intervening corpses are regarded as if they did not exist.
(10) Hence the vines are permanent and cannot be disregarded.
(11) With the intention of removing it later. Hence, if by accident the corpse had not been removed, it may be disregarded, and does not prevent the remaining corpses from combining to form a graveyard.
(12) No regular burial, however late the hour, would take place in such a manner. The spot, consequently, could not have been a graveyard.
(13) Lit., 'sound'.
(14) And since a number of the vines have been planted temporarily and will at any moment be pulled out, they may rightly be treated as if they were not in existence.
(15) An area of 75,000 square cubits, in which a kor or homer ( == 30 se'ah) of seed may be sown.
(16) Lit., 'earth'.
(17) I.e., lower than, or not as deep as ten handbreadths.
(18) An 'inherited' field as distinct from a 'purchased' field. Cf. n. 7.
(19) V. Lev. XXV, 8ff.
(20) I.e., a kor. Cf. ibid. XXVII, 16.
Talmud - Mas. Baba Bathra 103a
these are not measured with it.1 [If they are] less than this, they are to be measured with it.2 Now, why [should they3 not be measured with it]? Let them4 [at least], be [treated as if they had been] consecrated separately!5 And if you will suggest [that] since they do not contain a [full] beth kor they cannot become consecrated,6 surely it has been taught: Why is it expressly said, [the] field!7 - Because, since it was said, the sowing of a homer of barley shall be valued at fifty shekels of silver,8 one might infer only a similar consecration;9 whence [however, may it be inferred that] a lethek,10 half a lethek, a se'ah,11 a tarkab12 and half a tarkab are also included [in this law]? [For this reason] it has been expressly stated, [the] field, [which implies consecration in any manner.13 [Why, then, could not the clefts or the rocks be consecrated separately?] R. Ukba b. Hama replied: Here is a case of clefts full of water in which no sowing is possible. This may also be proved by deduction, for [the clefts] were mentioned in an analogous position to that of rocks.14 This proves it. If so,15 even [if they are] less than [ten handbreadths they should] also [not be measured with the field]! These16 are called small clefts of the earth [and] the spines of the earth.17
What [is the law] here?18 - R. Papa said: Even though they are not full of water. What is the reason? - A person does not wish to invest his money in one plot which has the appearance of two or three plots.19
Rabina raised an objection: Surely, [the clefts] were mentioned in an analogous position to that of the rocks; as the rocks [are excluded] because they are unsuitable for sowing so these also [should be excluded only] when unsuitable for sowing? - The similarity to rocks refers to [the case where they are] less20 than [ten handbreadths].
R. Isaac said: The rocks21 which have been spoken of22 [must not together cover more than an] area [requiring] four kab [of seed].23 R. 'Ukba b. Hama said: And this, only when they24 are distributed over [an area which requires not less than] five kab [of seed].25 R. Hiyya b. Abba said in the name of R. Johanan: This, only when they24 are distributed over the greater part of the field.26
R. Hiyya b. Abba inquired: [What is the law if] the greater part of them27 is [scattered] over its28 smaller part, and the smaller part of them27 over its28 greater part? - The matter is undecided?29
R. Jeremiah inquired:
(1) I.e., their redemption price is not the higher one given, according to Leviticus, for an 'inherited' field. Only their actual price has to be paid, as for a 'purchased' field. V. ibid. XXVII, 22.
(2) 'Ar. 25a.
(3) The clefts and rocks deeper and higher respectively than ten handbreadths.
(4) If they are not regarded as part of the field.
(5) And be redeemed at the higher rate of an 'inherited' field.
(6) I.e., they cannot be treated like an 'inherited' field, with reference to which a homer is expressly mentioned.
(7) Lev. XXVII, 19. Cf. however Rashi, 'Ar. 25a.
(8) Ibid. 26.
(9) I.e., a complete homer (beth kor).
(10) Half a kor.
(11) V. Glos.
(12) V. Glos.
(13) Even small areas.
(14) And sowing in rocks is impossible.
(15) That the reason why clefts and rocks are excluded is on account of their unsuitability for sowing.
(16) Those which are of less than ten handbreadths.
(17) Clefts and rocks which are respectively less than ten handbreadths in depth and height are treated as part of the field. A field cannot be expected to be absolutely level.
(18) In the case of a sale, dealt with in our Mishnah, are the clefts excluded only when they are full of water?
(19) The clefts and the rocks break up the unity of the field and this involves more labour in ploughing, sowing and harvesting.
(20) The Mishnah, in its second clause, teaches that in such a case they are included in the field even though they are full of water and are unsuitable for sowing as the rocks. The first clause, however, as R. Papa said, excludes clefts of ten handbreadths deep even though they are not full of water.
(21) Or clefts, of less than ten handbreadths.
(22) In our Mishnah which authorizes their inclusion in the measuring of the field.
(23) And in proportion, if the area sold is smaller or bigger.
(24) The four kab of rocks or clefts.
(25) But if their distribution is over a smaller area, they are regarded as one big ravine or rock, and are excluded from the measurements of the field.
(26) Contrary to the opinion of R. 'Ukba, it is not enough for the clefts and rocks to be distributed over an area of five kab. If they are distributed over an area which does not represent the greater part of the field they are regarded as one big ravine or rock which is not to be included in the land sold.
(27) Of the four kab of clefts and rocks.
(28) The field's.
(29) v. Glos. s. v. Teko.
Talmud - Mas. Baba Bathra 103b
What is [the law if they1 are arranged] like a ring,2 like a straight line,3 in the shape of a stadium4 or in that of a crooked road?5 The matter is undecided.
A Tanna taught: If a rock is isolated,6 it is not measured7 with the field, however small8 [that rock might be]. And [even] if it was [in the field, but] near the boundary, it is not measured with the field, however small8 [that rock might be].
R. Papa inquired: What [is the law if some] earth intervenes between [the rock and the boundary]? - The matter is undecided.
R. Ashi inquired: What [is the law if] there was earth beneath9 and rock above, [or] earth10 above and rock beneath?11 - The matter is undecided.
MISHNAH. [IF A MAN SAYS TO ANOTHER.] 'I SELL YOU A BETH KOR OF ARABLE LAND, MEASURED WITH THE ROPE',12 [AND] HE GAVE [HIM] LESS, [EVEN IF ONLY BY] A FRACTION, [AN EQUAL SUM] IS TO BE DEDUCTED [FROM THE PRICE]. [IF] HE GAVE MORE, [EVEN IF ONLY BY] A FRACTION, IT IS TO BE RETURNED [TO HIM]. IF, HOWEVER. HE SAID,13 'MORE OR LESS,'14 THE SALE IS VALID EVEN IF HE GAVE [AT THE RATE OF] A QUARTER OF A KAB PER SE'AH15 LESS OR MORE. [IF THE DIFFERENCE IS] GREATER THAN THIS, CALCULATION IS TO BE MADE.16 WHAT IS [THE BUYER] TO RETURN TO HIM? - THE MONEY.17 IF, HOWEVER. [THE SELLER] PREFERS, [THE OTHER] RETURNS TO HIM THE LAND. WHEREFORE [THEN] DID THEY18 ENACT THAT [THE BUYER] IS TO RETURN TO HIM MONEY? - TO SAFEGUARD THE INTERESTS OF THE SELLER.19 IF, THEREFORE. THERE WAS A SURPLUS IN THE FIELD OF AN AREA OF NINE KAB;20 AND IN A GARDEN, AN AREA OF HALF A KAB21 AND, ACCORDING TO R. AKIBA, A QUARTER OF A KAB;21 THE LAND [ITSELF] IS TO BE RETURNED. NOT ONLY THE QUARTER22 IS TO BE RETURNED BUT ALL THE SURPLUS.
GEMARA. The question was raised: What [if the seller] only [said, 'I sell you] a beth kor'?23 - Come and hear! [IF A MAN SAYS TO ANOTHER.] 'I SELL YOU A BETH KOR OF ARABLE LAND, MEASURED BY THE ROPE',
(1) V. n. 4.
(2) Into which the plough cannot very well enter.
(3) On both sides of which it is difficult to plough or to sow.
(4) Curved line, and it is difficult to plough and to sow there.
(5) In the bends of which the plough cannot easily enter.
(6) Outside the field and adjoining it.
(7) Only rocks within the field are included in the field if they are below the specified heights.
(8) Even if less than ten handbreadths in height.
(9) I.e., beneath the rock that lies near the border.
(10) Less than three handbreadths in depth, and insufficient for the depth required by the plough.
(11) Is the rock, in such cases as these, included in the measurements of the field or not?
(12) I.e., exact measurements.
(13) When the sale was being arranged.
(14) Instead of 'measured by the rope', thus implying the measurements of the beth kor are not exact.
(15) Or seven and a half kab in the kor, i.e. 1/24 th A kor == thirty se'ah; a se'ah == six kab.
(16) And the party that gained, pays for, or returns the difference.
(17) The value of the surplus.
(18) The Rabbis.
(19) So that he should not be left with a fraction of land of which no use could be made.
(20) Such an area is regarded as a field on its own.
(21) Which is regarded as a self-contained garden. v. supra 21a.
(22) Of a kab per se'ah.
(23) Without specifying, either 'measured by the rope' or 'more or less'.
Talmud - Mas. Baba Bathra 104a
AND HE GAVE [HIM] LESS, [EVEN IF ONLY BY] A FRACTION, [AN EQUAL SUM] IS TO BE DEDUCTED [FROM THE PRICE]. [IF] HE GAVE MORE, [EVEN IF ONLY BY] A FRACTION, IT IS TO BE RETURNED [TO HIM]. Thus [it is to be inferred that] had not [the expression 'measured by the rope'] been explicitly used [it would have been] just the same as if [the expression] 'more or less' [had been actually used]. Explain. [however], the concluding clause [which reads]: IF, HOWEVER, HE SAID, 'MORE OR LESS', THE SALE IS VALID EVEN IF HE GAVE [AT THE RATE OF] A QUARTER OF A KAB PER SE'AH LESS OR MORE. Thus [it is to be inferred that] had not [the expression, more or less'] been explicitly used [it would have been] just the same as if [the expression], 'measured by the rope' [had actually been used]! But, [one must conclude, that] nothing may be deduced from this [Mishnah].
Come and hear! [It has been taught: If a man says to another:] 'I sell you a beth kor of arable land', [or] 'I sell you about a beth kor of arable land' [or] 'I sell you [etc] more or less', the sale is valid even if he gave [at the rate of] a quarter [of a Rab] per se'ah less or more. This clearly proves that even when nothing1 had been specified it is the same as [if the expression]. 'more or less' [had been used]! That [supplies no proof; for it] is an explanatory statement [implying] the following: In which case is [the expression] a beth kor' regarded as [the expression] 'about a beth kor'? When one said to the other, 'more or less'.
R. Ashi demurred to this: If so,2 for what purpose is the expression. 'I sell you.' [thrice] repeated? Consequently, the deduction may be made that even when nothing1 had been specified it is the same as [if the expression], 'more or less',[had been used]. This proves it.
WHAT IS [THE BUYER] TO RETURN TO HIM?-THE MONEY etc. Does this [Mishnah] imply that we are to look after the interests of the seller and not after those of the buyer? Surely it has been taught: [If the land purchased was by] seven kab and a half per kor3 less, or by seven kab and a half per kor3 more [than the area agreed upon], the sale is valid. [If the surplus is] greater than this, the seller is compelled to sell and the buyer to buy!4 - There5 we deal with the case where land was first6 dear and is now7 cheap. [In such a case,] the seller is told, 'If you [wish to] give him the land,8 give [it] to him at the present cheaper9 rate'. But has it not been taught: When he gives it10 to him, it must be at the rate at which he had bought of him? - That refers to the case where it was first cheap and is now dear.11
IF, THEREFORE. THERE WAS A SURPLUS IN THE FIELD OF AN AREA OF NINE KAB, etc. R. Huna said: The [law of] nine kab spoken of12 [applies] even in [the case of] a large valley.13 But R. Nahman said: Seven kab and a half must be allowed for every Kor,14
(1) I.e., neither 'measured by the rope' nor 'more or less'.
(2) That, in the statement quoted, one part is explanatory to the other.
(3) I.e., 1/24 , v. Mishnah, n. 4.
(4) This shows that the seller has no advantage over the buyer.
(5) Where the seller is compelled to sell.
(6) When the sale was arranged.
(7) When the argument about the surplus is taking place.
(8) The surplus.
(9) While the seller may re-claim, or compel the buyer to purchase the surplus land, the seller, once he had decided to sell, may be compelled by the buyer to take the lower price prevailing at the time.
(10) I.e., the deficiency of land.
(11) In which case the buyer cannot be charged for the deficiency of land a higher price than the one prevailing at the time of the purchase.
(12) In our Mishnah, according to which such an area must be returned to the seller.
(13) Provided there was a surplus of nine kab, the area of the sold field does not matter. However large it may be, the surplus of nine kab or more must be returned, since such a surplus may be regarded as an independent field.
(14) Whether the surplus is returnable or not depends on its proportion to the area of the field sold. If the surplus is no more than seven and a half hab per kor == == kab per se'ah ==1/24 of the area of the field, it need not be returned, however large that surplus may be. The larger the field the larger the surplus allowed.
Talmud - Mas. Baba Bathra 104b
and if there is a surplus1 amounting to nine kab it is to be returned. Raba raised [the following] objection against R. Nahman: IF, THEREFORE, THERE WAS A SURPLUS IN THE FIELD OF AN AREA OF NINE KAB. [Does] not [this refer even to the case] where two kor were2 sold?3 No; [only] when one kor4 was sold. [But the Mishnah further stated:] AND IN A GARDEN, AN AREA OF HALF A KAB; [does] not [this refer even to the case] where two se'ah5 were sold? - No; [only] where one se'ah was sold. [But the Mishnah also states]: AND, ACCORDING TO R. AKIBA, A QUARTER OF A KAB; [does] not this [refer even to the case] where a se'ah6 was sold? - No; [only] when half a se'ah was sold.
R. Ashi inquired: What [is the proportion allowed in the case of] a field which was converted7 into a garden, or a garden which was converted into a field?8 - The matter is undecided.
It has been taught: If [the field sold] adjoined [another] field of his,9 even if [the surplus10 was] ever so little,11 the land must be returned.12 R. Ashi inquired:13 Does a [water] cistern form a division?14 [If not,]15 does a water canal16 form a division? [If not,] does a public road17 form a division? Does a nursery of young inoculated palm-trees form a division? - The matter is undecided.
NOT ONLY THE QUARTER IS TO BE RETURNED BUT ALL THE SURPLUS. Is not18 the order reversed?19 Rabin, son of R. Nahman, has taught:20 [The Mishnah implies this]: Not only is the surplus21 to be returned but [also] all the quarters.22
MISHNAH. [IF THE SELLER SAYS]. 'I SELL YOU . . .23 MEASURED BY THE ROPE MORE OR LESS', THE [CONDITION OF] 'MORE OR LESS' CANCELS24 [THAT OF] 'MEASURED BY THE ROPE'. [IF HE SAYS]. 'MORE OR LESS, MEASURED BY THE ROPE',
(1) Above a twenty-fourth of the area of the field.
(2) Since the extent of the area is not indicated.
(3) An area of nine kab in two kor is less than a twenty-fourth, and yet it is to be returned; how, then, can R. Nahman say that a twenty-fourth is allowed?
(4) There was no need to specify this area, since earlier in the Mishnah it was mentioned that an area of one kor was being dealt with.
(5) The proportion of a half a kab to two se'ah is a twenty-fourth, and yet it is to be returned, which is in contradiction to the law laid down by R. Nahman. Cf. supra note 2.
(6) A quarter of a kab is a twenty-fourth of a se'ah. V. previous note and supra note 2.
(7) By the buyer.
(8) Is it to be regarded a field or a garden in respect of the laws of surplus?
(9) I.e., the seller's.
(10) In excess of the surplus of a twenty-fourth of the area sold.
(11) I.e., although it does not amount to nine kab.
(12) To the seller, because he can make use of it by joining the surplus strip to his other field. The buyer, therefore, cannot be compelled to purchase that strip.
(13) Cf. supra 83b.
(14) Between the surplus of the field sold and the adjoining field of the seller.
(15) Because the water is not exposed.
(16) Where the water is exposed.
(17) Sixteen cubits in width.
(18) כלפי לײא or לײא The first word may be rendered 'towards' (כ and לאפי); the second, read לײא is rendered 'whither', Rashi.; or לײא layah 'tail' (cf. אליה), Jast. The literal meaning of the phrase is accordingly either 'towards where?' or 'towards the tail?'
(19) The expression used in the Mishnah, 'Not only the quarter etc.', implies that the law previously given was that the quarter had to be returned and not the surplus above it, while, in fact, the Mishnah had stated the law to be that the quarter was not to be returned.
(20) Supra 94b.
(21) Over and above the one twenty-fourth of the area, which is otherwise allowed.
(22) Of a kab per se'ah, or one twenty-fourth of the area sold. Once the twenty-fourth which is allowed has been exceeded, all (the 1/24 and the surplus over and above it) must be returned.
(23) V. Mishnah supra 203b.
(24) The second condition is always regarded as the valid one. It cancels, therefore, the first.
Talmud - Mas. Baba Bathra 105a
THE [CONDITION] 'MEASURED BY THE ROPE CANCELS [THAT OF] 'MORE OR LESS; THESE ARE THE WORDS OF BEN NANNUS.
GEMARA. R. Abba b. Memel said in the name of Rab: His colleagues are in disagreement1 with Ben Nannus. What does this teach us? Surely we have learnt:2 It happened at Sepphoris that a person hired a bath house from another for twelve gold [denarii] per annum, one denar per month,3 and the matter4 was brought before R. Simeon b. Gamaliel and before R. Jose who said that [the rent for] the intercalary month must be divided.5 [What, then, does Rab come to teach us?] - If [the inference6 had come] from there, it might have been said that there7 only [do the Rabbis hold the opinion that the rent for the month is to be divided], because it might be assumed that [the owner] had changed8 his mind, and it might [also] be assumed that [with the second expression] he was merely explaining9 [the first];10 but here,11 where [the seller] has clearly changed his mind,12 it might have been thought [that the Rabbis do] not [disagree with Ben Nannus]; hence [it was necessary for Rab] to teach us.13
Rab Judah said in the name of Samuel: This14 is the assertion of Ben Nannus, but the Sages say: The expression [which confers the] least15 [advantage upon the buyer] is to be followed. 'This'16 [would imply that] he [Samuel himself] is not of the same opinion. but, surely, both Rab and Samuel said:17 [If a seller said.] 'I sell you a kor for thirty [selai'm]'. he may withdraw even at the last se'ah.18 [If. however, he said]. 'I sell you a kor for thirty, [each] se'ah for a sela', [the buyer] acquires19 possession of every se'ah as It is measured out for him.20 [This, surely, shows that Samuel21 is of the same opinion as Ben Nannus!]22 - But, [it may be replied that] 'this', [may denote that Samuel] is of the same opinion.23 Does [Samuel, however,] hold the same opinion? Surely Samuel said: [The Mishnah which states that the rent of the bath house for the intercalary month is to be divided] speaks [only of the case] where [the owner] comes24 in the middle25 of the month, but where he comes at the beginning of the month all [the rent of the month] belongs to the owner,26 [and if he comes] at the end of the month, all [the rent of the month] belongs to the tenant.27 [Does not this prove that Samuel disagrees28 with Ben Nannus?]
(1) In their opinion it is doubtful which expression is to be regarded as valid, and the property or sum in dispute is, therefore, to be divided between the buyer and the seller.
(2) B.M. 102a.
(3) Both expressions were used at the time of hire, and the year was a leap-year, containing thirteen months.
(4) The dispute whether the intercalary month was to be included in the year, on account of the first expression, 'twelve gold [denarii] per annum', or whether it was not to be so included, on account of the second expression, 'one denar per month'.
(5) Between the tenant and the owner of the house, i.e., the former pays only for half a month, since it is doubtful to whom the rent of the month belongs. Now, this clearly shows that the Rabbis do not agree with Ben Nannus, according to whom the second expression would have had to be considered as binding and a full month's hire would have had to be paid.
(6) That the Rabbis are in disagreement with Ben Nannus.
(7) The case of the bath house.
(8) He first thought of letting the bath house for twelve denarii per annum, irrespective of whether the year was of twelve or thirteen months, and then changed his mind and demanded a denar for each month.
(9) He had no intention of expecting thirteen denarii for the leap year. By the expression, 'a denar per month', he only meant that he wished to be paid monthly instead of yearly, and also that he might cancel the arrangements at the end of every month without having to wait till the end of the year.
(10) And since the matter is in doubt, the Rabbis are of the opinion, and Ben Nannus himself might agree with them, that the sum disputed should be divided.
(11) In our Mishnah.
(12) Since the second expression is in direct contradiction to the first.
(13) That even in this case the Rabbis disagree with Ben Nannus.
(14) The law in our Mishnah.
(15) If the land sold is more than the stipulated area, the expression, 'measured by the rope', is adopted and the buyer must return the surplus. If the sold land, however, is less than the stipulated area, the expression, 'more or less', is adopted and the seller need not make good the difference. The seller, being the original possessor of the land, has always the advantage.
(16) Viz., 'this is the assertion of Ben Nannus'.
(17) B.M. 102b, supra 86b; infra 106b.
(18) Because the terms of the offer implied that his desire was to sell the entire kor. So long, therefore, as the buyer has not acquired every fraction of the kor, the purchase cannot be regarded as having been legally completed.
(19) By specifying the price per kor and per se'ah, the seller has intimated his consent to sell either the entire kor or any smaller quantity.
(20) Lit. 'he acquires first first'.
(21) Who stated, in the second case, that the buyer acquired possession of every se'ah as it was measured out, on account of the expression, 'each se'ah for a sela', which the seller used after he said, 'I sell you a kor for thirty'.
(22) Who stated that the second expression cancels the first.
(23) As Ben Nannus. 'This etc', only indicates that the Rabbis disagree.
(24) To the court.
(25) Since it is doubtful which expression cancels which, the money and the bath house are to remain in the possession of their respective owners. For the first half of the month, therefore, which has already passed, no rent can be claimed from the tenant who is in possession of his money. For the second half, however, the owner may claim the rent, since the property is his, and he has the power to prevent the other from using it.
(26) Because the property is in his possession.
(27) Because his money is to remain with him, who holds it in possession.
(28) Since he is doubtful as to whether the first, or second expression is to be regarded as binding. Cf. supra n. 6.
Talmud - Mas. Baba Bathra 105b
- But, [it may be replied.] 'this', in fact, [implies that Samuel] is not of the same opinion;1 [as, however, his] reason there [for dividing2 the monthly rent of the bath house is] because [each one of the parties] is in possession3 [of a part of that concerning which they are in dispute], so here4 also [the reason why the buyer acquires every se'ah as it is measured out to him is] because it is [then] in his possession.5
R. Huna said in the name of the school of Rab: [If one says that he would sell an object for] an istira,6 a hundred ma'ah, [he is entitled to] a hundred ma'ah. [If he says], 'a hundred ma'ah, an istira'.[he is entitled to] an istira. What does this teach us? That the second expression is to be preferred?7 Surely Rab has said it once! For Rab said: Had I been there8 I would have given all to the owner.9 [Why, then, need Rab say it again?]10 - [Since] it might have been said that [the reason Rab would have assigned all to the owner of the bath house] was because [he held that the second expression]11 was merely explaining [the first],12 therefore,13 [it was necessary for Rab] to teach us [the case of the istira].14
(1) That the second expression cancels the first.
(2) If the dispute is brought before the court in the middle of the month.
(3) The owner is in the possession of the wash house; the tenant, of his money.
(4) The sale of the kor.
(5) And not, as has been suggested before, because the second expression cancels the first.
(6) A silver coin equal in value to ninety-six copper ma'ah,
(7) Lit., 'hold the last expression'. I.e., that the law is in agreement with the view of Ben Nannus.
(8) When the dispute about the bath house was brought before R. Simeon b. Gamaliel and R. Jose.
(9) Apparently because Rab is of the opinion that the second expression cancels the first.
(10) In the case of the istira.
(11) I.e., 'one denar per month'.
(12) I.e., 'twelve gold denarii per annum; indicating that per annum' in the first expression referred to an ordinary year only, and not to a leap year of thirteen months, and not because Rab held that the second cancelled the first.
(13) In order that it should not be assumed that, whenever the second expression cannot be regarded as an explanation of the first, Rab holds the view of the Rabbis against that of Ben Nannus.
(14) In this case, the two expressions cannot be regarded as explanatory of one another, because the expression 'ninety-six ma'ah' can never be made to mean a hundred ma'ah, and vice versa. And since the two expressions must be contradictory, and Rab had said that the latter is to be followed, one may definitely conclude that Rab is of the same opinion as Ben Nannus who stated that the second expression cancels the first.
Talmud - Mas. Baba Bathra 106a
MISHNAH. [IF ONE SAYS, I SELL YOU THIS1 BETH KOR] WITHIN ITS MARKS AND BOUNDARIES', THE SALE IS VALID [IF THE DIFFERENCE2 IS] LESS THAN A SIXTH;3 [IF IT AMOUNTS] TO A SIXTH, DEDUCTION4 MUST BE MADE.
GEMARA. It was stated: R. Huna said: [The law of] a sixth5 is6 like [that of] less than a sixth. Rab Judah said: [The law of] a sixth5 is6 like [that of] more than a sixth. According to R. Huna, [who] said [that the law of] a sixth is like [that of] less than a sixth, [the Tanna of our Mishnah] means to say thus: The sale is valid [in the case where the difference is] less than a sixth as well as [when it is exactly] a sixth.7 [If it is] more than a sixth deduction is to be made. According to Rab Judah, [who] said [that the law of] a sixth is like [that of] more than a sixth, the Tanna means to say thus: The sale is valid [when the difference is] less than a sixth. [If it is] more than a sixth as well as [when it is exactly] a sixth,4 deduction is to be made.8
An objection9 was raised: [It has been taught:] [If one states, 'I sell you a field] within its marks and boundaries', [and it was found to contain] a sixth less, or more, [the case] is like [that of] judicial appraisement [and] the sale is valid. Now, surely, [in the case of] judicial appraisement10 [the law of] a sixth [is the same] as [that of] more11 than a sixth!12 - R. Huna can reply to you.13 'And according to your argument [is there here no difficulty]? Surely it is stated, [the sale is valid]!'14 Hence, [this must be the explanation, the case is] like judicial appraisement [in one respect], and unlike judicial appraisement [in another]. [It is] like judicial appraisement [with respect] to the sixth,15 and [it is] unlike judicial appraisement, for there16 the purchase is cancelled, while here17 it is valid.
R. Papa bought a field from a certain person
(1) Pointing to a particular field.
(2) Between the actual area and that mentioned by the seller.
(3) Though the mention of beth kor is the same as the mention of 'more or less' (cf. supra 104a), in which case the sale is valid only when the difference is less than one twenty-fourth, or a quarter kab per se'ah, the pointing out of the field and the addition of the stipulation, 'within its marks and boundaries', modify the implication of beth kor, and a greater difference is, consequently, allowed before any deduction can be claimed. While the expression, 'within its marks and boundaries', implies the offer of a specified field whatever be its area, the expression beth kor, used with it, implies an area not too much different in size from that of a beth kor. Hence the law of our Mishnah which limits the allowed difference to a sixth.
(4) If less land was given, the difference in price is to be deducted. If more land was given, the surplus of land is to be returned.
(5) If the difference between the actual, and the specified area was exactly a sixth.
(6) The point of difference between R. Huna and Rab Judah lies in the interpretation of עד in the phrase, שתות. One considers עד as exclusive, the other as inclusive.
(7) Lit., 'a sixth being inclusive'.
(8) פחות משתות, in our Mishnah, is taken by R. Huna to mean that 'the sale is valid (if the actual area is) less than (a beth kor by) a sixth', and from this it follows that the sale is certainly valid if the difference is less than a sixth; whereas Rab Judah interpreted our Mishnah as follows: 'The sale is valid (if the difference between the actual area and that of a beth kor is) less than a sixth'. Hence it follows that if the difference is a sixth, and certainly if it is more, deduction is to be made.
(9) To the view of R. Huna.
(10) When the court appraised orphans' property and an error of a sixth was made.
(11) Since the entire transaction is cancelled even if the error was exactly one sixth.
(12) Now . . . sixth, how, then, can R. Huna maintain that the law of a sixth is the same as that of less than a sixth?
(13) Rab Judah.
(14) And if it is to be compared in all respects, as you suggest, to the case of judicial appraisement, the transaction should be invalidated.
(15) Viz., that the standard of error is the sixth, and not the twenty-fourth (quarters of a kab per se'ah).
(16) Where an error has been made by the court.
(17) In the case of a sale of a field within marks and boundaries that have been pointed out.
Talmud - Mas. Baba Bathra 106b
who stated1 that it contained an area of twenty griva,2 but it contained only fifteen. He3 came before Abaye who said unto him, '[Surely] you realized [its size] and accepted.' But did we not learn: THE SALE IS VALID [IF THE DIFFERENCE IS] LESS THAN A SIXTH; [IF IT AMOUNTS] TO A SIXTH, DEDUCTION4 MUST BE MADE? - This applies only where [the buyer] is not acquainted with the field, but where he is acquainted with it [it is assumed that] he understood [the conditions] and accepted. 'But,' [argued R. Papa.] 'he said to me, twenty!'5 - He replied: '[The seller might say that he meant] that the field was as good6 as [one of] twenty.
It was taught: R. Jose said: When brothers divide [an estate]7 all of them acquire8 possession [of their respective shares] as soon as the lot for one of them is drawn.9 On what ground [is possession acquired]? - R. Eleazar said: [Possession is acquired in the same way] as [at] the beginning of [the settlement of] the land of Israel. As [at that] beginning, [the acquisition was] by lot, so here [also it is] by lot. Since there, however, [the division was made] through the ballot box10 and the Urim and Tummim,11 [should not the division] here also [be made] through12 the ballot box and the Urim and Tummim? - R. Ashi replied: [The lot alone suffices here] because [in return for] the benefit of mutual agreement13 they determine to allow each other to acquire possession [by the lot14 alone].
It has been stated: [In the case when] two brothers divided [an estate between them] and a [third] brother arrived from a country beyond the sea, Rab said the division is cancelled,15 and Samuel said they relinquish16 [thirds from their respective shares for the third brother].
Raba said to R. Nahman: According to Rab, who said that the division is cancelled, it is clear that [we act on the principle that even a definite] decision may be revised; but if so, the division should be cancelled17 also in the case where [a partnership] of three was in existence and two of these divided18 the property!19 - What a comparison! There,20 they went [into the matter], from the very beginning, with the intention of [dividing the property between] three;21 but here,22 they did not enter '[into the matter], at first, with the intention of [dividing the estate between] three.23
R. Papa said to Abaye: According to Samuel, who said that they relinquish [thirds from their respective shares for the third brother], it appears that [where] a decision [has been arrived at, it] must be adhered to; but, surely, both Rab and Samuel have said:24 [If the seller said.] 'I sell you a kor for thirty', he may withdraw even at the last se'ah;25 [if, however, he said,] 'I sell you a kor for thirty. [each] se'ah for a sela' [the buyer] acquires26 possession of every se'ah as it is measured out for him.27 [This shows that even a decision arrived at,28 may be upset!]29
(1) And also pointed out the marks and boundaries of the field.
(2) A griva equals one se'ah.
(3) R. Papa.
(4) And here, the difference was more than a sixth, 5/20 =1/4; why, then, was not R. Papa allowed to deduct the difference?
(5) Implying that if found to contain less, the difference would be made good from another field, or a deduction from the price would he allowed.
(6) I.e., the fifteen se'ah of that field will produce as much as twenty in an ordinary field.
(7) Into equal shares.
(8) And none may withdraw.
(9) If there are only two brothers, one acquires possession of one share as soon as the other brother has acquired by lot his share. If more than two brothers, they acquire possession collectively of the remaining shares when the lot has determined to whom the first share was to be allotted. The first brother then, stands out, and lots are cast between the others.
(10) V. infra 222a.
(11) Cf. Ex. XXVIII, 30, Lev. VIII, 8, Num. XXVII, 21. Cf. also I Sam. XXVIII, 6, Ezr. II, 63, Neh. VII, 65.
(12) How, then, are the shares acquired here, in the absence of the Urim and Tummim, by mere lot?
(13) Lit., 'because they listen to one another,' viz., to dissolve a partnership (Rashb.) [or to divide by lot (R. Gershom)].
(14) They are all so anxious to dissolve their partnership at the earliest possible moment, that they readily agree that through the lot alone every one of them shall acquire possession of his share.
(15) And a new division in three parts is to be made, lots being drawn again.
(16) I.e., the division is valid, but each of the two brothers 'gives up a third of his share in favour of the new arrival. Thus, each of the three brothers retains or receives two thirds of half the estate, which form a third of the whole.
(17) If the third party raises an objection.
(18) In three parts, in the presence of a lay court of three, without consulting the third partner. (Cf. B.M. 32b.)
(19) But, as a matter of fact, such a division cannot be cancelled, however much the third partner or brother may object. (Cf. B.M. 31b.)
(20) The case just cited.
(21) Hence there was a proper and equitable division which the third party cannot upset.
(22) In the case of the arrival of an absent brother from beyond the sea.
(23) They divided the estate into two parts only, ignoring altogether the just claims of the absent brother. Such a division, therefore, may be justifiably cancelled.
(24) V. supra 105a.
(25) V. supra p. 437. n. 23.
(26) loc. cit. n. 14.
(27) V. p.438. n. 1.
(28) As in the first case of Rab's and Samuel's statement, where twenty-nine se'ah of the thirty in the kor had already been handed over to the buyer.
(29) Since all must be returned to the seller. If decisions are to be adhered to, why should the buyer be obliged to return that portion of the purchase which by mutual agreement had passed over into his possession?
Talmud - Mas. Baba Bathra 107a
- There,1 the Rabbis have made a provision which is convenient for the seller2 and [also] for the buyer.3
It was stated:4 [In the case where two] brothers divided [an inherited estate between them], and a creditor [of their father] came and distrained the share of one of them, Rab said: The division is cancelled;5 Samuel said: He6 has forfeited his claim;7 and
R. Assi said: He8 takes a quarter9 either in land or in money. Rab said that the division was to be cancelled, because he holds the opinion that brothers, even after having divided [their father's estate between them, remain] co-heirs.10 Samuel said that he [whose share was seized] forfeited his claim, because he holds the opinion that brothers, after having divided [their father's estate between them], stand to each other in the relationship of vendees, each being in the position of a purchaser without a warranty [of indemnity].11 R. Assi is in doubt whether they still remain co-heirs or stand in the relationship of vendees; he [whose share was seized] takes, therefore, a quarter12 either in land or in money.13
R. Papa said: The law in all [the cases dealt with in] these traditions is that [a portion, or portions must be] relinquished.14 Amemar said: The [original] division is cancelled. And the law [is that the original] division is cancelled.15
Our Rabbis taught: [In the case where] three [experts] went16 down [to the estate of male orphans] to assess it,17 [and] one values [the estate] at a maneh11 and the two value [it] at two hundred zuz, [or if] one values it at two hundred zuz and the two value it at a maneh,18 the one, being in the minority,is overruled.19 [If] one values [the estate] at a maneh, one at twenty [sela'],20 and one at thirty [sela'], it is to be adjudged at a maneh. R. Eliezer b. R. Zadok, said: It is to be adjudged at ninety [zuz]. Others said: [The difference]21 between them is calculated and divided by three.22 He who said, 'It is to be adjudged at a maneh', [adopts the] middle course.23 R. Eliezer b. R. Zadok, [who] said, 'It is to be adjudged at ninety', is of the opinion [that] the land
(1) The case spoken of by Rab and Samuel.
(2) He prefers the transaction to be regarded as incomplete until the last se'ah is measured out, in order that he might withdraw from the sale at the last minute in case prices rise.
(3) He also prefers to be in a position to withdraw at the last se'ah, in the expectation that prices may fall. Consequently there was no decision nor any mutual agreement. Hence either party may withdraw even at the last se'ah.
(4) B.K. 9a.
(5) And a new division of the remainder of the estate is to be made.
(6) Whose share was seized.
(7) And the division, therefore, is valid, the other brother retaining his full original share.
(8) V. p. 443. n. 16.
(9) Of his brother's share, i.e., an eighth of the original estate.
(10) Hence they remain collectively responsible for the payment of their father's debts.
(11) None of them having undertaken to make good the loss of any of the others.
(12) Of his brother's share. Half the share certainly belongs to his brother, and the doubt is only in respect of the other half; hence it is divided between the two, each one receiving, or retaining a quarter of it.
(13) His brother cannot be compelled to give up a portion of his land. Since creditors must accept money, he has only himself to blame for having parted with his land, and can only expect to receive from his brother the kind of payment the latter would have made to the creditor.
(14) The one in possession must give up a portion to him who has been deprived of his share, so that all their respective shares in the estate be equalized. The original division, however, is not entirely upset no new lot taking place and every one retaining a portion of what was originally allotted to him.
(15) An entirely new division must be made, and lots cast again.
(16) Under instructions from a judicial court.
(17) With the object of selling it for the maintenance of the dead owner's widow or his orphan daughters.
(18) Maneh hundred zuz or twenty-five sela'. A sela' four zuz.
(19) The opinion of the two who are in the majority is to be followed. (Cf. Ex, XXIII, 2.)
(20) I,e., five sela less than a maneh. (V. p. 444, n. 11).
(21) Between the lowest valuation and the highest, i.e., between the thirty. and the twenty, sela', amounting to ten sela'.
(22) Ten sela' equal 40 zuz. 40/3 == 13 1/3]. This quotient is added to the lowest valuation which is 20 sela' or 80 zuz. Thus, 80 + 13 1/3 == 933 zuz.
(23) The average of 80 zuz (or twenty sela' which is the lowest valuation) and 120 zuz (or 30 sela', the highest valuation). 80+120/2 == 100 zuz or a maneh.
Talmud - Mas. Baba Bathra 107b
is worth ninety [zuz], and the reason why one valued it at twenty [sela]1 is because he had underestimated2 it by ten [zuz], and he who valued it at a maneh overestimated3 it by ten [zuz]. On the contrary! [Let it be assumed that] the land is worth a hundred and ten [zuz] and that he who valued it at a maneh underestimated4 it, by ten [zuz], and he who said thirty5 overestimated6 it by ten [zuz]?7 At all events one should adopt the first two, since both do not exceed the sum of one maneh.8 The others [who] said: [The difference] between them is calculated and divided by three, hold the opinion [that] the land is worth ninety-three [zuz] and a third; [and] that he who valued it at twenty [sela'] underestimated4 it by thirteen [zuz] and a third; he who valued it at a maneh overestimated6 by thirteen [zuz] and a third. Logically [the latter] should have given a higher9 estimate10 but the reason why he did not do it11 is because he thought. 'It is enough that I have exceeded my colleague's [estimate] by so much' - On the contrary! [Let it be said]: The land is worth a hundred and thirteen [zuz] and a third; he who valued it at a maneh underestimated12 it by thirteen [zuz] and a third, and he who valued it at thirty [sela'] overestimated13 it by thirteen [zuz] and a third; and logically he should have submitted a higher estimate14 [but] he thinks, 'It is enough that I have exceeded my colleague's by so much'? - At all events one should adopt the first two, since both do not exceed the sum of a maneh.15
R. Huna said: The halachah is in accordance with [the opinion of the] others. R. Ashi said: We do not know the reason16 [for the opinion] of the others; shall we administer the law in accordance with their view?
The judges of the Exile17 taught: [The difference] between them is calculated and divided by three. R. Huna said: The law is in accordance with [the teaching of] the Judges of the Exile. R. Ashi said: We do not know the reason18 [for the opinion] of the judges of the Exile, shall we administer the law in accordance with their view?
MISHNAH. IF ONE SAYS TO ANOTHER, 'I SELL YOU HALF19 A FIELD', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES THE HALF OF HIS FIELD.20 [IF ONE SAYS.] 'I SELL YOU HALF OF IT21 ON THE SOUTHERN SIDE', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES ITS SOUTHERN HALF.20 HE22 MUST UNDERTAKE [TO SUPPLY]23 SPACE FOR THE WALL24 [AND] FOR THE BIGGER AND SMALLER TRENCH.25 AND WHAT IS [THE WIDTH OF] THE BIGGER TRENCH? SIX HANDBREADTHS26 ; AND [THAT OF] THE SMALLER ONE, THREE.26
GEMARA. R. Hiyya b. Abba said in the name of R. Johanan: The buyer takes the poorer [side] of it.27 Said R. Hiyya b. Abba to R. Johanan: Surely we have learned that a compromise28 was to be made between them? - He replied unto him: While you were [engaged in] eating date-berries in Babylon29 , I expounded [this] with the aid of the concluding clause. For in the concluding clause it is taught: [IF ONE SAYS]. 'I SELL YOU HALF OF IT ON THE SOUTHERN SIDE', A COMPROMISE IS MADE BETWEEN THEM AND HE TAKES ITS SOUTHERN HALF. But why, [according to your reasoning,] should a compromise be made between them? Surely he [explicitly] said to him, 'Half of it on the southern side'!30 But [you must say that the expression there refers] to the price.31 here also [it must be assumed that the expression used refers] to the price.32
HE MUST UNDERTAKE [TO SUPPLY] THE SPACE FOR THE WALL etc. It was taught: The bigger trench is without and the smaller one is within,33 and both [are made] behind the wall [on its outer side]
(1) 'I.e., eighty zuz,
(2) Lit., 'erred (by) ten backwards'.
(3) Lit., 'erred (by) ten forwards'.
(4) V. note 6.
(5) I.e., 120 zuz.
(6) V. note 7.
(7) Why. then, should the two lower valuations be taken into account and not the two higher ones?
(8) It is preferable to adopt the two valuations which have in common the point of not exceeding the sum of a maneh, and to ignore the third, rather than to adopt valuations which have nothing in common.
(9) I.e., 93 1/3 + 13 1/3 = 106 2/3, zuz.
(10) Lit., 'should have said more'.
(11) Lit., 'why he did not say'.
(12) V. p.445, n. 6.
(13) V. p. 445, n. 7.
(14) V. loc. cit. n. 14.
(15) V.loc.cit.n. 12.
(16) I.e., 'their reason does not appeal to us', 'we do not accept it'.
(17) Samuel and Karna, v. p. 279. n. 6.
(18) v. note 5.
(19) Not specifying which half.
(20) This is explained in the Gemara, infra, to refer to the value of, and not to the actual field.
(21) The field.
(22) The seller.
(23) Out of his portion of the field.
(24) Round half the field.
(25) Which is dug round the wall. A smaller trench is made between the wall and the bigger trench.
(26) Along the entire length of the field.
(27) Of the field. The seller, being the previous possessor, is entitled to choose the fertile, and better side.
(28) Which implies that the buyer is not to be at a disadvantage and is to have a share which is as good as that of the seller How, then, could R. Johanan state that the buyer must take the worst part?
(29) I.e., engaged in worldly pleasures and neglecting the study of the Torah. [Hiyya b. Abba was born at Kafri in Babylonia, whence he came to Palestine at a somewhat advanced age.]
(30) How, then, does a compromise come in? Since the seller specified the southern side, that side should go to the buyer!
(31) By saying, 'the southern side', not the actual spot was meant but the value of that spot in any part of the field.
(32) The compromise consists in this, that the buyer gets land equal to the full value of half the field, while the seller has the choice of giving of the land on any side, even on the worst, provided the value of it is not less than half the price of the entire field.
(33) Between the wall and the outer trench.
Talmud - Mas. Baba Bathra 108a
in order that an animal may not jump [over the wall]. Let, then, the big trench be made1 and not [also] the small one? - Since it is wide, [the animal] might stand in it and jump. Then let the smaller trench be made and not the bigger one? Since it is small, [the animal] might stand on the [outer] edge and jump. How much [space must there be] between the bigger, and the smaller trench? - One handbreadth.
MISHNAH. SOME [RELATIVES] INHERIT [FROM], AND TRANSMIT [TO EACH OTHER];2 SOME INHERIT3 BUT DO NOT TRANSMIT;4 [SOME] TRANSMIT RUT DO NOT INHERIT, [AND SOME] NEITHER INHERIT NOR TRANSMIT. THE FOLLOWING INHERIT [FROM], AND TRANSMIT [TO EACH OTHER]: A FATHER [INHERITS FROM,5 AND TRANSMITS TO HIS] SONS, AND SONS [INHERIT FROM, AND TRANSMIT TO THEIR] FATHER; AND BROTHERS FROM THE [SAME] FATHER6 INHERIT [FROM], AND TRANSMIT [TO EACH OTHER].7 A MAN [INHERITS FROM] HIS MOTHER AND [FROM] HIS WIFE [BUT DOES NOT TRANSMIT HIS ESTATE TO THEM8 IF HE DIES FIRST]; AND SISTERS' SONS INHERIT [FROM THEIR UNCLES] BUT DO NOT TRANSMIT [THEIR ESTATES TO THEM].9 A WOMAN [TRANSMITS HER ESTATE TO] HER SONS AND A WIFE [TO] HER HUSBAND [BUT THEY DO NOT INHERIT FROM THEM]; AND MOTHER'S BROTHERS TRANSMIT [THEIR ESTATES TO THEIR NEPHEWS] BUT DO NOT INHERIT [FROM] THEM. AND BROTHERS FROM THE [SAME] MOTHER NEITHER INHERIT [FROM], NOR TRANSMIT [TO EACH OTHER].10
GEMARA. Why does the Mishnah teach first, THE FATHER [INHERITS FROM, AND TRANSMITS TO HIS] SONS, let it first teach, THE SONS [INHERIT FROM, AND TRANSMIT TO THEIR] FATHER, for, in the first place,11 one should not commence with [something suggestive of] misfortune12
(1) The big trench alone should suffice to prevent the animal from jumping over the wall.
(2) Whoever of these dies first transmits his estate to the other, and whoever survives inherits it.
(3) From certain relatives who predecease them.
(4) Their estates to these relatives if they die first.
(5) From his sons, if they die without leaving any issue.
(6) Though not from the same mother.
(7) If they die without issue.
(8) Because the relatives on his father's side are entitled to the inheritance of his estate.
(9) V. Previous note.
(10) Their relatives on their respective fathers' sides inherit from them.
(11) Lit, 'one'.
(12) The death of a son in his father's lifetime.
Talmud - Mas. Baba Bathra 108b
and, secondly,1 [one should follow the order of the Torah,] as it is written, If a man die and have no son?2 - The Tanna prefers3 [to begin with the case of a father who is heir to his son] because this [law] has been arrived at through an exposition. What is the exposition? - It has been taught: His kinsman,4 refers to the [dead man's] father. This teaches that a father takes precedence5 over brothers. One might [assume] that he also takes precedence over a son, [therefore] it was expressly stated, that is next [to him],6 [which implies] he who is nearest7 takes precedence. What reason is there8 for including the son9 and excluding the brother? - The son is included because, as is known,10 he is [entitled] to take his father's place in designating [the Hebrew handmaid of his father to be his wife],11 and [also in the redeeming] of a field of [his father's] possession.12 On the contrary! [Rather say:] 'The brother is included because he also takes the place of his brother in the case of a levirate marriage.'13 Surely levirate marriage only takes place where there is no son, but where there is a son there is no levirate marriage.14
[From what has been said it appears] that the [only] reason [for the precedence of a son is] that there is this reply,15 but had it not [been] so, it would have been held [that] a brother takes precedence, [but cannot] this [law]16 be deduced
(1) Lit., 'and furthermore'.
(2) Num. XXVII, 8. This implies that if a father leaves a son, the latter inherits from him. Now, since the Scripture begins with the case of a son inheriting from his father the Tanna of our Mishnah should have done likewise!
(3) Lit., 'beloved to him'.
(4) Num. XXVII, 11. Ye shall give his inheritance unto his kinsman.
(5) If the dead man is survived by a father and brothers, his estate is inherited by the former.
(7) A son is a nearer relative than a father.
(8) Lit., 'what have you seen?'
(9) I.e., regarding him as the nearest relative, taking precedence over father and brothers.
(10) Lit 'for so'.
(11) The master of a Hebrew handmaid may designate her to be his wife, and there is no need for him to betroth her in the usual manner. His son also, 'if she please not her user', may designate her to be his wife, in the same way as his father. No brother or any other person has the same privileges. Cf. Ex. XXI, 7ff.
(12) If a man sanctifies onto the Lord a field of his possession, he or his son may redeem it. If a brother, however, or any other person has redeemed the field, it returns to the priests in the jubilee year. Cf. Lev. XXVII, 16ff.
(13) The law requiring a person to marry the widow of a brother who dies without issue. Cf. Deut. XXV, 5ff. A son, of course, cannot have this right or privilege.
(14) Consequently, even as regards levirate marriages, a son stands nearer, and is in a more privileged position than a brother.
(15) 'Surely levirate etc.'
(16) That a son takes precedence over a brother.
Talmud - Mas. Baba Bathra 109a
[from the fact] that in one case1 [there are] two [advantages]2 and in the other3 [only] one?4 - The very [law of a son's precedence in the case of the redemption of a] field of [his father's] possession was deduced by the Tanna from this very argument, viz., 'Surely levirate marriages only take place where there is no son, but where there is a son there is no levirate marriage'!5
[But why not] say [thus]: 'His kinsman,6 refers to the father. This teaches that a father takes precedence over a daughter.7 One might [assume] that he [also] takes precedence over [a] son, it was therefore expressly stated that is next [to him],6 [which implies,] he who is nearest takes the precedence'? - Since in respect of levirate marriages a son and a daughter have the same8 standing, a son and a daughter must have the same standing in the case also of inheritance.9 [Why again not] say [thus]: 'His kinsman,6 refers to the father. This teaches that a father takes precedence over the [dead man's] father's brothers. One might [assume] that he also takes precedence over brothers, it was therefore expressly stated, that is next,10 [which implies], he who is nearest takes the precedence'? - The father's brothers do not require any Scriptural text;11 [for] from whom12 do the father's brothers derive their right? From the father; should [then] the brothers of the father inherit when the father [himself] is alive! But, surely, the Scriptural verses are not written in this [order], for it is written, And if his father have no brethren etc.!13 - The verses are not written in [the proper] order14 [of succession].
The following Tanna derives it15 from the following: For it was taught: R. Ishmael, son of R. Jose, gave the following exposition: [It is written,] If a man die, and have no son, [then ye shall cause his inheritance to pass unto his daughter].16 [This implies that] where there is a daughter the inheritance is passed from the father,17 but no inheritance is passed from the father, where there are [only] brothers.18
But [why not] say [thus]? Where there is a daughter the inheritance is passed from the brothers,19
(1) Lit., 'here', i.e., the case of a son.
(2) The designation of a handmaid, and the redemption of a field of his (father's) possession.
(3) Lit. 'here', i.e., the case of a brother.
(4) That of the levirate marriage.
(5) It was this argument that had confirmed the Tanna in his opinion that a son takes his father's place in the redemption of a field of his father's possession (v. 'Ar, 25b). Without this argument it could not have been proved that a son has any greater claim to the redemption of the field than a brother or any other person. Since this law, then, depends entirely on the argument mentioned, there remains only one independent point in favour of a son's precedence. Hence it was necessary to have recourse to the reply mentioned.
(6) Num. XXVII, 22.
(7) Since she never takes the place of her father either as a son (for designation and redemption), or as brother (for Ievirate marriage).
(8) Whether the dead man has left a son or a daughter, his widow is in either case exempt from levirate marriage; but his being survived by a father does not make any difference.
(9) A daughter, therefore, takes precedence over a father,
(10) Num. XXVII, 11.
(11) To prove that a father takes precedence over them.
(12) Lit., 'on whose strength'.
(13) Ibid. According to this verse, since his kinsman refers to the father, the father's brothers should take precedence over him, for the verse reads, And if his father have no brethren, then ye shall give his inheritance unto his kinsman, which implies (cf. the preceding verse), that if he has brothers it is they who inherit, and not he.
(14) Though kinsman, i.e., 'a father', is mentioned after 'a father's brothers', he nevertheless takes precedence over them, by reason of the given argument.
(15) The law that a father takes precedence over the dead man's brothers.
(16) Num. XXVII, 8.
(17) Of the dead man. The phrase והעברתם (we-ha'abartem) is taken to mean, 'ye shall cause (the inheritance) to pass (from his father) unto his daughter' that is, the father of the deceased is passed over in favour of the daughter.
(18) Of the dead man.
(19) Of the dead, unto his daughter; and accordingly. Num XXVII, 8 should be read and interpreted as follows: If a man die, and have no son, then ye shall cause his inheritance to pass (from his brothers) unto his daughter; and if he has no daughter, his brothers inherit from him.
Talmud - Mas. Baba Bathra 109b
but no inheritance is passed from the father even where there is a daughter'?1 - If so2 the Torah should not have written3 [at all]. Then ye shall cause [his inheritance] to pass [unto his daughter].4
According to him who infers it5 from, then ye shall cause [his inheritance] to pass,6 what is [the phrase], his kinsman, to be applied to? - He applies7 it, to [the following], as it was taught: His kinsman,8 refers to his wife: [and this] teaches that the husband is heir to his wife.9 And according to him who infers its from his kinsman, to what does he apply [the expression], then ye shall cause [his inheritance] to pass?10 - He applies it to [the following]; as it was taught: Rabbi said: In [the case of] all [the relatives],11 [the expression of] 'giving' is used, but here,12 [the expression] used is that of 'causing to pass',13 [in order to teach] you that no other but a daughter causes an inheritance to pass from one tribe to [another] tribe, since [in her case] her son or her husband are her heirs.14
What [reason] is there for deducing that she'ero15 refers to the father? - Because it is written, She is thy father's near kinsman:16 Why not [rather] say [that] she'ero refers to the mother since it is written, She is thy mother's near kinswoman?17 - Raba replied: The Scriptural text says. that is next to him of his family, and he shall possess it;18 the family of the father is regarded19 [as the proper] family [but] the family of the mother is not regarded19 [as the proper] family; for it is written, by their families, by their father's houses.20 [But] is not the mother's family regarded19 [as the proper] family? Surely it is written, And there was a young man out of Bethlehem in Judah - of the family of Judah - who was a Levite, and he sojourned there;21 [now], this is self-contradictory, [for] it is said, 'who was a Levite', which clearly indicates that he descended from Levi, [and it is also said], 'of the family of Judah,' which clearly shows that he descended from Judah; must it not then be concluded that his father [was of the tribe] of Levi and his mother [of that] of Judah, and [yet the text] speaks [of him as] 'of the family of Judah'! - Raba, son of R. Hanan, replied: No;22 [he may have been] a man whose name was Levi.23 If so, [is] this [the reason] why Micah said , 'Now know I that the Lord will do me good, seeing I have a Levite as my priest'?24 - Yes; [he was glad] that he happened to obtain a man whose name was Levi. But was Levi his name? Surely his name was Jonathan, for it is said, And Jonathan the son of Gershom, the son of Manasseh, he and his sons were priests to the tribe of the Danites?25 - He said unto him: But [even] according to your argument, [it may be objected], 'Was he the son of Manasseh? Surely he was the son of Moses, for it is written, the son of Moses: Gershom, and Eliezer';26 but [you must say that] because he acted [wickedly] as Manasseh,27 the Scriptural text ascribed his28 descent to Manasseh, [so] also here29 [it may be said that], because he acted [wickedly] as Manasseh who descended from Judah, the Scriptural text ascribed his28 descent to Judah.30 R. Johanan said in the name of R. Simeon b. Yohai: From here [one may infer] that corruption is ascribed28 to the corrupt.31 R. Jose b. Hanina said: [This32 may be inferred] from the following: [It is written,] And he33 was also a very goodly man, and he was born after Absalom;34 was not Adonijah the son of Haggith, and Absalom the son of Maacah? But because he33 acted in the same manner as Absalom who rebelled against the king, the Scriptural text associated35 him with Absalom.
R. Eleazar said: One should always associate36 with good [people]; for behold, from Moses who married the daughter of Jethro,37 there descended Jonathan38 [while] from Aaron, who married the daughter of Amminadab, there descended Phinehas.39 But did not Phinehas descend from Jethro? Surely it is written, And Eleazar40 Aaron's son took him one of the daughters of Putiel to wife;41 does not this mean that he descended from Jethro who crammed42 calves for idol worship? - No; [it means] that he descended from Joseph who conquered43 his passions.44 Did not, however, the tribes sneer at him and say.45 'Have you seen this Puti-son?46 A youth whose mother's father crammed calves for idol-worship should kill the head47 of a tribe in Israel!'
(1) Since the text speaks only of brothers and not of a father, why should it not be assumed that a father takes precedence over a daughter, though not over brothers?
(2) That Num. XXVII, 8 is to be interpreted in the sense that only where there is a daughter does she takes precedence over the brother but where there is no daughter the inheritance is to go to the brothers.
(3) In Num. XXVII, 8.
(4) Since this law is specifically stated in the following verse (ibid 9).
(5) V. p. 451, n. 5.
(7) Lit., 'requires'.
(8) Num. XXVII, 11.
(9) Infra 111b.
(10) Ibid. 8.
(11) Enumerated in Num. XXVII, 9-11.
(12) In the case of a daughter.
(13) Ibid. 8.
(14) V. Infra 147a.
(15) שארו 'Kinsman' or 'kinswoman'.
(16) שאר אביך Lev. XVIII, 12.
(17) שאר אמך Ibid. 13; and, consequently, let it be inferred from this text that a mother, like a father, is entitled to inherit from a daughter
(18) Num. XXVII, 11.
(19) Lit., 'called'.
(20) Ibid. I, 22.
(21) Judg. XVII, 7.
(22) His father was not of the tribe of Levi, but of that of Judah.
(23) לוי may be rendered as both 'Levite' and 'Levi'.
(24) If the young man were not of the tribe of Levi, would Micah have been so glad in having secured a mere layman as his priest?
(25) Judg. XVIII, 30. The Danites appropriated Micah's graven and molten images, his ephod and teraphim, and took also with them the young man who was his priest.
(26) I Chron. XXIII, 15.
(27) Manasseh the son of Hezekiah was one of the most wicked kings of Judah. Cf. II kings XXI, 1-17. [In the M.T the נ of מנשה is a litera suspensa: .]
(28) Lit., 'hanged him on'.
(29) To harmonise Judg. XVII, 7, with the statement that the family of the mother is not regarded as the proper family.
(30) But, in reality, he may have belonged to the tribe of Levi. Hence, in either ease, Judg. XVII, 7, cannot be adduced as proof that the mother's family is regarded as the proper family.
(31) Micah's priest who ministered to idolatry is described as a descendant of the corrupt king Manasseh.
(32) That corruption is ascribed to the corrupt.
(34) I Kings I, 6.
(35) V. p. 453. n. 7.
(36) Lit., 'cling to'.
(37) The priest of Midian, an idolater.
(38) An idolatrous priest.
(39) Cf. Num. XXV, 11ff.
(40) The father of Phinehas.
(41) Ex. VI, 25.
(42) פטם regarded as of the same root as Putiel.
(43) פטפט 'conquer in argument'.
(44) Cf. Gen. XXXIX, 7ff.
(45) Cf. Sanh. 82b, Sotah, 43a.
(46) Abbreviation of Putiel.
(47) Zimri. v. Num. XXV, 6ff
Talmud - Mas. Baba Bathra 110a
But [this is really the explanation], if his mother's father [descended] from Joseph, his mother's mother1 [descended] from Jethro; if his mother's father [descended] from Jethro, his mother's mother [descended] from Joseph.2 [This may] also [be confirmed by] deduction, for it is written, of the daughters of Putiel, from which two3 [lines of ancestry]4 are to be inferred.
Raba said: He who [wishes] to take a wife should inquire about [the character of] her brothers. For it is said, And Aaron took Elisheba, the daughter of Amminadab, the sister of Nahshon;5 since it is stated the daughter of Amminadab, would it not he obvious that she is the sister of Nahshon? Then why should it be expressly stated, the sister of Nahshon? From here, [then], it is to be inferred that he who takes a wife should inquire about [the character of] her brothers. It was taught:6 Most children resemble the brothers of the mother.
And they turned aside thither, and said unto him: 'Who brought thee hither?7 and what doest thou in this [place]?8 and what hast thou here?9 They10 said unto him:11 'Are you not a descendant of Moses of whom it is written, Draw not nigh hither?12 Are you not a descendant of Moses of whom it is written, What is this13 in thy hand?14 Are you not a descendant of Moses of whom it is written, But as for thee, stand thou here15 by me?16 Would you be made a priest for idol-worship?' - He said unto them: I have the following tradition from my grandfather's family: At all times shall one [rather] hire himself out to idol-worship than be in need [of the help] of [his fellow] creatures. He thought that 'Abodah Zarah17 [meant] actual [idol worship], but it is not so, [the meaning being,] 'work which is strange to him';18 as Rab said19 to R. Kahana: Flay20 a carcass in the street and earn21 a wage, and say not, 'I am a great man and the work is degrading to me'. When David saw that he had an exceptional liking for money, he put him in charge over the treasuries, for it is said, Shebuel the son of Gershom, the son of Manasseh22 was ruler over the treasuries.23 But was his name Shebuel? Surely his name was Jonathan! - R. Johanan said: [He was called Shebuel]24 because he returned to God24 with all his heart.
AND SONS [INHERIT FROM, AND TRANSMIT TO THEIR] FATHER. Whence is this25 derived? - It is written, If a man die, [and have no son, then ye shall cause his inheritance to pass unto his daughter].26 [From this it is to he inferred that] the reason27 is because he have no son but if he have a son the son takes precedence.28
R. Papa said to Abaye: Might it not be inferred29 that if there be a son, the son is to be the heir; [if] there be a daughter, the daughter is to be the heir; [and if] there be [both] a son and a daughter, neither the one is to he heir nor the other? - But
(1) But not his own mother.
(2) In either ease, Phinehas was several generations removed from Jethro, while Jonathan, being the son of Gershom, was only two generations removed.
(3) The Yod in Putiel is regarded as a sign of the plural.
(4) Joseph and Jethro.
(5) Ex. VI, 23.
(6) Soph. XV, 20.
(9) פה Judg. XVIII, 3.
(10) The Danites.
(11) Micah's priest.
(12) Ex. III, 5.
(14) Ex. IV, 2.
(16) Deut. V, 28.
(17) עבודה זרה may mean both 'idolatry' and 'strange work'.
(18) Uncongenial, below his dignity.
(19) Cf. Pes. 113a.
(20) Or 'dress'.
(21) Lit., 'take'.
(22) M.T. reads, Moses.
(23) I Chron. XXVI, 24.
(24) שבואל is composed of שב (returned), and אל (God).
(25) That sons take precedence over daughters.
(26) Num. XXVII, 8.
(27) For causing the inheritance to pass to a daughter.
(28) Over the daughter, who, however, according to a Rabbinical provision, is entitled, if unmarried to a tenth of the estate. Cf. Keth, 68a.
(29) From Num. XXVII, 8.
Talmud - Mas. Baba Bathra 110b
who then should he the heir? Should the town collector1 he the heir! - It is this that I suggest: [If] there be a son and a daughter. neither the one nor the other should inherit all [the estate], but both together should inherit [it].2 Abaye said to him: Is, then,3 a Scriptural verse required to tell us that where there is a one and only son he inherits all the property?4 - Is it not possible, however, that [Scripture] meant to teach this: That a daughter also has a right of inheritance?5 - This6 is deduced from, And every daughter, that possesseth an inheritance.7 R. Aha b. Jacob said: [The law of a son's precedence over a daughter may he inferred] from here: Why should the name of our father be done away from among his family, because he had no son?8 The reason,9 then, is because he had no son, but had he had a son, the son would have taken precedence. But it is not possible that the daughters of Zelophehad [only] said so,10 [and that] when the Torah was given1 the law received a new interpretation?11 - But the best [proof]12 is that given at first.13
Rabina said: [The law of a son's precedence may he inferred] from here: That is next to him,14 i.e., he who is nearest in relationship takes precedence. And [in] what [respect is] the relationship of a son [nearer] than [that of] a daughter? [Is it] in that he is [entitled] to take his father's place in designating [the Hebrew handmaid of his father to be his wife]15 and [in the redeeming] of a field of [his father's] possession?16 [Surely, as regards] designation, a daughter is not one to designate;17 [and as regards] the redemption of a 'field of possession', [a daughter] also [may he entitled to the same privilege as a son, by logical deduction] from the selfsame objection, from which the Tanna had deduced [the law that a son is entitled to this privilege]: 'Is there any levirate marriage except where there is no son?'18 - But the best proof is that given at first.19
If you like, I can say, [the law of the son's precedence] may be inferred from here: And ye may make them an inheritance for your sons20 after you,21 meaning, your sons but not your daughters. But in that case22 does, That your days may be multiplied, and the days of your sons,23 also mean 'your sons' and not 'your daughters'? - It is different [in the case of] a blessing.24
AND BROTHERS FROM THE [SAME] FATHER INHERIT [FROM]. AND TRANSMIT etc. Whence is this derived? - Rabbah said:25 It may be deduced [from a comparison of this] 'brotherhood'26 with the 'brotherhood' of the sons of Jacob;27 as there [the brotherhood was derived] from the father and not from the mother, so here [the brotherhood spoken of is that] from the father and not from the mother. What need is there28 [for this inference]? Surely it is written, Of his family. and he shall possess it,29 [and it has been deduced30 that] the family of the father is regarded [as the] family [but] the family of the mother is not regarded [as the] family! - This is so indeed, but the statement of Rabbah was made with reference to [the law of] levirate marriage.31
A MAN [INHERITS FROM] HIS MOTHER etc. Whence are these laws32 derived? - For our Rabbis taught:
(1) Or 'the elder of the town', 'town governor'.
(2) Both taking equal shares.
(3) Since a daughter, according to your opinion, is entitled to the same rights of inheritance as a son.
(4) The Scriptural text, then, which reads, If....(he) have no son, then shall ye cause his inheritance to pass unto his daughter, which is obvious (v. previous note), should have read, instead, If a man die and have no issue then ye shall give his inheritance unto his brethren etc. (v. Num. XXVII, 8.9). The rest of the text, then shall ye cause. . . have no daughter (ibid), would thus become superfluous.
(5) Without specific mention, the daughter might have been excluded from the term 'issue' which would have been taken to apply to males only, for, without such specific mention, the entire context dealing with the laws of inheritance (Num. XXVII, 8-11) would have been speaking of males only. Hence it was necessary to mention 'daughter' in vv. 8-9. Once however a daughter's right to succession is established, there is need of evidence to prove that a son call claim precedence over her.
(6) That a daughter may be heir.
(7) Num. XXXVI, 8.
(8) Ibid. XXVII, 4.
(9) For the request on the part of Zelophehad's daughters for a share in the land.
(10) Believing that to be the law. (12) The laws of inheritance were given subsequent to the representations of Zelophehad's daughters. V. Num. XXVII, 5-7ff.
(11) Giving sons and daughters equal rights of inheritance.
(12) That a son takes precedence.
(13) Supra 110a. 'It is written, if a man lie etc.'
(14) Num. XXVII, 11.
(15) V. supra p. 449. n. 52.
(16) V. loc. 11. n. 13.
(17) And the law could not possibly have been applied to her.
(18) An argument that can likewise be applied in regard to a daughter. viz., 'Is there any levirate marriage except where there is no daughter?' In what respect, then, does a son stand nearer than a daughter in relationship to the father?
(19) V. n. 3.
(20) בניכם is rendered here 'sons'. though it may also bear the meaning of 'children'.
(21) Lev. XXV, 46.
(22) Lit., 'from now'.
(23) Deut. XI. 21. Cf. n. 10 supra.
(24) A blessing would include both sexes, though elsewhere the term sons applies to males only.
(25) Cf. Yeb. 17b, 22a.
(26) The expression 'brethren', used in Num. XXVII. 9.
(27) Ice thy servants are twelve brethren (Gen. XLII, 13).
(28) In the case of the laws of inheritance.
(29) Num. XXVII, 11.
(30) Supra 109b.
(31) Where also the expression, 'brethren', is used: If brethren dwell together etc. (Deut. XXV, 5f). Only brothers of the same father are, accordingly, subject to the levirate law.
(32) Lit., 'words'; the laws that a son is heir to his mother as he is to his father, and, moreover, that he takes precedence over a daughter in such an inheritance. The laws in Num. XXVII, 8-9. do not deal with an inheritance from a mother.
Talmud - Mas. Baba Bathra 111a
[It is written.] And every daughter that possesseth an inheritance in the tribes1 of the children of Israel;2 how can a daughter inherit [from] two tribes?1 - [Obviously] only when her father is from one tribe and her mother from another tribe, and both died, and she inherited [from] them. [From this] one may only [derive the law in respect of] a daughter. whence [may the law respecting] a son [he derived]?3 - One may derive it by an inference from minor to major: If a daughter, whose claims upon her father's property are impaired,4 has strong legal claims upon the property of her mother, should a son, whose claims upon the property of his father are strong, not justly have strong legal claims5 upon the property of his mother? And by the same argument:6 As there,7 a son takes precedence over a daughter, so here,8 a son takes precedence over a daughter. R. Jose son of R. Judah and R. Eleazar son of R. Jose said in the name of R. Zechariah h. Hakkazzab:9 Both a son and a daughter [have] equal [rights] in [the inheritance of] a mother's estate.10 What is the reason? - It is sufficient for [a law that is] derived by argument to he like [the law] from which it is derived.11 And does not the first Tanna12 expound. 'It is sufficient [etc.]'? Surely, [the exposition of] Dayyo13 is Pentateuchal! For it was taught:14 'An example15 of an inference from minor to major [is]. And the Lord said to Moses: 'If her father had but spit in her face, should she not hide in shame seven days?'16 [Would not one expect, by] inference from minor to major, [that in the case] of the divine presence, [she should hide in shame for] fourteen days?17 - But [it is held that] it is sufficient for [a law that is] derived by argument. to he like [the law] from which it is derived'!18 - Elsewhere he does expound Dayyo,19 hut here it is different, because Scripture says, in the tribes,19 thus comparing the mother's tribe to the father's tribe: as [in the case of] the father's tribe a son takes precedence over a daughter, so [in the case of] the mother's tribe a son takes precedence over a daughter.
R. Nittai intended to decide a case in accordance with [the view of] R. Zechariah b. Hakkazzab, [but] Samuel said to him: 'In accordance with whom? In accordance with Zechariah? Zechariah faileth!'20
R. Tabla decided a case in accordance with [the view of] R. Zechariah h. Hakkazzab. R. Nahman said to him: 'What is this?' - He replied unto him: '[I rely upon] that which R. Hinena b. Shelemia said in the name of Rab [that] the halachah is in accordance with [the view of] R. Zechariah h. Hakkazzab.' He said to him: 'Withdraw, or I shall pull R. Hinena b. Shelemia from your ears!'21
R. Huna b. Hiyya intended to decide a case in accordance with [the view of] R. Zechariah h. Hakkazzab. R. Nahman said to him: 'What is this?' He replied: '[I rely upon] that which R. Huna said in the name of Rab [that] the halachah is in accordance with [the view of] Zechariah h. Hakkazzab. He said to him: 'I will send to him!'22 He grew embarrassed.23 He said to him: 'Now, had R. Huna been dead, you would have continued to oppose me.'24 And whose opinion did he25 adopt? - That of Rab and Samuel both of whom said: The halachah is not in agreement with [the view of] R. Zechariah h. Hakkazzab.
R. Jannai was [once] walking, leaning26 upon the shoulder of R. Simlai his attendant,27 and R. Judah the Prince28 came to meet them. He29 said to him: The man who comes towards us is distinguished30 and his cloak is distinguished.30 When he31 came nigh him [R. Jannai] touched it [and] said to him: This [cloak] - its [legal minimum] size [as regards Levitical uncleanness is but] that of32 sackcloth!33 He31 inquired of him: Whence [is it derived] that a son takes precedence over a daughter in [the inheritance of] a mother's estate? - He replied to him: From34 tribes;35 [where the plural indicates that] the mother's tribe is to be compared to the father's tribe: as [in the case of] the father's tribe,36 a son takes precedence over a daughter so [in the case of] the mother's tribe,37 a son takes precedence over a daughter. He38 said to him: If [so, let it be said that] as [in the case of] the father's tribe a firstborn takes a double portion, so [in the case of] the mother's tribe a firstborn shall take a double portion'!
(1) E.V.: in any tribe. The plural 'in tribes', ממטות implies no less than two.
(2) Num. XXXVI, 8.
(3) That a son also inherits from his mother.
(4) Since a son takes precedence over her.
(5) To be heir.
(6) Lit., 'and from whence you came'.
(7) In the case of a father's inheritance.
(8) In the case of the inheritance of a mother.
(9) A proper noun, or ha-Kazzab 'the butcher'.
(10) They take equal shares.
(11) Since the law that a son may be heir to his mother is derived from the law of a daughter's right to such an inheritance, it cannot be held to confer upon him, in such a case, any right of precedence over a daughter.
(12) Who maintains that a son takes precedence over a daughter even in the case of a mother's inheritance.
(13) דיו 'it is sufficient'.
(14) B.K. 25a, Zeb. 69b.
(15) Lit., 'how'.
(16) Num. XII, 14.
(17) If seven days is the period for a father (who is only a mortal), fourteen days, at least, (double), should be the period in the case of the divine presence.
(18) Hence the rule of Dayyo is proved to he Pentateuchal; how then, can the first Tanna uphold a law which is contrary to this rule of Dayyo?
(19) Num. XXXVI, 8.
(20) אפם (cf. Gen. XLVII, 16, 17). 'The law is contrary to the view of R. Zechariah.'
(21) He would be placed under the ban so that he would think no more of R. Hinena; cf. Sanh. 8a.
(22) To R. Huna, to ascertain whether he really held such an opinion.
(23) Not being sure whether R. Huna still adhered to the same opinion.
(24) Now, however, that R. Huna is alive, this resistance must cease. R. Nahman, apparently, suspected R. Huna b. Hiyya of quoting R. Huna without due authorisation.
(25) R. Nahman
(26) R. Jannai suffered from defective eyesight due to old age.
(27) שמעיה The שמעא of many of the Rabbis was a disciple of the master and himself a scholar.
(28) Judah II.
(29) The attendant.
(30) Lit., 'beautiful'.
(31) R. Judah.
(32) Lit., 'like'.
(33) And therefore cannot be as distinguished as the attendant claimed it to be. Cheap, coarse material is not subject to the laws of Levitical uncleanness, unless its size is no less than four handbreadths by four, instead of three by three which is the legal minimum required in the case of finer materials.
(34) Lit., 'for it is written'.
(35) Num. XXXVI, 8.
(36) I.e., inheritance from a father.
(37) I.e., the inheritance of a mother's estate.
(38) V. p. 460, n. 12.
Talmud - Mas. Baba Bathra 111b
- He1 called to his attendant: Lead on! This [man] does not desire to learn.2 What, then, is the reason?3 - Abaye replied: Scripture says: Of all that he hath,4 implying he5 and not she.6 Might it not be suggested that these words7 [apply to the case where] a bachelor married a widow;8 but [where] a bachelor married a virgin9 he10 takes [a double portion] also [in the estate of his mother]? - R. Nahman h. Isaac replied: Scripture said: For he11 is the first-fruits of his strength.12 [from which it is to be inferred that the law applies to the first fruits of] his13 strength and not of her strength. [Surely] that [word]14 is required for [the law that though one was] born after a miscarriage15 he is, [nevertheless, regarded as the] firstborn son [in respect] of inheritance, [the text implying that only] he for whom [a father's] heart grieves16 [is included in the law, but that a miscarriage], for which it does not, is excluded!17 - If so,18 the text should have read, 'For he is the first-fruits of strength';19 why his strength?20 Two [laws, therefore,] are to be deduced from it. But still, might it not be suggested that these words21 [apply only to the case of] a widower22 who married a virgin,23 but [where] a bachelor married a virgin24 the firstborn son takes [a double portion] also [in the estate of his mother]! - But, Raba said, [this is the proper reply]: Scripture states, The right of the firstborn is his25 , [and this indicates that] the right of the firstborn [is applicable] to [the estate of] a man and not to [that of] a woman.
AND A MAN [INHERITS FROM] HIS WIFE etc. Whence is this derived?26 - Our Rabbis taught:27 His kinsman,28 refers to his wife; [and this] teaches that the husband is heir to his wife. One might [say that] she also is heir to him, it is therefore expressly stated, And he shall inherit her,29 meaning he is heir to her30 but she is not heir to him. But, surely, the Scriptural verses are not written like that!31 - Abaye said: interpret thus, 'Ye shall give his inheritance unto one that is next to him; [as to] his kinswoman, he shall inherit her'. Raba said: A sharp knife is dissecting the Biblical verses!32 But, said Raba, this is what the text implies: 'Ye shall give the inheritance of his kinswoman into him';33 [Raba] holding the view [that prefixes and suffixes] may he detached from [words] and added to [others], and [a new] interpretation may [then] he given [to the Biblical text].34
The following35 Tanna derives it36 from the following37 [text]: For it was taught: And he shall inherit her,38 teaches that the husband is heir to his wife; these are the words of R. Akiba. R. Ishmael, [however], said: This is not necessary,39 for it is said, And every daughter that possesseth an inheritance in any tribe of the children of Israel, [shall be wife] unto one of the family etc.40 This text speaks of a transfer [from one tribe to another that may be occasioned] through the husband.41 Furthermore, it is said. So shall no inheritance of the children of Israel remove from tribe to tribe.42 Furthermore, it is said. So shall no inheritance remove from one tribe to another tribe.43 Furthermore it is said, And Eleazar the son of Aaron died; and they buried him it, the Hill of Phinehas his son.44 Whence could Phinehas possess [a hill] which did not belong to Eleazar?45 But this46 teaches that Phinehas took a wife who died, and he was her heir. Furthermore it is said, And Segub begat Jair, who had three and twenty cities in the land of Gilead.47
(1) R. Jannai.
(2) He only wishes to argue.
(3) Why, indeed, does a firstborn son take a double share in his father's, and not in his mother's estate?
(4) Deut. XXI, 27. viz., the firstborn takes a double portion of all that he, (his father) hath.
(5) The father.
(6) The mother.
(7) That a firstborn son takes a double portion only in the estate of his father.
(8) Who had children from her first marriage. In such a case, the father's firstborn son is not that of the mother.
(9) In which case the firstborn son of the father is also the firstborn son of the mother.
(10) The firstborn son.
(11) The firstborn son.
(12) Deut. XXI. 17.
(13) The father's.
(14) אונו his strength.
(15) Though he did not 'open the womb', and is not regarded as a firstborn son in respect of 'sanctification to the Lord' and 'redemption from the priest' (v. Ex. XIII, 2).
(16) און may be rendered 'grief' as well as 'strength'.
(17) How, then, could this deduction as well as the one previously mentioned, he made from the same text?
(18) That only the latter deduction is to be made.
(19) און without the suffix' would have been sufficient.
(21) 'His strength, and not her strength', excluding a firstborn from the right to a double portion in the mother's estate.
(22) Who had children from his first wife.
(23) Since the first son from the second marriage is only the wife's firstborn, not his.
(24) And the son is firstborn on both sides.
(25) Deut. XXI, 17. The whole clause being superfluous. לו 'his' is interpreted as referring to the father.
(26) Lit., 'whence these words?'
(27) Supra 109b.
(28) Num. XXVII, 11.
(29) Lit. rendering of the clause translated in the versions, 'and he shall possess it' (ibid.). V. following note.
(30) The pronoun אותה is taken here to refer to 'his kinsman', denoting 'wife'.
(31) The Pentateuchal text does not read, 'ye shall give her inheritance to her husband', but, ye shall 'sire his inheritance unto his kinsman, and 'kinsman' has been interpreted as 'wife'. This, therefore, implies that the wife is heir to her husband
(32) According to Abaye's exposition the text is broken up words are transposed. and a wholly, unnatural and arbitrary interpretation is the result.
(33) Reading, ונתתם את נחלת שארו לו instead of ונתתם את נחלתו לשארן
(34) A ו is detached from נחלתו and a ל from לשארו to form a new word, לו, thus obtaining the required reading and interpretation. V. previous note.
(35) Lit., 'this'.
(36) The law that a husband is heir to his wife.
(37) Lit., 'from here'.
(38) Num. XXVII, 11.
(39) There is no need to infer the law from Num. XXVII, 11, and thus to subject the Biblical text to forced interpretation.
(40) Num. XXXVI, 8.
(41) Scripture is warning a daughter, who has inherited an estate, that she must marry one of her own tribe, for, if she marry into another tribe, her estate, on her death, will be inherited by her husband and thus pass over from the estates of her own tribe to those of another. This clearly proves that a husband is heir to his wife; for, otherwise, a daughter inheriting an estate would be free to marry into any other tribe.
(42) Ibid. 7.
(43) Ibid. 9.
(44) Josh. XXIV, 33.
(45) Phinehas was the son of Eleazar from whom he would presumably inherit after his death. How, then, did Phinehas possess a hill at the very moment his father died?
(46) The mention of a hill that belonged to Phinehas.
(47) I Chron. II, 22.
Talmud - Mas. Baba Bathra 112a
Whence could Jair possess [cities] which did not belong to Segub?1 [But] this2 teaches that Jair took a wife who died, and he was her heir.
[For] what [purpose is] 'furthermore it is said' [required]?3 - In case it be said4 that Scripture is only concerned for a transfer [through] the son,5 but that a husband was not heir [to his wife]. proof was brought from,6 So shall no inheritance of the children of Israel remove front tribe to tribe.7 And in case it be said,8 its9 purpose is [to teach that] one would transgress thereby [both] a negative10 and a positive11 [precept],12 proof was brought from,13 So shall no inheritance remove from one tribe to another tribe.14 And in case it is said15 that the purpose of this is [to teach that] one would transgress two negative [precepts] and [one] positive, proof was brought from,13 And Eleazar the son of Aaron died etc.16 And in case it be said15 that it was Eleazar who took a wife who died, and [that it was] Phinehas [who] was her heir,17 proof was brought from,8 and Segub begat fair etc.18 And in case it be said,15 'There, also, the same thing may have happened'19 [it may be replied]: If so, why two Scriptural verses?20 R. Papa said to Abaye: Wherefrom?21 Is it not indeed possible to maintain [that] a husband is not heir [to his wife]? As to the Scriptural verses, these may speak of a transfer through the son, as interpreted [above]; and that Jair may have bought [the cities]; and Phinehas, [also], may have bought [the hill]?22 - He replied unto him: It cannot be said that Phinehas had bought [the land], for, if so, it would follow that the field must return in the jubilee year,23 and the righteous man24 would thus be buried in a grave which was not his own.25 - But say that it may have fallen to him as a field devoted?26 - Abaye replied: After all,27 the inheritance28 would be removed29 from the tribe of the mother to the tribe of the father!30 But how!31 Is it not possible that that case32 is different33 because [the estate] had already been transferred?34 - He said to him: [The argument]. 'because it had already been transferred' is rather weak.35
R. Yemar said to R. Ashi: If [the argument], 'because it had already been transferred' is to be used,36 one can very well understand the verse37 [as having reference] either to transfer through the son or to transfer through the husband;38 if, however, it is said that [the argument] 'because it had already been transferred', is not to he used, [of] what benefit is [it] when she is married to a man of the family of her father's tribe? Surely the inheritance is removed from the tribe of her mother to that of her father! - She may he given in marriage to a person whose father is of the tribe of her father, and his mother of the tribe of her mother.
(1) Cf. supra n. 11.
(2) The statement that fair had cities which were his own property independent of that of his father.
(3) Supra 111b. Why five Biblical quotations in addition to the first one from Num. XXXVI, 8?
(4) Lit., 'and if you will say'.
(5) I.e that the prohibition against marrying into another tribe was solely due to the fact that the son who is heir to his mother would cause the transfer of the estate from his mother's tribe to that of his.
(6) Lit., 'come and hear'.
(7) Num. XXXVI. 7. Since this verse is superfluous, being practically a repetition of the verse following it, it must be taken to refer to another case of transfer. If XXXVI. 8 has reference to the son, XXXVI. 7 must have reference to the husband.
(8) V. p. 463, n. 17.
(9) Of Num. XXXVI. 7.
(10) so shall no inheritance remove etc.
(11) Shall be wife etc (Num. XXXVI, 8).
(12) But a husband cannot be heir to his wife.
(13) V. n. 1.
(14) Num. XXXVI, 9.
(15) V. p. 463, n. 7.
(16) Josh. XXIV, 33.
(17) Heir to his mother in the lifetime of his father, Eleazar, who, though her husband, was not entitled to be her heir.
(18) I Chron. II, 22.
(19) I.e., fair may have been heir to his mother; not Segub to his wife.
(20) One verse is quite sufficient to teach that a son is heir to his mother. The other, then, must serve the purpose of teaching that a husband also is heir to his wife.
(21) I.e., what proof is there from the verses quoted that a husband is heir to his wife?'
(22) And it was his not by inheritance from a wife but by right of purchase. [The question, 'Why two Scriptural verses?' does not apply here as it is usual for the Bible to record and register acquisitions by individuals. (Rashb.)]
(23) To its original owner. V. Lev. XXV, 13. In this year of the jubilee ye shall return every man unto his possession.
(25) Hence it cannot be assumed that the field in which Phinehas had buried his father was a purchased one.
(26) שדה החרם a field devoted, always remains in the possession of the priest (Lev. XXVII, 21, and Num. XVIII, 14). Consequently, the land which Phinehas possessed in the lifetime of his father need not be assumed to have been an inheritance at all; what proof, then, is there for the assertion that a husband is heir to his wife?.
(27) If it he assumed that a husband is not heir to his wife.
(28) Of a daughter to whom it was bequeathed by her mother.
(29) On the marriage of the daughter unto one of the tribe of her father.
(30) What safeguard, then, against the transfer of property from one tribe to another would have been provided by Num. XXXVI, 8 (cf. supra 111b). which requires every daughter that possesseth an inheritance to be married to one of the family of the tribe of her father? While this provision prevents the transfer from the tribe of a father to that of another, it does not prevent the transfer from a mother's tribe! Consequently, if it he assumed that the transfer is effected through the husband, i.e., that the husband is heir to his wife, provision against the transfer may be made on the lines mentioned below; if, however, it be assumed that the husband is not heir, and that the transfer is effected through the son, what provision against this can be made? This, therefore, urges Abaye, is proof that Num. XXXVI, 8, teaches the law that a husband is heir to his wife.
(31) Lit. , 'from what' i.e., the proof is not conclusive.
(32) The transfer of a mother's inheritance to another tribe.
(33) From that of the transfer to another tribe of a father's inheritance.
(34) A mother's estate, as soon as the daughter inherits it, is removed from the mother's tribe to that of the daughter who belongs to her father's tribe. Consequently it does not matter whether the daughter subsequently marries one from her mother's tribe or not. What proof, then, is there from Num. XXXVI, 8, that a husband is heir to his wife?
(35) Lit., 'we do not say'. Though a partial transfer takes place when a daughter inherits an estate from her mother, it does not follow that this must have the way for a complete transfer to another tribe. The daughter belongs, at least partly, to the tribe of her mother but her son is an entire stranger to that tribe. Consequently there remains the question. What safeguard was provided against the transfer from the mother's tribe?
(36) With the result that we are not concerned with the transfer from the mother's tribe.
(37) Num, XXXVI, 8, And every daughter that possesseth etc.
(38) I.e., owing to one or other of these possibilities of transfer from the father's inheritance to another tribe, a daughter inheriting an estate must marry one of her father's tribe.
Talmud - Mas. Baba Bathra 112b
If so,1 that [verse]2 should have [read], 'To one of the family of the tribe of her father and her mother'! - If it had been written thus, even the reverse3 might have been assumed, hence4 the need for the present reading.5
It was taught [that a daughter inheriting an estate must marry one of her father's tribe in order to prevent] transfer [from tribe to tribe] through the son; and it was [also] taught [that the object is to prevent] transfer through the husband. 'It was taught [that the object is to prevent] transfer through the son': [For it is written]. So shall no inheritance of the children of Israel remove from tribe to tribe.6 Scripture speaks [here] of transfer through the son. Thou sayest [that it speaks] of a transfer through the son, perhaps [it speaks] only7 of a transfer through the husband? - Since it was said, so shall no inheritance remove front one tribe to another tribe,8 behold transfer through the husband has been spoken of, to what, then, shall one apply, so shall no inheritance of the children of Israel remove from tribe to tribe?9 [It must be assumed, therefore, that] Scripture speaks [here] of transfer through the son.
(1) That the man she marries must belong both to her mother's, as well as to her father's tribe.
(2) Num. XXXVI, 8.
(3) When his father belongs to the tribe of her mother, and his mother to the tribe of her father, involving the complete transference from her father's tribe to that of her mother's, the tribe of her husband's father,
(4) To teach that his father must be of the same tribe as her father.
(5) Lit., 'he teaches us'.
(6) Num. XXXVI, 7.
(7) Lit., 'or it is not, but'.
(8) Ibid. 9.
(9) Ibid, 7.
Talmud - Mas. Baba Bathra 113a
It was taught in another Baraitha: So shall no inheritance remove from tribe to tribe.1 Scripture speaks [here] of a transfer through the husband. Thou sayest [that it speaks] of a transfer through the husband, perhaps [it speaks] only2 of a transfer through the son? - Since it was said, so shall no inheritance of the children of Israel remove from tribe to tribe,3 behold, transfer through the son has been spoken of, to what, then, shall one apply, so shall no inheritance remove from one tribe to another tribe?1 [It must be assumed, therefore, that] Scripture speaks [here] of transfer through the husband.
Both,4 at all events, [agree that] in, from one tribe to another tribe,1 Scripture speaks of transfer through the husband; how [is this] to be inferred?5 - Rabbah son of R. Shila said: Scripture states, Ish.6 Is not Ish written in both?7 - But, said R. Nahman b. Isaac, Scripture states, shall cleave.8 Is not [the phrase], shall cleave, written in both?9 But, said Raba; Scripture states. The tribes shall cleave.10 R. Ashi said: Scripture states. from One tribe to another tribe,11 but a son is not [of] another.12
R. Abbahu said in the name of R. Johanan. in the name of R. Jannai, in the name of Rabbi
(and some trace it to13 R. Joshua b. Korha): Whence [is it proved] that a husband does not receive [as heir] the prospective [estate of his wife]14 as [he does] that which was [already] in [her] possession? It is said, And Segub begat Jair, who had three and twenty cities in the land of Gilead;15 whence could Jair possess [cities] which did not belong to Segub?16 But this teaches that Segub took a wife and she died in the lifetime of those whose heiress she would have been;17 and when these died, Jair inherited her [estate].18 Furthermore it is said, And Eleazar the son of Aaron died; and they buried him etc.19 Whence could Phinehas possess [a hill] which did not belong to Eleazar?20 But this teaches that Eleazar took a wife, who died in the life-time of those whose heiress she would have been,21 and when these died, Phinehas inherited her [estate].22 [For] what [purpose is ]'furthermore it is said' [required]?23 - In case it be said that it was Jair who took a wife who died,24 and that he inherited from her, it is, therefore, expressly stated, and Eleazar the son of Aaron died.19 And in case it he said that it may have fallen to him25 as a field devoted.26 Scripture states, his son20 [which implies that] the inheritance was due to him27 but his son inherited it.28
AND THE SONS OF A SISTER. A Tanna taught:29 The sons of a sister30 but not the daughters of a sister.
(1) Ibid. 9.
(2) V. p. 446, n. 10.
(3) Ibid. 7.
(4) Lit., 'all the world': the Tannaim in the two Baraithoth quoted.
(5) A mnemonic sign seems to have been omitted here from the text, the word Siman, 'sign', only remaining (v. Emden's note a.l.).
(6) איש may he rendered 'husband' as well as man'.
(7) Ibid. 7 and 9.
(8) The same expression, 'shall cleave', is used of a husband elsewhere, and shall cleave unto his wife (Gen. II, 24).
(9) V. note 8.
(10) Heb. ידבקו מטות (Num. XXXVI. 9), while in v. 7. these words are separated. The members of the tribe are united through their fathers, hence the verse mist be speaking of fathers, i.e., husbands.
(11) Ibid. 9.
(12) Hence, Num. XXXVI, 9, must have reference to the case where the husband is heir.
(13) Lit., 'and they arrived in it (so far as to quote it) in the name of'.
(14) An estate, e.g.. bequeathed by her father whom she predeceased. Had her father died first, she would have inherited from him, and her husband would have inherited from her.
(15) I Chron. II, 22.
(16) Cf. p. 463, n. 11.
(17) Lit., 'those who cause her to inherit'.
(18) Which she would have inherited had she been alive. This proves that prospective estates are not inherited by the husband but by the son.
(19) Josh. XXIV, 33.
(20) v. p. 463. n. 11.
(21) V. supra n. 3.
(22) V. supra n. 4.
(23) Why is not the evidence from Segub and fair sufficient?
(24) V. supra 112a.
(26) V. p. 465. n. 4.
(27) To Eleazar; his wife had survived the relative from whom the hill was inherited.
(28) Because Eleazar's wife pre-deceased the relative to whom the hill belonged. This proves that a prospective estate is not inherited by the husband, but by the son.
(29) Infra 115a.
(30) Inherit from the brother of their mother.
Talmud - Mas. Baba Bathra 113b
. [In respect] to what Law?1 - R. Shesheth said: In respect of precedence,2 [as] R. Samuel b. R. Isaac recited before R. Huna: [Since it is said], and he shall possess it,3 the inheritance [mentioned] second4 is to be compared to the one [mentioned] first5 ; as [in the case of] the inheritance [mentioned] first, a son takes precedence over a daughter so, [in the case of] inheritance [mentioned] second,6 a son takes precedence over a daughter.7
Rabbah b. Hanina recited [a Baraitha] before R. Nahman:8 [Since it is written], Then it shall be, in the day that he causeth his sons to inherit,9 an inheritance10 may be divided11 in the daytime but not at night.
Abaye said unto him: 'If that is the case,12 would children be heirs only to him who died in the daytime, but not to him who died at night?13 [You mean], perhaps, [the administration of] the law[s] of inheritance;14 as it was taught: [With the Biblical announcement] And it shall be unto the children of Israel a statute of judgment,15 the whole section16 has been proclaimed to be [of a] judicial [character].17 And [this, in fact is] in accordance with Rab Judah who said: Three [persons] who came to visit18 a sick man may, if they wish, [either] write down [his instructions. with reference to the disposal of his estate19 or], if they prefer it, give judgment.20 Two [persons] may write down [the testator's instructions] but may not give judgment.21 And R. Hisda commented: This applies only22 to daytime;
(1) Surely daughters inherit from their mother where there are no sons; and since their mother is heiress to her brothers (where there are no living brothers), they also, who are her heiresses, should, in such a case, be entitled to the inheritance of their uncles!
(2) Lit., 'to precede'. i.e., where there are brothers and sisters, the former are to be the heirs of their uncles, not the latter.
(3) Num. XXVII, 11. אותה referring to 'inheritance' mentioned in verse 8.
(4) I.e., the second or any of those following in order of succession.
(5) The inheritance from a father.
(6) Or any of the cases of inheritance mentioned.
(7) The order of precedence is consequently as follows: Son, daughter, brother, sister, brother's son, brother's daughter. If, however, one brother of the deceased has a son and another brother has a daughter, the nephew and niece inherit equally the respective shares of their fathers, the brothers of the deceased.
(8) V Sanh. 34b.
(9) Deut. XXI, 16.
(10) Lit.. 'inheritances
(11) Lit., 'thou causest to fall'.
(12) Lit., 'but from now', Abaye assumed Rabbah to interpret the Baraitha in the sense that a distribution of shares of an inheritance takes place only when death occurred in the daytime.
(13) Surely, this is impossible.
(14) That lawsuits relating to matters of inheritance must be dealt with by the court in the daytime only; as is the case with other civil lawsuits. Cf. Jer. XXI, 12, Execute justice in the morning.
(15) Num. XXVII, 11.
(16) Num. XXVII, 1-11 dealing with the laws of inheritance.
(17) And not of a private nature which is the concern of individuals, judicial proceedings, therefore, with respect to an inheritance must conform to the procedure relating to other civil law cases.
(18) I.e., they did not come at the express bidding of the testator to act as witnesses. for in that case they would become unqualified to act as judges (Rashb.); p. 470 n. 4.
(19) And thus act as his witnesses.
(20) Lit., 'execute judgment'. A quorum of three is the minimum required for a laycourt of law. By forming themselves into a court, they legally confirm the instructions of the testator, and by issuing their verdict prevent the heirs from any further litigation.
(21) Two, being less than the quorum required for the constitution of a court of law, can only act as witnesses.
(22) Lit., 'they have not taught but'.
Talmud - Mas. Baba Bathra 114a
at night, however, even three [persons] may [only] write down [instructions] but are not [permitted] to constitute themselves into a court.1 What is the reason? Because they have become witnesses,2 and a witness may not act as a judge'.3 - He said unto him: 'Yes, I indeed mean the same'.4
It was stated: [With regard to symbolical] acquisition,5 how long6 may one withdraw?7 - Rabbah said: So long as the session8 is in progress. R. Joseph said: So long [only] as they are dealing with that subject.
R. Joseph said: Logical reasoning supports my view. For Rab Judah said:9 Three [persons] who came to visit a sick man may, if they wish, [either] write down [his instructions with reference to the disposal of his estate, or], if they prefer it, give judgment.10 Now, if it is assumed11 [that the testator may withdraw] during the whole time the session is in progress, [how can they give judgment?12 Surely it may he apprehended that he might withdraw!13 - R. Ashi said: Discussing this tradition in the presence of R. Kahana, [I argued:] Is this14 right, then, according to R. Joseph? Surely [according to his view also], it may be apprehended that he15 might withdraw!16 But what have you to say [in reply]?17 That they18 would he passing
(1) Even on the following day.
(2) At night, when listening to the testator's instructions, they were unqualified to act as judges and have thus inevitably become witnesses. cf. 469, n. 14.
(3) Thus it has been proved that matters of inheritance, like other civil law cases, require a law court of three and may be heard in the day-time only.
(4) Lit., 'I say so also'.
(5) Symbolical acquisition is one of the forms of binding a party or parties to an agreement or an arrangement it is effected by handing over a scarf or some similar object is the person whose word thus becomes legally confirmed. V. Halifin, v. glos. s. v.
(6) Lit., 'until when'.
(7) And cancel or change the agreement.
(8) Of the court that dealt with the matter.
(9) Supra 113b.
(10) V. p. 469, n. 16 supra.
(11) Lit., 'if it enters your mind'.
(12) Which has the power to make the testator's instructions legally and irrevocably binding at once.
(13) Before the session was over, the testator might change his mind, and thus annul all the work of the court.
(14) The statement of Rab Judah which R. Joseph quoted in support of his view.
(15) The testator.
(16) While the court was still dealing with the matter.
(17) According to R. Joseph.
(18) The members of the court.
Talmud - Mas. Baba Bathra 114b
from one subject to another!1 Here also2 [it may he replied that they] stand up3 and then sit down again.4
The law is in accordance with [the view] of R. Joseph in the case of Field,5 Subject6 and Half.7
A WOMAN [TRANSMITS HER ESTATE TO] HER SONS etc. For what [purpose is] this [statement] also required? Surely it has been taught [already] in an earlier clause [that] A MAN [INHERITS FROM] HIS MOTHER AND [FROM] HIS WIFE!8 - It teaches us9 this: That [the transmission of the estate of] a woman [to] her son is [to be] in the same manner as [the transmission of the estate] of a woman [to] her husband. As [in the case of the transmission of the estate of a] wife [to] her husband, the husband is not heir to his wife in the grave,10 so [in the case of the transmission of the estate of] a woman [to] her son, the son in the grave does not inherit from his mother to transmit [the inheritance] to [his] brothers on his father's side.11
R. Johanan said in the name of R. Judah son of R. Simeon: [It is] the word of the Torah [that] a father is heir to his son and [that] a woman is heir to her son, for it is said, tribes,12 [which implies that] the tribe of the mother is compared to the tribe of the father; as [in the case of] the father's tribe a father is heir to his son, so [in the case of] the mother's tribe, a woman is heir to her son.
(1) And thus prevent the testator from withdrawing his instructions, and thus nullifying their work.
(2) In adopting the view of Rabbah.
(3) After receiving instructions from the testator, thus breaking up the session, before proceeding to give judgment.
(4) To issue the verdict. The testator is thus prevented from withdrawing, since the session which had dealt with his case has terminated.
(5) When one of the heirs has a field adjoining the field that is to be divided (cf. supra 12b).
(6) 'So long as they are dealing with the same subject' (the case under discussion).
(7) The case where a testator expressed the wish that his estate be divided between his wife and his son. The widow, according to R. Joseph, is entitled to half the estate (cf. infra 143a).
(8) Since the earlier clause enunciated the laws that a son inherits from, and does not transmit to his mother, and that a husband also inherits from, and does not transmit to his wife, what need is there for the clause stating that 'a woman transmits her estate to her son and to her husband, but does not inherit from them', which, though in different words, is a mere repetition of the laws in the earlier clause?
(9) By the addition of the superfluous clause.
(10) A wife in the grave does not inherit from her father (whom she predeceased), to transmit the inheritance to her husband. Cf. supra 113a, 'a husband does not receive as heir the prospective estate of his wife as he does that which was already in her possession.
(11) Brothers born not from the same mother, but from the same father only. As to the 'mother's brothers' in the same clause, this is repeated incidentally to the preceding two.
(12) Num. XXXVI, 9. Cf. ibid 8.
Talmud - Mas. Baba Bathra 115a
R. Johanan pointed out to R. Judah son of R. Simeon [the following objection: Have we not learnt]. A WOMAN [TRANSMITS HER ESTATE TO] HER SONS AND [TO] HER HUSBAND [BUT DOES NOT INHERIT FROM THEM]; AND MOTHER'S BROTHERS TRANSMIT [THEIR ESTATES TO THEIR NEPHEWS] BUT DO NOT INHERIT [FROM] THEM?1 - He replied to him: As to our Mishnah, I do not know who is its author!2 But why did he not say3 to him [that] it4 [may represent the views of] R. Zechariah b. Hakkazzab who does not expound, tribes?5 - Our Mishnah cannot be upheld as [representing the views of] R. Zechariah h. Hakkazzab, for it teaches, AND SISTERS'6 SONS. And a Tanna taught7 [that this implies] sisters'6 sons [only], but not sisters'6 daughters; and the question was asked,8 'In respect to what law?' And R. Shesheth answered, 'In respect of precedence'.9 Now, if it were assumed that our Mishnah was [a representation of the views of] R. Zechariah b. Hakkazzab. [it could rightly have been objected]: Surely, he said, 'Both a son and a daughter [have] equal [rights] in [the inheritance of] a mother's estate'!10
[As to] the Tanna of our [Mishnah], how are his views to be reconciled?11 If he expounds, tribes, a woman also should he heir to her son;12 if he does not, whence does he [deduce the law] that a son takes precedence over a daughter in [inheriting] his mother's property?13 - He does, in fact,14 expound, tribes,15 but here,16 [the case] is different, for Scripture says, And every daughter, that possesseth an inheritance17 [from which it is to he inferred that] she may inherit from,18 but not transmit19 to [her mother].20
MISHNAH. THE ORDER OF SUCCESSION21 IS AS FOLLOWS: IF A MAN DIE, AND HAVE NO SON, THEN YE SHALL CAUSE HIS INHERITANCE TO PASS UNTO HIS DAUGHTER.22 A SON TAKES PRECEDENCE OVER A DAUGHTER. ALL LINEAL DESCENDANTS23 OF A SON24 TAKE PRECEDENCE OVER A DAUGHTER.25 A DAUGHTER TAKES PRECEDENCE OVER THE BROTHERS.26 LINEAL DESCENDANTS27 OF A DAUGHTER [ALSO] TAKE PRECEDENCE OVER THE BROTHERS. BROTHERS TAKE PRECEDENCE OVER THE BROTHERS OF THE FATHER.25 LINEAL DESCENDANTS28 OF BROTHERS [ALSO] TAKE PRECEDENCE OVER THE BROTHERS OF THE FATHER.27 THIS IS THE GENERAL RULE: THE LINEAL DESCENDANTS OF ANY ONE WITH A PRIORITY TO SUCCESSION29 TAKE PRECEDENCE. A FATHER TAKES PRECEDENCE OVER ALL HIS DESCENDANTS.30
GEMARA. Our Rabbis taught: [It is written,] son,31 [from which] one only learns that32 a son [has a prior claim to heirship]; whence [may it he deduced that] a son of the son, or a daughter33 of the son, or a son of the daughter of the son [has the same rights]? - It is expressly stated, En lo34 [which is taken to imply], 'hold an enquiry35 concerning him'.36 [It is written] daughter,37 [from which] one only learns that32 a daughter [is next in succession to a son]; whence [may it he deduced that] a daughter of the daughter. and the son of a daughter and a daughter of the son of the daughter [have also the same rights]? - It is expressly stated, En lo34 [which is taken to imply], 'hold an enquiry35 concerning him'36
(1) Which clearly shows that a woman cannot be heir to her son.
(2) It is unreliable.
(3) Lit., 'and let him say'.
(4) Our Mishnah,
(5) Supra 111a.
(6) Some read, 'a sister's'.
(7) Supra 113a.
(8) Supra 113b.
(9) If there are nephews and nieces, the former, not the latter, are the heirs of their uncles.
(10) Since the children of a sister become heirs to their uncles, through their mother's right of inheritance, nephews and nieces (i.e., the sons and daughters of the uncles' sister) should have equal rights in their uncles' estates just as they have them in the case of their mother's estate. Our Mishnah which gives nephews precedence over nieces cannot, therefore, represent the views of R. Zechariah.
(11) Lit., 'from whatever (be) your opinion'. i.e., whatever view be adopted there is a difficulty.
(12) As has been deduced from tribes, supra 114b, end.
(13) This law also has been deduced, (supra 111a, end), from the expression tribes,
(14) Lit., 'always'.
(15) Hence his view that a son takes precedence (V. n. 3, supra).
(16) The proposed deduction from the expression, tribes, that a mother is heir to her son,
(17) Num. XXXVI, 8, and this verse deals with a daughter who is heir to her mother, as explained, supra 111a.
(18) יורשת yoresheth, is the expression used in the Biblical verse.
(19) מורשת Moresheth,
(20) And as a daughter does not transmit her estate to her mother, so also a son; hence the law in our Mishnah that a mother is not heir to her son.
(21) Lit., 'inheritances'.
(22) Num. XXVII, 8.
(23) Lit., 'those who came out of his loins'.
(24) His sons, grandsons, or any male descendants of these, no matter how many generations removed from the deceased.
(25) Of the deceased.
(26) (V. previous note) and also over his father,
(27) Lit., 'those who came out of her loins'.
(28) Cf. previous note and n. 13.
(29) If he predeceased them.
(30) I.e., the brothers and sisters of his deceased son, and their descendants. He has, however, no claim at all if his deceased son is survived by his own sons or daughters or any of their lineal descendants.
(31) Num. XXVII. 8.
(32) Lit., 'I only have'.
(33) Where there is no son, a son of the son, or a son of the daughter of the son,'
(34) Ibid. אין לו.
(35) Ayayn examine', 'search', 'investigate'. 'Aleph (א) and 'Ayin (ע) are interchangeable.
(36) The deceased; i.e., inquire whether he has been survived by descendants or any descendants of his descendants who might claim to succeed to his estate.
Talmud - Mas. Baba Bathra 115b
. In what manner [is] this [enquiry carried out]? - [In a manner that] the estate may ultimately find its way1 to Reuben.2 Let him say. 'to Jacob'!3 - Abaye replied: We have it by tradition that no tribe would become extinct.
R. Huna said in the name of Rab: Anyone, even a prince in Israel, who says that a daughter is to inherit with the daughter of the son, must not he obeyed; for such [a ruling] is only the practice of the Sadducees. As it was taught: On the twenty-fourth of Tebeth we returned to our [own] law;4 for the Sadducees having maintained [that] a daughter inherited with the daughter of the son, R. Johanan h. Zakkai joined issue with them. He said to them: 'Fools, whence do you derive this?' And there was no one who could reply a word, except one old man who prated at him and said: 'If the daughter of his son, who succeeds5 [to an inheritance] by virtue of his son's right, is heir to him, how much more so his daughter who derives her right from himself!' He6 read for him this verse, These are the sons of Seir the Horite, the inhabitants of the land: Lotan and Shobal and Zibeon and Anah,7 and [lower down] it is written, And these are the children of Zibeon: Aiah and Anah!8 - [But this] teaches that Zibeon had intercourse with his mother and begat Anah.9 Is it not possible that there were two [called] Anah? - Rabbah said: I would say something which King Shapur10 [could] not have said; - and who is he? - Samuel; others say [that it was] R. Papa [who] said: I would say something which King Shapur [could] not have said - and who is he? - Raba;11 'Scripture says: This is Anah, [implying]: The same Anah that was [mentioned] before' - He said unto him: O, master, do you dismiss me with such [a feeble reply]?12 - He said to him: Fool,
(1) Lit., 'goes on groping'.
(2) The first ancestor of the tribe. As inquiries have to be made for descendants so, if no surviving descendants can be traced, similar inquiries have to be instituted for paternal ancestors and their rightful heirs. If, for example, the deceased has neither issue, nor a surviving father, brother, nephew (brother's son), niece, sister, nephew (sister's son); and none of the descendants of these is alive. And if inquiry has also established that there exists no surviving father's father, nor father's brother, father's nephew (father's brother's son), father's sister, nor nephew (father's sister's son), further inquiries must be carried on in descending order. Once it has been definitely established that none of the line survives, enquiries are instituted in an ascending order, on the paternal side, and are carried on from father (including their heirs, as in the case of the descending line), until the first ancestor of the tribe is reached. There is no need to go any higher since if any single member of the tribe survived his relationship to the deceased could be established.
(3) Why only as far as Reuben?
(4) The Sadducees recognised that the Rabbis were right, and the latter, therefore, were again to administer the law in accordance with their views.
(5) Lit., 'comes'.
(6) R. Johanan.
(7) Gen. XXXVI, 20.
(8) Ibid. v. 24. How could Anah be a son and a brother to Zibeon?
(9) Anah was consequently his son and, being a son of his mother, also his brother. Anah, though a grandchild of Seir, is described as of the inhabitants of the land (Gen. XXXVI, 20) which proves that grandchildren have the same right of inheritance as children.
(10) Shapur I, a king of Persia, was known for his friendship with Samuel, and the title was sometimes used as a surname of the latter. Raba also was sometimes so surnamed on account of his friendship with Shapur II.
(11) [So Ms. M.; cur. edd., Rabbah!]
(12) My point is that a son'S daughter has no more rights than a daughter, and you bring an instance from the law of a son's son which the Sadducees do not dispute.
Talmud - Mas. Baba Bathra 116a
shall not our perfect Torah be as [convincing] as your idle talk!1 [Your deduction is fallacious for] the reason2 why a son's daughter [has a right of inheritance is] because her claim is valid where there are brothers,3 but can the same he said of the [deceased's] daughter whose right [of inheritance] is impaired where there are brothers?4 Thus they were defeated. And that day was declared a festive day.5
And they said: 'They that are escaped must be as an inheritance for Benjamin2 , that a tribe be not blotted out from Israel',6 R. Isaac of the school of R. Ammi said: [This] teaches that a stipulation was made concerning the tribe of Benjamin that a son's daughter is not to be heir [together] with [his] brothers.7 R. Johanan said in the name of R. Simeon b. Yohai: The Holy One, blessed be He, is filled with anger against any one who does not leave a son to he his heir. [For] here it is written, And you shall cause his inheritance to pass,8 and there it is written, That day is a day of wrath.9
Such as have no changes, and fear not God;10 R. Johanan and R. Joshua b. Levi [are in dispute as to the exposition of this text]. One says: Whosoever does not leave behind a son.11 And the other says: Whosoever does not leave a disciple.11 It may he proved [that it was] R. Johanan who said 'a disciple'; for R. Johanan said:12 This is the bone of my tenth son.13 Thus it is proved that it was R. Johanan who said 'a disciple'. But since R. Johanan said, 'a disciple', R. Joshua b. Levi [must have] said 'a son'! [Is it not a fact,] however, that R. Joshua b. Levi did not go to a house of mourning unless it was the house of him who died without leaving any sons, for it is written, But weep sore for him that goeth away,14 and Rab Judah said in the name of Rab [that this means], 'he who goes [from the world] without [leaving] male children'?15 - But [it must be] R. Joshua b. Levi who said, 'a disciple'. Since, however, it is R. Joshua b. Levi who said 'a disciple', R. Johanan must have said, 'a son', a contradiction [then arises again16 between one statement] of R. Johanan and another statement of his?17 - There is no contradiction; one [statement] is his own;18 the other, his teacher's.
(Mnemonic19 Hadad, Poverty, Sage.)
R. Phinehas b. Hama gave the following exposition: With reference to the Scriptural text, And when Hadad heard in Egypt that David slept with his fathers, and that Joab the captain of the host was dead,20 why was [the expression of] 'sleeping' used in the case of David, and [that of] 'death' in the case of Joab? 'Sleeping' was used in the case of David because he left a son; 'Death' was used in the case of Joab because he left no son. Did not Joab leave a son? Surely, it is written, Of the sons of Joab, Obadiah the son of Jehiel!21 - But, [this is the reply,] with David who left a son like himself [the expression of] 'sleeping' was used; with Joab who did not leave a son like himself, 'death' was used.
R. Phinehas b. Hama gave the following exposition: Poverty in one's home is worse than fifty plagues, for it is said, Have Pity upon me, have pity upon me, O ye my friends; for the hand22 of God hath touched me,23 and his friends answered him, Take heed, regard not inquiry; for this hast thou chosen rather than poverty.24
R. Phinehas h. Hama gave the following exposition: Whosoever has a sick person in his house should go to a Sage25 who will invoke [heavenly] mercy for him; as it is said: The wrath of a king26 is as messengers of death,' but a wise man will pacify it.27
THIS IS THE GENERAL RULE: THE LINEAL DESCENDANTS OF ANY ONE WITH A PRIORITY TO SUCCESSION TAKE PRECEDENCE. A FATHER TAKES PRECEDENCE OVER ALL HIS DESCENDANTS. Rami b. Hama inquired: [With regard to the claims of] a father of the father28 and a brother of the father,28 as, for example, [the claims of] Abraham and Ishmael upon the possessions of Esau29 , who takes precedence? - Raba said: Come and hear: A FATHER TAKES PRECEDENCE OVER ALL HIS DESCENDANTS.30 And Rami b. Hama?31 -
(1) It was not intended, nor is there any need to dismiss you with what you call 'a feeble reply'. The purpose of the argument was that Anah was not the name of a male but that of a female (cf. Gen, XXXVI, 14), who was a daughter of Zibeon and a grand-daughter of Seir (cf. ibid, vv. 24 and 20). Since she was reckoned among the inhabitants of the land, i,e., one of those who inherited from Seir, sons' daughters must, consequently, have equal rights of succession in the estate of their grandfather. with his sons. Hence, 'your deduction is fallacious for the reason etc' (v. Tosaf. s.v. מלצד and Bah's glosses).
(2) Though the law is not Specifically enunciated in the Torah it may be inferred by logical deduction,
(3) Of her father.
(4) As she is not entitled to the inheritance where her brothers are alive, so she is not entitled to it when a brother is survived by a daughter.
(5) [In Megillath Ta'anith the date assigned for the celebration of this event is 24th Ab. For a full discussion of this discrepancy. v. Zeitlin, S., JQR 1919, 278ff. The attitude of the Sadducees in this controversy was prompted according to Geiger, אוצר נחמד III, I ff by their anxiety to defend against the attacks of the Pharisees the validity of Herodian succession to the Hashmonean throne through Mariamne, the daughter of Alexander and granddaughter of Hyrcanus; v. HUCA VII-VIII. 278ff.]
(6) Judges XXI, 17.
(7) In the estate of their father; but the surviving brothers are to inherit all the estate, including the share of their dead brother, though he is survived by a daughter. This provision had to be made at a time when only six hundred men of the tribe of Benjamin survived (Judges XX. 47) all of whom had married wives from other tribes (Ibid. vv. 14, 23). The entire possessions of the tribe having been divided and distributed between six hundred men only, the share of each individual was considerable, being a six hundredth part of all the property of the tribe. Should any daughter have inherited such a share, and then have married a member of another tribe, a large portion of the lands of the tribe would have passed over to those of another tribe. Hence the provision that a son's daughter is to have no share in the inheritance. The law enjoining a daughter to marry within the tribe of her father is held to have been only a temporary measure and not binding upon subsequent generations; v. infra 120a.
(8) Num. XXVII, 8, והעברתם we-ha'abartem.
(9) Zeph. I, 15. עברה 'ebrah. The root of this word, עבר is identical with that of והעברתם
(10) Ps. LV, 20.
(11) Changes, חליפות is rendered 'a son (or a pupil) who takes his father's (or teacher's) place'.
(12) Ber, 5b.
(13) He carried with him a 'bone', which commentators understand to be a tooth, of his tenth dead son when going to comfort those who mourned the loss of a child. Now, if R. Johanan were of the opinion that Ps. LV, 20, has reference to a son, he would not have carried about that which stigmatised him as one who is not God-fearing.
(14) Jer. XXII, 10.
(15) If, then, R. Joshua said that such a person was not God-fearing, would he have gone to visit his house of mourning?
(16) V. n. 6.
(17) Lit., 'on that of R. Johanan'.
(18) His own opinion is in agreement with that of R. Joshua b. Levi.
(19) The mnemonic is an aid to the recollection of the three sayings of R. phinehas b. Hama that follow.
(20) I Kings XI, 21.
(21) Ezra VIII, 9.
(22) This implies fifty plagues Ten plagues were inflicted on the Egyptians with one finger (V., Ex. VIII, 15). Job who was touched with five fingers (hand) must have been inflicted with fifty plagues
(23) Job XIX, 21.
(24) Ibid. XXXVI, 21. This, in the text, is taken to refer to Job's infliction, implying that poverty is even worse than all his fifty plagues.
(25) Lit., 'wise (man),' a scholar and saint.
(26) God's visitation.
(27) Prov. XVI, 14.
(28) Of the deceased.
(29) Abraham was the father, and Ishmael the brother of Isaac the father of Esau.
(30) He takes, therefore, precedence over a brother of the father of the deceased who is his descendant.
(31) Did he not know the law of our Mishnah?
Talmud - Mas. Baba Bathra 116b
In1 his ingenuity he did not consider it2 carefully.3
Rami b. Hama inquired: [Regarding the claims of] the father of his4 father and his4 brother as, for example. [the claims of] Abraham and Jacob upon the possessions of Esau, who takes precedence? - Raba said: Come and hear! A FATHER TAKES PRECEDENCE OVER ALL HIS DESCENDANTS.5 And Rami h. Hama?6 - [A father might take precedence over] HIS DESCENDANTS but not [necessarily over] the descendants of his son.7 Logical reasoning [leads to] the same [conclusion]; for it is stated, THIS IS THE GENERAL RULE: THE LINEAL DESCENDANTS OF ANY ONE WITH A PRIORITY TO SUCCESSION TAKE PRECEDENCE. If, [then,] Isaac8 had been [alive], Isaac would have taken precedence.9 now, also, that Isaac [himself] is not [alive], Jacob10 [should] take precedence.
MISHNAH. THE DAUGHTERS OF ZELOPHEHAD11 TOOK THREE SHARES IN THE INHERITANCE [OF CANAAN]:12 THE SHARE OF THEIR FATHER WHO WAS OF THOSE WHO CAME OUT OF EGYPT,13 AND HIS SHARE AMONG HIS BROTHERS IN THE POSSESSIONS OF HEPHER,14 [WHICH CONSISTED OF TWO], SINCE HE15 WAS A Flrstborn SON [WHO] TAKES TWO SHARES.16 [
(1) Lit., 'on account of', 'by way of'.
(2) His enquiry.
(3) He was thinking at the time of the next question.
(4) Of the deceased.
(5) Hence the deceased father's father takes precedence over the deceased brother who is also a descendant of his.
(6) V. supra n. 3.
(7) Hence Rami's inquiry.
(8) The father of the deceased.
(9) Being the nearest heir.
(10) The brother of the departed, being a lineal descendant of Isaac.
(11) V. Num. XXVII, 1\7.
(12) After Joshua's conquest.
(13) Canaan having been divided according to the number of those who came out of Egypt. V. infra.
(14) Zelophehad's father who also was among those who came out of Egypt.
(16) Cf. Deut. XXI, 17.
Talmud - Mas. Baba Bathra 117a
GEMARA. Our Mishnah thus agrees1 with [the opinion of] him who said [that] the land [of Canaan] was divided according 'to those who came out of Egypt.2 For it was taught: R. Josiah said: The land [of Canaan] was divided according to those who came out' of Egypt,2 for it is said, according to the names of the tribes of their fathers3 they shall inherit.4 To what, however, may [the verse], Unto these5 the land shall be divided for an inheritance,6 he applied? - Unto these, [means] 'like these',7 excluding the minors.8 R. Jonathan said: The land was divided according to those who entered the land,9 for it is said. Unto these5 the land shall be divided for an inheritance.6 To what, however, may, according to the tales of the tribes of their fathers3 they shall inherit, he applied? - [To the following:] This [manner of] inheritance is different from all [other modes of] inheritance10 in the world; for, in [the case of] all [other] successions in the world, the living are heirs to the dead but, in this case, the dead were heirs to the living.11 Rabbi said: I will give you an example to which this thing may be compared. To two brothers, priests, who were in one town. One had one son and the other had two sons, and these went to the threshing-floor.12 He who has one son receives one portion, and the one who has two sons receives two portions. They13 [then] return [with the three portions] to their father,14 and re-divide [the total] in equal shares. R. Simeon b. Eleazar said:
(1) Lit., 'we learnt (in our Mishnah)'.
(2) According to the number of men that left Egypt and not according to the number that entered Canaan. If. e . g . . one of those who came out of Egypt had five sons, while another had only one son, and these six sons entered Canaan, each of the five received only a fifth of his father's share while the one received his father's full share.
(3) Those who came out of Egypt.
(4) Num, XXVI. 55.
(5) Implying, those who entered the land.
(6) Ibid. 53.
(7) Referring to those that were numbered (ibid. 51), who were twenty years of age and upward.
(8) Under twenty. Only those who were at least twenty years of age at the Exodus were included in the number of those to whom the land was divided. Any one under twenty, when leaving Egypt, could only take the share of his father in part or in full according to whether he had brothers or not.
(9) Not according to the number of those who came out of Egypt. If, e . g . . two men came out of Egypt, and five sons of the one and one son of the other entered Canaan, the former received five shares the latter only one.
(10) Lit 'inheritances'.
(11) Those who entered Canaan received shares according to their number, but the total of the shares was again divided in accordance with the number of their fathers who came out of Egypt. If two brothers, for example. came out of Egypt and died, and five sons of the one, and one son of the other entered Canaan, every son received a share, Six shares being allotted to the six sons. All these shares were then transferred to their fathers whose number was two (the dead being heirs to the living), and divided into two shares, each, of course, representing three of the original shares. The five sons thus received between them three of the original shares only, while the one son received for himself alone also three such shares.
(12) To collect their priestly dues.
(13) The two brothers.
(14) Whose estate has not yet been divided between them, in which case all acquisitions are pooled in the estate (cf. infra 137b). And since the three shares thus revert to their father, they inherit from him in equal shares.
Talmud - Mas. Baba Bathra 117b
The land was divided according to these1 and according to those,2 in order to carry out [the injunctions in] those two verses.3 How [was] this effected? - He [who] was of those who came out of Egypt4 received his share among those who came out of Egypt.4 He [who] was of those who entered the land,5 received his share among those who entered the land.2 He who belonged to both categories,6 received his share among both categories.6
The share of the spies7 was taken by Joshua and Caleb. The murmurers8 and the company of Korah9 had no share in the land. Their sons,10 [however.] received [shares] by virtue of the rights of the fathers of their fathers and the rights of the fathers11 of their mothers.12
What proof is there that, according to the names of the tribes of their fathers13 was written with [reference to] those who came out of Egypt. perhaps it14 was said [with reference] to the tribes?15 - Because it is written, And I will give it you for a heritage; I am the Lord,16 [which means]: 'It is your inheritance from your fathers'; and this was addressed to those who [subsequently] came out of Egypt.
(Mnemonic:17 To the more, Zelophehad, and Joseph, multiplied, Manasseh, shall be enumerated.)
R. Papa said to Abaye: According to him who said that the land was divided in accordance with [the number of] those who came Out of Egypt, it is correct for Scripture to say, To the more thou shalt give the more inheritance, and to the fewer thou shalt give the less inheritance,18
(1) Those who came out of Egypt.
(2) Who entered Canaan.
(3) Num. XXVI, 53 and 55.
(4) But not among those who entered Canaan. If, e.g., he was twenty years of age when the Exodus took place, and he died before Canaan was reached, while his sons born on the way, in the wilderness, were still minors when Canaan was entered. In such a case the sons, as his heirs, divide between themselves the share to which he is entitled as one of those who were of age when the departure from Egypt took place.
(5) And not of those who came out of Egypt. In the case, e.g., when a father died in Egypt, and his sons, who were minors at the Exodus, were (twenty years) of age when Canaan was entered; or in the case when one left Egypt as a minor and died on the way, while his sons who were born in the wilderness were of age when Canaan was entered; in either of these cases every one of the sons, since he entered Canaan when of age, received a share in the inheritance of the land among all the others who received their shares by virtue of their entry into the promised land.
(6) Lit., 'from here and from here'. A case belonging to those who came out of Egypt as well as to those who entered Canaan. The case, e.g., of a father who was of age when the Exodus took place, dying in the wilderness, and his sons, who were born in the wilderness, entering Canaan when of age. In such a case, the sons take portions in the land by virtue of their own rights. since they were among those who entered Canaan, and also the portion to which their father is entitled as one who was among those who came out of Egypt.
(7) V. Num. XIII.
(8) V. ibid. XIV.
(9) V. ibid. XVI.
(10) I.e., of the spies, the murmurers and the company of Korah,
(11) Who had no sons hut daughters.
(12) Provided the grandfathers were twenty at the Exodus.
(13) Ibid. XXVI, 55.
(14) The expression, tribes of their fathers.
(15) That the land was to he divided into twelve portions corresponding to the number of tribes,
(16) Ex. VI, 8.
(17) An aid to the recollection of the questions or inquiries of R. Papa that follow; in which each of these constitutes a key-word.
(18) Num. XXVI, 54. Since the land was not to be divided in accordance with the number of those that entered, it was necessary to state that the tribe that had a larger number at the Exodus was to receive a larger portion, though at the time of the division its numbers were reduced; and, similarly, in the case of a smaller tribe whose numbers had increased.
Talmud - Mas. Baba Bathra 118a
but according to him who said [that the division was made] in accordance with [the number of] those that entered the land, what [purpose does the instruction] 'To the more you shall give the more inheritance' [serve]?1 - This is a difficulty.
R. Papa further said to Abaye: According to him who said [that the land was divided] in accordance with [the number of] those who came out of Egypt, one can well understand why the daughters of Zelophehad' complained,2 but according to him who said [that the division was made] in accordance with [the number of] those that entered the land, why did they complain? Surely he was not there3 that he should [he entitled to] receive [a share]!4 - But [their complaint was with reference] to the reversion5 to, and [their right] of taking [a share] in the possessions of Hepher.6
According to him who said that [the land was divided] in accordance with [the number of] those that come out of Egypt, one can well understand why the sons of Joseph complained; as it is written, And the children of Joseph spoke;7 but according to him who said [that the division was made] in accordance with [the number of] those that entered the land, why did they complain? Surely all of them had received [their respective shares]! - [They complained] on account of the many minors8 they had [in their tribe].9
Abaye said: From this it is to be inferred [that there was not [even] one who did not receive [a share in the land]. For, should it enter your mind [to say that] there was one who did not receive [a share], would he not have complained?10 And if it be said that Scripture recorded [the case of him only] who complained and benefited, but did not record [the case of anyone] who complained and did not benefit, [it may be retorted]: The children of Joseph, surely, complained and did not benefit, and [yet] Scripture recorded their case. There,11 [it may be replied, Scripture desired] to impart to us good advice, [namely,] that a person should he on his guard against an evil eye. And this indeed is [the purpose] of what Joshua said unto them; as it is written, And Joshua said unto them: 'If thou be a great people, get thee up to the forest'.12 [It is this that] he said to them: 'Go and hide yourselves in the forests so that an evil eye may have no power over you'.
(1) If a share was to be given to each individual who entered the land, it clearly follows that the more the numbers the larger the inheritance of a tribe and vice versa!
(2) Zelophehad was among those who took part in the Exodus and they, therefore, claimed his share,
(3) Zelophehad was dead when Canaan was entered.
(4) Even if he had a son he would not necessarily have been entitled to his share as he might have been a minor at the time of the entry.
(5) Of the inheritance of Zelophehad's brothers to that of their father Hepher. (V. supra p. 480. n. II.)
(6) The inheritance having reverted to Hepher, all his sons, or (if dead) his grandsons would be entitled to have equal shares in it. If Zelophehad had a son he would have received an equal share with his father's brothers, plus the additional share of the firstborn. Since Zelophehad had no son, his daughters rightly claimed those shares.
(7) Josh. XVII, 14. They were at that time numerous and required large tracts of land, but what they actually received was too small for them, since it corresponded to the small number of their ancestors who lived at the time of the Exodus.
(8) Minors under twenty at the time of the entry into Canaan were not included in the number of those who received shares in the land.
(9) [Cf. Gen. XLIX, 22: Joseph is a fruitful vine (R. Gersh.)]
(10) And since Scripture does not record any such complaints, other than those of the daughters of Zelophehad and the children of Joseph, it must be concluded that, with these exceptions, all received their shares and had, therefore, no cause for complaint.
(11) The case of the children of Joseph.
(12) Josh.XVII, 15.
Talmud - Mas. Baba Bathra 118b
They said unto him, 'We are of the seed of Joseph over whom the evil eye has no power'. as it is written, Joseph is a fruitful vine, a fruitful vine by a fountain,1 and R. Abbahu said: Do not render,2 'by the fountain,'3 but 'those who transcend the eye'.3 R. Jose son of R. Hanina said, [this4 is inferred] from the following [verse]: And let them grow like fishes into a multitude in the midst of the earth.5 [This means that] as the fishes in the sea are covered by the waters and no eye has any power over them, so, in the case of the seed of Joseph. no [evil] eye has [any] power over them.
'The share of the spies was taken by Joshua and Caleb'.6 Whence is this7 [derived]? - 'Ulla replied: [From] the Scriptural verse which states, But Joshua the son of Nun and Caleb the son of Jephunneh remained alive of those men8 . What, [it may be asked, is meant by the expression.] 'remained alive'? If it means [that] they actually remained alive, surely another verse is already on record, [stating.] And there was not left a man of them, save Caleb the son of Jephunneh, and Joshua the son of Nun.9 What, then [is meant by] 'remained alive'? They10 lived11 on12 their13 portion.
'The murmurers and the company of Korah had no share in the land'.14 But has it not been taught [elsewhere]. 'Joshua and Caleb took the shares of the spies, of the murmurers and of the company of Korah'? - [This is] no difficulty: [one] Master compares the murmurers to the spies15 [while] the other] Master does not compare the murmurers to the spies. For it was taught: Our father died in the wilderness.16 refers to Zelophehad; and he was not among the company of them,16 refers to the company of the spies; that gathered themselves together against the Lord,16 refers to the murmurers; in the company of Korah,16 bears the obvious meaning. [Thus, one] Master compares the murmurers to the spies17 and [the other] Master does not.18
R. Papa further said to Abaye: But according to him who compares the murmurers to the spies, have Joshua and Caleb had [their shares] multiplied so [many times] that they inherited all the land of Israel?19 - He said to him: We mean the murmurers in the company of Korah.20
R. Papa further said to Abaye: According to him who said that the land was divided in accordance with [the number of] those who came out of Egypt, it is correct for Scripture to state, And there fell tell parts to Manasseh.21 [because] the six [parts] for [the] six houses of their fathers22 and the four [parts] of these23 are ten; but according to him who said that [the land was divided] in accordance with [the number of] those who entered the land. [the number of the Parts] would only have been eight. [since] six [parts] for the six fathers' houses and two24 [parts] of theirs are [only] eight! - And according to your reasoning were there [not] nine25 [parts only] even according to him who said [that the division was] in accordance with [the number of] those who came out of Egypt? All, however, you can say in reply26 is [that] they had [also a share of] one brother of [their] father, here27 [then] also, [it may be said that] they had [the shares of] two brothers of [their] father. For it was taught: Thou shalt surely give them a [possession of an inheritance],28 refers to29 the inheritance of their father; among their father's brethren,28 refers to29 the inheritance of their father's father; and thou shalt cause the inheritance of their father to pass unto them,28 refers to29 the portion of the birthright.30 R. Eliezer b. Jacob said: They also took the share of their father's brother.31 for it is said, Thou shalt surely give.32 But according to him who said [that] they had two father's brothers?33 - That34 is deduced from, a possession of an inheritance.35
R. Papa further said to Abaye: Whom36 does Scripture enumerate?37 If children are enumerated, there were [surely] more [than ten];38 if fathers' houses are enumerated. [these] were [only] six!39
(1) Gen.XLIX, 22.
(2) Lit., 'read'.
(3) עין signifies both 'eye' and 'fountain', and עלי עין may, therefore, be rendered, 'by the fountain' (as E.V.) or, 'above the eye'. independent, or Immune from the power of the evil eye.
(4) That the descendants of Joseph are not to fear the evil eye.
(5) Gen. XLVIII, 16.
(6) Supra 117b.
(7) Lit., 'these words'.
(8) Num. XIV, 38.
(9) lbid. XXVI, 25. Two verses should not be required for the recording of one and the same fact.
(10) Joshua and Caleb.
(11) חיו מן האנשים ההם may be rendered. 'remained alive of those men' as well as, 'lived from among these men'.
(12) Lit., 'with'.
(13) The spies'.
(14) Supra 117b.
(15) As the spies had a share in the land so had the murmurers.
(16) Num. XXVII, 3.
(17) Since they were both referred to in the same verse.
(18) Maintaining that the adjectival clause, that gathered themselves together against the Lord, qualifies the previous word and has no reference to the murmurers.
(19) The shares of the murmurers must have extended over all the land. Cf. Num. XIV, 2, And all the children of Israel murmured etc.
(20) Cf. Num. XVII, 6. By a comparison of assembled בהקהל, (ibid. v. 7) with assembled ויקהל in Num. XVI, 19, 'And Korah assembled'. [The murmurers are also taken to belong to the company of Korah apart from the two hundred and fifty princes of the assembly (v. Strashun, S. Glosses. a.l.).]
(21) Josh. XVII, 5.
(22) Mentioned earlier in the text; v. Jos. XVII. 2.
(23) The daughters of Zelophehad who received four shares: two shares in the lands of Hepher, because their father Zelophehad (Hepher's son) was his firstborn; another share on behalf of Zelophehad himself who was one of those who left Egypt, and consequently among those to whom a share was allotted; and a fourth share which is to be explained in the Gemara, infra.
(24) The two portions to which their father Zelophehad was entitled as the firstborn son of Hepher. Not being one of those who entered the land of Canaan he could not be entitled to a share in the land on his own account.
(25) V. p. 485. n. 14.
(26) Lit., 'what have you to say?'
(27) In the case of him who said that the division was in accordance with those who entered.'
(28) Num. XXVII, 7.
(29) Lit., 'this is'.
(30) Zelophehad having been a firstborn son. The expression, and thou shalt cause to pass, והעברת that occurs here is also used in Ex. XIII, 12, with reference to firstlings.
(31) Who died without issue.
(32) Ibid. נתן תתן lit., 'to give thou shalt give', implying the giving of two shares: Their father's and their father's brother's.
(33) Whence does he infer two brother's shares?
(34) That they received the shares of two father's brothers.
(35) Ibid. Scripture could have omitted a possession of, by writing only, Thou shalt surely give then an inheritance etc.
(36) Lit., 'what'.
(37) In stating that the tribe of Manasseh had ten parts.
(38) Not only had Zelophehad daughters but his brothers also must have had descendants.
(39) The daughters of Zelophehad should have been included in the father's house of Hepher as the sons or daughters of the brothers of Zelophehad were included in their fathers' houses.
Talmud - Mas. Baba Bathra 119a
Fathers' houses are, in fact, enumerated. but1 [Scripture] had taught us that the daughters of Zelophehad had [also] taken the portion of the birthright. Consequently,2 the land of Israel was [regarded even before the conquest, as if it had already been] in the possession of Israel.3
The Master stated: 'Their sons received [shares] by virtue of the rights of the fathers of their fathers and the rights of the fathers of their mothers'.4 Was it not taught [elsewhere], 'by virtue of their own rights'? - [This is] no difficulty. That5 is in agreement with him who said [that the division was] in accordance with [the number of] those who came out of Egypt; this6 is in agreement with him who said [that the division was] in accordance with [the number of] those who entered the land. If you like you may say: Both statements7 [are in agreement with the view that the division was] in accordance with [the number of] those who entered the land and [yet] there is no difficulty. The one6 [deals with the case of him] who was twenty years of age;8 the other,5 with the case of him who was not [yet] twenty years of age.
SINCE HE WAS A FIRSTBORN SON [WHO] TAKES TWO SHARES. But why?9 [Surely the estates of Hepher] were [only] prospective, and a firstborn son is not [entitled] to take [a double share] in the prospective [property of his father] as in that which is in [his father's] possession [at the time of death]! - Rab Judah said in the name of Samuel: [The double share was] in tent pins.10
Rabbah raised an objection: [It has been taught that] R. Judah said, 'the daughters of Zelophehad took four portions, for it is said, and there fell ten parts to Manasseh!'11 - But, said Rabbah, the land of Israel [was regarded even before the conquest as] in [actual] possession [of those who came out of Egypt].12
An objection was raised: R. Hidka said: 'Simeon of Shikmona was my companion among the disciples of R. Akiba. And thus did R. Simeon of Shikmona say: Moses our Master knew that the daughters of Zelophehad were to he heiresses, but he did not know whether or not they were to take the portion of the birthright - And it was fitting that the [Scriptural] section of the laws of succession should have been written through Moses, but the daughters of Zelophehad merited it. and it was written through them.13 Moses, furthermore, knew that the man who gathered sticks [on the Sabbath day]14 was to he put to death, for it is said, Everyone that profaneth it shall surely be put to death,15 but he did not know by which [kind of] death he was to die. And it was fitting that the section of the man who gathered sticks should have been written through Moses, only the gatherer had brought guilt upon himself and it was written through him. This teaches you
(1) By enumerating also the daughters of Zelophehad.
(2) Since they were given the double portion of the first-born.
(3) A firstborn son takes a double portion of that only which is in his father's actual possession at the time of his death, not from that to which he may become entitled after his death.
(4) Supra 117b.
(5) The Baraitha stating, 'by virtue of their grandparents'.
(6) The other Baraitha stating 'by virtue of their own rights.'
(7) Lit., 'this and that'.
(8) When Israel entered Canaan.
(9) Why should he he entitled to two shares? (12) When he died the estates were only due to become his, but could not pass into his possession before Canaan was actually entered.
(10) I.e., in their grandfather's movable property, which, like the tent pins, was in his possession before he entered Canaan and while still in the wilderness. Of his landed property, how-ever, the daughters of Zelophehad did not take a double share, Our Mishnah which mentions three shares refers to the landed as well as the movable property.
(11) Josh. XVII, 5. V. supra 118b. These portions, according to the Scriptural context, were not in movable, but in landed property! How, then, could it be said that the double share was in movables only?
(12) Hence the right of the firstborn to take a double share.
(13) I.e., at their instance,
(14) Num. XV, 32ff.
(15) Ex. XXXI, 14.
Talmud - Mas. Baba Bathra 119b
that merit1 is brought about by means of the meritorious1 and punishment for guilt2 by means of the guilty.2 Now, if it be assumed [that] the land of Israel was [regarded as being even before the conquest] in the possession [of those who came out of Egypt]. why was he3 in doubt?4 - He was in doubt on this very [question]:5 It is written, and I will give it you for a heritage,6 I am the Lord,7 [does this mean]. 'it is for you an inheritance from your fathers'8 or perhaps [it means] that they9 would transmit [it] but would not [themselves] he heirs?10 And it was made clear to him [that the text implies] both: 'It is an inheritance for you from your fathers; yet you would [only] transmit, and not [yourselves] inherit [it].' And this accounts for the Scriptural text, Thou bringest them in, and plantest them in the mountain of thine inheritance.11 It is not written, 'Thou bringest us in', but 'Thou bringest them in'; this teaches that they prophesied12 and knew not what they prophesied.
And they stood before Moses and before Eleazar the priest and before the princes and all the congregation.13 Is it possible that they stood before Moses etc. and they did not say anything to them [so that] they [had] to stand before the princes and all the congregation? But, the verse is to be turned about and expounded;14 Is these are the words of R. Josiah. Abba Hanan said in the name of R. Eliezer: They15 were sitting in the house of study and these came and stood before all of them.16
Wherein17 lies their dispute?18 - [One] master19 is of the opinion [that] honour may he shown to a disciple in the presence of the master,20 and the other21 is of the opinion that it is not to he shown.22 And the law is [that honour is] to be shown. And the law is [that honour is] not he shown. Surely this is a contradiction between one law and the other!23 - There is no contradiction: The one24 [refers to the case] where his master shows him25 respect; the other,24 where his master does not.
It was taught: The daughters of Zelophehad were wise women, they were exegetes, they were virtuous.
They [must] have been wise, since they spoke at an opportune moment; for R. Samuel son of R. Isaac said: [Scripture] teaches that Moses our master was sitting and holding forth an exposition on the section of levirate marriages, as it is said, If brethren dwell together.26 They said unto him:27 'If we are [to he as good] as son[s],28 give us an inheritance as [to] a son; if not,29 let our mother be subject to the law of levirate marriage!' And Moses, immediately. brought their cause before the Lord.30
They [must] have been exegetes, for they said: 'If he had a son we would not have spoken'.31 But was it not taught: 'a daughter'?32 - R. Jeremiah said: Delete, 'daughter', from here.33 Abaye said: [The explanation is that they said]: 'Even if a son [of his] had a daughter. we would not have spoken'.34
They were virtuous, since they were married to such men only as were worthy of them.35
R. Eliezer b. Jacob taught: Even the youngest among them was not married under forty years of age.36 But can this he so? Surely, R. Hisda said: [One who] marries under twenty years of age beget till sixty; [at] twenty, begins till forty. [at] forty, does not beget any more!37 - Since, however, they were virtuous, a miracle happened in their case38 as [in that of] Jochebed.39 As It is written, And there went a man of the house of Levi, and took to wife a daughter of Levi;40
(1) Or privilege. The daughters of Zelophehad were righteous women and deserved, therefore, that a section of the Torah conferring rights and privileges on certain heirs should be written at their instance,
(2) The announcement of the severe penalty of stoning for gathering sticks on the Sabbath was brought about by means of the guilty man who was the first to commit such an offence; v. Sanh. 8a.
(4) Surely, Hepher, having been one of those who came out of Egypt, was by virtue of that fact in possession of his share even before the entry into Canaan, Zelophehad's daughters, therefore, through their father, were entitled to the double share due to the firstborn.
(5) Whether the land of Israel was to be regarded as being in possession of those who came out of Egypt. even before the entry into Canaan.
(6) מורשה morashah.
(7) Ibid. VI, 8.
(8) The fathers of those who left Egypt. מורשה like ירושה yerushah, signifying 'heritage' and implying that the fathers who came out of Egypt were to be regarded as the actual possessors of the land, having inherited it from their fathers, and hence, their firstborn sons would be entitled to double portions.
(9) Those that left Egypt.
(10) מורשה Hiph., having a causative signification, denoting that they would cause their descendants to inherit the land, without any hearing on the question of their own possession thereof, Firstborn sons would, consequently, have no claim to a double portion.
(11) Ibid. XV, 17.
(12) That their descendants, and not they themselves, would enter the land.
(13) Num. XXVII, 2.
(14) They first came to the congregation, then to the princes and Eleazar, and finally to Moses,
(15) Moses, Eleazar and all the rest.
(16) The daughters of Zelophehad submitted their claim when Moses and the others were sitting together.
(17) On what principle?
(18) That of R. Josiah and R. Eliezer.
(19) R. Josiah.
(20) Hence he maintains that they went first to the others (Moses' disciples) and then to the master himself.
(21) Abba Hanan.
(22) The case had, therefore to be submitted to Moses himself when presiding.
(23) Lit., 'law upon law'.
(24) Lit., 'this'.
(25) The disciple.
(26) Deut. XXV, 5.
(27) While he was engaged in the exposition of this law.
(28) Since the existence of a daughter, like that of a son, obviates levirate marriage
(29) I.e., if, with reference to an inheritance, daughters are not to be given the same rights as sons.
(30) Cf. Num. XXVII, 5.
(31) This plea shows that they knew the exposition of Num. XXVII, 8, according to which a daughter has no claim where there is a son. Cf. supra 110a.
(32) Viz some versions read that they said, 'If he had a daughter'.
(33) The word, 'daughter', in that Baraitha is an error.
(34) 'Knowing that a son's daughter has preference over the daughter of the decreased', v. supra 115b.
(35) V. infra p. 493, n. 2.
(36) Waiving for a worthy husband.
(37) Is it, then, possible that virtuous women like the daughters of Zelophehad would marry so late in life as to he unable to have any issue?
(38) Lit., 'to them'.
(39) The mother of Moses.
(40) Ex II, I.
Talmud - Mas. Baba Bathra 120a
how could she be called 'daughter'1 when she was a hundred and thirty years old; for R. Hama b. Hanina said:2 It was Jochebed who was conceived on the way3 and born between the walls [of Egypt] for so it is written, Who was born4 to Levi in Egypt,5 [which implies that] her birth was in Egypt but her conception was not in Egypt.6 Why, then, was she called, 'daughter'? - R. Judah b. Zebida said: This teaches that marks of youth reappeared on her. The flesh [of her body] was again smooth, the wrinkles [of old age] were straightened out and [her] beauty returned.7
[Instead of]. and he took,8 it should have read, 'and he took again'!9 - R. Judah b. Zebida said: [This] teaches that he arranged for her a ceremonial of [a first] marriage; placing her in a [bridal] litter while Aaron and Miriam sang in her honour, and ministering angels recited: The joyful mother of the children.10
Further on,11 Scripture enumerates them12 according to their age13 and here14 according to their wisdom, - this [is evidence] in support of R. Ammi. For R. Ammi said: At a session,15 priority is to be given to16 wisdom; at a festive gathering.17 age takes precedence.18 R. Ashi said: This,19 [only] when one is distinguished in wisdom; and that,20 [only] when one is distinguished in old age.
The school of R. Ishmael taught: The daughters of Zelophehad were [all] alike,21 for it is said, and they were22 [implying], 'all of them possessed the same status'.23
Rab Judah said in the name of R. Samuel: The daughters of Zelophehad were given permission to he married to any of the tribes,24 for it is said, Let them be married to whom they think best.25 How, then, may one explain [the text]. Only into the family of the tribe of their father shall they be married?26 - Scripture gave them good advice,27 [namely], that they should he married only to such as are worthy of them.28
Rabbah raised an objection: 'Say unto them,29 [means] to those who stood on Mount Sinai; throughout your generations,29 [refers] to the coming generations. If fathers were mentioned, why were sons [also] mentioned; and if sons were mentioned, why should fathers be mentioned? - Because some [precepts] which apply to the fathers30 are inapplicable to the sons,31 and some which apply to the sons are inapplicable to the fathers. In [the case of] the fathers it is said: And every daughter that possesseth an inheritance;32 while many precepts were given33 to the sons34 and not to the fathers.35 Since, [therefore.] certain precepts apply to the fathers and not to the sons while others apply to the sons and not to the fathers, it was necessary to specify the fathers and it was [also] necessary to specify the sons.' At all events, it was taught, 'In the case of the fathers it is said: And every daughter that possesseth an inheritance'?36 - He raised the objection and he [also] replied to it: 'With the exception' [he said] 'of the daughters of Zelophehad'.37
The Master said: 'In the case of the fathers it is said: And every daughter that possesseth an inheritance,38 [etc.]' What evidence is there that this applied 'to the fathers and not to the sons'? - Raba said: Scripture states: This is the thing.39 [which implies], 'this thing shall he applicable only to this generation'. Rabbah Zuti said to R. Ashi: If this is the case,40 does This is the thing.41 [said in connection] with [animals] slaughtered outside [the Temple], also [imply] that [that Jaw] was to apply to that generation only?42 - There, [the case is] different, for it is written, throughout their generations.43
(1) And not 'woman'.
(2) V. infra 123b.
(3) Which Jacob and his family made from Canaan to Egypt. Gen. XLVI, Iff.
(4) This is superfluous since the fact that Jochebed was Levi's daughter is already stated before in the same verse.
(5) Num. XXVI, 59.
(6) Since Jochebed was, accordingly, born just when Jacob entered Egypt she must have been a hundred and thirty years old when Moses was born. The whole period the Israelites spent in Egypt was two hundred and ten years. Moses was eighty years old at the Exodus. Deduct eighty from two hundred and ten and there is a remainder of one hundred and thirty.
(7) A similar rejuvenation has taken place in the case of Zelophehad's daughters
(8) Ex. II, I.
(9) Since this was Amram's second marriage, having married Jochebed once before and begat Aaron Miriam; when Pharaoh had issued his decree against the male children (Ex. I, 22) Amram had left his wife whom he did not remarry until he received a prophetic message through Miriam (cf. Sotah 12b).
(10) Ps. CXIII. 9.
(11) Where their marriages are reported.
(12) Zelophehad's daughters.
(13) V. Num. XXXVI, II.
(14) Ibid. XXVII, I, dealing with their right of inheritance.
(15) In connection with matters of law or study.
(16) Lit., 'go after'.
(17) Heb. mesibah מסיבה a banqueting party reclining on couches round the room or round the tables.
(18) Num. XXXVI, II, speaking of marriages, enumerates Zelophehad's daughters according to age, the elder ones being given priority of place as is done at festive assemblies. In Num. XXVII, I, however, where a question of law is discussed, the enumeration is according to their wisdom, those possessing more wisdom being given priority of place as is done at law, or similar sessions.
(19) That wisdom is the determining factor at sittings of law or study.
(20) That age takes precedence at festive gatherings.
(21) And, for this reason, some are enumerated before the others in Num. XXXVI, II, while in Num. XXVII, I the others are enumerated first. No support may consequently be found in these verses for R. Ammi's opinion.
(22) Num. XXXVI. II. Heb. ותהײנה
(23) הויה 'existence', 'status'. יה, is taken as the root of ותהײנה and of הויה.
(24) Lit., to all the tribes'. Other heiresses could marry only members of their own tribe.
(25) Num. XXXVI, 6.
(26) Ibid. Are not the two sections of the verse contradictory?
(27) Not an instruction.
(28) This advice they carried out in marrying their uncles' sons. Ibid. II.
(29) Lev. XXII, 3.
(30) Lit., 'which is in the fathers'.
(31) Lit., 'which is not in the sons'.
(32) Num. XXXVI, 8. This law applied only to the fathers, i.e., the men who came out of Egypt, and not to their sons, i.e., the coming generations.
(33) Lit 'commanded'.
(34) Such as are, e.g., applicable to Palestine only.
(35) Lit., 'which the fathers were not commanded', being, as they were, in the wilderness.
(36) V. n. 6, supra. This shows that the prohibition for all heiress to marry one of another tribe was given to the generation of the fathers, i.e., to that of the daughters of Zelophehad. how, then, could it be said that they were allowed to marry any one from any tribe.
(37) They were exempt from the prohibition, because in their Case, Scripture (Num. XXXVI, 6) distinctly stated, Let them be married to whom they think best.
(38) Num. XXXVI, 8.
(39) Ibid. 6.
(40) Lit., 'but from now'.
(41) Lev. XVII, 2.
(42) Surely this is impossible; for it is known that the law of prohibition of the slaughtering of consecrated animals outside the temple was in force so long as the Temple was in existence.
(43) Lev. XVII, 7: This shall be a statute for ever unto them throughout their generations. This text, consequently, modifies the implication of This, in v. 2 earlier; and this is the reason why the law remained in force for later generations.
Talmud - Mas. Baba Bathra 120b
Does This is the thing.1 [said in connection] with the heads of the tribes2 also [imply] that [that Jaw]3 was to apply to that generation only? - He said unto him: [In] that [case], this4 is inferred from this [that is mentioned] there.5 Let this, [in] the present [case].6 also, be inferred from this [mentioned] there!7 - What a comparison!8 There9 [one may] rightly [compare one this to the other this because these expressions are in any case] required for [another] comparison;10 here,11 [however], for what [other purpose] is it12 needed? The text could [simply] have omitted it altogether13 and one would have known that [the law applied]14 to [all] generations!15
What is the [other] comparison16 [just referred to]? - It was taught: This is the thing, has been said here,17 and This is the thing, has [also] been said elsewhere:18 just as there [it was spoken to] Aaron and his sons and all Israel,19 so here20 [it was spoken to] Aaron and his sons and all Israel; and just as here20 [it was spoken to] the heads of the tribes.21 so there22 [it was spoken to] the heads of the tribes.
The Master has said: 'Just as there, [it was spoken to] Aaron and his sons and all Israel, so here, [it was spoken to] Aaron and his sons and all Israel'. In [respect of] what law [has this comparison been made]? - R. Aba b. Jacob said: To infer that the annulment of vows [may be effected] by three laymen.23 But surely, 'the heads of the tribes' is written [in connection] with it?!24 - As R. Hisda said in the name of R. Johanan, 'By a qualified individual',25 [so] here also [it may be said], 'By a qualified individual'.26
[It has been said: 'Just as here [it was spoken to] the heads of the tribes, so there [it was spoken to] the heads of the tribes'. In [respect of] what law [has this comparison been made]?27 - R. Shesheth said: To infer [that] the law of absolution28 [is applicable] to consecrated objects.29 According to Beth Shammai, however, who maintains [that] the law of absolution28 is not [applicable] to consecrated objects; as we learnt,30 'Beth Shammai maintains [that] mistaken consecration is [regarded as proper] consecration, and Beth Hillel maintains [that] it is not [regarded as proper] consecration,' - to what [other] purpose do they apply,31 this and this?32 [The expression], This is the thing, [used in connection] with [animals] slaughtered outside the Temple is required [for the inference that] one is guilty [only] for slaughtering33 but not for 'pinching'.34 [The express sion] This is the thing, [mentioned in connection] with the 'heads of the tribes', is required [for the inference that only] a Sage can dissolve [a vow], but a husband cannot dissolve35 [a vow], [only] a husband can declare [a vow] void, but a Sage cannot declare [it] void.36
Whence does Beth Shammai, who does not use the inference from the similarity of expression,37 derive the law [that] the annulment of vows [may be performed] by three laymen?38 They derive it from what was taught [in the following Baraitha]: And Moses declared unto the children of Israel the appointed seasons of the Lord.39 R. Jose the Galilean said:
(1) Nuns. XXX, 2.
(3) The law of the disallowance of vows. (ibid. 3-17).
(4) Mentioned at the law of the disallowance of vows.
(5) Used in connection with the law of animals slaughtered outside the Temple. As in the other Case the law is applicable to all generations (v. supra note 2), so also is the law in the former Case.
(6) The prohibition of the marriage of an heiress to a member of another tribe.
(7) V. n. 7.
(8) Lit., 'this, what'?
(9) The law of animals slaughtered outside the Temple and that of the disallowance of vows.
(10) A gezerah shawah, an inference by similarity of expressions (v. Glos ). V. infra.
(11) The marriage of an heiress to one of another tribe.
(12) The expression, this.
(13) Lit., 'let the verse keep silence about (from) it'.
(14) As do most other laws.
(15) Since, therefore, the expression was used, it must have been meant to limit the law to that generation only.
(16) V. note. 12.
(17) At the laws of vows (Num. XXX, 2).
(18) Lev. XVII, 2, at the law of animals slaughtered outside the Temple.
(19) As stated specifically in Lev. XVII, 2.
(20) In connection with the laws relating to vows.
(21) As stated in Num. XXX, 2.
(22) V. p. 494, n. 20.
(23) From the Biblical association of Aaron and his sons and all Israel with the laws of vows it is to be inferred that a properly constituted Court is not required for the annulment of vows. Any member of the congregation of Israel is as good as Aaron and his sons for the purpose of acting as a member of such a lay court of three.
(24) With the laws of vows (Num. XXX, 2). Would not 'Heads of tribes' imply, 'qualified men', 'members of a proper court'?
(25) V. infra.
(26) I.e., vows may be annulled not only by a lay Court of three but also by one individual if he is qualified by his attainments (a Mumhe, v. Glos.) The expression, heads of tribes', is equivalent to 'qualified individuals', though acting singly.
(27) What connection could there be between the law of animals slaughtered outside the Temple and the heads of tribes.
(28) Heb. שאלה lit., 'question'.
(29) As a qualified scholar may annul a vow, so he may render absolution from the consecration of an object, if the person who consecrated it can produce sufficient grounds to justify the absolution.
(30) Naz. 30b.
(31) Lit., 'what do they do to it'.
(32) This, mentioned with the law of animals slaughtered outside the Temple and this of the laws of vows. Maintaining that 'mistaken consecration is regarded as proper consecration', Beth Shammai is obviously of the opinion that the low of absolution is never applicable to consecrated objects. Hence, the comparison made above between the similar expressions of 'this'
(from which the law of absolution has been derived) is not required. What, then, is the purpose of the employment of this expression in the Biblical text.
(33) Outside the Temple.
(34) Heb. Melikah, מליקה 'pinching off the head of a bird with the finger nails' (cf. Lev. I, 15). The expression, this, implies that only what was mentioned in the text, viz., slaughtering, is prohibited.
(35) By using the formula, מותר לך The Sage has the right of disallowing, or dissolving a vow (התרה 'unbinding', 'dissolving'), if a good reason for his action can be found. If, e.g., the man who vowed can show that his vow was made under a misapprehension.
(36) By using the formula, מופר לך a husband is entitled to declare as void, הפרה 'breaking' destroying'), any vow made by his wife, without the necessity for her finding any reason for its annulment. Unlike the sage who must first inquire whether grounds exist for dissolving it (v. previous note), the husband may, as soon as he hears of the vow, 'destroy' it at once retrospectively. This, implies that only the expressions of the Biblical text as interpreted in Ned. 77b may be used and that only the procedure they imply must be followed.
(37) Requiring the two expressions of this for other purposes, as just explained.
(38) Or by a Sage, who is regarded as of equal status to that if a lay court of three.
(39) Lev. XXIII, 44
Talmud - Mas. Baba Bathra 121a
The appointed seasons of the Lord, were said [but] the weekly Sabbath1 was not said [unto them].2 Ben Azzai said: The appointed Seasons of the Lord were said, [but] the annulment of vows was not said [unto them].2
R. Jose b. Nathan3 studied this Baraitha and did not know [how] to explain it. Going after R. Shesheth to Nehardea and not finding him, he followed him to Mahuza [where] he found him. He said unto him: What [is meant by] 'the appointed seasons of the Lord were said [but] the weekly Sabbath,4 was not said [unto them]'? [The other] replied unto him: [This is the meaning:] The appointed seasons of the Lord5 require a proclamation by a court6 [but] the weekly Sabbath does not require proclamation by a court;7 for, it might have been assumed, since it8 was written9 near the appointed seasons,10 that it required a proclamation by the court as [do] the appointed seasons, [this,]11 therefore, had to be taught.
What [is meant by] 'the appointed seasons of the Lord were said [but] the annulment of vows was not said [unto them]'? - The [proclamation of the] appointed seasons of the Lord requires [a court of three] qualified mem12 [but] the annulment of vows does not require [three] qualified men.13 But, surely, it is written the heads of the tribes!14 - R. Hisda replied in the name of R. Johanan: [The text implies that annulment of vows may be performed] by one qualified man.15
We learnt elsewhere:16 R. Simeon b. Gamaliel said: Israel had no [other] festive days like the fifteenth of Ab and the Day of Atonement on which the daughters of Jerusalem went out in white garments, borrowed [for the occasion], so as not to shame those who possessed none [of their own].
One well understands why the Day of Atonement [should be such a festive occasion for it is] a day of pardon and forgiveness,17 [and it is also] a day on which the second Tabies18 were given, but what is [the importance of] the fifteenth of Ab? - Rab Judah said in the name of Samuel: [It was] the day on which the tribes were allowed to intermarry with one another.19 What was their exposition?20 - This is the thing21 [implies] this thing shall only apply to this generation.22 Rabbah b. Bar Hana said in the name of R. Johanan: [It was] the day on which the tribe of Benjamin was allowed to enter the congregation. [This was for a time prohibited], for it is written, Now the men of Israel had sworn in Mizpah saying: 'There shall not any of us give his daughter unto Benjamin to wife.'23 What was their exposition?24 - 'Of us,'25 but not of our children.26 R. Dimi b. Joseph said in the name of R. Nahman: [It was] the day on which the dying in27 the wilderness had ceased;28 for a Master said: Before the dying in the wilderness had ceased
(1) Lit., 'Sabbath of the beginning', Heb. Shabbath Bereshith, שבת בראשית Saturday, the seventh day of the week, the weekly day of rest, is so called on account of its commemoration of the creation. Cf. Gen. II, 1-3.
(2) The explanation follows in the Gemara infra. V. also note 12.
(3) In Neda. 78a. The reading is R. Assi.
(4) V. p. 496, n. 8.
(5) I.e., the New Moons and Festivals.
(6) קדטש בית דין. Lit., 'the sanctification of the house of law'. The calendar not having been fixed, the dates of the New Moons and Festivals were determined by the court in Jerusalem on the evidence of witnesses who saw the 'birth', מולד of the new moon. If the court was satisfied, after due investigation and cross-examining of witnesses, that the evidence was reliable, the New Moon, ראש חדש was proclaimed, thus determining also the date of the festival which happened to fall in that month, since the Festivals always occurred, in accordance with the Biblical injunction, on the same day of the respective month.
(7) Sabbath has been divinely ordained and sanctified at the Creation (Gen. II, 3), and is not subject to the proclamation of a human court.
(8) The Sabbath.
(9) Lev. XXIII, 3.
(10) Ibid. vv. 4ff.
(11) That Sabbath 'was not said' unto them, i.e., that it required no human proclamation or sanctification.
(12) A lay Court of three, or one qualified expert (Mumhe, v. Glos.), has not the right to proclaim the New Moon.
(13) But a lay Court of three may annul vows. Beth Shammai, also, derives this law in the same way.
(14) Implying qualified men. How, then, can it be said that a lay Court of three may also annul vows?
(15) One qualified man of the 'heads of the tribes' has the same right as a court of three laymen. 'Heads of the tribes' does not mean a court of qualified men but qualified men acting individually.
(16) Ta'an. 26b.
(17) Cf. Lev. XVI, 29ff.
(18) Cf. Deut. X, 1ff. [According to a tradition preserved in the Seder 'Olam 6, Moses spent three periods of forty days and forty nights on the mount, beginning with the seventh Sivan, and ending on the tenth of Tishri when he came down on earth with the second Tables.]
(19) The prohibition on an heiress to marry into another tribe, in accordance with Num. XXXVI, 8, which requires an heiress to be 'wife unto one of the family of the tribe of her father', was removed. The prohibition was held to apply only to the generation of those who entered the land, and to lapse when the last of these had died.
(20) From what Scriptural text, and how, was it deduced that the prohibition was to lapse with the death of the first generation of those who entered the land?
(21) Num. XXXVI, 6.
(22) V. supra 120a.
(23) Judges XXI, 1.
(24) Whence was it derived that the tribe of Benjamin could again be permitted to enter the congregation?
(25) I.e., the prohibition, they maintained, applied to those only who had themselves taken the oath, since they specifically used the expression, 'of us'.
(26) The children, therefore, i.e., the daughters of those who took the oath, could be married to the men of Benjamin.
(27) Lit., 'the dead of'.
(28) Cf. Num. XIV, 35. The last of that generation had died prior to that day, and all the survivors were thus assured of entering the promised land.
Talmud - Mas. Baba Bathra 121b
there was no [divine] communication with Moses;1 for it is said, So it came to pass, when all the mem of war were consumed and dead from among the people, that the Lord spoke unto me saying,2 '[only then', said Moses] 'was there speaking3 to me'.4 'Ulla said: [It was] the day on which Hosea,5 son of Elah, removed the guards whom Jeroboam6 had placed on the roads to prevent Israel from making the pilgrimages to Jerusalem.7 R. Mattena said: [It was] the day on which the slain of Bether8 obtained [suitable] burial; for R. Mattena said [elsewhere]:9 On the day when the slain of Bether obtained burial [the benediction] 'who art kind and dealest kindly'10 was instituted at Jabneh11 'Who art kind' [was instituted] because they12 did not decompose;13 'and dealest kindly' [was instituted] because they obtained burial.
Both Rabbah and R. Joseph said: [It was] the day on which they ceased cutting wood for the altar.14
It was taught: R. Eliezer the Great said: As soon as the fifteenth of Ab arrived, the power of the sun weakened and they chopped no [more] wood for the altar.15 R. Manasseh said: They called it,16 'the day of the breaking of the axe.'17
From that [day]16 onwards, he who adds [from the night to the day]18 will [also] add [length of days and years for himself],19 [and he] who does not add [from the night to the day], decreases [his years].20 What [is meant by] 'decreases'? R. Joseph learnt: His mother will bury him.21
Our Rabbis taught: Seven [men] spanned22 [the life of] the whole world.23 [For] Methuselah saw Adam; Shem saw Methuselah, Jacob saw Shem; Amram saw Jacob; Ahijah the Shilonite saw Amram; Elijah saw Ahijah the Shilonite, and he24 is still alive.
And [did] Ahijah the Shilonite see Amram? Surely it is written, And there was not left a man of them, save Caleb the son of Jephunneh, and Joshua the son of Nun!25 - R. Hamnuna replied: The decree26 was not directed27 against the tribe of Levi;28 for it is written, Your carcasses shall fall in this wilderness, and all that were numbered of you according to your whole number, from twenty years old and upward;29 [this implies that a tribe] that was numbered from twenty years old and upward [came under the decree]; the tribe of Levi, [however], having been numbered30 from thirty years old, was excluded.
Did none of the [members of the] other tribes31 enter [the promised land]? Surely it was taught: Jair the son of Manasseh and Machir the son of Manasseh were 'born in the days of Jacob and did not die before Israel entered the [promised] land; for it is said, And the men of the Ai smote of them about thirty and six men,32 and it was taught33 'actually thirty six men' [these are] the words of R. Judah; R. Nehemiah, [however], said unto him: Was it said, 'thirty and six'? Surely it was said, about34 thirty and six! But this35 [must refer to] Jair the son of Manasseh who was equal to the greater part of the Sanhedrin!36 - But, said R. Aha b. Jacob, the decree37 was directed38 neither against one [who was] under twenty years of age, nor against [one who was] over sixty years of age. [It was directed] neither against [one] under twenty years of age' - for it is written, from twenty years old and upward;31 'nor against [one] over sixty years of age' - for 'and upward'39 is deduced from 'and upward'40 [in the section] of valuations,41 as there, [one] over sixty years of age is like [one] under twenty years of age,42 so here, one over sixty years of age is like one [who is] under twenty years of age.43
The question was raised: Was the land of Israel divided according to the [number of the] tribes,44 or was it, perhaps divided according to the [number of the] head[s] of the men?45
(1) In the direct manner as described in Num. XII, 8: 'With him do I speak mouth to mouth, even manifestly, etc.' (Rashb.).
(2) Deut. II, 16f.
(3) V. supra n. 3.
(4) An annual festive day was, therefore, declared, to commemorate the divine reconciliation with Israel's leader.
(5) The last of the kings of Israel.
(6) Son of Nebat, the first of the kings of the divided kingdom of Israel. Cf. II Kings XVII, 2, on which this tradition is based.
(7) Pilgrimages were made on the occasion of the three great annual festivals, Passover, Pentecost and Tabernacles.
(8) [The town where in the rebellion of Bar Cochba, the Jews made their last stand against the Romans in 135 C.E.]
(9) Ber. 48b, Ta'an. 31a.
(10) The fourth of the benedictions of Grace after Meals.
(11) The religious centre and seat of the Sanhedrin after the destruction of Jerusalem.
(12) The corpses.
(13) [During the long period in which the slain were left lying in the open field, owing to Hadrian's decree forbidding their interment.]
(14) מערכה lit., 'arrangement', i.e., the pile of wood arranged on the Temple altar.
(15) All wood for the altar had to be chopped during the period when the sun shone in full strength, i.e., from the month of Nisan to the fifteenth of Ab. Any wood chopped later than that period was considered unsuitable for the altar on account of the dampness in it which produced smoke and generated worms (v. Mid. 11, 5).
(16) The fifteenth of Ab.
(17) As there was no longer any immediate use for the tool.
(18) For the purpose of study. The days shorten and the hours of study would consequently diminish unless part of the night were also to be devoted to the same purpose.
(19) Cf. Prov. III, 2.
(20) The original contains a play upon the words 'add' and 'decrease' דומסיף יוסיף שאניו מוסיף יסיף
(21) I.e., he will die in the prime of life.
(22) Lit., 'folded'.
(23) The total length of their respective lives covered the entire period of the life of the human species.
(25) Num. XXVII, 65. since Ahijah saw Amram, whether in Egypt or in the wilderness, he must have been, according to this verse, among those who died in the wilderness. How then could he have been living (cf. I K. XI, 29) in the days of Jeroboam?
(26) That all must die in the wilderness.
(27) Lit., 'decreed'.
(28) Ahijah was a Levite (cf. I Chron. XXVI, 20), hence he could enter the promised land.
(29) Num. XIV, 29.
(30) For the purpose of the Temple service. Cf. Num. IV, 23, 29, 35.
(31) Who came out of Egypt.
(32) Jos. VII, 5.
(33) San. 44a.
(34) Heb. Kisheloshim, כשלשים the כ may signify, 'about' and also 'like', 'equal'.
(35) The expression 'about thirty and six'. V. previous note.
(36) The Sanhedrin having consisted of seventy-one men, thirty-six formed a majority. Now, since Ahijah was among those who came out of Egypt and also among those who entered Canaan, how could it be said that, besides the tribe of Levi, none of the members of the other tribes had entered the land?
(37) V. p. 500, n. 12.
(38) V. loc. cit. n. 13.
(39) Num. XIV, 29.
(40) Lev. XXVII, 7.
(41) Ibid. vv. 2ff.
(42) In both cases (under twenty and over sixty) the valuation is lower than that for the ages of twenty to sixty.
(43) As those under twenty were not subject to the penalty of the decree so were not those over sixty. Ahijah, even though he did not belong to the tribe of Levi, having been over sixty at the Exodus, was not subjected to the decree, and could, therefore, enter the land.
(44) Each tribe taking a twelfth of the land and, then, subdividing it in accordance with the number of its men.
(45) The entire land being divided into as many shares as there were men.
Talmud - Mas. Baba Bathra 122a
- Come and hear: [According to the lot shall their inheritance be divided] whether many1 or few.2 Furthermore it was taught: The land of Israel will in time to come be divided between thirteen tribes; for at first3 it was only divided among twelve tribes and was divided only according to monetary [values],4 as is said, whether many or few.5 R. Judah said: A se'ah in Judaea is worth five se'ah in Galilee.6 And it was only divided by lot, for it is said, Not with standing [the land shall be divided] by lot.7 And it was only divided by [the direction] of] the Urim and Tumim.8 for it is said, According to the speaking9 of the lot;10 how [could] this [be done]?11 - Eleazar was wearing the Urim and Tumim, while Joshua and all Israel stood before him. An urn [containing the names] of the [twelve] tribes, and an urn containing descriptions] of the boundaries were placed before him. Animated by the Holy Spirit, he gave directions, exclaiming: 'Zebulun' is coming up and the boundary lines of Acco are coming up with it. [Thereupon], he shook well the urn12 of the tribes and Zebulun came up in his hand. [Likewise] he shook well the urn of the boundaries and the boundary lines of Acco came up in his hand. Animated again by the Holy Spirit, he gave directions, exclaiming: 'Naphtali' is coming up and the boundary lines of Gennesar13 are coming up with it. [Thereupon] he shook well the urn of the tribes and Naphtali came up in his hand. He, [likewise], shook well the box of the boundaries, and the boundary lines of Gennesar came up in his hand. And [so was the procedure with] every [other] tribe. And the division in the world to come will not be like the division in this world. [In] this world, [should] a man possess a cornfield14 he does not possess an orchard; [should he possess] an orchard he does not possess a cornfield, [but] in the world to come15 there will he no single individual who will not possess [land] in mountain, lowland and valley; for it is said, The gate of Reuben one; the gate of Judah one; the gate of Levi one.16 The Holy One, blessed be He, Himself, [will] divide it among them; for it is said, And these are their portions saith the Lord God'.17 At all events, it was taught [here] that, at first, [the land] was only divided among twelve tribes, [from which it] may be inferred that the division was in accordance with [the number of] the tribes. This proves it.
The Master has said, 'The land of Israel will in time to come be divided among thirteen tribes'. For whom is that [extra portion]? - R. Hisda said: For the prince;18 for it is written, And he that serves the city.19 they out of all the tribes of Israel, shall serve him.20 R. Papa said to Abaye: Might it21 not be said [to refer] merely [to] public service?22 - This cannot be assumed at all,23 for it is written, And the residue shall be for the prince. On the one side and on the other, of the holy offering and of the possession of the city.24
'And it was divided only according to monetary [values], as it is said, Whether many or few'. In what [respect]?25 If it be suggested [that compensation was to be given in respect of lands] of superior and inferior quality,26 [it could he retorted,] 'Are we discussing fools'?27 - But, [this is the explanation, in respect] of [an estate that was] near and [one that was distant.28 [This29 is] in accordance with [the opinion of one of the following] Tannaim: R. Eliezer said: Compensation30 was given in money. R. Joshua said: Compensation was given in land.
And it was only divided by lot, for it is said, Notwithstanding [the land shall be divided] by lot'. A Tanna taught; 'Notwithstanding . . . by lot'; Joshua and Caleb being excluded. In what [respect]?31 If it be suggested that they did not take [any portion] at all, [it might be retorted], 'if32 they took [that] which was not theirs33 could there be any question [as to whether they should take] what was theirs? - But [this means], that they did not receive [their shares] by lot but by the command of the Lord. 'Joshua'.34 - for it is written, According to the commandment of the Lord they gave him the city which he asked, even Timnath-serah in the hill country of Ephraim.35
(1) I.e., whether the tribe consists of many individuals.
(2) Num. XXVI, 56. Few, is taken to refer to a small tribe. Since scripture directs the distribution of equal shares to all tribes, the land must have been divided 'according to the number of tribes', and not 'according to the number of individuals'. It will be noted that the rendering of בין רב למעט adopted in the Gemara, slightly differs from that in E.V.
(3) When the promised land was entered.
(4) This is at present assumed to mean that the one who received a share in which the land was worth more than the land of equal size in another share, had to pay the difference so as to equalise their respective monetary values.
(5) Ibid. This implies that the shares must in all cases be equal in value.
(6) R. Judah illustrates by example the meaning of 'according to monetary values.' [Cf. Josephus, Antiquities, V, 1-21: . . . Joshua thought the land for the tribes should be divided by estimation of its goodness . . . it often happening that one acre of some sort of land was equivalent to a thousand other acres.]
(7) Ibid. v. 55.
(8) V. Glos.
(9) hp lit., 'mouth', i.e., 'by the word of God'.
(10) Ibid. 56.
(11) If by lot, why the Urim and Tumim? If by the latter what was the use of the former?
(12) So Rashb. Rashi renders, 'he hastily took up a (ballot).'
(13) Gennesareth, from the Heb. Kinnereth, כנרת a district in Galilee named after the lake of the same name.
(14) Lit., 'a field of white.' V. supra 28a.
(15) I.e., the Messianic era.
(16) Ezek. XLVIII, 31, implying that all will have shares equal in all respects, even in the city of Jerusalem itself.
(17) Ezek. XLVIII, 29. God himself will, thus, allot to each one his share.
(18) The King.
(19) I.e., the prince whose duty it is to serve the interests, and to provide for the wellbeing of his subjects.
(20) Ezek. XLVIII, 19. Serve him, is interpreted to mean 'providing him with a share in the land'.
(21) The verse from Ezekiel quoted.
(22) Which subjects render to their chief. [Or, 'as day-labourer'. Levy, s.v. רונגר, v. Fleischer's note, a.l.]. What proof, then, is there for the statement that the prince was given a special share in the land?
(23) Lit., 'it does not enter your mind.
(24) Ezek. XLVIII, 21.
(25) Was it necessary to state that compensation was given.
(26) That the possessor of the better quality had to pay compensation to him who received the inferior quality.
(27) What man in his senses would consent to take a portion in an inferior soil without getting compensation from him who obtained a portion in a soil of better quality. What need, then is there to state such and obvious thing?
(28) Though equality in the distribution was obtained by giving larger portions of inferior soil against smaller portions of superior soil, further compensation was paid, by those who obtained land nearer to Jerusalem, to those whose lands were further away. The nearer an estate was to Jerusalem the higher was its value.
(29) The view that compensation for distance was paid with money.
(30) V. previous note. Lit., they brought it up'.
(31) Were they excluded.
(32) Lit., 'now/.
(33) The portion of the spies etc. V. supra 118b.
(34) What evidence is there that Joshua received his share by the command of the Lord and not by lot?
(35) Josh. XIX, 50.
Talmud - Mas. Baba Bathra 122b
It is written, serah1 and it is [also] written, heres!2 - R. Eleazar said: At first,3 its fruits [were as dry] as a potsherd4 and afterwards5 its fruits emitted all offensive odour.6 Others say: at first3 they emitted an offensive odour7 and afterwards8 [they were as dry] as a potsherd.9 'Caleb?10 - for it is written. And they gave Hebron unto Caleb, as Moses had spoken; and he drove out thence the three sons of Anak.11 Was [not] Hebron a city of refuge?12 Abaye replied: Its suburbs [were given to Caleb], for it is written, But the fields of the city, and the villages thereof, gave they to Caleb the son of Jephunneh for his possession.13
MISHNAH. BOTH A SON AND A DAUGHTER HAVE EQUAL RIGHTS OF SUCCESSION. EXCEPT THAT A SON [WHEN FIRSTBORN] TAKES A DOUBLE PORTION IN THE ESTATE OF HIS FATHER BUT DOES NOT TAKE IT IN THE ESTATE OF HIS MOTHER. DAUGHTERS MUST BE MAINTAINED OUT OF THE ESTATE OF THEIR [DECEASED] FATHER14 BUT NOT OUT OF THE ESTATE OF THEIR [DECEASED] MOTHER.15
GEMARA. What [is meant by] BOTH A SON AND A DAUGHTER HAVE EQUAL RIGHTS OF SUCCESSION? If it is suggested that [the meaning is that] they have equal status in heirship. Surely, [it may be retorted], we have learnt, 'a son takes precedence over a daughter [and] all lineal descendants of a son take precedence over a daughter!16 - R. Nahman b. Isaac replied: It is this that was meant : Both a son and a daughter17 [are equally entitled to] take [their shares] in a prospective [estate of the deceased] as in that which is in [his] possession [at the time of his death]. Surely, we have learnt18 this also; 'The daughters of Zelophehad took three shares in the inheritance [of Canaan]: The share of their father who was of those who came out of Egypt, and his share among his brothers in the possessions of Hepher'!19 Furthermore, what [is the force of] EXCEPT?20 - BUt, said R. Papa, it is this that was meant: Both a son and a daughter21 [are entitled to] take the [prospective] portion of the birthright [of their father]. Surely, we have learnt22 this also: 'Since he was a firstborn son [who] takes two shares'!23 Furthermore, what [is the force of] EXCEPT?20 - But, said R. Ashi, it is this that was meant: [As regards] both, a son [of the deceased] among [his other] sons and a daughter24 among [his other] daughters, if [the deceased] had said, 'he [or she]25 shall inherit all my property', his instruction is legally valid.26 Whose view is here represented?27 [Is it not that] of28 R. Johanan b. Beroka? Surely that is [specifically] taught further on:29 R.Johanan b. Beroka said: If [a person] said [it]30 concerning one who is entitled to be his heir. his instruction is legally valid; [if, however, he said it] concerning one who is not entitled to be his heir, his instruction is not valid!31 And if it is suggested [that] it was [desired] to state [the law] anonymously, [to show] agreement with [the view of] R. Johanan b. Beroka,32 [surely, it may be pointed out, this is a case of] an anonymous statement followed by33 a dispute,34 and [wherever] an anonymous statement [is] followed by a dispute the law is not [decided] in accordance with the anonymous statement!35 Furthermore, what [is the force of] EXCEPT?36 But, said Mar son of R. Ashi, it is this that was meant: Both a son and, [in the absence of a son], a daughter [have] equal [rights of succession] in the estate of a mother and in the estate of a father, except37 that a son takes a double portion in the estate of his father38 and he does not take a double portion in the estate of his mother.
Our Rabbis taught: Giving him39 a double portion,40 [implies] twice as much as [any] one [of the others receive].41 You said 'Twice as much as [any] one [of the others]'; is it not possible42 [that our Mishnah] does not [mean this] but 'a double portion in all the estate'?43 - But this44 may be deduced by logical reasoning:
(2) Judges I, 35. Why is the place called both serah and heres?
(3) Before it came into the possession of Joshua.
(4) Heb. חרם
(5) When the place passed over to Joshua.
(6) מסריחין (from root, רסח Hiph., 'to produce an offensive odour'). The fruits were so juicy that decay set in early.
(7) And could not, therefore, be preserved. V. previous note.
(8) V. p. 504, n. 15.
(9) V. p. 504, n. 14. As they were not so juicy they could be preserved for a long time.
(10) Whence is it proved that Caleb did not receive his share by lot but at the command of the Lord?
(11) Judges I, 20.
(12) Which belonged to the priests (v. Josh. XXI, 13). How, then, could it be given to Caleb who was of the tribe of Judah?
(13) Josh. XXI, 12.
(14) V. infra 119b, under what conditions.
(15) It is not the duty of a mother to provide for her daughters.
(16) Supra 115a.
(17) In the absence of a son and any of his lineal descendants.
(18) Supra 116b.
(19) Since Hepher was not in possession of his share in the land at the time of his death and yet it was given to his son, Zelophehad, and through him to his daughters, it is obvious that both sons and daughters are entitled as much to the prospective property of their parents as to that which is already in their possession. Why, then, was it necessary to repeat this law in our Mishnah?
(20) What is the antithesis? The first part of the Mishnah speaks of the equality of a son and a daughter, and the second part speaks of the difference (not between a son and a daughter but) between the the estates of a mother and a father!
(21) In the absence of a son and any of his heirs.
(22) V. supra 116b.
(23) And not having left a son, this prospective double portion was given to his daughters. Why, then, should this law have to be stated again?
(24) V. supra n. 3.
(25) pointing out one of his heirs.
(26) Because a person has a right to transmit all his property to any one individual of his legal heirs. He cannot, however, transmit his estate to a daughter when a son or his heirs are alive. Since the latter have the first legal claim as heirs to his estate, and one has no right to dispose of his bequests
(unless in the manner of a gift) except accordance with the laws of succession.
(27) Lit., 'like whom'.
(28) Lit., 'like'.
(29) Infra 130a.
(30) That all his estate shall be inherited by one person only.
(31) Why, then, should our Mishnah teach by implication what was specifically taught elsewhere?
(32) Since the law is always in agreement with the anonymous Mishnah, the Editor may have desired in this way, to indicate that the law is in agreement with the views of R. Johanan.
(33) Lit., 'and after that'.
(34) Between R. Johanan and the Rabbis.
(35) What, then, is the object of our Mishnah?
(36) V. p. 506, n. 2.
(37) The force of 'except' is that while in the previous case there is equality in the loss' between the estate of a father and that of a mother, in the following case there is a difference between these two kinds of estate.
(38) While a daughter is not entitled to a double portion even in the absence of a son.
(39) The firstborn.
(40) Deut. XXI, 17.
(41) The estate is divided according to the number of brothers plus one, and the firstborn takes two such shares.
(42) Lit. 'or'.
(43) Two thirds of the estate for the firstborn, and one third for all the others.
(44) That the firstborn takes only twice as much as any one of the others.
Talmud - Mas. Baba Bathra 123a
his share, [when he is co-heir] with one [is to be compared with] his share [when he is co-heir] with five; as [in the case of inheriting] his share with one [brother, he receives] twice as much as the one1 so [in the case when he inherits] his share with five [brothers he should also receive only] twice as much as one. Or perhaps argue this way:2 [let] his share [when he is co-heir] with one [brother] be compared with his share [when co-heir] with five [brothers]; as his share [when co-heir] with one is a double portion in all the estate3 so [is the case when he inherits] his share with five [he should also receive] a double portion in all the estate?4 - It was expressly taught, Then it shall be in the day that he causeth his sons to inherit,5 the Torah [thus] assigned the greater portion to the brothers.6 Consequently, the deduction is not to be made according to the second proposition7 but according to the first.8 Furthermore it is said, And the sons of Reuben the firstborn of Israel; for he was the firstborn; but forasmuch as he defiled his father's couch, his birthright was given unto the sons of Joseph the son of Israel, yet not so that he was to be reckoned in the genealogy of firstborn.9 Furthermore it is said, For Judah prevailed above his brethren and of him came he that is the prince; but the birthright was Joseph's.10 'Birthright' was said [in relation] to Joseph10 and 'birthright' was said [in relation] to [coming] generations,11 just as the birthright that was said [in relation] to Joseph [consisted in his receiving a portion] twice as much [as any] one [of the others]12 so the birthright that was said [in relation] to the [coming] generations13 [is to consist in the receiving of a portion] twice as much as [any] one [of the others]. Furthermore it is said, Moreover I have given thee one portion above thy brethren, which I took out of the hand of the Amorite with my sword and with my bow.13 Did he take [it] with his sword and with his bow'? Surely it has already been said, For I trust not in my bow, neither can my sword save me!14 But, my sword, means 'prayer' [and] my bow, means supplication'.15
What need was there for quoting the several Scriptural verses?16 - In case you should suggest [that] that [verse17 was required] for [the indication that the law is] in accordance with [the view of] R. Johanan b. Beroka,18 - Come and hear [the verse], And the sons of Reuben, the firstborn of Israel. And in case you should suggest [that] birthright19 from his birthright20 may not be deduced, Come and hear [the verse], But the birthright was Joseph's.21 And in case you should say whence [is it proved] that Joseph himself [received] twice as much as [any] one [of the others], - Come and hear [the verse], Moreover I have given thee one portion above thy brethren.
R. Papa said to Abaye: Might [it not] be suggested [that Joseph received] merely a palm tree?22 - He replied unto him: For your sake23 Scripture said, Ephraim and Manasseh, even as Reuben and Simeon shall be mine.24
R. Helbo enquired of R. Samuel b. Nahmani: What [reason] did Jacob see for taking away the birthright from Reuben and giving it to Joseph? - What did he see? [Surely] it is written, Forasmuch as he defiled his father's couch! But, [this is the question]: What [reason] did he see for giving it to Joseph? - Let me give you a parable. This thing may be compared25 to a host26 who brought up an orphan27 at his house. After a time that orphan became rich28 and declared: 'I would let the host have [some] benefit from my wealth',29 He said unto him: But had not Reuben sinned, [Jacob] would not have bestowed upon Joseph any benefit at all?30 But R. Jonathan your master did not say so.31 The birthright, [he said], should have emanated from Rachel, as it is written, These are the generations of Jacob, Joseph,32 but Leah anticipated [her with her prayers for] mercy. On account, [however], of the modesty, which was characteristic of Rachel, the Holy One, blessed he He, restored it to her. What [was it that caused] Leah to anticipate her with [her supplications for] mercy? - It is written And the eyes of Leah were weak.33 What [is meant by] weak?34 If it is suggested [that the meaning is that her eyes were] actually weak, [is this, it may be asked,] conceivable? [If] Scripture did not speak disparagingly of an unclean animal, for it is written, of the clean beasts, and of the beasts that are not clean,35 [would] Scripture speak disparagingly of the righteous?36 - But, said R. Eleazar, [the meaning of rakkoth37 is] that her bounties were extensive.38 Rab said: [Her eyes were] indeed actually weak, but that was no disgrace to her but a credit; for at the crossroads39 she heard people saying: Rebecca has two sons, [and] Laban has two daughters; the elder [daughter should be married] to the elder [son] and the younger [daughter should be married] to the younger [son]. And she sat at the crossroads and inquired: 'How does the elder one conduct himself?'40 [And the answer came that he was] a wicked man, a highway robber.41 'How does the younger man conduct himself?' - 'A quiet man dwelling in tents'.42 And she wept until her eyelashes dropped.43 And this accounts for the Scriptural text, And the Lord saw that Leah was hated.44 What [could be the meaning of] 'hated'? If it is suggested [that it means that she was] actually hated, [surely] it may be retorted, is this] conceivable? [If] Scripture did not speak disparagingly of an unclean animal, [would] it speak disparagingly of the righteous? But the [meaning is this]: The Holy One, blessed be He, saw that Esau's conduct was hateful to her, so he opened her womb.45
Wherein did Rachel's modesty lie? - It is written, And Jacob told Rachel that he was her father's brother and that he was Rebecca's son.46 Was he not the son of her father's sister? But he said to her, '[Will] you marry me?'47 [And] she replied to him, 'Yes, but father is a sharper, and you will not he able [to hold your own against] him'. ''Wherein,' he asked her, 'does his sharp dealing lie?' - 'I have,' she said, 'a sister who is older than I, and he will not allow me to be married before her' - 'I am his brother', he said to her, 'in sharp dealing'. - 'But,' she said to him, 'may the righteous indulge in sharp dealing?' - 'Yes,' [he replied]. 'With the pure, [Scripture says], Thou dost show thyself pure, and with the crooked Thou dost show thyself subtle.'48 [Thereupon] he entrusted her [with certain identification] marks.49 While Leah was being led into [the bridal chamber] she50 thought, 'my sister will now be disgraced', [and so] she entrusted her [with] these very [marks]. And this accounts for the Scriptural text, And it came to pass in the morning that, behold, it was Leah,51 which seems to imply that until then she was not Leah! But, [this is the explanation]: On account of the [identification] marks which Jacob had entrusted to Rachel who had entrusted them to Leah, he knew not [who] she [was] until that moment.
Abba Halifa of Keruya enquired of R. Hiyya b. Abba: [With regard to those who entered Egypt with Jacob], Why do you find [the number] seventy in their total52 and [only] seventy minus one in their detailed enumeration?53 - He said unto him: A twin [sister] was [born] with Dinah; for it is written, With [eth] his daughter Dinah.54 But if so,55 was there [also] a twin [sister] with Benjamin, for it is written
(1) For in whatever way the double portion is arrived at, it would, in this case, inevitably consist of a shore which is double the size of that of the other brother.
(2) Lit., 'or turn (finish and go) to this way'.
(3) I.e., two thirds of the estate. In whatever way the division is arrived at, the double portion will, in this case, always consist of two thirds of the entire estate.
(4) The firstborn should receive two thirds of the estate, and all the others together one third.
(5) Deut. XXI, 16.
(6) Since this verse is altogether superfluous, the law of the right of the firstborn being specifically mentioned in v. 17, it is assumed to imply that where there are three brothers or more they must get the larger share of the estate. Hence, the firstborn cannot receive two thirds of the estate.
(7) Cf. p. 507 n. 12.
(8) Cf. p. 507, n. 13.
(9) I Chron. V, 1. He was not to hove the designation of the 'first-born', which was the prerogative of Reuben, nad his birthright was only to entitle him to receive a double portion.
(10) Ibid. v. 2.
(11) The low of the birthright, Deut. XXI, 17.
(12) As will be shown infra.
(13) Gen. XLVIII, 22.
(14) Ps. XLlv, 7.
(15) ['Sword' or 'bow' are taken to denote spiritual weapons.]
(16) Lit., 'why and he says'.
(17) Deut. XXI, 16, quoted first.
(18) V. 130a.
(19) בכורה ibid. V, 17.
(20) בכורתו I Chron. V, 1.
(21) In this verse, as in Deut. XXI, 17, the noun Bekorah, without a suffix, is used.
(22) I.e., some small gift. 'A portion above thy brethren', does not prove that he received a double portion.
(23) Lit., 'upon', or 'for thee'.
(24) Gen. XLVIII, 5. Reuben and Simeon were two separate tribes, and Joseph was promised two shares as if he represented two distinct tribes.
(25) Lit., 'to what is the thing like'.
(26) Joseph, who maintained his father. V., Gen. XLVII, 12.
(27) Jacob, whose livelihood during the famine, was entirely dependent on Joseph.
(28) The disposal of the birthright came into the hands of Jacob, through Reuben's offence.
(29) Jacob gave Joseph the birthright in recognition for the hospitality he afforded him and his family.
(30) Surely, his recognition of Joseph's services should not have depended on the remote chance of a birthright becoming available for disposal.
(31) Jacob gave to Joseph, in recognition of his benefaction, other gifts and blessings, while the change of the birthright was due to other causes.
(32) Gen. XXXVII, 2, implying that Joseph, the first-born son of Rachel, should also have been the firstborn of Jacob.
(33) Ibid. XXIX, 17.
(35) Ibid. VII, 8. Instead of the brief, but disparaging expression טמאה (unclean), the longer, and more euphemistic expression to לא טהורה (not clean) is used.
(36) Lit., 'of the disgrace of the righteous'.
(37) V. note 4.
(38) Rakkoth is taken to be an abbreviation of ארכות 'long', i.e., she had many privileges. Priests and Levites through Levi, and kings through Judah, descended from her.
(39) Where people of all classes and localities meet.
(40) Lit., 'what are his deeds'.
(41) Lit., 'robbing people'.
(42) Gen. XXV, 27.
(43) From their lids.
(44) Ibid. XXIX, 31.
(45) Ibid. v. 31.
(46) Ibid. v. 12.
(47) Lit., 'be married to me'.
(48) II Sam. XXII, 27.
(49) By which he might know her in the dark.
(51) Gen. XXIX, 25.
(52) Ibid. XLVI, 27.
(53) V. ibid. 8ff.
(54) Ibid. 15. The superfluous 'with', Heb. eth, את implies the birth of a twin sister.
(55) Lit., 'from now'. If eth implies the birth of a twin.
Talmud - Mas. Baba Bathra 123b
With [eth] Benjamin, his brother, his mother's son?1 - He said: I possessed a precious pearl2 and you seek to deprive me of it.3 Thus said4 R. Hama b. Hanina, 'It5 was Jochebed who was conceived on the way6 and born between the walls [of Egypt], for it is said, Who was born to Levi in Egypt,7 [which implies that] her birth was in Egypt but her conception was not in Egypt'.
R. Helbo enquired of R. Samuel b. Nahmani: It is written, And it came to pass, when Rachel had born Joseph etc.;8 why9 just when Joseph was horn? He replied to him: Jacob our father saw that Esau's seed would be delivered only into the hands of Joseph's seed for it is said, And the house of Jacob shall be a fire and the house of Joseph a flame, and the house of Esau for stubble etc.10
He pointed out to him the following objection: And David smote them from the twilight even unto the evening of the next day!11 - He replied to him: He who taught you the Prophets did not teach you the Writings,12 for it is written, As he went to Zicklag, there fell to him of Manasseh, Adnah and Jozabad and Jediael and Michael and Jozabad and Elihu, and Zillethai, captains of thousands that were of Manasseh.13
R. Joseph raised an objection; And some of them, even of the sons of Simeon, five hundred men, went to Mount Seir, having for their captains Palatiah and Neariah, and Raphaiah and Uzziel, the sons of Ishi. And they smote the remnant of the Amalekites that escaped, and dwelt there unto this day!14 - Rabbah b. Shila replied; Ishi descended from the sons of Manasseh, for it is written, And the sons of Manasseh were Hepher and Ishi.15
Our Rabbis taught: The firstborn son [of a priest] takes a double portion in the shoulder, and the [two] cheeks, and the maw,16 in consecrated objects and in the [natural] appreciation of an estate that accrued after the death of the father.17 How [is this to be understood]? - [If] their father had bequeathed to them a cow [that was] rented out to others [for half profit], or given on hire [at a fixed rate], or feeding in the meadow, and it gave birth to a firstling, he18 takes [in it] a double portion;19 but if they20 built houses or planted vineyards, the firstborn does not take [in them] a double portion.21
How is one to understand [the statement about] the shoulder, and the [two] cheeks, and the maw? If these were already in the possession22 of their father, [it is] obvious [that the firstborn is to take a double portion]; and if they were not already in the possession of their father, [at the time of his death], this [is a case of] prospective [property]23 and, [surely], a firstborn does not take [a double portion] in prospective [property] as [he does] in that which [was] in the [actual] possession [of his father at the time of his death]! - [The law], here, relates to the case where [the givers24 were] acquaintances of the priest,25 and [the beast] was [ritually] killed in the lifetime of the father;26 and [the Tanna] holds that the [priestly] gifts are regarded as [already] given,27 [even though] they have not [actually] been given.28
'Consecrated things' [surely], are not his!29 - [The law here relates to] consecrated objects of a minor degree and [it is] in accordance with [the view of] R. Jose the Galilean who holds that they30 are the property of the owner.31 For it was taught: And commit a trespass against the Lord [and deal falsely with his neighbour etc.]32 includes consecrated things of a minor degree which are the property of the owner33 - these are the words of R. Jose the Galilean. 'If their father had bequeathed to them a cow that was rented out to others [for half profit], or given on hire [at a fixed rate], or feeding in the meadow, and it gave birth to a firstling, he takes [in it] a double portion.' Since it was said that he takes [a double portion in the case of a cow that was] rented out or given on hire, though, [in both cases,] it is not standing in the domain of its owner, is there any need [to mention the case when] it feeds in the meadow?34 It is this that was [intended to be] taught: That one rented out or given on hire [is subject to] the same [law as] one that feeds in the meadow. As [in the case of the] one that feeds in the meadow, the appreciation [is such] as comes naturally, and they35 do not lose [the cost of its] food36
(1) Ibid. XLIII, 29.
(2) R. Hama's exposition.
(3) I.e., to make it public. R. Hiyya's remarks were intended to raise the interest of the students in what he was going to tell them.
(4) Supra 120a, Sotah, 12a.
(5) The person whose name was omitted from the detailed enumeration.
(6) From Canaan to Egypt.
(7) Num. XXVI, 59.
(8) Gen. XXX, 25.
(9) Why did Jacob say to Laban, 'send me away to my country' (ibid).
(10) Obad. I, 18.
(11) I Sam. XXX, 17. This shows that a descendant of Judah (David) defeated the descendants of Esau (Amalek, cf. Gen. XXXVI, 12). How, then, could it be said that Esau's seed would fall into the hands of Joseph's seed only?
(12) The Hagiographa.
(13) I Chron. XII, 20. The victory of David was accordingly due to the help he received from the men of Manasseh who descended from Joseph.
(14) Ibid. IV, 42f. This proves that Esau's seed fell also into the hands of the descendants of Simeon. How, then, could it be said that only Joseph's descendants could overcome Esau's seed?
(15) This quotation does not occur in our Bible text. The nearest approach is I Chron. V, 24, 'And these were the heads of their father's houses, Epher and Ishi'.
(16) The priests' due from people who offer sacrifices. V., Deut. XVIII, 3.
(17) Of the heirs.
(18) The firstborn.
(19) Since the appreciation was natural, it is regarded as having formed part in the original estate in their father's lifetime.
(20) The heirs.
(21) Since the appreciation of the estate was due to human effort, it cannot be regarded as having formed part of the original estate. V. Tosef. Bek. VI.
(22) Lit., 'they came into the hand'.
(23) The case of these priestly gifts is altogether different from that of the natural appreciation of an estate. In the latter case, the estate itself was in the possession of the deceased, and its natural appreciation may consequently be regarded as an integral part of the original estate. The priestly gifts , on the other hand, were never, directly or indirectly, in the possession of the deceased.
(24) Of the priestly gifts mentioned.
(25) מכירי כהונה, Makkire Kehunah. Lit., 'acquaintances of priesthood'. Friends of the deceased who were in the habit of giving him all their priestly gifts, which, consequently, become his as soon as the beast had been killed. [Klein S., regards the phrase as terminus technicus for the 'watches' (משמרות) of priests in attendance at the Temple service for one week at a time. He connects it with ממכריו in Deut. XVIII, 8, which is thus understood by the Talmud, Suk. 46a. V., MGWJ. 77, 185ff.]
(26) Of the heirs.
(27) Lit., 'lifted' 'separated'.
(28) Hence, the gifts are regarded as having been in the actual possession of the deceased, and the firstborn is, therefore, entitled to a double portion.
(29) Consecrated objects such, e.g., as sin, or guilt offerings, are devoted to the Lord, not to the priest; why' then, should the firstborn be entitled to a double portion in that which did not belong personally to his father?
(30) Objects, such as live beasts consecrated as peace offerings.
(31) Having been, accordingly, the property of the father, the firstborn son is entitled to the double portion.
(32) Lev. V, 21.
(33) Since Scripture speaks of a trespass against the Lord and of dealing falsely with one's neighbour, it must refer to consecrated objects of a minor degree, such as live peace offerings, a share of which (the flesh and skin) belongs to the owner, and a share is either given to the priest or burnt on the altar.
(34) Where it is entirely in the possession of the heirs.
(35) The heirs.
(36) Feeding in the meadow is free.
Talmud - Mas. Baba Bathra 124a
so [in the case of] one rented out or given on hire, the appreciation [must be] such as comes naturally and they do not lose thereby [the cost of its] food.1
In accordance with [whose view is the law2 quoted]? - It is [in accordance with that of] Rabbi. For it was taught: a firstborn son is not [entitled] to take a double portion in the appreciation of the estate, which accrued after the death of their father. Rabbi said: I say, A firstborn son does take a double portion in the [natural] appreciation of an estate which accrued after the death of their father,3 but not in the appreciation which the orphans produced after the death of their father. If they inherited a bond of indebtedness the firstborn takes a double portion [in the collected debt].4 If a bond of indebtedness [for a debt incurred by the father] was produced against them, the firstborn must pay a double portion [of the debt]. If, however, he said, 'I neither give, nor take [the double portion]',5 he is allowed [to do so].6 What is the reason [for the opinion] of the Rabbis?7 Scripture says, Giving him a double portion,8 the [All] merciful has, thus, called it a gift;9 as a gift [does not become his]10 until it comes into his possession,11 so the portion of the birthright [does not become his] until it comes into his [father's] possession.12 But Rabbi maintains, [since] Scripture says, a double portion,13 the portion of the birthright [is to be] compared to the ordinary portion; as the ordinary portion [is his] although it has not yet come into his [father's] possession,14 so [is] the portion of the birthright although it has not yet come into his possession. But [as to] the Rabbis also, surely it is written, a double portion? - That [expression indicates that the two portions] to be given to him are to adjoin one another.15 But [as to] Rabbi also, surely it is written, Giving him? - That [expression is to indicate] that if he said, 'I neither take, nor give [the double portions],'16 he is permitted to do so.
R. Papa said: [In the case where] a [young] palm-tree [was bequeathed] and it became stronger, [or a plot of] and and it produced alluvial soil, all17 agree that [the firstborn] takes [a double portion].18 The dispute only relates to [the case] where hafurah19 turned into [well developed] ears of corn, [or where] undeveloped dates turned into [fully developed] dates. [One] Master20 is of the opinion that this is regarded as natural appreciation,21 and the [other] Master[s]22 hold the opinion [that this is a case of complete] transformation.23
Rabbah b. Hana said in the name of R. Hiyya, 'He who acts24 in accordance with the opinion of Rabbi is acting correctly,25 [and] he who acts24 in accordance with the opinion of the Sages26 is acting correctly.'25 -
(1) I.e., when the renter or hirer provides the fodder, otherwise the firstborn would not take in the appreciation a double portion.
(2) That a firstborn son takes a double portion in the natural appreciation of a bequeathed estate.
(3) The law quoted is in agreement with this statement of Rabbi.
(4) Possession of the bond is regarded as possession of the debt itself; and the payment of the debt is natural appreciation.
(5) In any part of the estate, i.e., if he renounces his birthright.
(6) The lender cannot force him to pay a double share in the debt. V., Tosef. Bek. VI.
(7) Why do they deny the firstborn a double portion even in the case of natural appreciation?
(8) Deut. XXI, 17.
(9) Given by the father to the firstborn.
(10) The recipient's with the power to give it away.
(11) Lit., 'to his hand'.
(12) I.e., the father cannot claim it as his, entitling him to transmit it to the firstborn, until it actually comes into his possession.
(13) Ibid. The portion of the birthright and the ordinary portion were included in one expression.
(14) I.e., prospective property. v. supra.
(15) Lit., 'on one boundary' - both portions being treated as one.
(16) V. supra 124a.
(17) Rabbi and the Rabbis.
(18) Since no radical change had taken place in the tree.
(19) Corn in its earliest stage, used as fodder for cattle.
(21) Hence, the firstborn receives a double portion.
(22) The Rabbis.
(23) In nature and name, the original bequest having practically ceased to exist. Hence, the firstborn is not entitled to a double portion.
(24) Decides a law case.
(25) His decision is legally valid.
(26) The Rabbis.
Talmud - Mas. Baba Bathra 124b
[For] he1 was in doubt as to whether the halachah is in accordance [with the decision of] Rabbi [when it is in opposition to that] of his colleague,2 but not [when it is opposed to that] of his colleagues,3 or is the halachah in accordance [with] Rabbi [when in opposition to] his colleague and even [when he is opposed to] his colleagues.4
R. Nahman said in the name of Rab, 'It is forbidden to act in accordance with the decision of Rabbi,5 for he holds the opinion [that] the halachah is in accordance [with] Rabbi, [when in opposition to] his colleague, but not [when he is opposed to] his colleagues.' R. Nahman in his own name,6 however, said, 'It is permitted to act in accordance with the decision of Rabbi'; for he holds the opinion [that] the halachah is in accordance [with] Rabbi [when in opposition to] his colleague and even [when opposed to] his colleagues.
Raba said, 'It is forbidden to act in accordance with the decision of Rabbi, but if one did act [accordingly], his action is legally valid;'7 for he is of the opinion [that at the college] it was said [that they were only] inclined8 [in favour of the opinion of the Rabbis].
R. Nahman learned9 in the 'other books of the School of Rab':10 Of all that he hath,11 excludes the appreciation [of an estate] which the heirs have produced after the death of their father; but [in] the [natural] appreciation of the estate [that accrued] after the death of their father he [does] take [a double portion]. And who is [the author of this statement]? - It is Rabbi.
Rami b. Hama learned in the 'other books of the School of Rab':10 Of all that he hath,11 excludes12 the [natural] appreciation of an estate [that accrued] after the death of their father, and much less is he [entitled] to take [a double portion in] the appreciation which the heirs produced after the death of their father. And who is [the author of this statement]? - The Rabbis.
Rab Judah said in the name of Samuel: A firstborn son does not take a double portion in a loan.13 [According] to whom [was this statement required]?14 If it is suggested, [according] to the Rabbis, [it may be retorted] if the Rabbis maintain that an appreciation which accrues to his possession15 [the firstborn] takes no [double portion], is there any need [to state that he takes no double portion in] a loan?16 - But [the statement was required according] to Rabbi. Who, then, was the author of] what has been taught. 'If they inherited a bond of indebtedness, the firstborn takes a double portion both in the loan and in the interest'? Neither Rabbi nor the Rabbis!17 This statement18 may, indeed, be required [according] to [the view of] the Rabbis,19 [for] it might have been assumed [that, in the matter of] a loan, since he is in possession20 of the bond, [the debt] is regarded as collected, hence [the law] had to be stated.21
[A message] was sent from Palestine:22 a firstborn takes a double portion in a loan, but not in [its] interest.23 [According] to whom [is this law]?24 If it is suggested [that it is according] to the Rabbis, [it may be retorted:] If the Rabbis maintain that [in] an appreciation which accrues to his possession [the firstborn is] not to take [a double portion], is there any question as to [whether he takes a double portion in] a loan?25 - But [the statement is according] to Rabbi. [Does] not [the firstborn, however, according] to Rabbi [take a double portion] in the interest [also]? Surely it was taught: Rabbi said: A firstborn takes a double portion both in a loan and in [its] interest! - This is really [in accordance with] the Rabbis, but a loan [is regarded] as collected.26 R. Aha b. Rab said to Rabina: Amemar [once] happened to come to our place, and gave the following exposition: A firstborn takes a double portion in a loan but not in [its] interest. He said to him: The [scholars] of Nehardea follow their [own] view;27 for R. Nahman said:28 [If] land was collected [for the debt, the firstborn] has no [double portion],29 [if] money was collected he has [it],30 but Rabbah said: [If] money was collected he has no [double portion],31 [if] land was collected, he has.32
Abaye said to Rabbah: Following33 you there is a difficulty; following33 R. Nahman there is a difficulty. Following you there is [this] difficulty:
(1) R. Hiyya.
(2) Cf. 'Er. 46b; Pes. 27a; Keth. 21a and 51a.
(3) I.e., where the majority is against him. The law, here, since Rabbi is opposed by the Sages, must, consequently, be decided against him.
(4) Hence, the law must be decided according to Rabbi. As this point could not be determined, every judge is allowed to act either in accordance with the view of Rabbi or with that of the Sages.
(5) And here he is opposed by his colleagues, a majority.
(6) Lit., 'If his'.
(7) Lit., 'is done'.
(8) No definite decision on the view of the Rabbis has been arrived at at the college; only arguments in its favour were advanced.
(9) Or 'taught', v. next note.
(10) ספרי דבי רב Halachic expositions and comments on Numbers and Deuteronomy. Sifra debe Rab is another name for Torath Kohanim, תורת כהנים which is a similar work on Leviticus. [Friedmann, M., disputes there identifications as well as the authorship of Rab assigned to these Halachic Midrashim by Maimonides and others. Kaplan, J., The Redaction of the Talmud, 279, holds that Sifre debe Rab designates 'the Standard Book of Records of Rab's Academy' nad the 'other books of the School of Rab,' the smaller and more specialized collections containing among others contributions by R. Nahman and Rami b. Hama.]
(11) Deut. XXI, 17.
(12) The firstborn is not entitled to a double portion.
(13) Due to the father; even though the heirs hold a bond of indebtedness against the borrower.
(14) I.e., whose view has Samuel adopted?
(15) Such, e.g., as undeveloped dates, supra 124a, where the dates are in his possession. Rashb. preserves a better reading: 'If the Rabbis maintain that a natural appreciation,' likewise with reference to undeveloped dates.
(16) Where the money is not in his possession. Or, where the increase is not natural.
(17) Because, as has been assumed, even Rabbi agrees that the firstborns does not take a double portion in a loan.
(18) Of Samuel.
(19) While the statement about the inheritance of a bond of indebtedness agrees with the view of Rabbi.
(20) Lit., 'holds'.
(21) Lit., 'made us hear'.
(22) Lit., 'from there'.
(23) Though the interest is mentioned in the note.
(24) I.e., in accordance with whose view was it possible to enunciate such a law?
(25) Surely, he does not. How, then, could it be said that he does take a double portion?
(26) Hence the right of the firstborn to take a double portion.
(27) Amemar, who was of Nehardea, holds the same view as R. Nahman, who was also of Nehardea, that a debt is regarded as being in the possession of the creditor.
(28) This is the order adopted by Rashb.
(29) Because the bequest was money and not land.
(30) V. u. 1, supra.
(31) Since a loan is made to be spent, the money that is collected for the debt is not the original that was lent, but other money which was never in the creditor's possession.
(32) Lands are regarded as pledged to the creditor and, consequently, as being in his possession.
(33) Lit., 'according to'.
Talmud - Mas. Baba Bathra 125a
What is the reason1 [why he] does not [take a double portion if] money [was collected]? [Is it not] because their father did not bequeath that particular money? [In the case of] land also, their father, [surely], did not bequeath that land! Furthermore, you, O Master, have said, [that] the reason of the Palestinians is logical, for if the grandmother had sold [her estate] before [her death], her sale would have been valid.2 Following R. Nahman there is [this] difficulty: What is the reason1 why he does not [take a double portion when] land [was collected]? [Is it not] because their father did not bequeath that land? [In the case of] money also, their father did not bequeath that money! Furthermore, surely, R. Nahman said in the name of Rabbah b. Abbuha: [If] orphans collected [a plot of] land for their father's debt3 the creditor4 may re-collect it from them!5 - He replied to him: There is no difficulty according to me, nor is there any difficulty according to R. Nahman. We were stating the reason of the Palestinians,6 but we ourselves7 do not hold [this] opinion.8
What [was the story of the] grandmother? [Once] a certain [person] said to them:9
(1) Lit., 'what is the difference?'
(2) V. infra 125b. This shows that land, though regarded as pledged, is not considered to be in possession of the creditor since the debtor can dispose of it and meet his liability in another manner; how, then, could Rabbah state that the firstborn if land was collected, receives a double portion?
(3) That was owing to him.
(4) To whom their father owed money.
(5) Although they received that land after the death of their father, it is regarded as having itself been 'in the father's possession, since it had been obtained through the money (debt) bequeathed to them by their father. In the case of the birthright also, since the land was obtained through the debt that was bequeathed by their father, it should be regarded as having been in his possession, and the first-born should take a double portion; how, then, could R. Nahman say that if land was collected for a debt, the firstborn does not receive a double portion?
(6) Who hold that a firstborn takes a double portion in a loan, and this gave rise to the differences of opinion between Rabbah and R. Nahman.
(7) Lit., 'and to us'.
(8) But share the opinion of Rab and Samuel that the right of primogeniture does not apply to a loan and the whole question, whether the payment was made in money or land, does not arise.
(9) His executors.
Talmud - Mas. Baba Bathra 125b
'My estate [is bequeathed] to [my] grandmother, and after [her demise] to my heirs.'1 He had a married daughter [who] died during the lifetime of her husband and the lifetime of her grandmother. After the grandmother died, the husband came to claim [the estate].2 R. Huna said: 'To my heirs',3 implies, 'even to the heirs of my heirs';4 and R. Anan said: 'To my heirs', implies, 'but not to the heirs of my heirs'.
[A message] was sent from Palestine:5 The law is in accordance with [the statement] of R. Anan; but not because of his reason. 'The law is in accordance with [the statement] of R. Anan' [in] that the husband is not to be the heir. 'But not because of his reason', for, whereas R. Anan holds the opinion [that] even though his daughter had a son he would not be heir,6 [the law] is not [so]; for had his daughter had a son he would certainly have been heir.7 The reason why the husband is not heir is this: Because [the estate] was8 prospective [property],9 and the husband is not [entitled] to receive of prospective [property] as of [property which is already] in the possession [of his wife at the time of her death].
Does this10 imply that R. Huna11 holds the opinion that a husband [is entitled] to receive of the prospective [property of his wife] as of that which is [already] in [her] possession [at the time of her death] - R. Eleazar said: This subject12 began with the great and ended with the small.13 [R. Huna's reason is this:] Whosoever says, '[Another person shall be my heir] after you,'14 is [regarded] as one who said, '[That person shall be my heir] from now'.15
Rabbah said: The reason [given] by the Palestinians16 is logical. For had the grandmother sold [the estate] prior [to her demise] the sale would have been legally valid.17
R. Papa said: The law is that a husband does not receive of the 'prospective'18 [estate] of his wife as of that which is in her possession';18 and the firstborn son does not receive of a prospective [estate of his father] as of that which is in [his father's] 'possession'. The firstborn son, [furthermore,] does not receive a double portion in a loan [owing to his father], whether [the heirs] had collected [in payment] land or whether they had collected money;
(1) I.e., on the denise of the grandmother, the estate shall revert back to his own heirs (his own sons, daughters, etc.) and shall not be inherited by the woman's heirs (her sons etc.).
(2) Since his wife, if she had been alive, would have inherited that estate, he, as her husband and heir, claimed his right to that estate.
(3) The expression used by the testator.
(4) Hence the husband is entitled to the inheritance of the estate.
(5) Lit., 'from there'.
(6) Since he excludes the heirs of the heirs.
(7) The son of a daughter (in the absence of sons and their lineal descendants), is entitled to be heir to his grandfather and is, therefore, included in the expression 'my heirs'.
(8) When his wife died.
(9) At that time it was still in the possession of the grandmother.
(10) The statement that the reason why the husband was not granted the right of heirship in the estate of his wife's grandmother is because he is not entitled to inherit any 'prospective property' or his wife.
(11) Who granted the husband's claim.
(12) R. Huna's decision.
(13) R. Eleazar classes R. Huna (who gave the verdict) among the great, and himself (who explained it) among the small.
(14) As here, where the granddaughter has nominated heir after the grandmother.
(15) The granddaughter, in the case cited, consequently came into the possession of the estate during her lifetime, the grandmother only enjoying the right of usufruct. Hence, it was not 'prospective' property' that R. Huna had granted the husband.
(16) Who treated the estate as prospective property.
(17) This proves that the grandmother was nor only entitled to usufruct but also to the full possession of the estate. Had she sold it, the granddaughter would has e received nothing. Hence, as regards the granddaughter, the estate was only prospective, and her husband, therefore, was not entitled to claim it.
(18) The terms have been fully explained in the Gemara and notes supra.