048a - יש בכור פרק שמיני בכורות דף מח, ע"א

Mishnah

One whose wife had not given birth before, and she bore two males: he gives five sela’im to the kohen.^[1]

מתני' נותן ה' סלעים - For one of them is the bechor.

If one of them died within thirty days,^[2] the father is exempt.

האב פטור - For he can say, “The bechor is the one who died.” The same applies to the surviving son, that he is exempt; and it uses the expression “the father is exempt” because of the latter clause, which it wants to teach: the father died, etc.

If the father died and the sons are alive, R’ Meir says: If they gave before they divided [the estate], they have given; and if not, they are exempt.

פטורין - As the Gemara explains.

R’ Yehudah says: The property has become obligated.^[3]

נתחייבו - The father’s property became obligated to the kohen for him, as to a creditor, and they must pay between the two of them.

A male and a female: there is nothing here for the kohen.

אין כאן לכהן כלום - For he says to him, “The female came out first,” and the kohen has the weaker hand, for the one who seeks to take from his fellow bears the burden of proof.^[4]

Gemara

The father died – when?

If you say he died after thirty days,^[5] in such a case R’ Meir said that when they divided they are exempt?

But the property has become mortgaged to them!

גמ' הא אישתעבד נכסיה - For it is a full-fledged debt.

Rather, he died within thirty days.^[6] What is different when they divided – that [the kohen] goes to this one and he puts him off, goes to that one and he puts him off? When they did not divide, too, let him go to this one and he will put him off, and go to that one and he will put him off!

ומדחי ליה - And he says, “I am not the bechor; my brother is.”

כי לא חלקו נמי כו' - And one cannot say that he seizes the property on account of their father, for the father was not obligated at all; rather he seizes it on account of the sons. So why does it teach if they gave, etc., which implies that if they did not divide, they are obligated?

R’ Yirmeyah said: This says that two [men named] Yosef ben Shimon^[7] who were in one town and bought a field in partnership – a creditor collects it from them, for he says to him: If I hold [the debt] against you, I am taking your share; and if I hold it against your fellow, I am taking your fellow’s share.

שני יוסף בן שמעון - One man was producing a bond of debt against one of them, and each of them was putting him off, saying, “It is not I but my fellow”; and the two of them together bought one field: the creditor seizes half of it, for he says to him, etc. Here too, the kohen seizes five sela’im from the property that they hold together, and says to them likewise: If you are the bechor, I take from your portion; and if your brother is the bechor, I take from his portion; and between the two of you, come to terms.

Rava said: Now, a man’s property is his guarantor;^[8] is there anything that he cannot claim from [the debtor] himself, and yet can claim from the guarantor?

דלדידהו לא מצי תבע ליה - For each one puts him off.

But we learned: One who lends to his fellow through a guarantor may not collect from the guarantor,^[9] and we hold that [this means] he may not claim from the guarantor first!

לא יפרע וקיימא לן מאי לא יפרע דלא יתבע לערב תחלה - Until he has claimed from the borrower, and [the borrower] has nothing with which to pay.

Rather, Rava said: Actually, he died after thirty days; and if there is plenty of property, indeed [the kohen] takes [it],

ה"נ דשקיל - Even if they divided, for the property became mortgaged in the father’s lifetime; and although it is an oral loan,^[10] it is collected from the heirs if there is an inheritance equal to the debt.

and here, with what are we dealing?

Where there are only five sela’im.

And everyone holds the view of Rav Assi, for Rav Assi said: Brothers who divided [an estate] are half heirs and half buyers,^[11]

דרב אסי - As it appears in Bava Kamma, in the first perek (9a).

מחצה יורשין ומחצה לקוחות - For he is in doubt whether there is bereirah^[12] and they are heirs, or there is no bereirah and they are buyers; therefore, half heirs and half buyers.

and everyone [holds that] a debt written in the Torah …^[13]

מלוה הכתובה בתורה^[14] - [Rashi’s explanation continues at the top of the next amud.]

Tosfos

והא אישתעבדי להו נכסי - For at this point he holds that brothers who divided are heirs, and an oral loan is collected from heirs; alternatively, he holds that a debt written in the Torah is like one written in a document. But in the conclusion he says that this is what they disagree about.

דכולי עלמא אית להו דרב אסי כו' - This implies here that R’ Meir is in doubt whether there is bereirah or not, like Rav Assi. And it is difficult: R’ Meir does not hold of bereirah in the case of one who buys wine from the Kutim, in [perek] Merubah (Bava Kamma 69b) and in perek Kol HaGet (Gittin 25a). And as for Rava himself, who establishes them here according to Rav Assi, it is puzzling, for in perek Kol HaGet (ibid. 26a) he says that both R’ Yehudah and R’ Shimon hold of bereirah. One may distinguish: there is bereirah where one stipulates explicitly, such as two lugin that I am going to separate, and I hereby take you as wife on condition that father consents, and this is your get if I die. With this the contradiction between Shmuel and Shmuel is resolved: he does not hold of bereirah at the end of Beitzah (37b), regarding two who bought an animal in partnership; while in the case of Mi She’achazo (Gittin 75b), where Shmuel instituted [a provision] for the get of a dying man, he holds of bereirah, and the get takes effect when he dies, as it infers at the beginning of Kol HaGet.

דאמר רב אסי אחין שחלקו מחצה יורשין כו' - Rav Assi’s statement appears in the first perek of Bava Kamma (9a) and in Bava Basra, at the end of Beis Kor (107a), where they disagree about brothers who divided [an estate], and then a creditor came and seized the share of one of them. Rav said: The division is void, for they are heirs; and Shmuel said: He has waived, for they are buyers, and without a guarantee.^[15] And Rav Assi is in doubt: of the remaining property, (except that it is not) his share, which is a quarter of the property, he takes in land and the other half in money, because he is in doubt whether they are like heirs, and he takes it all in land, or like buyers with a guarantee, and [his brother] can pay him off with money. According to this explanation, the reading of Rabbeinu Chananel^[16] cannot stand, who reads in perek Beis Kor (ibid.) “three brothers.” Some explain that he takes half of the share due to him: of his share he takes a quarter in land and a quarter in money, and half of his share he loses. For if he is an heir he should take a full share, and if [a buyer] without a guarantee he should lose; so he takes half his share because of the doubt. And what he does take, we are also in doubt whether he takes it by right of inheritance, and should take it all in land, or as one who is like a buyer with a guarantee, and takes it in money; therefore he takes half in land, that is a quarter, and half in money. This explanation is difficult: now, if we had only to doubt whether [they are] like heirs or like buyers without a guarantee, he would take his share in land; and because there is room for a further doubt – that even if he is a buyer, perhaps he is a buyer with a guarantee – his position is weakened? On the contrary, we should then say that he takes half his share in land and the quarter in money! Furthermore, we establish our Mishnah here as where there are only five sela’im; and if Rav Assi considered them heirs only for a quarter, then even if there were ten sela’im they would be exempt, for the kohen could collect only the quarter in which they are like heirs, which is half of five. According to the first version that [Rashi] explained in the Kuntres^[17] in Bava Kamma (9a) – that he takes half his share in land or in money, because we are in doubt whether they are like heirs or like buyers without a guarantee – that version too is possible both with the reading “two brothers” and with the reading “three.” But it is difficult: from where does the Gemara know that Rav Assi is in doubt at all about their being heirs? Perhaps it is obvious that they are not heirs, and he is only in doubt whether they are like buyers with a guarantee or like buyers without a guarantee. Furthermore, it would not be fitting to teach “a quarter” twice, since it teaches “or … or.” The last version seems right, and one cannot read “three brothers” at all: why would it mention three? Had it mentioned five, that is the way of the Gemara everywhere, as in “five were claiming from him,” “five women whose children were mixed up,” “each one of five”; but three is not its way to mention, since in this two are the same as three. And if you say: since Rav Assi is in doubt whether they are like heirs or like buyers, let us say that the one who seeks to take from his fellow bears the burden of proof – for even according to Sumchos^[18] it is not reasonable to say here that they divide, in a doubt of this kind, where the Sages are in doubt about the ruling – one may answer that there are matters where, when the law is in doubt for the Sages, as here, they treated it as if it were certainly half this way and half that way. So we find in perek HaSocher Es Ha’umanin (Bava Metzia 83a), regarding those who were carrying [a barrel] for hire: let him pay half, as being close to negligence and close to accident – though whichever way, it is either entirely negligence or entirely accident, and if we were in doubt we should have said that the one who seeks to take from his fellow bears the burden of proof. And likewise in perek Mi Shemeis (Bava Basra 145a), where R’ Yose says: if she was betrothed with twenty, he gives him thirty halves, for he is in doubt whether betrothal gifts are recoverable or not, and he treats it as if certainly half recoverable and half not recoverable. And in perek Yesh Nochlin (ibid. 126a), regarding a bechor, where we say: and they disagree about a loan that is with him. According to this explanation, the case of the bathhouse in [perek] HaSho’el, at the end of the perek (Bava Metzia 102a), also works well, where it says: they divide the leap month – according to everyone, with no need to establish it according to Sumchos. And there are matters about which the Sages said: now that the halachah has not been stated either like this master or like that master, one who acted like this master acted [properly], and one who acted like that master acted [properly]. And there are matters about which the Sages said: shuda d’dayanei (it is left to the judges’ discretion), as there at the beginning of HaMocher Es HaBayis (Bava Basra 62b and there), where some say it this way and some say it that way: shuda d’dayanei.

ודכולי עלמא מלוה הכתובה בתורה לאו ככתובה בשטר דמיא - So it will be in the conclusion too, where we say they disagree about Rav Assi or about Rav Papa, which implies that if all of them held of Rav Assi and Rav Papa, they would be exempt by reason of [holding] five but not half of five. And it is difficult, for later in our perek (Bechoros 49b) it says that R’ Yehudah holds [a debt written in the Torah] is like one written in a document. It is further difficult: according to our conclusion, that they disagree about Rav Papa, R’ Yehudah does not hold of Rav Papa; evidently he holds that an oral loan is collected even from buyers. Does R’ Yehudah not hold of what we learned in Get Pashut (Bava Basra 175a): One who lends to his fellow with a document collects from mortgaged property; by word of mouth, he collects from free property? And the main point of Rav Papa’s statement was said only to teach that he collects from heirs, to exclude Rav and Shmuel, who say that an oral loan is collected neither from heirs nor from buyers; but as for its not being collected from buyers, that is no novelty at all, and is obvious throughout the Gemara. It seems one should explain according to the conclusion that it does not mean exactly like Rav Papa, but like an oral loan – like this case of pidyon haben, when it is written [in the Torah]. And in the first perek of Kiddushin (29b) the passage that follows here appears, and there we read: R’ Yehudah follows his reasoning, for he said a debt written in the Torah is like one written in a document, and that is the reasoning here. Alternatively, they do disagree exactly about Rav Papa, and Rav Papa himself must be speaking also of a debt written in the Torah. For in the first perek of Kiddushin (13b) Rav Papa says: The halachah is that an oral loan is collected from heirs, the lien being Biblical; and in perek Get Pashut (Bava Basra 176a) it explains the reason: so as not to lock the door before borrowers. So one must say that in Kiddushin he speaks of a debt written in the Torah, holding that it is collected from heirs and not from buyers; and that is the case we are dealing with here: R’ Yehudah does not hold of Rav Papa, and holds that it is collected from buyers.

מלוה הכתובה בתורה - That is specifically such as pidyon haben, erachin, damages and the like, in which one would not be obligated had the Torah not obligated him. But an ordinary oral loan – although it is written (Devarim 24:11): the man to whom you lend shall bring the pledge out to you – is not (Scripture) written so as to count as written in a document. And although it speaks of [a loan] by word of mouth, [the Torah] did not create the obligation by writing it in the Torah, since without that it is obvious that he must repay what [the lender] lent him.

Notes

1. 1. Pidyon haben: a woman’s first son, who “opens the womb” (peter rechem), must be redeemed from a kohen for five sela’im once he is thirty days old. When a first-time mother bears two sons, one of them is certainly the bechor, so five sela’im are owed.
2. 2. A child who dies within thirty days is not redeemed, for the obligation begins only at thirty days. Since the one who died may have been the bechor, the kohen cannot claim from the survivor on a doubt.
3. 3. A debt places a lien (shibbud) on the debtor’s property, so it can be collected from that property even after his death. R’ Yehudah holds that the redemption money is such a debt on the father’s estate.
4. 4. “The one who seeks to take money from his fellow bears the burden of proof” (hamotzi mechavero alav hara’ayah): in a case of doubt, money stays with whoever holds it.
5. 5. After thirty days the obligation of redemption already rested on the father in his lifetime, so it became a debt binding his property, which passes to his heirs with the lien on it.
6. 6. If the father died before the thirtieth day, the obligation never fell on him; it falls on the sons themselves, one of whom is the bechor, though no one knows which.
7. 7. Two men with the same name and the same father’s name. A bond against “Yosef ben Shimon” cannot be collected from either one alone, for each can claim that the borrower is the other.
8. 8. An arev (guarantor) takes on responsibility for another’s debt. Rava means that a man’s property is bound to his debt the way a guarantor is.
9. 9. A Mishnah in perek Get Pashut (Bava Basra 173b).
10. 10. An oral loan (milveh al peh) is a loan made without a document. It is collected from the borrower’s heirs, but not from people who bought land from him, since without a document the lien is not publicly known.
11. 11. Rav Assi’s statement appears in Bava Kamma (9a). It is in doubt whether each brother’s share came to him as inheritance, or whether he acquired it from his brother in exchange for his own part in the brother’s share.
12. 12. Bereirah (“retroactive clarification”): whether a later choice reveals what was so from the start. If there is bereirah, each brother’s portion was his inheritance from the outset; if not, he acquired half of it from his brother, like a buyer.
13. 13. A “debt written in the Torah” is an obligation the Torah itself imposes, such as pidyon haben. The sentence continues at the top of the next amud (Bechoros 48b): “is not like one written in a document.”
14. 14. Rashi’s explanation of these words is printed at the top of the next amud (Bechoros 48b).
15. 15. A buyer “with a guarantee” (be’achrayus) is one whose seller undertook to compensate him if the seller’s creditor seizes the land; a buyer “without a guarantee” bears the loss himself.
16. 16. Rabbeinu Chananel of Kairouan, one of the earliest commentators on the Talmud.
17. 17. “The Kuntres” is what the Tosafists call Rashi’s commentary.
18. 18. Sumchos holds that money whose ownership is in doubt is divided between the claimants, rather than left with its holder.