048b - יש בכור פרק שמיני בכורות דף מח, ע"ב

[…] such as pidyon haben, the five sela'im that the Torah granted to the kohen.^[1]

[… and all agree that a debt written in the Torah] is not like one written in a document;^[2] and all hold like Rav Pappa, for Rav Pappa said: An oral loan is collected from the heirs, but is not collected from the buyers.^[3]

And here they disagree over "five and not half of five": Rabbi Meir holds five and not half of five,^[4] and Rabbi Yehudah holds five and even half of five.

ולא חצי חמש - therefore they are exempt: since they divided, half of it has the status of buyers, and only two and a half sela'im of inheritance remain; and from the buyers' half he takes nothing, for an oral loan is not collected from buyers.

ואפילו חצי חמש - and he takes that half which is inheritance.

If so, [why does] Rabbi Yehudah say "the property became liable"? He should have said "the man became liable"!

אי הכי - that according to Rabbi Yehudah he takes [only] half – [would he then say] "the property became liable"? This is asked in astonishment.

חייב גברא מיבעי ליה - this is our reading, and we do not read "נתחייב". That is, this is how he should have taught: "Rabbi Yehudah says: they are liable" – that they are not entirely exempt, as we said, but are at least liable for half of five. And it is not fitting to teach "the property became liable" (that he holds), since he died after thirty [days], yet because of the division that they made, becoming buyers, the kohen lost; according to Rabbi Yehudah himself, of what the property became liable for, he lost half.

Furthermore, it was taught: Rabbi Yehudah says: Brothers who divided [an estate] – if there are ten zuz^[5] for this one and ten zuz for that one, they are liable; and if not, they are exempt.

האחים שחלקו - and both of them are doubtful firstborns.

עשרה זוז לזה ועשרה זוז לזה - that is, two and a half sela'im.

What is "ten zuz for this one and ten zuz for that one"?^[6]

If you say [ten zuz counting] both what is inheritance and what is purchase, and [he holds] five and even half of five –

אי לימא בין חלק הירושה בין חלק הלקוחות - and when it teaches "they are liable", it means half of five; for you said that all hold like Rav Asi and Rav Pappa, and we learn from this [that he holds] five and even half of five.

if so, why specifically ten? Even less than ten as well!

אפילו בציר מעשרה - even eight, so that only two sela'im reach the kohen – he should take them; for since the kohen takes less than five, he takes whatever falls to his lot, since when we say "half of five", the same applies to include [a fraction of] five, such as a third of five. So why does it teach "and if not, they are exempt"?

Rather, obviously [it means] ten zuz of inheritance for this one and ten zuz of inheritance for that one; evidently he holds five and not half of five!

אלא פשיטא - (and specifically) ten zuz of inheritance for each one, apart from the buyers' half, so that there are five sela'im of inheritance.

Rather, all agree [that it is] five and not half of five, and here they disagree over [the rulings of] Rav Asi and Rav Pappa.^[7]

והכא - in our Mishnah they disagree over [the ruling of] Rav Asi or of Rav Pappa. Rabbi Meir holds like Rav Asi and Rav Pappa: since in all there are only five, he takes nothing, for [it is] five and not half of five. And Rabbi Yehudah holds like Rav Asi, that half is purchase, but does not hold like Rav Pappa; rather he holds that an oral loan is collected from buyers, and he takes all of it. Alternatively, he does not hold like Rav Asi, but all of it is inheritance, and he takes all of it. And now that he holds so, we explain the beraisa: if there are ten zuz for this one and ten zuz for that one, in all, they are liable to give from all the property; and if not – if in all there is not five – they are exempt, for [it is] five and not half of five.

And some teach it on the latter clause: "the property became liable."^[8]

איכא דמתני לה לכולה הך שמעתא אסיפא - of our Mishnah, [on] the statement of Rabbi Yehudah.

When did the father die?

If you say he died after thirty [days],^[9] does it follow that Rabbi Meir holds that when they divided they are exempt? Why, the property was already mortgaged for it!

Rather, [he died] within thirty [days]; when they divided, why does Rabbi Yehudah hold them liable? Let [the kohen] go to this one – and he will push him off; and to that one – and he will push him off!^[10]

Rabbi Yirmiyah said: This says that [if there were] two [men named] Yosef ben Shimon who lived in one town,^[11] and one of them bought a field from the other, a creditor collects from him; for he says to him: "If my claim is against you, I am taking your portion; and if my claim is against your fellow, [this field] was mortgaged to me before [it became] yours."

ולקח אחד מהם שדה מחבירו - here too, since we hold that brothers who divided are buyers, for there is no bereirah – that is why Rabbi Yehudah holds them liable.

Rava said: Consider – a person's property is his guarantor;^[12] and the whole of it is as in the first version.

כלישנא קמא - rather, they disagree over [the rulings of] Rav Asi and Rav Pappa.

MISHNAH

Two wives [of one man] who had not given birth before, and they gave birth to two males – he gives ten sela'im to the kohen.^[13]

מתני' שתי נשים - of one [man].

וילדו ב' זכרים - in hiding, so that they became mixed up.

If one of them died within thirty days:^[14] if he gave to one kohen, [the kohen] returns five sela'im to him;

אם לכהן אחד נתן - the father, the redemption of both – he returns five sela'im to him, since [the child] died within thirty [days], and it became clear that he was a nefel, and [the kohen] took it improperly.

and if he gave to two kohanim, he cannot recover it from them.

אין יכול להוציא מידם - for each one pushes him off and says: "I am holding them for the redemption of the living one."

A male and a female, or two males and a female – he gives five sela'im to the kohen.

או שני זכרים ונקבה - [that] his wives gave birth in hiding: he gives five sela'im to the kohen, for either way one is a firstborn. If one [wife] bore two males, the first is a firstborn; and if one bore a male and a female, it turns out that her fellow bore a male alone, and he is a firstborn; and the one born with the female is exempt, for perhaps the female came out first, and the one who seeks to extract from his fellow bears the burden of proof.

Two females and a male, or two males and two females – the kohen has nothing here.

אין כאן לכהן כלום - for one can say that the females came out first, and there is no firstborn here.

One [wife] had given birth before and one had not, and they gave birth to two males – he gives five sela'im to the kohen.

If one of them died within thirty days, the father is exempt.

האב פטור - for he can say: the son of the one giving birth for the first time is the one who died.

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

נתנו עד שלא חלקו כו' - like the law of that [case] above, because of [the rulings of] Rav Asi and Rav Pappa.

Rabbi Yehudah says: The property became liable.

A male and a female – the kohen has nothing.

זכר ונקבה - one can say that the one who had not given birth before bore the female, and there is no firstborn here.

Two wives of two men, who had not given birth before, and they gave birth to two males – this one gives five sela'im to the kohen, and that one gives five sela'im.

If one of them died within thirty [days]: if they gave to one kohen, he returns five sela'im to them;

מת אחד מהם - of the children: he returns five sela'im to them, and the two fathers divide [them].

if they gave to two kohanim, they cannot recover it from them.

ואין יכולין להוציא - for each one says: "I am holding them for the living one, for the one for whom he gave to me did not die"; and whoever seeks to extract from his fellow has the lower hand.

A male and a female – the fathers are exempt, and the son is obligated to redeem himself.^[15]

האבות פטורין - for each one says to the kohen: "The female is mine."

והבן חייב לפדות את עצמו - for in any case he is a firstborn.

Two females and a male, or two females and two males – the kohen has nothing here.

שתי נקבות וזכר - one can say that one bore a female, and the other a male and a female, and the female came out first; therefore the kohen has nothing here, for one can say that the one giving birth for the first time bore the female. Until here; and likewise two males and two females.

One had given birth before and one had not, [wives] of two men, and they gave birth to two males – the one whose wife had not given birth before gives five sela'im to the kohen.

A male and a female – the kohen has nothing here.

GEMARA

What is different [with] two kohanim, that he goes to this one and he pushes him off, and goes to that one and he pushes him off?^[16]

With one kohen too, let [each father] go to him, and he will push him off; and let [the other] go to him, and he will push him off!

גמ' כהן אחד נמי - and he took from two fathers: when this father goes to him, let the kohen push him off and say: "Not yours died, but your fellow's, and you are not my litigant."

Shmuel said:^[17]

Tosfos

דרבי מאיר סבר חמש - And this is not like "five oxen", where we conclude (Bava Kamma 71b)^[18] "even five half-oxen the Torah said", since that is payment, and he must pay what he owes. But here the Torah placed upon him the mitzvah of five sela'im, and it is not fulfilled with less than five. And although he can pay ten kohanim one after another, that is not comparable, [for] here he is obligated only for half of five.

ואם לשני כהנים נתן אין יכול להוציא מידם - And if you ask: since, had he not given, he would not be required to give, now too that he gave, let it be like [a case where] the kohen seized [it],^[19] where it is taken from him, as stated in Perek Shenayim Ochazin (Bava Metzia 6b)? Here it is easier, for he does not know from whom to extract; but below it is more difficult, regarding [a child] who died on the thirtieth day, where Rabbi Akiva says: "If he gave, he shall not take back; and if he did not give, he need not give" – for since, if he did not give, he need not give, now too that he gave, let it be like the kohen seized it. One can answer: since at the outset he gave it to him as a priestly gift, even though afterwards it became clear that had [the kohen] not taken it he would not have been entitled to take it because of the doubt, we do not say that it is taken from him. And likewise that [case] of one who came in the middle of the month, at the end of [Perek] HaSho'el (Bava Metzia 102b), where although at the beginning of the month all of it belongs to the landlord, we do not compare it to a kohen who seized.

אם נתנו עד שלא חלקו כו' - Some explanation of necessity is needed: why does it teach the dispute of Rabbi Meir and Rabbi Yehudah in both [cases]?

Notes

1. 1. This is the end of Rashi s.v. מלוה הכתובה בתורה, which begins on the previous amud (Bechoros 48a). A "debt written in the Torah" is one the Torah itself imposes, such as the five sela'im of pidyon haben.
2. 2. The sentence begins on the previous amud (Bechoros 48a): all agree that the debt of pidyon haben, a debt written in the Torah, is not treated like a loan recorded in a document, but like an oral loan.
3. 3. An oral loan is one made without a document. It has no publicity, so it cannot be collected from property the debtor sold. According to Rav Asi (48a), brothers who divided an estate are half heirs and half buyers, since it is doubtful whether there is bereirah (retroactive clarification that each share was always his).
4. 4. Rabbi Meir holds that the mitzvah of redemption is a full five sela'im; if only half can be collected, nothing is collected. Rabbi Yehudah holds that even half of five is collected.
5. 5. A sela is four zuz. Ten zuz are two and a half sela'im, half of the redemption (Rashi).
6. 6. Each brother received ten zuz in the division. The question is whether the whole share is counted, or only its inherited part, since according to Rav Asi half of each share counts as purchased.
7. 7. Rabbi Meir holds like both Rav Asi and Rav Pappa, so the kohen could collect only half of five, and collects nothing. Rabbi Yehudah disputes one of them, and collects everything (Rashi).
8. 8. Rabbi Yehudah's words in our Mishnah: the obligation of redemption rests on the father's property, so it is collected from it even after the brothers divided it.
9. 9. The obligation of pidyon haben takes effect when the child is thirty days old. If the father died after that, he was already obligated, and his property was mortgaged for the debt.
10. 10. After the division, each brother can push the kohen off: "Perhaps my brother is the firstborn; go to him." The one who seeks to extract money from another bears the burden of proof.
11. 11. Two men with the same name, and a loan document is issued against "Yosef ben Shimon" without its being known which of them is meant. If one bought a field from the other, the creditor collects from it either way.
12. 12. Rava rejects the second version: a person's property stands as guarantor for his obligations. He therefore explains the dispute as in the first version, over the rulings of Rav Asi and Rav Pappa (Rashi).
13. 13. Pidyon haben: a son who is the first to open his mother's womb is redeemed by his father from a kohen for five sela'im. Here the babies were mixed up (Rashi), and both are firstborns.
14. 14. A baby who dies within thirty days is shown in retrospect to have been a nefel (not viable), and there is no obligation to redeem him (Rashi).
15. 15. A firstborn whose father did not redeem him must redeem himself when he grows up.
16. 16. The Mishnah ruled for the wives of two men: if they gave to one kohen, he returns five sela'im; if to two kohanim, the fathers cannot recover, for each kohen pushes off the father who claims from him.
17. 17. Continued on the next amud (Bechoros 49a).
18. 18. One who steals an ox and slaughters or sells it pays five oxen (Shemos 21:37). In Bava Kamma (71b) it is concluded that he may pay even five half-oxen, since this is a payment.
19. 19. A kohen who seized money that is only doubtfully owed to him must return it (Bava Metzia 6b).