049a - יש בכור פרק שמיני בכורות דף מט, ע"א

With [one father] coming with a harsha’ah (power of attorney) [from the other].^[1]

בבא בהרשאה - The two fathers wrote a power of attorney, one to the other, and the holder of the power of attorney comes and claims from [the kohen]: Whichever way you look at it – if mine died, return mine to me; and if my fellow’s died, return his to me, for I hold a power of attorney.

But the Nehardeans say: We do not write an adrachta for movables!^[2]

אדרכתא - A power of attorney on movables: since they are not at hand, it looks like a falsehood – perhaps he holds nothing of this man’s at all – and the witnesses would be signing to a falsehood.

That applies where he denied [the debt]; but where he did not deny it, we do write [one].

היכא דכפריה - [Where] the borrower [denied] to the lender, the lender can no longer write a power of attorney on them, because it looks like a falsehood.

A male and a female: the kohen gets nothing here.^[3]

Rav Huna taught: Two males and a female: the kohen gets nothing here.^[4]

תני רב הונא - Concerning two women of two men who had not given birth before, and who bore two males and a female in hiding: the kohen gets nothing here. And even though one of them is a bechor whichever way you look at it – for if one woman bore the two males, one of them is a bechor, and if she bore a male and a female, her fellow turns out to have borne a male alone, and he is a bechor – even so the son is not obligated to redeem himself, for he says to [the kohen]: Perhaps I am not the bechor, but my fellow is.

And our Tanna – since it is found only with two men, and with one man and two wives it is not found – did not teach it.^[5]

באיש אחד ושתי נשים לא משכחת לה - For since there is one [certain] bechor, he gives five sela’im to the kohen. That is why he did not teach it: for all the cases he taught here, [saying] “the kohen gets nothing here,” are the same whether for one man and his two wives or for two wives of two men.

Mishnah

If the son died within thirty days,^[6] even though [the father] gave [the money] to the kohen, he must return [it].

מתני' מת הבן בתוך ל' - This refers also to the ordinary certain firstborns.

יחזיר - For he was a nefel, and one is not obligated in redemption until after thirty [days].

After thirty days, even though he did not give, he must give.

If he died on the thirtieth day, it is like the day before it.

כיום שלפניו - Even if he gave, he must return it to him.

Rabbi Akiva says: If he gave, he does not take [it back]; and if he did not give, he does not give.^[7]

Gemara

What is the reason of the Rabbis?

They derive (Bamidbar 18) “month” (Bamidbar 3) “month” from the wilderness:^[8] just as there [it says] “and upward,” so here too, and upward.

גמ' ממדבר - It is written here (Bamidbar 18:15–16) And those to be redeemed, from a month old shall you redeem, and it is written in the wilderness (ibid. 3) Count every firstborn male … from a month old and upward.

ומעלה - This implies after thirty [days].

And Rabbi Akiva is in doubt: since it was necessary to write “and upward” regarding erchin^[9] and they did not derive it from the wilderness, they are two verses that come as one,

מספקא ליה - Whether we derive from there. For since [the Torah] needed [to write] “and upward” in erchin – If from sixty years and upward etc. – and [the Gemara] derives in Maseches Arachin (18a) “year,” “year” by a gezeirah shavah, that just as the sixtieth year is like [the years] below it, to be stringent, so too the fifth year and the twentieth year are like below, even though that is lenient; and the same applies to [a child] a month old, that the thirtieth day is like below, even though that is lenient – and it did not derive “month” “month” from the wilderness, that he should not be valued until after thirty [days].

הוו דערכין ודמדבר סיני שני כתובין הבאין כאחד ואין מלמדין - regarding pidyon haben. [That is, the verses] of erchin and of the wilderness of Sinai are two verses that come as one, and they do not teach [to pidyon haben].

And any two verses that come as one do not teach.^[10]

Or perhaps: when they do not teach, [that is] to elsewhere; but to their own [subject], they do teach. And because of this, he is in doubt about it.^[11]

או דלמא כי אמר אין מלמדין - Two verses – that applies to elsewhere, which does not speak of a bechor or of erchin, as if [the Torah] had written “month” about some other matter.

אבל לגופייהו - Such as the firstborns of [later] generations from the firstborns of the wilderness, for both of them speak of a bechor – they do teach. And since we are in doubt, he says: If he gave, he does not take [it back]; and if he did not give, he does not give.

Rav Ashi said: All agree regarding mourning that the thirtieth day is like the day before it.^[12]

לענין אבילות - If a child died within thirty [days], mourning does not fall upon his father, for one may say he was a nefel.

And Shmuel said: The halachah follows the words of the one who is lenient regarding mourning.

Mishnah

If the father died within thirty [days], [the son] is presumed not to have been redeemed, until he brings proof that he was redeemed.^[13]

מתני' שלא נפדה - For a person does not usually redeem within thirty [days]; [so he is presumed unredeemed] until he brings proof.

After thirty days, he is presumed to have been redeemed, until they tell him that he was not redeemed.^[14]

לאחר שלשים בחזקת שנפדה - For the kohen would be extracting from his fellow, and his position is weakened.

עד שיאמרו לו - To the son, that his father commanded at the time of his death that he had not been redeemed. And a statement suffices, without full testimony, for this presumption by which we presume him redeemed is not a strong presumption, since most people do not pay their debt right away. And here one cannot say until he brings proof, for here the son can say to the kohen: Father gave it to another kohen.

[If] he [must] be redeemed and his son [must] be redeemed, he comes before his son.^[15]

Rabbi Yehudah says: His son comes before him, for [the mitzvah of redeeming] him is upon his father, and the mitzvah of his son is upon him.

שמצותו על אביו - The mitzvah of redeeming this father was upon his own father who died, and the mitzvah of his son is upon him.

Gemara

It was stated: One who redeems his son within thirty days – Rav said: His son is redeemed; and Shmuel said: His son is not redeemed.

All agree [that if he said] “from now,” his son is not redeemed; [if he said] after thirty days, and the coins are [still] in existence, his son is certainly redeemed.^[16]

גמ' דכ"ע אי אמר ליה מעכשיו יהא בנו פדוי לאו פדיון הוא - but merely a gift, for within thirty [days] redemption does not apply. And if he said within thirty: Here are the coins for you, and after thirty let the redemption of my son take effect, and the coins are in the kohen’s hand, in existence, after thirty – he is certainly redeemed, as though he had given them to him now.

Where they disagree is after thirty days, when the coins were used up.

נתעכלו - That they are no longer in existence.

Rav said: His son is redeemed, just as with the betrothal of a woman:^[17] there, even though the coins were used up, is it not a [valid] betrothal …^[18]

אקידושי אשה - For if he gives her something now and says to her, “Be betrothed after thirty days,” she is betrothed, as we say in Maseches Kiddushin (59a).

Tosfos

ה"מ היכא דכפריה - It is difficult: according to the first version in [Perek] Merubah (Bava Kamma 70a), which does not distinguish between where he denied and where he did not deny, what is there to say? And similarly one can ask from the Mishnah in Perek Shevuas HaEdus (Shevuos 33b), concerning “So-and-so is a kohen, so-and-so is a levi,” where [the Gemara] infers: but [if they said] So-and-so has a maneh in the hand of so-and-so, they are liable – yet did you not say: until he hears it from the mouth of the claimant? And it answers: where he came with a power of attorney; and it asks: But the Nehardeans say etc. That applies where he denied etc. However, that one can be established as dealing with a deposit, according to the first version of the Nehardeans: since one can consecrate a deposit, as is proven in Perek HaMocher es HaSefinah (Bava Basra 88a) concerning the one who brought pumpkins to the river bank, so too he can grant a power of attorney [over it], for it is one reason, as is proven [there]. And one can answer our sugya [as dealing with land], and according to [Rebbi], who holds later in our chapter (Bechoros 51a) that one may redeem with land just as one redeems with movables: for on land we do write an adrachta, and only on movables do we not write one, since they are not in his possession. Alternatively, it can be established according to Rabbi Nasan, for according to Rabbi Nasan he can extract from him if his fellow owes [him] and has nothing to repay with. Alternatively, it can be established where one gave to his fellow in ma’amad sheloshtan.^[19] However, this requires study: perhaps where he cannot extract from him in beis din, the Rabbis did not institute ma’amad sheloshtan, just as they did not institute ma’amad sheloshtan for a kesubah, because it was not given to be collected during [the husband’s] lifetime, as I explained in HaChovel (Bava Kamma 89a). And one can further answer: perhaps if both of them are present before us and are commanded to give to the other, he must return [the money]; and it was necessary to establish it as coming with a power of attorney only so that one alone can extract from him by himself.

אבל בדלא כפריה כתבינן - As for what is customary now, to write a power of attorney even where he denied: Rabbeinu Tam says that the reason the Nehardeans do not write one is that it looks like a falsehood, as we say in Merubah (Bava Kamma 70a); and in Kesubos (85a) it is proven that we are not concerned about something looking like a falsehood. And in Merubah [ibid., s.v. amitaltelin] I elaborated.

מת בנו בתוך שלשים יום כו' יחזיר לו ה' סלעים - The Kuntres (Rashi) explains: because he is a nefel. But he explained so needlessly, for even if we know of him that his months were complete, the Torah made it depend on [his being] a month old.

לאחר שלשים אע"פ שלא נתן יתן - At the end of Pesachim (121b) we say that the father of the son recites two blessings. And there is a doubt: since [the child] died, does he recite Shehecheyanu, since he merits to fulfil the mitzvah? And one should not wonder that we do not recite Shehecheyanu over every single bris milah as over every pidyon haben, for the mitzvah of pidyon haben is different, since it is not common.

מת ביום שלשים כיום שלפניו ר' עקיבא אומר כו' - At the beginning of HaCholetz (Yevamos 36b) we say there: It was taught: Rabban Shimon ben Gamliel says: Any [child] that lived thirty days among people is not a nefel – implying that if it did not live [that long], it is a doubt. And it was stated: If [the child] died within thirty days, and she stood and was betrothed – if she is a yisrael’s wife, she performs chalitzah. And in most texts, at the end of Perek Rabbi Eliezer D’Milah (Shabbos 136a), we read “died on the thirtieth day,” and so the Ri reads; and Rabbeinu Chananel reads so, and it seems that he reads “within thirty”: for since the Rabbis say here that the thirtieth day is like the day before it, and Rabbeinu Chananel makes it a doubt, and the Rabbis and Rabban Shimon ben Gamliel disagree on the thirtieth day too – what difference is there between the thirtieth day and within thirty days? The She’iltos too reads “within thirty.” However, in the Halachos Gedolos it is written that on the thirtieth day, even if it yawned and died,^[20] it is not a nefel according to the Rabbis; and it is only within thirty that we say in Maseches Shabbos [that if] it yawned and died, all agree it is dead [i.e. was a nefel]. This implies that he reads “on the thirtieth day” and explains “died” literally, [that is] yawned and died; and he counts [a child that] yawned and died on the thirtieth day, since it lived so long, like one that fell from the roof within thirty. And one can further uphold this reading: [where] it fell from the roof or a lion ate it on the thirtieth day specifically, it is then that we rely on the Rabbis, and perhaps even regarding mourning, that it is [considered] already viable.

כיום שלפניו - And if you ask: at the beginning of HaCholetz (Yevamos 37b) it implies that it is obvious to us from the Torah that even within thirty [the child] is alive [viable], for it says: If he died within thirty, and she stood and was betrothed – if she is a kohen’s wife, she does not perform chalitzah. One can answer that there it is where he fell from the roof or a lion ate him, according to the Rabbis who disagree with Rabban Shimon ben Gamliel at the end of Rabbi Eliezer D’Milah; but here it is where he yawned and died, where all agree he is dead. However, even so, [if] here too it deals with one who fell from the roof, as there, there is no concern; for so too we rule at the end of [Perek] Im Lo Hevi like Rabban Shimon ben Gamliel regarding mourning, to be lenient, even though for a kohen’s wife, where it is not possible, we rely on the Rabbis and she is permitted without chalitzah. And if you ask: here we are so lenient regarding mourning, even with one whom we regard as certainly viable where it is not possible [to be stringent], such as for a kohen’s wife; yet in Maseches Semachos, chapter 4 (halachah 2), it is taught: Doubtful cases – one is an onen over them and mourns for them! One can answer that there it is a doubt whether [the child] is a nine-month child of the first [husband] or a seven-month child of the last, for it is a disgrace that neither this one nor that one should mourn, and he is certainly the son of one of them.

Notes

1. 1. This line completes Shmuel’s answer, begun at the end of the previous amud (Bechoros 48b): why, when both fathers gave to one kohen, can he not put off each father in turn? Because one father came with a power of attorney from the other, so he can claim whichever five sela’im must be returned.
2. 2. An adrachta here means a harsha’ah, a power of attorney letting the holder sue in the owner’s name. The Nehardeans hold that it is not written for movables, since they are not in the owner’s hands and such a writ looks like a falsehood (Rashi).
3. 3. The Gemara quotes the closing clause of the Mishnah (Bechoros 48b): two women of two different men, one who had given birth before and one who had not, bore a male and a female. The kohen gets nothing, since the male may be the child of the woman who had already given birth, and so not a bechor.
4. 4. Rav Huna’s case, as Rashi explains it: two women of two men, neither of whom had given birth before, bore two males and a female, unseen. One of the males is surely a bechor, yet neither father pays, since each can say the female was his; and neither son must redeem himself, since each can say the bechor is the other.
5. 5. With one man and two wives, two males and a female always include a certain bechor of his, so he pays five sela’im. The Mishnah’s “the kohen gets nothing” cases all hold for one man and for two men alike, so Rav Huna’s case, true only for two men, was left out.
6. 6. Pidyon haben: a firstborn son is redeemed from a kohen for five sela’im, but the obligation begins only after thirty days, since the verse says “from a month old shall you redeem” (Bamidbar 18:16). Before then the child is also not yet established as viable; one who is not is called a nefel.
7. 7. As the Gemara explains, Rabbi Akiva is unsure whether the thirtieth day counts with the days before it or after it. So the money stays where it is: whoever wants to take it from the other must bring proof.
8. 8. A gezeirah shavah learns one verse from another through a word they share. Here “month” in the redemption verse (Bamidbar 18:16) is learnt from “month” in the census of the firstborns in the wilderness (Bamidbar 3:40), which says “from a month old and upward”: only after thirty full days.
9. 9. Erchin (Vayikra 27): one who pledges the “value” of a person pays a fixed sum set by age, and the youngest bracket begins at a month old. Since the Torah wrote “and upward” there as well, rather than leave it to be learnt from the wilderness, the law is written in two places.
10. 10. A rule of derivation: when the Torah states the same law in two places, the repetition shows it applies only there, for otherwise one verse would have been enough to learn the rest from. So nothing else is derived from them.
11. 11. That is: perhaps the rule bars only learning to an unrelated matter, but within the same subject – here, the firstborns of later generations from the firstborns of the wilderness – the verses do teach (Rashi). Since Rabbi Akiva cannot decide, he leaves the money with whoever holds it.
12. 12. A baby who dies within thirty days is not mourned, since it may have been a nefel. Rav Ashi says that for mourning even Rabbi Akiva agrees the thirtieth day is like the days before it, and Shmuel adds that in mourning we follow the lenient view.
13. 13. If the father died within the thirty days, the son is presumed unredeemed, because people do not redeem before the thirty days are over (Rashi). He must redeem himself unless there is proof that he was redeemed.
14. 14. After thirty days the kohen is the one who would be taking money, so the burden falls on him. Even so, Rashi says that a plain statement that the father had not redeemed him, without formal testimony, is enough to obligate the son.
15. 15. The case: a man whose own father never redeemed him now has a firstborn son, and has only five sela’im. The Tanna Kamma says he redeems himself first; Rabbi Yehudah says his son comes first, since his own redemption was his father’s mitzvah, while his son’s is his own.
16. 16. If the father said the redemption should take effect now, within the thirty days, it is no redemption but merely a gift. If he said it should take effect after thirty days, and the coins are still with the kohen then, all agree the son is redeemed (Rashi).
17. 17. A man who gives a woman something now and says, “Be betrothed to me after thirty days,” betroths her after thirty days, even if what he gave is used up in the meantime (Kiddushin 59a).
18. 18. The sentence continues on the next amud (Bechoros 49b): “here too it is no different.”
19. 19. Ma’amad sheloshtan: a debt passed to a third person in the presence of all three – the creditor, the debtor and the new holder. By Rabbinic enactment it takes effect by speech alone, without a deed, so the new holder can collect directly.
20. 20. “Yawned and died” is a death with no outside cause, which suggests the child was never viable. It is set against a child that fell from a roof or was killed by a lion, whose death says nothing about its viability.