052b - יש בכור פרק שמיני בכורות דף נב, ע"ב

To include improvement that comes by itself:^[1] grain that was fodder and became ears, date-blossoms that became dates.

שבחא דממילא - In which his brothers did not toil.

כגון חפורה והוו שובלי - That the grain was fodder at the time of his death, and now it has become ears.

או שלפופי והוו תמרי - Blossoms, and now they have become large dates. And it teaches us that even in this improvement the firstborn takes only like one of the brothers: we assess what they were worth when the father died, and in that value he takes a double portion. For had [we learned only] from the first clause, I would have said: the firstborn does not take a double portion in improvement – that applies to improvement the brothers toiled over, such as fertilizing fields, hoeing and digging.

Nor in what is due as in what is held:^[2] to include the property of [their] father’s father.

נכסי דאבי אבא - If their father’s father was alive at the time of their father’s death, and the property was due to fall to them when he would die – even though it will certainly fall to them, and even if he has [only] one son, these [grandsons] take their father’s share – one might have thought it is like held [property]; so the latter clause teaches us. For [had we learned only] from the first clause, I would have said: the “due” property of which the first clause teaches that the firstborn does not take [a double portion] in it is, for example, where the property of their father’s brother fell to them, who had sons at the time of their father’s death, and his sons died and afterwards he died; for that property was not due to them at the time of their father’s death except doubtfully.

Mishnah

And these do not return in Yovel:^[3] the firstborn’s portion,^[4] one who inherits his wife,^[5] one who performs yibum with his brother’s wife,^[6] and a gift – the words of Rabbi Meir.

מתני' והמייבם את אשת אחיו - And took his brother’s share: it is a complete inheritance, and he does not return it in Yovel.

And the Sages say: A gift is like a sale.

מתנה כמכר - And it goes out in Yovel.

Rabbi Elazar says: They all return in Yovel.

Rabbi Yochanan ben Berokah says: One who inherits his wife must return [the land] to the members of the family, and deduct the money from them.

היורש את אשתו - Must return lands to the members of her family for money, and deduct the money for them; and the Gemara explains it.

Gemara

What is Rabbi Meir’s reason?

It is a sale that the Merciful One said should return in Yovel; a gift or an inheritance – not.

And of these, [the cases] of inheritance are inheritance, and [the case] of a gift is a gift.

The firstborn – to give him a double portion (Devarim 21:17) – the Merciful One called it a gift.^[7]

And one who inherits his wife:^[8] the husband’s inheritance is from the Torah.

גמ' ירושת הבעל דאורייתא - “To his kinsman who is near to him from his family, and he shall inherit it” (Bamidbar 27:11) – from here [we learn] that the husband inherits his wife, in [Perek] Yesh Nochlin (Bava Basra 111b).

And one who performs yibum with his brother’s wife:^[9] the Merciful One called him firstborn.

And the Sages say: A gift is like a sale.^[10]

What is the Rabbis’ reason?

You shall return (Vayikra 25:13) – to include a gift.

תשובו - “Each man to his holding” – it is a superfluous verse, for it was already said (Vayikra 25) “and you shall return each man to his holding”; therefore [it comes] to include a gift.

But all these are inheritance.

והנך אחריני - The others of the Mishnah: for this [reason] the Rabbis agree that they do not return, for all of them are inheritance.

The firstborn – the verse says to give him a double portion: it compares^[11] the firstborn’s portion to the ordinary portion – just as the ordinary portion is inheritance, so the firstborn’s portion is inheritance.

פי שנים - It compares his portions to each other: just as his ordinary portion is inheritance, as it is written “on the day he causes his sons to inherit” (Devarim 21:16).

אף חלק בכורתו ירושה - And the husband’s inheritance is from the Torah, and the yavam the Merciful One called firstborn.

Rabbi Elazar says: They all return in Yovel.^[12]

He holds like the Rabbis, who say: you shall return – to include a gift;

and all these are gifts.

the firstborn – to give him a double portion – the Merciful One called it a gift;

one who inherits his wife – the husband’s inheritance is rabbinic;^[13]

and one who performs yibum with his brother’s wife – the Merciful One called him firstborn.

Rabbi Assi said in the name of Rabbi Yochanan: Brothers who divided [an estate] are purchasers,^[14] and they return [their portions] to one another in Yovel.

ומחזירין זה לזה - And they return and divide [again].

Rav Hoshaya objected: And these do not return in Yovel: the firstborn’s portion!^[15]

Rabbi Elazar said to him: What [does] “do not return” [mean]?

They do not return to be cancelled.

אין חוזרין לבטלה - That he should lose his birthright; but they do return and divide, and he takes a double portion as at first.

Rav Sheshes challenged it: By implication, the one who says “they return” means they return to be cancelled?

מכלל דר' אלעזר דאמר חוזרין לבטלה קאמר - [Asked] in astonishment.

Rav Chama applied to Rav Sheshes [the verse] (Koheles 7:11) Wisdom is good with an inheritance, for he had not heard that which, when Ravin came,^[16] he said in the name of Rabbi Yochanan – and some say Rabbi Elazar said it in the name of Rabbi Elazar ben Shamua: What [does] “they return” [mean]? They return to be cancelled.

טובה חכמה עם נחלה - Good is the reasoning of sharp wisdom that comes together with the inheritance of the beraisos; for Rav Sheshes was a master of beraisos. Had Rav Sheshes heard this [teaching] of his master, he would not have objected at all.

Rabbi Yochanan ben Berokah says: One who inherits his wife must return [the land] to the members [of the family], etc.^[17]

What does he hold?

If he holds the husband’s inheritance is from the Torah – why must he return it to the members of the family?

And if he holds the husband’s inheritance is rabbinic – what is the money doing [here]?

In fact he holds the husband’s inheritance is from the Torah;

and with what are we dealing here? Where his wife left him a burial ground as an inheritance,

and because of the family’s disgrace^[18] the Rabbis said: let him take the money and return [it].

As it was taught [in a beraisa]: One who sells his grave, the path to his grave, his standing-place, or his place of eulogy – the members of the family come and bury him [there] against his will, because of the family’s disgrace.

מקום מעמדו - For they make seven standings^[19] for the dead.

בעל כרחו - [Against the will] of the buyer.

And what is [meant by] “he deducts the money from them”?

The value of his wife’s grave.

דמי קבר אשתו - For he is obligated in her burial,^[20] as it says in Tractate Kesubos (47b).

Tosfos

לאיתויי שבחא דממילא חפורה והוו שובלי כו' - Our Mishnah follows the Rabbis, for Rebbi and the Rabbis disagree regarding a firstborn, whether he takes [a double portion] in improvement or not;^[21] and it concludes there that they disagree about fodder that became ears and blossoms that became dates. And there too Rava said that it is forbidden to act according to Rebbi.

בכור לתת לו פי שנים מתנה קרייה רחמנא - It is difficult: in the second perek of Yevamos (24b) it concludes regarding a yavam: rather, for what law did the Merciful One call him firstborn? For a disadvantage – that he does not take in what is due as in what is held. Why did it not say: for an advantage – that it does not return in Yovel, as with the firstborn’s portion? One can answer: because there is Rabbi Elazar, who disagrees here and says they all return in Yovel.

אמר רבי אסי אמר ר' יוחנן האחין שחלקו לקוחות הן - The difficulty against Rabbi Assi from the beginning of our perek (48a), where he said [the brothers are] half heirs; and what Rabbeinu Tam asks – how do we find our hands and feet in the study hall, since we hold like Rabbi Yochanan that they are purchasers, and like Reish Lakish that ownership of the produce is not like ownership of the land itself,^[22] and if so you cannot find [anyone] who brings bikkurim except an only son of an only son back to Yehoshua bin Nun – I explained it all in Perek HaChovel (Bava Kamma 88b, s.v. hachi) (and in Perek Beis Kor) (106). One can explain: even though he holds they are purchasers, and all those others who hold there is no bereirah – they did not say that [the portions] return in Yovel; only Rabbi Yochanan alone [did]. And it is specifically about Rabbi Yochanan that [the Gemara] infers at the end of HaSholei’ach (Gittin 48a): how did he find his hands and feet, since it returns in Yovel through this? But all the others hold: even though they are purchasers, since there is no bereirah – it is a sale that the Merciful One said should return in Yovel, not inheritance and gift, as it said above; and as it also says later in the last perek (56b), that even though Rabbi Yochanan said that even if they divided nine against nine and ten against ten, we do not say that this is the portion that reached him from the first moment – even so it was necessary to teach us that they are purchasers and return in Yovel, for it would have occurred to us that it does not return, for the reason I explained. Alternatively: we derive every division of inheritance from Yehoshua’s division, as it says in Yesh Nochlin (Bava Basra 119b) that it is an inheritance to them from their fathers; and even so Rabbi Yochanan agrees about it that it did not return in Yovel, as he says “an only son of an only son back to Yehoshua bin Nun”; for it is reasonable that it did not return, since they divided by the word of prophets, with the Urim and Tumim, and by decree of the verse. On this reasoning the other Amoraim disagree with Rabbi Yochanan. And now it is well that Rav Hoshaya objects here against Rabbi Yochanan from our Mishnah, which teaches “and these do not return in Yovel: the firstborn’s portion”, even though there are Amoraim who hold that they are purchasers and there is no bereirah, and he does not object against them but only against Rabbi Yochanan – because he said they return. And if you ask: what is difficult for Rabbi Yochanan? Rabbi Meir teaches this Mishnah, and he holds there is bereirah regarding one who buys wine from among the Kusim (Tosefta Demai 7:4)! One can answer: the Sages too do not disagree with him regarding a firstborn, only Rabbi Elazar. Moreover, even though he holds there is bereirah where one clarifies the doubt by his stipulation, perhaps he does not hold it in general, where there is [a need] to divide, as we explained above (48a s.v. dechulei).

קרי רב חמא עליה דרב ששת טובה חכמה עם נחלה - Rav Sheshes was a master of beraisos, as it says in Perek HaDar (Eruvin 67a) that Rav Chisda’s lips would tremble at Rav Sheshes’s (mishnayos). And this is what it means: “Wisdom is good” – the statement of Ravin in the name of Rabbi Yochanan; “with an inheritance” – the many traditions he had, taught in beraisos.

באין בני המשפחה וקוברין אותו בעל כרחו משום פגם משפחה - In Perek Nigmar HaDin (Sanhedrin 46b and there) it is asked: is burial because of disgrace or because of atonement?^[23] The difference is where he said “do not bury me”: if it is because of disgrace, it is not up to him. One cannot resolve anything from here, for here it does not say that they should not bury him at all; rather money pressed him to sell his grave and its path. Likewise from that [case] of Kesubos (48a) one cannot resolve it, where it says [that if he said] “do not bury him from my property”, we do not listen to him – for he does want them to bury him, but he intends to throw himself upon the community and to enrich his sons.

Notes

1. 1. This line continues the Gemara on the previous amud [Bechoros 52a], which quoted the Mishnah’s closing clause “and none of them take in the improvement”. Here it explains that the clause comes to include even improvement that came by itself, which the brothers did not work for (Rashi).
2. 2. The Mishnah’s clause: the firstborn (and the others listed with him) takes his extra share only in property the father held (muchzak) when he died, not in property merely due (ra’ui) to come to him later. The Gemara says it comes to include a grandfather’s estate that falls after the father’s death, even though it was certain to come (Rashi).
3. 3. In the Yovel (Jubilee) year, every fiftieth year, fields that were sold return to their original owners (Vayikra 25:10–28). The Mishnah lists transfers of land that do not return.
4. 4. The firstborn’s portion: he takes a double share of his father’s estate, twice what each brother takes (Devarim 21:17).
5. 5. A husband inherits his wife’s estate when she dies, so her land passes out of her father’s family to him.
6. 6. When a man dies childless, his brother performs yibum (levirate marriage) with the widow and takes the dead brother’s share in their father’s estate (Devarim 25:5–6).
7. 7. The verse says “to give him” – the language of a gift. Since in Rabbi Meir’s view only a sale returns in Yovel, the firstborn’s extra share does not return.
8. 8. The Mishnah listed one who inherits his wife among those that do not return. In Rabbi Meir’s view the husband’s inheritance is Torah law (Rashi derives it from Bamidbar 27:11), so it is a true inheritance, and an inheritance does not return in Yovel.
9. 9. The Mishnah listed the yavam too. The Torah calls the yavam “the firstborn” (“and the firstborn whom she bears”, Devarim 25:6, applied to the yavam in Yevamos 24a), so his share follows the firstborn’s: a gift, which does not return.
10. 10. The Sages’ clause: a gift of land is treated like a sale and goes back to the giver’s family in Yovel. The Gemara asks for their source.
11. 11. A hekesh is a comparison the Torah makes by joining two things in one phrase, so that the law of one applies to the other. Here “double” sets the firstborn’s extra share alongside his ordinary share, so both are inheritance.
12. 12. Rabbi Elazar’s clause: every transfer in the Mishnah – the firstborn’s portion, the husband’s and the yavam’s – returns in Yovel.
13. 13. In this view, by Torah law a woman’s estate goes to her father’s family, and the Rabbis gave it to the husband; so by Torah law the land is not his inheritance, and it returns.
14. 14. When brothers divide an estate, we cannot say that each one’s portion was his from the start (there is no bereirah, retroactive clarification); rather each is like a buyer who acquired his share from his brother. As a sale, the division undoes in Yovel and they divide anew.
15. 15. Rav Hoshaya quotes our Mishnah: the firstborn’s portion does not return in Yovel. If brothers who divide are purchasers and return their portions, the firstborn’s double share should return too.
16. 16. Ravin was one of the Amoraim who went down from Eretz Yisrael to Bavel and brought the teachings of its academies, such as those of Rabbi Yochanan.
17. 17. The clause of Rabbi Yochanan ben Berokah: the husband who inherited his wife’s land returns it to her family, and they pay him its value. The Gemara asks which view of the husband’s inheritance this follows.
18. 18. Family disgrace: it shames a family when its burial ground passes into strangers’ hands, so the family may take it back even against the owner’s will.
19. 19. Ma’amados: on returning from a burial, those accompanying the dead would stop, stand and sit seven times, to comfort and lament. The place set aside for this belonged with the grave.
20. 20. Burying his wife is one of the husband’s obligations under the kesubah (Kesubos 47b). So the grave he gave her came at his own expense, and he deducts its value.
21. 21. The dispute of Rebbi and the Sages in Perek Yesh Nochlin (Bava Basra): Rebbi holds that the firstborn takes a double portion even in improvement after the father’s death; the Sages hold that he does not. Our Mishnah, which says he does not, follows the Sages.
22. 22. Bikkurim (first fruits) are brought only by one who owns the land. Reish Lakish holds that owning only the produce is not like owning the land; and a buyer whose land returns in Yovel owns only its produce until then. So if brothers are purchasers, an heir could bring bikkurim only where each generation had a single son.
23. 23. Sanhedrin 46b asks whether burial is required to spare the dead disgrace, or because burial brings him atonement. The difference is where a man asked not to be buried.