Babylonian Talmud

Rodkinson 1918 — source 14, scan section 27

ments, however, were not said by Rabha plainly, but were in- ferred from the following act : There was a first-born who sold all the estate belonging to him and his brother. The orphans of his brother were going to eat dates of the estate belonging to their father, which was in the possession of the buyers, who struck them. Their relatives said to the buyers: It is not enough for you that you have bought their estate without the consent of the father and the orphans, you dare to strike them. And the case came before Rabha, who decided that the act of the first-born was null and void. R. Papi explained that it means he did nothing with the share belonging to the ordinary brother, but concerning his own share, the sale was valid; and R. Papa explained the decision of Rabha, that the whole sale was null and void, because the first-born had nothing in the estate before it was divided. A message was sent from Palestine : If a first-born sold out before division, he did nothing. Hence they hold that the first- born had nothing before the division. The Halakha, however, prevails that he has. Mar Zutra of Drishba had divided a bas- ket of pepper with his brothers, and took an equal share, though he was a first-born; and when the case came before R. Ashi, he decided that as he relinquished his right concerning the pepper, it was also relinquished on all other property. MISHNA V. : If one said in his will, " My son so and so, who is a first-born, shall not take a double share," or, " My son so and so shall not inherit at all with his brothers," he said noth- ing, as this provision is against the law in the Scripture. If, however, he has divided all his goods in his verbal w^ill, and to some of his heirs he has bequeathed more and to some less, also equalizing the first-born, his will is valid, provided he has not mentioned In his will the word " Inheritance." But if he said " because of inheritance," it is not to be considered. If there was a written will in which, in the beginning, middle, or end, was mentioned " a gift," all that it contains is to be Hstened to. GEMARA : Shall we assume that our MIshna Is not in ac- cordance with R. Jehudah, who said In Tract Kedushin that a condition against the law in the Scripture, If In money matters, may be listened to? This Mishna can be even in accordance with him, as in that case the woman was aware of the law, but «78 THE BABYLONIAN TALMUD. relinquished her right. In our case, however, no one has re- linquished. R. Joseph said: " If one said in his will, 'My son so and so is my first-born,' he takes a double share. If, however, he said, ' My son so and so is a first-born,' he does not, as perhaps it was meant he was a first-born to his mother." There was one who came before Rabba b. b. Hana as a witness that he was certain so and so was a first-born. And to the question : Whence do you know it? he answered: Because his father called him " the first-born fool." And he said : This is no evidence, as people used to name a first-born to his mother first-born fool (i.e., a first-born without right). It happened that anothercame before R. Hanina as a witness for a first-born, and to the question: Whence do you know it? he answered : His father used to say, " Go to Sh'kh'at my son, who is a first-born, whose spittle cures eyes." But perhaps he meant a first-born to his mother? There is a tradition that a first-born of the father cures, and a first-born to his mother does not. R. Ami said : If born arfxtjToi, and after perforation found to be a male, he does not take a double share, as it is written [Deut. xxi. 15], "first-born son," which means a son when born. R. Na'hman b. Itz'hak said that also the law of ibid., ibid. 18 does not apply to him. Amimar said : Such is not considered an heir at all, so that his share is not to be reckoned, and does not diminish the double share for the first-born. R. Shezby said : He must also not be circumcised on the eighth day. And R. Shrabyah said: The law [Lev. xii. 2] does also not apply to such (as in all the cited verses it reads a son or a male child). Said Rabha: There is a Boraitha in accordance with R. Ami: It is written a son, but not arjur^To^j a first-born, but not a doubtful one. What does the latter part mean to exclude? That which Rabha lectured : If two wives of one have born two sons in a secret place which was dark, and it is not known who was born first, they may write a power of attorney each to the other {i.e., if I am the first-born, I authorize you to take the double share for me; and if you are, then take it for yourself. And then one of them collects the double share and divides it with the other. Said R. Papa to Rabha: But did not Rabbin send a message : I have questioned all my masters about the law TRACT BAB A BATHRA (LAST GATE). 279 in this case, and could get no answer from any of them; but it was said in the name of R. Janai that if they were recognized, and afterward they were mixed up again, then the stated power of attorney is to be written, but not otherwise. Then Rabha took an interpreter and announced in college : That which I said in my first lecture was an error, as in the name of R. Janai was said thus: That if they were already recognized and after- ward mixed, then the above-mentioned power of attorney should be given to each by the other, etc. The inhabitants of a village situated in a meadow sent the following question to Samuel : Master, teach us where it was certain to the people that so and so, from the children of so and so, was a first-born. Their father, however, said that an- other was the first-born. How is the law? And his answer was : They should write the above-mentioned power, one to the other. According to whom was Samuel's decision? If he holds in accordance with R. Jehudah, let him say so; and if in accordance with the rabbis, let him say so? He was in doubt according to whom the Halakha prevails. And wherein is their differing? The following Boraitha: It is written [ibid., ibid. 17] : " Shall he acknowledge," which means, he shall introduce him to others (which is superfluous, this being already written in the previous verse). From this said R. Jehudah : One is to be trusted if he testifies, " This is my first-born son." And as he is trusted con- cerning a first-born, so is he also to be trusted to testify, " This is a son of a divorced woman," and of lost priesthood. The sages, however, say that he is not trusted. Said R. Na'hman b. Itz'hak to Rabha: According to R. Jehudah's theory, the above-cited verse is right; but according to the rabbis, to what purpose is it written? That in case of a doubt the father's acknowledgment is needed (but in a case of certainty to the