Babylonian Talmud: Tractate Baba Bathra

Folio 124a

so [in the case of] one rented out or given on hire, the appreciation [must be] such as comes naturally and they do not lose thereby [the cost of its] food.¹

In accordance with [whose view is the law²  quoted]? — It is [in accordance with that of] Rabbi. For it was taught: a firstborn son is not [entitled] to take a double portion in the appreciation of the estate, which accrued after the death of their father. Rabbi said: I say, A firstborn son does take a double portion in the [natural] appreciation of an estate which accrued after the death of their father,³  but not in the appreciation which the orphans produced after the death of their father. If they inherited a bond of indebtedness the firstborn takes a double portion [in the collected debt].⁴  If a bond of indebtedness [for a debt incurred by the father] was produced against them, the firstborn must pay a double portion [of the debt]. If, however, he said, 'I neither give, nor take [the double portion]',⁵  he is allowed [to do so].⁶  What is the reason [for the opinion] of the Rabbis?⁷  Scripture says, Giving him a double portion,⁸  the [All] merciful has, thus, called it a gift;⁹  as a gift [does not become his]¹⁰  until it comes into his possession,¹¹  so the portion of the birthright [does not become his] until it comes into his [father's] possession.¹²  But Rabbi maintains, [since] Scripture says, a double portion,¹³  the portion of the birthright [is to be] compared to the ordinary portion; as the ordinary portion [is his] although it has not yet come into his [father's] possession,¹⁴  so [is] the portion of the birthright although it has not yet come into his possession. But [as to] the Rabbis also, surely it is written, a double portion? — That [expression indicates that the two portions] to be given to him are to adjoin one another.¹⁵  But [as to] Rabbi also, surely it is written, Giving him? — That [expression is to indicate] that if he said, 'I neither take, nor give [the double portions],'¹⁶  he is permitted to do so.

R. Papa said: [In the case where] a [young] palm-tree [was bequeathed] and it became stronger, [or a plot of] and and it produced alluvial soil, all¹⁷  agree that [the firstborn] takes [a double portion].¹⁸  The dispute only relates to [the case] where hafurah¹⁹  turned into [well developed] ears of corn, [or where] undeveloped dates turned into [fully developed] dates. [One] Master²⁰  is of the opinion that this is regarded as natural appreciation,²¹  and the [other] Master[s]²²  hold the opinion [that this is a case of complete] transformation.²³

Rabbah b. Hana said in the name of R. Hiyya, 'He who acts²⁴  in accordance with the opinion of Rabbi is acting correctly,²⁵  [and] he who acts²⁴  in accordance with the opinion of the Sages²⁶  is acting correctly.'²⁵  —

1. I.e., when the renter or hirer provides the fodder, otherwise the firstborn would not take in the appreciation a double portion.
2. That a firstborn son takes a double portion in the natural appreciation of a bequeathed estate.
3. The law quoted is in agreement with this statement of Rabbi.
4. Possession of the bond is regarded as possession of the debt itself; and the payment of the debt is natural appreciation.
5. In any part of the estate, i.e., if he renounces his birthright.
6. The lender cannot force him to pay a double share in the debt. V., Tosef. Bek. VI.
7. Why do they deny the firstborn a double portion even in the case of natural appreciation?
8. Deut. XXI, 17.
9. Given by the father to the firstborn.
10. The recipient's with the power to give it away.
11. Lit., 'to his hand'.
12. I.e., the father cannot claim it as his, entitling him to transmit it to the firstborn, until it actually comes into his possession.
13. Ibid. The portion of the birthright and the ordinary portion were included in one expression.
14. I.e., prospective property. v. supra.
15. Lit., 'on one boundary' — both portions being treated as one.
16. V. supra 124a.
17. Rabbi and the Rabbis.
18. Since no radical change had taken place in the tree.
19. Corn in its earliest stage, used as fodder for cattle.
20. Rabbi.
21. Hence, the firstborn receives a double portion.
22. The Rabbis.
23. In nature and name, the original bequest having practically ceased to exist. Hence, the firstborn is not entitled to a double portion.
24. Decides a law case.
25. His decision is legally valid.
26. The Rabbis.

[For] he¹  was in doubt as to whether the halachah is in accordance [with the decision of] Rabbi [when it is in opposition to that] of his colleague,²  but not [when it is opposed to that] of his colleagues,³  or is the halachah in accordance [with] Rabbi [when in opposition to] his colleague and even [when he is opposed to] his colleagues.⁴

R. Nahman said in the name of Rab, 'It is forbidden to act in accordance with the decision of Rabbi,⁵  for he holds the opinion [that] the halachah is in accordance [with] Rabbi, [when in opposition to] his colleague, but not [when he is opposed to] his colleagues.' R. Nahman in his own name,⁶  however, said, 'It is permitted to act in accordance with the decision of Rabbi'; for he holds the opinion [that] the halachah is in accordance [with] Rabbi [when in opposition to] his colleague and even [when opposed to] his colleagues.

Raba said, 'It is forbidden to act in accordance with the decision of Rabbi, but if one did act [accordingly], his action is legally valid;'⁷  for he is of the opinion [that at the college] it was said [that they were only] inclined⁸  [in favour of the opinion of the Rabbis].

R. Nahman learned⁹  in the 'other books of the School of Rab':¹⁰  Of all that he hath,¹¹  excludes the appreciation [of an estate] which the heirs have produced after the death of their father; but [in] the [natural] appreciation of the estate [that accrued] after the death of their father he [does] take [a double portion]. And who is [the author of this statement]? — It is Rabbi.

Rami b. Hama learned in the 'other books of the School of Rab':¹⁰  Of all that he hath,¹¹  excludes¹²  the [natural] appreciation of an estate [that accrued] after the death of their father, and much less is he [entitled] to take [a double portion in] the appreciation which the heirs produced after the death of their father. And who is [the author of this statement]? — The Rabbis.

Rab Judah said in the name of Samuel: A firstborn son does not take a double portion in a loan.¹³  [According] to whom [was this statement required]?¹⁴  If it is suggested, [according] to the Rabbis, [it may be retorted] if the Rabbis maintain that an appreciation which accrues to his possession¹⁵  [the firstborn] takes no [double portion], is there any need [to state that he takes no double portion in] a loan?¹⁶  — But [the statement was required according] to Rabbi. Who, then, was the author of] what has been taught. 'If they inherited a bond of indebtedness, the firstborn takes a double portion both in the loan and in the interest'? Neither Rabbi nor the Rabbis!¹⁷  This statement¹⁸  may, indeed, be required [according] to [the view of] the Rabbis,¹⁹  [for] it might have been assumed [that, in the matter of] a loan, since he is in possession²⁰  of the bond, [the debt] is regarded as collected, hence [the law] had to be stated.²¹

[A message] was sent from Palestine:²²  a firstborn takes a double portion in a loan, but not in [its] interest.²³  [According] to whom [is this law]?²⁴  If it is suggested [that it is according] to the Rabbis, [it may be retorted:] If the Rabbis maintain that [in] an appreciation which accrues to his possession [the firstborn is] not to take [a double portion], is there any question as to [whether he takes a double portion in] a loan?²⁵  — But [the statement is according] to Rabbi. [Does] not [the firstborn, however, according] to Rabbi [take a double portion] in the interest [also]? Surely it was taught: Rabbi said: A firstborn takes a double portion both in a loan and in [its] interest! — This is really [in accordance with] the Rabbis, but a loan [is regarded] as collected.²⁶

R. Aha b. Rab said to Rabina: Amemar [once] happened to come to our place, and gave the following exposition: A firstborn takes a double portion in a loan but not in [its] interest. He said to him: The [scholars] of Nehardea follow their [own] view;²⁷  for R. Nahman said:²⁸  [If] land was collected [for the debt, the firstborn] has no [double portion],²⁹  [if] money was collected he has [it],³⁰  but Rabbah said: [If] money was collected he has no [double portion],³¹  [if] land was collected, he has.³²

Abaye said to Rabbah: Following³³  you there is a difficulty; following³³  R. Nahman there is a difficulty. Following you there is [this] difficulty:

1. R. Hiyya.
2. Cf. 'Er. 46b; Pes. 27a; Keth. 21a and 51a.
3. I.e., where the majority is against him. The law, here, since Rabbi is opposed by the Sages, must, consequently, be decided against him.
4. Hence, the law must be decided according to Rabbi. As this point could not be determined, every judge is allowed to act either in accordance with the view of Rabbi or with that of the Sages.
5. And here he is opposed by his colleagues, a majority.
6. Lit., 'If his'.
7. Lit., 'is done'.
8. No definite decision on the view of the Rabbis has been arrived at at the college; only arguments in its favour were advanced.
9. Or 'taught', v. next note.
10. [H] Halachic expositions and comments on Numbers and Deuteronomy. Sifra debe Rab [H] is another name for Torath Kohanim, [H] which is a similar work on Leviticus. [Friedmann, M., disputes there identifications as well as the authorship of Rab assigned to these Halachic Midrashim by Maimonides and others. Kaplan, J., The Redaction of the Talmud, 279, holds that Sifre debe Rab designates 'the Standard Book of Records of Rab's Academy' nad the 'other books of the School of Rab,' the smaller and more specialized collections containing among others contributions by R. Nahman and Rami b. Hama.]
11. Deut. XXI, 17.
12. The firstborn is not entitled to a double portion.
13. Due to the father; even though the heirs hold a bond of indebtedness against the borrower.
14. I.e., whose view has Samuel adopted?
15. Such, e.g., as undeveloped dates, supra 124a, where the dates are in his possession. Rashb. preserves a better reading: 'If the Rabbis maintain that a natural appreciation,' likewise with reference to undeveloped dates.
16. Where the money is not in his possession. Or, where the increase is not natural.
17. Because, as has been assumed, even Rabbi agrees that the firstborns does not take a double portion in a loan.
18. Of Samuel.
19. While the statement about the inheritance of a bond of indebtedness agrees with the view of Rabbi.
20. Lit., 'holds'.
21. Lit., 'made us hear'.
22. Lit., 'from there'.
23. Though the interest is mentioned in the note.
24. I.e., in accordance with whose view was it possible to enunciate such a law?
25. Surely, he does not. How, then, could it be said that he does take a double portion?
26. Hence the right of the firstborn to take a double portion.
27. Amemar, who was of Nehardea, holds the same view as R. Nahman, who was also of Nehardea, that a debt is regarded as being in the possession of the creditor.
28. This is the order adopted by Rashb.
29. Because the bequest was money and not land.
30. V. u. 1, supra.
31. Since a loan is made to be spent, the money that is collected for the debt is not the original that was lent, but other money which was never in the creditor's possession.
32. Lands are regarded as pledged to the creditor and, consequently, as being in his possession.
33. Lit., 'according to'.