Babylonian Talmud: Tractate Baba Bathra

Folio 127a

Amemar said: Nor does he reduce the portion of the birthright;¹  for it is said, And they have born him sons²  [which implies that] he must have been³  a son⁴  at the time of [his] birth.⁴  R. Shezbi said: Nor is he circumcised on the eighth [day⁵  of his birth];⁶  for Scripture said, If a woman be delivered, and bear a man-child … and in the eighth day [the flesh of his foreskin] shall be circumcised,⁷  [which implies that] he must be⁸  a male at⁹  the time of [his] birth.¹⁰  R. Sherabya said: Nor is his mother [levitically] unclean [on account] of [his] birth;¹¹  for Scripture said, If a woman be delivered, and bear a man-child, then she shall be unclean seven days [which implies that she is not unclean]¹²  unless he¹³  was a male at⁹  the time of [his] birth.¹⁴

An objection was raised: [It was taught]. 'If a woman miscarried a tumtum¹⁵  or an androginos,¹⁶  she must continue [in her levitical uncleanness and cleanness, as] for both a male and a female'.¹⁷  [Is not this] an objection [to the statement] of R. Sherabya?¹⁸  — This is an objection.

May it be suggested [that] this is [also] all objection [against the statement] of R. Shezbi?¹⁹  The Tanna²⁰  may have been in doubt²¹  and, [consequently. he imposed a double] restriction.²²  If so,²³  it should have been [stated that] she should continue [in her uncleanness] for a male, and for a female, and for her menstruation!²⁴  — This is a difficulty.

Raba said: It was taught in agreement with [the view] of R. Ammi:²⁵  [The expression.] a Son,²⁶  [Implies], but not a tumtum;²⁷  [the expression] a firstborn,²⁸  [implies] but not a doubtful case.²⁹  [The statement]. 'in son, but not a tumtum' [can well be explained] in accordance with [the view] of R. Ammi; but what does [the statement]. 'a firstborn, but not a doubtful case', exclude?³⁰  — It excludes³¹  [the opinion arrived at] through Raba's exposition. For Raba gave the following exposition: [if] two women³²  gave birth [respectively] to two male children in a hiding place.³³  [these³⁴  may] write out an authorisation for one another.³⁵

R. Papa said to Raba: Surely Rabin had sent [a message stating]: This question I have asked of all my teachers, but they told me nothing; the following, however, was reported in the name R. Jannai: [If] they³⁶  were identified,³⁷  and afterwards they were exchanged, they may give written authorisation to one another; [if] they were not identified,³⁷  they may not give written authorisation to one another.³⁸

Subsequently Raba appointed an Amora³⁹  by his side, and made the following exposition: what have told you was in error; but this, indeed, has been reported in the name of R. Jannai. 'If they³⁶  were identified³⁴  and afterwards they were exchanged, they may give written authorisation to one another, [if] they were not identified³⁷  they may not give written authorisation to one another.

The men of Akra di Agama⁴⁰  addressed⁴¹  [the following enquiry] to Samuel: Will our master instruct us [as to] what [is the law in the case] where one was generally held-to be a firstborn son, but his father declared that another [son] was the firstborn?⁴²  — He sent to them [the following reply]: 'They may write on an authorisation

1. If the tumtum had, e.g., two brothers, one of whom was firstborn, the inherited estate is to be divided into three portions only, (as if the tumtum did not exist). Of these, the firstborn who is entitled to a double Portion (one ordinary and one as his birthright) receives one portion (that for the birthright), while the remaining two are subdivided into three Portions, each of the three brothers receiving one. The firstborn's portion of the birthright is thus in no way diminished through the existence of the tumtum.
2. Deut., XXI. 15.
3. V. note 7.
4. Emphasis is laid on born and sons, in the text cited.
5. V. Gen. XVII, 12.
6. If that day fell on a Sabbath.
7. Lev. XII, 2-3, from which is derived the suspension of the Sabbath laws in favour of circumcision on the eighth day (v. Shab. 131b).
8. V. note 7.
9. Lit., 'from'.
10. Since Scripture states, man-child …' shall be circumcised'.
11. V. Lev. XII, 2 and 5.
12. The period of seven days. V. ibid. v. 2.
13. V. note 7, supra.
14. The emphasis is on 'man-child, then she shall be unclean'.
15. V. p. 526, n. 10.
16. [H] [G] Hermaphrodite.
17. She must observe fourteen unclean clays as for a female (Lev. XII. 5), and not seven only as for a male (ibid. v. 2); while her period of cleanness is not sixty-six days, as for a female (ibid. v. 5)' but only thirty-three as for a male (ibid. v. 4) Prom these thirty-three days, however, the additional seven days (the difference between the unclean periods if male and female respectively) are to be deducted, so that her period if cleanness consists of twenty-six days only.
18. Who said that the mother was not unclean at all.
19. He does not regard a tumtum as male at all, while the cited Baraitha regards him as partly male.
20. Of the cited Baraitha.
21. As to whether a tumtum and an androginos are to be regarded as males or females.
22. That if a female as regards the unclean period, and that of a male regarding the clean period. In the case of circumcision, the restrictions of Sabbath observance also have been imposed.
23. That, on account of the doubt, additional restrictions were imposed.
24. Since it is also possible that the law of 'uncleanness of birth' is not applicable in such a doubtful case, the woman should be subject must only to the restrictions connected with the birth of a male and a female, but also to those of menstruation. The unclean period due to birth (fourteen for a female which include the seven for a male should not, accordingly, be followed by the clean period of twenty-six days (v. note 1, supra) during which she is regarded as clean even if blood had appeared, but by that of menstruation, I.e., let her be treated as if no birth at all had taken place and, consequently, if any blood appeared she should become menstrually unclean.
25. That a tumtum, though found after an operation to be male, is not entitled to the birthright.
26. Deut. XXI. is.
27. I.e., a birth, though found later to be made.
28. Ibid.
29. That of one about whom it is uncertain whether he is firstborn.
30. It being obvious that the doubtful first-boris has no claim to the double portion.
31. Lit., 'to exclude'.
32. Wives of the same husband.
33. So that it is not known is who was born first.
34. When they came to claim a share in their father's bequeathed estate.
35. Since one of the to is is certainly firstborn, he who receives the authorisation can claim from his brothers the double portion of the birthright, either on his own behalf or on behalf of his brother. The second clause of the cited Baraitha proves that Scripture did not permit of such a Procedure, and that in any doubtful case the double portion of the birthright cannot he claimed.
36. The two sons of whom it is not known which is the firstborn.
37. At their birth.
38. How, then, could Raba state that is written authorisation may be given in all cases, presumably even when they were never identified.
39. An interpreter. v. Glos.
40. ['The fort of Agama' near Pumbeditha (v. Obermeyer. op. cit, P. 237. n. 3).]
41. Lit., 'Sent'.
42. Which of the two is entitled to the birthrights

for one another.' What [is really] your opinion [on the matter]? If [Samuel] holds the same view as the Rabbis,¹  he should have sent [word] to them, according to the Rabbis; if he holds the same view as R. Judah.¹  he should have sent [word] to them according to R. Judah! — He was in doubt as to whether [the law is] according to R. Judah or according to the Rabbis.²

What is that [dispute]?³  — It was taught: He shall acknowledge⁴  [implies]. 'he shall [be entitled to] acknowledge him before others'.⁵  From this R. Judah deduced that a person is believed when he declares, 'This son of mine is firstborn'.⁶  And as a person is believed when he declares 'this son of mine is firstborn', so one is believed when one declares, 'this is the son of a divorced woman', or 'this is the son of a haluzah.'⁷  But the Sages say he is not believed.⁸

R. Nahman b. Isaac said to Raba: According to R. Judah it is correct for Scripture to say, he shall acknowledge,'⁹  according to the Rabbis, however, what need is there for¹⁰  [the expression] he shall acknowledge? — When acknowledgment is required.¹¹  In what legal respect?¹²  As regards giving him a double portion? Should he [even] be [regarded as] but a stranger, could he¹³  not give [it]¹⁴  to him if he desired to make a gift of it? — This¹⁵  is required only [in the case] where property has come into his possession¹⁶  afterwards.¹⁷  But according to R. Meir Who said, 'a man may give possession of a thing that has not come into existence',¹⁸  what need is there for, he shall acknowledge?¹⁹  — [It is needed for the case] where property came into his possession²⁰  while he was dying.²¹

Our Rabbis taught: [Where a son] was held to be a firstborn, and his father declared another [son] to be the firstborn, [the father] is believed. [Where, however, a son] was held not to be a first-born, and his father declared him to be a firstborn, [the father] is not believed. The first [clause harmonises with the view of] R. Judah,²²  and the last [clause harmonises with that of] the Rabbis.²³

R. Johanan said: [If] a person declared, 'this is my son', and then retracted and declared, 'He is my slave', he is not believed. [If, however, he said], 'He is my slave', and then he retracted and declared, 'He is my son', he is believed, for he [may] mean,²⁴  'who attends upon me as a slave'. [This law,] however, is reversed [when the statements were made] at a custom house. If, when passing the custom house, he declared, 'This is my son', and then he retracted, and said, 'He is my slave', he is to be believed.²⁵  [If, however,] he declared, 'He is my slave', and then he retracted, and said,'He is my son', he is not believed.²⁶

An objection was raised: [It was taught:] If a man attended upon another as a son²⁷  and the latter came [before the court] and declared, 'He is my son' and, then, he retracted and stated, 'He is my slave', he is not believed. [If, however], he attended upon him as a slave, and [the latter] came [to the court] and declared, 'he is my slave', and then he retracted, and stated, 'He is my son', he is not believed!²⁸  — R. Nahman b. Isaac replied: [The case] there²⁹  [refers to one] whom he called, 'a slave of a rope of a hundred'.³⁰  What [is meant By] 'a rope of a hundred'? — A rope of a slave [who is worth] a hundred zuz.³¹

R. Abba sent to R. Joseph b. Hama: If one says to another, 'You stole my slave', and the other says, 'I did not steal [him]'. [And when the first inquires, 'In] what capacity [is he] with you?' [the latter replies]. 'You sold him to me,

1. The dispute between the Rabbis (the Sages) and R. Judah follows, infra.
2. Hence his original message.
3. Between R. Judah and the Rabbis.
4. 'The firstborn'. Deut. XXI, 27.
5. [H] may be rendered, 'he shall acknowledge' and also, being a Hiphil. 'he shall make known', viz., 'to others'.
6. Though another son was hitherto reputed to be the first-born.
7. [H] The term is applied to the wife of a deceased brother (who left no issue) after she had been released from levirate marriage. The ceremony of release, in the course of which the widow takes off the shoe of her dead husband's brother, is called halizah, [H] from root [H] 'to take off'. Cf. Deut. XXV. 9f.
8. If another son was reputed to be the firstborn.
9. Since from this expression it has been inferred that the father's word is the determining factor in deciding the birthright, though another son was generally recognised as firstborn.
10. Lit., 'wherefore to me'.
11. Where it is not known stall who is the firstborn.
12. Lit., 'to what law'; under what legal circumstances is it necessary, according to the Rabbis, for a father to declare which of his sons is his firstborn?
13. 'The father.
14. The double portion.
15. The law on the reliability of a father's declaration.
16. Lit., 'fell to him'.
17. After he made the declaration on the birthright. A person can make a gift of that only which he already has in his possession, but not of that which he may acquire in the future. Consequently the necessity in such a case, for the father's declaration.
18. Lit., 'to the world'.
19. Surely he could, according to R. Meir, make a gift to the firstborn, of the double portion. in any property that he might acquire in the future.
20. Lit., 'fell to him'.
21. When he is physically unfit to make any gifts. The law of R. Meir which allows a person to give possession of what he might get in the future, applies only to one who is in a condition to make the gift when it reaches him. A dying man, though legally entitled to obtain possession, is not in a condition to make gifts and to give possession. Hence the necessity for a father's declaration on the birthright.
22. Who places implicit confidence on the testimony of the father.
23. Who rely upon repute more than on a father's word.
24. When cising the term, 'Slave'.
25. By his first statement he may have desired to avoid the slave tax.
26. For, if his latter statement were correct, he would not have declared his son upon whom there is no tax) to be his slave for whom a tax is payable.
27. Performing for him light services.
28. How, then, could R. Johanan say that a person is believed when he declares one to be his son though he first declared him to be his slave?
29. In the Baraitha cited.
30. Heb. mezar, [H], 'a rope'. A term of contempt for confirmed slaves (Jast.) [Kohut, Aruch, connects it with an Arabic word, denoting 'bag', and renders, 'a slave if a bag of a hundred.']
31. [According to Kohut, ibid, a bag, or price of a slave is a hundred zuz.]