Babylonian Talmud: Tractate Baba Bathra

Folio 130a

and betrothal.¹

MISHNAH. IF A PERSON SAID, 'X²  SHALL BE MY HEIR', WHERE THERE IS A DAUGHTER, [OR] IF HE SAID, 'MY DAUGHTER SHALL BE MY HEIR', WHERE THERE IS A SON, HIS INSTRUCTIONS ARE TO BE DISREGARDED,³  FOR HE MADE A STIPULATION AGAINST A [LAW] WHICH IS WRITTEN IN THE TORAH. R. JOHANAN B. BEROKAH SAID: IF [A PERSON] SAID [IT]⁴  CONCERNING ONE WHO IS ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE VALID; [IF], HOWEVER, [HE SAID IT] CONCERNING ONE WHO IS NOT ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE NOT VALID.

GEMARA. The reason [why the testator's instructions are invalid, is,] because [he appointed, as has been said], another [legal heir] where there was a daughter, or a daughter where there was a son,⁵  [had he appointed,] however, a son among the [other] sons or a daughter among the [other] daughters, his instructions would, [accordingly], have been valid; tell [me, then, what you understand by] the latter clause [which reads], R. JOHANAN B. BEROKAH SAID: IF [A PERSON] SAID [IT] CONCERNING ONE WHO IS ENTITLED TO BE HIS HEIR, HIS INSTRUCTIONS ARE VALID, surely this [represents] the same [view as that of] the first Tanna!⁶  And if it be suggested [that] R. Johanan b. Beroka maintains [that] even another [legal heir may be appointed] where there is a daughter, and [that] a daughter [may be appointed as heir] where there is a son;⁷  [it may be retorted], surely, it has been taught: R. Ishmael the son of R. Johanan b. Beroka said, 'There was no dispute between father and the Sages concerning [the law] that one's instructions are invalid⁸  when another [legal heir was appointed] where there was a daughter, or [where] a daughter [was appointed heir] where there was a son; their dispute related only⁹  [to the case of an appointment as sole heir] of a son among the [other] sons or [of] a daughter among the [other] daughters, [in] which [case] father said, [the one appointed] inherits, and the Sages say [that] he does no inherit'!¹⁰  — If you wish, it may be replied: Since he¹¹  said that they¹²  did not dispute, it may be inferred that the first Tanna¹³  is of the opinion that they did dispute.¹⁴  [And] if you prefer,¹⁵  it may be replied that all [the Mishnah]¹⁶  represents¹⁷  [the views of] R. Johanan b. Beroka, only some [words are] missing [from the text] which should read as follows:¹⁸  IF A PERSON SAID, 'X SHALL BE MY HEIR', WHERE THERE IS A DAUGHTER, [OR IF HE SAID], 'MY DAUGHTER SHALL BE MY HEIR', WHERE THERE IS A SON, HIS INSTRUCTIONS ARE TO BE DISREGARDED, but [in the case of the appointment as heir of] a daughter among the [other] daughters or [of] a son among the [other] sons, if [the father] said, [that one of them]¹⁹  should inherit all his estate, his instruction is legally valid, for R. Johanan said: IF [A PERSON] SAID [IT]²⁰  CONCERNING ONE WHO IS ENTITLED TO BE HIS [IMMEDIATE] HEIR, HIS INSTRUCTIONS ARE LEGALLY VALID.

R. Judah said in the name of Samuel: The halachah is in agreement with [the view of] R. Johanan b. Beroka. And so said Raba: The halachah is in agreement with [the view of] R. Johanan b. Beroka.

Raba said: What is the reason [for the opinion] of R. Johanan b. Beroka? — Scripture said: Then it shall be, in the day that he causeth his sons to inherit²¹  [from which it is to be inferred that] the Torah gave authority to a father to cause anyone²²  whom he desires to inherit [his estate].

Abaye said to him: This [law,²³  surely, could be] deduced from, He may not make [the son of the beloved] the firstborn!²⁴  — That [text] is required for [the purpose of another inference], as it was taught: Abba Hanan said in the name of R. Eliezer:

1. If a man betrothed a woman, though he changed his mind immediately, the betrothal remains valid. [In Ned. 87a the reading is fuller: 'except (in the case) of blasphemy, idolatry, betrothal and divorce.]
2. I.e., any relative other than a son.
3. Lit., 'he said nothing'.
4. That one person shall he his sole heir.
5. In both of which cases his instructions are contrary to the Torah.
6. Wherein, then, lies the difference between them?
7. And that it is on this point that he differs from the first Tanna.
8. V, p. 541, n. 11.
9. Lit., 'what do they dispute on?', or 'on what are they divided?'
10. From this statement it is obvious that R. Johanan b. Beroka cannot be assumed to maintain, as has been suggested, that another legal heir may he appointed where there is a daughter, or that a daughter may be made heir where there is son
11. R. Ishmael.
12. R. Johanan b. Beroka and the Sages.
13. I.e., some other Tanna.
14. Our Mishnah, then, may be explained to represent the view of the first Tanna. Hence it is possible to suggest that R. Johanan maintains, as has been suggested above, that another legal heir may be appointed even where there is a son etc.
15. I.e., if there is an objection to the assumption that R. Ishmael was in dispute with another Tanna as to whether his own father was or was not in disagreement with the Sages.
16. Lit., 'all of it'.
17. Lit., 'is of',
18. Lit., 'and thus it teaches'.
19. Whom he named.
20. Gave instructions as to whom he desired to be his heir.
21. Deut. XXI, 16.
22. Of his sons; or, according to the first interpretation (supra note 1), any one of his legal heirs.
23. That a father may transmit all his estate to any one of his sons (or heirs).
24. Ibid. Which shows that it is only the birthright that a father may not transfer to another son. The other shares of his estate, however, he may, consequently, assign to whomsoever he pleases.

What [need was there for Scripture] to say, He may not make [the son of the beloved] the firstborn?¹  — Since it was said, Then it should be, in the day that he causeth his sons to inherit,²  one might argue that it is a matter of logical deduction, [thus:]³  If [in the case of'] an ordinary [son], who is privileged to receive [a share] in any prospective [property of his father] as in that which is actually in his possession, the Torah [nevertheless] gave authority to the father to transmit [his estate] to whomsoever he pleases, how much more [should he have this right in the case of] a firstborn, whose rights are impaired in that he does not receive [the portion of the birthright] in prospective property as in that which is actually in the possession [of his father]; hence it was expressly stated, He may not make [the son of the beloved] the firstborn. Then let Scripture say, He may not make [the son of the beloved] the firstborn,⁴  why should it [also] state Then it shall be, in the day that he causeth his sons to inherit? — Because one might [argue], is not this a matter of logical deduction?⁵  If [in the case of] a firstborn, whose rights are impaired in that he does not receive [the portion of his birthright] in prospective [property] as in that which is actually in [his father's] possession, the Torah, [nevertheless,] said, He⁶  may not make [the son of the beloved] the firstborn, how much less [should he have this right in the case of] an ordinary [son] who is privileged to receive in prospective [property] as in that which is actually in [his father's] possession; hence it was expressly stated, Then it shall be, in the day that he causeth his son to inherit, [in order to make it clear that] the Torah gave a father authority to transmit his estate to whomsoever he pleases.

R. Zerika said in the name of R. Ammi in the name of R. Hanina in the name of R. Jannai⁷  in the name of Rabbi: The halachah is in agreement with [the views of] R. Johanan b. Beroka. R. Abba said to him: The statement was that he [only] gave [such] a decision!⁸  Wherein lies the difference?⁹  — [One] Master holds [that] an halachah is preferable¹⁰  and the [other] Master holds that a practical decision is [of] greater [importance].¹¹

Our Rabbis taught: The halachah¹²  may not be derived either from theoretical [conclusion] or from a practical [decision] unless one has been told [that] the halachah [is to be taken as a rule] for practical decisions. [Once a person has] asked and was informed [that] an halachah [was to be taken as a guide] for practical decisions, he may continue to give practical decisions [accordingly],¹³  provided he draws no comparisons.¹⁴  What [could be meant by], 'provided he draws no comparisons'? Surely, in the entire [domain of] the Torah comparisons are made! — R. Ashi said: It is this that was meant: Provided one draws no comparisons in [ritual questions relating to] trefoth.¹⁵  For it was taught: In [the laws of] trefoth it must not be said this [one] is equal to that.¹⁶  And do not be astonished [at this], for [an animal] may be cut on one side¹⁷  and die, [yet when] it is cut on another side¹⁷  it remains alive.¹⁸

R. Assi said to R. Johanan: 'May we, when the Master tells us:¹⁹  "The halachah is so and so," give a practical decision accordingly?' He said: 'Do not use it as a practical guide²⁰  unless I declare [it to be] an halachah in [connection with] a practical decision.'²¹

Raba said to R. Papa and to R. Huna the son of R. Joshua: 'When a legal decision of mine comes before you [in a written form], and you see any objection to it, do not tear it up before you have seen me.²²  If I have a [valid] reason [for my decision] I will tell [it to] you; and if not, I will withdraw. After my death, you shall neither tear it up nor infer [any law] from it. "You shall neither tear it up" since, had I been there, it is possible that I might have told you the reason;

1. This law, surely, is specifically stated in Deut. XXI, 17, 'but he shall acknowledge he firstborn etc.'!
2. V. p. 543, n. 8.
3. Lit., 'for one might [say], is it not an argument.'
4. And this will amply prove that the birthright cannot be transferred.
5. V. note 3.
6. The father.
7. V. BaH., a.l.
8. I.e., that he decided a particular case in agreement with R. Johanan's views; not that he laid it down as a general rule, or halachah.
9. Between R. Zerika and R. Abba as regards practical considerations.
10. Since a halachah may be regarded as a general rule; while one practical decision which happens to agree with R. Johanan's views would not show that the law is always to be administered in accordance with these views. Other factors and circumstances may have led to the decision in that particular case.
11. Or, 'is a teacher', (Jast.) Since a practical case has been decided in agreement with R. Johanan, one may decide similar cases accordingly. A statement that the halachah is in agreement with R. Johanan would not enable one to act accordingly, unless, as stated infra, it was specifically added that it was to be taken as a guide for practical decisions.
12. I.e., laws for practical guidance.
13. He need not ask for a new ruling every time an exactly similar case is brought before him.
14. Whereby to decide other cases which do not resemble it in all respects.
15. [H] diseased animals which, though ritually slaughtered, are forbidden to be eaten.
16. And thus derive one law from another; the law relating, e.g., to a diseased liver from that of a diseased lung.
17. Lit., 'from here'.
18. Which shows that the injury to one limb must in no way be compared, for ritual purposes, to the injury of another.
19. In the course of our studies and discussions.
20. Lit., 'do not do'.
21. In which case one is careful with one's statements. In the course of theoretical discussions, however, one may sometimes give an unconsidered decision which may be contrary to the accepted law,
22. Lit., 'until you come before me'.