בכורות 48 — Soncino English Talmud

¹MISHNAH. IF A MAN'S WIFE HAD NEVER BEFORE GIVEN BIRTH AND SHE GAVE BIRTH TO TWO MALES, HE GIVES FIVE SELA'S TO THE PRIEST. IF ONE OF THEM DIES WITHIN THIRTY DAYS [OF BIRTH] THE FATHER IS EXEMPT. IF THE FATHER DIES AND THE SONS SURVIVE, R. MEIR SAYS: IF THEY GAVE THE FIVE SELA'S BEFORE THE PROPERTY WAS DIVIDED UP, IT IS IRRECOVERABLE BUT IF NOT, THEY ARE EXEMPT. BUT R. JUDAH SAYS: THERE IS A CLAIM ON THE PROPERTY. IF SHE GAVE BIRTH TO A MALE AND A FEMALE, THE PRIEST RECEIVES NOTHING. GEMARA. When did the father die? Shall I say that he died after thirty days [from the offspring's birth]? Would R. Meir say in this case that when they have divided up [the property] they are exempt from the five sela's? [How can this be] seeing that the property is mortgaged to the priest [for the five sela's]? Then you must say that he died within the thirty days. What then is the reason why where they have divided up [the property the sons are exempt]? [Presumably] because if he [the priest] goes to one, his claim can be rejected, and if he goes to the other, his claim can again be rejected! Why then should not the same apply to the case where they did not divide up the property, for if [the priest] goes to one, his claim can be rejected and if he goes to the other, his claim can be rejected? — Said R. Jeremiah: This proves that if there were two men of the name of Joseph b. Simeon in one city and they purchased a field in partnership, a creditor can claim it from them, for he can say to either: ‘If my claim is against you, I am taking your maneh, and if my claim is against your friend, I am taking the maneh of your friend’. Said Raba: Let us see. A man's property is surety for him. Can there be a case where one is not able to claim against a man himself and can yet make a claim on his surety? Have we not learnt: If one loans money to his neighbour through a surety, he cannot collect from the surety. And it was established by us that the expression ‘He cannot collect’ meant that he cannot collect first from the surety? But no, said Raba. I may still say that he [the father] died after thirty days; and if there is much property, then indeed [the priest] takes his due. The case before us, however, is one in which e.g., there are only five sela's. Now all the authorities concerned agree with the ruling of R. Assi. For R. Assi said: After the brothers [heirs] have divided up the estate, with regards to a half of it they are considered as heirs and with regards the other half, they are considered purchasers from one another. Moreover, all agree that a [pecuniary] obligation arising from a rule of the Torah16^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ

^ᵃnote:Since one of them must be a first-born.
^ᵇnote:From redeeming the survivor with five sela's, as he can maintain that it was the first-born which died and the priest is in the position of a claimant. A similar exemption applies to the surviving son, and the reason why the Mishnah refers to the father is because it wishes to mention in a later clause: IF THE FATHER DIES etc.
^ᶜnote:I.e., they cannot demand the return of the five sela's as they are legally bound to pay the redemption money which is considered a debt on the property. Lit., ‘they have given’.
^ᵈnote:As perhaps the female came forth first. The priest being the claimant, it is for him to prove that the male came forth first.
^ᵉnote:When the obligation of redemption commenced.
^ᶠnote:Since it is a real debt.
^ᵍnote:Saying: ‘I am not the first-born but my brother’.
^ʰnote:Against one of whom a man produces a note of indebtedness and each of them declares that the other and not he is the debtor.
^ⁱnote:And here also the priest seizes the five sela's, his debt, from the joint property and says to them: ‘If you are the first-born, I am taking from your portion, and if your brother is the first-born, I am taking from his portion, and you can settle the matter among yourselves’.
^ʲnote:It can be attached.
^ᵏnote:B.B. 174a.
^ˡnote:Until he claims from the debtor and the latter has not the means to pay. We therefore say that the first claim is on the debtor. Here, since the father died within the thirty days of the offspring's birth, the priest's claim cannot be made on the actual debtor, and therefore it cannot be made on his surety, i.e., his property.
^ᵐnote:Because the property was pledged for the five sela's during the father's life-time, and although the loan is only verbal, the priest can claim from the heirs if there is sufficient inheritance to meet the debt.
^ⁿnote:For there is a doubt whether we accept the principle of bererah i.e., whether a subsequent disposal has or has not a retrospective legal effect (v. Glos.) and consequently whether after having divided the estate the brothers stand to each other in the relation of co-heirs, or of vendees, each one having so to speak bought the share that fell to him from the other. Therefore in the case here, as we are in doubt, when the estate is subsequently divided up, we maintain that a half which the sons receive is as if they had received it at the beginning, their status being that of inheritors.
^ᵒnote:In case we do not accept the principle of bererah.
^ᵖnote:E.g., the duty of redeeming the first-born, valuation and civil damages. Tosaf. adds that this refers only to cases where without a specific command of the Torah, I might not have imposed any liability.

²is not on a par with an obligation in a note. Again, all agree with the ruling of R. Papa. For R. Papa said: One can claim repayment of a verbal loan from the heirs but not from the purchasers. And the point at issue here is whether the [biblical] five sela's rules out a half of five sela's [as a redemption]. R. Meir holds: Scripture says five sela's, thus ruling out a half of five sela's [as redemption] whereas R. Judah holds: Five sela's and even a half of five sela's. If this be the case, why does [the Mishnah say], R. JUDAH HOWEVER SAYS: THERE IS A CLAIM ON THE PROPERTY? Should it not read as follows: ‘There is a claim on the person’? And moreover it has been taught: R. Judah says: After the brothers [the heirs] have divided up the property, if there are ten zuz for one and ten zuz for the other, they must be redeemed from the priest, but if not, they are exempt. Now what does R. Judah mean by the expression ‘ten zuz for one and ten zuz for the other’? Shall I say that he refers to both the portion [that comes to them] as inheritance and to that part in regard to which the heirs are considered vendees? If this be the case, why does R. Judah mention ten zuz, for the same also applies to less than ten zuz? Then he certainly means that there are ten zuz [coming] as inheritance to one and ten zuz [coming] as inheritance to the other. Consequently we see that he holds that the [biblical] five sela's excludes [redemption with] half the five sela's! Rather [explain thus]: All the authorities concerned agree that the five sela's [of redemption] excludes [a redemption] with half of five sela's, and here they differ on the points raised by R. Assi and R. Papa. Some report this [whole argument] in connection with the latter clause [in our Mishnah as follows]. R. JUDAH SAYS: THERE IS A CLAIM ON THE PROPERTY. Now when did the father die? Shall I say that he died after thirty days? This would imply that R. Meir holds that when the property is divided up they are exempt from redemption. But is not the property pledged for redemption? Then we must say that he died within thirty days. But why then does R. Judah make the survivor liable to redemption, for if the priest goes to one his claim can be rejected, and if he goes to the other, his claim can again be rejected? — Said R. Jeremiah: This proves that if there were two men of the name of Joseph b. Simeon in one city and one purchased a field from the other, a creditor can claim from him for he can say to him: ‘If my claim is against you, I am taking your maneh, and if the claim is against your friend, the property is pledged to me for the debt before your claim’. Said Raba: Now a man's property is surety for him etc., as in the first version. MISHNAH. IF TWO WOMEN HAD NEVER BEFORE GIVEN BIRTH AND THEY GAVE BIRTH TO TWO MALES, HE [THE FATHER] GIVES TEN SELA'S TO THE PRIEST. IF ONE OF THE CHILDREN DIES WITHIN THIRTY DAYS [OF ITS BIRTH], IF HE GAVE THE REDEMPTION MONEY TO ONE PRIEST ALONE, HE RETURNS FIVE SELA'S TO HIM, BUT IF HE GAVE IT TO TWO PRIESTS, HE CANNOT RECLAIM THE MONEY FROM THEM. IF THEY GAVE BIRTH TO A MALE AND A FEMALE OR TO TWO MALES AND A FEMALE, HE GIVES FIVE SELA'S TO THE PRIEST. IF THEY GAVE BIRTH TO TWO FEMALES AND A MALE OR TO TWO MALES AND TWO FEMALES, THE PRIEST RECEIVES NOTHING. IF ONE WOMAN HAD GIVEN BIRTH BEFORE AND THE OTHER HAD NEVER GIVEN BIRTH, AND THEY GAVE BIRTH TO TWO MALES, HE GIVES FIVE SELA'S TO THE PRIEST. IF ONE OF THE CHILDREN DIED WITHIN THIRTY DAYS [OF ITS BIRTH], THE FATHER IS EXEMPT. IF THE FATHER DIES AND THE CHILDREN SURVIVE, R. MEIR SAYS: IF THEY GAVE THE REDEMPTION MONEY BEFORE THE DIVIDING UP [OF THE PROPERTY], IT IS IRRECOVERABLE, BUT IF NOT, THEY ARE EXEMPT, BUT R. JUDAH SAYS: THERE IS A CLAIM ON THE PROPERTY. IF THEY GAVE BIRTH TO A MALE AND A FEMALE, THE PRIEST RECEIVES NOTHING. IF TWO WOMEN WHO HAD NEVER BEFORE GIVEN BIRTH MARRIED TWO MEN AND GAVE BIRTH TO TWO MALES, THE ONE FATHER GIVES FIVE SELA'S TO THE PRIEST AND THE OTHER GIVES FIVE SELA'S TO THE PRIEST. IF ONE OF THE CHILDREN DIED WITHIN THIRTY DAYS [OF ITS BIRTH], IF THEY GAVE THE REDEMPTION MONEY TO ONE PRIEST ALONE, HE RETURNS FIVE SELA'S TO THEM, BUT IF THEY GAVE THE MONEY TO TWO PRIESTS, THEY ARE NOT ABLE TO CLAIM IT FROM THEM. IF THEY GAVE BIRTH TO A MALE AND A FEMALE, THE FATHERS ARE EXEMPT FROM THE DUTY OF REDEMPTION, WHEREAS THE SON MUST REDEEM HIMSELF [AS IN ANY CASE HE IS A FIRST-BORN]. IF THEY GAVE BIRTH TO TWO FEMALES AND A MALE OR TO TWO FEMALES AND TWO MALES, THE PRIEST RECEIVES NOTHING. IF ONE WOMAN HAD GIVEN BIRTH BEFORE AND THE OTHER HAD NEVER BEFORE GIVEN BIRTH, THE WOMEN BELONGING TO TWO HUSBANDS, AND THEY GAVE BIRTH TO TWO MALES, THE ONE WHOSE WIFE HAD NEVER BEFORE GIVEN BIRTH GIVES FIVE SELA'S TO THE PRIEST. IF THEY GAVE BIRTH TO A MALE AND A FEMALE, THE PRIEST RECEIVES NOTHING. GEMARA. What is the reason that in the case of two priests the redemption money cannot be recovered? Presumably because if he [the father] goes to one priest his claim can be rejected, and if he goes to the other his claim can again be rejected. Why then should we not apply the same principle to the case of one priest, so that if one father goes to the priest the latter can reject his demand [to return the money] and if the other goes to the priest, the latter can also reject his demand? — Said Samuel:^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ

^ᵠnote:But is regarded as a verbal loan.
^ʳnote:Consequently the inheritors are exempt. For half of their share is considered as belonging to them as vendees and there is thus no inheritance left except two-and-a-half sela's, and the priest is not able to claim this, since a verbal loan cannot be claimed from property in the hands of the buyers.
^ˢnote:And the priest can therefore take the half which is considered as the inheritance.
^ᵗnote:If you say that we are dealing here with the case where he died after the thirty days.
^ᵘnote:The father. For since we are referring to a case where the father died after the thirty days when there was a duty upon him to redeem, it would have been more appropriate for R. Judah to declare there is a liability standing against the father which the survivors must discharge.
^ᵛnote:And both the brothers are cases of doubtful first-born.
^ʷnote:I.e., two-and-a-half- sela's; a sela’ == four zuz.
^ˣnote:If there are not ten zuz for each survivor.
^ʸnote:And when R. Judah declares that they are obliged to be redeemed from the priest, he means from the portion of the inheritance, since you say that all hold the view of R. Assi and R. Papa. Consequently we infer from this that R. Judah maintains that one can redeem a first-born with even less than the statutory five sela's of the Bible.
^ᶻnote:Even for example, if each brother had only eight zuz, making four sela's in all, of which the priest would receive two, as the other half is considered as property bought from each other, the law would be the same. Consequently what need is there for R. Judah to mention specially the figure of ten zuz, for, since the whole of the redemption money cannot be paid, a third or a fourth of the sum is also valid.
^ᵃᵃnote:Apart from the half of the property in regard to which they are considered vendees, making five sela's as the portion that comes to them as inheritance.
^ᵃᵇnote:R. Meir holds with both R. Assi and R. Papa, and as there is not more than five sela's altogether, the priest takes nothing. for the five sela's of the Bible is strictly meant and one cannot therefore effect redemption with less than this sum. As for R. Judah, if he agrees with R. Assi that in regard to half of the property they are considered vendees, and not with the opinion of R. Papa, that a verbal loan cannot be claimed from property in the hands of buyers. the priest takes the whole. And if he does not agree with the opinion of R. Assi, but holds that in regard to the entire property they are regarded as heirs, then, whether he agrees with R. Papa or not, the priest takes the whole of the five sela's. According to this explanation we therefore interpret the Baraitha as follows: If there are ten zuz altogether for each brother, they must give all their property for redemption, but if there is not property of the value of five sela's, the survivors are exempt from the duty of redemption, for the statutory five sela's exclude a redemption of less than this amount (Rashi).
^ᵃᶜnote:As here where R. Judah holds that heirs who have divided up the property are considered as buyers.
^ᵃᵈnote:To the end of the argumentation.
^ᵃᵉnote:Married to one husband.
^ᵃᶠnote:Because since one child died within thirty days of its birth, then clearly the child was an untimely birth and therefore the priest is is not entitled to receive redemption money (Rashi). According to Tosaf. 49a s.v. ,n the reason why the money is returned is not because the child was a non-viable birth, for even if it was a viable birth, since it died within thirty days, there is exemption, the Torah making redemption of the first-born dependent on its being a month old.
^ᵃᵍnote:Because each priest can rebut the father's claim by declaring ‘I am retaining the redemption money on account of the living child’.
^ᵃʰnote:In a hiding place, and the children became mixed and the identity of each child could not be ascertained.
^ᵃⁱnote:As in any case one child must be a first-born. For if one woman gave birth to two males, the first male is the first-born, and if one woman gave birth to a male and a female, then the other gave birth to a male alone which is therefore the first-born, the male which was born with the female being exempt from the law of the firstborn in case the female came forth first.
^ᵃʲnote:As we can say in each case that the female came forth first.
^ᵃᵏnote:As only one child can he a first-born, since one woman had already given birth previously.
^ᵃˡnote:From redemption with five sela's, because he can maintain that it was the offspring of the woman who had never before given birth which had died.
^ᵃᵐnote:And the two fathers divide the money between them.
^ᵃⁿnote:For each priest can claim: ‘I am retaining the money on account of the living child, as the child on whose behalf I received the money did not die’, and the burden of proof is on the claimant, the father.
^ᵃᵒnote:Because each father can say to the priest that the female offspring belongs to him.
^ᵃᵖnote:In the case of two females and a male, each one can say that one woman gave birth to the female and the other to a male and a female, the female coming forth first. And with reference also to the case of two females and two males, each can say that the woman gave birth to a female first in each case.
^ᵃᵠnote:In case the female was born to the woman who had never given birth previously.
^ᵃʳnote:Saying: ‘It is not your male son which died but your neighbour's, and therefore I am entitled to the five sela's’.