בכורות 48:1 — Soncino English Talmud

MISHNAH. 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.