047b - יש בכור פרק שמיני בכורות דף מז, ע"ב

It was stated: A kohen who died and left a son who is a chalal^[1] –

בן חלל - He is like a Yisrael, and is subject to [the law of] the firstborn.

Rav Chisda said: The son is obligated to redeem himself.^[2]

Rabbah bar Rav Huna said: He is not obligated to redeem himself.

Wherever the father died after thirty [days], all agree that the son is not obligated to redeem himself, for his father has already acquired his redemption.^[3]

לאחר שלשים - [Then] he is subject to the mitzvah of redemption, as it is written (Bamidbar 18): and those to be redeemed, from a month old.

שהרי זכה אביו בפדיונו - For even if [the father] had given it, the father would have set it aside and taken it for himself, since he is a kohen. And since the father acquired his redemption, he bequeaths it to his son together with the rest of his property.

Where they disagree is where the father died within thirty days:

Rav Chisda said: The son is obligated to redeem himself, since his father did not acquire his redemption.

לא זכה האב - For the father was never obligated; rather the son became obligated after his father's death, and he is obligated to give it to another kohen.

Rabbah bar Rav Huna said: The son is not obligated to redeem himself, for he can say to [the kohen]: I come in the power of a man with whom you could not have gone to law.^[4]

דאמר ליה - This chalal [says] to the kohen: I come in the power of a man – a kohen – with whom you could not have gone to law; for had my father redeemed me, he would have taken the redemption money for himself.

We learned [in the Mishnah]: If she converted while pregnant, [her son] is a bechor for the kohen.^[5]

נתגיירה מעוברת - And she had never yet given birth: that child is a bechor for the kohen.

But why? Let him say to [the kohen]: I come in the power of a man with whom you could not have gone to law!

אמאי - Let him say to him: I come in the power of a man who does not submit to judgment.

A gentile is different, for he has no lineage.^[6]

דלית ליה חייס - With regard to a Yisrael he has no lineage at all, and this [son] does not come in his power, for [a convert] is like a child just born.

R' Shimon Yasinia said in the name of R' Shimon ben Lakish: A kohen who died within thirty [days] and left a son who is a chalal – the son is obligated to redeem himself, for the father did not acquire his redemption.

If he died after thirty days – the son is not obligated to redeem himself, for the father acquired his redemption.

And likewise a woman who did not wait three months after her husband, etc.^[7]

It is as a bechor for inheritance that he does not count; but as an ordinary son he does take [a share].^[8]

But why? Let him go to this one, and he will push him away; and to that one, and he will push him away!

R' Yirmiyah said: It is needed only for the one who comes after him,

לא נצרכא - The Mishnah, which teaches he is not a bechor for inheritance, is needed only for the one who comes after him; but he himself takes nothing, for the son of the first [husband] says to him: You are not the first one's son; and likewise the son of the later one says [the same] to him.

and this is what it means: [the doubtful one] is a bechor for the kohen, and the one who comes after him is not a bechor for inheritance.

והכי קאמר בכור לכהן - This doubtful one is [a bechor for the kohen] either way, for he opened the womb, and he is obligated to redeem himself. And the one who comes after him – the second – is not a bechor for inheritance, for his brothers say to him: That doubtful one is our father's son, and you are not the bechor.

But let them write a power of attorney to each other!^[9]

ולכתבו הרשאה זה לזה - The doubtful one and the one who comes after him: let one write a power of attorney to the other for his share, and he will go and claim the firstborn's portion either way: If I am the bechor, give it to me for myself; and if my brother is the bechor, give it to me on behalf of my brother – for either the doubtful one or the one after him is the bechor.

And if you say: The Mishnah [speaks] without a power of attorney –

וכי תימא מתני' שלא בהרשאה - – it deals [with that case], and this is what it means: If they did not write powers of attorney, there is no bechor for inheritance here.

but we establish it later as [speaking] with a power of attorney!

הא מוקמינן ליה לקמן דבהרשאה קמיירי - For Shmuel said: where he comes with a power of attorney. Rather, it must be that a power of attorney does not help here at all.

This supports R' Yannai, for R' Yannai said: If they were identified and in the end became mixed up – they write a power of attorney to each other,

מסייע ליה לרבי ינאי - Who said: If they were identified and in the end became mixed up – such as two wives of two men whose babies were identified and afterwards became mixed up; and now, when they all come to inherit, their brothers push them away, for to each one they say: You are not our brother.

כותבין הרשאה זה לזה - Each one to the other, for his share in his father's property; and the holder of the power of attorney comes to the heirs of both fathers and says to each: If I am your brother, give it to me; and if this one is your brother, give me his share. And likewise to the sons of the other. But if they were never identified, they do not write, for they never had any right in [their father's] property. And our Mishnah too is where they were never identified, for it was never known which one is the bechor, and none of them ever acquired the status of bechor. This [teaching] of R' Yannai is in Bava Basra, in [Perek] Yesh Nochalin (127a).^[10]

if they were not identified and in the end became mixed up – they do not write a power of attorney to each other.

Mishnah

Which is a bechor both for inheritance and for the kohen?

One who miscarries a shefir^[11] full of water, full of blood, full of [colored] matter; one who miscarries [something] like fish, locusts, abominable things or creeping things; and one who miscarries on the fortieth day – the one who comes after them is a bechor both for inheritance and for the kohen.

מתני' שפיר - The skin of the fetus itself.

גנינים - Colors.

וחגבים - These are not offspring; and the reason is explained in Maseches Niddah, in [Perek] HaMapeles Chaticha (22b): formation is not said of them as it is of a human.

ליום ארבעים - [From] when she conceived it is mere blood, until it reaches the day after the fortieth, for at forty days the fetus is formed.

One born by caesarean section and the one who comes after him^[12] – neither of them is a bechor, neither for inheritance nor for the kohen.

יוצא דופן והבא אחריו - [The second, born] by way of the womb: neither of them is a bechor, and the reason is explained in the Gemara.

R' Shimon says: The first [is a bechor] for inheritance, and the second for the five sela'im.

Gemara

The first is not [a bechor] for inheritance – for we require (Devarim 21) and they have borne him;^[13]

גמ' וילדו לו בעינן - By way of birth.

nor for the five sela'im – for we require (Shemos 13) that opens the womb.

The second is not [a bechor] for inheritance – for we require (Devarim 21) the first of his strength;

nor for the five sela'im – he holds: one who is a bechor in one respect is not a bechor.

בכור לדבר אחד - Such as this one, who is a bechor of the womb but not a bechor of the offspring, for [the father] had a male child before him.

R' Shimon says: The first for inheritance, and the second for the five sela'im.^[14]

R' Shimon follows his own reasoning, for he said: (Vayikra 12) she bears – to include one born by caesarean section.^[15]

לטעמיה - As he said in Maseches Niddah, Perek Yotzei Dofen (40a): and if she bears a female – to include one born by caesarean section, that it is a full birth and she keeps for it the days of impurity and purity. Therefore regarding and they have borne him too he counts it a full birth, for we learn from there.

And the second for the five sela'im – he holds: one who is a bechor in one respect is a bechor.

בכור לדבר אחד - Such as the second, who is a bechor of the womb – he is a bechor for the kohen. But the first, although he is a bechor in one respect – for he is a bechor of offspring and of males – nevertheless he is not a bechor [for the kohen], for the Torah made it depend on “opening the womb.”

Tosfos

הבן חייב לפדות את עצמו - For the father did not acquire his redemption; rather the son is obligated to redeem himself, even though there was no obligation on the father. And likewise the Mishnah, as we learned: she converted while pregnant, she was freed while pregnant (כשר). And it is difficult: for in the first perek of Kiddushin (29a)^[16] we derive [the son's obligation] from the mitzvah of the son on the father, for we expound you shall surely redeem: a woman, whom others are not commanded to redeem, is not commanded to redeem herself. So too this son, whom others are not commanded to redeem, should not be obligated to redeem himself! One can answer that this son is not like a woman: for in her case no redemption by any father applies at all, but here, had he had a Yisrael father, [the father] would have been obligated to redeem him.

ראשון לנחלה לא וילדו לו בעינן - From the explanation of the Kuntres^[17] it seems that he derives it from the word “birth.” But this is difficult: for in Niddah, [at the start of] Perek Yotzei Dofen (40a), (ברישי') it explains that one does not keep the days of impurity and purity for it because it is written a woman who conceives and bears a male – [only] when she bears from the place where she conceives; but not from the word “birth.” Rather, one can explain that here he learns “birth” [from “birth”] from there; and R' Shimon here follows his reasoning, as it says shortly, for there he includes the caesarean birth (ibid.) from “she bears,” that one keeps for it the days of impurity and purity. And if you say: there it says that R' Shimon concedes regarding sacrifices that [a caesarean animal] is not holy, for he learns from the bechor, where “that opens the womb” is written; and it asks: let him learn “birth” “birth” from a human, where we include the caesarean birth from “she bears,” for [both share]: an ordinary [birth], holy, male, [subject to] gifts; and it answers: we should learn from the bechor, for [its similarities] are more: its mother, animals, sacrifices, piggul, nosar and tamei.^[18] And now here too, let us learn from a firstborn animal, for [it is] bechor from bechor! One can answer that those [similarities] are more, for [against] human from human: they are not sacrificed, and piggul, nosar and tamei do not apply to them. And the human bechor of kehunah, where “that opens the womb” is written – R' Shimon cannot learn it from the bechor for inheritance, for regarding the human bechor of “opening the womb,” “birth” is not written.

וילדו לו בעינן - It is difficult: since we expound the verse regarding the bechor, then in Perek Yesh Nochalin (Bava Basra 127a), where we expound that a tumtum^[19] who was torn open and found to be male does not reduce the firstborn's portion,^[20] for the verse says and they have borne him sons – until he is a son from the time of birth; and that he does not take a double portion we expound from and the bechor will be – until he is [a bechor] from the time of coming into being; and likewise in Perek Mi Shemeis (ibid. 142b) we expound that a son born after his father's death does not reduce the firstborn's portion, from what is written and they have borne him; and that he does not take a double portion we expound from what is written he shall recognize – why [are these verses needed]? All these things could be derived from and they have borne him, since we apply it to the bechor! One can answer that had two verses not been written, we would have applied it only to the bechor, that he does not take a double portion; for it would have been more reasonable to apply it to the bechor, that he not take a firstborn's portion, than to apply it to an ordinary son, that he not reduce the firstborn's portion. A proof: regarding the caesarean birth, where there are not two verses, we expound it to teach that he does not take a double portion, and we do not expound it to say that he does not reduce [it].

בכור לדבר אחד הוי בכור - And if you say: for this very reason the caesarean one should be a bechor for the five sela'im, even though “that opens the womb” is written regarding it, as we find at the end of the second perek (above, 19a), where we learned: A caesarean-born [animal] and the one that comes after it – R' Tarfon says: both of them shall graze until they become blemished,^[21] and the Gemara explains that he is in doubt whether one who is a bechor in one respect is a bechor or not – even though there too “that opens the womb” is written! One can answer that R' Shimon's view differs from R' Tarfon's: although the one after it is more clearly a bechor to him than to R' Tarfon, nevertheless he holds the caesarean one weaker, and excludes it by “that opens the womb.”

Notes

1. 1. Chalal – the son of a kohen from a woman forbidden to a kohen, such as a divorcee. He has no kehunah and is like a Yisrael, so as his mother's firstborn he needs redemption.
2. 2. Pidyon haben – a father must redeem his firstborn son from a kohen with five sela'im once the child is thirty days old. If the father did not, the son must redeem himself when grown. A kohen's son needs no redemption.
3. 3. Once thirty days passed in the father's lifetime, the obligation fell on him; as a kohen he is entitled to that money himself, so it counts as his, and the son inherits it.
4. 4. The son steps into his kohen father's place: just as no other kohen could have claimed the redemption from the father (he would have kept it himself), so no kohen can claim it from the son.
5. 5. [Bechoros 46a] A woman who converted while pregnant: her son is born a Jew and opens the womb, so he is a bechor for the kohen, though not for inheritance.
6. 6. Halachah gives a gentile no legal paternity over his child; a convert is “like a newborn child,” so the son cannot claim through his father.
7. 7. [Bechoros 46a] A woman remarried within three months of her husband's death or divorce and gave birth, and it is unknown whether the child is a nine-month child of the first husband or a seven-month child of the second. The Mishnah rules he is a bechor for the kohen (he opened the womb) but not a bechor for inheritance.
8. 8. A bechor takes a double portion of his father's estate; a pashut, an ordinary son, takes a single share.
9. 9. Harsha'ah – a power of attorney: a document authorising another to claim one's rights. Here each would authorise the other, so the firstborn's portion could be claimed whichever of them is the bechor.
10. 10. [Bava Basra 127a] When the babies were once identified, each acquired his share in his father's estate and can delegate it; if they were never identified, they never acquired anything to delegate.
11. 11. Shefir – the sac in which the fetus develops. When no formed fetus is in it, it does not count as a birth, so the next child opens the womb.
12. 12. Yotzei dofen – a child born through the wall of the abdomen, not through the womb. He did not open the womb, and the next child is not his father's first.
13. 13. [Devarim 21:15–17] The passage of the bechor's double portion in inheritance; from “and they have borne him” the Gemara learns that a normal birth is needed.
14. 14. R' Shimon disagrees on both: the caesarean child, being his father's first, is a bechor for inheritance; and the next child, the first to open the womb, is a bechor for the kohen.
15. 15. [Niddah 40a] R' Shimon expounds “and if she bears a female” (Vayikra 12:5) to include a caesarean birth: the mother keeps the days of impurity and purity for it, and it is a full birth.
16. 16. [Kiddushin 29a] There the Gemara expounds: whoever others are commanded to redeem must redeem himself, and whoever others are not commanded to redeem need not redeem himself.
17. 17. Kuntres – the Tosafists' name for Rashi's commentary.
18. 18. Piggul, nosar, tamei – laws of sacrificial meat: an offering invalidated by intent to eat it beyond its time; meat left beyond its time; and sacrificial meat that became impure. They apply only to animals.
19. 19. Tumtum – one whose genitals are covered, so his sex is unknown. If he is torn open and found to be male, he was not a known son at birth.
20. 20. The bechor's extra portion equals one son's share, so each additional brother reduces it. A son who “does not reduce” is left out of that reckoning.
21. 21. [Bechoros 19a] R' Tarfon is in doubt whether a bechor in one respect is a bechor; so the caesarean animal and the one after it graze until blemished, and are then eaten by the owner in their blemish.