Masechet Bava Batra 126a-132b

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Last will and testament
23 Dec 2009

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Bava Batra 126a-b

According to Jewish law, can someone write a will so that his estate will be divided up according to his own wishes and desires after his death?

Torah law (Devarim 21:15-17) makes clear that the double portion belonging to the firstborn cannot be transferred to another child – even to the firstborn child of the preferred wife. According to the Mishna on today’s daf, a father will also be unable to cut one of his sons out of the inheritance. All of these acts are considered to be matneh al mah she-katuv ba-Torah – he is making a condition that negates Torah law – which is considered null and void.

At the same time, the Mishnah has a recommendation for a parent who wants to divide up his wealth as he sees fit – he can give his property away to his children or, for that manner, to anyone he wants – while he is still alive. Even if he arranges to give away all of his money so that there is none left in the estate at the time of his death, he has every right to do what he wants with his money when he is alive. The only prohibition would be for someone to try to abrogate the biblical laws of inheritance.

The Gemara points out that the fact that halacha will not let someone choose to will his property to whoever he wants after death appears to negate a principle taught by Rabbi Yehuda, who rules that tenai she-bamamon kayam – that with regard to money matters, a person can choose to make a condition that does not follow Torah laws. The specific example brought by the Gemara is when someone marries a woman and makes it conditional on his not being obligated to clothe or support her – biblically mandated requirements (see Shemot 21:10) – Rabbi Yehuda rules that he can arrange for a marriage under those conditions.

The Gemara distinguishes between the two cases, arguing that in the case of marriage, the woman agrees to the condition. Apparently such a case would not be viewed as an abrogation of Torah law, but as the wife’s choice to relinquish rights that are coming to her.

Bava Batra 127a-b

As we have learned, Torah law (Devarim 21:15-17) makes clear that the firstborn son receives a double portion of the inheritance once his father dies.

Rabbi Ammi teaches that this law applies only to a child that was clearly born as a firstborn son. If the child was a tumtum, then he would not receive the double portion, even if we later found him to be a male child.

The Gemara describes a tumtum as someone whose gender cannot be determined. Sometimes this condition stems from an inherent genetic defect, and the child will remain in that state for his entire life. Other cases of a tumtum are caused by low levels of male or female hormones in the developing child. Under such circumstances, the sex organs may actually develop at a later time – sometimes years later. In such cases, if the male sex organ develops, it appears as if the physical covering that hid the sexual organ has been removed (in the language of the Gemara it is nikra, or “torn” off) and the individual can be identified as male.

A tumtum – even one whose gender is determined after a time – will not receive the double portion because the passage (Devarim 21:15) refers to ha-ben ha-bechor – the son who is firstborn – which is understood to require the firstborn to be a son at the time of birth, and not someone whose gender was determined at a later date.

Although the tumtum would not be considered a firstborn male child for the purposes of receiving a double share, he will still receive a simple share as a male child. Ameimar teaches that even though he will receive a portion he would not be considered a male son when calculating the firstborn share. Thus, if there were four children in the family – a firstborn son, two ordinary children and the tumtum who was found to be male, we first calculate the estate as if there were four shares – the firstborn, who receives two shares and his two brothers who receive one share apiece. After we give the firstborn his extra quarter share, the three-quarters that are left will be divided into four shares – one for the firstborn, one each for the two ordinary brothers and one for the tumtum.

Bava Batra 128a-b

As we have learned, Torah law (Devarim 21:15-17) makes clear that the firstborn will receive a double portion of the inheritance when his father dies, and that the father cannot show preference and choose another child – even one who is the firstborn to the preferred wife. One issue that is left unclear is how we determine which child is the firstborn.

Rabbi Aba teaches that if a father points out one of his children, we rely on the father’s testimony about his children. Rabbi Yochanan disagrees and says that the father cannot be relied upon. Rava explains this argument as referring to a case where the father points to one of his children and states that he was the firstborn – even if another one of the children had been assumed to be the firstborn, Rabbi Aba rules that we believe the father. Rabbi Yochanan rules that we must rely on what was generally known and accepted before the father made this statement. The Rashbam points out that even Rabbi Aba would not require a statement from the father. Under ordinary circumstances we would give the double portion to the child who was known to be the oldest. If, however, the father tells us that what was commonly assumed to be true was mistaken, we believe him.

The Ba’al Halakhot Gedolot understands from this that we will believe the father even if that will lead us to conclude that the other children who grew up in his house are mamzerim – the product of an adulterous relationship – since he denies that they are his children. According to most rishonim the father will be believed to say that any one of his children is illegitimate. The Ri”d argues with this ruling and suggests that the case in our Gemara is when one child appears to be smaller than his siblings and is therefore assumed to be younger. In such a case the father is believed to state that the smaller child is, in fact, the older one.

Bava Batra 129a-b

As we have learned (see daf 126) a man cannot choose to change biblical inheritance laws, but he does have the right and the ability to divide his wealth any way he wants to while he is still alive. The Mishnah (126b) teaches that as long as he says that what he is doing is a gift it will work, even if he also says that he means it to be an inheritance. The Gemara on our daf explains that this will work in all cases where the statements are made toch ke-dei dibbur – when they are said “in the same breath.”

The idea of toch ke-dei dibbur is established by the Sages as the amount of time that it would take to say three words, e.g. the words of greeting Shalom alechah Rabi.

The Rashbam explains that when two statements are made in the same breath, it is as if they were said simultaneously. Therefore, if we can apply both statements, we will do so. If only one of them is a viable statement – like in our case where the two statements refer to a gift and inheritance and only the statement about the gift can be applied, that is the one that we listen to. If the two statements contradict, then we have a difference of opinion as to whether we should listen to the first statement or the second, or perhaps divide the thing in question or leave it in the hands of the person who has possession of it. In any case, if the second statement was one where the person says “I take back my first statement” then that is what we give credence to.

The foundation of this rule is, according to Rabbeinu Tam, of rabbinic origin. The Sages wanted to give someone who was in the midst of negotiations the opportunity to greet his teacher, and then return to his business without affecting it. Other rishonim explain that this law has biblical effect, and is simply based on the idea that until a person has completed his statement he can alter or negate it.

Bava Batra 130a-b

What is the best way to determine a ruling in Jewish law – to learn the rules from a teacher or to see him act on a given issue or question?

This question is a point of disagreement between amoraim in our Gemara. The Rashbam explains that each of these has its own unique advantages and disadvantages. When a student sees his teacher acting, he cannot know all of the details and facts that may be unique to this case. Furthermore, as the Ritva points out, perhaps this is a hora’at sha’ah – a one-time ruling made for a specific reason. On the other hand, actually acting on a question is a much more powerful statement about the certainty of the ruling than is a verbal statement. Such a ruling can be viewed as definitive, unless of course, there was a clear statement indicating that it was not appropriate in other cases or settings.

The Gemara quotes a baraita that rules on this issue. According to the baraita, the halacha may not be derived either from a theoretical discussion or from a practical decision unless one has been told that the halacha is to be taken as a rule for practical action (halacha le-ma’aseh). Once a person has asked and was informed that a halacha was to be taken as a guide for practical action, he may base future decisions on this precedent, provided he draws no comparisons.

The Gemara then limits this caveat “provided he draws no comparisons” only to cases like terefot – recognizing a diseased animal that is not kosher – where damage to one organ may be fatal, while the same damage to a different organ may not be fatal. Otherwise it is commonplace that legal decisions will be based on precedent, parallels and comparisons, for, as the Gemara says kol ha-Torah kulah damuye me-daminan lah – the entire legal code of the Torah is made up of comparisons. The Ramah explains this line as meaning that it is obvious that no law book can contain all of the different possibilities that a person will face, and the only way to decide a legal question is by inferring from one case to another.

Bava Batra 131a-b

Must a father support his children?

Strange as this may sound, there does not seem to be a clear source in the Torah obligating a father to support his children, although it is certainly a mitzvah for him to do so. In fact, the Mishnah in Ketubot (52b) that is quoted in our Gemara teaches that if an agreement to support the children was not clearly written into the ketubah – the marriage contract – nevertheless the husband’s estate will be forced to support them after his death, because it is a tenai bet din – it is a required condition of marriage.

The Gemara quotes Rabbi Elazar ben Azaria who taught before the Sages in Kerem Be-Yavneh that the parallel language in the ketubah that guarantees that the sons will inherit and the daughters will be supported by his estate indicates that the promise to support the daughters comes into being at the same time as the inheritance, i.e. only after the man’s death. Thus during his lifetime there is neither a biblical, nor a rabbinic obligation for a father to support his children, even though the local court will place sanctions on a parent who does not do so (see Ketubot 49).

The Sages of Kerem Be-Yavneh were those who learned in the great yeshiva in Yavneh, which was the seat of the nasi after the destruction of the second Temple. According to the Talmud Yerushalmi, the gathering was not called Kerem be-Yavneh because of a vineyard that grew there, but rather it was because the students sat in a series of long rows that were reminiscent of the standing vines of a vineyard. Since this was the gathering place of the majority of the Sages of that generation, it became known as the bet ha-va’ad – the gathering-place of the committee (of scholars). This is the place where the most serious issues of halacha – those that would impact on the future of the Jewish community in a particularly difficult period in history – were raised for discussion; therefore the decisions that were made in Kerem be-Yavneh were treated with the greatest respect by all.

Bava Batra 132a-b

The ketubah, or marriage contract, is one of the safeguards that the Sages developed for the protection of the interests of a married woman. Among the guarantees in a ketubah is a sum of money that the woman can collect (usually 100 or 200 zuz) in the event that her husband dies or divorces her. This obligation is guaranteed by land that he owns, and she will be able to collect her ketubah from that land if there is no money available to pay her otherwise.

Our Gemara quotes a Mishnah in Masechet Pe’ah (3:7) that teaches that if a man divides his wealth between his children at the end of his lifetime and includes a portion of land for his wife, as well, then ibdah ketubatah – she has lost her ketubah.

The Gemara questions why she should lose her ketubah simply because she was given part of his wealth while he was alive. Three explanations are offered by the amoraim:

It should be noted that even when the Gemara says ibdah ketubatah – she has lost her ketubah – it only means that she loses the guarantee of payment for her ketubah. The actual money that is owed to her remains, and should he get other money or property before his death, the estate would pay the obligation as written in the ketubah.

The Gemara concludes with Rav Nachman‘s ruling that none of these situations is necessary. In fact, since the husband put her on equal footing with the children in his wealth, she loses her ketubah. According to the Rashbam, this means that the honor he is giving to her in receiving a share of the inheritance leads her to give up her rights as guaranteed in the ketubah.

In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.