Bava Batra 126b — the Talmud in English

Some hold, [

Rav Pappi]:

he accomplished nothing with regard to half.

That is, with regard to the ordinary share . But the firstborn has the right to sell the firstborn share, since he has it before the division.

And some hold, [

Rav Pappa]: he accomplished nothing

with regard to all of them.

Since the firstborn has nothing before the division. And he cannot sell even his firstborn share.

They sent word from there [

the Land of Israel]:

a firstborn who sold

his firstborn share

before the division accomplished nothing.

Evidently

they hold

that the firstborn has nothing before the division.

And the halakha is: the firstborn has [his share] before the division.

And if he sold or waived [his rights], or took one share like an ordinary son, he relinquished his rights throughout all the property. For upon the father’s death he acquired all the property and can transfer it as he wishes

. Mar Zutra of Darishba [

the name of a place], was a firstborn, and

divided a basket of pepper [

a basket full of peppers]

equally with the brothers

and did not demand his firstborn share from them.

He came before Rav Ashi, who said to him: Since you waived your rights with regard to part of it, you waived your rights with regard to all the property.

As above.

Mishna:

One who says

to his sons before his death:

“So-and-so, my son,”

even though he is

a firstborn, shall not take a double portion

of my property, or

“So-and-so, my son, shall not inherit together with his brothers,” said nothing.

Because he

made a condition contrary to what is written in the Torah

.

That is, he has no power to say that he shall not inherit, because the Torah decreed that he shall inherit.

And if the father wished that one of his sons should not inherit, he must give his property as a gift to the other brothers.

And therefore,

one who distributes his property according to his word,

such as in the gift of a dangerously ill person, which does not require an act of acquisition, and

increases the portion of one, decreases the portion of another,

or

makes the firstborn equal to them, his words stand.

And if he said

at the time that he distributed it that his intention was

by way of inheritance, he said nothing.

For he made a condition contrary to what is written in the Torah, as above.

But if he spoke in the language of inheritance, and also

wrote—whether at the beginning, in the middle, or at the end—“by way of gift,” his words stand.

Gemara:

It is explained in the Mishna that it is impossible to make a condition contrary to what is written in the Torah even with regard to matters concerning property.

And the Gemara raises a difficulty:

Shall we say that our Mishna is not in accordance with Rabbi Judah?

For if it is Rabbi Judah, he said:

one who makes a condition contrary to what is written in the Torah

with regard to a monetary matter, his condition stands?

As it was taught in a beraita: One who says to a woman, “You are betrothed to me on condition that you have no claim against me for sustenance, clothing, or marital relations”—she is betrothed, but his condition is void. These are the words of Rabbi Meir.

Rabbi Judah says: With regard to a monetary matter

his condition stands

.

And the Gemara answers:

Even you may say that it is Rabbi Judah; there

the woman

knew

of the condition before the marriage,

and she waived her claim,

and therefore his words stand. But

here, he does not waive his claim

. It is stated in the Torah: “For he shall acknowledge the firstborn, the son of the hated one,” and from here we learn that the father is trustworthy to acknowledge his firstborn son and to say, “This is my firstborn son.”

And below it will be explained that Rabbi Judah and the Rabbis disagree concerning this law. According to Rabbi Judah, he is trustworthy to say, “This is my firstborn son,” even if it had been established for us that he is not the firstborn.

And according to the Rabbis, he is trustworthy to say, “This is my firstborn son” only where nothing had been established for us. But against an established presumption he is not trustworthy.

The Gemara before us discusses in which cases the father’s intention is to acknowledge his son as a firstborn. And it is speaking of a case in which it had not been established for us that he is not the firstborn, and according to everyone.

Rav Yosef said: If he said, “So-and-so, my son, is my firstborn,” he takes a double portion

.

But if he said:

“So-and-so is a firstborn,” he does not take a double portion.

What is the reason?

Perhaps he was referring to the firstborn of the mother.

There was a certain man who came before Rabba bar bar Hana. He said to him: “I am certain concerning this one that he is a firstborn.”

He said to him: “From where do you know?”

He said to him:

“For his father used to call him ‘the foolish firstborn’”

[a foolish firstborn].

He said to him:

“Perhaps he is the firstborn of the mother, for every firstborn of the mother is also called ‘the foolish firstborn’”

.

There was a certain man who came before Rabbi Hanina. He said to him: “I am certain concerning this one that he is a firstborn.”

He said to him: “From where do you know?”

He said to him: “For when there would come

those who suffered in their eyes

to his father

in order that he heal them,

he would say to them: ‘Go to Shakhachat, my son,’

[his son who was called Shakhachat]

‘for he is a firstborn, and his spittle heals.’”

[He would spit into your eye and you would be healed.]

And the Gemara raises a difficulty: From where do we know that the father’s intention was to say concerning him that he was his firstborn son,

and perhaps he was the firstborn of the mother?

And the Gemara answers:

It is a received teaching:

[we have learned—that is, this is established for us:]

the firstborn of the father, his spittle heals; the firstborn of the mother, his spittle does not heal.

Rav Ami said: A tumtum whose covering was torn open and who was found to be male does not take a double portion.

For the verse says: “And the son who is the firstborn shall be [the heir] of the hated one,” until he is a son from the time of conception.

Rav Nahman bar Yitzhak said: He is also not judged as a wayward and rebellious son.

For the verse says: “When a man has a son who is wayward and rebellious,” until he is a son from the time of conception.