Babylonian Talmud: Tractate Baba Bathra

Folio 108a

in order that an animal may not jump [over the wall]. Let, then, the big trench be made¹  and not [also] the small one? — Since it is wide, [the animal] might stand in it and jump. Then let the smaller trench be made and not the bigger one? Since it is small, [the animal] might stand on the [outer] edge and jump. How much [space must there be] between the bigger, and the smaller trench? — One handbreadth.

CHAPTER VIII

MISHNAH. SOME [RELATIVES] INHERIT [FROM], AND TRANSMIT [TO EACH OTHER];²  SOME INHERIT³  BUT DO NOT TRANSMIT;⁴  [SOME] TRANSMIT RUT DO NOT INHERIT, [AND SOME] NEITHER INHERIT NOR TRANSMIT. THE FOLLOWING INHERIT [FROM], AND TRANSMIT [TO EACH OTHER]: A FATHER [INHERITS FROM,⁵  AND TRANSMITS TO HIS] SONS, AND SONS [INHERIT FROM, AND TRANSMIT TO THEIR] FATHER; AND BROTHERS FROM THE [SAME] FATHER⁶  INHERIT [FROM], AND TRANSMIT [TO EACH OTHER].⁷  A MAN [INHERITS FROM] HIS MOTHER AND [FROM] HIS WIFE [BUT DOES NOT TRANSMIT HIS ESTATE TO THEM⁸  IF HE DIES FIRST]; AND SISTERS' SONS INHERIT [FROM THEIR UNCLES] BUT DO NOT TRANSMIT [THEIR ESTATES TO THEM].⁹  A WOMAN [TRANSMITS HER ESTATE TO] HER SONS AND A WIFE [TO] HER HUSBAND [BUT THEY DO NOT INHERIT FROM THEM]; AND MOTHER'S BROTHERS TRANSMIT [THEIR ESTATES TO THEIR NEPHEWS] BUT DO NOT INHERIT [FROM] THEM. AND BROTHERS FROM THE [SAME] MOTHER NEITHER INHERIT [FROM], NOR TRANSMIT [TO EACH OTHER].¹⁰

GEMARA. Why does the Mishnah teach first, THE FATHER [INHERITS FROM, AND TRANSMITS TO HIS] SONS, let it first teach, THE SONS [INHERIT FROM, AND TRANSMIT TO THEIR] FATHER, for, in the first place,¹¹  one should not commence with [something suggestive of] misfortune¹²

1. The big trench alone should suffice to prevent the animal from jumping over the wall.
2. Whoever of these dies first transmits his estate to the other, and whoever survives inherits it.
3. From certain relatives who predecease them.
4. Their estates to these relatives if they die first.
5. From his sons, if they die without leaving any issue.
6. Though not from the same mother.
7. If they die without issue.
8. Because the relatives on his father's side are entitled to the inheritance of his estate.
9. V. Previous note.
10. Their relatives on their respective fathers' sides inherit from them.
11. Lit., 'one'.
12. The death of a son in his father's lifetime.

and, secondly,¹  [one should follow the order of the Torah,] as it is written, If a man die and have no son?²  — The Tanna prefers³  [to begin with the case of a father who is heir to his son] because this [law] has been arrived at through an exposition. What is the exposition? — It has been taught: His kinsman,⁴  refers to the [dead man's] father. This teaches that a father takes precedence⁵  over brothers. One might [assume] that he also takes precedence over a son, [therefore] it was expressly stated, that is next [to him],⁶  [which implies] he who is nearest⁷  takes precedence. What reason is there⁸  for including the son⁹  and excluding the brother? — The son is included because, as is known,¹⁰  he is [entitled] to take his father's place in designating [the Hebrew handmaid of his father to be his wife],¹¹  and [also in the redeeming] of a field of [his father's] possession.¹²  On the contrary! [Rather say:] 'The brother is included because he also takes the place of his brother in the case of a levirate marriage.'¹³  Surely levirate marriage only takes place where there is no son, but where there is a son there is no levirate marriage.¹⁴

[From what has been said it appears] that the [only] reason [for the precedence of a son is] that there is this reply,¹⁵  but had it not [been] so, it would have been held [that] a brother takes precedence, [but cannot] this [law]¹⁶  be deduced

1. Lit., 'and furthermore'.
2. Num. XXVII, 8. This implies that if a father leaves a son, the latter inherits from him. Now, since the Scripture begins with the case of a son inheriting from his father the Tanna of our Mishnah should have done likewise!
3. Lit., 'beloved to him'.
4. Num. XXVII, 11. Ye shall give his inheritance unto his kinsman.
5. If the dead man is survived by a father and brothers, his estate is inherited by the former.
6. Ibid.
7. A son is a nearer relative than a father.
8. Lit., 'what have you seen?'
9. I.e., regarding him as the nearest relative, taking precedence over father and brothers.
10. Lit., 'for so'.
11. The master of a Hebrew handmaid may designate her to be his wife, and there is no need for him to betroth her in the usual manner. His son also, 'if she please not her user', may designate her to be his wife, in the same way as his father. No brother or any other person has the same privileges. Cf. Ex. XXI, 7ff.
12. If a man sanctifies onto the Lord a field of his possession, he or his son may redeem it. If a brother, however, or any other person has redeemed the field, it returns to the priests in the jubilee year. Cf. Lev. XXVII, 16ff.
13. The law requiring a person to marry the widow of a brother who dies without issue. Cf. Deut. XXV, 5ff. A son, of course, cannot have this right or privilege.
14. Consequently, even as regards levirate marriages, a son stands nearer, and is in a more privileged position than a brother.
15. 'Surely levirate etc.'
16. That a son takes precedence over a brother.