If a father leaves his estate to his sons but doesn’t specify the distribution, the sons can divide the estate between themselves. But that ability to divide the estate assumes that they know how many sons their father actually had. On today’s daf, the rabbis ask what should be done if two brothers divided their father’s estate equally between themselves, and then a previously unknown third son arrived from overseas. Technically, this son should have inherited a third of the estate. So what should be done?
Rav says: The division is void.
And Shmuel says: They each take off a share.
According to Rav, the previous division is annulled so that the property can now be re-divided between the three of them. That way, each brother can have some say in what they inherit, and they can ensure that the property divided is of equal value. According to Shmuel, however, the division stands, but each brother must give a third of the property they inherited to the newcomer. That means that the third brother doesn’t actually get a say in what he inherits, and indeed, might end up inheriting two pieces of land that aren’t continuous or suitable for farming.
The Talmud next interrogates each of these rabbis’ positions in light of other rabbinic inheritance laws.
Rava said to Rav Nahman: According to Rav, who says that the division is void, apparently, the verdict is reconsidered. But if that is so, these three people who stand as partners, and two of them go and divide, so too, the division should be void!
We read on Bava Metziah 31b that if two partners divide their property in court, even without their third partner present, the division stands. So how could Rava annul the decision in the case of the three brothers? Rav Nahman explains:
How can these be compared? There, they entered from the outset with the knowledge that they were three. Here, they did not enter from the outset with the knowledge that they were three.
The two cases are not comparable at all. If you knew you were dividing a property into thirds, even if the third partner wasn’t present, that’s fundamentally different from thinking you were dividing a property into halves and now having to divide it into thirds because your long-lost brother showed up from overseas. It matters how many property owners were taken account of at the original moment of division. Rava’s position here doesn’t contradict what we learned in Bava Metzia. The rabbis next interrogate Shmuel’s position.
Rav Pappa said to Abaye: According to Shmuel, who says each take off a share, is this to say that even if a division of property was found to have been made in error, the original verdict stands? But don’t Rav and Shmuel both say that if the seller said to the buyer, “I am selling you one kor for thirty sela,” he can renege even while measuring the last se’a.
If a deal can be annulled even after someone has acquired most of what they’ve paid for, then why can’t we annul the division of property here? On tomorrow’s daf we learn:
There the sages instituted a matter that is suitable for the seller and also suitable for the buyer.
The cases are not comparable: Buying and selling is different from dividing up inheritance. So while a buyer and a seller may want to have the ability to pull out of a deal, for Shmuel, once inheritance is divided, that division stands. Ultimately, then, both Rav and Shmuel’s positions are consistent with other talmudic property laws. But that doesn’t mean that they are both equally right. Instead, as Maimonides rules in Mishneh Torah, Law of Inheritances 10:1, if a secret son emerges from the woodwork, we follow Rav and “they should return and divide the remainder equally.”
Read all of Bava Batra 106 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 9, 2024. If you are interested in receiving the newsletter, sign up here.
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