Deuteronomy 21:17 states that a man must leave to his firstborn son “a double portion of all he possesses; since he is the first fruit of his vigor, the birthright is his due.” All other sons then get a single portion of inheritance. If there are sons, daughters do not inherit property directly but should be maintained by their brothers.
Over the last few days, the Talmud has discussed what this division of property, incorporating the double portion for the firstborn, looks like in practice. And it addresses some challenges: Why should the firstborn get twice as much as everyone else? What if a father wants to share the property evenly? Or leave property to his daughters, even if he has sons? On today’s daf, the mishnah addresses these questions:
One who says: “So-and-so, my firstborn son, will not take a double portion,” or, “So-and-so, my son, will not inherit among his brothers,” — he has said nothing, as he has stipulated counter to that which is written in the Torah.
But one who apportions his property orally, increased to one and reduced to one, or equated the firstborn to the others — his statement stands. But if he said “as inheritance,” he has said nothing. If he wrote, whether at the beginning, or in the middle, or at the end, “as a gift,” his statement stands.
First, the mishnah upholds the biblical laws of inheritance and does not allow the father to countermand them. But then things take a more interesting turn. The mishnah offers a way that a man can divide his property as he chooses, by dividing his property not as an inheritance, but as a gift before his death. The mishnah carefully upholds the biblical law of inheritance by insisting that the man cannot say that his property division is meant to function as an inheritance. But as long as he says it’s a gift, either orally or in writing, he can effectively overturn it.
Why might the rabbis have introduced this ability to deviate from the biblical model of inheritance? In From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in its Legal and Social Contexts, Jonathan S. Milgram speculates that this change reflected evolving economic and social realities. According to Milgram, the biblical inheritance laws were promulgated when people lived in large, extended family groupings that populated the same plot of land for generations. In this society, eldest sons routinely succeeded one another as heads of the clan. But by the second century CE, when the rabbis wrote the Mishnah, things had changed. The world was more urban, and people moved around much more frequently. The nuclear family, rather than the extended family, was the dominant family structure. Since there was no expectation that eldest sons would function as formal heads of an extended family, it didn’t make sense to give them more land. And in a world where Roman law allowed women to inherit equally, it was important for the rabbis to find a way for Jewish women to not be at a disadvantage.
But even as rabbis created new legal pathways for inheritance, they insisted that the biblical laws be upheld. Tradition matters, and the words we use to settle our estates matter. While we can and must change, we cannot disregard God’s word.
Read all of Bava Batra 126 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 29, 2024. If you are interested in receiving the newsletter, sign up here.
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