Siman 278

The בכור only takes a double portion in the assets of the father and not in the assets of the mother. Even if he is the בכור to the father and to the mother, the בכור and the ordinary son divide equally, for since the birthright is not dependent on the mother but only on the father, the law of birthright does not apply to her assets. It is written, "in all that is found to him," and it is written, "to him is the right of the birthright," and we expound: "to him," and not to her. Therefore, one who died and left sons and a widow, and the widow collected her כתובה and died afterwards, the בכור does not take a double portion in her כתובה. And even if she had not yet collected it, but she had sworn regarding her כתובה or he had exempted her from an oath and she died, even before the division, the בכור does not have a double portion in the amount of the כתובה, for her כתובה stands in her possession. But if she died before she swore and the husband had not exempted her from an oath, he takes a double portion, for before the oath the assets stand in the possession of the heirs, and the בכור takes a double portion in them. But in her own assets, such as נכסי מלוג, and certainly assets that fell to her after the death of her husband, he does not take a double portion in them. And so too if the heirs waived the oath for her, for the waiving of an oath is established by mere speech, as I wrote in סימן 241. [What I wrote that before the oath the assets stand in the possession of the orphans, I have a difficulty from כתובות 96b where we conclude the opposite; and see the Maggid Mishneh, chapter 18 of Laws of Marriage, law 27, and in the Beit Yosef, אבן העזר סימן 93; and perhaps one can distinguish between sustenance and the כתובה, and it requires further study]:

It is written, "of all that is found with him," and our sages, of blessed memory, expounded that he only takes a double portion in something that is held in the possession of the father, and not in something that is prospective to come into his possession. Therefore, the בכור does not take a double portion in assets that are prospective to come after the death of his father, but rather in assets held by his father that had already come into his possession. How so? If one of his father's testators died after the death of his father, the בכור and the simple son inherit equally. And even his own money, if it is not held in his hand because it is lacking collection—for example, if their father had a loan, and a loan is given for spending—when they collect the loan after his death, they inherit equally, and the בכור does not take a double portion in it because it is not found in the hand of the father. However, a deposit that is in the hand of others is considered as if it is in his possession. The details of the laws of a loan will be explained in section 7.

The bechor does not take a double portion in the improvement that the property improved after the death of the father, provided that the property changed, such as karmel that became stalks of grain, or smadar that became fruit, and the like, where the change is recognizable. However, if the property improved but did not change, such as a small tree that grew and thickened, or land that was not manured but the river beside it brought up stubble and straw from another place and it became manure—since the form of the object did not change and also no expenditure was incurred for this—he takes a double portion in this improvement, and we read concerning it "in all that is found with him," for this form is found in his possession. And even when the form changed, such that he does not take a double portion, we do not say that the bechor shall forgo his birthright in the substance of the object; rather, he appraises the improvement in money and gives the excess according to his portion of birthright to the pashut, and he takes the substance of the object as it is, since the essence of the object remained from the father [Shach].

And so too, if the properties increased in value due to the expenditures of the orphans, even if the physical form did not change—for example, if they fertilized the land—he does not take a double portion, even if they took the expenditure from the household estate [Sma], for everything that was newly created after his death through effort or expenditure is like properties acquired after the death of the father, and he must pay the simple son the surplus in money. In what case does this apply? When the firstborn did not protest against them. But if he protested and said, "Do not improve the properties until we divide," and they did not listen to him and improved them, their status is like robbers. Therefore, if they did not make a physical change in the properties—for example, grapes and they harvested them, or grain and they reaped it, for the grapes and the grain did not change in their essence—he takes a double portion of the improvement, for even a robber does not acquire in such a case, as I wrote in siman 360. And if they made a physical change in them—for example, grapes and they trod them, or grain and they ground it—they acquire through the change like a robber, who only needs to pay according to the value at the time of the robbery, and he does not take a double portion of the improvement. And consequently, if they lost value, he does not need to bear a portion of the loss, and they shall calculate for him his firstborn portion according to the value at the time of the father's death. And also regarding the simple portion, the law is so, for there is no reason to differentiate in this.

If their father left them a cow rented out to others, or leased out for a half, a third, or a quarter, or if it was grazing on the grass of the field and became fattened and gave birth, the Rambam, of blessed memory, ruled that the firstborn takes a double portion in it and in its offspring, for this is like property that improved on its own without expenditure and the form did not change. And even though the offspring is a new form, nevertheless, a fetus is the thigh of its mother and it is as if it did not change [the Maggid Mishneh]. Many disagree with him, [holding] that in the offspring he does not take a double portion, but in the fattening he takes a double portion. And if the fattening was through their expenditure or through their exertion, according to everyone he does not take a double portion.

If their father was a kohen and he had acquaintances who always gave him the priestly gifts, and one of his acquaintances slaughtered an animal during his lifetime and the father died before he took the gifts, the bechor takes a double portion in the gifts of that animal. For gifts that have not been set aside are considered as if they were set aside, and it is as if the father was established in possession of the gifts during his lifetime. And so too, if their father left them a slave or an impure animal, the bechor takes two parts and the pashut one part; that is, they work for the bechor for two days and for the pashut for one day. And we do not say that the profit is prospective, because he has two parts in their physical bodies, and this is like one who takes a double portion in land and takes a double portion of the profit from it. And see what I wrote in siman 171.

The firstborn does not take a double portion in a loan, even in a loan with a deed, for anything that is lacking collection is not called "muhzak." And there is no distinction whether they collected money for the debt or whether they collected land, and we do not say that since land cannot be moved from its place it is as if it were "muhzak" by their father, for it is not so; during his lifetime he only had a general lien upon it, and if he had paid him in money, the land would not have reached him. And it appears to me that even if the borrower made this land a "specific apothiki" for their father, where he said to him, "You shall have no payment except from this," such that he cannot collect from other properties, nevertheless, since he can remove him with money as is written in siman 117, it is not as "muhzak." But if he said explicitly that even with money he cannot remove him, it is like "muhzak," for it is superior to a mashkon and is like a sale. And there is no distinction whether its time for collection has arrived or its time has not arrived, for in any case it is not as "muhzak." And it is possible that when he said, "You shall have no payment except from this," such that even with money he cannot remove him, nevertheless, if its time for collection had not arrived, it is "ra'uy"; for even in a sale in such a case, where their father bought land and paid the money and stipulated that the sale should not take effect until after a certain time, and he died within that time, it is as "ra'uy," for this is like a debt that still needs to be collected upon the arrival of the time. However, it is possible that it is like a mashkon which will be explained, and so it appears primary.

In what case is this said? Regarding a loan not on a mashkon, but with a mashkon he takes a double portion, for it is like muḥzak. And even if he took the mashkon at the time of his loan, such that he did not acquire the mashkon according to the Torah as has been written in siman 72, nevertheless it is considered as if collected. And if he lent on a mashkona of land for a duration of years, if he died after the time, it is not like muḥzak, for it is considered as if redeemed and is not in the hand of the lender like movables. And if he died within the time, if it is a place where they practiced that the borrower cannot remove the lender from the land when he wants to pay him, it is like muḥzak since he consumes the produce and it is as if acquired in his hand, and when he later removes him it is as if he returns and sells it to him. But if it is a place where they practiced to remove him even within the time, it is not like muḥzak. And only regarding a mashkon of movables is there no distinction in all this because it is in the hand of the lender, but not regarding land. Nevertheless, even in a place where they do not remove, such that it is considered like muḥzak in the hand of the lender, nonetheless it is also called muḥzak regarding the borrower, for if the borrower died even within the time, the bechor of the borrower takes a double portion in it even when it returned to them after the death of their father, for behold, it belonged fundamentally to the borrower.

And there are those who disagree with all of this and hold that in a place where they do not remove him, he takes a double portion even after the time has arrived; and in a place where they do remove him, it is also only in a place where the custom was to remove him even immediately after the loan. But in an ordinary mashkanta where the custom is that for one year he cannot remove him, he takes a double portion even after the conclusion of the time [Tur in the name of Rashba]. And the reason is that since for some time he was unable to remove him and it was like it was held in the hand of the lender, his status as being in possession was not removed even afterwards since he has not yet paid him. And there is one who says that they do not disagree in the law, and even the first opinion admits when they collected from the body of the land that it is as if it were held in possession, and the first opinion is dealing with when they collected afterwards from the fruits, for fruits certainly are not considered held in possession at the conclusion of the time [Netivot HaMishpat]. And there is one who says that if they collected from the body of the land, even in a place where they remove him immediately, it is nevertheless as if it were held in possession; only if they collected from the fruits is it like an increase in value and he does not take a double portion of them [Tur in the name of Ra'avad]. And in a place where they do not remove him, it is as if it were acquired in their hand and he takes a double portion even from the fruits. And if they collected money in a place where they do not remove him, he takes a double portion, and in a place where they do remove him, he does not take, for he was not in possession of the money [ibid.].

Some say that this which we said, that in a loan on a mashkon he takes a double portion, this is specifically when the borrower is an Israelite; but when the borrower is a gentile, his mashkon is not effective to be called muhzak, for from a gentile one does not acquire a mashkon unless he has permanently forfeited the mashkon to him. And there are those who disagree, for although he did not acquire the mashkon, nevertheless, since it is in his hand, it is like a muhzak, just like the mashkon of an Israelite at the time of the loan, where he also did not acquire the mashkon and nevertheless it is called muhzak [Shach]. And all the more so if the mashkon is under the responsibility of the Israelite, such that if it is stolen he loses his money, that it is like a muhzak [ibid.], even according to the first opinion. For behold, in such a case on Pesah, the Israelite violates "it shall not be seen" and the hametz is forbidden after Pesah [Hok Yaakov, Orah Hayyim siman 440 in the name of the Yerushalmi]; it follows that it is exactly as if it were acquired by him.

If the father had a loan with the בכור himself, it is a matter of doubt whether he takes a double portion in it. Since it is in his hand, and furthermore, he certainly resolved in his heart to transfer his property to his father so that he might take a double portion in it; or perhaps since he inherits it from his father and his father was not in possession, how can he take a double portion by his power because he himself is in possession? And also, that which he desires to transfer all his property to him for this purpose is not effective. Therefore, the sages commanded [Bava Batra 125b] that he should only take half of the portion of the בכורה from it because it is a matter of doubt. And even though we hold that the burden of proof is on the claimant, nevertheless there is a reason for the matter, for in this law both are in possession and both are extracting. For in this debt, the בכור is in possession, but in the rest of the property, the ordinary son is the one in possession, for he comes to extract his portion of בכורה also according to the loan, and the ordinary son says "I will not give to you," and of necessity they must divide [it seems to me]. And also according to what I wrote at the end of siman 139 it is also well-settled, for in every legal doubt whether he takes a double portion or not, a division must be made, and it is not similar to a doubtful בכור in siman 277.

If their father had an iska in the hand of another, which is half loan and half deposit, some say that in the half of the deposit he takes a double portion, and in the half of the loan he does not take. And some say that even in the half of the deposit he does not take, for behold, in any case, it is lacking collection, and it is not similar to a standard deposit. And it is also not similar to a standard deposit in that he spends the coins he received and gives other coins; and even though in a standard deposit, if the bailee is a shopkeeper or a moneychanger and they are not tied up, he is permitted to spend them, as I wrote in siman 292, nevertheless, its essence is not for spending, whereas an iska, its essence is for spending. And there is one who wishes to say that even in the half that is a loan he takes a double portion, for it is all like a partnership. And the primary ruling is according to the first opinion [and so ruled the Radbaz].

Government notes, since they circulate as complete currency, are like all currencies, and the bechor takes a double portion in them. And it appears to me that even government interest-bearing notes, and similarly those who deposit money in the king's treasury and the government gives him a note of evidence for the payment of interest, and similarly notes of associations of wealthy men for which the government is a guarantor—even though in the marketplace they do not circulate as complete currency, nevertheless, since in the way of commerce they are like cash, it is not relevant to say of them that they are "lacking collection," and they are like currency and the bechor takes a double portion in them. And even though the price of them rises and falls according to the time, nevertheless, even complete currencies rise and fall according to the time, and so it was in the time of the sages of the Shas [Kiddushin 12a]. And there is one who says that government notes are like other notes, but it does not seem correct to me at all; and perhaps in the time prior to the generation before us they did not circulate as complete currency, but in these our days the matter is simple that the bechor takes a double portion in them. However, notes of individuals, even if they are very wealthy and upon their note it is possible to obtain money and merchandise everywhere, nevertheless, one should not distinguish between notes and notes; what is not so regarding those of the government or those for which the government is a guarantor, which are like complete currency. However, even with government notes, if their time to be collected has not yet arrived, certainly it is called "prospective" and the bechor does not take a double portion in it.

If he had a partnership in the hands of others, it is called muhzak. However, rent due to their father, whether for his personal labor or for houses and the like, is considered ra'uy, even though the time for collection has already arrived, for they are lacking collection. Similarly, if merchandise remained from him to be sold, even though when they are sold a certain amount will be added to them according to the custom of commerce, nevertheless, the profit is called ra'uy; only if the firstborn wishes to take his portion in the merchandise itself may he take it. And it is possible that this is the intention of the Rambam in chapter 3 of Nahalot, where he wrote that if their father left a loan or a ship at sea, they divide equally. And they wondered about him: what is the relevance of a ship at sea to ra'uy? And it is possible that his intention was to the merchandise in the ship, for the profit is called ra'uy. And that which he took the example of a ship at sea is because the majority of the commerce of their wealthy was on the seas [Eruvin 86a, Yoma 35b]. And it is a simple matter that if their father sold merchandise on credit and did not collect in his lifetime, it is called ra'uy, even if the time for payment arrived in his lifetime, since it is lacking collection.

Just as for the children of the lender, the loan is considered "prospective" even though the assets of the borrower are encumbered to him, so too conversely, for the children of the borrower, the assets are called "held" even though they are encumbered to the lender, and his firstborn takes a double portion in them; for the encumbrance of the lender does not prevent the assets from being considered "held" in the hand of the borrower. However, if their father remained indebted to the king by virtue of a tax, the land is called "prospective," for the encumbrance of the king is not like other encumbrances, as the king is always considered "holding." However, in a place where it is not the way of the king to take the land for the tax, but rather he leases it for a period of time and afterwards it returns to the owners, it is called "held," and his firstborn takes a double portion in it.

If their father had land that was given to him "from today and after death," or if land was stolen from him—and land is never stolen—and even if books were stolen from him, of which he presumably does not despair, or regarding any theft where it is known that he does not despair, it is called muhzak and the bechor takes a double portion. And even though he cannot consecrate it because it is not in his possession, nevertheless, regarding the birthright it is called muhzak. And there is one who hesitates regarding this [the Gra].

The Torah referred to the portion of the birthright with the language of a gift, as it is written, "to give him a double portion." Therefore, there is a distinction between the portion of the simple inheritance and the portion of the birthright; for regarding the portion of the simple inheritance, the heir cannot withdraw from his portion with mere words by saying, "I will not take my portion of inheritance," whereas the firstborn may withdraw from his portion of the birthright with mere words, and the language of waiver is effective for this. Not only this, but even if he divided some of the assets with his brothers, whether in land or in movable property, and took a portion as a simple heir, he has waived all the assets, and he does not take from the rest of the assets except as a simple heir. For we say, since he waived in these, he presumably waived in all the assets as well. However, during the lifetime of his father, no withdrawal is effective [Netivot HaMishpat].

In what case is this said? When he did not protest. But if he protested against his brothers and said before two people, "The fact that I am dividing some of these properties with my brothers equally is not because I have waived my portion of the birthright in all the properties," this is a protest, and he has not waived the rest of the properties. And it appears to me that even if he protested before those disqualified from testimony it is effective if it is clarified that he protested, for this does not require formal testimony but merely a general disclosure of the matter. And if he protested and afterwards divided more of the properties equally and did not protest, his previous protest is void. And this is specifically when it was a different type, for example, if they divided grapes equally and he protested, and afterwards he divided olives with them and did not protest, we say that presumably he waived all the properties. But from this same type, even if there was a slight change, for example, if they had grapes to divide and they were still attached and they divided some of them and he protested then, and afterwards they harvested the remainder and divided them equally, he has not waived the rest of the properties, for he protested regarding the grapes. But if they pressed the remainder of the grapes into wine and he divided the wine with them equally and did not protest regarding them once it became wine, he has waived all the properties, for wine regarding grapes is a different type; and so too anything similar to this. [And with this the difficulty of the Ketzot HaChoshen is settled, and the words of the Netivot HaMishpat are strained in the language of the Rambam and the Shulchan Aruch, and examine this carefully].

If a promissory note was produced against their father, a firstborn pays double in it just as he takes double, and if he said, "I do not wish to take double and not to pay double," he is permitted for the reason that has been explained, that it is like a gift, and as long as it has not come into his hand, he may withdraw with a mere statement. However, regarding his portion as a simple heir, he cannot say this, but rather he must declare it ownerless or give it as a gift with a kinyan. And one should not ask what practical difference there is to the creditor in his withdrawing from his firstborn status, for after all, he takes his debt from the properties; however, there is a practical difference if the other heirs are minors or are not here, such that the creditor cannot collect from them now, he does not collect for the time being except from his portion as a simple heir. And if the firstborn wishes to retract his words afterwards and take his portion of the firstborn status, there is one who says that he cannot, for regarding a gift before it has come into his hand, once he says "I have no desire for it" or "I am not taking" or "I waive," his words stand and he cannot retract, just as regarding his portion as a simple heir if he had given it as a gift with a kinyan; and so is the primary ruling in law.

And know that even though the portion of the firstborn is like a gift and he can waive it, nevertheless we maintain that the firstborn possesses it prior to the division, and it is considered his even before it came into his hand regarding the matter of sale; for if he sold his portion of the firstborn to another even prior to the division, his sale is valid and it is as if it reached his hand. And the reason is that it is not similar to all other gifts which depend on the will of the giver, for behold, the Torah granted him this gift, and it is only within his power to withdraw from it with mere words since it has not yet come into his hand.

Land or a house that is encumbered to the king because of a business venture they took from the monarchy, and they established the land or the house as a guarantee that if they do not perform the business as required, the king shall take the land or the house and sell it—it appears according to what I wrote in section 15 that the encumbrance of the king is not like other encumbrances, for the king is called "muhzak," and the firstborn does not take a double portion in it. However, there is one who says that since the king took it based on an appraisal, this is nothing more than a mere debt; and it requires further study for the law.

If a promissory note was produced against their father, and there are here possessed assets and prospective assets, and the firstborn wants them to pay from the prospective assets so that he may take a double portion in the possessed assets, while the brothers want the opposite, the great authorities ruled that they shall pay proportionately. For example, if the inheritance is two hundred zuz of possessed assets and one hundred of prospective assets, and the debt is thirty zuz, they shall pay twenty from the possessed assets and ten from the prospective assets, and so too in any similar case. And this is specifically when he can compel the creditor to receive a portion of his debt from the prospective assets; but if he cannot compel him by law, such as where the prospective assets have not yet come to the point of collection and the creditor does not want to receive his debt from this, then automatically, since they pay him from the possessed assets, the firstborn loses his firstborn portion according to the debt [Noda BiYehudah].