Friday, January 29, 2010

Only Son - Is he a Bechor?

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.

Does an only Son have
Firstborn Rights?

By: Meoros HaDaf HaYomi

In his Devar Avraham (I,27), the Rabbi of Kovno, Rabbi A.D. Kahana-Shapira zt”l raises the question as to if an only son, without brothers, is regarded as a firstborn. In other words, when he inherits his father’s estate, does he do so just as an ordinary son or does he inherit half the estate as an ordinary son and the other half as a firstborn? And if you ask, “What’s the difference? He gets it all anyway!,” the following case shows that this seemingly theoretic inquiry has practical implications.

There used to be a custom to give a daughter a shtar chatzi zachar, a document granting her a portion of her father’s estate equal to half that of a son’s. If a father had, for instance, three sons and a daughter, all the children together would be considered as 3.5 sons and the daughter would get a seventh of the estate in conformity with her status as a chatzi zachar – “half a male.” If, though, he had only one son and a daughter, how much should she get? If the son is not defined as a firstborn, he and his sister are together regarded as 1.5 sons and she receives a third of the estate. If, however, he is also considered a firstborn, he inherits two portions, one as an ordinary son and one as a firstborn: the father is then regarded as having 2.5 sons and the daughter gets only a fifth of the estate.

The question occupied the attention of many halachic authorities, as attested by HaGaon Rav Y.S. Natanson, author of Shoel Umeshiv (Responsa, 1st edition, 123): “HaGaon Rav D. Oppenheim; HaGaon Rav Yonasan – author of Urim VeTumim and then Darshan (exponent) of Prague; the author of Shav Ya’akov and the inquiring rabbis have all failed to find an answer.”

Later poskim, though, have tried to solve the quandary by logical deduction: The Gemora (Bava Basra 124a), after all, defines a firstborn’s rights as a gift, learning from the verse “to give him twice as much” (Devarim 21:17). But who bestows the gift? His father is already deceased so it could be that the gift is bestowed by his brothers and, if he has no brothers, he has no gift and does not inherit a firstborn’s portion (see Responsa ‘Ateres Tzevi, 2).