The Double Share

Bechorot (8:9) | Yisrael Bankier | 5 years ago

In the beginning of the week we discussed the laws that apply to a bechor adam – first born man – along with what qualifies one as a bechor. One of the laws we learnt was that the bechor receives a double share in his father’s inheritance. The Mishnah (8:9) taught that while this is generally true, there are a number of situations where the bechor shares equally with his brothers. One such case is the improvement of the property (shevach) after the father’s death but prior to the division of the estate. We shall try to understand this exception.

The Tifferet Yisrael explains that the shevach that the bechor shares equally is only that which changed over the period, i.e. turned into something else. For example, unripe grain that developed into stalks of grain (shibolim). However regarding other changes, like if a tree that become thicker, the bechor retains his advantage. The Tifferet Yisrael also adds, that if the improvements had come about due to expenditure then bechor does take from the improvement unless he objected requesting to divide the property first. This is also how the Shulchan Aruch rules (ChM 278:1).

The Netivot HaMishpat however finds this distinction between types improvement difficult. If the bechor is considered as if he has his received the double share in the land at the time of death, then he should retain his double share in any improvements. If however this is not the case and all the heirs have an equal share until the time of division, then all improvement should be shared equally.

The Netivot HaMishpat cites the Ran who explains that the double inheritance of a bechor is referred to as a matana – a gift. With respect to gifts, if one gives another a gift via a third-party who will acquire it on his behalf, it is not received until the person learns of the gift and is willing to accept it. This is because if the person hears about it and immediately objects, he never acquires the gift. The Ran, cited by the Shita Mekubetzet, understand that changing improvement during that intermediate period belongs to the giver and not the receiver. The Netivot HaMishpat asks that that conclusion is strange. Once the receiver accepts, it is retroactively considered his from the time it was given to the third-party to receive on his behalf. So why then does the shevach not belong to the receiver?

The Netivot HaMishpat understands that the Ran holds the same position as the Rif. The Rif understands that if one says to a messenger, “give this shtar shichrur to my servant” in order to free him, then the servant is not freed until the shtar reaches his hand. This is despite the fact that the master cannot retract since the messenger acquired it already on the servant’s behalf. The shtar shichrur was handed over but it was incomplete until it reaches the hand of the servant.

He continues that this is similar to someone how gives a gift of land to someone “from now and after death”. During that intermediate period only improvements in the land itself belong to the receiver. However, any improvements of change are considered like a product (peirot) and are retained by the giver. Likewise, since the Torah specifically used the concept of netina when referring to the extra share enjoyed by the bechor, it was referring to similar arrangement. The Torah was particular that when the inheritance is divided only those improvements in the land itself are retroactively owned by the bechor. However any improvement of change (unripe grain into stalks) is considered peirot and shared equally amongst the brothers.

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