Bava Basra - Daf 130
- Rebbe Yochanan ben Berokah’s opinion that one can redistribute his inheritance: two versions
The next Mishnah states that if one says: "איש פלוני יירשני" – Ploni should inherit me, במקום שיש בת – where there is a daughter who would inherit him, or he said “My daughter should inherit me” where there is a son, his words are ineffective. Rebbe Yochanan ben Berokah says: אם אמר על מי שראוי ליורשו – if he said it about someone who is fit to inherit him, דבריו קיימין – his words are effective, but not if he said it about someone unfit to inherit him. The Gemara discusses the scope of the machlokes, and how to interpret the Mishnah accordingly. In one version, some Tannaim hold Rebbe Yochanan ben Berokah even allows bequeathing to an outsider where there is a daughter, or to a daughter where there is a son. In the second version, everyone follows the statement of Rebbe Yishmael, the son of Rebbe Yochanan ben Berokah, who said his father agrees that one cannot bequeath to an outsider where there is a daughter, or to a daughter where there is a son. They argue only על בן בין הבנים – regarding bequeathing to a son among other sons, ובת בין הבנות – or to a daughter among daughters (i.e., a current heir).
- Rebbe Yochanan ben Berokah’s source, and the derashah of לא יוכל לבכר
Rava said that Rebbe Yochanan ben Berokah’s source is the passuk: "והיה ביום הנחילו את בניו" – It shall be on the day he bequeaths to his sons. This teaches: התורה נתנה רשות לאב להנחיל לכל מי שירצה – the Torah gave the father a permit to bequeath to whomever he wants. Abaye asked Rava, but this law can be derived from the phrase "לא יוכל לבכר" – he cannot give the firstborn right (to another son), implying that he can give away other inheritances!? The Gemara answers, based on a Baraisa, that once the Torah allowed a father to bequeath the portion of one son to another (according to Rebbe Yochanan ben Berokah), one could have made a kal vachomer to allow granting the bechor’s double portion to another son: if a פשוט – ordinary son, whose right is stronger, שנוטל בראוי כבמוחזק – in that he takes potential assets like he takes possessed assets, yet the Torah enables the father to give his portion to another son, then certainly a bechor’s portion, which is not received from ראוי, can be given by the father to another son! Therefore, the Torah stated "לא יוכל לבכר", to teach that he cannot give the bechor’s portion to another son.
- אין למדין הלכה...עד שיאמרו לו הלכה למעשה
A Baraisa states: אין למדין הלכה – one cannot derive practical halachah, לא מפי למוד – neither from Rabbis’ statements made while learning (that one view appears more reasonable), ולא מפי מעשה – nor from their ruling in an incident that came to them (where the observer may not know all the details), עד שיאמרו לו הלכה למעשה – until they tell him, “this is the halachah for practical application” (alternatively: until they tell him the halachah for a practical question he asked them). In a case where they did, ילך ויעשה מעשה – he may go and act accordingly, ובלבד שלא ידמה – provided he does not draw a comparison to a similar case. The Gemara wonders why one should not draw comparisons to other cases: והא כל התורה כולה דמויי מדמינן לה – but the entire Torah is used for comparisons!? Rav Ashi says it means not to draw comparisons regarding טריפות, as taught in a Baraisa, because two apparently similar wounds can have different results.
