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Bechorot 46 for kids: Two Kinds of Firstborn

בכורות מ״ו

👶 This daf asks when a son counts as firstborn for inheritance and when he counts as firstborn for redemption. It also asks how much of a baby's head must appear to count as a birth.

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Stories from Bechorot 46

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Rashi and Tosafot on Bechorot 46 in simple English

Rashi on Bechorot 46a, in English Tab translation (24)
  1. And this applies — to the rule that a vow made with the consent of the public cannot be nullified.
  2. Rav Aha placed him under a vow — not to teach children anymore.
  3. He was negligent with the children — he struck them so severely that they died.
  4. By accepting a commitment — without a vow. In the case of forbidden marriages, desire may overpower the priest, so we administer a vow to him.
  5. A firstborn with regard to inheritance — who receives a double portion.
  6. With regard to the priest — whose redemption requires giving the priest five shekels.
  7. A son born after a miscarriage — for example, one twin is not viable and the other is fully developed. The nonviable twin’s head emerges alive and is withdrawn; then the other twin is born. The latter is a firstborn for inheritance: although the emergence of the first twin’s head counts as birth, the father would not grieve over the death of a child who cannot survive. But the latter needs no redemption, because the first twin opened the womb.
  8. A fully developed fetus whose head emerged dead — if its head was withdrawn and its brother was then born, the brother is a firstborn for inheritance, since the father would not grieve over the first. But the first opened the womb, so the brother needs no redemption. If the first fetus’s head emerged alive before it was withdrawn and the fetus died, the brother is not a firstborn for inheritance either.
  9. Likewise, one who miscarries a fetus shaped like an animal — such a fetus does not prevent the next son from being a firstborn for inheritance, since the father would not grieve over it. It does, however, open the womb.
  10. Unless it has some human form — the miscarried fetus does not count as opening the womb, and the next son is a firstborn for redemption as well.
  11. A sandal — a flattened fetus without recognizable facial features.
  12. Or an afterbirth — an afterbirth cannot exist without a fetus, though the fetus has dissolved. It therefore counts as having opened the womb.
  13. A gestational sac — the membrane enclosing a fetus.
  14. In which tissue developed — Tractate Niddah explains what degree of development this means.
  15. Emerged in pieces — limbs that emerge in pieces count as opening the womb. A severed head alone does not, if the next child is born before most of those limbs emerge; in that case, the next child is a firstborn for redemption too.
  16. A woman who had already given birth — inheritance depends on the father, as Scripture says, ‘the first fruit of his strength’; redemption depends on who opens the mother’s womb.
  17. While she was still a maidservant — even if her first birth was while she was a maidservant and she was only later emancipated.
  18. A gentile woman who converted — even if she later gave birth to a Jewish son, he is a firstborn for inheritance if his father had no earlier sons. He needs no redemption, because he did not open the womb.
  19. For inheritance and for redemption — Rabbi Yosei HaGelili holds that children born to her while she was a gentile do not exempt the later son from redemption.
  20. She converted while pregnant — with her husband. The child born after conversion is a firstborn for redemption, because he opens the womb as a Jew, but not for inheritance: he was conceived before conversion and has no halakhic claim to inherit from that father.
  21. She and a priestly woman — an Israelite woman giving birth for the first time alongside a priestly woman giving birth for the first time, when it is unknown which child is the Israelite woman’s.
  22. Or she and a Levite woman — a Levite woman’s son is also exempt from the five shekels of redemption, as stated in the first chapter.
  23. Or she and a woman who had already given birth — it is unknown which child requires redemption. The father of the woman giving birth for the first time owes the priest five shekels, because he has a son, whichever child he is. Neither child receives a double inheritance portion, since it is unknown who his father is.
  24. Likewise, a woman who did not wait — her son is a firstborn for redemption and must redeem himself, but not for inheritance, since it is unknown whose estate he would inherit. The Gemara questions whether he can inherit even an ordinary share.
Tosafot on Bechorot 46a, in English Tab translation (6)
  1. Ameimar said: The halakha is so, even according to the one who says… — Gittin has this wording, while most copies of Makkot say, “The halakha is that a vow made publicly can be annulled.” Even if the text says “even according to the one who says,” and is not directly ruling on a public vow, Ameimar’s wording implies that he holds it can be annulled. Otherwise, there would be no need to rule that a vow made with the consent of the public cannot be annulled; that would follow all the more so. Although Gittin says that Rav Nachman administered a vow publicly, and we generally follow him in civil law, the Gemara subsequently questions that practice. Its question concerns Rav Nachman as well as the mishna cited there. Rav Aḥa’s decision to make the children’s teacher vow with the consent of the public likewise suggests that he held a merely public vow could be annulled. It is unlikely that Rav Aḥa chose that wording only because enough people were unavailable. Rav Yosef’s statement in Pesachim, “I will vow publicly not to drink beer,” suggests the opposite view, but we do not follow it.
  2. But for a mitzva it can be annulled — Rabbenu Tam says this is because the public presumably consents to the annulment. He also says that a vow made “with the consent of the public” must name the people whose consent is required, even if they are absent. Saying “with the consent of the public” without naming anyone has no effect. If the vow depends on one named person’s consent, a sage can annul it.
  3. Mishna: There is a firstborn for inheritance… Which is a firstborn for inheritance… — Here the mishna begins its explanation with the first category it listed. Elsewhere it begins with the last category listed, as explained at the beginning of Nedarim.
  4. One who miscarries a sandal fetus… — Niddah asks what legal point the mishna about firstborns makes concerning the child born after a sandal fetus. But our mishna states that point explicitly. The question assumes that “the child born after it” means a child from a later pregnancy. That would add nothing: a sandal fetus is always accompanied by another fetus, which is ordinarily born first. The answer is that the mishna means the child born in the same pregnancy, since that child can sometimes be born after the sandal fetus.
  5. And one delivered in pieces — Rashi explains that if most of the fetus’s limbs emerge in pieces, a later child does not count as opening the womb, but a head that emerges in pieces does not have that effect. This is disputed by the sages in Niddah: Rabbi Yoḥanan holds that even a head emerging in pieces has that effect.
  6. She converted while pregnant — Rashi explains that her husband converted with her. The child requires redemption because he opened a Jewish woman’s womb, but is not a firstborn for inheritance because he was conceived before conversion. Rashi attributes this to Scripture’s treatment of Egyptian offspring as ownerless, citing “whose emission is like that of horses.” That reason is unnecessary here: converts are considered like newborn children, so the husband is not legally the child’s father. Before conversion, however, a gentile does inherit from his father under Torah law. Yet Yevamot uses the treatment of gentile offspring as ownerless to explain why twin brothers who converted are not liable for marrying each other’s wives, even though they unquestionably share a father. Why is the rule about converts being like newborns insufficient? Without the additional reason, such marriages should at least be prohibited lest people confuse these brothers with Jewish brothers; but the passage implies there is no prohibition at all. Thus “not liable” there does not mean merely exempt from punishment. Without that reason, a widow would also require halitza, whereas the passage says these brothers neither perform halitza nor levirate marriage.
Rashi on Bechorot 46b, in English Tab translation (22)
  1. The head does not exempt in a miscarriage — If a nonviable eight-month fetus put out its head alive and withdrew it, and its brother was born first, the brother is a firstborn who must be redeemed from a priest. The nonviable fetus does not exempt him unless its head and most of its body emerge.
  2. The breath of life in its nostrils — For a viable fetus, we go by its nostrils, meaning its head. But the head of a nonviable fetus is not significant.
  3. It teaches, at any rate — The mishna says that a miscarried fetus whose head emerged exempts the child born after it from redemption by a priest.
  4. Since the latter clause needs to teach, ‘a nine-month fetus whose head emerged dead’ — It cannot simply say ‘most of it emerged,’ even though it means that its head and most of its body emerged. The wording allows the inference that if its head emerged alive, the next child is not a firstborn even for inheritance: the emergence of a living nine-month fetus’s head is certainly a birth. Had it said ‘most of it emerged dead,’ we could infer only that the emergence of most of it alive deprives the next child of firstborn inheritance rights, not that the emergence of its head alone does so. The first clause therefore also says ‘its head,’ for consistency, although the latter clause means its head and most of its body.
  5. What does it teach us? — If ‘its head’ is meant literally, the mishna teaches that even the head of a miscarried fetus exempts the next child, and the latter clause uses the same wording as the first. But if the head alone does not exempt in a miscarriage, the only new point is an inference: if a living nine-month fetus’s head emerged, the next child is not a firstborn for inheritance. Since the first fetus was viable, the emergence of its head counts as birth even if it withdrew it.
  6. But we already learned this — In the chapter ‘A Fetus in Distress,’ the mishna says that if a fetus put out its head when its mother was slaughtered, it is considered born even if it withdrew its head; its mother’s slaughter does not permit it to be eaten.
  7. An animal has no concealed opening — Its womb is not hidden between its thighs, so the emergence of the head is visible and counts as birth. A woman’s thighs conceal her womb, so the emergence of the head might not count as birth.
  8. But we learned this too — A mishna in Niddah teaches that a human fetus is considered born when most of its head emerges. Even if it withdraws its head and is not fully born until a hundred days later, the days of impurity and purity are counted from the first day.
  9. If it emerges in the usual manner — This excludes a feet-first birth, in which it is not considered born until most of its body emerges.
  10. A refutation of Shmuel — The mishna must mean that the head alone of a miscarried fetus exempts the child born after it.
  11. Forehead — The front of the head above the eyes.
  12. Exempts in every respect — The emergence of the forehead counts as birth. The Gemara will explain what ‘in every respect’ includes.
  13. Except for inheritance — The next child is the firstborn for inheritance unless the first child’s face emerges.
  14. For it is written, ‘he shall recognize’ — Recognition requires the appearance of the face.
  15. Even for inheritance — The emergence of the forehead also allows recognition.
  16. A gentile woman does not become ritually impure through menstruation, a discharge, or childbirth.
  17. This is recognition of the face — The child whose face is recognized first is the firstborn for inheritance.
  18. Together with the nose — This poses a difficulty for Rabbi Yoḥanan.
  19. One may not testify — One may not testify to a man’s death so that his wife may remarry, since the body might belong to someone else.
  20. ‘The look on their faces testifies against them’ — Their facial features serve as evidence, showing that recognition requires the face. In the verse’s plain sense, the children’s faces testify against the adulterers: God gives a child born of adultery the face of the adulterer.
  21. At the end — Once the person was carefully identified, the Sages were lenient about the subsequent testimony, accepting even a male or female slave.
  22. But at the beginning — The Sages were not lenient about the initial identification of the dead person; witnesses must recognize him clearly.
Tosafot on Bechorot 46b, in English Tab translation (6)
  1. And because the latter clause needed to say “a nine-month-old fetus” — The Gemara could have made its point from the first clause: its mention of the head seems to apply specifically to a miscarriage. If the fetus was viable, the child born after it would not be a firstborn for inheritance either. But the latter clause makes the point more plainly.
  2. A human cannot be derived from an animal, which has no vestibule — “Vestibule” here means the thickness of a woman’s thighs, which conceal the womb’s opening. It has the same meaning in the discussions in Chullin and Shabbat, but not in Niddah, where a child is considered born once its head leaves the vestibule. If that were the meaning here, why would the vestibule delay birth after the head had left it? Here, one might have thought that a head emerging from the womb does not yet count as birth because the thighs still conceal it. The same word can have different meanings: in Bekhorot, a discharge counts as an offspring for the law of the firstborn, whereas the discharge mentioned in Niddah is one that most women giving birth experience.
  3. This refutes Shmuel — One could not challenge Shmuel from the ruling in Chullin that a placenta partly emerged is forbidden to eat. The inference there—that the fetus’s head may be in the emerged part and its emergence counts as birth—concerns an animal, not a human. The subsequent comparison with women concerns only the placenta as a sign of an offspring. Nor can one explain the prohibition as a decree against eating a partly emerged placenta lest one eat a mostly emerged one. If the head’s emergence did not count as birth, a mere part could never itself meet the threshold for birth, so there would be no reason for that decree. But if Shmuel is refuted, why does Niddah distinguish a living fetus, whose birth occurs when its head emerges, from a sandal-shaped fetus, whose birth occurs only when most of it emerges? Even a dead fetus’s head counts as birth. “Living” can mean capable of life; the passage also repeats its earlier wording, which contrasts a living fetus that remains in place with a lifeless sandal-shaped fetus that slips out. Some texts instead say that most of a living fetus must emerge but all of a sandal-shaped fetus must emerge. “Most” can mean most of the head; another reading says so explicitly. Likewise, when Niddah contrasts a fetus emerging cut up or feet-first with one emerging normally, Rabbi Yose’s phrase “emerging normally for life” cannot mean a viable fetus, as Rabbeinu Chananel explains: here Shmuel was refuted, and even a miscarriage’s head counts. As Rashi explains, it means emerging intact, rather than cut up.
  4. What is the reason? Scripture says, “He shall recognize” — In Kiddushin and Bava Batra, the Gemara struggles to explain why the Sages who disagree with Rabbi Yehuda need this verse. Why not say it teaches that a firstborn must emerge far enough to be recognizable? Even Rabbi Yochanan, who says a forehead suffices for inheritance, could hold that a forehead permits recognition. Bava Batra also struggles to explain why Rabbi Meir, who holds that a person can transfer property not yet acquired, needs the verse to cover property the father receives while dying. The answer is that “he shall recognize” suggests the father’s authority to identify his firstborn, not merely that the child must be recognizable.
  5. To include the teaching about a convert whose child’s forehead emerged — Why single this out? Once the forehead’s emergence counts as birth, it also has other consequences, such as making a deceased brother’s wife subject to or exempt from levirate marriage, and making someone who kills the child liable. Here one might have thought that, although the head’s emergence was a birth, the rest of the body emerging after the mother converted would also count as a birth, entitling her to the days of ritual impurity and purity. The teaching rules this out.
  6. What verse? “The recognition of their faces testifies against them” — Rashi explains that their facial appearance identifies them, suggesting that more than the forehead is needed. But in Yevamot, the verse is cited to show that there is something by which a face can be recognized—namely the forehead, since the nose is part of the facial features. Yevamot then tells of Abba bar Marta: officials of the exilarch claimed he owed them money, but he put a rag with wax attached to it on his forehead, passed before them, and they did not recognize him.

Sources

Kid summary and story cards written by Tab from the William Davidson Edition English (Sefaria, CC BY-NC 4.0).

Tab translation (machine-assisted) of Rashi and Tosafot, from the Vilna Edition Hebrew (public domain) on Sefaria. May contain mistakes.

In the app, the Gemara text comes from Sefaria (William Davidson Edition, CC BY-NC 4.0; Hebrew/Aramaic Vilna Edition). Rashi and Tosafot Hebrew: Vilna Edition (public domain) via Sefaria.

Also spelled: Bekhorot, Bechoros, Bekhoroth 46.