Q&A: The Bridge Principle in the Inheritance of a Firstborn
The Bridge Principle in the Inheritance of a Firstborn
Question
Have a good week, Rabbi,
Regarding the inheritance of a firstborn, this is what is written in the Torah:
If a man has two wives, one loved and the other hated, and both the loved and the hated have borne him sons, and the firstborn son belongs to the hated one—then on the day he gives his estate as an inheritance to his sons, he may not treat the son of the loved one as the firstborn in preference to the son of the hated one, the true firstborn. Rather, he must recognize the firstborn, the son of the hated one, by giving him a double portion of all that is found in his possession, for he is the first fruit of his strength; the right of the firstborn belongs to him.
Your position is well known regarding the bridge principle in the words of the Sages—for example, in a place where there is a presumption that a person does not pay before the due date, one may rely on that presumption in order to extract money. My question is whether the same principle can be applied to the Torah itself, and not only to the words of the Sages. For example, here, regarding the inheritance of a firstborn: would it be correct to say that the Torah gave us only the bridge principle regarding a firstborn’s inheritance—that in a place where it is customary for the firstborn to inherit a double share, one may not cancel the accepted practice because of hatred for him or love for another son, and one must follow the local inheritance custom. But in a place or reality in which the firstborn does not inherit double, then there is no obligation to give him more than he would have inherited had there been no Torah law here, because there is no injury to him here on account of hatred or love for another son.
Regards,
Answer
In principle, that is possible. But the accepted interpretation among the halakhic decisors is that one may not make stipulations against inheritance, and custom does not override the Jewish law in this matter. Still, this requires discussion, since inheritance is seemingly part of monetary law, where we do follow custom and stipulations are possible. It seems that the intention is that the inheritance itself is always according to the law, but if afterward the king expropriates the inherited property and transfers it to someone else, that should not be a problem. It is somewhat like the distinction between “on condition that the Sabbatical year not cancel my debt” and “on condition that you not cancel it during the Sabbatical year.”
Why the halakhic decisors thought this, I don’t remember at the moment. It needs to be checked, and then we can see whether your suggestion is also possible.
Discussion on Answer
As stated, that is possible. Especially in light of changes in the status of the firstborn in general (as compared to traditional societies).
I now saw that Maimonides says the following in Laws of Inheritance 6:1:
A person cannot bequeath to someone who is not fit to inherit him, nor uproot the inheritance from the heir, even though it is a monetary matter. For it says in the passage on inheritances, “and it shall be for the children of Israel as a statute of judgment,” teaching that this statute does not change, and a stipulation is ineffective in it. Whether he instructed this while healthy or whether he was on his deathbed, whether orally or in writing, it is ineffective.
This could be understood to mean that the Torah fixed the inheritance laws that were practiced in the ancient world for all generations, or perhaps it could be understood that it fixed the protection of inheritance law against change, but the default inheritance laws are always the inheritance laws practiced in that place and time (and that seems more likely to me).
Those are the same two possibilities, and I’m saying the same thing again.
Still, from Maimonides’ wording it actually sounds a bit not like you. It is “a statute for the children of Israel,” which implies that this is talking about Torah law, not the custom prevalent in the surrounding society. It’s not necessary, but it is more plausible. It is also strange to establish an eternal statute that is not fixed, but merely an adaptation to the environment. When something depends on custom, one does not bring a source for it. On the contrary: when there is no source, there is room to stick to custom. But when there is a source that commands permanence and non-change, it sounds like this is not talking about adaptation to the environment.
I found evidence around Google that the legal practice in inheritance matters at the time the Torah was given was that the firstborn inherited a double share:
Assyrian Law B1: (Middle Assyrian Laws, Tablet B1)
“When sons divide their father’s estate […] the firstborn son shall choose and take a double share of the inheritance.”
I assume that if Assyrian law, or the practice in those days, had been that a firstborn took triple, or the same as the younger one, that is also what the Torah would have required in these verses. The verse itself also mentions the words “the right of the firstborn belongs to him.” That implies that there was an accepted law of primogeniture in those days. Like “he shall deal with her according to the law of daughters.” And if nowadays “the law of the firstborn” has changed, why shouldn’t we say that the verse requires us to act specifically in accordance with it?