Is the Double Portion of a Bekhor a Gift from His Brothers?
The previous shiur discussed the conceptual labeling of the double portion of the bekhor as a gift, a matana. Although this delays the point of acquisition, it certainly empowers the bekhor with the right of refusal or renunciation. Who is the source of this gift the deceased father or the bekhors brothers? The simple reading of the pasuk suggests that the father delivers the gift to his firstborn son, describing his act as, "latet," to deliver. The pasuk describes the FATHERS act as latet to deliver implying that the father delivers the gift. However, R. Yaakov of Lissa in his sefer Netivot Ha-mishpat (siman 278) advances a very different claim, suggesting that the bothers inherit the entire estate and are then biblically obligated to deliver a gift of a double portion to the bekhor. He identifies several halakhot that stem from this conceptualization of the double portion as a gift from the BROTHERS.
The Netivot asserts this theory to explain two interesting halakhot about the allocation of the double portion of bekhor. First, he disagrees with a comment of the Ketzot Ha-Choshen (278) mentioned in the previous shiur. The Ketzot ruled that since the Torah empowers a bekhor to disavow his second portion, he may renounce it even PRIOR to his father's death. Although cancellation of ones inheritance rights at that stage is not generally recognized, a bekhor possesses a unique "renunciation right" which can be executed even prior to his rights actually materializing. The Netivot sharply disagrees, reasoning that the rights to a second portion are unrelated to the father. If they were, perhaps the Ketzot would be correct in reasoning that the rights can be cancelled during the father's lifetime. However, since the gift is really delivered by the brothers, the concept of a gift only emerges once the father dies and the brothers inherit the estate. Thus, based on his viewing the double portion as a gift from brothers, the Netivot rejects the Ketzot's scenario of rejecting bekhor rights prior to the death of the father.
In truth, the notion that the gift of the double portion is delivered by the brothers was already stated by a Tosafot in Bava Batra (12b). The gemara derived from a pasuk that, when possible, the double portion should be allocated as one contiguous land. Tosafot question the need for a pasuk to illustrate this point; standard laws prohibiting immoral Sedom-like behavior should obligate the awarding of a contiguous double portion. In fact, the gemara mandates that when possible, an ordinary non-bekhor inheritor should receive his "standard portion" adjacent to his previously owned lands. Denying this right would constitute immoral Sedom-like behavior, which halakha disallows (kofin al middat Sedom). Why does the gemara need to find a pasuk as the source for a halakha that should result inherently?
In their second answer, Tosafot claim that halakha cannot obligate brothers awarding a second portion to their eldest brother to allocate adjacent lands based on the general directive to act morally. The double portion is a GIFT from the brothers, and gifts are not subject to modifying legislation aimed to prevent "immoral" behavior. By definition, a gift-giver is behaving morally, regardless of which lands he delivers as his gift. Since the ordinance preventing Sedom-like behavior cannot compel delivering an "integrated' double portion, it must be inferred from a special gezeirat ha-katuv, relevant specifically to bekhor inheritance
Tosafot already explained the notion that the brothers and not the father deliver the gift to the first born. Of course, Tosafots suggestion is a far more moderate articulation than that of the Netivot. Tosafot define the identity of the double portion as a gift from the brother, and therefore immune to further legislation aimed at preventing callous Sedom-like behavior because a gift is moral regardless of its content. The Netivot maintains that the MECHANISM of delivery resembles a gift from the brothers therefore the bekhor cannot annul these rights prior to the death of his father the earliest point at which a gift from brothers can be conceived.
The Netivot applied this principle to a different anomaly of the bekhor portion as well. The gemara in Bava Batra (136b-137a) describes a safek regarding the identity of a bekhor. The two contenders for the title of bekhor must authorize one another to collect by writing a harsha'ah, a legal document authorizing another to collect a debt on your behalf. After this co-authorization, either contender may extract the double portion from the estate. Even if he is not the true bekhor, he has been authorized by the other individual who is the bekhor. Typically, money contested between two parties can be extracted from the current possessor WITHOUT a harsha'ah. The current possessor CERTAINLY does not own the money, and he must relinquish it to the two relevant parties so that they can determine its true owner. In this situation, the double portion is DEFINITELY NOT owned by the estate, but by the bekhor. Why must the two bekhor candidates craft a harshaah to extract the money from the estate?
The Netivot claims that since the double portion is a gift from the brothers, the estate does not relinquish the money until a certain and definite bekhor candidate is identified. If the money went directly to the bekhor from the father, the two bekhor candidates could have legitimately extracted the money even without a co-authorization. Since, however, the money actually transfers to the brothers, who are then obligated to deliver a gift, the brothers become temporary owners of the double portion and are only forced to relinquish the money to someone who represents both potential bekhor options through the device of harshaah.
I am not sure that the question of WHO delivers the gift is as important in the case of the safek issue as the Netivot maintains. Ultimately, what prevents the two bekhor candidates from extracting the double portion without harshaah is the STATUS of the inheritance prior to parceling. Is the estate owned by no one, as it awaits division and allocation? Or does halakha recognize the inheritors as joint owners and holders of the estate until further division? Many maintain that the holdings are indeed considered owned by the tefusat ha-bayit, a partnership-based alliance of inheritors holding the land until distribution. If this is true, obviously two contenders to the status of bekhor would not be able to extract the double portion, as the remaining inheritors are considered partial owners. Presumably THIS question whether inheritors own the estate prior to division and NOT the assertion of the Netivot whether the brothers are obligated to deliver a gift or the gift is from the father would more directly explain the inability of the bekhor candidates to extract the double portion without harshaah.
The assertion of the Netivot does open an interesting horizon toward understanding some of the unique aspects of the double portion. As already discussed in the previous shiur, does a bekhor begin to possess ownership rights to his double portion before chaluka (as regular inheritors possess at the very least), or does he not possess any rights prior to this stage? This question was the basis of the machloket between R. Pappa and R. Pappi and influences the bekhors ability to disqualify those rights. In addition, the question of which rights a bekhor possesses prior to chaluka affects whether he inherits a double portion of the shevach, the appreciation of lands. If he acquires rights to his double portion at time of death, he would also receive appreciation of those assets between time of death and chaluka. As noted in the previous shiur, this is the basis of the debate between R. Yehuda and the Rabbanan. It is clear that the point at which a bekhor begins to enjoy ownership rights over his double portion affects major issues regarding which properties he receives a double portion from.
Unquestionably, the notion of the Netivot is linked to this issue. If the gift is actually delivered from the brothers to the bekhor, it would likely be one which is delayed to the point of chaluka, at which point the standard inheritors begin to make their first decisions. If the bekhor receives rights prior to chaluka, this would probably eliminate the brothers as the source of that gift, since they are not active at the time of death.