When Does a Bekhor Acquire His Double Portion of Inheritance?
The listing of inheritors in Parashat Pinchas does not mention the extra portion awarded to the bekhor. Instead, that halakha is embedded in the discussion in Parashat Ki Tetzei of a man who has two wives, one beloved and one detested. This dislocation of the bekhor inheritance from the section of typical inheritance reflects its distinction from other cases; many unique rules govern this double portion of a bekhor.
One interesting question surrounds the point at which the bekhor acquires rights to his “second” portion. Typically, the inheritors acquire shared rights at the point of death. However, although they at that point acquire general rights to their respective percentages in the overall estate, they only take full control of actual property when the various parcels are distributed (chaluka). Does the double portion of a bekhor follow a similar pattern? Does he acquire rights to his second share of ownership at the point of death and then choose which extra parcel to receive based upon that ownership? Or does his extra portion evolve differently from the standard inheritance patterns of ordinary inheritors?
The question first emerges as a result of an interesting derasha in the gemara in Bava Batra (134a). The gemara interprets the phrase “latet lo” (to DELIVER to him), appearing in Ki Tetzei, as qualifying that this double portion is categorized as a matana, a gift. This portion is similar to a gift, which has no “meaning” until the recipient actually acquires it. Many Rishonim comment that this implies that the bekhor does not OWN his portion prior to the actual distribution.
In fact, the gemara applies this derasha to explain the position of the Chakhamim that a bekhor does not receive a double portion of the capital gains which accrue to the estate between death and chaluka. If the bekhor truly owned a double share of the estate, he would naturally receive the proportionate amount of the accumulated profits. For example, if he owns 66% of the estate (and by extension, before chaluka he owns 66% of each item), while the other brother owns merely 33%, any particular item’s increment should be apportioned 66% to the bekhor. Indeed, Rebbi rules this way, but the dominant position of the Rabbanan is that the bekhor does not receive double of the accrued gains. As the gemara asserts, his double portion is considered a matana; just as a matana is not owned until the recipient actually performs a kinyan upon it, the double portion of the bekhor is similarly not owned until chaluka. Until that stage, each brother jointly owns 50% of the estate and any gains are distributed equally.
The view that a bekhor does not acquire his second portion until chaluka is called into question by a subsequent gemara (136), which cites a debate between R. Pappi and R. Pappa regarding a bekhor who waives his double rights when an item is divided. R. Pappa maintains that although he has waived his extra portion in THIS specific item, he has not waived his double rights to the other holdings. R. Pappi disagrees and claims that just as the bekhor has disclaimed his double portion in the present item, he has also forfeited his double portion in the remaining holdings. R. Pappi's logic is based on the notion of "yesh bekhor kodem nachala" – a bekhor OWNS his second portion prior to parceling, and hence he is empowered to waive whatever he owns. Had he not owned anything prior to distribution, there would be nothing to forfeit, and waiving rights to a double portion during the parceling of one item would not impact other items. Effectively, R. Pappi's statement claiming that a bekhor DOES own the double portion contradicts the earlier gemara that a bekhor DOES NOT and therefore does not merit extra profits.
The Rishonim took three vastly different approaches toward solving this contradiction and better defining the nature of the double portion.
The most balanced approach is suggested by the Yad Rama in his comments to Bava Batra 136. He claims that a bekhor IMMEDIATELY inherits the ZEKHUT to collect a double portion, but he does not acquire actual ownership of his extra percentages in each item until distribution. A zekhut to collect something is not equivalent to actual ownership and does not yield comparable amounts of shevach, profits. Yet a zekhut can be waived, as evidenced by the dynamics of the most well-known zekhut – the right to collect a debt. Although the right or zekhut exists from the point of the loan, it does not confer any real ownership on any items of the borrower until actual collection. Yet the zekhut can be waived through the mechanism of mechila. The Yad Rama reconciles the two conflicting gemarot by arguing that a bekhor has a zekhut, and his rights to a double portion of all items can therefore be waived. At the same time, however, the bekhor does not merit a double share of the profits because he does not truly OWN his double share.
There are two problems with this approach. First, the gemara (136a) that describes the broad rights of a bekhor to renounce his double portion does not apply the term “mechila,” but instead speaks of “vittur.” If the bekhor DID achieve an early zekhut to his double portion, he would be compelled to perform an actual mechila, INCLUDING AN ACT OF KINYAN – all of which is missing from the gemara's description of the proceedings and the employment of the “lighter” term of vittur.
Second, the gemara claims that if a bekhor intercedes and lodges a request for his double share of profits, he would receive them (bekhor she-micha, micha). If he only has a zekhut but does not achieve ownership until the chaluka, it would be difficult to envision his receiving profits prior to that stage.
Based on these concerns, the Ran develops an intriguing concept. In addition to a zekhut, there is a second model of someone who has "rights to" but not "ownership of." For example, an engaged husband has the ability to advance his relationship to the nesuin stage and thereby receive various financial benefits from his wife. However, those benefits are purely theoretical and potential rather than actual. The husband does not even possess a zekhut, and hence no ACTUAL mechila is necessary. By simply declaring that he does not want those rights to evolve, a husband can cancel them before they even emerge as a zekhut. This model is discussed (at least according to the Ran's view) by the gemara in Ketuvot (83a), which describes the husband’s right to announce “siluk” (cancellation), which does not require the kinyan execution of mechila.
The bekhor possesses a similar “ability” to ultimately assert his role as bekhor and acquire the land. However, prior to his assertion, he does not possess any ownership, nor does he possess any rights to the double portion. Since he is only someone who can assert his “rights,” he can nullify that potential WITHOUT a formal mechila process. Similarly, since he possesses no ownership or zekhuyot, he does not merit a double portion of the profits. However, if and when he decides to demand his double portion (bekhor she-micha) or to sell his double portion (an implicit demanding of rights), he receives ownership of the double portion and correspondent percentages of the accrued profits. This is an extremely novel definition of the bekhor portion and a very rare dynamic, but one which reconciles the conflicting halakhot of the bekhor’s second portion.
Of course, many Rishonim take the gemara's assertion that a bekhor enjoys ownership prior to distribution quite literally. They are forced to reinterpret the gemara which denies double profits to a bekhor because his acquisition is delayed until the stage of chaluka. Even though he acquires ownership over a double percentage of the estate, he will not merit double profits.
A second question that this position invites concerns the ability of a bekhor to cancel that ownership without an act of kinyan or EVEN a lesser but unmentioned act of mechila. Although the gemara discusses whether renunciation of one double portion constitutes overarching renunciation, it is clear that a bekhor can renounce without a formal act of kinyan. In fact, the gemara describes this renunciation as being a product of the term “matana” used to describe a bekhor. Even those who dissent and award a bekhor prior ownership of his double portion agree that he can unilaterally erase this double portion without an act of kinyan. Evidently, the Torah (by phrasing his double portion as a matana) grants him unique halakhic empowerment. Unlike other owned items, which must be rerouted through kinyan, this actual ownership can be arbitrarily cancelled. If this cancellation is unique and can occur even AFTER OWNERSHIP has been acquired, perhaps it can also be performed PRIOR to the development of any rights or potentials – at stages under which normal mechila or siluk (the cancellation described earlier) would be inoperative.
This is precisely the position of the Ketzot Ha-Choshen (278:3), who claims that the bekhor can renounce his bekhor rights during his father’s lifetime. At this early stage, he possesses absolutely NO rights and no potential to acquire rights (unlike a husband who can advance the relationship to the stage of receiving rights). The bekhor does not possess the ability to (legally) dispose of his parent and merit his double portion. He doesn’t even possess the potential. Yet the Ketzot claims that his renunciation would be successful. After all, if he can cancel erstwhile ownership without classic acts of kinyan, he can similarly cancel BEFORE any rights or abilities have materialized. The Ketzot does not describe the MECHANISM of this process, but he does draw attention to its unique and unprecedented dynamic.
Perhaps the bekhor’s status does not have to do with rights that have emerged or ownership which has fully developed, but rather his PERSONAL status as a BEKHOR. Indeed, if he were to address the ownership, he would require acts of kinyan or mechila and could only initiate the process after his father's death and the first emergence of those rights. However, as he is renouncing his status, he may be able to disclaim his identity at various stages in which operating upon financial holdings may be impossible. Of course, the language of the pasuk DOES suggest that he is disclaiming ownership; by designating the double portion as a matana, the Torah grants him right of refusal of lands. It appears as if the mechanics of acquiring the land are roughly similar to those of acquiring a matana – granting conventional refusal of rights through the normal apparatus of kinyan and mechila. However, the gemara that claims that he can disown EVEN AFTER OWNERSHIP HAS BEEN ACHIEVED suggests that a different mechanism is responsible for his ability to nullify his double portion, one which does not conform to standard patterns.