Daughters and Distinctions: Part I

For B.E., on the occasion of her birth.

The Torah’s laws of inheritance include three invidious (in the sense of “tending to cause discontent, animosity, or envy”) distinctions between males and females:

  • A son has precedence over a daughter in inheriting their parents.1
  • A father inherits his children, but a mother does not.
  • A husband inherits his wife, but not vice versa.2

This post is concerned with the first of these distinctions; subsequent posts will, בג”ה, discuss the second and third.

A Son’s Precedence Over A Daughter

The first of these laws was already controversial two millennia ago, as alluded to in Megillas Ta’anis and elaborated upon in the Talmud:

בעשרין וארבעה ביה [בחודש אב] תבנא לדיננא.3

אָמַר רַב הוּנָא אָמַר רַב כׇּל הָאוֹמֵר תִּירַשׁ בַּת עִם בַּת הַבֵּן אֲפִילּוּ נָשִׂיא שֶׁבְּיִשְׂרָאֵל אֵין שׁוֹמְעִין לוֹ שֶׁאֵינָן אֶלָּא מַעֲשֵׂה צָדוֹקִין דְּתַנְיָא בְּאַרְבָּעָה וְעֶשְׂרִים בְּטֵבֵת4 תַּבְנָא לְדִינַנָא שֶׁהָיוּ צָדוֹקִין אוֹמְרִין תִּירַשׁ הַבַּת עִם בַּת הַבֵּן

Rav Huna says that Rav says: With regard to anyone who says that a daughter of the deceased should inherit the estate of her father along with the daughter of the son of the deceased, even if he is a prince of the Jewish people, one should not listen to him, as this is nothing other than an act of the Sadducees, and runs counter to the ruling of the mishna that the descendants of a son inherit before a daughter. As it is taught in a baraita in Megillat Ta’anit, which describes various minor holidays on which it is forbidden to fast or eulogize: On the twenty-fourth of Tevet, we returned to our law, i.e., the halakha was reestablished in accordance with the opinion of the Sages after having been dictated by the Sadducees. As the Sadducees would say: A daughter should inherit the estate of her father along with the daughter of the son of the deceased.

נִטְפַּל לָהֶן רַבָּן יוֹחָנָן בֶּן זַכַּאי אָמַר לָהֶם שׁוֹטִים מִנַּיִן זֶה לָכֶם וְלֹא הָיָה אָדָם שֶׁהֶחְזִירוֹ דָּבָר חוּץ מִזָּקֵן אֶחָד שֶׁהָיָה מְפַטְפֵּט כְּנֶגְדּוֹ וְאוֹמֵר וּמָה בַּת בְּנוֹ הַבָּאָה מִכֹּחַ בְּנוֹ תִּירָשֶׁנּוּ בִּתּוֹ הַבָּאָה מִכֹּחוֹ לֹא כׇּל שֶׁכֵּן

The baraita continues: Rabban Yoḥanan ben Zakkai joined them to discuss their ruling, and said to them: Imbeciles, from where do you derive this ruling? And there was no person that answered him anything, except for one old man who was chattering at him and saying that it is an a fortiori inference: And just as a daughter of the deceased’s son, who comes to claim her inheritance from her grandfather by virtue of his son, inherits her grandfather’s property, so too, with regard to the deceased’s own daughter, who comes to inherit by virtue of the deceased, all the more so is it not clear that she should inherit his property?

קְרָא עָלָיו אֶת הַמִּקְרָא הַזֶּה אֵלֶּה בְנֵי שֵׂעִיר הַחֹרִי יֹשְׁבֵי הָאָרֶץ לוֹטָן וְשׁוֹבָל וְצִבְעוֹן וַעֲנָה וּכְתִיב אֵלֶּה בְּנֵי צִבְעוֹן וְאַיָּה וַעֲנָה אֶלָּא מְלַמֵּד שֶׁבָּא צִבְעוֹן עַל אִמּוֹ וְהוֹלִיד עֲנָה

Rabban Yoḥanan ben Zakkai recited this verse about him: “These are the sons of Seir the Horite, the inhabitants of the land: Lotan and Shobal and Zibeon and Anah” (Genesis 36:20), and it is written: “And these are the children of Zibeon: Aiah and Anah” (Genesis 36:24). The first verse portrays Zibeon and Anah as brothers, while the second states that they are father and son. Rather, this teaches that Zibeon engaged in sexual intercourse with his mother and begot Anah, so that he was both Anah’s father and his brother. From the fact that the first verse equates Zibeon and Anah by referring to both of them as Seir’s sons despite Anah being a grandson of Seir, it is clear that grandchildren are equal to children, contrary to the Sadducees’ assertion.

וְדִלְמָא תְּרֵי עֲנָה הֲווֹ אָמַר רַבָּה אָמֵינָא מִלְּתָא דְּלָא אַמְרַהּ שַׁבּוּר מַלְכָּא וּמַנּוּ שְׁמוּאֵל אִיכָּא דְאָמְרִי אָמַר רַב פָּפָּא אָמֵינָא מִלְּתָא דְּלָא אַמְרַהּ שַׁבּוּר מַלְכָּא וּמַנּוּ רַבָּה אָמַר קְרָא הוּא עֲנָה הוּא עֲנָה דְּמֵעִיקָּרָא

The Gemara interrupts the recounting of the baraita and questions Rabban Yoḥanan ben Zakkai’s inference: But perhaps there were two people named Anah, so that one Anah was Zibeon’s son, and the other his brother? Rabba said: I will state a matter that even King Shapur did not state. And who is this King Shapur? This cannot be a reference to Shapur, king of Persia; rather, it must be a moniker for someone else. He is Shmuel, whose legal rulings were accepted by the public like the edicts of a king by his subjects. Some state a different version, that it was Rav Pappa who said: I will state a matter that even King Shapur did not state. And who is this King Shapur? He is Rabba. The verse goes on to state: “This is Anah” (Genesis 36:24), indicating that he is the same Anah mentioned initially, earlier in the verse. Accordingly, there was only one Anah, who was both Zibeon’s brother and Zibeon’s son.

אֲמַר לֵיהּ רַבִּי בְּכָךְ אַתָּה פּוֹטְרֵנִי

The baraita continues: The Sadducee said to Rabban Yoḥanan ben Zakkai: My teacher, you dismiss me with this retort? I agree that the son of a son precedes a daughter, as the verse you quoted suggests; I am asserting that a daughter inherits together with the daughter of a son, and the verse you quoted has no bearing on that claim.

אָמַר לוֹ שׁוֹטֶה וְלֹא תְּהֵא תּוֹרָה שְׁלֵמָה שֶׁלָּנוּ כְּשִׂיחָה בְּטֵלָה שֶׁלָּכֶם מָה לְבַת בְּנוֹ שֶׁכֵּן יִפָּה כֹּחָהּ בִּמְקוֹם הָאַחִין תֹּאמַר בְּבִתּוֹ שֶׁהוֹרַע כֹּחָהּ בִּמְקוֹם אַחִין וְנִצְּחוּם וְאוֹתוֹ הַיּוֹם עֲשָׂאוּהוּ יוֹם טוֹב

Rabban Yoḥanan ben Zakkai said to him: Imbecile, but will our perfect Torah not be as worthy as your frivolous speech, as your inference is fallacious: What is notable about the inheritance of a daughter of the deceased’s son? It is notable in that her right is enhanced in that she inherits from her paternal grandfather together with the brothers of her father. Would you say that the same applies with regard to the deceased’s daughter, whose right to inherit is diminished in that she does not inherit from her father together with her brothers? The Sadducee’s a fortiori inference is thereby disproved. The Gemara concludes: And since the Sadducees had no counterargument, the Sages were victorious over them, and they established that day, the twenty-fourth of Tevet, as a minor festival to celebrate the establishment of the halakha in accordance with the opinion of the Sages.5

Elsewhere, the Talmud records that this law was a point of contention between Jews and early Christians:

אִימָּא שָׁלוֹם, דְּבֵיתְהוּ דְּרַבִּי אֱלִיעֶזֶר, אֲחָתֵיהּ דְּרַבָּן גַּמְלִיאֵל הֲוַאי. הֲוָה הָהוּא פִילוֹסְפָא בְּשִׁבָבוּתֵיהּ דַּהֲוָה שְׁקִיל שְׁמָא דְּלָא מְקַבֵּל שׁוּחְדָּא. בְּעוֹ לְאַחוֹכֵי בֵּיהּ. עַיַּילָא לֵיהּ שְׁרָגָא דְּדַהֲבָא, וַאֲזוּל לְקַמֵּיהּ. אֲמַרָה לֵיהּ: בָּעֵינָא דְּנִיפְלְגוּ לִי בְּנִכְסֵי דְּבֵי נָשַׁי. אֲמַר לְהוּ: פְּלוּגוּ. אֲמַר לֵיהּ, כְּתִיב לַן: בִּמְקוֹם בְּרָא, בְּרַתָּא לָא תֵּירוֹת. אֲמַר לֵיהּ: מִן יוֹמָא דִּגְלִיתוּן מֵאַרְעֲכוֹן, אִיתְנְטִילַת אוֹרָיְיתָא דְּמֹשֶׁה וְאִיתִיְהִיבַת עֲווֹן גִּלְיוֹן, וּכְתִיב בֵּיהּ: בְּרָא וּבְרַתָּא כַּחֲדָא יִרְתוּן.

Imma Shalom, the wife of Rabbi Eliezer, was Rabban Gamliel’s sister. There was a Christian philosopher [pilosofa] in their neighborhood who disseminated about himself the reputation that he does not accept bribes. They wanted to mock him and reveal his true nature. She privately gave him a golden lamp, and she and her brother came before him, approaching him as if they were seeking judgment. She said to the philosopher: I want to share in the inheritance of my father’s estate. He said to them: Divide it. Rabban Gamliel said to him: It is written in our Torah: In a situation where there is a son, the daughter does not inherit. The philosopher said to him: Since the day you were exiled from your land, the Torah of Moses was taken away and the avon gilyon was given in its place. It is written in the avon gilyon: A son and a daughter shall inherit alike.

לְמָחָר הֲדַר עַיֵּיל לֵיהּ אִיהוּ חֲמָרָא לוּבָא. אֲמַר לְהוּ: שְׁפִילִית לְסֵיפֵיהּ דַּעֲווֹן גִּלְיוֹן, וּכְתִיב בֵּיהּ: אֲנָא לָא לְמִיפְחַת מִן אוֹרָיְיתָא דְּמֹשֶׁה אֲתֵיתִי [וְלָא] לְאוֹסֹפֵי עַל אוֹרָיְיתָא דְמֹשֶׁה אֲתֵיתִי, וּכְתִיב בֵּיהּ: בִּמְקוֹם בְּרָא — בְּרַתָּא לָא תֵּירוֹת. אֲמַרָה לֵיהּ: נְהוֹר נְהוֹרָיךְ כִּשְׁרָגָא. אֲמַר לֵיהּ רַבָּן גַּמְלִיאֵל: אֲתָא חַמְרָא וּבְטַשׁ לִשְׁרָגָא.

The next day Rabban Gamliel brought the philosopher a Libyan donkey. Afterward, Rabban Gamliel and his sister came before the philosopher for a judgment. He said to them: I proceeded to the end of the avon gilayon, and it is written: I, avon gilayon, did not come to subtract from the Torah of Moses, and I did not come to add to the Torah of Moses. And it is written there: In a situation where there is a son, the daughter does not inherit. She said to him: May your light shine like a lamp, alluding to the lamp she had given him. Rabban Gamliel said to him: The donkey came and kicked the lamp, thereby revealing the entire episode.6

This is apparently the only citation of the Gospels in the Talmud and Midrash – although our versions of the Gospels do not actually contain the egalitarian rule that “a son and a daughter shall inherit alike”:

The Gospel is twice quoted in an anecdote, apparently from Babylonia, preserved in Shab. 116b … It can not be ascertained whether the new law regarding the right of daughters to inherit was included in the original Hebrew Gospel. The Gospels are not otherwise mentioned in the Talmud or Midrash.7

animals Christianity custom Divine Providence Don Yitzhak Abravanel employment engagement feminism gender differences governance Hasam Sofer Ibn Ezra judges justice Kabbalah law literature marriage medicine murder music poetry R. Natan Slifkin Ralbag Rambam Rav Moshe Feinstein Rav Ya'akov Breish Rav Ya'akov Emden Rav Yosef Shaul Nathanson sin Tanach theology torts אונאה אתי אנקרי גיטין חוקות הגוים כתובה לפנים משורת הדין ממזרות צניעות רב יוסף משאש רב יצחק זילברשטיין רודף תלמוד תורה

  1. משנה בבא בתרא ח:ב. []
  2. שם ח:א. []
  3. מגילת תענית ה:כד.‏‏ []
  4. As we have seen, in our editions of Megillas Ta’anis this is described as having occurred in the month of Av. []
  5. בבא בתרא קטו:-קטז. []
  6. שבת קטז.-: []
  7. The Jewish Encyclopedia, entry Gilyonim. []

Leave a comment

Your email address will not be published.