Sunday, May 27, 2007

Daf Yomi - Yevamos 23 - CONCEIVED FIRST OR BORN FIRST WHO IS THE FIRSTBORN?

The Gemora states: We have learned that kiddushin does take effect with women that are forbidden merely by a negative commandment. It is written [Devarim 21:15]: If a man has two wives, one beloved, and the other loathed. The Gemora asks: Is there a beloved or loathed wife before Hashem? Rather, the Torah is referring to their marriage. Beloved means that he is married to a permitted woman and loathed means that he is married to a prohibited woman and nevertheless, the Torah states regarding them “If a man has two wives.” We derive from here that if a man marries a woman that is forbidden to him merely by a negative commandment, the Torah recognizes and validates the marriage.

The verse mentioned above continues and states that if the loathed wife becomes the mother of the man’s firstborn son, the father is forbidden to deny that son the right to the double portion and give it instead to the son from the beloved wife.

How can the Torah refer to one of the wives as “a loathed one”? Why would it enter our mind that the father can deprive the son of the loathed one if he in fact is the firstborn? It would seem from the order of the words in the verse that the son of the beloved woman was actually born first.

The following explanation is written in the name of the Gra. The Torah is referring to a case where a man divorced a woman and that is why she is called “the loathed one.” He married another woman soon afterwards. His present wife gave birth to a son seven months after the marriage. The divorced woman gave birth to a son after nine months. One might think that the double portion designated for the firstborn should go to the son of the beloved woman because he was born first; the Torah teaches us that this is not the case. Since the son of the loathed woman was conceived first, by rights, he is deserving of the double portion. This is what the Torah means when it says “for he is the first-fruits of his strength.”

There are those (the Netziv) who question if the Gra ever said this. One of the questions that they ask is from Rashi in Bereishis (25:26), who writes from a Medrash: The interpretation is in accordance to its simple meaning: Yaakov held onto Esav’s heel lawfully, to restrain him. Yaakov was formed from the first drop and Esav from the second. We can learn from a tube that has a narrow opening. If one would insert two stones into it, one after the other, the one that entered first will emerge last, and the one that entered last will emerge first. The result is that Esav, who was formed last, emerged first, and Yaakov, who was formed first emerged last, and Yaakov came to restrain him so that he should be the first to be born as he was the first to be formed, and he would open her womb and take the birthright by law.

According to the Gra, this leaves us with a question: If Yaakov was the true firstborn, why was it necessary for him to purchase the birthright from Esav?

The Kli Chemda differentiates between the birthright for inheritance, which is related to the time of conception (since it is based on a relationship with the father) and between the rights to serve in the Beis Hamikdosh, which is dependent on the time of birth. This is what Yaakov wished to purchase from Esav.

11 comments:

Raphael said...

The "petter rechem" is the first born. So if one woman has 2 or more boys at one birth,the first one out is the b'chor. If a man has more than 1 wife,each first born son is a b'chor.It doesn't matter then which boy was born first,they both get double portion,both need pidyan ha ben,both fast on erev pessach.(I don't have a source on hand,it's what I remember learning in a shiur)

Avromi said...

You are correct - l'halacha in regards to pidyan haben and erev pesach. Double portion - there is only one - the father's firstborn. The Gra is a chidush based on that, but we don't go l'halacha like him.

Raphael said...

What would be if a man has a becor from wife#1 then divorces her and she gets custody She then doesn't bring up the boy in a Torah way.The man remarries and has another bechor. In his will can he cut out son,bechor #1 who is not a ben-Torah,and give the pi shenayim to son #2 bechor from wife #2 who is a ben-Torah?

Raphael said...

Additionally,if theman divorces the wife #1 right before he marries #2 and Bechor from wife #2 is born early,and bechor from wife (ex) #1 is born later,although conceived earlier (maybe a month) is he then awarded the pi shenayim?

Avromi said...

He cannot switch the pi shnayim, thats a lav in the Torah - he can give him a present while he's alive.

re second question - that is basically the case of the Gra and he says it goes by conception - halacha states that it goes by birth and many say that the Gaon never said it.

ben said...

you write:

There are those (the Netziv) who question if the Gra ever said this. One of the questions that they ask is from Rashi in Bereishis (25:26), who writes from a Medrash: The interpretation is in accordance to its simple meaning: Yaakov held onto Esav’s heel lawfully, to restrain him. Yaakov was formed from the first drop and Esav from the second. We can learn from a tube that has a narrow opening. If one would insert two stones into it, one after the other, the one that entered first will emerge last, and the one that entered last will emerge first. The result is that Esav, who was formed last, emerged first, and Yaakov, who was formed first emerged last, and Yaakov came to restrain him so that he should be the first to be born as he was the first to be formed, and he would open her womb and take the birthright by law.

I though that this is why Rashi in Toldos uses the term "bidin" that Yaakov should take bechor, because he was conceived first?

ben said...

How about this: Chasam Sofer writes based on Yonasan ben Uziel that Dena and Yosef were switched, and really Dena was supposed to be Rachel's daughter and Yosef was supposed to be Leah's son. The question raised is how Shimon could marry Dena if they were sisters from the mother (Ohr HaChaim). Perhaps according to the Gra that we go after conception, we can suggest that Dena was really the daughter of Rachel and Yosef was the daughter of Leah, so Shimon and Dena were only sisters from the father, which was permitted before Matan Torah.

Avromi said...

In respect to the "bedin" of Rashi, I think he means that Yaakov wanted to hold on to esav for halachic purposes - the end of the Rashi seems clear like this for he states that if he would open the womb of his mother, he would get the becorah min hadin.

Avromi said...

The Gra's alleged vort is only because the possuk says "reishis ono" - his first strength establishes the firstborn portion, it probably doesn't extend to who the mother is.

ben said...

I hear you on the Dena and Yosef issue.

Yaak said...

Mordechai Friedman of Mezritch provided an answer to the Netziv's question based on gemara niddah 26a that it is possible for the 'tipah' to be split into two and that is how twins are made. (Kol Eliyahu, Meshor ed., p.73) Thus yaakov and eisav came from the same tipa and were both reishis ono. The tie breaker went to the one who was born first which is eisav. But absent these circumstances, the first issued sperm is the bechor and not the first to be born. Nowadays, with frozen sperm and eggs this could make an interesting question, if we pasken like the gra.