The gemara 130a said that the source of R' Yochanan Ben Broka that you are allowed to increase to one brother and decrease from the others, is from the pasuk of לא יוכל לבכר את בן האהובה על פני בן השנואה הבכור. The pasuk implies that it is only the portion of the b'chor that cannot be manipulated by the father, but the pashut portions can be manipulated (at least to a son among sons, or a daughter among daughters).
The Ramban holds that לא יוכל doesn't mean that you are "unable" to do so, rather it is an azhara, that you are in violation of a prohibition by doing so. He learns this from Unkelos who translates the pasuk to mean לית לך רשו. It is a method that the Torah uses to exaggerate the issur. However, the Ramban admits that aside from the violation of a positive and negative mitzvah for violating, it is not effective [In his additions to sefer hamitzvos he explains that since the Torah prohibits the father from doing this, if he does it he is stipulating against the Torah so his stipulation is void and the bechor receives what he deserves]. He also understands that these prohibitions would be violated if the father would try to cover up which one is in fact the b'chor. That is actually the simple reading of the pasuk - You are not allowed to give bechor writes to another child, כי את הבכור בן השנואה יכיר לתת לו פני שנים, but rather you are obligated to use the rights that the torah granted the father of "yakir" to identify the bechor and ensure that he gets the double portion he deserves [The ketzos hachoshen (281:1) points out that the gemara 127b which struggles with what the Rabbonon use the word "yakir for, implies that it is not an obligation on the father to reveal the b'chor, from the fact that the gemara doesn't say that].
But, the Ramban understands that if the bechor dies, even though the children of the bechor can inherit the double portion from their grandfather, if the grandfather would take away the b'chor portion and distribute it to his other children, it would be binding and there wouldn't be any obligation because the torah states - על פני בן השנואה הבכור, which implies that the issur is only in the presence of the bechor.
Based on the opinion of the Ramban (which the Rambam would seem to disagree with), the Ketzos HaChoshen (281:1) asks how the gemara 130a can deduce from the fact that the portion of the bechor cannot be manipulated, that the other portions can be. Maybe even the regular portions cannot be manipulated, yet the Torah isolates the portion of the bechor to say that by attempting to manipulate it he would be in violation of a l'av, but for the other portions he wouldn't be in violation of a l'av? The Ketzos answers that the extra word of יוכל, by saying לא יוכל לבכר comes to indicate that aside from the prohibition, it isn't binding, implying that for the other portions there wouldn't be a prohibition and it would be binding [The Rabbonon who disagree with R' Yochanan don't hold of this diyuk, therefore the pasuk wouldn't imply anything about the other portions. The Ohr HaChaim points out that this answers Tosafos question on how the Rabbonon would deal with this pasuk]. Therefore, if the father attempts to manipulate the b'chor portion, the rationale for it not being binding isn't just that he is מתנה על מה שכתוב בתורה, rather that the pasuk itself adds a word to indicate that it isn't binding.
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Ian Brody (one of our daf yomi learners) asked, how was yacov able to violate this issur by giving yosef the b'chor privileges (which the gemara says on 129a clearly that is what he did, as the rashbam there explains the pasuk in divrei hayamim). Even if we suggest that Yakov wasn't bound to keep every mitzvah in the torah when he had a reason to do otherwise so that he wasn't considered to be in violation, the question can still be asked why was it binding since aside from the violation the father doesn't have the ability to make it happen?
According to the Ramban in sefer hamitzvos (cited above) that the pasuk is saying an issur, just that if the father violates the issur he is stipulating against the torah, therefore not binding, then the question can be answered. Since the inability to make it effective stems from the issur, yakov who lived prior to matan torah and didn't have the issur, was able to make it effective. But, according to the ketzos where the wording of the pasuk itself is indicative of 2 points, one that it is assur to attempt to take away the portion of the b'chor, and secondly that it isn't binding; even though Yakov lived prior to matan torah, the inability to take away from the b'chor should have existed?
The S'forno asks this question and answers that if this is done because the b'chor is a rasha or did an aveira, it is permitted. Yakov's justification for doing it was that Reuven did an aveira by moving the bed, so he was able to give the b'chor portion to Yosef. The da'as zekainim says something very close to this. The s'forno learns it out from the pasuk which indicates that you can't favor the son of the wife you love just because you love her, but you can do it for a valid reason such as the b'chor is a rasha.
5 comments:
The Meshech Chochma on this week's parsha asks R' Brody's question as well.
Thanks for the Ma'areh makom!
The meshech chochma seems to ask the first part of the question and offers the answer that i suggested. He explains that the prohibition of לא יוכל לבכר didn't yet exist, and the avos kept the torah unless they saw a need to do otherwise. That is why yaacov although he saw a need to take the bechor from reuven, he only did it when he was lying on his death bed because that is where r' yochanan allows manipulating the regular portions. But, the meshech chochma doesn't address the second part of the question - why was it binding? unless he assumes that even the dinim that the torah imposes or limits control over doesn't apply before matan torah.
It is written [Breishis 48: 4 – 5]: “And He said to me, ‘Behold, I will make you fruitful and cause you to multiply… and I will give this land to your descendants after you for an everlasting inheritance.’ And now, as for your two sons, who were born to you in the land of Egypt… Efraim and Menasheh shall be mine like Reuven and Shimon.”
From the juxtaposition of the two verses, it would seem that Yaakov was telling Yosef that Efraim and Menasheh are entitled to receive a portion in Eretz Yisroel like Reuven and Shimon on account of Hashem’s promise to Yaakov. What is the connection between the two?
The Gemora above stated that Yaakov took the birthright away from Reuven, on account of his sin, and gave the two portions to Yosef’s children. The commentators ask: How could he have done such a thing? The halachah is that one is not allowed to take away the firstborn’s portion even if he does not act properly!?
The Imrei Shefer explains that this is what Yaakov was telling Yosef. Hashem did not give the Land to him yet; it was a guarantee that it will be given to his offspring. If so, it is only regarded as “prospective property,” and a firstborn is not entitled to receive a double portion in that. It would have been fitting for Reuven, the firstborn, to receive a double portion in Eretz Yisroel, but it was not his entitlement.
This, then, is what Yaakov was saying: Since it was merely a promise that in the future Eretz Yisroel will be given to my descendants, there is no prohibition for me to transfer the firstborn right away from Reuven and give it to Yosef.
shkoyach r' avrom. nice peshat in the pesukim. perhaps the meshech chochma is lishitaso by not answering like the imrei shefer because he holds eretz yisroel was considered muchzak to avrohom. He explains that Yakov couldn't make Yosef a regular b'chor because then menashe would get double in the portion of his father Yosef since eretz yisroel was muchzekes. Instead he took away the b'chor from reuven and made ephraim and menashe like his own children. Being that he assumes it was muchzekes he has to explain differently how yakov was able to take it from reuven.
someone by the convention asked me on the vort from the gemora that e"y is muchzekes; i told him that the gemora is only mashma that it's muchzekes from the time of the midbar, not before; not sure that im right though
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