Conceived First or Born first; Who is the Firstborn?

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The Gemora (Kiddushin 68) 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 Gr”a. 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 Gr”a 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 Gr”a, 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.

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Kohen takes Precedence, even after Ressurection - Gittin 59

It is written [Vayikra 21:8]: You shall sanctify him, for he offers the bread of your God. And it was taught in the Beis Medrash of Rabbi Yishmael: You shall sanctify him teaches us that in all matters pertaining to holiness, the Kohen takes precedence. He should be the first one called to read the Torah. He should be the first to recite the blessing by a meal. He takes the first portion (if he is dividing something with a Yisroel, the Kohen has the right to choose the first portion).

The Gemora in Megillah records the following incident: Rabbah and Rabbi Zeira ate the Purim meal together. They became intoxicated. Rabbah got up and slaughtered Rabbi Zeira. On the following day, Rabbah pleaded for mercy and he revived Rabbi Zeira. On the next year, Rabbah invited Rabbi Zeira to eat with him. Rabbi Zeira replied: A miracle does not occur at all times.

The Kli Chemda at the end of Parshas Breishis cites a kuntrus called Over Oreach. In this sefer, a question is asked: The Gemora Brochos (46a) records an incident where Rabbi Avahu honored Rabbi Zeira to recite the blessing and cut the bread. The Rashba asks that this is inconsistent with the halachah which states that this honor should be reserved for the host. The Rashba answers: since the meal was on behalf of Rabbi Zeira (he had recovered from a sickness), Rabbi Zeira was considered the host. Why didn’t the Rashba answer that Rabbi Zeira was a Kohen (Yerushalmi Brochos 8:6)? He answers that since this incident happened after the episode of Rabbah with Rabbi Zeira mentioned in Megillah (Rabbah slew him and the following day revived him), Rabbi Zeira lost his sanctity of being a Kohen and did not merit the right of this honor.

The Kli Chemda is greatly perplexed by this answer. Every Kohen is considered a Kohen because his father was a Kohen. It is obvious that he did not lose his relations with his relatives because he dies, so why shouldn’t he be a Kohen? (Rabbi Chaim Berlin cites a Gemora in Sanhedrin, proving that the Kehunah remains even after resurrection.) Perhaps he would have required a new inauguration to serve in the Beis Hamikdosh but he definitely did not lose the status of being a Kohen. He cites proof from the story with Elisha that one does not relinquish his relations with his relatives after he dies.

(Look at the Ramban in the beginning of Parshas Emor, where he writes that a Kohen has certain halachos because he is a descendant of Aharon HaKohen and other halachos are because he is a Kohen himself.)

After his resurrection, would he be required to marry his wife again? Reb Elchonon Wasserman discusses the status of the wife of Eliyahu after he ascended to Heaven without dying.

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Freeing a Half-Slave

The Mishna (Daf Yomi: Gittin 41a) had stated: Someone who is half-slave and half-free man (he was owned by two partners, and one of them emancipated him), he works for his master one day and for himself one day; these are the words of Beis Hillel. Beis Shamai, however, says: You have created a solution for the master (for he does not lose out through this division), but you have not solved anything for the slave. He may not marry a slavewoman, for he is half-free. He cannot marry a free woman for he is half-slave. If you will say that such a person should refrain from marrying, that cannot be, for the world was created for the purpose of propagation, as it is written: He did not create it to be desolate; He formed it to be inhabited. Rather, to benefit the public (this slave), we force his master to make him a free man, and the slave writes a document for his value. Beis Hillel later retracted and ruled in accordance with Beis Shamai.

The commentators ask: How can we force the master to free the slave? Isn’t there a prohibition against emancipating a slave?

The Kli Chemdah answers this question based upon the Avudraham, who says that a woman is exempt from mitzvos which have a time element to them, because she is pledged to her husband at these times. So too, it can be said with respect to a half-slave half-free man. Since he is partially a free man, he is obligated to observe all the mitzvos. Therefore, at the times where he is responsible to serve his master, he cannot do so completely, for he is obligated in mitzvos. Consequently, the master will anyway not be able to fulfill the mitzvah of working the slave forever; therefore, there is no prohibition against freeing him.

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Pauper Acting Rich

The braisa (Daf Yomi: Nazir 25b - 26a) states: Other people who are obligated to bring bird offerings by the Torah (because they cannot afford to buy animal offerings) who already designated the money to buy the birds (and then became rich), if they now want to bring a chatas or olah offering instead, they may do so.

The Mefaresh understands this Gemora to be referring to a rich woman who has given birth, where her chatas is a bird.

It is noteworthy that after the Torah discusses the korban that a rich woman who has given birth brings, it says [Vayikra 12:7]: This is the law of a woman who gives birth to a male or to a female. The question is asked: Immediately following this verse, the Torah teaches us the korbanos that a poor woman who has given birth brings. Why would the Torah say regarding the rich woman’s korbanos that “this is law of a woman who gives birth”? It would seem from the verse that only the rich woman’s korbanos are the law, and not the korbanos from the poor woman.

The Kli Chemdah (Parshas Tazria) cites a Gemora in Menochos (110a): It is written: This is the law of an olah. The Gemora expounds: Anyone that studies the laws of an olah is considered as if he brought a korban olah. What would be if a poor person would recite the portion dealing with the rich person’s korbanos? Would it be regarded as if he brought the korban? The answer may be gleaned from the fact that the Torah concluded the portion dealing with the rich woman’s korbanos with the following verse: This is the law of a woman who gives birth. The Torah is informing us that the recital of this portion is sufficient for anyone, even for a poor woman.

[The Gemora states that Hashem told Avraham Avinu that whenever Klal Yisroel will read the Torah portions pertaining to the korbanos, it will be regarded as if they brought korbanos and their sins will be forgiven.

The commentators discuss if this concept applies by other mitzvos as well. Perhaps it can be said that the studying of any mitzvah that cannot be performed nowadays will be regarded as if one fulfilled the mitzvah.

The Chafetz Chaim cites the Gemora in Bava Metzia (114b) that the Amoraim were fluent in Seder Kodoshim in the same manner as Seder Moed, Nashim and Nezikin. This is because Kodoshim was relevant to them since the learning about the korbanos was regarded as if they actually brought a korban. Implicit in his words that for some reason this was only true regarding Seder Kodoshim and not to Seder Zeroim or Taharos which also has many halachos that do not apply outside of Eretz Yisroel and after the destruction of the Beis Hamikdosh.

The Taz in his sefer Divrei Dovid maintains that the concept applies to all mitzvos and one who studies the laws of Zeraim, it will be regarded as if he gave terumos and ma’asros to the kohanim and levi’im and it will be considered as if he gave all the presents to the poor people. This is the explanation in Yaakov’s words to Esav "Im Lavan garti," which Chazal understand to mean that Yaakov kept all 613 mitzvos in Lavan’s house. There were many mitzvos that he was not able to fulfill at that time; it is evident that the studying of these mitzvos are regarded as if he fulfilled them all.

The Ben Ish Cahi explains the verse in Nitzavim: "Ki Korov eilecha hadavar meod b’ficha u’vilvov’cha la’asoso." It is possible to fulfill all the mitzvos with your mouth (by studying them) even those mitzvos that you cannot actually perform.]

We can add that the Mishna in Negaim compliments this explanation. For the Mishna says that if a poor person who is a metzora brings the korban that a rich person is supposed to bring, he fulfills his obligation. The Chinuch (123) states by a korban olah v’yoreid - (certain sins which require a korban chatos, he either brings an animal, bird or flour offering depending on his status - this is called a fluctuating korban) if a poor person brings the korban of a rich person, he does not fulfill his obligation. The Chinuch explains the reason: the Torah had compassion on the poor person, it is not proper for him to compel himself to bring a korban which he cannot afford. How can the Chinuch hold against the Mishna, which explicitly states that he does fulfill his obligation?

The Chasam Sofer answers based on the following Gemora in Shabbos: Hashem punishes each person according to what he can afford. A rich person who sins will lose his cow. A poor person, on the other hand, will lose his chicken or some eggs. Therefore, there is a distinction between the korban of a metzora or a woman who gave birth and the korban olah v’yoreid. A metzora is not required to bring a korban because he sinned, it is to purify him and allow him to eat kodoshim. If a poor metzora decides to bring the rich man’s korban, he will have discharged his obligation. Conversely, a sinner who does that will not have discharged his obligation, for here the Torah prescribed for him the korban which will give him atonement according to his status. The korban is in place of the punishment. It is not decided by the pauper what his punishment should be, and therefore when he brings the korban of a rich person, he does not fulfill his obligation.

The Sfas Emes (here and quoted in Moadim U’zmanim as a story which occurred by a Kenesiya Gedola) answers that there is a basic distinction. A metzora disregarding if he is rich or poor, is required to bring a chatas and an olah. The rich man brings animals and the pauper brings birds. If a poor person brings the korban of a rich person, he fulfills his obligation, for he brought the prescribed amount. A korban olah v’yoreid is different. A rich person brings an animal for a korban chatas and a poor person brings two birds, one for a chatas and one for an olah. If a poor person will force himself to bring the korban of a rich person, he will not fulfill his obligation because he cheated the Altar out of one korban - namely the olah.

There are two questions on this explanation (look in Shemuas Chaim and in Mitzvas Hamelech from Harav Ezriel Cziment). Firstly, the Chinuch says a different reason for his not fulfilling his obligation. He says because the Torah doesn’t want a poor person to overburden himself. He does not say the reason of the Sfas Emes that he missed a korban? Secondly, one must ask, why is it that a poor person is required to bring two korbanos and a rich person only brings one? The Ibn Ezra explains the reason for this: A chatas bird is completely eaten and an olah bird is completely burned on the Altar. These two birds together replace a regular korban which entails a human consumption and the Altar’s consumption. They are actually one korban. Therefore, one can say that a poor person is not missing a korban by bringing one animal instead of two birds?

It would seem, however, that this question can be answered. Even according to the Ibn Ezra, the two birds are not one korban. They are two korbanos complimenting one another. The rationale behind bringing the two korbanos could be because the Torah wants human consumption and the Altar’s consumption; nevertheless, it is still two korbanos and a poor person is missing one korban when he brings the korban of a rich person.

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YIBUM WITH RUS - Yevamos 77 - Daf Yomi

The Gemora relates the episode with Shaul, Doeg and Avner. Doeg the Edomite said to Shaul: “Instead of enquiring whether he is fit to be king or not, enquire rather whether he is permitted to enter the congregation or not.” What is the reason that he shouldn’t be permitted to enter into the congregation? It is because he descends from Rus, the Moabite. Avner said to him: “We learned in a braisa: An Ammonite is prohibited, but not a female Ammonite; A Moabite is prohibited, but not a female Moabite.”

The Maharsha asks: How could Doeg have thought that Boaz, the Head of the Sanhedrin, the Judge of all of Israel for many years would conduct himself improperly and publicly marry a woman who was forbidden to him? Furthermore, why did Ploni Almoni say to Boaz: “I cannot marry Rus because I am concerned that my children will be tainted”? He should have said that he can’t marry her because he is forbidden to marry an Ammonite woman (according to him)?

The Maharsha answers: The Gemora above (20b) explained the reason why a brother may not perform a yibum with his brother’s wife in a case when she is forbidden to him by a negative prohibition. The Gemora asks: Shouldn’t the positive commandment of yibum override the prohibition? The Gemora answers: He may not perform a yibum in this case because only the first act of cohabitation is permitted (that is the mitzvah of yibum), but not the second act. We are concerned that he might cohabitate with her a second time, which would be forbidden.

The Maharsha says that perhaps this Rabbinic ordinance was not yet in effect in the times of Boaz, and it was permitted to perform a yibum on a women who was forbidden to the brother by a negative prohibition.

The Ramban in Breishis (38:8) states: In the times of our Patriarchs, they would perform the mitzvah of yibum even with other relatives; not only a brother’s wife.

Ploni Almoni (Rus’ closest relative) could have performed a mitzvah of yibum with Rus even though she was a Moabite women, because the positive commandment of yibum would override the prohibition against marrying a Moabite woman. He refused to marry her because the children that would descend from this union would be tainted; they would not be allowed to marry into the congregation because the children would be Moabite’s, just like their mother. He was concerned even about his own children that he fathered beforehand. People might not understand the distinction, and they would claim that all his children are forbidden to marry into the congregation.

Boaz, on the other hand, did not have these concerns. The Gemora in Bava Basra (91a) records that all of his children died already.

This is what Doeg thought. He knew that Boaz would not publicly violate the Torah by marrying Rus illegally. This is why Doeg claimed that Dovid is prohibited from marrying into the congregation. Dovid descends from Rus, and she is a Moabite that has the prohibition of not marrying into the congregation. Boaz was justified to perform yibum with her, but the children will still remain disqualified from entering the congregation.

There are many questions on this explanation. The Kli Chemdah and Yashreish Yaakov ask: The entire premise of the Maharsha is flawed. The Ramban’s explanation of yibum is only prior to the Giving of the Torah. After the Torah was given, yibum can only be performed on a brother’s wife; not with any other relatives.

The Alshich asks: How could there have been a mitzvah of yibum with Rus altogether? Her marriage with Machlon had no validity; she was an idolater.

Furthermore, Tosfos rules that only the initial part of cohabitation would be Biblically permitted with a woman who is forbidden by a negative precept. One is prohibited from completing cohabitation. How was Boaz able to complete cohabitation with Rus, and father a child with her?

The Yashreish Yaakov concludes by saying that the words of the Maharsha were only to be taken as a drush.

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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.

Read more!