Shabbat Parashat Ki Teitzei - 5783

Shabbat Parashat Ki Teitzei - 5783

Rabbi Hal Miller Then it shall be that on the day that he causes his sons to inherit whatever will be his, he cannot give the right of the firstborn to the son of the beloved one ahead of the son of the hated one, the firstborn. Rather he must recognize the firstborn, the son of the hated one, to give him double in all that is found with him for he is his initial vigor, to him is the right of the firstborn. [Devarim 21:16-17] At first glance, this seems straightforward. Firstborn means firstborn, and it isn't a matter that the father can change to suit his desires. But there is more going on. The Torah here is setting guidelines intended to prevent intra-family squabbles. It is granting rights that personal conflicts may not reverse. But it also leads to some confusion. Was this not violated by Avraham, Yitzchak, Yaakov and Yosef, among others? Are there loopholes in this law? The patriarchs all lived before the giving of the Torah on Mount Sinai, so one might think that they were not bound by Torah laws. We have a tradition that they followed Torah law anyway, although here and there we see some specific in which they had other rules. This law about firstborn seems like one they would have followed, so there has to be more to the law than the simple meaning of the verse. The wording of the verse is lo yuchal l'vacheir, he can not cause the firstborn right. Onkelos understands this that he does not have the right, although he does have the power to do it, the Torah prohibits it. The Gemora [Bava Batra 130a] is close to this, he shall not be able means he is not permitted. Ramban writes it as do not give yourself the ability to do it. All of these seem to say that a man is able to change the inheritance, even if he should not, whereas the verse seems to say he is not able to. What, then, is he able to do and what is he not able to do? The key seems to come from verse 17, "rather he must recognize". When a baby is born, everyone in town knows whether it is a firstborn or not. The father here is given some additional tool, to recognize, that he is able to effectively assign the birthright by way of some statement. Onkelos says the father separates out this son from the others. Torah Temimah describes it as causing others to recognize. But does this mean he can choose who to recognize? Rav Hirsch explains that the father does not recognize a birth from a non-Jewish mother, nor a stillborn, even if they precede his "real" firstborn. The Gemora [Bava Batra 133b] says that a man may give portions to whichever children he wishes, but although it stands, if he does not follow our verse, the rabbis are not pleased with him. Ramban says that our verse only applies when the firstborn is still alive at the time of the death of the father. If not, the father is free to do as he chooses. He says that at the time of the transfer from Eisav to Yaakov, Eisav stated that he was about to die, that the birthright would not do him any good, thus Yaakov acquired under this rule. Nachshoni explains based on Ramban that the transfer from Reuven to Yosef fits here because it was only carried out when the land was divided. At that point, Reuven was long dead, so it was a transfer from Reuven's descendants to those of Yosef. Sforno and others state that the above Gemora is what our patriarchs used. If a first born son is not worthy, the father can transfer his rights to a son that is worthy. Our verse comes to limit that ability to cases of the merit of the son, and forbids a transfer based on the feelings for his mother.