Tuesday, August 25, 2009

lo yuchal levaker: cannot or may not?

Less than 2 weeks ago we discussed the pasuk in Parshas Re'eh "lo tuchal l'echol b'she'arecha ma'aser degancha..." (12:17). Although "lo tuchal" means you cannot, i.e. it is impossible to do, the pasuk means b'pshuto (as Rashi explains) "you may not", i.e. there is a prohibition of doing so. (In the previous post we discussed why the pasuk did not simply word it as a prohibition.)

The strange construction of "cannot" appears again in our parsha -- "lo yuchal l'vaker es ben ha'ahuva", you cannot give first-born rights to the more beloved son who was born second. The Ramban counts this as a mitzvas aseh which prohibits transferring inheritance from the bechor to another son (see his additions to the Rambam's count at the end of Sefer haMitzvos, #12).

How to interpret the pasuk sheds light on a discussion in the Yerushalmi Baba Basra (8:4, 23b in Vilna ed.): R' Lo gave the bechor an equal portion as the other sons. R' Chagai asked: what of the pasuk "lo yuchal levakeir"? R' Elazar then responded, "yachol v'aino rashai".

The Pnei Moshe makes the assumption that everyone agrees that if the father (in his lifetime) makes a gift of his assets to a son other than the firstborn he can circumvent the prohibition of "lo yuchal levaker". R' Chagai only questioned what R' Lo did because he did not know the facts of the case. This reading is a bit difficult because R' Elazar's statement does not add anything that was not known at the start of the sugya.

The Tzion Yerushalayim, however, reads the the give and take of the sugya as debating how to understand the pasuk of "lo yuchal levaker". R' Chagai understood the pasuk to mean what it says: one cannot transfer assets; i.e. it is impossible to do. To which R' Elazar replied that "lo yuchal" does not mean it is impossible, but rather it means (as Rashi in P' Re'eh and the Ramban understood) that if done incorrectly there is a prohibition of making such a transfer.


  1. Anonymous1:11 PM

    A quick reading of your post, suggests that the *rights* or special considerations afforded to "first borns" are based on the proverbial "federal rules of first born rights and procedure", rules that are not based on feelings or open to emotional re-interpretation/a more favorable re-formating.

    Transferring *any rights* based on fatherly feelings, as in loving a different kid better for whatever reason... would be prohibited in the technical sense because I don't think playing favorites and or feelings are part of this particular prohibition equation, at least according to your post.

    How and why there are specific "rights" for kids that are born first is a different argument,and research project.... similar to arguments about kohanim leviim ....

    jaded topaz

  2. Anonymous1:14 PM

    I guess the question is what precisely was the original definition for "first- born rights".
    Did it always involve assets ?
    Did Yitzchak give Eisev his assets ?

  3. Anonymous1:16 PM

    One last point and I'll shut up, did Yitzchak even have assets ?
    I guess I should locate the original written documented contract on the transfer of "bechor" assets between Yaakov and Eisav ;-)

    jaded topaz

  4. Anonymous7:02 PM

    Does anyone reading this thread have a copy of and or know where I can locate a copy of the original contract used for the transfer of first-born rights-assets between the biblical yaakov and eisav.

    jaded topaz

  5. Ah, the pleasures of anonymity and the internet...so little to say, and so much time to say it....

  6. Anonymous8:18 PM

    Rabbi Barzilai the Great and Sarcastic Sage

    What precisely do you believe is the original source for "first-born" rights and the transferring of said rights ?
    Is there an earlier source that yaakov and eisav ?
    wouldn't the original source be the place to be looking when attempting to understand, the original historical context for first born rights and who transferred what ?

    jaded topaz

  7. I'm sorry, Jaded Topaz, I'm not a congregational 'Rabbi', and my Semichas do not say that I have to be kind to people who are not covered by "rei'acha."

    I don't know what you are looking for. Do you not know the source for the law of Bechor? Do you think historical context affects interpretation of biblical law? Or are you asking how the transaction between Yakov and Eisav was legally binding? If your answer to either #1 or #2 is yes, then your lexicon is so different from mine that communication is hopeless. If your answers to both #1 or #2 are no, and you're asking about #3, then we can talk.

  8. Anonymous10:43 PM

    Your Honor,

    I'm asking about #3.
    As for your "rei'acha." loophole, didn't one of Yisro's name, Reul, have a friend theme, or was it two of them.
    This suggests that you might have to update your definition of what "friend" is actually referring to and or the precise and definitive definition for "rei'acha." ;-)

    jaded topaz

  9. Regarding #3:

    The Ba'al Haturim has two pirushim on the Chumash; the famous Ba'al Haturim and the Pirush Hatur. In the latter, he says that it was Eisav's trivialization of the mantle of primary heir to Yitzchak's heritage that enabled the transfer. His derision of the title nullified his hereditary rights of primogeniture, leaving a level playing field upon which those rights belonged to the one who more deserved them. Under those circumstances, Yaakov was naturally granted the mantle of Yitzchak's heritage. And Eisav got the ocean of petroleum.