Commentary for Numbers 32:16

נבנה למקננו פה WE WILL BUILD [SHEEP FOLDS] FOR OUR CATTLE HERE — They paid more regard to their property than to their sons and daughters, because they mentioned their cattle before their children. Moses said to them, “Not so! Make the chief thing the chief thing and what is subordinate subordinate. First build cities for your little ones and afterwards enclosures for your flocks” (cf. v. 24) (Midrash Tanchuma, Matot 7).

ויגשו אליו, They approached him, etc. The reason the Torah writes "they approached," seeing they were already standing before Moses, Eleazar and the princes may be to show that in view of Moses' reaction that they were no better than the generation of the spies they had felt rebuffed. The Torah therefore had to describe them as "approaching" when they continued their palaver.

They were more concerned over their property. Rashi is answering the question: Why did Moshe change [what they said] and say, “Build for yourselves cities for your children and enclosures for your sheep” (v. 24)? He answers that it was because “they were more concerned…”

V. 16. גדרת צאן נבנה למקננו וגו׳. Das Wort der Weisen im מ ר lässt uns an der Gedankenfolge dieses Vortrags der Söhne Gad und Reuben die überwiegende Besitzesliebe erkennen, die überhaupt ja dem ganzen Anliegen zu Grunde lag. Ihre Herden lagen ihnen mehr am Herzen als ihre Kinder, darum erst גדרת צאן למקננו und dann ערים לטפנו, sonst hätten sie ja wohl auch schon um ihrer Kinder willen sich zweimal bedacht, ehe sie sich der anlockenden Weidegegend willen der Gefahr aussetzten, ihren geistigen Zusammenhang mit dem Nationalganzen und dessen Heiligtum durch Entfernung zu gefährden. In Mosche Erwiderung (V. 24) stellt sich die Fürsorge für die Kinder in den Vordergrund und haben sie dies sehr wohl aufgefasst. V. 26 lassen sie in ihrem Schlusswort den Kindern und Frauen den Vorrang, vor ihrem Viehstand. Es ist ihnen auch, wie das Wort der Weisen weiter bemerkt, diese Überschätzung des materiellen Güterreichtums nicht gut bekommen. Wie sie vorzeitig zum Besitz gegriffen, waren sie auch die ersten, die Besitz und Heimat verloren. Sie gingen zuerst durch Pul und Tiglath Pileßer ins Exil (Chron. I. 5, 26).

Alternatively, after hearing what Moses had to say they realised that it depended on their actions if their wish would be granted or not. They therefore felt the need to approach him even more closely in order to convince Moses of their sincerity. They realised now that their original words had not convinced Moses.

גדרות צאן נבנה למקננו, we will build sheepfolds for our cattle, etc. Why did they have to make this statement altogether? All they had to do was to give Moses the kind of answer which would demonstrate that he had suspected them unjustly, namely that they would form the vanguard of the soldiers entering the land of Canaan (verses 17-18). We may be able to explain their statement with the help of what Maimonides has written in chapter eleven of his treatise Hilchot Mechirah. He wrote: "if someone sells his house to a neighbour or he gives it to him as a present on condition that the recipient go to Jerusalem with him on a certain day and the recipient meanwhile occupies the house in question he has acquired it as soon as he goes to Jerusalem with the former owner on the date agreed. If, however, the formula of the sale or gift was as follows: "if you go to Jerusalem with me on a certain day I will sell you or give you my house, and the other party did go to Jerusalem with him on the day in question, he does not own the house even if he had moved in in the meantime, as the deal was what is called an אסמכתא, the first party not having expected to have to make good on the deal as he expected the second party not to be able to meet the condition in question. Thus far Maimonides. In chapter one of the same treatise Maimonides writes: "What constitutes proper possession through occupancy? If he sold him a house, a field, or he gave it to him as a gift, the recipient must make some kind of improvement in the property under discussion in addition to mere occupancy in order for the transaction to be complete, (irreversible)." Thus far the wording of Maimonides.

The two tribes of Gad and Reuven were astute enough to appreciate the הלכות pertaining to the acquisition of permanent ownership. This is why they told Moses that seeing that their receiving these lands was conditional on their fulfilling Moses' terms, they would first demonstrate ownership of these lands by erecting sheepfolds, i.e. making the kinds of improvement which established their חזקה, undisputed ownership. The "cities for our children," were also meant to demonstrate their ownership.

You may ask that they could have done all this without making a public announcement about it beforehand as there is no halachic necessity to publicise these improvements. However, Maimonides also wrote in the chapter we quoted: "when are such improvements proof of the new owner's intention?, When he made them in the presence of the previous owner. If the new owner made these improvements without the previous owner being aware of it, then he has not made a valid acquisition until the previous owner has told him: 'go ahead and make symbolic improvement as a sign that you have acquired this property.'" The two tribes announced what they were going to do in order to elicit Moses' consent. This is why Moses said to them in verse 24: "build for yourselves cities for your children and sheepfolds for your sheep, etc." This was the equivalent of the formula Maimonides mentioned.

Nachmanides and his colleagues disagree with Maimonides in the matter of אסמכתא and hold that as long as fulfilment of conditions attached to the sale must be performed only by the buyer, the principle of אסמכתא is not involved and as soon as the buyer has fulfilled the relevant conditions the sale is closed. In order for the statement of the tribes of Reuven and Gad to make sense according to that opinion, the tribes mentioned the building of the sheepfolds and cities to tell Moses that until they had completed this they were not prepared to join the other tribes and cross the Jordan with them.