Commento su Deuteronomio 21:16

LO YUCHAL’ [literally: “he could not” but rendered: HE MAY NOT] DECLARE THE SON OF THE BELOVED FIRSTBORN. This is an admonition⁸²Since Rambam did not enumerate it in his Sefer Hamitzvoth as a separate negative commandment, because he included it as part of the specific laws relating to the commandment of inheritance, Ramban points out that, in his opinion, it is to be considered as a separate prohibition. See “The Commandments,” Vol. II, p. 336, Commandment 12. In the following two cases Rambam also admits that they are to be counted as separate commandments. against doing so. Likewise are all such verses as: ‘Lo thuchal’ (thou mayest not) eat within thy gates etc.;⁸³Above, 12:17. Literally: “thou couldst not.” So also in the following verse. ‘lo thuchal’ (thou mayest not) put a foreigner over thee.⁸⁴Ibid., 17:15. And in all these cases, Onkelos translates “you have no right” [which proves that the verse before us, too, constitutes an admonition], and the purport of these expressions is, “you could not allow yourself the possibility of doing so,” emphasizing the importance of the admonitions. Similarly, But he shall acknowledge the firstborn, the son of the hated, by giving him a double portion⁸⁵Verse 17. constitutes a positive commandment that he bequeath a double portion to the firstborn. Thus he who equalizes the firstborn with his brothers [i.e., he assigns him a share equal to theirs] violates both a negative commandment and a positive commandment, even though his words are not legally valid. He surely violates both [commandments] if, knowing he [the son of the hated one] is the firstborn, and did not wish to make it known that he is the firstborn and claimed that he is an ordinary son and caused him to inherit like any one of his sons. Now, these are newly-declared commandments. And from that which Scripture states [he may not declare the son of the beloved firstborn] in the face of the firstborn, the son of the hated it would appear to me that this commandment and this law are binding only during the lifetime of the firstborn. But, if the firstborn died during the life of his father, even though he [the deceased son] inherits his share as the firstborn in the grave and bequeathes it by law to his children, yet if the father wished [to deviate] and said, “My sons shall inherit such-and-such of my belongings, and the children of my [late] son, the firstborn, shall take such-and-such of my belongings,” his instructions are valid just as they would be valid in a case where there is no firstborn son. Similarly, the father would not be violating this negative commandment if he did not acknowledge the firstborn son only after his death, for I have never found the expression ‘al pnei’ (in the face of) except with reference to the living, such as: ‘al pnei’ (in the presence of) Aaron their father;⁸⁶Numbers 3:4. ‘al pnei’ (in the presence of) his father Terah,⁸⁷Genesis 11:28. and similarly all such expressions. [Therefore, in this case, since it states that the father may not do it ‘al pnei’ the firstborn of the hated, it follows that the prohibition is binding only during the lifetime of the firstborn and that the father had acknowledged him as such.].

לא יוכל לבכר את בן האהובה על פני בן השנואה הבכור. The firstborn son’s entitlement to an extra share in his father’s inheritance must not be transferred on account of his father loving his mother more or “hating” her, i.e. loving her less than his second wife. If the reason the father wants to transfer the extra portion of the inheritance away from the chronologically entitled son due to that son’s misconduct¸ this is in order, as we know from Baba Batra 133 אם לא היה נוהג כשורה זכור לטוב, íf the chronologically oldest did not conduct himself properly his inheritance may be transferred to another better one. [opinion of Rabbi Shimon ben Gamliel only, not accepted by codifiers. Ed.] It appears that this is what Yaakov did when he took birthright privileges away from Reuven (Chronicles I 5,1) transferring it to Joseph.

הנחילו את בניו, את אשר יהיה לו, when he allocates the inheritance to the sons he has, etc. The Torah did not write ביום אשר הנחילו את אשר יהיה, לו את בניו, "on the day he allocates his inheritance to the ones who are his, i.e. his sons," which would have been far more appropriate, because the Torah wanted the word הנחילו to appear next to את בניו. This is an allusion to what we learned in Baba Batra 130 that a father may allocate to one of his sons [because he is his natural heir. Ed.] more than would be his share if all the children would inherit equally when no special allocation has been made.

לא יוכל לבכר, “he is not legally able to declare as firstborn, etc.” if the father of the preferred wife declares her son as the firstborn with the privileges the Torah accords the firstborn, although he is in fact not the firstborn, then he has also violated a negative commandment.

V. 16. והיה ביום הנחילו את בניו, mit dieser Voraussetzung ist (Baba Batra 130 a) dem Vater die Befugnis eingeräumt, unter seinen gesetzlichen Erben seinen Nachlass nach seiner Wahl zu verteilen, התורה נתנה רשות לאב להנחיל לכל מי שירצה. Das לכל מי שירצה ist jedoch nur in beschränktem Sinne zu verstehen: על מי שראוי ליורשו. Nur unter den Erbberechtigten kann er seinen Nachlass ungleich verteilen oder selbst einen von ihnen zum Universalerben einsetzen. Er kann aber keinem Nichtberechtigten ein Erbrecht erteilen. Es heißt את בניו im Texte. Von dieser Befugnis wird hier חלק בכורה ausgenommen. Das Erstgeburtsteil kann der Vater in keiner Weise dem Erstgeborenen schmälern.

לא יוכל לבכר את בן האהובה, “he must not favour the son of his beloved wife, (over the son of the wife he has grown to hate,” (by treating him as his first born) Yaakov having treated Joseph as his firstborn is somewhat different as he had never meant to marry Leah, and when he did so in order not to shame her, she subsequently felt hated (having been guilty of deceiving him.). Yaakov “hated her” as she had deprived him of Joseph becoming the true first born from the wife he had worked for, for seven years. Yaakov should have brought Reuven to trial, if he had been guilty of a sin against him instead of depriving him of his rights as a firstborn.

את אשר יהיה לו, “whatever he shall own.” From this formulation we learn that a son (not a firstborn) is entitled to inherit also what is owed to his father at the time of his death.

על פני בן השנואה, הבכור, “ahead of the son of the hated one, the firstborn, etc.” Nachmanides, paying attention to minute grammatical nuances in our verse, concludes from the apparently superfluous words על פני in “the presence of,” that if the true firstborn has already died before his father, i.e. before the question of distributing an estate even became imminent, the father’s dispositions are legally effective, in spite of the general rule that a firstborn is entitled to his share of the inheritance even if he died before his father, if he left behind natural heirs. In every instance where the expression על פני occurs as referring to people, it means “during the lifetime of, etc.” (Compare Genesis 11,28, Numbers 3,4)

לא יוכל לבקר "He cannot give preference (the status of being the firstborn), etc." If he did so, he violates a negative commandment. This rule answers a question raised by Tossaphot in Baba Batra 130 which commences with the words תלמוד לומר לא יבכר.

את אשר יהיה לו. Mit bedeutsamer Präzision wechselt der Ausdruck hier und V. 17. Der unter den Söhnen normal zur Verteilung kommende Nachlass wird את אשר יהיה לו genannt. Dieser Ausdruck umfasst das ganze Vermögen des Erblassers: "das, was ihm zusteht", "worauf er ein Recht hat". Es sind darin sowohl die bei seinem Tode sich in seinem Besitze befindenden Vermögensstücke (מוחזק), als auch alles dasjenige begriffen, was er noch an Schuldforderungen ausstehen hat und das der Masse erst nach seinem Tode zuwächst, was bei seinem Tode noch kein Besitz, sondern nur Rechtsanspruch (ראוי) war. Der בכורה-Anteil wird aber (V. 17) nur בכל אשר ימצא לו nur von dem bestimmt, was bei dem Tode des Erblassers bereits in dessen Besitze vorhanden war, von den Ausständen wird dem בכור kein Voranteil, אין הבכור נוטל בראוי כבמוחזק (Bechorot 52 a).

על פני בן השנואה, “in preference to the firstborn son of the wife he dislikes;” [if he had literally hated her, he would have had to divorce her. We find that our matriarch Leah also considered herself “hated” by her husband, clearly an exaggeration; otherwise Yaakov would have kicked her out after the wedding night. (Compare Genesis 29,33) Ed.] We find the expression: על פני, meaning “preferable to” also in Exodus 20,3: לא יהיה לך אלוהים אחרים על פני, “you must not have other deities that you prefer to Me.” Compare also: Numbers 3,4: ויכהן אלעזר ואיתמר על פני אהרן אביהם, “he appointed Eleazar and Ittamar as priests (even) while their father was still alive.