Комментарий к Бамидбар 27:5

ויקרב משה את משפטן AND MOSES BROUGHT THEIR CAUSE [BEFORE THE LORD] — The law on this subject escaped him (Sanhedrin 8a). Here he received punishment because he had assumed a “crown” (he had set himself up as the supreme judge) by saying, (Deuteronomy 1:17) “And the cause that is too hard for you ye shall bring to me”. Another explanation: This chapter ought to have been written by Moses (i.e., like most laws in the Torah it should have been spoken to the people by Moses without his having waited until some incident made its promulgation necessary), but for the fact that the daughters of Zelophehad had so much merit, it was therefore written through them (it was their complaint which gave occasion for stating it) (Bava Batra 119a; Sanhedrin 8a).

ויקרב משה את משפטן לפני השם, "Moses submitted their claim for G'd to adjudge." It is possible, that Moses used the last mentioned arguments of these daughters and wanted to know from G'd if to treat these girls as the missing sons or if to treat their mother as a potential candidate for some kind of levirate marriage in order to preserve the name of their father. Moses hoped that in the event G'd would deny them an inheritance, He would at the same time give him a reason why the principle underlying the levirate marriage legislation did not apply to them, i.e. why their mother could not marry a brother-in-law and the son born from such a marriage would inherit Tzelofchod's or Chefer's inheritance.

The halachah was concealed from him. For if not so, later in Parshas Masei it merely writes, “Moshe instructed [Bnei Yisroel] according to command of Hashem, [saying]: ‘Correctly are the descendants of Yosef’s tribe speaking’” (Bamidbar 36:5), but here he had to bring their case before Hashem. Rather, [the halachah] “was concealed…”

V. 5. נון רבתי .את משפטן (siehe V. 6).

ויקרב משה את משפטן, “he submitted their legal claim to G-d;” Moses knew that women are entitled to inherit. What he did not know or agreed with, was if people such as Tz’lofchod had only a potential claim to such land, and that seeing that he never set foot on the land that he was still entitled to pass on that claim to his daughters.

Another interpretation: It was fitting [for this chapter]… According to the first reason there is the difficulty as to how [do we know that] the halachah was concealed from him? Perhaps Moshe did not want to rule on the halachah without Hashem’s instruction, as is written above in Parshas Beha'aloscha concerning “There were men…” (Bamidbar 9:6). There Rashi did not explain, “Here he was punished,” so the same should hold true here. Therefore Rashi brings the other interpretation. However, according to the other interpretation there is the difficulty as to why here it is not written, “Stand and I will listen…” as it does there (v. 8). Therefore Rashi also brings the first reason.

Another way of explaining Moses' action may be based on something reported in the name of Rabbi Shimon Hashekimoni in Baba Batra 119. This rabbi said that Moses was fully aware that the daughters of Tzelofchod were entitled to inherit land in the Holy Land. What Moses did not know was if they were also entitled to inherit a second share in lieu of the share their grandfather had inherited by reason of his being a firstborn. Actually, the whole paragraph dealing with the laws of inheritance should have been written by Moses; the reason it was written as a result of the claim presented by the daughters of Tzelofchod was because these daughters were very meritorious so that they became the catalyst of this legislation being presented at this point. Moses also knew that the מקשש עצים was guilty of the death penalty seeing the Torah had written that he who desecrates the Sabbath is to be executed (Exodus 31,15); he only did not know which of the four death penalties he was to apply. The reason that portion was written as a direct result of the sin of the מקשש was to teach that if the Torah wishes to confer an entitlement on someone it chooses as an example people who are the beneficiaries of that entitlement. Similarly, when there was an immediate need for the Torah to legislate guilt it chose a person who was guilty under the heading of that legislation to be the catalyst for revealing this legislation. Thus far Rabbi Shimon Hashekimoni. Tossaphot comment that although the whole legislation about inheritance had not yet been divulged, Moses knew all about the argument the daughters of Tzelofchod presented, i.e. that they wished to be treated either as sons or that their mother should be allowed to marry a brother-in-law.

This sounds very puzzling. We have learned in Zevachim 115 that Rabbi Akiva and Rabbi Yishmael argued about the order in which the written Torah was recorded. Both Rabbis agree, however, that both the general rules as well as their applications were revealed to Moses at Mount Sinai. According to what we just read in Baba Batra it sounds as if portions of the Torah had not been revealed to Moses even in the last months of his life after Aaron had died already! Why else would the Torah describe the daughters of Tzelofchod as appearing in the presence of "Eleazar The Priest?" [This would mean that Aaron died without being aware of a crucial part of the written Torah. Ed.] We have no problem with the part of the Baraitha which discusses the guilt of the מקשש, the man who gathered firewood on the Sabbath, as this occurred either during the first year or the early part of the second year that the Israelites were in the desert (compare Sifri section 1 item 113). We could say therefore that G'd had told Moses at Mount Sinai what the penalty of the מקשש was, as the Israelites were still camped around the Mountain at the time. Where did G'd tell Moses about the right of daughters to inherit the double portion of a deceased father who was a firstborn?

We must conclude that Moses heard all general rules as well as all detailed הלכות at Mount Sinai, including the details about the laws of inheritance and that he even knew about the daughters receiving the part of the inheritance which Tzelofchod or Chefer had come by only by dint of being firstborn. When the Baraitha described Moses as not knowing if the daughters were entitled to that share also, this applied only to this exceptional inheritance of land in the land of Israel. The problem was whether a person who had stood to inherit from someone who personally had not owned, i.e. possessed the land in question, was to be treated as ראוי or as מוחזק, i.e. as a potential rather than as an actual heir. The rule about inheriting a double share applies only to property left by the father when the father had possession of it at the time of his death; if the father's assets were in the form of outstanding loans for instance, the sons are considered as only potential heirs and the firstborn enjoys no special privilege. The fact that Moses did not know this detail is not to be construed as a deficiency in knowing the laws of the Torah. This evaluation is confirmed by what the Talmud basing itself on the statement of Rabbi Shimon Hashekimoni asks Rava who holds that possession of the land of Israel by Israelites who have never set foot in it is still considered as actual possession. The Talmud asks that seeing we have Rava's statement what doubts did Moses entertain? The Talmud answers that the interpretation of the verse from which this concept is supposedly taken is the subject of the debate. The Torah writes in Exodus 6,8: "and I will give it (the land of Canaan) to you as a heritage." This means that if the word מורשה means heritage, i.e. ירושה, then the firstborn will be entitled to a double share in it. However, it is possible that the correct translation for the word מורשה is that it is a land which you may pass on to your children, etc. The latter meaning implies that only after the Israelites had actually taken possession of the land could they in turn bequeath their shares to their children. If the latter interpretation is correct this would reflect what is written in Exodus 15,17: "You bring them in and plant them on the mountain of Your inheritance." According to the Talmud these words, spoken during the song of thanksgiving for G'd having led the Israelites through the sea of reeds, were in the nature of a prophecy not understood at that time by the people who uttered it. [The exegetical detail is that the word תביאמו means "You will bring it (or them)," whereas we would have expected the Israelites to sing: תביאנו, "You will bring us." Ed.] The concensus seems to be that the wording מורשה means that it will become your inheritance for you to pass on as an inheritance as well as an immediate inheritance and that Moses was aware of the dual meaning of the word מורשה. At any rate, all of these considerations make sense only if the section dealing with laws of inheritance had already been revealed to Moses. If not, how could the Talmud have described Moses as being in doubt when and how the legislation applied seeing that the whole legislation had not yet been revealed?

We can prove from the Talmud that the laws of inheritance as they applied to the land of Israel, i.e. if one's claim to it is merely potential or if the Israelites were already considered as in possession of it, had been mentioned in the Torah already. This is what the Talmud meant when it stated that the Israelites prophesied without being aware of what they prophesied when they said the words תביאמו ותטעמו בהר נחלתך in the Song in Exodus 15,17. The only thing is that even Moses had not paid attention to the implication of what is written there. Let us now examine carefully what the Torah had in mind here. The words ויקרב משה את משפטן לפני השם refer to the claim for the share of the firstborn; concerning this enquiry G'd answered (verse 7) והעברת את נחלת אביהן להן, "you are to transfer their father's inheritance to them." The word והעברת is in itself an allusion to the firstborn as we encounter this expression in Exodus 13,12 in the legislation concerning the firstborn. Although we find that the Torah spells out details of the legislation here this does not mean it had not been divulged at Sinai already. According to Sanhedrin 59 we have similar examples when the Torah records the law of circumcision in Genesis chapter 17 or the law about the גיד הנשה, the sinew of the femoral vein, in Genesis chapter 32. The Torah saw fit to record details of a certain law in connection with its being observed in fact, although, legislatively speaking it was promulgated only at Sinai (compare Chulin 100). What remains to be clarified is where the daughters of Tzelofchod themselves alluded to the claim for the share of the firstborn which alone prompted Moses to submit their claim to G'd. Perhaps there was not even any need for them to spell this out. We have a rule that if the judge is aware that a litigant has a valid claim to something he either did not know about or had forgotten to mention and the judge is in some doubt about such a claim being valid, he has to submit it to G'd for a decision. It is also possible that when the daughters said: "why should the name of our father be lost," they meant that Moses should consider it as if their father himself was about to cross into the land of Canaan and was now presenting his claim. Moses would understand then that the subject under discussion was the additional share which the firstborn is entitled to. This is why the Torah said that Moses presented משפטן, the doubtful part of their claim, i.e. the claim to the share of the firstborn.