Who’s On First?
‘Who Is Considered A First Born?’
(Bava Basra 126b)
Our daf discusses the circumstances that need to be met in order for one to be considered a firstborn and thus entitled to a double portion of inheritance.
Unusual Circumstance
The following event occurred about 250 years ago. Someone married and divorced his wife within a short while, leaving her pregnant. He then, almost immediately, married another woman. The second wife bore a son seven months after their marriage, after which the first wife gave birth to her son. Many poskim were unsure whom to regard as the firstborn– the one conceived first or the one born first.
The issue was referred to the Vilna Gaon, who declared that the Torah itself addresses the question. It states, “If a man will have two wives, one beloved and one disliked, and they bear him sons, the beloved and the disliked, and the firstborn will belong to the disliked…” (Devarim 21:15).
In describing their birth, the Torah mentions the beloved wife’s son first but then states that the firstborn is the one born to the disliked wife. Apparently, argues the Vilna Gaon, the Torah was describing the very case brought to him. The disliked one conceived first but the beloved one gave birth first. And what does the Torah say? “He cannot prefer the beloved wife’s son to the son of the disliked wife, the firstborn. For he shall recognize the son of the disliked wife to give him a double inheritance for he is the first of his strength; the right of the firstborn belongs to him.”
Dispute And Doubt
This interpretation, appearing in Saaras Eliyahu, caused a great stir. Many halachic authorities disagreed, arguing, based on much evidence, that the firstborn is the one born first, not the one conceived first (see Responsa Shoel Umeishiv, 3rd edition, 3:52, Responsa Imrei Yosher, 2:112, Chochmas Shlomoh on Shulchan Aruch, Choshen Mishpat 278; Pardes Yosef on Ki Teitze).
In fact, some scholars maintain that the Vilna Gaon (or Rabbi Chayim of Volozhin, to whom some works attribute the interpretation) never made the argument he is purported to have made. The Netziv expresses this view in his Ha’emek Davar (Devarim 21:15).
The Netziv and Cheishek Shlomo, in fact, argue that the very verses at the basis of the Vilna Gaon’s purported view indicate the very opposite of what is attributed to the Gaon. They actually seem to be describing a situation where the beloved wife conceived first, since she is mentioned first: “If a man will have two wives, one beloved and one disliked.” The repetition of the word “one” indicates that he married one before the other. First he wed the beloved wife and later the one he later disliked. The first wife usually conceives first, and yet the Torah rules that the firstborn “will belong to the disliked” – if he was actually born first (see Peninim Mishulchan Hagra).
Yaakov And Esav
Those who reject the interpretation attributed to the Vilna Gaon support their position with a Midrash quoted by Rashi (Bereishis 25:26). The Midrash attests that Yaakov was conceived first but Esav was considered the firstborn (until he sold his rights to Yaakov) because he was actually born first. The Baal Haturim notes that the fact that Yaakov was conceived first had no effect on Esav’s firstborn status since firstborn rights are strictly determined by the order of birth (see Moshav Zekeinim, ibid.; Tosfos Hashalem on Bereishis).
