Who’s On First?
‘Who Is Considered A Firstborn?’
(Bava Basra 126b)
Our daf discusses the circumstances that need to be met in order for one to be considered a firstborn, thus being entitled to a double portion of inheritance. The Gemara touches on whether the firstborn is that of the father, mother, or both. However, other possibilities have been explored throughout Chazal.
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 and the first wife had a son who, though conceived earlier, was born shortly after the second wife’s offspring. Poskim were nonplussed to decide which was to be considered his firstborn – the one conceived first or the one actually born first.
The issue was referred to the Vilna Gaon, who declared that the Torah itself addresses the question: The Torah describes a situation where “[i]f 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 later mentions the firstborn as belonging to the disliked wife. In other words, it could be that the beloved wife’s son was born first whereas the disliked wife’s son was conceived first. In such an instance, “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.” The Gaon views the divorced wife as similar to the disliked, though yet married, wife.
Dispute And Doubt
This instructive interpretation, appearing in Saaras Eliyahu, apparently determined that the first child conceived is halachically regarded as the firstborn, but the Gaon’s simple explanation caused a great stir. Many halachic authorities expressed doubt, citing much evidence, and remarked that firstborn rights belong strictly to the son actually born first (see Responsa Sho’el Umeishiv, 3rd edition, 3:52, Responsa Imrei Yosher, 2:112, Chochmas Shlomoh on Shulchan Aruch, Choshen Mishpat 278; Pardes Yosef on Ki Teitze).
Some scholars added that they did not believe that the Vilna Gaon (or Rabbi Chayim of Volozhin, to whom some works attributed the interpretation) ever expressed such an idea. The Netziv of Volozhin also writes in his Ha’emek Davar (Devarim 21:15) that the interpretation is falsely quoted in the name of the Vilna Gaon.
The Netziv and the Cheishek Shlomo comment that the verses indicate an opposite case, where the beloved wife conceived a son first, as the beloved is mentioned first: “If a man will have two wives, one beloved and one disliked.” The word “one,” repeated twice, is apparently superfluous, but on closer inspection, teaches us that they did not become his wives simultaneously. First he wed the beloved wife, and later the one he eventually disliked. The first wife usually conceives first, but 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 contention with a Midrash quoted by Rashi (Bereishis 25:26). The Midrash attests that Yaakov was conceived first but Esav was considered the firstborn, because he was actually born first, up to the point where Yaakov bought the primogeniture (firstborn) rights from him (see Chochmas Shlomo, who reconciles this difficulty). The Baal HaTurim notes that the fact that Yaakov was conceived first had no effect on Esav’s firstborn status, as firstborn rights are strictly determined by a son’s actual birth (see Moshav Zekeinim, ibid.; Tosfos Hashalem on Bereishis).
