BECHOROS 46 (28 Iyar) -ֲ Dedicated in honor of the birthday of Neti Linzer.
1) THE FIRSTBORN BUT NOT THE BECHOR
QUESTION: The Mishnah teaches that it is possible for a firstborn to have the status of Bechor with regard to the right to receive a double portion of the inheritance, but not with regard to the requirement of Pidyon ha'Ben, and vice versa. RASHI (DH ha'Ba) explains that the factor that determines whether a firstborn son is considered the Bechor with regard to inheritance is whether the child is "Reishis Ono" -- "the first of his strength" (Devarim 21:17), which means the first offspring of the father. The Gemara in Bava Basra (111b) explains further that the child must be "Mi she'Libo Daveh Alav" -- one for whom the father's heart is concerned.
The verse "Reishis Ono" is written in the section of the Torah that discusses a man who has two wives, one of whom he loves and the other he hates. The Torah prohibits the man from favoring the son of the beloved wife with the birthright if the other wife's child was born to him first. There is, however, an apparent discrepancy in the verses. The Torah first states, "If a man has two wives, one beloved, and another hated, and they have born him children, both the beloved and the hated" (21:15), implying that the beloved wife gave birth first. Why does the Torah then say, "And if the firstborn son is hers who was hated, then it shall be, when he makes his sons inherit that which he has, that he may not make the son of the beloved inherit before the son of the hated, who is indeed the firstborn" (21:16), implying that the son of the hated wife was born first? (VILNA GA'ON; DORESH L'TZIYON of the NODA B'YEHUDAH)
(a) The VILNA GA'ON suggests that the Torah is referring to a situation in which a man married a woman and then divorced her when she was pregnant (the hated wife). Shortly thereafter he married a second woman (the beloved wife), who conceived and gave birth prematurely, before the first wife gave birth. Since the beloved wife gave birth before the hated wife (who conceived first), the Torah says that the beloved wife gave birth first. However, the Torah considers the son of the hated woman the Bechor with regard to inheritance, because he was conceived first, even though he was born second. (The CHOCHMAS SHLOMO (CM 278) quotes this ruling but disagrees with it, asserting that the status of Bechor is unrelated to the time of conception; see also HA'AMEK DAVAR.)
(b) The IMREI YOSHER offers a different explanation. He quotes the MAHARIT ALGAZI who explains the Sifri that says that when "Rosho v'Rubo" (the head and most of the body) of one baby emerged from the womb and then the baby died, he is considered the Bechor; the next baby born is not considered a Bechor with regard to inheritance. Accordingly, the Torah might be referring to a case in which a man's two wives gave birth at the same time. The head and most of the body of the son of the hated wife emerged first but then went back into the womb, and then the beloved wife gave birth. The Torah is teaching that even though the first baby that emerged entirely (the first to be "born") was the son of the beloved wife, the son of the hated woman is considered the Bechor since his head and most of his body emerged from the womb first.
2) THE FIRSTBORN SON OF A WOMAN WHO CONVERTED WHILE PREGNANT
QUESTIONS: The Mishnah states that if a Nochri, who had sons, married a woman who never had children, and later the couple converted while she was pregnant, her firstborn son is considered the Bechor with regard to Pidyon ha'Ben, but not with regard to the right to inherit a double portion of his father's estate. RASHI (DH Nisgairah) explains that the husband converted together with the wife. The baby is a Bechor and must be given to the Kohen, because he is the first to emerge from the mother's womb ("Peter Rechem") and is a Yisrael. However, he is not a Bechor with regard to inheritance, because he was conceived "she'Lo b'Kedushah," before the conversion. The Torah teaches that a Ger does not have familial ties to his father, as the verse states, "Zirmas Susim Zirmasam" (Yechezkel 23:20).
Rashi's explanation is difficult to understand.
(a) Why does Rashi need to mention the reason that the offspring of a Mitzri has no familial ties? There is a more basic reason for why the child does not inherit his father's property -- the principle of "Ger she'Nisgayer k'Katan she'Nolad Dami" -- a Nochri who converts is like a newborn child. Accordingly, the baby, after his conversion together with his mother, has no familial bond to his biological father. Why does Rashi not mention this reason?
(b) The RAMBAN (Chidushim to Yevamos 98a) states that the principle that the offspring of a Nochri is not related to its father ("Afkerei Rachmana l'Zar'ei") applies even when the Nochri does not convert. For this reason, a Nochri is permitted to marry relatives from his father's side, even though he is forbidden to marry those same relatives from his mother's side. The Ramban there adds that when the Gemara in Kidushin (18a) says that a Nochri inherits his father, it means that there is a Gezeiras ha'Kasuv that even though he is not considered related to his father, he still inherits him.
It is clear from the Ramban that the principle of "Afkerei Rachmana l'Zar'ei" does not prevent the son from inheriting. Why, then, does Rashi write that the reason why the son does not inherit his father is because of "Afkerei Rachmana l'Zar'ei"? (See also TOSFOS DH Nisgairah.)
(a) RAV SHMUEL ROZOVSKY zt'l (Chidushim to Yevamos 12:4, DH v'Hineh) answers that Rashi in Yevamos (98a, DH Ha d'Amur, and DH Lo Teima) indeed writes that a baby born after the conversion is not considered a "Katan she'Nolad," even though he was conceived before the conversion. Accordingly, Rashi must give a different reason for why the child does not inherit his father.
(b) Rav Shmuel Rozovsky (ibid., DH Achen) answers the second question by pointing out that it is because of a Gezeiras ha'Kasuv that a Nochri inherits his father even though they are not considered related, as mentioned above. However, it must be that this Gezeiras ha'Kasuv is a special Halachah that applies only to Bnei Noach; once a Nochri converts and is no longer a Ben Noach, this special Halachah no longer applies to him. If not for the reason of "Afkerei Rachmana l'Zar'ei," the son would have had a connection to his father and would inherit him after converting, because -- according to Rashi in Yevamos -- in the case of a mother who converted while pregnant, the law of "Ger she'Nisgayer k'Katan she'Nolad" does not apply to the baby. Therefore, Rashi writes that the child has no connection to his father because of "Afkerei Rachmana," and that is why he does not inherit him after conversion. The law that every Nochri (who did not convert) inherits his father is due to a different Halachah -- a special Gezeiras ha'Kasuv in the Halachos of Bnei Noach which does not apply to this baby, who is now a Yisrael. (D. BLOOM)
3) RETURNING TO THE WOMB
QUESTION: Shmuel rules that the emergence of the head of a stillborn does not remove the status of Bechor from the next male baby that is born. RASHI (DH Ein) explains that this means that if the head of a stillborn emerged from the womb and then returned back into the womb, and then another baby was born before the first re-exited, the second baby is considered the Bechor for Kehunah.
Why does Rashi emphasize that the head of the stillborn returned to the womb? Instead of explaining that the head of the stillborn returned to the womb, Rashi should explain that the second baby exited the womb together with the stillborn! It must be possible for two babies to exit the womb at once, because the Mishnah later (48b) discusses a child whose status of Bechor is in doubt because it was born together with another child and there is a doubt about which was born first. (MAHARIT ALGAZI)
(a) The NEZER HA'KODESH and CHIDUSHEI RAV ZALMAN SENDER answer as follows. The Gemara earlier (9b) suggests that when two animals exit the womb at once, neither one should be considered a Bechor, because neither one is touching the entire womb as it exits its mother (and "Miktzas Rechem" is not Mekadesh the firstborn). Rav there responds that since Min b'Mino is not Chotzetz, the entire womb is considered to be touching each of the two babies.
The Gemara here is quoting Shmuel. Shmuel disagrees with Rav and rules that Min b'Mino is Chotzetz (Zevachim 110a). Therefore, the only way a baby can become Kadosh is when it exits the womb alone (and touches all of the womb), and not when it exits together with another baby. This is why Rashi finds it necessary to explain that the first baby's head was retracted back into the womb before the second baby was born.
(b) However, this answer is problematic in light of Rashi earlier (46a, DH ha'Ba), who also mentions that the first baby returned to the womb before the second was born, but Rashi there is not discussing the opinion of Shmuel.
It appears that the birth of humans and the birth of animals are different, and it is physically impossible for two human babies to exit the womb at the same time. When the Mishnah later discusses a doubt about which one of two twins is the Bechor, it refers to a situation in which a woman gave birth in a dark room and it was not possible to see which child was born first (see Rashi to 48b, DH v'Yaldu). (M. KORNFELD)
4) HALACHAH: THE AMOUNT OF THE HEAD THAT MUST EMERGE FROM THE WOMB
QUESTION: Reish Lakish rules that when a fully-formed baby's forehead emerges from the womb and then is retracted back into the womb, the next baby that is born is considered the Bechor with regard to inheritance (because a forehead does not fulfill the condition of "Yakir" (Devarim 21:17)). Rebbi Yochanan argues and rules that the emergence of a forehead entirely removes the status of Bechor from the next baby that is born, even with regard to inheritance.
What is the Halachah?
ANSWER: The TUR (CM 277) rules that the status of Bechor with regard to inheritance applies only to a firstborn male child born while the father is alive. Nevertheless, the Tur rules that if most of the baby's forehead emerged while the father was alive, and then the father died, the baby is considered the Bechor with regard to inheritance. The BEIS YOSEF explains that the Tur is ruling in accordance with the view of Rebbi Yochanan.
The BACH recommends omitting the word "most" (in the phrase, "most of the baby's forehead") from the text of the Tur, because the Gemara mentions only "forehead," which implies that the entire forehead must emerge and not only most of the forehead. Since the forehead is necessary in order to "recognize" ("Yakir") the newborn, the rule of "Rubo k'Chulo" does not apply. The SHEV SHEMAITSA (7:15) and Acharonim agree with this emendation.