Again, Reshut means Authority!
From yesterday’s daf, Bava Batra 130a:
אָמַר רָבָא: מַאי טַעְמֵיהּ דְּרַבִּי יוֹחָנָן בֶּן בְּרוֹקָה? אָמַר קְרָא: ״וְהָיָה בְּיוֹם הַנְחִילוֹ אֶת בָּנָיו״ – הַתּוֹרָה נָתְנָה רְשׁוּת לָאָב לְהַנְחִיל לְכׇל מִי שֶׁיִּרְצֶה.
Rava said: What is the reason for the opinion of Rabbi Yoḥanan ben Beroka? The verse states: “Then it shall be, in the day that he causes his sons to inherit” (Deuteronomy 21:16), which is interpreted to mean that the Torah gave the father permission to bequeath his estate to whomever he wishes among his sons.
I dislike this translation of רְשׁוּת as “permission”. In context, it means “authority”, “dominion”, or “control”. Atrscroll does better, with “the Torah gave a father the right to bequeath his estate to any son that he wants.”
Jastrow lists these as separate word senses for the word רשות:
רָשׁוּת II , f. (רָשָׁה)
1) power, authority, control. Ned. X, 2, v. רוֹקֵן. Gen. R. s. 67 ששה … ברְשׁוּתוֹ שלשה אינן ברשותו six things (organs) serve man, three of which are under his control, and three are not; העין … ורשותו וכ׳ the eye, the ear, and the nose are not under his control &c. Bets. V, 2 משום ר׳ as an exercise of authority (judging, betrothal &c.; differ. interpret. in comment.); a. fr.—Esp. secular government, (mostly) the Roman government in Palestine, Roman officials, Roman party. Ab. I, 10, v. יָדַע. Ib. II, 3, v. זָהִיר. Sabb. 11ᵃ, v. חָלָל III. Ab. Zar. 17ᵃ (ref. to Prov. XXX, 15) קול שתי בנות … ומאי נינהי מינות והר׳ Ms. M. the voice of two daughters that cry from Gehenna, and say in this world, ‘bring, bring’; and who are they? Heresy and Government. Makhsh. II, 5 אם יש בה ר׳ if it is the residence of Roman officials (for whom the baths are always kept in readiness). Yoma 86ᵇ והר׳ מקברת וכ׳ and high office buries its occupant (causes premature death). Erub. 41ᵇ שלשה אין רואין … חולי מעיין והר׳ three persons shall not see Gehenna (expiate their sins in this world): those who suffer from extreme poverty, from bowel diseases, and from governmental exactions (Rashi: from creditors). Y. Snh. VI, 23ᵈ sq. ר׳ של מטן the earthly government; ר׳ של מעלן the divine government; a. fr.—Pl. רְשׁוּיוֹת. Ḥag. 15ᵃ שמא … שתי ר׳ הן are there, God forbid! two powers (governing the universe)? Gen. R. s. 1 (ref. to ברא, Gen. I, 1) אין כל … שתי ר׳ וכ׳ none can say, two powers created the world (the verb ברא being in the singular) &c. Ber. 33ᵇ דמיחזי כשתי ר׳ (saying מודים twice) has the appearance of a belief in a duality; a. e. —
2) (trad. pronunc. רְשׁוּת) dominion, domain, territory. B. Kam. I, 2 ר׳ המיוחדת למזיק a territory exclusively belonging to the owner of the animal that did the damage; ר׳ הניזק והמזיק a space belonging to both owners. Ib. 13ᵇ (in Chald. dict.) תורך ברְשׁוּתִי מאי בעי what had thy ox to do in my ground. Ib. 81ᵃ; Taan. 6ᵇ שבילי הר׳ the paths (short cuts) through private property. B. Mets. 5ᵇ משביעין אותו שבועה שאינו ברשותו we make him swear that it is not in his possession; a. v. fr.—ר׳ היחיד (abbrev. רהי֞) private ground; ר׳ הרבים (abbrev. רהר֞, רה֞) public road. Sabb. 6ᵃ; a. v. fr.—Ib. 9ᵃ הרי זו ר׳ לעצמה this forms a territory for itself (with regard to Sabbath movements). Ib. VII, 2 המוציא מר׳ לר׳ he who carries things (on the Sabbath) from one territory to another; a. fr.—Pl. as ab. Ib. 6ᵃ ארבע ר׳ לשבת וכ׳ there are four classes of territories with regard to Sabbath laws &c.; Tosef. ib. I, 1. Ib. 6; Sabb. l. c. אסקופה … שתי ר׳ the threshold stands for two territories; when the door is open, it is classified with the interior &c. Ib. 9ᵃ כל … מוצא שתי ר׳ וכ׳ wherever you find two territories belonging to the same class; a. fr.—Y. Kidd. III, 64ᶜ top; Y. Ned. VIII, 40ᵈ bot. (ref. to R. Jose’s opinions Kidd. III, 9, a. Ned. VIII, 2) תמן הוא אמר עד שיצאו כל הרשויות הגדולות עד שיצאו כל הר׳ הקטנות וכ׳ there, he says, the terms, ‘the oldest’, ‘the youngest’, tend to exclude all the older daughters, and all the younger daughters respectively (so that only the oldest of the daughters of his first wife, and respectively the youngest of the daughters of his second wife are meant), and here he says so (that the widest scope is adopted)? —
3) permission, option; optional act. Ber. 28ᵃ וניתנה להם ר׳ וכ׳ and permission to enter was given to the students. Ab. III, 15, v. צָפָה. Ḥull. 141ᵃ לדבר הר׳, v. מִצְוָה. Ib. 106ᵃ, v. מִצְוָה. Ber. 27ᵇ, v. חוֹבָה. M. Kat. III, 3 אגרות של ר׳, v. שְׁאִילָה; a. fr.—נטילת ר׳ taking leave of absence, parting, at which a religious remark was customary. Lev. R. s. 17 עביד להו נ׳ ר made these verses the text for leave-taking (cmp. אַפְטַרְתָּא). Y. Ber. II, 5ᶜ bot. ההיא מילתא … הוה נ׳ ר׳ דידיה that remark … was his leave-taking.—[
4) (cmp. רַשַּׁאי 2) debt, loan, creditor’s claim. Erub. 41ᵇ, v. supra.]
Thus, word sense #1 vs. word sense #3.
There is a real distinction / nafka mina between these two senses. The very point is whether the act of redividing the estate as an act of nachala / inheritance is effective. As opposed to, perhaps the father violates by doing this, but it is still effective and the new division holds. We are trying to interpret the Biblical phrase בְּיוֹם הַנְחִילוֹ אֶת בָּנָיו. And Abaye is about to chime in and correct Rava, that is should come from לֹּא יוּכַל לְבַכֵּר.
The words lo yuchal can either mean that he is unable, that is, that he can not. Or else, it means that it works, but he violates — that he may not. In context, I think that it means that it does not work in that case, but it does work in this other case.
Once again, the English translation of Rav Steinsaltz’s commentary says something I disagree with:
אֲמַר לֵיהּ אַבָּיֵי: הָא – מִ״לֹּא יוּכַל לְבַכֵּר״ נָפְקָא!
Abaye said to him: Isn’t this halakha derived from the continuation of the verse: “He may not make the son of the beloved the firstborn, before the son of the hated, who is the firstborn”? From the prohibition against depriving the firstborn of his double portion it can be inferred that one can change the apportionment of the inheritance of his other sons.
Namely, “may not”, and “prohibition”. And they get it from Rav Steinsaltz’s Hebrew commentary, that talks of an issur.
אמר ליה [לו] אביי: הא [דבר זה] מ"לא יוכל לבכר" (דברים כא, טז) נפקא [יוצא, נלמד], שהכתוב אוסר להעביר את הבכור מבכורתו, וממה שנזכר דווקא איסור זה יש ללמוד שיכול הוא לשנות את חלקם של בנים אחרים!
Artscroll’s translation pleases me more, by employing the words “can” and “cannot”.
“he cannot give the right of a firstborn [to another son”, which implies that he can give away the right of a non-firstborn.”
Think of your annoying elementary school teacher, who responded to “Can I use the bathroom?” with “You can use the bathroom. The question is if you may.”
Now, I can be wrong, and I may be wrong, but this is how I would like to read this gemara.
I’ve written about people being given reshut as authority, vs. permission, in the past. See my Jewish Link article:
in which I argue that everyone misunderstands it, and from context, it means that a doctor’s cures are effective. That is, they work, just as here, the father’s redistribution works.
This distinction actually came up in my mind in the gemara earlier, Bava Batra 126b, about Rabbi Yehuda and conditioning / deviating from what was written in the Torah:
מַתְנִי׳ הָאוֹמֵר: ״אִישׁ פְּלוֹנִי בְּנִי בְּכוֹר לֹא יִטּוֹל פִּי שְׁנַיִם״; ״אִישׁ פְּלוֹנִי בְּנִי לֹא יִירַשׁ עִם אֶחָיו״ – לֹא אָמַר כְּלוּם, שֶׁהִתְנָה עַל מַה שֶּׁכָּתוּב בַּתּוֹרָה.
MISHNA: In a case of one who says: So-and-so, my firstborn son, will not take a double portion of my estate; or one who says: So-and-so, my son, will not inherit my estate among his brothers, he has said nothing, as he has stipulated counter to that which is written in the Torah.
….
גְּמָ׳ לֵימָא מַתְנִיתִין דְּלָא כְּרַבִּי יְהוּדָה? דְּאִי רַבִּי יְהוּדָה, הָאָמַר: בְּדָבָר שֶׁל מָמוֹן תְּנָאוֹ קַיָּים!
GEMARA: The Gemara suggests: Let us say that the mishna is not in accordance with the opinion of Rabbi Yehuda, as if it is in accordance with the opinion of Rabbi Yehuda, doesn’t he say elsewhere that if one stipulates counter to that which is written in the Torah with regard to monetary matters, his stipulation stands?
דְּתַנְיָא, הָאוֹמֵר לְאִשָּׁה: ״הֲרֵי אַתְּ מְקוּדֶּשֶׁת לִי, עַל מְנָת שֶׁאֵין לִיךְ עָלַי שְׁאֵר כְּסוּת וְעוֹנָה״ – הֲרֵי זוֹ מְקוּדֶּשֶׁת, וּתְנָאוֹ בָּטֵל; דִּבְרֵי רַבִּי מֵאִיר. רַבִּי יְהוּדָה אוֹמֵר: בְּדָבָר שֶׁל מָמוֹן – תְּנָאוֹ קַיָּים!
As it is taught in a baraita (Tosefta, Kiddushin 3:7): If one says to a woman: You are hereby betrothed to me on the condition that you have no ability to claim from me food, clothing, and conjugal rights, she is betrothed and his stipulation is void; this is the statement of Rabbi Meir. Rabbi Yehuda says: With regard to monetary matters, such as food and clothing, his stipulation stands, despite being counter to that which is written in the Torah. According to the opinion of Rabbi Yehuda, one should be able to stipulate that his firstborn son not receive a double portion, or that one of his sons not inherit from him at all, as inheritance is a monetary matter.
אֲפִילּוּ תֵּימָא רַבִּי יְהוּדָה: הָתָם יָדְעָה וְקָא מָחֲלָה, הָכָא לָא קָא מָחֵיל.
The Gemara rejects this suggestion: Even if you say that the mishna is in accordance with the opinion of Rabbi Yehuda, there, the woman knew of his stipulation and waived her rights. Therefore, the stipulation stands. Here, the son whose portion was reduced did not waive his portion. Therefore the stipulation is not valid.
The pasuk in question is אִם־אַחֶ֖רֶת יִֽקַּֽח־ל֑וֹ שְׁאֵרָ֛הּ כְּסוּתָ֥הּ וְעֹנָתָ֖הּ לֹ֥א יִגְרָֽע:
I objected out loud there that surely one can make distinctions between the obligations for marriage and that of nachala. By marriage, maybe you can say it is a prohibition. Or it is setting the expected rights and obligations, and she can be mochel. However, by firstborn birthright, what does lo yuchal mean? Does it mean prohibition? Or, is it a gezeirat hakatuv, a Biblical decree, that in this particular instance, he lacks the authority to make it work?
By the way, as for any interaction of Abaye and Rava, especially with Rava coming first, we might wonder if it is really Rabba. In one place, Rosh emends to Rabba because Abaye ruled first in Pumbedita, so Rav Ashi the redactor regularly lists Abaye before Rava. I’d disagree, saying that if it is a case of reaction and rejection for an explained reason, that is sufficient reason from deviation from the norm. The reason it matters is the belief that we generally side with Rava over Abaye, colleagues, but generally side with Abaye the student over Rabba the teacher, because he’s a batrai (according to Rosh).
Anyway, I’ll just note that the printings have Rava, as does Munich 95, Paris 1337, and Escorial. However, Hamburg 165, Firkovich 190, Vatican 115b, and the CUL: T-S F 2(1).48 fragment all have Rabba.
