The Element of Netzach in a Mitzvah LeSha’ah
וְלֹא תִסֹּב נַחֲלָה לִבְנֵי יִשְׂרָאֵל מִמַּטֶּה אֶל מַטֶּה
An inheritance of B’nei Yisrael shall not be diverted from Tribe to Tribe (Bamidbar 36:7)
The Ramban writes in his Introduction to Chumash Bamidbar that in the main this Chumash contains mitzvot which were stated “lesha’ah,” only for a specific time, that is, specifically for B’nei Yisrael in the Midbar. The question we would like to raise is: How is the concept of “a mitzvah stated for a specific time only” to be reconciled with the fact that everything written in the Torah has the status of “netzach” — permanence? Are these two ideas not directly opposed to each other?
In this chapter, we would like to illustrate one response to this question by discussing a mitzvah lesha’ah which appears in our parsha.
Hasavat Nachalah — The Prohibition against Diverting Inheritance
In Parshat Pinchas (27:11–8) we were told about a man named Tzelafchad, who died leaving five daughters and no sons. Hashem informed Moshe that in such a case the halachah is that it is the daughters who inherit the father. The end of our parsha presents the follow-up question to that case: If a woman from one Shevet who has inherited her father marries someone from a different Shevet, her children who inherit her will likewise belong to her husband’s Shevet, and the inheritance which she received will effectively have been transferred through her from one Shevet to another. The question therefore is, is it acceptable for a woman in this situation to marry someone from a different Shevet?
Hashem’s response to this question is communicated by Moshe in pesukim 6–7:
זה הדבר אשר צוה ה' לבנות צלפחד לאמר לטוב בעיניהם תהיינה לנשים אך ממשפחת מטה אביהם תהיינה לנשים. ולא תסוב נחלה לבני ישראל ממטה אל מטה
This is the word that Hashem has commanded regarding the daughters of Tzelafchad, saying: Let them be wives to whomever is good in their eyes, but only to the family of their father’s tribe shall they become wives. An inheritance of B’nei Yisrael shall not be diverted from tribe to tribe.
We see that in a situation where the woman has inherited her father, she may not marry someone from another Shevet, in order that the inheritance not be diverted from one Shevet to another.
Tu B’Av and the Drashah of “זה הדבר”
Although in terms of pshat, the pesukim would seem to indicate that this mitzvah applies ledorot — to all subsequent generations — the Gemara (Bava Batra 120a) informs us that it was in fact a mitzvah lesha’ah, for it was only stated concerning people in that generation who were about to enter into Eretz Yisrael. As the Ramban (Bamidbar 36:7) explains, the Torah’s insistence that the territories apportioned to each Shevet belong entirely to that Shevet was specifically for the time when they were initially given. Subsequent to that time, there were no such restrictions.
What is the basis for saying that this mitzvah applied only to that generation? The Gemara explains that it is based on the opening words in pasuk 6: “זֶה הַדָּבָר — This is the matter,” which are expounded through midrash halachah to mean:
דבר זה לא יהא נוהג אלא בדור זה
This matter shall only pertain to this generation.
There is a most fascinating discussion which takes place among the mefarshim regarding this drashah of “זה הדבר.” The background to this discussion is a statement found in the Gemara (Bava Batra, ibid.) that this drashah was actually the cause of a Yom Tov for B’nei Yisrael! The Mishnah (Taanit 26b) informs us that Tu B’Av (the Fifteenth of Av) was one of the two happiest days in the history of Am Yisrael. Among the reasons given is that it was the day when members of the different Shevatim became permitted to marry one another. The Gemara proceeds to explain that this permission is based on the drashah of “זה הדבר.”
What is it that connects the Fifteenth of Av to this drashah?
The Rashbam (peirush to Masechet Bava Batra, ibid.) explains that it was on that day that the Generation that entered Eretz Yisrael was reckoned as having come to its end, at which point the prohibition against hasavat nachalah no longer applied, as per the drashah of “זה הדבר.” It is clear from the words of the Rashbam that in his understanding, this drashah was known from the outset. The significance of the Fifteenth of Av lies in the fact that this was the day that this drashah was considered applicable, as it signified the transition to a new generation.
Rav Aryeh Leib of Metz, author of the Sha’agat Aryeh, in his peirush Gevurat Ari to Masechet Taanit (30b), differs and explains that it was on this day they first expounded the drashah of ”זה הדבר”! In other words, whereas the parameters for making derashot were transmitted at Sinai as part of Torah SheBaal Peh, not all of the derashot themselves were expounded at Sinai.
As a precedent for this idea, the Gevurat Ari cites the Midrash (Rut Rabbah 5:3) regarding the marriage of Rut to Boaz, whose permissibility was based on the drashah of “מואבי — ולא מואבית,” i.e. that the Torah’s prohibition against someone from Moav marrying into B’nei Yisrael[1] applies only to the males and not to the females. The Midrash states that the Beit Din informed Boaz and Rut: “Had you come at an earlier time they would not have accepted you, since the drashah of ‘מואבי — ולא מואבית’ had not yet been expounded.”
Rabbeinu Bachye: Halachah LeSha’ah and Minhag LeDorot
Having noted the drashah of Chazal to the effect that this prohibition applied the first generation only, we need to confront a basic question in pshuto shel mikra. The prohibition against the daughters of Tzelafchad marrying men from a different Shevet and thereby diverting the inheritance from their father’s Shevet is expressed in pesukim 6–7. However, the Torah then proceeds (pesukim 8–9) to restate this prohibition in general terms:
וכל בת יורשת נחלה ממטות בני ישראל לאחד ממשפחת מטה אביה תהיה לאשה … ולא תסוב נחלה ממטה למטה
Every daughter who inherits an inheritance of the Tribes of B’nei Yisrael shall become the wife of someone from the family of her father’s Tribe … An inheritance shall not be diverted from one tribe to another tribe.
How are we to understand the idea that the Torah restated a prohibition which, according to derashat Chazal, only applied to that generation?[2]
In his peirush to pasuk 8, Rabbeinu Bachye writes as follows:
It is for this reason, the practice (מנהג) in Yisrael regarding a woman who stood to inherit her father and nonetheless violated this prohibition and married someone from a different Shevet, would be referred to as a “zonah,”[3] and she would forfeit the inheritance from her father. And this is the meaning of the pasuk written in connection with Yiftach (Shoftim 11:1): “וְהוּא בֶּן אִשָּׁה זוֹנָה .” This does not mean to say that his mother was a harlot; rather, she stood to inherit from her father and married someone from a different Shevet.
The Radak, in his peirush to Sefer Shoftim, similarly writes:
In the Targum to this pasuk we find the following: ”This was the practice (נימוסא) in Yisrael from early times, that inheritance should not be diverted from one Shevet to another, and hence a man could not marry a woman[4] who was not from his Shevet. If it happened that a woman in this situation desired to marry a man who was not from her Shevet, she would forfeit her inheritance, and people would refer to her as ‘a zonah who desired to marry a man who was not from her Shevet.’ And this was the situation as pertained to Yiftach’s mother.”
It appears to me that what caused the Targum to explain (the word “zonah”) in this way is what is stated,[5] “לֹא תִנְחַל בְּבֵית אָבִינוּ כִּי בֶּן אִשָּׁה אַחֶרֶת אָתָּה — You will not inherit in the household of our father, for you are the son of another woman.” And indeed, the Targum there explains, “For you are the son of a woman from a different Shevet.”[6]
We see from these Rishonim that while midrash halachah informs us that the prohibition of hasavat nachalah applies only to the first generation, B’nei Yisrael still persisted in refraining from such marriages as a matter of practice. This means that although it was no longer forbidden in subsequent generations, they nevertheless felt it was not desirable. We would like to suggest that the basis for this feeling is rooted in pshuto shel mikra which, through its restatement of this matter in general terms, serves to indicate that this is not something which is desirable in Hashem’s eyes.
This, then, is a way of understanding that even a mitzvah lesha’ah can have the quality of netzach. There are times when a matter is commanded as a mitzvah for a certain time (lesha’ah), while its message persists in subsequent times (ledorot). This message will exist not in the form of a d’oraita requirement, but in the form of an expression of retzon Hashem, which then becomes the basis of a derabbanan requirement at some later point.
Rav Perlow: Two Mitzvot
In concluding this discussion, it is worthwhile mentioning a most fascinating approach to the sugya of “hasavat nachalah” which is found in the peirush of Rav Yerucham Fischel Perlow to the Sefer HaMitzvot of Rav Saadia Gaon (vol. 3, parsha 27). He notes that the Baal Halachot Gedolot (Behag) lists the prohibition against hasavat nachalah in his count of Taryag Mitzvot. This, of course, presents a difficulty, since only mitzvot which apply ledorot are to be counted within Taryag, while, as we have discussed at length, the Gemara explicitly says that this prohibition applied only to the first generation that entered Eretz Yisrael!
The background to Rav Perlow’s explanation is the fact that the pasuk which contains the limiting phrase of “זה הדבר” (pasuk 6) only mentions the requirement that these women marry within their Shevet. The prohibition against diverting inheritance is mentioned in the following pasuk (pasuk 7).
Rav Perlow writes:
Chazal expounded the words “זה הדבר” to mean that this matter applies only to the first generation. This being the case, it is appropriate to say that these words only exclude the first mitzvah mentioned in that section, namely, the requirement that these women marry within their Shevet. For in order not to separate the shevatim one from the other, the Torah only forbade this for the first generation who first entered Eretz Yisrael. However, the (second) prohibition against diverting inheritance applies to future generations as well; for since there is only one limiting phrase in the pasuk (“זה הדבר”), we are only entitled to limit the first prohibition, which is mentioned in that same pasuk. However, regarding the prohibition against diverting inheritance, which is written in the following pasuk, we should conclude that it applies to future generations as well. This means that the Beit Din must see to it that if a woman who stands to inherit her father marries someone from a different Shevet — which she is fully entitled to do — the inheritance from her father will stay within his family and be apportioned among his relatives.
According to Rav Perlow, our parsha contains two distinct mitzvot, one of which applied lesha’ah,[7] and one which applies ledorot.[8] [According to this approach, Yiftach’s inability to inherit his mother — to which his brothers reacted by barring him from inheriting their father — represented the actual halachah d’oraita].
[1] [See Devarim 23:4.].
[2] See peirush of the Ramban to Bamidbar ibid., who explains this restatement as referring to additional similar situations that may have existed in that generation.
[3] [Which normally means “a harlot.”].
[4] [Who stood to inherit her father.].
[5] [The words of Yiftach’s paternal brothers, mentioned in the next pasuk.].
[6] In other words, Yiftach’s brothers were claiming (albeit incorrectly) that in the same way they would not inherit his mother — seeing as she forfeited her inheritance though marrying someone from a different Shevet — so, too, he was not eligible to inherit their father together with them.
[7] A woman who stands to inherit her father not marrying someone from another Shevet.
[8] Not diverting the inheritance in the event that she marries into a different Shevet.