parshat Vayeitzei: Was Lavan Right To Move The Sheep?

Speculation:
What was Lavan and Yaakov's arrangement in parshat Vayeitzei? We read {Bereishit 30:31-35}:

לא וַיֹּאמֶר, מָה אֶתֶּן-לָךְ; וַיֹּאמֶר יַעֲקֹב, לֹא-תִתֶּן-לִי מְאוּמָה--אִם-תַּעֲשֶׂה-לִּי הַדָּבָר הַזֶּה, אָשׁוּבָה אֶרְעֶה צֹאנְךָ אֶשְׁמֹר.	31 And he said: 'What shall I give thee?' And Jacob said: 'Thou shalt not give me aught; if thou wilt do this thing for me, I will again feed thy flock and keep it.
לב אֶעֱבֹר בְּכָל-צֹאנְךָ הַיּוֹם, הָסֵר מִשָּׁם כָּל-שֶׂה נָקֹד וְטָלוּא וְכָל-שֶׂה-חוּם בַּכְּשָׂבִים, וְטָלוּא וְנָקֹד, בָּעִזִּים; וְהָיָה, שְׂכָרִי.	32 I will pass through all thy flock to-day, removing from thence every speckled and spotted one, and every dark one among the sheep, and the spotted and speckled among the goats; and of such shall be my hire.
לג וְעָנְתָה-בִּי צִדְקָתִי בְּיוֹם מָחָר, כִּי-תָבוֹא עַל-שְׂכָרִי לְפָנֶיךָ: כֹּל אֲשֶׁר-אֵינֶנּוּ נָקֹד וְטָלוּא בָּעִזִּים, וְחוּם בַּכְּשָׂבִים--גָּנוּב הוּא, אִתִּי.	33 So shall my righteousness witness against me hereafter, when thou shalt come to look over my hire that is before thee: every one that is not speckled and spotted among the goats, and dark among the sheep, that if found with me shall be counted stolen.'
לד וַיֹּאמֶר לָבָן, הֵן: לוּ, יְהִי כִדְבָרֶךָ.	34 And Laban said: 'Behold, would it might be according to thy word.'
לה וַיָּסַר בַּיּוֹם הַהוּא אֶת-הַתְּיָשִׁים הָעֲקֻדִּים וְהַטְּלֻאִים, וְאֵת כָּל-הָעִזִּים הַנְּקֻדּוֹת וְהַטְּלֻאֹת, כֹּל אֲשֶׁר-לָבָן בּוֹ, וְכָל-חוּם בַּכְּשָׂבִים; וַיִּתֵּן, בְּיַד-בָּנָיו.	35 And he removed that day the he-goats that were streaked and spotted, and all the she-goats that were speckled and spotted, every one that had white in it, and all the dark ones among the sheep, and gave them into the hand of his sons.

Was the arrangement that any spotted or speckled sheep or goat that was born would be Yaakov's? This seems to be the common understanding. Thus Speiser explains that Lavan has played a trick on Yaakov, in verses 35-36:

לה וַיָּסַר בַּיּוֹם הַהוּא אֶת-הַתְּיָשִׁים הָעֲקֻדִּים וְהַטְּלֻאִים, וְאֵת כָּל-הָעִזִּים הַנְּקֻדּוֹת וְהַטְּלֻאֹת, כֹּל אֲשֶׁר-לָבָן בּוֹ, וְכָל-חוּם בַּכְּשָׂבִים; וַיִּתֵּן, בְּיַד-בָּנָיו.	35 And he [=Lavan] removed that day the he-goats that were streaked and spotted, and all the she-goats that were speckled and spotted, every one that had white in it, and all the dark ones among the sheep, and gave them into the hand of his sons.
לו וַיָּשֶׂם, דֶּרֶךְ שְׁלֹשֶׁת יָמִים, בֵּינוֹ, וּבֵין יַעֲקֹב; וְיַעֲקֹב, רֹעֶה אֶת-צֹאן לָבָן--הַנּוֹתָרֹת.	36 And he set three days' journey betwixt himself and Jacob. And Jacob fed the rest of Laban's flocks.

for without sheep and goats which are currently spotted and speckled, it is unlikely that any offspring from the remaining sheep will have spotted or speckled sheep. Thus, Lavan plays a trick by removing all such sheep and giving them over to his sons to watch, at a distance of three day's journey. Yaakov will get zero sheep and goats for his effort. This is in keeping with Lavan as trickster, as he switched Leah for Rachel in their first arrangement.

Yaakov then tricks Lavan in return, and receives his just reward, by using striped rods of poplar when the sheep and goats mate.

I would offer an alternative. Perhaps Lavan did nothing wrong when he removed the sheep to three days journey away. Perhaps the arrangement was not that Yaakov should have the offspring. Now, certainly this seems to be the arrangement, from Yaakov's description in the next perek:

ז וַאֲבִיכֶן הֵתֶל בִּי, וְהֶחֱלִף אֶת-מַשְׂכֻּרְתִּי עֲשֶׂרֶת מֹנִים; וְלֹא-נְתָנוֹ אֱלֹקִים, לְהָרַע עִמָּדִי.	7 And your father hath mocked me, and changed my wages ten times; but God suffered him not to hurt me.
ח אִם-כֹּה יֹאמַר, נְקֻדִּים יִהְיֶה שְׂכָרֶךָ--וְיָלְדוּ כָל-הַצֹּאן, נְקֻדִּים; וְאִם-כֹּה יֹאמַר, עֲקֻדִּים יִהְיֶה שְׂכָרֶךָ--וְיָלְדוּ כָל-הַצֹּאן, עֲקֻדִּים.	8 If he said thus: The speckled shall be thy wages; then all the flock bore speckled; and if he said thus: The streaked shall be thy wages; then bore all the flock streaked.

But what if that were not in fact their arrangement?

What if the arrangement was actually to divide the flocks as they stood right then at that day, such that there were now Lavan's flocks and Yaakov's flocks. Such a division would be difficult to maintain, for who knows which sheep or goat belongs to which flock? The solution to this difficulty would be to choose some salient property of sheep, such that they could be distinguished from the others, and then one would know which sheep is Yaakov's and which sheep is Lavan's. Similarly, for offspring. Since Yaakov's sheep are all spotted and speckled, their offspring will likely be entirely spotted and speckled. And Lavan's sheep and goats, none of which are spotted and speckled, will likely produce offspring which are not spotted and speckled.

Let us see this in the pesukim:

לא וַיֹּאמֶר, מָה אֶתֶּן-לָךְ; וַיֹּאמֶר יַעֲקֹב, לֹא-תִתֶּן-לִי מְאוּמָה--אִם-תַּעֲשֶׂה-לִּי הַדָּבָר הַזֶּה, אָשׁוּבָה אֶרְעֶה צֹאנְךָ אֶשְׁמֹר.

31 And he said: 'What shall I give thee?' And Jacob said: 'Thou shalt not give me aught; if thou wilt do this thing for me, I will again feed thy flock and keep it.

Thus Yaakov proposes that he continue to watch Lavan's flock. Only Lavan's flock, not his own.

לב אֶעֱבֹר בְּכָל-צֹאנְךָ הַיּוֹם, הָסֵר מִשָּׁם כָּל-שֶׂה נָקֹד וְטָלוּא וְכָל-שֶׂה-חוּם בַּכְּשָׂבִים, וְטָלוּא וְנָקֹד, בָּעִזִּים; וְהָיָה, שְׂכָרִי.

32 I will pass through all thy flock to-day, removing from thence every speckled and spotted one, and every dark one among the sheep, and the spotted and speckled among the goats; and of such shall be my hire.

Yaakov those proposes they divide the flocks on that day. In fact, that is what Lavan (or perhaps Yaakov) later does. These current ones are Yaakov's hire.

לג וְעָנְתָה-בִּי צִדְקָתִי בְּיוֹם מָחָר, כִּי-תָבוֹא עַל-שְׂכָרִי לְפָנֶיךָ: כֹּל אֲשֶׁר-אֵינֶנּוּ נָקֹד וְטָלוּא בָּעִזִּים, וְחוּם בַּכְּשָׂבִים--גָּנוּב הוּא, אִתִּי.

33 So shall my righteousness witness against me hereafter, when thou shalt come to look over my hire that is before thee: every one that is not speckled and spotted among the goats, and dark among the sheep, that if found with me shall be counted stolen.'

For every day thereafter {=בְּיוֹם מָחָר}, Lavan will have to trust Yaakov - and Yaakov promises on his righteousness, that any that is not speckled or spotted among the sheep shall be considered stolen. Why stolen? Not just because that is not what he is entitled to among the joint offspring. Rather, if a non-spotted or speckled sheep is among Yaakov's flock, it is probably the offspring of Lavan's flock. Thus Yaakov must have stolen it!

לד וַיֹּאמֶר לָבָן, הֵן: לוּ, יְהִי כִדְבָרֶךָ.	34 And Laban said: 'Behold, would it might be according to thy word.'
לה וַיָּסַר בַּיּוֹם הַהוּא אֶת-הַתְּיָשִׁים הָעֲקֻדִּים וְהַטְּלֻאִים, וְאֵת כָּל-הָעִזִּים הַנְּקֻדּוֹת וְהַטְּלֻאֹת, כֹּל אֲשֶׁר-לָבָן בּוֹ, וְכָל-חוּם בַּכְּשָׂבִים; וַיִּתֵּן, בְּיַד-בָּנָיו.	35 And he removed that day the he-goats that were streaked and spotted, and all the she-goats that were speckled and spotted, every one that had white in it, and all the dark ones among the sheep, and gave them into the hand of his sons.

It is not clear who is doing the removing. It seems Lavan, but Yaakov is also a possibility. Either way, he is doing exactly what Yaakov proposed in verse 32, removing on that day the sheep. Why remove them? Because there are to be two separate flocks.

The flocks are not to interbreed or it would defeat the purpose. Thus:

לה וַיָּסַר בַּיּוֹם הַהוּא אֶת-הַתְּיָשִׁים הָעֲקֻדִּים וְהַטְּלֻאִים, וְאֵת כָּל-הָעִזִּים הַנְּקֻדּוֹת וְהַטְּלֻאֹת, כֹּל אֲשֶׁר-לָבָן בּוֹ, וְכָל-חוּם בַּכְּשָׂבִים; וַיִּתֵּן, בְּיַד-בָּנָיו.	35 And he removed that day the he-goats that were streaked and spotted, and all the she-goats that were speckled and spotted, every one that had white in it, and all the dark ones among the sheep, and gave them into the hand of his sons.
לו וַיָּשֶׂם, דֶּרֶךְ שְׁלֹשֶׁת יָמִים, בֵּינוֹ, וּבֵין יַעֲקֹב; וְיַעֲקֹב, רֹעֶה אֶת-צֹאן לָבָן--הַנּוֹתָרֹת.	36 And he set three days' journey betwixt himself and Jacob. And Jacob fed the rest of Laban's flocks.

The idea being that they would not interbreed, and so Yaakov would have his own flock, and Lavan would have his own flock. Should some speckled or spotted sheep come about, perhaps they somehow were fathered by Yaakov's sheep and belonged to Yaakov - or Yaakov he had come and taken his flocks.

If so, Yaakov's trick to increase the number of speckled and spotted sheep amongst Lavan's flock is even trickier than before - he would not be merely acting cleverly within the rules, but actually breaking the rules by appropriating sheep that weren't his. Alternatively, the rules were indeed that any speckled or spotted sheep and goat would be Yaakov's, but this was the result of assumptions of what would be naturally be produced, and any exceptions were to just be assigned to Yaakov, so that reckoning would be easier.

What then to make of Yaakov's complaint?

ז וַאֲבִיכֶן הֵתֶל בִּי, וְהֶחֱלִף אֶת-מַשְׂכֻּרְתִּי עֲשֶׂרֶת מֹנִים; וְלֹא-נְתָנוֹ אֱלֹקִים, לְהָרַע עִמָּדִי.	7 And your father hath mocked me, and changed my wages ten times; but God suffered him not to hurt me.
ח אִם-כֹּה יֹאמַר, נְקֻדִּים יִהְיֶה שְׂכָרֶךָ--וְיָלְדוּ כָל-הַצֹּאן, נְקֻדִּים; וְאִם-כֹּה יֹאמַר, עֲקֻדִּים יִהְיֶה שְׂכָרֶךָ--וְיָלְדוּ כָל-הַצֹּאן, עֲקֻדִּים.	8 If he said thus: The speckled shall be thy wages; then all the flock bore speckled; and if he said thus: The streaked shall be thy wages; then bore all the flock streaked.

Perhaps we could say that Lavan changed the rules as to what flock in its entirety (including offspring) was to be Yaakov's. These verses are admittedly somewhat problematic to this speculative theory.

Another alternative, which sits better:
What was the purpose of moving away the speckled sheep and goats? Perhaps Yaakov was only arranging for the hire to be the speckled and spotted offspring, and not any of the existing sheep. If so, we would not want to confuse the existing sheep with the speckled and spotted offspring of the flock. To avoid such confusion, Yaakov suggests that Lavan go through the flock that day and remove any speckled and spotted sheep and goats. Lavan rightly moves these sheep and goats three day's journey away.
Now, non-spotted and speckled sheep are expected to yield a certain percentage of spotted and speckled sheep, and Yaakov increased that percentage. But Lavan, in moving the sheep, did exactly what Yaakov asked him.
This also explains why Lavan entrusted the current spotted and speckled sheep to his sons.