What nekitas chefetz was there, if Yaakov was nolad mahul?

Summary: So asks Rav Chaim Kanievsky, further exploring the path set by Mizrachi. By Avraham, it was nekitas chefetz on the milah, and Avraham's very first mitzvah. Not so for Yaakov, on two counts. Rav Kanievsky's answer, and then I explore further.

Post: In parashat Vaychi:

29. When the time drew near for Israel to die, he called his son Joseph and said to him, "If I have now found favor in your eyes, now place your hand beneath my thigh, and you shall deal with me with lovingkindness and truth; do not bury me now in Egypt.

כט. וַיִּקְרְבוּ יְמֵי יִשְׂרָאֵל לָמוּת וַיִּקְרָא לִבְנוֹ לְיוֹסֵף וַיֹּאמֶר לוֹ אִם נָא מָצָאתִי חֵן בְּעֵינֶיךָ שִׂים נָא יָדְךָ תַּחַת יְרֵכִי וְעָשִׂיתָ עִמָּדִי חֶסֶד וֶאֱמֶת אַל נָא תִקְבְּרֵנִי בְּמִצְרָיִם:

As Rashi writes:

now place your hand beneath my thigh: And swear. — [from Pirkei d’Rabbi Eliezer ch. 39] As explained in the narrative of Abraham and Eliezer (Gen. 24:2), he meant that Joseph should swear by covenant of the circumcision.

שים נא ידך: והשבע:

The text in English, not in square brackets, but not in the Hebrew, are presumably based on some other text of Rashi.

Meanwhile, in Chayei Sarah, we had:

2. And Abraham said to his servant, the elder of his house, who ruled over all that was his, "Please place your hand under my thigh.		ב. וַיֹּאמֶר אַבְרָהָם אֶל עַבְדּוֹ זְקַן בֵּיתוֹ הַמֹּשֵׁל בְּכָל אֲשֶׁר לוֹ שִׂים נָא יָדְךָ תַּחַת יְרֵכִי:
the elder of his house: Since [the word זְקַן] is in the construct state, it is vowelized זְקַן.		זקן ביתו: לפי שהוא דבוק נקוד זקן:
under my thigh: (Shev. 38) Since one who swears must take with his hand an article related to a mitzvah such as a Torah scroll or Tefillin, and circumcision was his first mitzvah, and he had fulfilled it with pain, it was dear to him; so he took it.		תחת ירכי: לפי שהנשבע צריך שיטול בידו חפץ של מצוה, כגון ספר תורה או תפילין, והמילה היתה מצוה ראשונה לו ובאה לו על ידי צער והיתה חביבה עליו ונטלה:

In Taama de-Kra, Rav Chaim Kanievsky writes:


שים נא ידך תחת ירכי, הק׳ רא״ם דהא
 רש׳׳י פי׳ גבי אברהם משום שזה מצוה ראשונה
 שלו ובעי לאנקוטי חפצא דמצוה בידו א״כ
 יעק״א שנולד מהול כדאי׳ באדר״נ פ״ב ולמ״ד
 א״צ הטפת דם ברית שאין כאן ערלה כבושה
 למה נתן ידו תחת ירכו, וי״ ל  דגם נולד מהול
 נקרא שמל שהקב״ה חסיר ממנו את הערלה והוי
 כמהול.


"Rabbi Eliyahu Mizrachi asks that behold, Rashi explained by Avraham that this was because this was his first mitzvah, and he wished to perform nekitas chefetz of a mitzvah {for the oath}. And if so, Yaakov Avinu, who was born circumcised, as is stated in Avos deRabbi Nasan perek 2 {as well as in Bereshis Rabba and Midrash Tanchuma}, and according to the opinion that such a person does not require hatafas dam bris, for there is no ערלה כבושה, why should he put his hand beneath his thigh? 


And there is to answer that even one who is born circumcised is called that Hashem took away the orlah and he is like one who is circumcised."

Here is what Mizrachi has to say for himself:

Reacting to Rashi simply stating והשבע, which implies that this is a form of oath, he writes:

"Not that the placing of the hand is the oath, for behold, by Eliezer he [=Avraham] says שִׂים נָא יָדְךָ תַּחַת יְרֵכִי followed by וְאַשְׁבִּיעֲךָ. Thus, it is clear that the placing of the hand is not the oath. Rather, it is in the manner of all who swear that they swear with an item in their hands. And even though the reason was that the bris milah was dear to him, which was only to Avraham, since it was the very first mitzvah he was commanded, and it came to him with pain, but not so to Yaakov, even so, the custom had already spread to his sons after him."

So, it is not really the case that the Re'em asked based on Yaakov being nolad mahul. Yes, he says that 'this was not so to Yaakov', but this could be because it was not the first commandment given to Yaakov, and so it was not an especially dear mitzvah to him over any other, and because he would have been circumcised at eight days.

I also prefer the Re'em's answer. It fits better, IMHO, with Rashi's language, which just takes it as leshon shevuah, or as part of the shevuah, without making this anything out of the ordinary as it was by Avraham.

I also think that, perhaps, we should not be looking to harmonize the two Rashis. Yes, they work more or less well together except for this minor contradiction in a detail, but still, the Rashi local to Vaychi strikes me as an attempt at peshat while the Rashi local to Chayei Sarah is channeling a midrash. Perhaps one should not harmonize them, if Rashi did not intend them to be harmonized. Perhaps the persona of Vaychi Rashi, writing in Chayei Sarah, would say that this is generic shevuah procedures even in the time of Avraham Avinu.

In terms of the problem Rav Kanievsky raised, that Yaakov was nolad mahul such that there was no hatafas dam bris and thus no mitzvah of milah at all, the Mizrachi's answer still works. But besides this, it all seems like an elaborate construction. Perhaps according to the man de'amar that one does not need hatafas dam bris, Yaakov Avinu was born mahul, or perhaps the purpose of sim na yadcha tachas yereichi is a general custom of swearing, or something along the position of the Ralbag (which we will see momentarily. And, according to the man de'amar that it was and always is based on a nekitas chefetz, he would maintain that Yaakov Avinu was not born mahul, or that hatafas dam bris is required. It is only because we are insisting on simultaneously maintaining multiple random positions that we end up with a contradiction that needs resolution. So relax the insistence!

By way of illustration of other options as to the function of sim na yadecha tachas yereichi, consider the following Ralbag, from the beginning of the parashah:

"sim na yadecha tachas yereichi -- we have explained it by Avraham. And the intent in this here is that he asked Yosef to humble himself to him, as if he were in his domain, to perform all that he asked him."


Thus, it is a mark of subjugation rather than either a mark of an oath or a predecessor to the Jewish practice of swearing while holding a sefer Torah.

I will end with a half-serious resolution of the whole issue. Grant the question, and all the accompanying assumptions, of both Mizrachi and Rav Kanievsky. If Avraham asked for this as nekitas chefetz as well as because it was his first mitzvah, how could Yaakov have asked this, if it was not his first mitzvah and if, as a nolad mahul, there was no nekitas chefetz shel mitzvah?

The answer is that Yaakov Avinu had his own first mitzvah associated with his thigh. Recall that in parashat Vayishlach, he wrestled with the angel, who dislocated his thigh. And then:

32. And the sun rose for him when he passed Penuel, and he was limping on his thigh.		לב. וַיִּזְרַח לוֹ הַשֶּׁמֶשׁ כַּאֲשֶׁר עָבַר אֶת פְּנוּאֵל וְהוּא צֹלֵעַ עַל יְרֵכוֹ:
33. Therefore, the children of Israel may not eat the displaced tendon, which is on the socket of the hip, until this day, for he touched the socket of Jacob's hip, in the hip sinew.		לג. עַל כֵּן לֹא יֹאכְלוּ בְנֵי יִשְׂרָאֵל אֶת גִּיד הַנָּשֶׁה אֲשֶׁר עַל כַּף הַיָּרֵךְ עַד הַיּוֹם הַזֶּה כִּי נָגַע בְּכַף יֶרֶךְ יַעֲקֹב בְּגִיד הַנָּשֶׁה:

Thus, this is his very own mitzvah starting with his own experience. And so there is a nekitas chefetz of the kaf yerech Yaakov!