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In the middle of Bava Basra daf 110b the gemara debates the source for the primacy of sons inheriting their father over the daughters. One of the sources brought is from B'nos Tzelofchad who say

27:4 Why should the name of our father be done away from among his family, because he had no son? Give unto us a possession among the brethren of our father.'

The implication being that had their father possessed a son, that son would receive the inheritance due to the father and not the daughters. The gemara disposes of this proof by stating that we cannot learn from them because "nitnah Torah v'nitchadsha halachah" - we cannot learn halachic proofs from situations occurring before the giving of the Torah. The commentary on the page states that this is referring to the later parshas nachalos in that very chapter (and disposed of as a proof earlier on the daf). However, that parshah is clearly stated as a direct response to the claims of B'nos Tzelofchad and confirms their understanding of how the inheritance process should operate.

On its face, the concept of "nitnah Torah v'nitchadsha halachah" seems to be a strange response. According to Rashi at the beginning of Parshas Behar (quoting Toras Kohanim), Chazal understand that all particulars of the Torah were transmitted at Sinai. The story in question clearly took place at the end of the 40 years in the wilderness, and thus long after Matan Torah.

One option that remains is that while the corpus of law was given orally at Sinai, the completion of the narrative happened only upon the death of Moshe, which has implications regarding how the written Torah was given (whole vs. piecemeal). It would also mean that NO story in Chumash can be considered halachically definitive, since they all take place before the canonization of the written Torah.

Does anyone provide a clarification of the concept of "nitnah Torah v'nitchadsha halachah" that grapples with some or all of the above points?

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UPDATE

Behar 25:1

וַיְדַבֵּר יְהֹוָה אֶל משֶׁה בְּהַר סִינַי לֵאמֹר:

RASHI

on Mount Sinai: What [special relevance] does the subject of Shemittah [the “release” of fields in the seventh year] have with Mount Sinai? Were not all the commandments stated from Sinai? However, [this teaches us that] just as with Shemittah, its general principles and its finer details were all stated from Sinai, likewise, all of them were stated-their general principles [together with] their finer details-from Sinai. This is what is taught in Torath Kohanim (25:1). [And why is Shemittah used as the example to prove this rule, especially since the very fine details are not even specified here (Sefer Hazikkaron)?] It appears to me that its explanation is as follows: [At the plains of Moab, Moses reiterated the majority of the laws of the Torah to the Israelites before their entry into the land of Israel, this reiteration comprising most of the Book of Deuteronomy. Now,] since we do not find the laws of Shemittah [“release”] of land reiterated on the plains of Moab in Deuteronomy, we learn that its general principles, finer details, and explanations were all stated at Sinai. Scripture states this [phrase] here to teach us that [just as in the case of Shemittah,] every statement [i.e., every commandment] that was conveyed to Moses came from Sinai, [including] their general principles and finer details [and that the commandments delineated in Deuteronomy were merely] repeated and reviewed on the plains of Moab [not originally given there].


According to the Art Scroll Bava Basrah 110b1 note 9. נתנה תורה ונתחדשה הלכה means that even after the tora was given at הר סיני, Moshe Rabbeinu had not yet explained that area of halacha to Bnei Yisrael. Technically then, Bnai Yisrael did not know the full halacha. An analogy can be brought to the halacha of פסח שני which was not told to בני ישראל until after some of the people could not bring the קרבן פסח the following year.

נתנה תורה - The Torah was given on Har Sinai

ונתחדשה הלכה - the halacha was learned in the bais medrash and announced to Bnei Yisrael when needed.

Thus, we can say that

Historically the daughters of Tzelaphchad stated their claim before the laws of inheritance were handed down. Thus perhaps it was later revealed that when both a son and a daughter survive the deceased, the estate is divided between them (Rashbam)

Although the Torah states that Hashem concurred with the words of the daughters of Tzelaphchad, this merely indicates that their general claim was just. It does not prove that all their underlying assumptions were correct. Thus, it is possible that the daughters were mistaken in assuming that had there been a son, they would have received nothing. See also Tosfos to 119b ד"ה אילו

Another point is that incidents in the torah did not happen until the time they were written. The halacha would have been given at Har Sinai, but the incidents that caused Moshe Rabbeinu to write about particular halachos (and explain them to Bnai Yisrael) did not occur until later when they were required.


UPDATE

The Rashbam cited above shows that the halacha before Har Sinai was the way that Bnos Tzelaphchad sted it. However, it could have been changed at matan torah, similar to the way you cite Yaakov marrying two sisters. Thus the phrase נתנה תורה ונתחדשה הלכה could have applied (though it did not and the halacha had not changed.

  • Basically you're taking option 2 - that "nitnah torah" refers to a "flow basis" of when the relevant halachos were revealed to Bnei Yisroel, rather than when they were actually given. This seems to be in conflict with the term "nitnah" used exclusively for Sinaitic transmission rather than something like "masrah" (pirkei avos 1:1). The Zohar (I didn't bring it above) states that Moshe could have answered B"Tz directly but referred to Hashem out of modesty. Rashbam's explanation also runs into the problem that I mentioned - that Hashem directly confirms their reasoning. – Isaac Kotlicky May 19 '17 at 17:43
  • @IsaacKotlicky Rashbam's explanation is that they could have been right or wrong. The fact that Hashem later confirmed their reasoning does not mean that it could be used as proof that they were correct at the time. – sabbahillel May 19 '17 at 17:54
  • @IsaacKotlicky I read the term nitnah torah as the torah was given on Har Sinai in full. Vnischadsha halacha means that the Bnai Yisrael were not told all that had been given on Har Sinai at once. The incidents written in the torah show when Bnai Yisrael learned specific areas of halacha that had already been given. – sabbahillel May 19 '17 at 17:57
  • Can you support your reading with sources? All uses of the term I am familiar with invoke the two as a conditional pair - "the Torah was given and (therefore) the halacha was renewed/changed." Most of these involve no conflict, since they refer to incidents occurring before Har Sinai (Yaakov marrying sisters, the discussion regarding Moshe marrying a Midyanis). B"Tz is the only incidence I'm aware of that is addressed with this term while occurring after matan torah. – Isaac Kotlicky May 19 '17 at 18:18
  • @IsaacKotlicky As I show in the citations, the halacha that the Bnos Tzelaphchad relied on was what they knew from before Matan Torah. While they were correct, it could have been changed at Matan Torah but not yet disseminated to Bnei Yisrael. Actually, Hashem said that they were correct and the halacha had not been changed. – sabbahillel May 28 '17 at 3:12

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