web analytics
July 29, 2014 / 2 Av, 5774
Israel at War: Operation Protective Edge
 
 
Judaism
Sponsored Post
IDC Advocacy Room IDC Fights War on Another Front

Student Union opens ‘hasbara’ room in effort to fill public diplomacy vacuum.



Home » Judaism » Parsha »

How Did Eisav Sell The Bechorah?


Parsha-Perspectives-logo

Note to readers: This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

We learn in this week’s parshah of Eisav’s sale of his birthright to Yaakov Avinu. There are several questions surrounding the legitimacy of this sale. The Rivash (Teshuvos 328) questions why the sale was valid, since Eisav sold something that did not exist at that time. The halacha is that one may not sell anything that is not in the world at the time of the sale. Since the bechor did not yet exist or take effect at that time, how could the sale have been valid?

The Rivash says that he heard that the Rosh and his son, the Tur, answered that although one may not sell an item that does not yet exist at that time, he may sell an item to someone in this circumstance if he swears that he will sell it. Since the pasuk says that Yaakov made Eisav swear that he would keep his word, the sale was valid. The Rivash argues vehemently with this answer, and concludes that neither the Rush nor the Tur could have said this answer. He says that the reason one cannot acquire or sell an item that does not exist is due to a problem with the actual acquisition of the item – and that swearing cannot overcome that issue.

The Rivash answers that prior to mattan Torah one could sell items that did not yet exist. Therefore the sale of the bechorah was valid.

Some Acharonim explain the opinion of the Rosh, namely that swearing helps one to sell an item that does not exist by properly defining the reason one cannot sell an item that does not exist in the world. They explain that the underlying factor that is lacking is that one needs a certain amount of intent (da’as kinyan) in order to make a sale. When the item does not exist, one cannot reach the level of intent that is required to make the sale. However, a sworn declaration to keep his word adds to his level of intent – and the sale is valid.

On the explanation of the opinion that holds that the reason why one cannot sell an item that does not exist is because one cannot reach the required level of intention, the Ohr HaChaim points out that it only says that the purchaser cannot reach that level of intent to acquire. However, the seller can reach the required level to sell. Therefore, he asks, how can the seller’s sworn declaration help? It should only help the seller’s intent and should not aid the buyer’s intent. Thus, in the sale between Yaakov and Eisav the oath that Eisav, the seller, took should not have facilitated a sale on something that did not exist.

While this may indeed be the opinion of several Rishonim, the Shita Mekubetzes (Bava Metzia 66b) quotes from Rabbeinu Tam and the Tosafos HaRosh that explicitly say that the problem with selling an item that does not exist rests on the level of intent that the seller can reach. According to those Rishonim, swearing should aid in selling an item that does not exist since the oath will add to the seller’s level of intent.

I do not understand the Ohr HaChaim’s question. I believe that when the seller swears that he will sell the item it should increase the level of intent – even the buyer’s intent. Thus, even if the problem with the sale of an item that does not exist is with the level of intent that the buyer can reach, an oath should resolve that issue.

Reb Moshe Shmuel Shapiro, zt”l, suggests an alternate explanation of the Rosh and the Tur’s opinion. He says that we must first understand how a regular acquisition works. In every sale the buyer and the seller reach an agreement, with the buyer then required to perform a ma’aseh kinyan (action of acquisition) on the item. For example, if one is buying a small movable item he will perform hagbah (lifting it up). However, the ma’aseh kinyan is not what actually transfers ownership of the item to the buyer; rather it is the agreement that actually transfers the item to the buyer. A ma’aseh kinyan solidifies one’s words into a binding agreement, and that binding agreement is what actually transfers property ownership. That is the reason why whenever the Gemara is discussing whether a kinyan has occurred, the Gemara uses the words “eino yachol lachzor” (he cannot retract). Why? Because his kinyan produces an agreement from which he may not retract. And that is what transfers ownership.

When one sells an item that does not exist, the problem is not that he cannot make the kinyan; rather, the problem is that the agreement is not binding – permitting him to retract. Therefore the Rosh and the Tur say that if he will swear that he will keep his word (since he may no longer retract due to his oath) the agreement is binding and ownership can be transferred.

About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

Please use the Facebook Tab below to leave your comment:

2 Responses to “How Did Eisav Sell The Bechorah?”

  1. Sheila A Lewis says:

    OFTEN WANDERED ABOUT THAT MYSELF.

Comments are closed.

SocialTwist Tell-a-Friend

Loading Facebook Comments ...
Loading Disqus Comments ...
Current Top Story
Israeli Prime Minister Benjamin Netanyahu
Bibi: ‘Death From Above, Death From Below’ Will Not Continue
Latest Judaism Stories
Weiss-072514

Just as the moon waxes, wanes and renews itself, so has the nation of Israel renewed itself through the millennia.

126_masei_web

Parshat Masei: Rabbi Fohrman addresses the age-old question, are we our brother’s keeper?

Hertzberg-072514

When Germany invaded neutral Belgium on August 4, England declared war on Germany. Thus, by the end of the first week of August all the major powers of Europe were at war.

Winiarz-072514

The Talmud teaches that the Beis HaMikdash was destroyed because of baseless hatred.

When taking any major step in life it is a good idea to carefully re-evaluate one’s past.

Ours is a small and intensely vulnerable people. Inspired, we rise to greatness. Uninspired, we fall

The enormity of Hiram’s accomplishments crazed him and deluded him into self-deification.

When Hashem first thought (if it could be) about creating the world, the middah of din was in operation.

Hallel On Purim?
“Its Reading Is Its Praise”
(Megillah 14a)

If the only person available to perform the milah on the eighth day is a person who is not an observant Jew, the milah should be postponed until a devout mohel is available.

It is apparent from the Maharsha that he does not see galus as atoning for killing accidentally; otherwise, this Gemara would not bother him.

It was found to be a giant deer tick living in her head – with its claws in her scalp.

While daydreaming about finding the perfect job, I never expected to be rewarded in spades for my aforementioned experience.

We are all entrusted with the mission of protecting our fellow Jews

Today, we remain Hashem’s nachal.

More Articles from Rabbi Raphael Fuchs
Taste-of-Lomdus-logo

It is apparent from the Maharsha that he does not see galus as atoning for killing accidentally; otherwise, this Gemara would not bother him.

Taste-of-Lomdus-logo

There are several rules that one must adhere to when making a neder.

We need to understand why Moshe Rabbeinu decided to ask that his sons inherit his position after this new halacha was introduced.

If it is not prohibited when there is a purpose for inflicting the tza’ar, why was Bilam chastised for tza’ar ba’alei chaim?

How can we be certain that any animal can be counted toward ma’asar beheimah when perhaps it is a treifah?

This separation between Kohanim, Levi’im and Yisraelim obligates us to honor kohanim.

The pasuk says that since the halacha concerning a Mechallel Shabbos was uncertain, the mekoshesh was placed in custody until the halacha was clarified.

    Latest Poll

    Do you think the FAA ban on US flights to Israel is political?






    View Results

    Loading ... Loading ...

Printed from: http://www.jewishpress.com/judaism/parsha/how-did-eisav-sell-the-bechorah/2012/11/14/

Scan this QR code to visit this page online: