web analytics
April 19, 2015 / 30 Nisan, 5775
At a Glance
Judaism
Sponsored Post


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.

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

  1. Sheila A Lewis says:

    OFTEN WANDERED ABOUT THAT MYSELF.

Comments are closed.

Current Top Story
US has no problem with Egypt's bombing hundreds of homes of Gaza civilians but can't stand to see Israel destroy a terrorist's home.
Gaza: Egypt Responsible For Weapons Shortage
Latest Judaism Stories
Hertzberg-041715

Lincoln was not a perfect man. But he rose above his imperfections to do what he thought was right not matter the obstacles.

Arch of Titus

Adon Olam: An Erev Shabbat Musical Interlude Courtesy of David Herman

Daf-Yomi-logo

Oh My, It’s Copper!
‘…And One Who Is A Coppersmith’
(Kethubboth 77a)

Grunfeld-Raphael-logo

The omer sacrifice of loose barley flour was more fitting for animal consumption than human consumption and symbolizes the depths to which the Jewish slaves had sunk.

Question: If Abraham was commanded to circumcise his descendants on the eighth day, why do Arabs – who claim to descend from Abraham through Yishmael – wait until their children are 13 to circumcise them? I am aware that this is a matter of little consequence to our people. Nevertheless, this inconsistency is one that piques my curiosity.

M. Goldman
(Via E-mail)

When Chazal call not eating treif food a chok, that refers to how it functions.

His mother called “Yoni, Yoni!” Her eyes, a moment earlier dark with pain, shone with joy and hope

Kashrut reminds us that in the end, God is the arbiter of right and wrong.

In a cab with Rav Shlomo Zalman Auerbach & Rav Elayshiv discussing if/when to say tefillas haderech

The successful student listens more than speaks out; wants his ideas critiqued, not just appreciated

Why would it not be sufficient to simply state lehoros from which we derive that in such a state one may not issue any psak?

What do we learn about overcoming loss from the argument between Moses and Aaron’s remaining 2 sons?

Each of the unique roles attributed to Moshe share the common theme that they require of and grant higher sanctity to the individual filling the role.

Because of the way the piece of my finger had been severed, the doctors at the hospital were not able to reattach it. They told me I’d have to see a specialist.

“The problem is that the sum total is listed is $17,000. However, when you add the sums mentioned, it is clear that the total of $17,000 is an error. Thus, Mr. Broyer owes me $18,000, not $17,000.”

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

Why would it not be sufficient to simply state lehoros from which we derive that in such a state one may not issue any psak?

Taste-of-Lomdus-logo

The Netziv answered that there is a difference between a piece of bread that was cut already in front of you, and one that was cut from beforehand.

Why is it necessary to invite people to eat from the korban Pesach?

The Ran asks why the Gemara concludes that since we are unsure which two of the four we must recline for, that we must recline for all four.

The Chasam Sofer answers that one of only prohibited from wearing a garment that contains shatnez if he does so while wearing the garment for pleasure purposes.

The Aruch Laner asks: How can Rashi say that the third Beis Hamikdash will descend as fire from heaven when every Jew prays several times a day for the rebuilding of the Beis Hamikdash?

The Ohr Hachayim rules that one may not manipulate the system; rather he must state his opinion as he see the ruling in the case; not as he would like the outcome of the verdict to become.

He suggests that the general admonition only dictates that a father may not actively enable his son to perform an aveirah.

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: