web analytics
November 26, 2014 / 4 Kislev, 5775
At a Glance
Judaism
Sponsored Post
IDC Herzliya Campus A Day on Campus

To mark IDC Herzliya’s 20th anniversary, we spent a day following Prof. Uriel Reichman, IDC’s founder and president, and Jonathan Davis, VP for External Relations, around its delightful campus.



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.

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.

SocialTwist Tell-a-Friend

Current Top Story
President Obama overlaid against photo of Jonathan Pollard.
The Hidden Reason the United States Won’t Release Pollard.
Latest Judaism Stories
Dante's Vision of Rachel and Leah

Yitzhak called you Esav and you answered him, then he called you Yaakov and you also answered him!”

Rabbi Avi Weiss

Yitzchak thought the Jewish people needed dual leadership: Eisav the physical; Yaakov the spiritual

Weiss-112114-Sufganiot

According to the Sefer Yetzirah, the nature of the month of Kislev is sleep.

Teller-Rabbi-Hanoch-NEW

Though braggarts come across as conceited, their boasting often reflects a low sense of self-regard

Not every child can live up to our hopes or expectations, but every child is loved by Hashem.

Leaders must always pay attention to the importance of timing.

While our leaders have been shepherds, the vast majority of the Children of Israel were farmers.

Maimonides himself walked and prayed in the permissible areas when he visited Eretz Yisrael in 1165

If a man dies childless, the Torah commands the deceased’s brother to marry his brother’s widow in a ceremony known as yibum, or to perform a special form of divorce ceremony with her known as chalitzah.

Dovid turned to the other people sitting at his table. “I’m revoking my hefker of the Chumash,” he announced. “I want to keep it.”

Ever Vigilant
‘When Unworthy, One’s Number Of Years Is Reduced’
(Yevamos 50a)

Question: My young daughter was recently diagnosed with autism. She does not function well socially and is extremely introverted, but we have noticed that she reacts very well to small animals. We reported this to her therapist who suggested that we get a dog or cat as a pet. We know that most religious people frown upon having pets, but we hate to see our daughter suffer and want to do anything that would make her happy. Would it be okay to own a pet in the circumstances we described?

Her Loving Parents
(Via E-Mail)

Ramban interprets Korban as self-sacrifice, each Jew should attempt to recreate Akeidas Yitzchak.

Dr. Schwartz had no other alternatives up his sleeve. He suggested my mother go home and think about what she wanted to do.

Why does Lavan’s speaking before his father show that he was wicked? Disrespectful, yes. Rude, certainly. But a rasha?

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

We find that in certain circumstances before the Torah was actually given, people were permitted to make calculations as to what would better serve Hashem, even if it were against a mitzvah or aveirah.

Rabbi-Twersky-112114

It is difficult to write about such a holy person, for I fear I will not accurately portray his greatness…

The implication of the Shulchan Aruch (Orach Chaim 233:2) is that one may not daven Minchah before six and one half hours into the day.

Some Rishonim are bothered by the opinion of the Rambam that bnei Noach are commanded not to eat basar min hachai.

According to the Raavad if one who is uncircumcised breaks something he will be exempt from paying for it since he was chayav kares at the same time as he was obligated to repay for the item he broke.

Others suggest that one cannot separate Shabbos from Yom Kippur by accepting Shabbos early.

While women are exempt from actually learning Torah, they are obligated in a different aspect of the mitzvah.

The Chafetz Chaim answered that there are two forms of teshuvah; teshuvah m’ahava and teshuvah m’yirah.

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: