‘A Matter As Of Yet Non-Existent’
Our sugya discusses the feasibility of selling objects that have not yet come into existence. For example, can a farmer sell produce that has not yet grown? The accepted halacha (Shulchan Aruch, Y.D. 249) follows the opinion of the Chachamim, who maintain that he may not and if he does so the sale is not valid.
Yaakov’s Compact with Eisav
When Yaakov purchased the birthright from Eisav, he made Eisav swear too. Why was this oath necessary? The Rosh (cited in Tur, commentary on Bereishis 25:31) argues that it was necessary because the birthright didn’t yet “exist” – i.e., its benefits would only come into play after Yitzchak’s death. The Rosh uses this story as proof that sales of items not yet in existence were not valid before the Torah was given.
The Rivash (Teshuvos 328) argues that before the Torah was given, binding sales could be made for objects that did not yet exist. Only after the Torah was given did a new system of business law come into effect by which such a sale is no longer binding. Why then did Yaakov make Eisav swear? Because Yaakov knew he was an unscrupulous person who was likely to renege on his business commitments. An oath would be harder to break.
The basis of the ruling that one cannot sell items that don’t yet exist is the presumption that a person cannot come to a completely binding decision regarding such items. However, there are several exceptions. One such exception occurred about 50 years ago. Several different religious political parties in Israel joined and ran on a single ticket in the country’s municipal elections. Each party wanted a representative on the city board, but it was unclear how many seats would be won. As part of the agreement, the parties agreed that if only two seats were won, the head of the combined party would step down and leaders of two constituent organizations would claim the seats. In the end, only two seats were won and everyone expected the leader to step down as he had agreed. However, he refused, claiming that since they had not yet won when the agreement was made, the agreement was not binding.
A beis din was consulted to resolve the dispute, and it ruled against the party leader, requiring him to step down as he had agreed. They explained that the rule that sales are not binding for objects that do not yet exist does not apply to community decisions such as the one before it. The Rosh and Rashba (cited in Teshuvos Rashbash 566) rule that anything decided by a communal gathering, or by leaders of a community, is binding even regarding matters that do not yet exist. The accepted custom is that communal leaders have the right to make binding decisions even without an “act of acquisition.” Therefore, their decisions are final even regarding matters that only will materialize in the future (Teshuvos HaRosh 6:19).