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Rabbi Yonason Sacks
Rabbi Yonason Sacks

Selling the Bechora: How and Why

At first glance, Esav HaRasha's sale of the bechora to Yaakov Avinu presents numerous challenges, in both Halachah and Hashkafa. From a Halachic perspective, how could Esav sell an intangible bechora which promised entitlements that would only materialize in the future? Was this sale not a violation of the principle codified by the Rambam (Hilchos Mechira 22:1) in accordance with the view of the Chachamim: "ain adam makneh davar she'lo bah l'olam" - a person cannot sell or purchase that which has not yet come to fruition? How could Yaakov possibly buy rights such as "Pi Sh'nayim" (the double inheritance of the firstborn) which were entirely intangible and undeveloped?

Rivash (Shu"t Rivash 328) quotes the Rosh who suggests that although the bechorah does indeed constitute a "davar she'lo bah l'olam," Yaakov was nonetheless able to purchase it because he insisted that Esav swear to consummate the sale ("Hishav'a Li…Vayishava Lo"). While a "davar she'lo bah l'olam" is usually not subject to sale, if accompanied by an oath, even such an item may be sold. Rivash, however, disputes this principle, maintaining that even when accompanied by an oath, a "davar she'lo bah l'olam" may not be sold. Rather, he explains the Parsha's transaction by noting that the entire episode occurred prior to the giving of the Torah. As such, conundrums based on normative Halachah are entirely irrelevant.

We are thus presented with two possible explanations for Yaakov Avinu's ability to purchase the bechora, a "davar she'lo bah l'olam." Either, as the Rosh maintains, a "davar she'lo bah l'olam" may be purchased when accompanied by an oath; or, as Rivash maintains, the entire episode occurred before the laws of "kinyanim" were given to Bnai Yisrael. What underlies the dispute between Rivash and the Rosh?

Perhaps this issue may depend on why it is that we assume that a person may not sell or purchase a "davar she'lo bah l'olam." Perhaps this limitation is a function of the lack of an object or "cheftza" - that is, in order for a "kinyan" to take effect, there must be something tangible for it to latch on to. Because a "davar she'lo bah l'olam" is entirely intangible, there can be no "chalos" (taking effect) of the kinyan. Indeed, Kiryas Sefer (Hilchos Mechira, 22) seems to subscribe to such a possibility. Alternatively, however, one can understand the deficiency of a "davar she'lo bah l'olam" as lying in the realm of "semichus da'as." A kinyan requires a certain level of intent and awareness. If something has not yet come to fruition, however; if it is merely a "possibility" as opposed to an "actuality," perhaps the seller or buyer is not wholeheartedly committing to the terms of the deal. Such a possibility is suggested by Rabeinu Tam (Sefer HaYashar, 592) and Tosafos HaRosh (brought in Shita Mekubetzes, Bava Basra 142b).  

If we are to assume that the deficiency of a kinyan on a "Davar she'lo bah l'olam" lies in the absence of any "cheftza," then whether or not Esav took an oath should bear little relevance on the effectiveness of the kinyan, as Rivash seems to maintain. If, however, the deficiency of "Davar she'lo bah l'olam" lies in the concern that the parties involved may not have a completely committed mindset, perhaps the imposition of an oath, which manifests complete and premeditated awareness and commitment, may solve the problem, as the Rosh maintains. According to such an explanation, when Yaakov Avinu asked Esav to swear, he essentially proved that Esav was completely aware of the ramifications of his actions, and a kinyan could thus take effect even on a "davar she'lo bah l'olam."

Sforno suggests a further possibility to explain the sale of the bechora. Perhaps the "nezid adashim" (lentil soup) served as an object for a "kinyan chalipin," by which Esav relinquished any claim to the bechora. This explanation avoids the problem of "davar she'lo bah l'olam" in light of a comment of the Ra'avad (T'mim De'im, 160) who maintains that a kinyan chalipin can work even on a "davar she'lo bah l'olam" (Perhaps the Ra'avad's rationale may stem from his understanding that chalipin exists as a fundamentally different type of kinyan than other conventional methods. While other conventions serve as a "hachnasah l'reshus," drawing the object physically into the domain of the purchaser, chalipin may serve more as a manifestation of "gemirus da'as" - complete awareness of the individual).

Yet a fourth possible explanation for Yaakov Avinu's ability to purchase the bechora is suggested by the Rashbam, who applies the concept of "simtuta." "Simtuta" refers to a kinyan which is not one of the classically listed means of acquisition, but rather an adopted human convention that signifies agreement of transfer. A classic example of a simtuta might be a handshake. Rashbam suggests that perhaps breaking bread and eating lentil soup may have served as a form of simtuta. If this is the case, Yaakov's purchase can be understood by the Mordechai‘s comment (Shabbos 471) that simtuta can effect acquisition even on a "Davar she'lo bah l'olam."

On a Hashkafic level, perhaps the sale of a "davar she'lo bah l'olam" highlights the essence of Esav's willingness to give up so much for so little. While the bechora entitles its possessor to various different privileges and entitlements, the common thread that links all of these rights is the fact that here and now, they meant absolutely nothing. They are the quintessential "davar she'lo bah l'olam." In Esav's eyes, the privileges of the bechora constituted, at best, a long-term investment which would not come to fruition without the passage of a great deal of time. To Yaakov, however, these privileges represented life's ultimate goal. Yaakov was the "ish tam yosheiv ohalim" who invested years upon years in the Beis Medrash; the devoted shepherd who faithfully tended to and nurtured his flock, year in and year out. Through his life experiences, he recognized that greatness can only come with great investment. Esav, however, looked for immediate returns and instant gratification. As an "Ish Yodeiah Tzayid," an impetuous hunter who seeks immediate profit with every kill, Esav could not possibly look beyond the immediate present to a grander future. The sale of the bechora thus underscores the primacy of the Jew's consistent efforts and long-term vision in his service of HaKadosh Baruch Hu. The absence of immediate returns should never deter us from life's ultimate goals.  

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