Was the sale between Yakkov and Eisav valid?
Rav Moshe Shmiel Rieger
“Tell me, Shimon,” Yehudah asked his brother, “would you be interested in purchasing my share of our father’s estate?”
Their father was still alive and owned several valuable properties. Yehudah, in need of immediate funds, offered to sell Shimon whatever he would eventually inherit in exchange for a substantial payment.
The brothers agreed on a price, and Shimon paid the money. However, when their father eventually passed away and the estate proved to be worth a fortune, Yehudah regretted his decision.
“I am sorry,” Yehudah told his brother, “but our agreement was never valid. At the time of the sale, I owned nothing in our father’s estate. How could I sell something that did not yet belong to me?”
Shimon disagreed. “But we find an explicit precedent in Parashas Toldos! Yaakov Avinu purchased the bechorah from Eisav. Chazal explain that the bechorah included the double portion of inheritance and the right to burial in Me’aras HaMachpeilah. Yet Yitzchak Avinu was still alive! Surely this proves that one can acquire rights that have not yet come into his possession.”
Yehudah remained unconvinced. “Perhaps there was something unique about the sale of the bechorah. We cannot necessarily derive the laws of monetary transactions from that incident.”
Unable to resolve their dispute, the brothers agreed to present their case before a Dayan.
The Dayan listened carefully. “Your question touches upon a fundamental sugya in Choshen Mishpat. The Rishonim and Acharonim indeed discuss how Yaakov could acquire the bechorah when the ordinary rule is ein adam makneh davar shelo ba la’olam—one cannot ordinarily transfer something that has not yet come into existence as a transferable asset (Bava Metzia 16a).
“Let us examine several of the answers and see whether they apply to your case.”
Does a Shevuah Make a Difference?
In Shu”t HaRivash (328), the questioner cites the view attributed to the Rosh, that Eisav’s shevuah contributed to the validity of the sale. Yaakov insisted, Hishava li kayom - swear to me this day (Bereishis 25:33), and Eisav swore to him. Since he swore to him that he is selling it, the kinyan works.
The Rivash rejects this explanation, how can a shevuah help to exercise a kinyan on something that yet exists.
Before Matan Torah is different
The Rivash therefor explains that the sale took place before Matan Torah, and we cannot assume that the restrictions governing davar shelo ba la’olam applied then in the same manner.
Perhaps this machlokes can be understood through two approaches to the problem of davar shelo ba la’olam. According to one approach, the problem is semichas da’as: the purchaser does not fully rely on acquiring something that does not yet exist. According to another approach, a kinyan requires an existing object upon which to take effect.
A shevuah might strengthen his confidence in the transaction, adding semichas da’as, however a shevuah cannot supply that missing object to form a ma’aseh kinyan.
In any event, neither the shevuah nor the Rivash’s explanation concerning the period before Matan Torah would help Shimon and Yehudah. They made no shevuah, and their transaction took place after Matan Torah.
The Need for Basic Livelihood
The Ohr HaChaim offers another explanation based on the Gemara in Bava Metzia (16a), which discusses a poor fisherman who sells whatever he will catch in his net. Such a transaction may be permitted because of kedei chayav—the need to sustain oneself.
Chazal made this special allowance because, without the ability to sell his future catch, the fisherman might have no money to purchase food that day. The leniency enables him to obtain the necessities of life; it is not a general permission to sell anything that does not yet exist.
The Ohr HaChaim applies this principle to Eisav, who declared, Hinei anochi holech lamus—“I am at the point of death” (Bereishis 25:32). Eisav was desperately hungry, and his circumstances resembled those of the poor fisherman. The sale of the bechorah could therefore be understood in light of the special allowance of kedei chayav.
This answer would not ordinarily apply to Yehudah. Although he wanted immediate funds, there is no indication that he would have been unable to obtain food or meet his basic needs without selling his future inheritance.
A General Inheritance or a Specific Property
There is, distinction.
The Shulchan Aruch rules that one who says, “What I will inherit from my father is sold to you,” has not effected a valid sale, since the inheritance has not yet come into his possession (C. M. 211:1).
The Rema, however, cites an opinion that distinguishes between selling a >page 2
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Thus, had Yehudah sold Shimon a particular house that he expected to inherit, the discussion would be different, and the opinions cited by the Rema would have to be considered.
The Halachic Conclusion
The Dayan turned to the brothers. “We have seen several explanations for the sale of the bechorah: the fact that it occurred before Matan Torah, the role of Eisav’s shevuah, the special allowance of kedei chayav, and the distinction between a general inheritance and a specific property.
“There are also circumstances in which, although a kinyan on davar shelo ba la’olam does not take effect as an ordinary sale, a person may undertake a binding obligation to bring about the transaction in the future.
“However, you never discussed such an obligation. Your agreement was simply that Shimon would purchase whatever Yehudah would inherit from his father. Accordingly, the sale as described does not take effect under the ordinary rules of davar shelo ba la’olam, and Shimon has no claim to the inheritance on the basis of this agreement alone.”
