A Public Figure’s Commitment
‘A Matter That Does Not Yet Exist’
(Gittin 42b)
Our Daf deals with the validity of selling articles that were non-existent when sold, such as if a person wants to sell produce that will grow in his fields in the coming year. The halacha (Shulchan Aruch, Choshen Mishpat 209:4) follows the view of the Sages, who state that such a sale is not binding. For any transaction to be valid and binding, there must be gemirus da’at, a conclusive resolve of both the buyer and the seller. The Sages maintain that when a person agrees to buy or sell an article that does not yet exist, his agreement is not absolute. Conclusive resolve is lacking.
Why Did Jacob Make Esau Swear an Oath
When our Patriarch Jacob wanted to buy the bechora (the primogeniture, the rights of the firstborn son) from Esau, he made Esau swear an oath regarding the sale before effecting the kinyan, the physical act of acquisition (Bereishis 25:33). Why was a kinyan not enough? This question proved to the Kli Yakar (see his commentary on Bereishis 25:31) that even before MatTan Torah, one could not sell something that “did not yet exist.” Since the rights of the bechora come into effect only after the father’s death – and Yitzchak was still alive – the bechora was, indeed, something “that did not yet exist.” That is why Jacob needed to have Esau swear that he would keep his word.
Rivash, however, disagrees (328), and maintains that before Mattan Torah a person was able to buy or sell something “that did not yet exist.” Only after we received the Torah were the laws of kinyanim given to the Jewish nation, and according to these halachos, the sale Esau agreed to was invalid. Jacob needed to make Esau take an oath so that he would not renege later on their agreement. Jacob knew Esau to be forceful and arrogant, and likely to deny the kinyan’s validity even though it was actually binding.
Are Political Commitments Binding?
Although our Sages ruled that a person cannot decide conclusively about something that “does not yet exist,” a kinyan made under such conditions is binding in some cases. Close to fifty years ago, an agreement was signed between the religious parties in a certain town in Israel. The parties agreed to merge into one bloc for the City Council elections. One clause in the agreement specified that the head of the list would resign if only two representatives were elected. The elections took place and only two representatives of the united religious bloc were elected. Everyone expected the resignation of the head of the list since he had so obligated himself. He argued, however, that his commitment to resign was not binding. One of the arguments that his Rabbinical pleader advanced was that this was a case of something “that did not yet exist,” for when the head of the list signed the agreement, he had not yet been elected to the council.
The Power of the Public
The beth din decided, in this case, that although it was an instance of an obligation to something “that did not yet exist,” the halacha is different when matters involving the public are concerned. The Rosh and Rashba (Responsa Rashbash 566) state that matters decided upon publicly, in the presence of many people or by community heads, are effective and binding even without a kinyan, and that the consideration of something that “does not yet exist” is inconsequential. “The simple custom is that what the community heads agree to do comes into effect even without a kinyan” (Responsa HaRosh Klal 6 Siman 19). In addition, the dayanim pointed out that a public figure must keep his word and honor his commitments.
