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.
