Tuesday, November 13, 2012

Toldos, Bereishis 25:31-2. Sale of Bechorah. Ignotum per Ignotius

Although I rarely post other people's Torah, I'm making an exception for this nice vort from הרב שמעון משה דיסקין, Harav Shimon Diskin.  If the introductory material is old hat, skip to the Ketzos, a few paragraphs from the end.

From a legal perspective, it is difficult to understand why Eisav's sale of his Bechorah to Yaakov would be valid.  One of the main issues is the matter of selling something that does not yet exist- so long as their father Yitzchak was alive, the Bechor status had no tangible meaning.  Only after Yitzchak's death would Eisav's Bechorah entitle him to a greater share of inherited property.  Until then, all that Eisav had was an expectation, a דבר שלא בא לעולם.  The halacha  is that אין אדם מקנה דבר שלא בא לעולם, one cannot transfer something that does not yet exist.  This rule is specifically applied to the sale of future inheritance in Bava Metzia 16a-b.  The Mefarshim give three reasons for this halacha:  Reb Elchanan in BB #267 explains that among the Rishonim there are two reasons given, and Reb Chaim proposes a third.  According to the Maharam mei'Ruttenberg it is a problem of intent- that since the item does not currently exist, we view the decision of the seller as being legally incomplete.  There is no גמירות דעת.  According to Reb Yechiel mei'Pariz, the problem is that legal transfer is impossible when the item does not exist- it is not called a מעשה קנין.  Reb Chaim says pshat that the problem is that you have to own something in order to sell it.  Until it exists, it is not yours to sell.

The Rosh (Tshuvos Ha'Rosh 8:18), and quoted by his son (in his T"Peirush ha-Tur," not the "Ba'al ha-Turim"), says that if the seller takes an oath that he will go through with the transaction when the merchandise comes into his possession, the transaction takes effect even now, before he owns the merchandise. This, he explains, is why Yaakov makes a point of eliciting an oath from Eisav (25:33). Since the Bechorah rights were דבר שלא בא לעולם, a Shvu'ah was required to execute the transfer, or at least to make it irreversible.

The Rivash (328), as brought in the Ketzos 278:13, rejects this explanation, stating that an Shvu'ah cannot validate the sale of a  דבר שלא בא לעולם.  He therefore suggests that before Matan Torah, the sale of a  דבר שלא בא לעולם was valid. The law invalidating such a sale was introduced only once the Torah was given.

Obviously, the disagreement between the Rosh and the Rivash hinges on how we understand the problem of  אין אדם מקנה דבר שלא בא לעולם, whether it's an issue of גמירות דעת or מעשה קנין.  Similarly, the Netziv in Harcheiv Davar points out, the Gemara in Bava Metzia (66b) says that according to Rav Nachman, and so we hold le'halacha, if a person sells fruits that have not yet grown, the either party can back out.  But if after the fruit grows the buyer takes possession of hte fruit, he does not need to compensate the seller according to their value at the time of his acquisition.  Rabbeinu Tam explains this to mean that in truth, the sale of a דבר שלא בא לעולם is effective, but voidable.   Other rishonim disagree with Rabbeinu Tam, and hold that there is no sale at all.

            According to Rabbenu Tam, the Netziv explains, we understand the Rosh.  The purpose of the Shvuah was to eliminate the possibility of retraction.  Once that possibility is eliminated, the sale is immediately valid.  Similary, Reb Elchanan, quoted above, says that in countries where such sales are accepted in the marketplace, if the problem was only one of גמירות דעת, that problem is eliminated.  If the problem is one of  מעשה קנין, it would still not be accepted al pi halacha as a kinyan.

Similarly, others have suggested that since we pasken (ח"מ ר"ט:ד) that you can piggyback the kinyan- that if one sells a דבר שלא בא לעולם together with something that exists and belongs to the seller right now, both kinyanim are good, here we can say that Eisav sold his current Bechor status regarding Avodah, as the Ohr Hachaim says.  Since that currently exists, the דבר שלא בא לעולם part can go along with the דבר שבעולם part.

The Ketzos (278:13), where he brings the Rivash, goes like this:
ולפ"ז אפשר לומר בענין יעקב שקנה הבכורה מעשו [והקשו] דהוא דבר שלא בא לעולם. ובריב"ש סי' שכ"ח כתב דקודם מתן תורה דבר שלא בא לעולם נמי קונה. ולפי מ"ש אפשר דאבד עשו הבכורה במה שאמר למה זה לי בכורה דהוא מדין סילוק 

The Ketzos in that Siman focuses on the result of a Bechor, or any yoresh, waiving his inheritance rights.  He says that a Bechor certainly has at all times the ability to make a binding and irreversible statement of waiver, that he declines and abandons his rights to his Bechor privilege.   He says there is no need for the Rivash's answer, because there was no kinyan per se here, there was Siluk, withdrawal.  We don't need to look for a way to validate the Kinyan here.  All that was needed was for Eisav to waive his rights, to do Siluk.  Siluk always works.

The problem with this Ketzos is that even if Siluk works, that just makes the Bechor like any other heir.  Siluk does not mean that the right is transferable!  Eisav giving up his rights does not make Yakov the Bechor.  So what good is the the Ketzos' teretz of Siluk?

I heard an excellent teretz in the name of Harav Shimon Moshe Diskin, Rosh Yeshiva of Kol Torah.  To explain this puzzling Ketzos, he uses an even more puzzling Gaon, and by putting them together, both become clear.  
Despite my dislike of using Latin when an equivalent phrase is available in Hebrew or English or Yiddish, I have to use this phrase that exists only in Latin: Ignotum per ignotius - offering an explanation that is harder to understand than the thing it is meant to explain- explaining the incomprehensible with the doubly incomprehensible.  He answers the question about selling Bechora using a Gaon that is even harder to understand.

 The Gaon in Ki Seitzei seems to say that Bechora depends on conception.  The Gaon apparently holds that the child that is conceived first is the Bechor, not the child that is born first.  This is contradicted by innumerable Chazals, including a Medrash quoted by Rashi in our parsha (25:26).
  ואחרי כן יצא אחיו: שמעתי מדרש אגדה הדורשו לפי פשוטו, בדין היה אוחז בו לעכבו, יעקב נוצר מטיפה ראשונה ועשו מן השניה, צא ולמד משפופרת שפיה קצרה, תן לה שתי אבנים זו תחת זו, הנכנסת ראשונה תצא אחרונה, והנכנסת אחרונה תצא ראשונה, נמצא עשו הנוצר באחרונה יצא ראשון, ויעקב שנוצר ראשונה יצא אחרון, ויעקב בא לעכבו שיהא ראשון ללידה כראשון ליצירה, ויפטור את רחמה, ויטול את הבכורה מן הדין: 
 that  the generative instrumentality- the טיפה- of Yaakov's conception was set into motion prior to that of Eisav's, (not, as so many people read it, the actual conception) and so he ought to have been the Bechor if not for Eisav coming out first, so the sale was just to give legal standing to what should have been the case anyway.  (Even though the concept is טיפה ראשונה, I am going to use the term conception.)  Evidently, despite Yaakov's precedence in conception, Eisav was the legal Bechor, not like the Gaon.  

A great deal of effort has been put into explaining what the Gaon meant.  Indeed, the Netziv says that anyone that says that the Gaon said this is oiver the issur of Lashon Hara, because he never would have said such a thing.  On the other hand, it has been brought down by reliable sources, including Reb Shlomo Kluger (in CM 278:1) from Reb Chaim Volozhiner.  The Noda BeYehuda in his דורש לציון, Drush 4, also suggests, at one point, the exact same pshat in the pessukim in Ki Seitzei, so shver as it is, if we don't understand it, the problem lies with us.

Harav Diskin says that the Gaon didn't mean that Bechora is determined by the moment of conception.  What he meant is that the moment of conception is a factor in determining the Bechor.  However, the moment of birth is a more powerful determinant, so when there is conflict between the two, birth order is dominant.  Where, however, the first-born waives his claim, the moment-of-conception claim is no longer inhibited by the superior claim of the moment-of-birth, and so it becomes the legal determinant.  This is what the Ketzos means.  Waiver certainly would not be enough if Yaakov was just a regular heir.  But here, Yaakov had a claim, albeit an inferior claim, to the bechora, based on earlier conception.  Once Eisav's claim was waived, Yaakov's hitherto potential status of Bechor was actuated.


  1. a) the Nodah BiYehuda categorically rejects the concept there, saying that bechora is contingent on birth order, and not conception order, and indeed brings the case of twins as a proof.

    b) Indeed, this 'Gr"a' is oft quoted: for example, as you pointed out, by Reb Shlomo Kluger - who throughly rejects the concept. Others, like the Imrai Yosher, simply don't believe that the quote is true.

    For more extensive sources see the Chumash HaGra on Ki Tzetzai. Indeed, he quotes a source that heard the Gra say the precise opposite.

    Thus, in this case, if we don't understand it, the problem seems to be in the reliability of the quote.

    The whole concept of LIFO is problematic given the birth episode of Peretz and Zorach.

  2. The Kli Chemda has a field day defending it. But of course it's strange, especially considering the din of yakir that requires that the padachas come out while the father is alive for the din bechor. That's what makes it so interesting to be metaheir.