PARASHAT TOLEDOT

By Rav David Silverberg

            Parashat Toledot tells the perplexing story of Yaakov’s “purchase” of the bekhora (“birthright”) from his older twin, Esav.  In relating this incident, the Torah does not clarify what exactly the birthright entailed, which rights or privileges Yaakov acquired that day from his brother.  Rashi (25:31), based on the Midrash (Bereishit Rabba 63:13), explains that Yaakov sought to acquire the rights to offer sacrifices.  Back then, the privilege of performing the avoda (sacrificial rites) was granted to the firstborn, and thus Esav was naturally assigned to this position of “priesthood.”  Yaakov correctly deemed Esav unworthy of this role, and thus jumped at the opportunity presented to usurp the birthright from his undeserving brother.

            A number of later writes raised the question of how this kind of stature can be subject to purchase.  The privilege of the birthright seems to have been the pre-Matan Torah equivalent of the kehuna.  Clearly, a kohen could never “sell” his priestly privileges to a non-kohen.  On what basis, then, was Yaakov able to “purchase” the status of birthright from Esav?

            The Taz, in his Divrei David, answers that this status of bekhora did not, in fact, precisely correspond with the later institution of the kehuna.  There was (quite obviously) no halakha in place banning non-bekhorim from offering sacrifices.  Rather, the custom evolved to reserve this privilege for the firstborn.  What Yaakov obtained from Esav, then, was not his personal status, but rather a promise to permanently forego his avoda rights and allow Yaakov to enjoy this privilege.  This explains why the “transaction” concludes with Esav making an oath to Yaakov (25:33).  An oath is precisely what Yaakov wanted; what he purchased was not any kind of asset, but rather Esav’s guarantee that he would forever more allow Yaakov the privilege of the avoda.  (The Maharal, in his Gur Aryeh, explains similarly.)

            It should be noted that the Gemara appears to have understood this “sale” differently.  In Masekhet Sota (13a), the Gemara tells that before Yaakov’s burial in Me’arat Ha-makhpela, Esav arrived and protested his deceased brother’s right to the remaining plot.  He insisted that he, not Yaakov, was entitled to the coveted burial site in the Makhpela cave.  The Gemara records the exchange that ensued between Esav and Yaakov’s children, in which clear reference is made to the sale of the bekhora.  In the end, it is indeed confirmed that the sale of the bekhora included the rights to burial in Makhpela, and even from the outset, Esav acknowledged that through the sale he had forfeited his right to a double portion of his father’s inheritance (see Rashi s.v. nehi di-zvinti).  Clearly, then, the Gemara assumed that this transaction referred to the financial privileges of the bekhora, and not to the rights of the avoda.  This is, indeed, the approach taken by several commentators, including the Rashbam and Ibn Ezra.

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            Parashat Toledot tells the famous story of the blessing that Yitzchak sought to confer upon Esav.  Rivka heard of her husband’s plan, and persuaded Yaakov to disguise as his brother and receive the blessings in his stead.  As Yitzchak had instructed Esav to hunt an animal and prepare him a meat meal before receiving his blessing, Rivka, in preparing Yaakov for his ruse, told him to bring two goats which she then prepared as meat for Yitzchak (27:9).

            Targum Yonatan Ben Uziel comments that Rivka prepared two goats for her husband because this incident occurred on Pesach eve.  One goat served as the actual korban pesach, while the other was designated as the korban chagiga (“festival offering”) which one would eat prior to partaking of the korban pesach.  Rashi cites a similar comment in the name of Pirkei De-Rabbi Eliezer (chapter 32): “Did Yitzchak normally eat two goats?  Rather, one he offered as his paschal sacrifice, and the other was made as delicacies.”

            This view of the Midrash, that the incident of Yitzchak’s blessing took place on Pesach, is in contrast to a comment of the Zohar (vol. 3, p. 258), which writes that it occurred on Rosh Hashanah.  The Zohar takes note of Yitzchak’s instruction to Esav, “and make for me delicacies” (27:4), and views this command as symbolic of God’s instruction to His children, to all Benei Yisrael, to celebrate this day as a festival each year.  As the Zohar writes, “How many delicacies and foods have Israel made on this day!”

            This question as to when the incident of the blessing took place may actually have practical implications regarding the customs of Rosh Hashanah.  The Rama (O.C. 583:1) records the well-established practice to eat apples on the holiday of Rosh Hashana.  The common understanding, of course, is that the apple’s sweet flavor is symbolic of our hopes for a “sweet” year.  The Maharil, cited by the Taz, explained differently, associating this custom with the Kabbalistic notion of the “chakal tapichin” (“apple orchard”).  The Vilna Gaon, however, in his Bei’ur Ha-Gra, explains based on Yitzchak’s exclamation upon smelling the fragrance of Yaakov’s clothing when he brought him meat to receive the blessing: “Behold, my son’s fragrance is the fragrance of a field blessed by the Lord!” (27:27).  The Gemara in Masekhet Ta’anit (29b) comments that Yitzchak refers here to the fragrance of an apple orchard.  The Vilna Gaon then writes, “And this occurred on Rosh Hashanah, as is well known.”  Meaning, the custom to eat apples on Rosh Hashanah serves to commemorate the event of Yitzchak’s blessing to Yaakov, which occurred on Rosh Hashanah, and during which Yitzchak smelled the fragrance of apples in Yaakov’s garments.  It thus emerges that this custom follows the position of the Zohar, and is in opposition to the position of Pirkei De-Rabbi Eliezer which Rashi cites.

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            Toward the beginning of Parashat Toledot, the Torah relates the incident of Yaakov’s “purchase” of the birthright from his older brother, Esav, in exchange for food.  Esav had returned from the hunt famished and found Yaakov preparing a stew.  Yaakov agreed to feed his brother on condition that he transfers to him the birthright.  This section concludes by noting, “Esav scorned the birthright” (25:34).

            This conclusion may be interpreted in two ways.  First, we might explain that the Torah here offers some insight and clarification regarding Esav’s flippant disregard for the privileges of the birthright, agreeing to forfeit this stature for a simple meal.  This attitude stemmed from a cynical outlook on the bekhora generally, which he did not consider significant enough to keep for himself.

            Alternatively, however, this conclusion may perhaps refer to Esav’s retroactive response to the foolish decision he had just made.  Under the pressure of his momentary cravings, he forfeited the lifelong privileges of the birthright for the fleeting pleasure of food and drink.  After the fact, we might have expected him to recognize his mistake and acknowledge that he had succumbed to the misleading lure and appeal of Yaakov’s food.  Instead, he proceeded to justify his decision in his mind by scorning the birthright, by dismissing these privileges as insignificant and worthless.  As Rav Baruch Sorotzkin noted, this verse thus provides a simple yet profound insight into the mind of stubborn and arrogant people.  Rather than acknowledge their mistakes, they instead prefer to find creative ways to reconfigure their blunders into correct decisions.  Unwilling to own up to the fact that they erred, they instead construct whatever artificial rationale they could find to justify what they did.  For many, retroactive reasoning is far more comfortable and soothing to the ego than an admission of failure.

            Further insight into Esav’s response to his own mistake may be gleaned from the account in the Midrash (Bereishit Rabba 63, Midrash Ha-gadol) which describes Esav as gathering his colleagues to mock and jeer Yaakov for giving his food away.  The Midrash Ha-gadol relates: “What did he [Esav] do?  He began assembling groups against Yaakov and said to them, ‘You know what I did to him?  I ate his lentils, I drank his wine, I made a mockery of him and I sold him my birthright!’”  This account perhaps reveals the tendency of people to surround themselves with those who grant blind approval, and avoid those who might disagree or offer criticism.  Esav, perhaps feeling insecure after making such a foolish mistake, sought to restore his self-esteem by finding people who would unquestioningly approve of whatever he did.   Rather than humbly acknowledging that he made a wrong decision, he took emotional refuge in the company of his “yes men.”

            The lesson of this incident, then, is that of honest and objective self-assessment.  We must resist the tendency to justify what we do, and instead acknowledge our mistakes and endeavor not to repeat them.

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            Among the narratives in Parashat Toledot we find the story of Yitzchak’s travails while living among the Philistines.  Even after being driven from the Philistine city of Gerar, Yitzchak encountered trouble with the local Philistine shepherds who laid claim to the wells dug by his shepherds.  Curiously, the Torah found it necessary to mention each of the three wells dug by Yitzchak’s shepherds and the names he gave to these wells to commemorate the experience.  The first two wells, whose ownership was contested by the Philistines, were named “Eisek” (“struggle” or “controversy”) and “Sitna” (“enmity”).  The third well did not meet with any protest or contention, and Yitzchak thus named it “Rechovot,” which refers to “expansion” and prosperity.

            The Ramban, in a famous passage in his commentary (26:20), suggests a creative explanation for why the Torah elaborated on these experiences.  Namely, Yitzchak’s three wells are symbolic of the three Batei Mikdash that would later be built in Jerusalem.  The first two Temples – like Yitzchak’s first two wells – met with enmity and hostility on the part of Am Yisrael’s enemies, who ultimately set the structures ablaze.  The third Mikdash, however, will last eternally and never fall prey to the hostilities of the enemy nations.  It will herald a time of “Rechovot” – an era of peace, territorial expansion and prosperity for the Jewish people.  The Ramban adds that the wells serve as an appropriate symbol of the Batei Mikdash, in that the Temple serves as a source of life and blessing for the world, much as a well gives forth water for the surrounding residents.

            The Keli Yakar elaborates further on the Ramban’s symbolic reading of this narrative, suggesting a more specific explanation for the significance of the names “Eisek” and “Sitna.”  In his view, these names foreshadow not the hostility shown by the enemy nations against Am Yisrael, but rather the internal strife among Am Yisrael themselves that led to the Temples’ destruction.  The fall of the First Commonwealth resulted from the nation’s division into two kingdoms, and the bitter strife and bloodshed that characterized the relationship between the kingdoms during most of this period.  Hence, the Keli Yakar suggests, the First Temple period is alluded to with the term eisek, which, he contends, refers to controversies surrounding matters of great importance.  The struggles of the First Temple occurred on the level of monarchs and generals, as two kingdoms struggled for territory, resources and prominence until they both met their tragic demise.

            The Second Commonwealth, by contrast, was characterized by sitna, which the Keli Yakar understands as denoting petty quarreling over trivial and insignificant matters.  Indeed, Chazal famously note that the second Temple was destroyed due to the sin’at chinam – “baseless hatred” – that plagued the Jewish communities of the time.  The “enmity” during this period existed not among government officials, but among neighbors and within families and communities.  The warring parties were not large kingdoms and large armies, but rather different social cliques and the like.  They fought not over land and monarchal power, but rather over personal pride, social stature, and other kinds of “small change.”  For this reason, the Keli Yakar contends, the Torah alludes to this period with the term sitna, which refers to senseless fighting and bickering.

            The story of Yitzchak’s wells, then, alludes to the two kinds of conflicts and discord that we ought to try to avoid: eisek – controversies surrounding major issues and concerns, which should be handled in a peaceful, calm, levelheaded manner; and sitna – the senseless, childish bickering that often ruins otherwise stable relationships.  If only we would recognize just how trivial and insignificant most of these “sitna”-style issues are, we could avoid much of the in-fighting that unfortunately plagues so many families, communities and institutions.

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            Parashat Toledot tells of the experiences of Yitzchak, including the two prophecies that he received from God.  The first occurs as Yitzchak is forced to relocate due to the harsh drought that gripped the region of Canaan.  God appears to Yitzchak and commands him to settle in the Philistine region of Gerar rather than move further south to Egypt (26:2-3).  Yitzchak beholds a second prophecy later, after he was driven out of Gerar and struggled with the Pelishtim who contested his rights to the wells he dug.  In this prophecy, God reassures Yitzchak and reaffirms the promise that he will produce a great nation (26:24).  Yitzchak responds to this prophecy by constructing an altar and “calling in the Name of the Lord” (26:25), giving rise to the question of why he did not react similarly to the initial prophecy he received, when he first headed toward Gerar.

            The Meshekh Chokhma suggests that God Himself indicated to Yitzchak in the second prophecy that he should construct an altar.  In this prophecy, God promises to make Yitzchak’s descendants numerous “because of My servant Avraham.”  The Meshekh Chokhma contends that the term avdi (“My servant”) is intended as an allusion to the avoda, sacrificial rituals, and God sought to emphasize to Yitzchak that his father had offered sacrifices on numerous occasions to express his devotion to God.  In this way, God hinted to Yitzchak that he, too, should serve God in this manner, and Yitzchak therefore responded immediately by constructing an altar and offering sacrifices.

            The Meshekh Chokhma offers another approach, as well, attributing the difference between Yitzchak’s responses to the difference between the two prophecies.  In the first prophecy, God affirmed that Yitzchak’s descendants would inherit the Land of Canaan, whereas in the second, He spoke only that Yitzchak would beget innumerable offspring.  The purpose of “calling in the Name of the Lord” at an altar in response to prophecy, the Meshekh Chokhma suggests, is to publicize that prophecy.  And for this very reason, he claims, Yitzchak did not “call in the Name of the Lord” after receiving the first prophecy, in which he was promised that his descendants would take possession of Canaan.  The Meshekh Chokhma writes:

He did not publicize it because he feared the residents of the land, lest their enmity be aroused against him, and Yitzchak had never waged battle in his life.  Additionally, it would not be ethical that the people of the land are peaceful with him and he seeks to possess their land.  Therefore, he did not publicize this vision and did not construct an altar.

Either out of fear or the concern for ethical conduct, Yitzchak felt it inappropriate to publicize God’s promise that his descendants would possess the land, and so he did not construct a religious site after receiving the first prophecy.  The second prophecy, however, made no mention of this promise, and Yitzchak therefore constructed an altar where he publicized the prophecy he received.

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            We read in Parashat Toledot of Yaakov’s “purchase” of the privileges of the birthright from his older twin, Esav.  As we mentioned earlier this week, a number of writers addressed the question regarding the legal mechanics of this sale, whether and how such a sale accommodated the halakhot governing acquisition.  Among the issues that arise is the rule of “ein adam makneh davar she-lo ba la-olam,” which means that property which the seller does not yet possess is not subject to ownership transfer.  If we assume that Yaakov’s purchase of the bekhora (birthright) involved inheritance rights after his father’s death (a subject which we discussed earlier this week), then this transaction appears to have violated the rule of davar she-lo ba la-olam.  Since the property in question had not yet come under Esav’s possession, these assets should seemingly not be subject to acquisition.

            The Rivash (Rav Yitzchak bar Sheshet, 1326-1408), in a famous responsum (328), cites an answer offered by the Rosh, who suggested that an oath taken by the seller enables the transfer of a davar she-lo ba la-olam.  Even though a person generally cannot transfer assets that have yet to come under his possession, one can sell such assets if he utters an oath at the time of the sale.  For this reason, the Rosh explains, Yaakov demanded that Esav take an oath when he sold the birthright (25:33).  The Rivash strongly objects to this theory, going so far as to assert that the Rosh could never have said such a thing.  In his view, the legal mechanics of transactions before Matan Torah need not conform to halakhic guidelines, and thus this question is one which we need not ask in the first place.  Since Yaakov’s purchase of the birthright occurred before the Torah was given, we have no reason to expect it to accommodate the Torah’s rules governing property transfers.

            Many later scholars noted that this debate likely surrounds the fundamental question of why Halakha disqualifies transactions made on a davar she-lo ba la-olam.  The Rosh presumably held that such property is, fundamentally, subject to acquisition.  The sole obstacle to such a transaction lies in the mind of the buyer, who lacks the requisite semikhut da’at (confidence) in his ability to obtain the purchased goods.  Any halakhic sale requires the decisive intent (“da’at”) of both the seller and buyer.  In the case of a davar she-lo ba la-olam, where the merchandise has not yet come under the seller’s ownership, the uncertainty surrounding the assets undermines the buyer’s intent, thus disqualifying the sale.  However, the Rosh maintains that this obstacle can be overcome by an oath, which gives the buyer confidence in the seller’s intention to transfer to him the property in question.  Therefore, one can sell assets he does not yet own if he takes an oath at the time of the sale, whereby he gives the buyer the confidence necessary for a transaction to be valid.

            The Rivash, however, disagreed, and held that intrinsically, a davar she-lo ba la-olam is simply not subject to legal transfer.  In his view, the entire concept of acquisition, as recognized by Halakha, applies only to property currently in a person’s possession.  The inability to sell property that one does not own stems from the basic definition of a “sale,” rather than to the more technical issue of the buyer’s intent.

            Rav Asher Zelig Weiss, in his Minchat Asher, notes that this question also underlies the issue of whether the rule of davar she-lo ba la-olam applied before Matan Torah.  The Rivash likely agreed that the fundamental concept of da’at makneh and da’at koneh – the requirement that both seller and buyer have clear and unhesitant intent to perform the transaction – applied even before the Torah was given.  After all, this is the most basic prerequisite to any legitimate transfer of property.  However, as we saw, the Rivash held that the transfer of a davar she-lo ba la-olam simply does not accommodate the halakhic definition of a “sale.”  This definition quite likely originated only at Mount Sinai, when God gave the Torah to Benei Yisrael, and therefore, according to the Rivash, a davar she-lo ba la-olam could be transferred before Matan Torah.

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            Yesterday, we noted the question raised by numerous writers concerning the halakhic status of Yaakov’s purchase of the birthright from his older twin, Esav.  As we saw, the rule of “ein adam makneh davar she-lo ba la-olam” establishes that one cannot sell property that he does not yet own.  Accordingly, it would appear that Esav had no legal power to sell his firstborn inheritance rights, which, in essence, meant selling an extra share of his inheritance of Yitzchak’s assets, which of course he still did not own.

            Rav Asher Zelig Weiss, in his Minchat Asher, points to a number of models of halakhic kinyanim (means of acquisition) that are effective even for a davar she-lo ba la-olam, something that has not yet come under the seller’s ownership.  One such model is the concept of situmta, a term which, in its narrowest sense, refers to a stamp placed on a large shipment of merchandise purchased from a wholesaler.  The boxes would be stamped in the distributor’s warehouse, from where they would be taken, one by one, over the course of time, to the retailer.  The Gemara in Bava Metzia (74a) establishes that if the custom among distributors was to treat this stamp as signifying the formal transfer of ownership, then halakhically, too, the boxes are already under the retailer’s ownership – even though they are still in the distributor’s warehouse.  The Shulchan Arukh (C.M. 201:2) extends this halakha to include any accepted commercial protocol, such as the symbolic transfer of a small amount of money, or a handshake.  These acts, too, constitute a halakhically-binding transfer of ownership if the accepted protocol among merchants is to view it as such.

            Rav Weiss cites a number of Rishonim and Acharonim, including the Maharam Mei’Rutenburg, the Rosh and the Ketzot Ha-choshen, who maintain that this principle applies even to a davar she-lo ba la-olam.  Despite the general halakhic principle invalidating transactions of assets that the owner does not as yet possess, where convention allows for such sales, Halakha, too, recognizes their validity and considers them binding.  Rav Weiss thus suggests that we may view Esav’s sale of the bekhora in this vein.  A number of commentators, including the Rashbam, Radak and Chizkuni, claim that the food that Yaakov gave to Esav during this episode was for the purpose of formalizing the sale of the birthright.  As opposed to the common understanding, that the food served as payment for the birthright, these commentators maintain that the meal was shared for the purpose of legally effectuating the transaction.  Accordingly, Rav Weiss suggests, we may explain that Yaakov and Esav employed the concept of situmta, utilizing a method of kinyan that was conventionally used at that time, which, as we saw, is effective even for the sale of a davar she-lo ba la-olam.

            The second model that Yaakov and Esav may have followed is that of kinyan chalipin, whereby a transaction is effectuated through the buyer’s symbolic transfer of some object to the seller.  The Ra’avad, in his work Temim Dei’im (160), maintains that a kinyan chalipin is effective in transferring ownership even of property that the seller does not yet possess.  Accordingly, if we understand that Yaakov purchased the birthright through a kinyan chalipin, we can resolve the question of how Esav could sell assets that he as yet did not own.  Indeed, Seforno, in his commentary, claimed that the food Yaakov served to Esav functioned as the chalipin that effectuated the transaction.  Alternatively, Seforno adds, the utensil in which the food was served functioned as the chalipin.  (Seforno added this second possibility, Rav Weiss explains, in order to accommodate the view that food cannot serve as chalipin.)  Possibly, Seforno followed the Ra’avad’s view that a kinyan chalipin is effective in transferring ownership even of a davar she-lo ba la-olam, and for this reason the sale was valid even though Esav did not yet own the property he sold.