Sale of the Birthright – A Fair Deal/1/he

מכירת הבכורה – עסקה הוגנת?

הקדמה

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Morality and Legitimacy

After briefly describing the birth of Yaakov and Esav and their occupations, the Torah records the episode of the sale of the birthright ("בְּכֹרָה"). In this story, a famished Esav begs Yaakov for some lentil stew, and Yaakov acquiesces, but only on condition that Esav sell him his birthright. Commentators throughout the ages have raised the following questions as they struggled with the ethics and legality of Yaakov's actions:

• Did Yaakov exploit Esav's vulnerability at a moment when Esav was starving to death?¹
• Was Yaakov not guilty of extortion by purchasing the birthright for a meager pot of lentils?²
• Can one sell a birthright?³ Are there any Biblical parallels to our transfer and transaction? Did Yaakov ever receive the birthright which he purchased?

In medieval times, the ethical issues provided ammunition for Christian claims of Jewish dishonesty, as can be seen from the following passages:

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יקופין אחד מצא ר' יוסף בדרך פריש, ואמר לו: יעקב אביכם גנב היה ואין אוכל רבית כמהו, שבשביל קערה אחת שהיתה שוה מחצה קנה הבכורה, שהיתה שוה אלף זקוקים. (ספר יוסף המקנא סימן י"ו)

ומכאן תפיסה עצומה על יעקב אבינו ראש יחסנו ועיקר שרשנו אשר בו נתפאר, שונאיו ילבשו בושת אשר על פנינו יוכלו לחרף ולגדף ולומר: מי הוא זה ואי זהו אשר מלאו לבו להפר ברית אחים, ובראותו אחיו הבכור עיף ויגע ישיגהו בין המצרים ותרע עינו עליו מלתת לו לחם ונזיד עדשים עד ימכור לו זכות בכורתו? ולא ישיב ידו עד שבא עליו במרמה שניה לקחת גם את ברכתו... ואיה איפה תמימותו אשר נאמר עליו ויעקב איש תם? (עקדת יצחק פרק מ"ג)

 

A Dominican friar encountered R. Yosef on the road to Paris and said to him: Your father Jacob was a thief, and there has been no usurer like him; for a single bowl (of lentils) that was worth half a coin, he purchased the birthright which was worth a thousand coins. (Sefer Yosef HaMekannei 16)

... (Akeidat Yitzchak Bereshit #43)

 

How did Jewish commentators respond to these accusations? And, more importantly, how did they confront for themselves the challenges posed by Yaakov's behavior?⁴

Birthright – Material or Spiritual – Benefit or Burden?

It is difficult to assess Yaakov and Esav's actions without first determining what exactly the "בְּכֹרָה" (birthright) was and appraising its value. The word "בְּכֹרָה" appears in only two other contexts in the Tanakh, in the laws of inheritance of Devarim and in the description of the transfer of the birthright from Reuven to the sons of Yosef in Divrei HaYamim. From both of these sources,⁵ it would seem that the birthright refers to a financial commodity, a double portion of a father's inheritance.⁶ However, the Torah gives no indication that Yaakov ever pursued or received such a double portion of Yitzchak's estate.⁷ This makes one wonder whether Yaakov was really motivated by pure materialistic greed and envy.

Alternatively, the "בְּכֹרָה" in our story may be integrally connected to the unique religious status the Torah assigns to a firstborn child (בְּכוֹר). In Shemot 13:2, the Torah consecrated all firstborns, dedicating them to the service of Hashem.⁸ Additionally, Hashem refers to the Children of Israel as "בְּנִי בְכֹרִי יִשְׂרָאֵל" (Shemot 4:22). This implies a special status of a chosen nation, unconnected to financial assets. Might these usages shed light on the meaning and significance of the "בְּכֹרָה" in our chapter?

Esav's Perspective

It is instructive to also consider the events from Esav's viewpoint. At first glance, it might seem that Esav was literally dying of hunger and only sold his birthright under duress:

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וַיֹּאמֶר עֵשָׂו הִנֵּה אָנֹכִי הוֹלֵךְ לָמוּת וְלָמָּה זֶּה לִי בְּכֹרָה. (בראשית כ"ה:ל"ב)

And Esav said, "Behold I am going to die, and of what use to me is the birthright". (Bereshit 25:32)

Yet, was there really no other food available in their home? Did Esav really have no option other than to agree to Yaakov's terms, or was he simply expressing that the birthright, for some reason, was worthless to him? And if the birthright was indeed a valuable commodity even to Esav, why does he despise and scorn it ("וַיִּבֶז עֵשָׂו אֶת הַבְּכֹרָה") rather than complaining about the unscrupulous circumstances of the sale to his doting father?⁹

¹ In Talmudic terminology, this issue might be classified under the category of "תליוהו וזבין" (a coerced sale) – see Bavli Bava Batra 47b-48b.

² See RanDerashot HaRan 2About R. Nissim Gerondi and AbarbanelBereshit 25About R. Yitzchak Abarbanel who formulate this as a violation of the prohibition of אונאה (unfair pricing).

³ Medieval commentators who assume that the birthright was a monetary commodity (see below) frame this question using the halakhic concept of "אין אדם מקנה דבר שלא בא לעולם" (a person cannot transfer something which does not yet exist) – see Bavli BM 16a-b. Indeed, the TurLong Commentary Bereshit 25:31About R. Yaakov b. Asher cites his father the Rosh as proving from our story that such a sale, if accompanied by an oath, is valid. The RivashResponsa of R. Yitzchak b. Sheshet 328 disagrees (and casts doubt as to whether the Rosh or the Tur really made such a statement), arguing that one cannot enter a pre-Sinaitic case as Halakhic evidence (for more, see Avot and Mitzvot). See also the TosafistSefer HaGan Bereshit 25:33cited in Minchat Yehuda Bereshit 25:31Chizkuni Bereshit 25:31About Sefer HaGan assumption that if the birthright were a spiritual status, it could not have been sold, and the exact opposite position in Sefer Nizzachon Yashan 32.

⁴ For a similar question (and parallel approaches) regarding the despoiling of the Egyptians during the Exodus, see Reparations and Despoiling Egypt.

⁵ Regarding the latter verse, see Radak Divrei HaYamim I 5:2: "ושאר משפט הבכורה והוא לקחת פי שנים בארץ נתן ליוסף".

⁶ While RambanBereshit 25:34About R. Moshe Nachmanides and others raise the possibility that the laws of the double portion did not exist before the Torah was given (for more, see Avot and Mitzvot), there appears to be ample attestation from the Ancient Near East for this practice. For analysis of the relevant texts, see E. Davies, "The Inheritance of the Firstborn in Israel and the Ancient Near East", JSS 38 (1993): 175-91.

⁷ In contrast, the Torah describes Yaakov's independent wealth as emanating from the fruits of his labor with Lavan's livestock, and in Bereshit 32:11, Yaakov even notes how he departed from his parents' home empty-handed. See also AbarbanelBereshit 25About R. Yitzchak Abarbanel and ShadalBereshit 25:31About R. S.D. Luzzatto who amplify this point. Finally, compare Bereshit 25:5-6 which details how Avraham gave his entire estate to Yitzchak; no parallel to this is to be found upon Yitzchak's death in Bereshit 35:29.

⁸ That the firstborns were intended to serve Hashem, becomes clear only when they are replaced by the Levites in Bemidbar 3. According to some exegetes, the firstborns realized this role in the offering of the sacrifices in Shemot 24. However, there is scant Biblical evidence that this role existed before the Exodus.

The Ancient Near Eastern evidence is also ambiguous. There are tablets from Nuzi and Nippur which speak of the firstborn inheriting the family gods, however it is possible that these merely reflect the enhanced portion of the firstborn in the father's estate, rather than any religious function. Cf. the earlier discussion regarding early evidence of the double portion of inheritance.

⁹ It is possible that Esav did complain immediately (although "וַיִּבֶז" would imply otherwise), however the Torah records Esav alleging such a grievance only years later in the story of the blessings (Bereshit 27:36). See also R. Yosef Bekhor ShorBereshit 27:2Bereshit 27:4Bereshit 27:10Bereshit 27:13Bereshit 27:41About R. Yosef Bekhor Shor who suggests that Yitzchak, in fact, tried to help Esav evade the ramifications of the sale by using the method of a "living will".