Print this Article
A Parasha and Halacha Audio Shiur on Parashat Toledot by Dayan Shlomo Cohen
In this week’s Parasha we read about the selling of the firstborn rights by Esav to Yaakov.
Our Sages debate whether one can sell something that doesn’t exist, and will only come to existence in the future (Davar SheLo Ba La’Olam). According to Ribbi Akiva this is possible, whereas according to Hachamim it is not.
There is a discussion whether the problem with purchasing a nonexistent item is because one cannot possibly have fully informed consent at the time of the transaction or is it because one can simply not exercise a transaction on something that doesn’t exist (although, if one did sell a future product and it came into being, if the customer took it to himself, we assume that the seller would be interested in keeping his word and the buyer may keep it).
The Rivash asks how was Yaakov able to buy the firstborn rights if they didn’t exist yet. He answers that this was possible because the Torah wasn’t given yet. However, according to our previous reasons for this law it would seem that it doesn’t depend on Torah law but is rather a logical law.
The Ketzot HaHoshen suggests that it wasn’t a real transaction, but rather Esav “removed” himself from the firstborn rights (“Siluk”), which works even on a nonexistent item.
Some suggests that it functions as a Situmta – a customary transaction – meaning, that if merchants have a custom to conduct business a certain way and trade in certain entities, even if according to basic Halacha the transaction shouldn’t work, nevertheless, it works as per the merchants’ custom. [This concept seems to prove that the problem with buying nonexistent property is only that there is no consent, and not because it is impossible.]
A modern-day example of a Situmta – customary transaction – is the custom of the Antwerp diamond dealers to exclaim “Mazal U’Bracha” to seal a deal. This would constitute a binding transfer of ownership in such a scenario.
Accordingly, the Hattam Sofer writes that if the custom in the marketplace is to buy future merchandise, as is the reality today, it works also in Halacha. Similarly, although copyrights and trade names etc. are abstract things which have no value in Halacha, nevertheless, since in our day they are traded, they are considered to be a valid transaction of Situmta.