Dvar Torah Parshat Chaye Sara 5760
by Jonathan Baker
To the memory of the soul of Aharon Eli ben Yaakov, Arthur
Korpus, on the Shabbat following his shloshim. May his soul
ascend in the merit of our study.
Since Arthur was an accountant, I chose to learn some mishnayot
dealing with business law, namely Tractate Baba Metzia. Some of
the mishnayot resonated well with him, and also with this week's
parsha, so let's go into it.
One of the topics discussed in this tractate is the issue of
kinyan, acquisition. A Jewish purchase involves three parts:
giving the money, taking the money, and formally acquiring the
object. For movable objects, it involves moving the object a
predefined distance, or lifting it.. For non-movable objects, it
involves using the object so as to demonstrate ownership:
changing the locks on a new house, fencing in a new field, etc.
The first portion of this week's parsha deals with Avraham's
acquisition of land on which to bury Sarah. Since this is
precisely what my brother-in-law was doing all day Simchas Torah,
calling all over New Jersey to buy a burial plot for his father,
it caught my eye. This passage also bears on the idea of
acquisition of real property. Let's analyze it from two
perspectives, from the view of the Canaanite legal system and the
view of Halacha. We will see that it fits very nicely into both
systems.
The Canaanite analysis is based on parsha sheets from Prof.
Ze'ev Safrai of Bar Ilan University and from Rabbi Yitzchak
Etshalom of Los Angeles, via torah.org.
Avraham is living amongst the bnei Cheit, the Hittites, at
the time Sarah dies, and wants to buy a burial cave from them.
He approaches the tribal elders:
"I am an immigrant and a resident among you," he said.
"Sell me property for a burial place with you so that
I can bury my dead, [and not have her here] right in
front of me."
Why does he call himself an immigrant and a foreigner? Why does
he approach the tribal elders, rather than an individual
propertyowner? In Canaanite societies, strangers, non-tribe-
members, were forbidden to own land. (Sound familiar?) Now
consider, there are two types of ownership in the Torah: mikneh
and achuzah. Mikneh reverts to the original owner or his heirs
in the Jubilee year, achuzah is that which one owns in
perpetuity, such that it reverts to him during the Jubilee.
Avraham wanted the field as an achuzah, a holding, a
permanent, heritable property. He felt that by appealing to the
leadership as a whole, he would be more likely to be granted a
variance. Their initial reaction? No. You may be a Prince of
God, but you cannot own our land. We would be glad to lend you a
tomb, but you can't own a tomb. Abraham tries again, approaching
an individual, Ephron, and is again rebuffed: I'll give you the
field and the cave as a lease, a mikneh. Avraham looks stuck.
But wait: in Mesopotamia, in a town called Nuzi, laws have
been found indicating the possibility of adoption-sale. That is,
someone pays a fee to a tribe, and is adopted into the tribe, and
then can own land in that tribe. Avraham, coming from
Mesopotamia, may have offered this to Ephron: what will it take?
400 shekels of silver, then what is a field between us (beini
uveinecha)? Many have commented that 400 shekels seems an
exorbitant price for a field and a burial cave. But if we see it
as the tribal adoption fee, it becomes more reasonable. No
longer is Avraham the "Thou", the "Prince of God", now he is "one
of us", and can buy the field.
So Avraham acquires the field, buries Sarah, and the field
is described as an "achuzah" (v. 20) for Avraham.
That's all well & good for the Canaanite legal system. The
Torah is consistent in the historical context in this instance,
at least. What about halacha? We know that Avraham lived
according to halacha. The Kedushat Levi explains how: each
mitzvah nourishes one of the bones or organs of the body, the 248
positive mitzvot corresponding to the 248 bones, the 365 negative
mitzvot corresponding to the 365 organs. Avraham, being on a
high spiritual plane, was able to tell, with a highly tuned body
sensitivity, what action, what mitzvah, would best nourish each
part of his body. By way of analogy, highly developed yogis can
control their body's autonomic functions: pulse rate,
temperature, etc. Avraham was the same, only more so. This sale
must fit into the halachic system as well. How so?
The laws of selling a field are discussed in the Shulchan
Aruch, section Choshen Mishpat, chapters 190-195. How is a field
sold? Four ways: money, contract, use, formalized kinyan. It's
very similar to the methods for contracting a betrothal (money,
contract, sexual relations). How does this fit our story?
Certainly there is a giving and receiving of money. No contract
is mentioned, but little is done by contract in the Torah. Use:
there certainly is use, he buries Sarah in it, and thus it is
"established" as an achuzah for him. It would appear that this
is the acquisition: the use.
But wait: Ephron is a non-Jew, and the halacha is that sale
of land involving a non-Jew is only accomplished through shtar,
through a contract. Where is the contract? It should be noted,
that there is an implication that use may confer acquisition in
such a sale: if one pays a non-Jew for a field, and fails to use
it, and the non-Jew sells it to someone else, the later party
gets the field, since you didn't have a contract to show. This
implies, that if you pay and then use the field, it does become
yours. So that may be one way to solve the dilemma.
I think, however, that there is a contract. Let's look at
verses 17-20:
Ephron's field in Makhpelah adjoining Mamre thus became
uncontested property: the field, its cave, and every tree
within its circumference; [as] Abraham's purchase with
all the children of Heth who came to the city gate as
eyewitnesses.
Abraham then buried his wife Sarah in the cave of
Makhpelah Field, which adjoins
Mamre (also known as Hebron), in the land of Canaan.
This is how the field and its cave became the
uncontested property of Abraham as a
burial site, purchased from the children of Heth.
Some commentators (Mendelssohn, at least) see the first two
verses as one long sentence. Consider, then, the structure of
this passage. We have bracketing statements at the beginning and
the end, a description of the property, and a statement
describing the use of the property which established Abraham's
ownership.
"Ephron's field...became Abraham's uncontested property"
.the field, its cave, and every tree within its border
.witnessed by the [elders of] the Hittites
"Abraham then buried...Sarah in the cave of Machpelah Field
.which adjoins Mamre, or Hebron, in the land of Canaan"
"This is how the field and its cave became the uncontested
property of Abraham
.as a burial site
.purchased from the Hittites.
I think this is the shtar, the contract of sale. It has the feel
of a formal document. It brackets itself with a declaration of
intent: how the field became Avraham's achuzah. It delineates
the borders of the property, the use for the property, the
purchaser and seller, the witnesses to the sale, and the
acquisition by use; all transcribed in the Torah.
So Avraham did the right thing, both by Canaanite law which
applied in the surrounding society, and by halacha, which would
apply in the future to the Jews, but which at that time only
applied to him.
In a way, we can see this bracketing form as prefiguring the
Torah. The Torah is bracketed by the history of God and the
Jewish people discovering each other and establishing a
relationship. In Bereshit we establish the relationship, with
the covenant between the halves, and with Abraham discovering
God. In between, God delineates the boundaries of the
relationship with the mitzvot, with the halachot. Certain
actions happen which establish the existence and permanence of
the relationship: the Exodus and the Stand at Sinai. In
Deuteronomy, the history is repeated, along with some of the
mitzvot. So the Torah is the contract of the relationship
between God and the Jewish People, how God is our Yerushah, our
inheritance.
Slightly tongue-in-cheek: God isn't a person, so he
certainly isn't a Jew. We thus can only establish our
relationship with Him through a written contract. The Torah is
our shtar.
How can this have meaning for us today? Let us see what the
Rav Soloveitchik tells us about covenants and about how we fit
into society, as Avraham fit into his society. Rabbi Hecht spoke
this morning about our special relationship with Eretz Yisrael,
largely started by this purchase of the first piece of it for our
eternal ownership.
Let us examine the relationship between the Jew and
Eretz Yisrael. The whole Eretz Yisrael experience,
including that of the state and the political pressures
that it faces, cannot be explained in normal historical
mechanistic terms. Rather it is a covenant event. The
commitment of the Jew to the land is not based on
events that happened in the past as much as on a
promise of a miraculous future when the divine promise
will be fulfilled. In covenant history, the future is
responsible for the past. Covenant events cannot be
explained in terms of normal historical categories. You
cannot explain in normal psychological terms the
commitment of the Jew to Eretz Yisrael. It is an
irrational yet unconditionally strong commitment based
on the covenant promise.
The covenant has created a new concept of destiny. The
word destiny conveys a notion of destination. The
historical experience of the Jew is not based on the
point of departure, but rather his destination towards
which he is driving. The destination of the Jew is the
ultimate eschatological redemption of the universe that
will occur with the coming of Moshiach. The covenant is
the force behind this destiny.
However, historical destiny can also be characterized
by another trait, which is the contradiction of our
historical experience. There has never been a period in
history where the Jew lived a completely covenant
existence. From the beginning of our history, Jews have
always lived among non-Jews. Abraham lived among the
children of Ches, he dealt with them in economic
matters. The modern Jew is certainly entangled and
integrated into the general society. Consequently we
also share the universal historical experience as well.
We have no right to tell society that societal ills
like pollution, famine and disease are problems owned
by the rest of society. These problems apply to the
Covenantal Community as well. The Jew as a member of
humanity, as someone endowed with Tzelem Elokim, must
contribute his part to the benefit of mankind,
regardless of the terrible treatment accorded him
throughout the ages. The patriarchs and matriarchs were
buried together with Adam and Eve, the parents of all
of society, in order to show that there is no gap
between the Jew and the rest of society. There is no
contradiction between laws based on human dignity of
Tzelem Elokim, and laws based on the sanctity of the
Covenantal Community. The Covenantal Community adds
additional responsibilities to the Jew beyond those he
already has based on his humanity.
The non-Jewish world finds it difficult to understand
this duality and therefore view us as an enigmatic
people. For example, they view our commitment to Eretz
Yisrael as irrational because they do not comprehend
the nature of the covenantal commitment that is the
foundation upon which this attachment is based. The
extra commitment that the Jew has that they do not
share or understand creates existential tension between
the Jew and non-Jew. Abraham described this tension
when he instructed Eliezer and Ishmael to sit here
while he and Isaac travel on to another point. The Jew
and non-Jew have common cause up to the point of Poh,
"here". However the Jew has an additional commitment
beyond that of society. He cannot remain "here" as
Abraham said. He must go further, to Koh, to fulfill
his additional covenantal commitment and destiny. This
tension is worth enduring in order to be the
maintainers of the destiny and legacy of Abraham.
(Shiur date: sometime in the 1970's. Copyright 1998
Josh Rapps and Dr. Israel Rivkin)
Avraham was fully integrated in both his society and in the life
of Torah. So too should we strive to balance the two.
On a totally irrelevant note, I'd like to share a particular
mishnah with you, which resonates with my memories of Arthur
Korpus, hk"m. We learn in Bava Metzia 4:10 (the whole chapter
deals with fraud) about fraud, oppression in words.
Just as there is fraud in business, there is fraud
in words. One should not say, "How much is that item?"
if one has no intention of purchasing it. One should
not say to a penitent, "Remember your old bad deeds!"
Nor should one say to a descendent of converts,
"Remember the deeds of your ancestors!", as it says,
(Ex. 22) "You shall not oppress a convert, nor cause
him pain."
Arthur Korpus was honest in word and work.
Two stories:
In his later years, Arthur had a handicapped parking tag for his
cars. Whenever Debbie or her brothers would go shopping with
their mother, she would try to use the parking tag to park in the
handicapped space, so she wouldn't have to walk so far. While
this may be theoretically doable, none of her children would let
her take advantage of this: "None of us are handicapped, it won't
kill us to walk from the regular parking spots." "Where did I
get such honest children?" she would ask. It must have been
their father's example.
Arthur had a, well, sharp tongue. He was always pressing us to
succeed, to improve. "Why don't you switch to a better paying
job?" "You should buy a house." "You should leave that
neighborhood." "You should get a job." But he never, in the ten
years I knew him, of asking annoying things, brought up old bad
deeds. He was always pushing for improvement, giving mussar for
life as it were. There is a fine line between difficult
questions and oppressive words, and he never crossed it.
Good shabbos.