Eisav selling the first born
Rav Daniel Dombrov
How could Eisav sell the rights of the first born to Yakov?
- Regarding the double
portion of inheritance, it is considered a davar shelo ba l’olam. - Regarding the leadership and
other aspects, these are intangibles and considered a davar she’ayn bo mamesh.
Ketzos- this is determined based on an individual’s ability
to renounce his rights of inheritance.
A husband may renounce his rights to inherit his wife
because his ownership is only midrabannan.
Therefore, a bechor, which is de’raysa, can not renounce his rights of
inheritance.
Ran- Ordinarily, one cannot renounce his rights to inheritance after he is in a position to inherit. [A husband may renounce his rights only prior to marriage.] Nevertheless, the first born is unique, in that it is not considered to be a standard inheritance, but rather, a Torah mandated ‘gift’. If so, Eisav was in a position to at least renounce his right to the first born.
Ohr HaChaim – davar shelo ba l’olam is lacking gemiras daas. When one is in a desperate situation, there
is gemiras daas even on a davar
shelo ba l’olam. Eisav was
acting out of desperation, which accords full gemiras
daas to the kinyan.
Additionally, concerning selling an intangible item- davar she’ayn bo mamesh– when one accompanies the transaction with an oath- a shevuah- the transaction is binding.
Rosh- prior to Matan Torah, there was no issue transacting in a davar shelo ba l’olam. The Rivosh
disagrees with this.