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A Lesson From Avraham on Property Law

A Lesson From Avraham on Property Law

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"I am an immigrant and an inhabitant with you. Give me burial property with you, so that I may bury my dead before me."

-- Breshis 23:4

Classic Questions

Why did Avraham describe himself as an "immigrant and an inhabitant with you"? (v. 4)

Rashi: He was saying, "I am an immigrant from another land, and I have settled among you."

According to the Midrash, he was saying, "If you wish [to sell me a burial site] then I am [like] an immigrant [and will purchase it from you for a good price]. But if not, I will be a resident and take it by rights, since G‑d said to me, 'I will give this land to your descendants' (above, 12:7).

Bartenura: If G‑d said, "I will give this land to your descendants," how was this a proof that it belonged to Avraham himself? Presumably, we are to conclude that Avraham was actually given the land by G‑d and that his descendants inherited it.

Nachalas Ya'akov: In fact, G‑d had given the land not only to Avraham's descendants but to Avraham himself, with the words, "I will give all the land that you see to you" (13:15).

Pirkei d'Rabbi Eliezer: The people of Cheis said to Avraham, "We know that in the future G‑d is going to give all these lands to you and your descendants. Strike a covenant with us that the Jewish people will only inherit the city of the Jebusites with the consent of the Jebusite people" [who were descendants of Cheis]. Avraham struck the covenant with them and purchased the Cave of Machpeilah.

The Rebbe's Teachings

"Immigrant" or "Resident" (v. 4)

Rashi's comment here on verse 4 presents us with a number of problems:

  1. If Avraham could have demanded the cave of Machpeilah "by rights," then why did he go to such great lengths to purchase it?

  2. The people of Cheis referred to Avraham as a "prince of G‑d" (v. 6) because of his reputation for kindness and righteousness. If he had demanded the cave by force he would have lost this reputation and made a chilul Hashem (desecration of G‑d's name). Why did Avraham consider this a worthwhile option?

  3. Why did Avraham prove his rights to the land from the verse "I will give this land to your descendants"? Surely, a better proof would have been the verse "I will give all the land that you see to you" (13:15). (See Bartenura and Nachalas Ya'akov.)

  4. We explained earlier, in Parshas Lech Lecha (Toras Menachem on 15:18), that according to Rashi, Avraham did not make any legal acquisition of the Land of Israel at all, and it was merely promised by G‑d to his descendants. If so, on what basis would Avraham take the cave of Machpeilah "by rights"?

Besides these difficulties with Rashi's words, the incident related in Pirkei d'Rabbi Eliezer (that Avraham entered into an agreement over the land of the Jebusites) is extremely difficult to understand:

If G‑d had already promised Avraham, "I will give this land to your descendants," how could Avraham make a covenant promising part of the land to the Jebusites in total defiance of G‑d's promise?

The Explanation

Ownership of land can occur on two different levels.

  1. National ownership, where a sovereign or government possesses the rights to an entire country or empire.

  2. Private ownership, where an individual possesses land for himself.

Obviously, these two types of ownership can coexist. An individual may own a piece of land privately, but at the same time, its general right of ownership belongs to the government, which may imposes taxes on the owner. Ultimately, the government possesses the right to evict the owner from his land if certain circumstances prevail (Bava Kama 100b).

Despite this overlap between the two forms of ownership, they are otherwise independent. The national ownership of a land by one group of people, or one family, does not preclude the possibility of other people owning property within it, so long as they pay the appropriate taxes and observe the laws of the land.

Likewise, if a group loses national ownership of a land, this does not preclude the possibility that they may continue to own some of the land privately (under another regime).

In history, this is exactly what occurred to the Jewish ownership of the Land of Israel. At times, we have enjoyed the national ownership of the land; but even when the national ownership was lost, some parts of the land remained under private Jewish ownership (see Jer. 32, 44; Bava Basra 28b).

Based on the above, we can now understand the distinction between the two promises G‑d made to Avraham: "I will give this land to your descendants" (12:7, 15:18), and "I will give all the land that you see to you" (13:15).

When G‑d promised the Land of Israel to Avraham's descendants, He was promising the entire land ("this land"), i.e., national ownership.

In addition, included in G‑d's promise to Avraham ("to you"), was sufficient land to accommodate his descendants, who would be as numerous as "the soil of the earth" (ibid. 16). I.e., the promise here is on a personal level, that each one of Avraham's descendants would privately possess a piece of the land.

With the above in mind, we can now explain Avraham's argument to the people of Cheis, as articulated by Rashi:

Avraham assumed, quite rightly, that the time had not yet come for the national ownership of the Land of Israel by the Jewish people, which had only been promised to "his descendants." Obviously, this did not preclude his private acquisition of a part of the land, so he tried to purchase the cave and field of Machpeilah from its current owners at the time, the people of Cheis. Therefore, he said, "If you wish [to sell me a burial site] then I am an immigrant [and will purchase it from you]."

Avraham was also prepared for the possibility that the people of Cheis would refuse to sell him the land. But Avraham deemed it an unacceptable alternative to bury Sarah anywhere but the Cave of Machpeilah, since he knew that Adam and Chavah were buried there, and that Sarah, the mother of the Jewish people, belonged next to Adam and Chavah who were formed by G‑d's hand.

Therefore, if the people of Cheis refused to sell the cave, it would be sufficient proof to Avraham that the time had now come for national acquisition of the Land of Israel against the will of its inhabitants. Thus, Avraham quoted to the people of Cheis G‑d's promise of the Land of Israel as a whole to the Jewish people: "If not, I will be a resident and will take it by rights, since G‑d said to me, 'I will give this land to your descendants.'"

According to the above explanation, we can now understand why Avraham was willing to make a covenant with the people of Cheis "that the Jewish people will only inherit the city of the Jebusites with the consent of the Jebusite people." Avraham was only offering the Jebusites private ownership of some land within the Land of Israel, which would still belong to the Jewish people on a national level. Thus, if the Jebusites refused to comply with "the law of the land," they could be evicted.

And, in fact, this is what actually happened. When the Jebusites obstructed the construction of the Temple, King David evicted them by force (Sam. II 5:6-10). For at that point, the private ownership of land by the Jebusites became incompatible with the national ownership of the Land of Israel by the Jewish people, and Avraham never made such a concession to the people of Cheis.

(Based on Likutei Sichos vol. 30, p. 82ff.)

Based on the teachings of the Lubavitcher Rebbe, Rabbi Menachem M. Schneerson of righteous memory; adapted by Chaim Miller.
An excerpt from the Gutnick Chumash published by Kol Menachem, New York.

The Chumash incorporates a flowing English translation of the Torah which is loyal to the commentary of Rashi and includes 'Classic questions' that are drawn from a range of commentators and are then ingeniously brought together by the teachings of the Lubavitcher Rebbe, Rabbi Menachem Mendel Schneerson, of righteous memory.

Click here to purchase the Chumash.
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