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30.10.2018 09:26    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  genesis  chayei sarah  

The Purchase of Machpelah and Natural Law

After Sarah’s death, Abraham sought a suitable burial place for her and turned to the Hittites, Ephron in particular, in order to purchase the cave of Machpelah from him.  Family burial was the practice in those days, and Abraham wanted a separate burial place where he, too, and his offspring carrying on his tradition would be buried when the day came.

The Torah describes in lengthy detail his choosing of the place and the process of negotiation to acquire the plot—something which has caused many commentators to wonder.  Inter alia, we must ask why both parties spoke of “giving,” as if a gift were at issue, even though it is clear that this was a sale.  Also one wonders how Abraham had not seen to securing a burial site earlier, before Sarah’s death.

These questions and others are answered in Or ha-Hayyim,[1] addressing the text at hand:

Resident alien…” (Gen. 23:4):  His reason for claiming resident alien [status] accords with what Maimonides wrote in Hilkhot Zekhiya u-Matanah, as follows:  A gift may be given to a resident alien without charge, for you are commanded to sustain him in life, as it is written (Lev. 25:35), “a resident alien, let him live by your side.”

This is intended to explain, among other things, why Abraham referred to himself as a “resident alien” when addressed the Hittites, a phrase that has a certain redundancy and internal contradiction, insofar as aliens had a different civil status from residents in those days.  The author seems to be saying that Abraham wanted the status of a resident because of the restrictions on aliens acquiring real estate.  Abraham was saying that while of foreign origin, he had satisfied the requirements that would make him eligible for the status of resident.

Here we present Maimonides’ rule in its entirety (Hilkhot Zekhiyah u-Matanah3.11):

It is forbidden for a Jew to give a gentile a gift without charge.  He may, however, give such a gift to a resident alien, as implied by Deuteronomy 14:21:  “Give it to the stranger in your gates to eat or sell it to a gentile.”

To a gentile, it must be sold; it may not be given.  To a resident alien, by contrast, it may be sold or given.  The reason for the distinction is that we are obligated to sustain the resident alien, as implied by Leviticus 25:35:  “A resident alien, let him live by your side.”

This means that a Jew is forbidden to give a gentile—a total alien—a gift free of charge; but he is permitted to make a gift to a resident alien, someone who has accepted the seven Noachian commandments (Maimonides, Hilkhot Aku”m 10.6).  It appears that Rabbi Hayyim ben-Atar assumed the Hittites had similar civil laws.  Further on, he follows Maimonides in order explain other difficulties in this narrative.  The connection between the rules of halakhah in Maimonides and the laws of the Hittites is explained by Rabbi ben-Atar using an historical-rationalistic argument (Or ha-Hayyimloc. cit.):

You should bear in mind that our sacred Torah is entirely rational, especially as concerns earthly behavior.  As we behave towards the alien who resides in our midst, so too would rationality require of the residents of the land to act among themselves and to sustain any person who is a resident alien among them, giving him a gift free of charge.  Such was Abraham’s contention:  “I am a resident alien among you; give[2] me…” (Gen. 23:4).  He was careful to say “alien” not just resident, to point out:  Even though I am an alien and not one of you, nevertheless I am a resident!

Ben-Atar is saying here that even though the Torah was received by way of divine revelation at Mount Sinai, nevertheless its laws as regards “earthly behavior,” i.e., the laws governing relations with one’s fellows, are rational and accord with what we call “natural law.”[3] Hence it was reasonable for Abraham suppose that the Hittites in Canaan also followed these laws.  Although he did not say so explicitly, perhaps Rabbi H. Ben-Atar was of the opinion that the object of this narrative was to teach us by concrete example that the laws of the Torah are indeed “rational,” the proof being that other nations also do the same.[4]

Rabbi H. Ben-Atar based this interpretation on the principle that the Torah is rational and that it shares the same reasoning as natural law as far as civil laws are concerned.  According to Maimonides, the law provides that an alien who accepts the seven Noachian commandments is elevated to the status of “resident alien.”  According to Ben-Atar, other nations, including the Hittites in Canaan, had a similar principle to ours, that accepting the laws of the locality confers rights of citizenship.

On what, according to Or Ha-Hayyim, did Abraham base his claim that even though he was of foreign origin and hence “alien,” nevertheless the Hittites should recognize him as a “resident,” whose status is nearly that of a citizen and thus would make him eligible to receive a burial place?  Moreover, even if natural law was on his side, why did Abraham expect that the Hittites would follow this law?  Even though Abraham had resided in Hebron for twenty-five years of his life, another twenty-six years had elapsed since then, and when Sarah died he was residing in Beersheba (see Rashi on Gen. 31:34).  Had he indeed been counting on the generosity and magnanimity of his pagan neighbors and therefore not bothered to see to the acquisition of a burial beforehand?

The answer is that Abraham indeed accepted the local laws, actively obeying them, and that he treated the local residents well, even going beyond the letter of the law.  All this is described in Genesis chapter 14.  He risked his life fighting the alliance of the four kings, defeated them, freed the residents of Sodom from captivity, gave a tithe to Melchizedek, and contrary to the suggestion of the king of Sodom, “Give me the persons, and take the possessions for yourself” (Gen. 14:21)—which apparently was the local practice—did not take for himself “so much as a thread or a sandal strap” (Gen. 14:23), save for “what my servants have used up, and the share of the men who went with me” (Gen. 14:24), since it was not his prerogative to forego that.  Abraham’s claim of “resident alien” status, making him eligible to acquire the cave of Machpelah as a burial place, was supported not only by the law, but also by the gratitude owed him and the mutual benefit.

A similar basic approach appears in the book, Ba`alei Brit Avram,[5] presenting explanations for other difficult points in this narrative, such as referring to an obvious sale transaction as a gift.  The explanation he gives is halakhic—the desire of the parties to consider the sale as a gift so that the laws of bar-mitzra would not apply, giving Ephron’s neighbors the right to cancel Abraham’s purchase on the grounds that they have prior rights to purchase it for themselves.  The assumption is that the law of bar-mitzra,[6] too, is logical and hence universal and included in Hittite law, just as it is in the Talmud.

Interestingly, these two clearly kabbalistic figures took an approach here which appears purely rationalistic.

Translated by Rachel Rowen

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