This coming Shabbat, the synagogues will read the "Life of Sarah" section, which details the purchase of the Cave of the Patriarchs by our forefather Abraham. This purchase is mentioned in the Torah in great detail. Unlike, for example, the purchase of the field in Nablus by Jacob in the year 31 [Genesis 33:19], in which no mention was made of the method of purchase other than the price, here there is a dialogue of offer and acceptance, and the rituals of bowing down and renouncing the price, which were common in the land of Canaan at that time. We will try to outline the main points.
Who are the "people of the land", and what is their role?
The purchase was by Ephron ben Zohar the Hittite, but the main body active in all negotiations is called "Am Ha'aretz." In contrast to the current use of the term "Am Ha'aretz" (a derogatory term for an uneducated person), in the Bible "Am Ha'aretz" is a term for a body composed of elders who manage the affairs of the community.[1]. That is, according to ancient Canaanite law, Ephron could not sell a perpetual lease of land to a foreigner without the approval of the elders of the community.
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Moreover, purchasing a burial plot for the sake of a burial plot was even more serious, since the Canaanites believed in the survival of the soul and an afterlife. The importance of a person's burial place is evidenced by this belief. A person who returns to the dust in a certain place, in a certain land, and in a certain inheritance, is commanded to belong to that place. However, Abraham lived in Ur of the Chaldeans in the north, between the Tigris and Euphrates rivers, and in order for him to be able to purchase a burial plot for himself and his family, he had to first and foremost be accepted as a full-fledged resident by the Hittites. This was done by applying and receiving the application.
It is said that from now on, Avraham had to receive two permits in total, a permit for burial in the land and a permit for the permanent purchase of land.
In this way, the entire biblical ceremony will be interpreted, starting with Abraham's first address to the governing body "the people of the land" to receive their approval for burial: "Give me a burial place among you" [23:4] - a general request for an unspecified purchase. Upon his acceptance into the bosom of the Hittite family, with their response: "In the choice of our graves bury your dead" [23:6], he bows as a sign of appreciation for this, and perhaps also as a sign of acceptance of their authority as a resident of the place and their new subject.
Only after that does he request to purchase a specific place and now applies for permission to purchase land permanently. "Hear me and harm me with Ephron ben Zohar, etc." [23:9]. The presentation of the request with the approval of "Am Ha'aretz" as an executive body, had to be preceded by a "Ba'i Sha'ar Iru" gathering of all the people of the place - the citizens who have the right to elect "Am Ha'aretz" as a legislative body. Therefore, the answer does not mention a consideration, because its main purpose is an agreement to sell land within the jurisdiction to a foreign citizen, who simultaneously requests to be accepted as a citizen of the place "The field I give you and the cave that is in it I give you" [23:11].
Only then does Abraham offer the money for the purchase and the actual purchase is made. In this regard, it should be emphasized that Ephron's response to waiving the purchase was merely ceremonial according to Canaanite custom, in order to show that there is no price for land, as a limited essential resource, as befits an ancient agricultural society. Let us recall that for this reason, according to the Torah, there is a general prohibition against permanently selling land within the boundaries of the Land of Israel, and according to the Sages [Mishnah Babylonian 22:17], "There is no fraud in land" since it has no intrinsic monetary value and any price is artificial, since a person will give any money for land.
Amount of consideration
Four hundred shekels of silver was a great fortune at that time. For comparison, in the laws of Hammurabi dating back to those days, a laborer's salary for a whole year was six to eight shekels of silver! In other words, a monthly salary is about half a shekel of silver and the consideration for the field and the cave is therefore equal to 800 monthly salaries and in today's terms, even if we calculate according to the minimum wage, we have reached a sum of about 4,000,000 NIS!
And the field was established.
Only after the money for the consideration is weighed into the hands of Ephron at the IN PERSONAM level, at the personal level, is the ownership completed at the IN REM level - towards me, I am completely ignorant. This is expressed in the words "And the field of Ephron... became Abraham's for a possession in the sight of the sons of Heth" [23:17-18]. The need for the public nature of the transaction was to prevent any dispute over the transaction and to establish the transfer of ownership without any need for continued possession.
Here it is important to emphasize that the first purchase of land in the Land of Israel, which marks the beginning of the fulfillment of the promise of the land to Abraham and his descendants after him, was a purchase for a "burial estate," because it is a type of perpetual purchase that indicates the deceased's belonging to the land, because the soil will return to the place from which it was first taken, and so on.
Then and now
Several points of comparison can be found between the purchase of the Cave of the Patriarchs back then and real estate owners today, but on a principled level, most of the barriers that required the ritual detailed in the Bible to remove no longer exist.
Let's start from the end.
It is clear that even today, there is a clear dichotomy between the two stages: the contractual part between the seller and the buyer and the proprietary part that ends with the public auction of the land registry. The contractual part today also consists of an offer and acceptance and negotiation that is not much different from what is described in the text. However, today there is a need for a written document, but there is no need for witnesses as required by Jewish law from the time of the Mishnah and the Talmud.
Even today, there is a need for public transaction in order to establish ownership at the proprietary level that operates towards a third party, after the completion of the contractual part between a person and his friend and the actual execution of the agreement, the main purpose of which is the payment of consideration. However, this procedure is not carried out in front of an audience with a committee, but in a carefully managed registry, a registry open to the public with a committee.
On the other hand, there are currently no restrictions on the acquisition of ownership of real estate within the Land of Israel by non-residents, except for Israel Lands Administration lands, which were once private entities that purchased land in order to settle Jews in the Land of Israel. Therefore, the sale (of lands owned by the Israel Lands Administration) is carried out only to those who have the right to immigrate to the Land according to the Law of Return - which currently amounts to the fact of being born to a Jewish mother or having converted legally, but with the new Conversion Law, time will tell.
Various restrictions on the acquisition of land for burial still exist today, but for reasons of planning and construction, of regulating a specific and limited place for burying the dead, and due to the fact that it is a permanent use that prevents any other use of the land in the future.
What was is what will be. That is, the principles of negotiation, contractual purchase, and the transition to the proprietary phase remained as they were, with the technical changes required by time and period.
The writer, attorney Eliyahu Schwartz From the office Wolfson Weinstein & Co., Specializes in real estate.
[1] Most of the times the phrase is mentioned in the Bible, it refers to a judicial-administrative body, while in a few places it refers to the entire people or the residents of a specific place. In the language of the sages from the Second Temple period, the nickname became synonymous with ignorant and uneducated.
