Cheating the Jews, From Efron to UNESCO

It was precisely claims 3,000 years in the future that Avraham Avinu feared when he set about purchasing Me’aras Hamachpelah, according to the Ohr Hachaim Hakadosh.

The modern equivalent of Efron, the symbol of deceit and treachery, managed to fool him anyhow.

In a remarkably detailed discussion in Parashas Chayei Sarah, the entire give-and-take regarding the purchase of Me’aras Hamachpelah, the fields surrounding it and the trees on it are hashed out in great detail. Every contingency is taken into account, every disgruntled neighbor, any unforeseen claim.

Avraham Avinu knew the lowly soul of Efron, greedy for money and power, standing before him. But he could not have foreseen an international body unilaterally declaring the site he had just bought to be the property of a people millennia away from being dreamed up.

The dialogue begins with Avraham Avinu letting out the word that he is interested in an “eternal” burial site for his recently deceased wife, Sarah. It continues with the Chittim acting as the middlemen between him and Efron, and Efron’s Moroccan bazaar tactics. The exchange ends with Avraham Avinu paying an outrageous sum and, as the Torah records for posterity, the cave, the fields around it and the trees entered into Avraham’s — and his descendants’ — possession.

Ironically, two days after the U.N. cultural agency’s shameful resolution was the 241st yahrtzeit of Harav Chaim ibn Attar, zt”l, the saintly Ohr Hachaim Hakadosh. In his unique style, the Ohr Hachaim proves definitively that Efron’s sale would stand up in a modern court of law.

In an extraordinary take on the pesukim documenting the sale, he demonstrates how every halachah governing mechiras karka, the sale of real estate, is held up in its entirety.

The sale of property is subject to many halachos, some of which can invalidate the sale retroactively after the land has been in the possession of the buyer for years. Among these are the laws of metzra, she’ibud and onaah.

The rule of metzra, or a land border, is a simple one. Suppose Mr. Cohen and Mr. Levy are immediate neighbors on Elm Street. If Mr. Cohen decides to sell his property, Mr. Levy would have the first right to place a bid on it. And as long as the bid is not topped by someone else, he gets it.

The rule holds fast even if the land was sold already to someone else; Mr. Levy would be able to demand it back from the buyer.

The rule of she’ibud — a lien — is that when someone takes out a loan and writes an IOU on it, signed by a witness, then all real property in his possession at the time becomes collateral for the loan, to ensure its repayment.

Just as the borrower cannot evade his responsibilities to repay his obligations, so does the lien remain in effect — even if it has now been sold and is in the possession of, say, Mr. Zevulun. The land is taken away from Mr. Zevulun and he has no other recourse but to go back to the seller and try to get back his money.

Avraham Avinu was worried that after the purchase of Me’aras Hamachpelah, the Chittim would annul the sale through one of the above deal-breakers. Suppose one of Efron’s neighbors were to complain afterward, or a creditor of Efron were to take possession of the cave as payment for an unpaid debt?

Avraham Avinu’s only available route was through another rule mentioned in Shulchan Aruch, which is that if Mr. Levy, the neighbor, or his creditor were to have facilitated the original purchase of land, they forever lose complaining privileges.

Avraham therefore gathered together all the Chittim: “And he spoke to all the children of Ches, saying,” meaning that he made them middlemen in his negotiations with Efron.

Now that those hurdles were out of the way, Avraham Avinu tackled the next one — onaah.

Without getting into all the complex halachos involved in onaah, the basic premise is as follows: Suppose Mr. Cohen buys a product and then finds out that it was grossly overpriced. If it was 20 percent more than the going rate, he is entitled to a refund of the extra money; if the percentage was more than that, he can cancel the sale entirely. Conversely, if the sale was underpriced, the seller then has the advantage.

However, this halachah pertains only to moveable items. In real estate, since all prices are relative (some people would pay any price for a small parcel of land), there is no onaah.

But Tosafos quotes a Yerushalmi that states that there is onaah in property — if it was overpriced by 50 percent. Avraham Avinu wanted to make sure that the Chittim would not come to him later with that Yerushalmi in tow, so he employed specific language in the sale to exempt it entirely from onaah, as we will soon see.

An additional concern: What if Efron were to find out that the property was worth much more than the price he received, given that Adam and Chavah were buried there. What about the rule that ta’us l’olam chozer, one can always back out of a mistaken sale?

So Avraham said, “And he should ‘give’ me the Me’aras Hamachpelah.” Note the term “give,” which connotes a gift, as opposed to “sell,” which was supposedly Avraham’s intent — to buy the cave. By calling it a gift at some times and a sale at others, Avraham Avinu was saying that he wanted to buy the land with a kinyan, a transaction, that is a combination of both.

The method of doing that is by using chalipin — literally, a swap. In chalipin, a buyer’s goods are “traded” with those of the seller. An acquisition made using chalipin is not based on the actual worth of the property.

This may explain a Gemara in Bechoros which states that the “shekalim” Avraham gave Efron were actually merchandise — these were used to employ chalipin, since money can’t be used for the kinyan of chalipin — removing the obstacles of onaah and mekach ta’us.

Now we come to the acquisition itself.

When a Jew and non-Jew conduct a real-estate transaction, there can be a major halachic problem. A Jew’s method of sale is with chazakah, making an improvement to the land, while a non-Jew’s would be with money. Once the non-Jewish seller receives the money, he releases his ownership and the property becomes hefker until the Jewish buyer, or anyone else, performs chazakah.

In a regular transaction, as soon as the buyer asserts ownership over the land, it becomes his. But in this case Avraham Avinu was taking property that was hefker, ownerless, since Efron had already relinquished his property when he received his money.

How did Avraham actually make the kinyan?

The passuk answers, “And after that Avraham buried his wife Sarah.” The Maggid Mishnah gives two opinions on how one must improve hefker land in order to acquire it: He must use the ground itself — by sitting on it, for example — or he must improve it by building on it, paving it, or other such means.

Now, according to the first opinion, Avraham Avinu’s purchase was effected when he covered Sarah’s body. According to the second view — in ancient times people were buried directly in the wall instead of being interred in the ground as they are today. The cementing needed to firm up the area constituted the kinyan.

The Ohr Hachaim notes frequently that in laws of Choshen Mishpat, halachah and secular law align. It is also well known that the origin of modern international laws governing property is derived from halachah (an article for a different time).

According to this explanation of the Ohr Hachaim, it is clear that Avraham Avinu’s purchase of Me’aras Hamachpelah as an achuzas kever, an “everlasting gravesite,” was a full acquisition in every way — both halachically and under prevailing secular law.

UNESCO, call your office. Efron’s lawyer is on line 2. He wants a cut.