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Purchase of the Cave of Machpelah*

Published online by Cambridge University Press:  12 February 2016

Raymond Westbrook
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Extract

The lengthy report in Genesis 23 of the negotiations and subsequent purchase of the cave and field of Machpelah is problematic from the legal point of view. On the face of it, Abraham obstinately insists on paying for what the Bnei Heth and Ephron wish to give him free. If one is not to dismiss the bulk of the report as niceties of oriental bargaining, as do most non-legal commentators, then complex problems of relating the transaction to the provisions of a coherent legal system arise. For this reason it is impossible entirely to separate the question of the legal source of this passage from the problems of its content. Consequently the first section on material legal problems of the text includes a consideration of some of the possible sources, while those relating to aspects of form alone are treated separately.

Assuming the legal background to be that of Jewish law, Melamed interprets the transaction as a gift-transaction, not by the Bnei Heth, but also by Abraham. The problem is that Abraham being a “stranger and sojourner”, as he declares in v. 4, he is unable to buy land for burial. In order to avoid this prohibition, the transaction takes the form of mutual gifts. But if all that is needed is a gift in order to make his acquisition possible, it seems strange that Abraham refuses Ephron's offer in v. 11 and insists on giving money in return, which looks suspiciously like an offer to purchase. Melamed proposes, therefore, that Abraham did not in fact want to receive a real gift, because he feared that the giver meant a matana 'al menat lěhahzir (gift made on condition that it be returned—cf. Succa 41b); he thus in v. 13 requests Ephron to take his money first, and only afterwards will he bury his dead. However, the Talmudic matana 'al menat lěhahzir is a subtle concept, the product of a well-developed legal system, and it is difficult to relate it to the presumably quite primitive legal system of the patriarchs.

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Articles
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Israel Law Review , Volume 6 , Issue 1 , January 1971 , pp. 29 - 38
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1971

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References

1 “Cette scène est dans le genre des longues transactions orientales, où l'on offre pour rien avant d'exiger une somme exorbitante”. De Vaux, : Dictionnaire de la Bible (Suppl.), Vol. V, p. 619, col. 1.Google Scholar On the generally accepted assumption that 400 shekels was an exorbitant price we may only comment that any conclusion about the price is altogether impossible. Without knowledge of the contemporary value of money or the size of the land, we lack the barest criteria for assessment. Furthermore, the ‘bargaining’ does not appear to be over the price, as one would expect. An unhappy attempt at comparison with an Old-Babylonian letter from Mari (Archives Royales, Vol. 20) is made by Speiser, in Israel Life and Letters (1953), pp. 56–59.Google Scholar

2 “Purchase of the Cave of Machpelah” (in Hebrew), (1942) XIV Tarbiz, 11–18.

3 Citing Is. 22: 16 for this proposition.

4 “No, my lord, hear me: I give you the field, and I give you the cave that is in it; in the presence of the sons of my people I give it to you; bury your dead.” (Revised Standard Version—R.S.V.).

5 V. 13: “…But if you will, hear me: I will give the price of the field; accept it from me, that I may bury my dead there.” (R.S.V.).

6 Op. cit., note 2, at p. 7.

7 Gen. 47: 16–17. cf. the expression “to acquire for money” for “to buy”, which is well attested: Gen. 17: 12 ff.; Ex. 12: 44; Is. 43: 24.

8 Loewenstamm, , in Encyclopedia Miqrait (in Hebrew) vol. V, 617.Google Scholar For examples of former: Mémoires de la Délégation en Perse, Vol. XXIII, 283: 7; and of latter: (1957) 38 Biblica, 245, II: 3, III: 6.

9 “Machpelah and Hittite Law”, (1953) 129 Bulletin of the American Schools of Oriental Research, 15–18.

10 On the Hittite Laws in general, see Neufeld, , The Hittite Laws, (London, 1951).Google Scholar

11 Loewenstamm, op. cit.; see also Speiser, Genesis (Anchor Bible) 172; Bruce, , “The Hittites of Canaan”, New Bible Dictionary, 529.Google Scholar

12 Levy, , “Les ventes dans le Bible, le transfert de propriété et le Prinzip der notwendigen Entgeltlichkeit”, Mélanges Meylan, II, 157–167.Google Scholar For a general history of this theory and its application to other ancient legal systems, see Seidl, , Aegyptische Rechtsgeschichte der Saiten- und Perserzeit, 45–6.Google Scholar

13 This reluctance to accord full ownership to the buyer until the price is paid is evident in modern systems as well; e.g., Art. 2103 of the Code Civil, which accords the vendor a “privilège”, a right in rem over immovable property for payment of the price. The unpaid vendor's lien in English Law may be regarded in the same light. See Levontin, , “Debt and Contract in the Common Law,” (1966) 1 Is.L.R. 60.Google Scholar

14 “…and Abraham weighed out for Ephron the silver which he had named in the hearing of the Hittites, four hundred shekels of silver, according to the weights current among the merchants. v. 17. So the field of Ephron …was made over to Abraham as a possession…” (R.S.V.).

15 Jos. 24:32: “The bones of Joseph, which the people of Israel brought up from Egypt were buried at Shechem, in the portion of ground which Jacob bought of the sons of Hamor the father of Shechem for a hundred pieces of money: it became an inheritance of the descendants of Joseph.” (R.S.V.).

16 Cf. Seidl, op. cit., 45: “…das Recht will im ‘Eigentum’ vor allem der Kapitalwert fuer den Eigentuemer schuetzen…Gibt er also eine Sache aus der Hand, so bleibt sie sein Eigentum bis er ein richtiges Entgelt dafuer in sein Vermoegen bekommen hat.”

17 V. 22. Note also ana šimim gamrim and bedamin gemarin mentioned above.

18 An edict of Hattusili III forbidding merchants to acquire land at Ugarit (P.R.U. IV, pp. 103–105) has been linked with the case of Abraham as a foreign merchant. Gordon, , “Abraham and the Merchants of Ura”, (1958) 17 Journal of Near Eastern Studies, 28.Google Scholar Compare also the provision of the XII Tables Adversus. Hostem. Aeterna. Auctoritas. preventing a foreigner from obtaining by prescription the right of possession to the property of a Roman.

19 Op. cit., p. 619, col. 1.

20 E.g., Nu. 27:4; Ez. 45:5; Lev. 25:41; Jos. 21:12; 2 Ch. 31:1.

21 Gen. 49:30; 50:13.

22 V. 9: “that he may give me the cave of Machpelah, which he owns: it is at the end of his field. For the full price let him give it to me in your presence as a possession for a burying-place.” (R.S.V.).

23 Cf. Perrin, , “Trois textes bibliques sur les techniques d'acquisition immobilière”, (1963) 41 Revue historique de droit français et étranger, 6–19.Google Scholar

24 Lehmann, op. cit., p. 17.

25 Rabinowitz, , “Neo-Babylonian Legal Documents and Jewish Law”, (1961) 13 Journal of Juristic Papyrology, 131Google Scholar; Petschow, , “Die Neubabylonische Zwiegespraechsurkunde und Gen. 23”, (1965) 19 Journal of Cuneiform Studies, 103–20Google Scholar (refuting Rabinowitz' theory of reception from Jewish Law); Tucker, , “The Legal Background of Gen. 23”, (1966) 85 Journal of Biblical Literature, 77–84.Google Scholar

26 Tucker, op. cit., 79.

27 Petschow, op. cit., 117.

28 V. 15: “My lord, listen to me; a piece of land worth four hundred shekels of silver, what is that between you and me? Bury your dead”, v. 16. Abraham agreed with Ephron; and Abraham weighed out for Ephron the silver which he had named … v. 17. So the field of Ephron…was made over v. 18. to Abraham…, So Tucker. Petschow attempts to insert the whole of the negotiations into the “dialogue document” pattern, but there is bound to be an overall similarity since the dialogue document purports to summarize actual negotiations and agreement.

29 Gen. 23:20; 25:9–10; 49:32.

30 Palais Royal d'Ugarit, vol. III.

31 “L'intervention de l'autorité publique dans les actes de droit privé”, ibid., pp. 283–293 at p. 285.

32 Op. cit., p. 291. “Nous nous trouvons ainsi en présence d'institutions identiques ou analogues largement diffusées dans le Proche Orient pendant la seconde moitié du Ile millénaire.” Cf. a Kudurru stone from the reign of Marduk-Nadin-, which tells us that the land was bought by one Marduk-naṣir from Amel-Enlil, the son of Hanbi. But later the prospective claimants who are cursed include one who says “The lands were not the gift of the king” (King, , Babylonian Boundary Stones in the British Museum (1912), No. VII, col. II, 1. 7.).Google Scholar

33 Cf. Tucker, op. cit., 84.

34 Note also the expression 'over lasoḥer which has a direct parallel in the Old Babylonian technical term illaku—”the current rate”, e.g., Codex Eshnunna sec. 41.