CHAYA SARAH - THE KINYAN REVOLUTION

July 16, 1999

“So Avraham bowed down before the members of the council.  He spoke to Efron in the hearing of the members of the council, saying: ‘Rather, if only you would heed me!  I give you the price of the field, take it from me, that I may bury my dead there.”  Genesis 23:12

Messechet Kiddushin begins by asking how we know that a man can marry a woman by offering her something worth money, such as by giving her the traditional wedding ring.  It answers that we learn it from a word appearing in two different phrases in the Torah, a mechanism known as a ‘gezerah shavah’.  In this case the common word is ‘take’ (kichah).  One phrase is ‘When a man takes a woman’ in marriage.  The other phrase is from the story describing Avraham’s buying a field from Efron (the Hittite) to serve as Sarah’s burial site.  Avraham says “I give you the price of the field, take it from me.”  The Gemarah then says that ‘taking is called an acquisition (kinyan)’, citing the verse “The field that Avraham acquired”, leaving us with the conclusion that an acquistion (kinyan) of a woman can be done with money.

There are some problems in understanding this compact piece of Gemarah.  First, as Tosfos mentions, the two ‘takings’ that make up the ‘gezerah shavah’ are not parallel.  You would expect that the ‘taking’ of the woman would be compared to the ‘taking’ of the field, and since the taking of the field was accomplished by money, that the taking of the woman can likewise the done through money.  But upon examination, we see that the phrase is not ‘Avrahom took the field’, but rather Avraham said to Efron ‘take (the money) from me’.  The taking of the woman is not compared to the taking of the field, but rather to the offering of the money.  Tosfos says this is an unusual ‘gezera shava’.  The Ritvah goes further and says that this lack of parallelism is so unusual that it’s not a ‘gezerah shavah’ at all, but rather is a ‘geliu milsa’ (revealed thing).   We can ask if there is any  significance in this unusual lack of parallelism, especially with regard to the subject at hand, namely ‘acquiring’ a woman with money.

The second problem appears when we look closely at the dialogue between Avraham and Efron.  Efron begins by offering the field to Avraham for free.  Avraham objects, and that is when he offers the money.  Only then does Efron name a price of 400 shekels.  The question is how could Avraham have offered money to Efron before a price was agreed upon? How much money was he offering Efron before they agreed on a price?

The third problem is understanding the phrase ‘taking is called an acquisition (kinyan)’. What taking are we referring to?  As we mentioned, it does not say that Avraham took the field, but rather that Avraham referred to the money saying ‘take it from me’.  How is this offering of the money called an acquisition (kinyan)?

In order to present a possible answer, we must review the historical context of the times.  A few generations before Avraham, the world was destroyed in a cataclysmic flood.  One of the main sins of the generation killed by the flood was ‘hamas’.  This was a form of stealing where a person says: “I like your cow, here’s $1 for it,  I’m taking it’.  One of the main sins of Sodom was robbery.  The medresh says that if a person couldn’t be arrested for stealing less than a certain amount (let’s say a dime’s worth), everyone would take just less than that amount from a merchant till everything was gone.   Kichah, taking, was the order of the day, and people lived by the dictum ‘Might makes right’.  People took what they liked whenever they liked, and ownership meant nothing if it couldn’t be backed up by force. 

With this background in mind, we can better understand the dialog between Avraham and Efron. When Efron offered his field, Avraham understood that the offer was in the context of the standard ‘kichah’ of the time, and that Efron would feel it was his right to take the field back if and when he felt like it. Avraham wanted his ownership of the field to be more durable. Therefore Avraham proposed to Efron the revolutionary idea of the kinyan, a kind of acquisition that meant permanent transfer of ownership.  A kinyan is radically different from the free-for-all takings (kichas) that were the usual practice.   In a kinyan, a buyer offers some money for the object he wants, and the seller can accept or refuse this purchase price.  If the seller rejects it, he retains the object.  If the seller accepts the purchase price, ownership is transferred to the buyer, and the seller can’t take it back whenever he feels like it.  The buyer now becomes the new undisputed owner.

When Efron first offered his field for free, this was based on the loose ‘kichah’ principal, where ‘kichah’s are not permanent, but things are taken at any time based on the current mood and relative strength.  In response, when Avraham responded with “I give you the price of the field, take it from me”, he wanted the offer and acceptance of money to symbolize a meeting of the minds, effectuating a permanent transfer of ownership.  At this point, Avraham wasn’t offering a specific amount of money, but was suggesting that he wanted more than a ‘taking/kichah’.  He wanted to make a kinyan on the property by his offering and Efron’s accepting an agreed upon amount of money.  Then Efron showed his agreement with this kinyan principal by naming a price he’d be satisfied with. Then when Avraham gave him the 400 shekels, it closed the deal, the kinyan was done, and the ownership was permanently transferred. 

When the Gemarah says ‘kichah is called a kinyan’, it can be loosely translated as ‘This kichah is what became known as a kinyan’.  This means that Avraham used a higher form of kichah called a kinyan, that is based on an offer and acceptance of an agreed upon amount of money. The kichah’s of the time resembled stealing because they could be  done against the owner’s will, but a kinyan can only be done with the owner’s acquiescence shown by his accepting the agreed upon purchase price.  When Avraham said ‘Take (the money) from me”, he was saying that he wanted the agreement on price and the transfer of money to serve as evidence of Efron’s willingness to part with the land in return for the money.  This, then, would become a permanent kinyan, and not a ‘might-makes-right’ kichah.

We can now understand why the ‘gezerah shavah’ is not parallel.  The gezerah shavah is comparing two complimentary kichahs, the taking of something and the taking of money in return for it.  These two kichah’s are complimentary halves that together make up a kinyan.  The gezerah shavah links the taking of a women with Efron’s taking the money, because Efron’s taking the money showed that he was totally willing to part with the field. This focuses on the important requirement that a man who wants to marry a woman must offer her money without even the hint of force.  Then the woman’s acceptance of the money represents her willingness to participate in this marriage, defining marriage in the model of Avraham’s new kinyan rather than the old brute-force kichah.

The Chumash gives many examples that ‘kichahs’s of women were the norm.  Dina was taken against her will.  Whenever Avraham or Yitzchak went down to Egypt, they were in danger of their wives being taken away from them.  Women were taken and re-taken whenever someone strong enough to do the taking came along.  Women could not refuse this ‘taking’, and it only lasted until another ‘taking’ took place. 

The Gezerah Shavah tells us that the phrase ‘When a man takes a woman’ must not be understood as the kind of ‘taking’ against a woman’s will that was the norm in those days.  Rather that kichah but must be linked to the ‘kichah’ where Avraham offered money for Efron’s field, allowing Efron to refuse or name whatever price he wanted.  When a price is suggested, offered, and accepted, the willingness on the part of both parties represents a kinyan that bears no resemblance to the kichah-stealing alternative.