Purchase of the Cave of Machpelah

Abstract

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 amatana 'al menat lěhahzir(gift made on condition that it be returned—cf. Succa41b); 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 lěhahziris 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.