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How Esau Sold his Birthright

Published online by Cambridge University Press:  16 January 2009

David Daube
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Extract

Wherever there exists any kind of administration of justice, people will soon realize that a man who makes, or receives, a declaration has to be very careful if he wants to be quite sure of its ultimate legal effect; and the same, of course, is true of all manner of legal business. A man may believe that the promise he is giving has one meaning, but later be told by the judge that it has another; or he may enter into an agreement on the assumption of the existence of certain facts, which afterwards turn out not to be as assumed. There are many ways in which such a discrepancy between verba and voluntas, or letter and spirit, or act and intent, can come about; and a not infrequent one seems to be that the two parties to a contract wish to cheat one another. Very naturally, the temptation to take advantage of a person's lack of forethought must be particularly great in an age when it is permissible to interpret the words of an agreement in a strict and narrow fashion, and when a formal undertaking is considered valid no matter by what trickery you have been led to give it. The Spartan king, Cleomenes, concluded a truce with Argos for thirty days; but he broke it by night, the truce having been made for thirty days. Q. Fabius Labeo, for the Roman senate, arbitrated a boundary dispute between Nola and Naples. He interviewed the parties separately, appealed to their generosity and induced them to make substantial concessions. In the end, there was a large strip of territory left between Nola and Naples, which Labeo awarded to Rome. By the time of Cicero, both these cases were regarded as cases of fraud and as illustrating the maxim summum ius summa iniuria. The history in Roman law of the problem of verba and voluntas has been the subject of much discussion during the past few years. I may, perhaps, be forgiven for drawing attention to a Biblical narrative which is dominated by this problem, though the commentators do not appear to have noticed it. It is the story of the sale of his birthright by Esau.

Type
Research Article
Information
The Cambridge Law Journal , Volume 8 , Issue 1 , March 1942 , pp. 70 - 75
Copyright
Copyright © Cambridge Law Journal and Contributors 1942

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References

1 Cicero, De Officiis, I, 33.Google Scholar

2 Some Comparative Law—Furtum Conceptum, Tijdschrift Voor Rechtsgeschiedenis, 1936, pp. 51ff.Google Scholar

3 They may well have chuckled even over such details as that whilst Jacob's stratagem was to act his elder brother, he in his turn was deceived by Leah's acting her younger sister.

4 There is yet a further narrative worth mentioning in this connection, which, though the case recorded is neither one of error nor one of strict interpretation, does clearly presuppose the absolute validity of solemn pronouncements. I am referring to Jacob's wrestling, in a lonely night, with a mysterious stranger. Towards morning, the stranger asked Jacob to let him go (spirits of the night must vanish at dawn). Jacob, however, held him fast till he had extracted a blessing from him. The blessing was none the less valid for being given under duress.

5 Even if it were, the narrative would still furnish an example (somewhat parallel to that considered in the preceding footnote) of a declaration being valid though made under great stress.

6 In this case emendation seems particularly rash, since, according to the Bible, it was because of his use at that juncture of the word ‘red,’ ‘adom’ ‘that Esau received the name’ Edom.

7 Isaiah, , 63. 2Google Scholar; II Kings, , 3. 22.Google Scholar

8 We must not ask why Esau, if he thought it was blood-broth, did not explicitly state that he wanted blood-broth. For had ho dono so, there would have been no story to tell: the word ‘blood-broth’ would have appeared in the agreement, and Jacob in that case could not of course, have performed his part by serving lentil soup. As it was, Esau bought ‘that red, red dish,’ when, on the letter of the contract, Jacob's position was safe. One need only glance through DrWilliams, Glanville' Advice to ShoppersGoogle Scholar, The Law Journal, 1941, with his injunctions ‘Do not point, buy by description, state fully the purpose for which you require the article,’ to see what an enormous difference it would have made if Esau had expressed himself more accurately and how shockingly careless he was.

9 De Officiis, III, 58f.Google Scholar

10 There is an interesting stylistic parallel to this, ‘and he ate and drank and rose and Went, and thus Esau despised his birthright,’ in I Samuel, , 28, 25Google Scholar. The narrative of Saul's visit to the witch of Endor, full of the most dramatic events, there ends with the words, ‘and they ate and rose and went in that night.’

11 Needless to repeat, the case of Leah replacing Rachel in the night of the wedding is precisely analogous.