I have heard it suggested that the biblical book of Genesis is really just the story of a fractious family. That’s basically true, I suppose, and the family story told by the biblical text keeps on rolling this week in Parshat Vayishlach, telling the story of Jacob and Esau’s meeting to bury their father, Isaac.
It’s also one of a number of Torah portions in Genesis that includes a negotiating session. This one is, in some sense, a life-or-death dispute: the time for Jacob to reckon with Esau over the lost birthright has finally come.
I’m not all that interested in the story itself at the moment. I want instead to talk about something that legal education has made me sensitive to: bargaining practices. Let’s look at the negotiations that appear in Genesis and how the conduct of those negotiations gives readers literary clues and a bit of heightened drama in the associated stories.
(I need to note up front that many of the texts I discuss represent an ancient approach to notions of women’s lives and independence, and of social honor. I try to treat these in an even-handed manner, but I want to note at the outset that the texts’ approaches are not ones I share; the goal is to fairly describe the text and the assumptions laden therein.)
First, what negotiations am I talking about? Abraham negotiates for land with the Hittites. Jacob negotiates a deal for Esau’s birthright. He also twice negotiates for Rachel’s hand in marriage, and again for continuing to work for Laban. And Jacob will, again, bargain for his safety with Esau. Jacob’s sons will find themselves in a negotiation with Shechem and his tribe after the rape of Dinah. (I do not include negotiations with Yahweh in this; thus, Sodom and Gomorrah are not considered, because Genesis’s representation of “negotiating” with a deity isn’t quite the same, I think, as its representation of the nuts-and-bolts of deals over property between persons.)
Each of the successful negotiations has a similar structure: the negotiation begins; the weaker party in the transaction suggests a price, which the stronger party declines to accept; negotiation ensues, and a price is reached for the desired item.
Which negotiations in Genesis are successful? Abraham negotiating for Sarah’s tomb, and the final negotiation with Esau. They are successful because they allow both sides to save face. The others, I argue, failed, and failed for a reason: they were bargains that kept both sides from saving face. (Note that I don’t include the initial deal for Esau’s birthright to be a successful negotiation. More on that below.)
Consider Abraham’s negotiation for Sarah’s tomb, the Cave of Machpelah. Abraham indicates he wishes to buy land; the Hittites actually reject his offer–not because they are unwilling to allow Abraham to bury Sarah on Hittite land, but because they are willing simply to give him a plot. Abraham insists on payment, and insists on a specific piece of land. He names a price, but his price is again rejected. But Abraham insists on a price, and the deal is struck.
Who saves face here? Both parties. Abraham saves face because as the weaker party, he is forced to offer something to get what he wants. But in the face of apparent magnanimity–“we’ll give you the land!”–he is able to save face by showing that he can and will pay, making sure accounts are settled on both sides. The seller, Ephron the Hittite, also saves face by not immediately demanding payment and showing generosity in the transaction.
This, too, applies to the negotiation with Esau. The texts tells us that Jacob knows he and Esau will meet, and we read that Jacob is afraid of Esau–Jacob actually divides his camp and flocks into two groups so that, should Esau attack one, perhaps the other will survive. When the men meet, Jacob presents his camp as a way to gain Esau’s favor; Jacob also presents a portion of his flock as a tribute to Esau for this purpose. Esau and four-hundred men arrive, and Esau asks why Jacob has presented the flock to him. Jacob states it is to gain Esau’s favor. Esau rejects the gift, but Jacob insists, and, finally, Esau accepts.
Again, both parties save face. Jacob presents a purchase price for Esau’s favor; we might better read this as something more like Esau’s graciousness in not setting his 400 men upon Jacob and his family. Esau says he needs nothing and asks Jacob to keep the offered price. Jacob insists Esau take the animals, and the deal is struck. Having given part of the best of his flock to Esau, Jacob has in some sense repaid Esau for the loss of the birthright and its attendant blessings, and has saved face. Esau, too, has saved face by showing a willingness to forgive his brother’s prior impudence.
Note that I have not included Jacob’s initial bargain with Esau for the birthright–the episode with the lentil stew. It is clear from the immediately succeeding story that the exchange is by no means final: Jacob later tricks Isaac into giving him Esau’s blessings and birthright. That lack of finality is underscored by the predatory nature of the transaction over the lentil stew: Esau makes a request, and Jacob demands a price, rather than allowing Esau to save face by refusing payment. The absence of that step helps make the transaction not really final until both men are grown and Jacob pays the best of his flocks to Esau–that is, when Jacob finally pays Esau his birthright and blessing.
I also haven’t included the various times Jacob negotiates with Laban. There are facets of these negotiations that take them outside the successful model. Note how Laban opens the negotiations that lead to the promise to give Rachel to Jacob as a wife: he does not make an opening offer, but instead asks Jacob to name his price. It is only after he has Jacob fully on the hook–after he has deceived Jacob at the wedding–that Laban names his real “price” for Rachel: marrying Leah, seven years’ work, and another seven years’ work.
In the modern legal world, we could say that Laban does not negotiate in good faith. And we would be right–because he again tries to swindle Jacob when Jacob announces his plans to leave! Here, Laban asks Jacob to name a price, and then tries to sabotage Jacob’s flocks–a scheme that Jacob ultimately defeats so that, in the end, Laban gets neither the best of the flock nor any claim to Jacob’s wealth and that of Jacob’s family.
Laban’s approach to negotiation twice deprives both himself and Jacob of face-saving: Laban demonstrates no generosity, and affords Jacob no opportunity to show magnanimity. And ultimately, Laban’s negotiations fail, as his sons observe: “Jacob has taken everything that was our father’s, and from it has made all his wealth” (Gen. 31:1).
Finally, we have the negotiation of Shechem and his father, Hamor, with Jacob’s sons to allow Shechem to marry Dinah. Shechem rapes Dinah in a field and then decides that he loves her and wishes to marry her. He implores his father, Hamor, to arrange the pairing. Hamor’s opening offer? Please marry among us, “and I will give anything you say to me” (Gen. 34:11). That is, Hamor offers to pay any price–and forces an already-offended party to lose more face by having to name the terms of exchange.
You can see where this is going. The level of shame associated with the tribal offense of Dinah’s rape doomed the transaction (though of course Jacob’s sons afford themselves a chance to inflict some extra come-uppance before slaughtering Shechem’s tribe), though the absence of face-saving options for Jacob’s sons in the negotiation–forcing the “seller” to name a price–didn’t help matters.
Why am I rambling about this stuff? From a literary perspective, I think the bargains that don’t allow both sides to save face are cues for the original audiences of the text that the apparent result of the negotiation will not hold; they work as additional tension builders in the narrative. Laban’s bad-faith bargaining results in the loss of the assets he wished to gain–Jacob’s work and the attendant benefits to Laban’s own wealth. Hamor’s bargaining–whether performed in bad faith or simply out of gormlessness–leads to much worse.
As I’ve noted elsewhere, James Kugel has observed that in Abraham’s negotiation for the Cave of Machpelah, we get a view of the legal niceties of a particular kind of property transaction. I think there’s more to it than that.
Suppose you grew up knowing how transactions are or are not supposed to be conducted in this context and the central importance of both sides being able to save face. You then hear these stories told–complete with the mishandled negotiations–waiting for the other shoe to drop; it’s a nice build-up in the narrative. It adds particular tension to the story of Jacob, since, if you know the way to negotiate in this social context, you know matters are unsettled with Esau–and Jacob’s eventual completion of the transaction of the birthright in a satisfactory way adds dimension to the story, and adds an additional layer of cultural validity to the story of Jacob’s assumption of the role of lead son.
Those bad negotiations add not only foreshadowing, then, but tension to the stories in Genesis. As you read texts–of any tradition and genre–keep an eye out for traditional cultural markers and how they contribute to a deeper reading of the work. What you discover might surprise you!
Brilliant exegesis! I know lots of rabbis who also have a legal education, but I’ve never heard anyone open the text up in quite this way. I see I shall have to dig around in your entries to find your name, so that I may retell your drash b’shemro “in his [your] name.” Seriously good stuff. Thank you for posting it.
Oy–I only just saw this comment today! It got caught in a WordPress spam filter! (But you found me anyway. 🙂 ) Thanks again!
You’re welcome! 🙂