“And [Avraham] spoke to the Hittites, saying: ‘I am a stranger and a dweller with you” (B’reishis 23:3-4). In order to explain how Avraham could claim to be both a “stranger” and a “dweller” if the former connotes someone who is not currently where he lives while the latter refers to someone who is, Rashi first suggests that he was referring to both his original status, as he was a “stranger” when he arrived in Canaan, and his current status, as he currently lived there. Rashi then paraphrases the approach of the Midrash (B’reishis Rabbah 58:6), that Avraham was giving them a choice: “if you want, I will be considered a stranger, and if not, I will be a dweller and take it by law, for G-d said to me, ‘to your descendants I will give this land.” The commentators ask how Rashi could say that the land belonging to Avraham if he had explained (13:7) the rift between Avraham’s shepherds and Lot’s shepherds to be based on whether or not the land already belonged to Avraham, with Avraham not allowing his shepherds to graze on private property because the land was not yet given to him. Did the land already belong to Avraham or not? How could he have not corrected his own shepherds (thereby preventing a separation from Lot) if it did, or told the Hittites it did if it really didn’t?
The most common answer given is that since the land was promised to Avraham and his descendants, and at the time of the disagreement between the shepherds, he did not yet have any descendants, the land was not yet his. On the other hand, after Yitzchok (who was obviously his descendant) was born, the land became his; the land had therefore already belonged to him for 37 years (Yitzchok’s age when Sara died) when Avraham asked the Hittites to sell him a burial plot.
Others ask several strong questions on this approach. For example, Nachalas Yaakov (23:4) points that the “descendants” mentioned in the promise referred to the generation that entered the land after the exodus from Egypt, not to Yitzchok; since the land never belonged to Avraham in his lifetime, he couldn’t have insisted that a burial plot for Sara was already his. B’reishis Rabbah (41:5) says explicitly (paraphrasing G-d), “I said to [Avraham], ‘to your descendants I have given it’; [i.e.] when the seven [Canaanite] nations are uprooted from within it.” Until then, though, the land did not belong to Avraham, not when Lot’s shepherds wanted to graze on it nor when Avraham wanted to bury Sara in it. Additionally, Avraham kept his animals muzzled even after Yitzchok was born (see Rashi on 24:10), to the extent that everyone knew they were Avraham’s animals because of their muzzles (indicating that he must have always kept them muzzled, even at home in Canaan). If the land became Avraham’s after Yitzchok was born, why would he have to prevent his animals from grazing on land that he owned? B’er BaSadeh (13:7) adds that the Talmud (Sanhedrin 90) “proves” that the dead will be resurrected from the fact that the land was promised to our forefathers, yet they never actually owned it while they were alive (thereby necessitating resurrection in order for G-d to be able to fulfill His promise to them). If our forefathers never owned the land, how could Avraham have told the Hittites that the land was his, to the extent that they must give him a plot to bury Sara?
Although B’er BaSadeh references Nachalas Yaakov’s discussion of the issue before providing his own answer, their approaches are quite similar. Without getting into the technical details, they both say that Avraham never had full rights to the land, so couldn’t benefit from its produce (or grazing land) without paying for it, but his stake in the land, either because his descendents would eventually own it (Nachalas Yaakov) or because he did own it but it was “on loan” to the Canaanites until his descendents came out of Egypt and reclaimed it (B’er BaSadeh), gave him the right to bury his dead on land that was not agriculturally useful. This was true before Yitzchok was born too; the shepherds were fighting over the ability to graze on the land, which Avraham did not have the rights to. [This would explain why Avraham only asked for the cave, but never mentioned buying the field attached to it; Avraham knew he had no right to the field itself. Efrone may have insisted that the field be part of the sale precisely because giving/selling him only the cave meant tacitly accepting Avraham’s true or eventual ownership of the land.]
Nevertheless, even if Avraham did own the land to the extent that he had the right to bury Sara in it, how could Avraham have “taken it by law” based on G-d having told him that it was his? Did Avraham plan on taking Efrone to a Hittite court (or tribunal) and expect it to rule in his favor, that the land really belongs to him, not Efrone (and by extension that he owns all of Canaan)? Did he think he could take it by force, and was threatening to do so if Efrone didn’t sell it to him? What did Avraham really mean when he said that if they won’t sell it to him as a stranger he’ll “take it by law”? Whose law?
Last year (http://rabbidmk.wordpress.com/2012/11/08/parashas-chayei-sara-5773/) I quoted Rabbi Yitzchak Etshalom, who referenced the law in the Ancient Near East that a foreigner was not allowed to buy land. Rabbi Etshalom suggested that Avraham had a plan to circumvent the law, by being officially “adopted” into a local family. Rabbi Moshe Shamah (“Recalling the Covenant”) references the same law, but rather than suggesting an “adoption-sale” to work around it, writes that “exceptions were generally only possible with the broad consent of the townspeople or the leaders.” Either way, Avraham had to convince the local Hittites to allow him to buy a plot of land despite the fact that he was not a native. Whether he had to get around the law by using a legal-loophole or the law provided for exceptions if the local population was willing to make one, Avraham had to speak to the entire local population (23:3) before approaching Efrone, and convince them that the law not to sell land to non-natives shouldn’t apply to him. His opening words, “I am a stranger and a dweller with you,” were therefore meant to address this issue.
It should be noted that the Midrash that Rashi is based on does not use the words “I will take it by law,” only “if you want, [I will be considered a] stranger, if not, [I am, or should be considered] the owner of the house, for so did G-d say to me: ‘to your descendants I have given this land.” [Another significant difference is that the verbiage Rashi quotes G-d as saying is in the future tense (“to your descendants I will give this land”) as opposed to past tense (“I have given”).]
Avraham was willing to buy the land from Efrone, as evidenced by the exorbitant price he paid for it. And if the locals were willing to sell it to him despite his not being from the area, he was fine with that. “If you are willing” to sell me the land despite my being a stranger, “then you can still consider me a stranger.” But “if not,” if an exception cannot be made, then I still have a way for the sale to go through, since I could/should really be considered a local (a “dweller”), since “G-d promised to give this land to my descendants.” It wasn’t a threat to “take it by force,” either physically or through the courts, but an explanation as to why Avraham should be considered a local rather than a stranger, and therefore allowed, by Hittite law, to own land.
The locals responded by saying “you are a prince of G-d among us,” which can be understood as not only an acceptance of G-d’s promise as being relevant to them, but as an acceptance of Avraham as being “among them,” i.e. a local, and therefore allowed to buy land to bury his wife.
