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Kidushin, 42

1) HALACHAH: APPOINTING A SHALI'ACH TO FULFILL A MITZVAH

QUESTION: The Gemara (41a-42a) discusses at length the source for the concept of Shelichus. The Gemara derives from verses that the Mitzvos of Korban Pesach, Terumah, and Kidushin can be performed through a Shali'ach. Does this apply for all Mitzvos, or are there specific guidelines dictating when the use of a Shali'ach is acceptable? For example, may a person appoint a Shali'ach to don Tefilin for him, or to sit in a Sukah for him?

ANSWER: The TOSFOS RID explains that all Mitzvos in which the person is the "object" of the Mitzvah, so to speak, require the person himself to fulfill them and cannot be done through a Shali'ach. For example, the Mitzvah of Tefilin requires that the person be dressed in Tefilin. Even if the act of putting on the Tefilin can be performed by someone else through the means of Shelichus, if the Tefilin are on anyone besides the person who is obligated to do the Mitzvah, then the entire fulfillment of the Mitzvah is lacking, because the object on which the Mitzvah must be performed is the person's self, his body. The Mitzvah is that he should wear Tefilin on his body. The same is true with the Mitzvos of Sukah and Tzitzis, where the Mitzvah is that the person must wear Tzitzis on his body, or that the person must seat his body in a Sukah. The Mitzvah is not just an act of placing a Talis on a body, or an act of sitting.

The Mitzvos which are mentioned in our Sugya --Terumah, Kidushin, Gitin, and Korbanos -- are interesting exceptions to the rule. Even though the object of each of these Mitzvos is the person (the husband who is divorcing his wife, or the owner of the animal who is bringing the Korban), they are unique in that they are always viewed as being done upon the person even when done through a Shali'ach. A Get specifies the name of the man and woman who are getting divorced. Therefore, even though someone else might be handing over, or accepting, the Get, the actual act is involved with those whose names are written in the Get. The Get is therefore considered taking effect on the one who appointed the Shali'ach. The same is true with Korbanos. Since a Korban must be brought with the intention that it is being brought for its owner, the Korban, by definition, involves the owner in the Mitzvah.

Terumah comes from the property of the owner of the fruit and not from the property of the Shali'ach. Therefore, even if a Shali'ach does the act of separating Terumah, nevertheless the Mitzvah is attributed to the one who appointed the Shali'ach since it comes from his property.

In summary, Mitzvos require the involvement of the person commanded to fulfill that Mitzvah. Shelichus can only achieve an effect with an action, but cannot achieve (or be a substitute for) personal involvement. There are, though, cases where the personal involvement still exists even when the act itself is performed by a Shali'ach. (A. Kronengold)

QUESTION: Rav Gidal in the name of Rav says that we learn the concept of Shelichus from the verse, "v'Nasi Echad, Nasi Echad, mi'Mateh" (Bamidbar 34:18), regarding taking possession of the land of Eretz Yisrael, where the leaders of each tribe took possession of the land on behalf of the members of the tribe. The Gemara asks that the verse cannot be referring to Shelichus, because the leaders were taking possession of the land on behalf of Ketanim, minors, as well, and we know that a Katan cannot appoint a Shali'ach (Bava Metzia 71b).

The Gemara implies, however, that if a Katan in general *could* appoint a Shali'ach, then this would be a valid source for the concept of Shelichus. How does this inference coincide with the rule that the Gemara mentions earlier (23b), that one cannot appoint a Shali'ach to do an act for him that the Meshale'ach cannot do himself? Our Sugya states earlier that a Katan has no power to effect Zechiyah, to acquire something on behalf of someone else. How, then, can a Katan appoint the Nasi to be Zocheh the land on his behalf if the Katan cannot do it himself?

ANSWER: The RAN points out that the process of Chalukas ha'Aretz, the division and taking possession of the land, was a "Giluy Milsa" and not a new Kinyan. That is, the land already belonged to the Jewish people as a whole; the only thing remaining to do was to divide it. Hence, we can understand that dividing something that is already commonly owned is not viewed as a regular act of Kinyan, and therefore even a Katan would be eligible to do it. (A. Kronengold)

42b

QUESTION: The Gemara quotes the Mishnah in Bava Kama (59b) that says that one who burns the property of someone else by sending a flame with an adult who is of sound mind is exempt from damages, and the adult who carried the flame is obligated. The Gemara asks that the sender should be obligated because of the rule of "Shali'ach Shel Adam Kemoso." The Gemara answers that Shelichus does not apply in such a situation. Even though we normally say that one can appoint a Shali'ach to do an act for him, and the act is considered to have been done by the Meshale'ach, when the Shelichus involves an act which is an Aveirah the rule of Shelichus cannot be applied. When the Shali'ach does an Aveirah for the Meshale'ach, the Shali'ach is considered to be acting on his own free will and volition, and thus the Aveirah is attributed to him and not to the one who appointed him.

The reason the Gemara gives for this is "Divrei ha'Rav v'Divrei ha'Talmid -- Divrei Mi Shom'im." The SEFER ME'IRAS EINAYIM (CM 182) explains that this reasoning refers to the intent of the *Meshale'ach* when he appoints a Shali'ach to do an act of Aveirah. When appointing a Shali'ach, one may assume that the Shali'ach will fulfill his mission as agreed. However, when appointing someone to do an Aveirah, the Meshale'ach has doubts whether or not the Shali'ach will really listen to him. We therefore say that the Meshale'ach does not take the appointment of the Shali'ach seriously and thus is considered to be nullifying the entire appointment of the Shali'ach. Consequently, when the Shali'ach performs the act, he is considered acting on his own behalf and not for the Meshale'ach.

The Gemara asks from the Mishnah in Me'ilah (20a) that says that a Meshale'ach is Chayav for Me'ilah through the act of the Shali'ach, even though the act the Shali'ach does is an Aveirah. In order for someone to be Chayav for Me'ilah, the act must be done b'Shogeg, inadvertently. How, then, can the Gemara compare the Aveirah of Me'ilah to that of damaging someone else's property? When a Shali'ach does something b'Shogeg, that means that he is totally unaware that he is doing something wrong and there is no reason for the Meshale'ach to think that the Shali'ach will not fulfill his Shelichus. If we continue the Gemara's logic of "Divrei ha'Rav v'Divrei ha'Talmid...," then there should be a difference between cases of Shogeg and cases of Mezid! Only when a Shali'ach performs an Aveirah intentionally should that Aveirah be attributed to him and not to the Meshale'ach, but when a Shali'ach performs an Aveirah b'Shogeg, then the Aveirah should be attributed to the one who sent him!

ANSWERS:

(a) TOSFOS answers by introducing an interesting case. In the case of Me'ilah, the act of Me'ilah was done with the knowledge of the Shali'ach, who did Me'ilah intentionally, but without the knowledge of the Meshale'ach. From the Meshale'ach's perspective, the act was done b'Shogeg. Since the Meshale'ach's appointment of the Shali'ach to do an Aveirah of Me'ilah was b'Shogeg, it fulfills the criterion that an act of Me'ilah be b'Shogeg in order to be Chayav. However, since the Shali'ach did the act b'Mezid, we apply the logic of "Divrei ha'Rav v'Divrei ha'Talmid...," and thus the Shali'ach is Chayav. (Even though the Meshale'ach is still unaware of the Aveirah, we assume that the Da'as of the Meshale'ach is to maintain the appointment of the Shali'ach as long as the Shali'ach is not involved in an Aveirah; if he becomes involved in an Aveirah, then that was not included in the original appointment.)

(b) The RITVA proves from here that the rule of "Ein Shali'ach l'Devar Aveirah" is a rule that applies even when the logic of "Divrei ha'Rav v'Divrei ha'Talmid..." does not apply. The only reason the Gemara mentions this logic of "Divrei ha'Rav..." is because it applies to the majority of cases of appointing a Shali'ach. However, even when it does not apply, we still say that a Shali'ach cannot be appointed to do an act of Aveirah. (See Ritva for other examples throughout Shas for such situations.)

QUESTION: The Gemara teaches that "Ein Shali'ach l'Devar Aveirah" -- a person cannot appoint a Shali'ach to do an Aveirah. However, when someone does appoint a Shali'ach to do an act of Aveirah for him, does the act take effect? For example, when a Kohen appoints a Shali'ach to be Mekadesh a divorcee for him, does the Kidushin take effect? Does the principle of "Ein Shali'ach l'Devar Aveirah" nullify the Shelichus altogether, and, consequently, no Kidushin takes effect at all, or do we say that the Aveirah is attributed to the Shali'ach, but the act *still* takes effect and is valid for the Meshale'ach?

In more general terms, is the principle of "Ein Shali'ach l'Devar Aveirah" a rule in the laws of appointing a Shali'ach (such that the appointment of a Shali'ach does not take effect when it is for the sake of doing an Aveirah), or does this rule merely instruct us who receives the Aveirah, but it does not tell us that the Shelichus is not valid?

ANSWER: TOSFOS in Bava Metzia (10b, DH d'Amar) cites two opinions, one which says that the act *does* take effect, and one which says that the act does *not* take effect.

The NESIVUS (beginning of CM 182) explains that this questions depends on whether the rule of "Ein Shali'ach l'Devar Aveirah" is based on the logic of "Divrei ha'Rav v'Divrei ha'Talmid...," like Tosfos says, or whether it does not depend on the logic of "Divrei ha'Rav," like the RITVA maintains (see previous Insight). If it is based on the logic of "Divrei ha'Rav," then it is clear that the entire Shelichus becomes annulled, since the Meshale'ach has no Da'as for the Shelichus to take effect.

However, if it is not based on the logic of "Divrei ha'Rav," then we can introduce a new line of reasoning. Intuitively, it makes no sense to say that an Aveirah could be done by a Shali'ach on behalf of a Meshale'ach, such that the Aveirah should be attributed to the Meshale'ach. After all, how can one person do an Aveirah and another person be liable for the act? On the contrary, the cases in which "*Yesh* Shali'ach l'Devar Aveirah" (i.e. Me'ilah and Shelichus Yad) are the novel cases. In those cases, the Torah states that the Aveirah is indeed somehow transferred from the Shali'ach to the Meshale'ach. Accordingly, we can understand how the act takes effect even though the Aveirah is not attributed to the Meshale'ach.