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Nazir, 12

1) APPOINTING A "SHALI'ACH" TO DO SOMETHING THAT THE "MESHALE'ACH" CANNOT DO

QUESTION: The Gemara says that a person cannot appoint a Shali'ach to do an act that he himself is not yet able to do. Therefore, a person cannot appoint a Shali'ach to betroth to him a woman -- who is presently married to someone else -- after she gets divorced.

TOSFOS and the ROSH ask that according to this, it should be impossible to give one's flour to a Shali'ach in order for the Shali'ach to make it into dough and to separate Chalah for that dough. Chalah can only be separated from dough and not from flour, and hence Chalah cannot be separated at the time that the Shali'ach was appointed (since the dough was not yet made).

RABEINU TAM answers that one can make a Shali'ach to separate Chalah in such a case, since it is in one's ability to take other dough from one's house and to separate Chalah on one's flour. It is enough that the Chalah has been made into dough, even though the rest is still flour, since it is "b'Yado," in one's ability, to make the rest into dough.

However, Tosfos cites another Gemara (Yevamos 52a) regarding giving a Get to one's wife, which seems to contradict this. The Gemara there says that a person can tell a scribe to write a Get for his wife who is an Arusah, so that he may give the Get after he marries her and she becomes a Nesu'ah. The Gemara explains that the reason for this is that it is b'Yado, in his ability, to divorce her now, even before the Nesu'in, and therefore he can have the Get written now even though he only plans on using it after she becomes a Nesu'ah. The Gemara says that it cannot be proven from this case that a Yavam can tell a scribe to write a Get for his Yevamah before doing Yibum with the intention of using it after he performs Yibum, since it is not b'Yado to divorce her now (he must either do Yibum or Chalitzah). As Tosfos points out, it *is* in the ability of the Yavam to perform Yibum with the Yevamah (since Yibum can be performed against her will), and nevertheless this does not allow the Yavam to appoint a Shali'ach to write a Get for his Yevamah. Even though it is b'Yado to marry her through Yibum and then give her a Get, it does not allow him to appoint a Shali'ach to write a Get for the Yevamah. Why does b'Yado not give him the ability to appoint a Shali'ach in this case, just like it does in the case of appointing a Shali'ach for Hafrashas Chalah?

ANSWERS:

(a) The AVNEI MILU'IM (#35) and the ORACH MISHOR understand that Tosfos indeed rejects his original suggestion based on the proof we cited from the Gemara in Yevamos. Tosfos concludes that "b'Yado" does *not* allow a person to appoint a Shali'ach to make flour into dough and then to separate Chalah. "B'Yado" only allows a person to separate Chalah himself before the flour is made into dough and fit for Hafrashas Chalah, but it does not allow him to appoint a Shali'ach to do it. He can only appoint a Shali'ach if the flour is fit for taking Chalah right now. According to this, Tosfos never answers his question how one is able to appoint a Shali'ach to knead dough and then separate Chalah.

(b) However, the KEREN ORAH here and RAV SHIMON SHKOP (Sha'arei Yosher 6:17) note that this does not seem to be the simple reading of Tosfos. The entire point of Tosfos is to justify the practice of appointing a woman to make dough and separate Chalah. Since Tosfos does not end with a question, it seems that Tosfos successfully justifies the practice.

Instead, they explain Tosfos like the MISHNEH L'MELECH (Hilchos Ishus 9:6), the VILNA GA'ON (YD 327) and REBBI AKIVA EIGER (Teshuvos 141) who explain that Tosfos indeed answered his question. Since a person could separate Chalah from dough on behalf of flour, he could appoint a Shali'ach to separate Chalah on flour. What Tosfos proves from Yevamos is simply that if the person who appointed the Shali'ach would not have been able to separate Chalah from dough on behalf of the flour, then he would not have been permitted to appoint a Shali'ach to separate Chalah for him just because he (the Meshale'ach) could have kneaded the dough himself. The Meshale'ach must be able to actually separate Chalah at the moment that he appoints the Shali'ach, and not that it just be b'Yado to knead the dough now and then to separate Chalah.

However, REBBI AKIVA EIGER (in Gilyon ha'Shas) and the KEREN ORAH ask that if this is what Tosfos means, then why may a Yavam not appoint a scribe to write a Get for his Yevamah, since he himself could write a Get for his Yevamah, since it is b'Yado for him to do Yibum with her and then divorce her?

The KEHILAS YAKOV (#3) answers that "b'Yado" does not allow a Yavam to write a Get for his Yevamah, because "b'Yado" only serves to remove the problem of "Davar she'Lo Ba l'Olam" -- one is writing a Get for a woman who is not yet married to him. When a man writes a Get before the woman is married to him, there is a second problem: it is not considered to be written Lishmah since the Get cannot take effect at the time it is written. (See also RAV ELAZAR MOSHE HOROWITZ.) "B'Yado" does not remove this second problem, and therefore a Yavam cannot write the Get by himself nor can he appoint a Shali'ach to write it. However, the Gemara in Yevamos implies that if the Yavam appoints a Shali'ach to write the Get, even *after* the Yavam marries the Yevamah, the scribe cannot write the Get. At this point, however, there is no lack of Lishmah, since the Yevamah is already married. It must be that one cannot appoint a Shali'ach because of "Davar she'Lo Ba l'Olam," since he appointed the Shali'ach at a time when the woman was not yet married, and hence we see that "b'Yado" does not remove the problem of "Davar she'Lo Ba l'Olam" with regard to *appointing a Shali'ach* to make something take effect on a "Davar she'Lo Ba l'Olam." "B'Yado" only allows the person himself to make something take effect on a "Davar she'Lo Ba l'Olam." (See also SHA'AREI YOSHER, ibid., who suggests a different approach.)

QUESTION: Tosfos writes that one may appoint a Shali'ach to separate Chalah from dough even before the dough is made, while it is still flour, since it is "b'Yado" ("within his ability") of the owner of the flour to take another piece of dough that is already kneaded and separate Chalah from that dough on behalf of the flour, so that the Hafrashas Chalah will take effect after the flour is kneaded into dough.

This solves the problem that if it is not in his ability to exempt this flour from Chalah, he could not appoint a Shali'ach to do so; here, it *is* in his ability to exempt the flour by separating Chalah from a different piece of dough on behalf of the flour. How, though, could the owner of the flour (the Meshale'ach) appoint a Shali'ach to make part of the flour -- after it is kneaded into dough -- into Chalah and to separate it on behalf of the rest of the dough? It was not in the ability of the Meshale'ach to make part of the flour into Chalah at that moment since it was not yet kneaded into dough, so how can he appoint someone else to do it? (OR SAME'ACH, Hilchos Terumos 5:9; NODA B'YEHUDAH in DORESH L'TZION, Derush #13 and footnote there)

ANSWER: The CHASAM SOFER explains that the Meshale'ach does not have to appoint the Shali'ach to separate Chalah *from this flour* in particular. He just appoints him to separate Chalah, and then the Shali'ach may choose whatever he wants to make into Chalah for the Meshale'ach, even if it is not fit to be made into Chalah at the time of the appointment of the Shali'ach. The owner of the flour could certainly separate Chalah himself from any dough that he has in the house, and therefore he can appoint a Shali'ach to make Chalah from any of his dough.

The question of Tosfos was how a person can appoint a Shali'ach to exempt a particular measure of flour from Chalah (by separating Chalah for it) when that measure of flour was not yet able to have Chalah separated for it. Tosfos answers that it *is* possible to separate Chalah for it even while it is flour.

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