Shiur #03: "Ma Atem Benei Berit. "
by Rav Yair Kahn
Translated by David Silverberg
1. The Exclusion of a
non-Jew
According to the conclusion of our sugya, we derive the
concept of "shelichut" from two
halakhot where the possibility of shelichut is
introduced: the slaughtering of sacrificial animals and the conferral of
gittin. The verse that indicates the viability of shelichut for the
separation of teruma, the Gemara concludes, introduces a
different halakha relevant to the institution of shelichut, formulated by
Rabbi Yannai: "'Gam atem' ['you, too,' which applies a
relationship between the agent and his dispatcher, teaches that]
just as you are benei berit, so must your agents be benei
berit." This extrapolation
establishes the restriction of shelichut to those defined as
"benei berit," literally, "members of the covenant."
Anyone excluded from this group of benei berit cannot serve as a
sheli'ach. An eved kena'ani (gentile
servant, who undergoes partial conversion upon his
acquisition by his Jewish master), therefore, can
serve as a sheli'ach by virtue of his
inclusion within the category of benei berit, despite the fact
he is not defined as a Jew. Conversely, a gentile, who is not considered a
ben berit, cannot execute shelichut even with respect to matters that
apply to him as well as Jews. Therefore, even though a gentile can
designate produce from his own crop as teruma, he cannot do so on
behalf of a Jew. The Rambam, in Hilkhot Sheluchin ve-Shutafin (2:1-2),
adds that those outside the category of benei berit are excluded entirely
from the institution of shelichut. Thus, just as they
cannot serve as agents, they can likewise not appoint another to serve as
their sheli'ach:
"A gentile cannot become a sheli'ach
for any matter, and neither can he
appoint another to be a sheli'ach for him,
as it says, 'So shall you, too, set aside
[teruma]' - just as you are benei berit, so must
your agents be benei berit. This applies to
[all halakhot in] the entire Torah. And
just as your dispatchers are benei berit, so,
regarding [all the halakhot in] the entire
Torah, must the dispatcher be a ben berit. Even a
servant or maidservant can become agents, since they
have intelligence and are included in some mitzvot."
2. Shelichut of a Mumar
There is room to inquire as to the status
of a mumar (apostate) in this regard.
With respect to several halakhot, a mumar shares
the same status as a gentile (see Rambam, Hilkhot Shechita 4:14). On
the other hand, a basic principle establishes that "a Jew is a
Jew even if he has sinned" (see Sanhedrin 44a).
Regarding "ishut" (marriage law) a mumar is
clearly considered a Jew, as the Rambam codifies (Hilkhot
Ishut 4:15): "If one betroths a gentile woman or
maidservant - there is no betrothal. Rather, she is the
same after the [attempted] betrothal as she was before
the betrothal. Similarly, if a gentile or servant betrothed
a Jewish girl, their betrothal is not a [valid] betrothal.
If a Jewish apostate betrothed - even if he willingly
worships idols, the betrothal is perfectly valid and she
requires a get from him [to be allowed to marry another
man]." Our question yields an important halakhic
ramification. If a mumar is not considered a ben berit, and he is
thus excluded from the institution of shelichut, then he cannot appoint a
shaliach. Thus, if a husband becomes an apostate, Heaven forbid, and he
refuses to take the trouble to give his wife a get, she or her shaliach
must receive the get from him personally, not from his agent.
The Shiltei ha-Gibborim (Masekhet Gittin
12a in the Rif's glosses, 1) cites the following
comment from the Ri'az: "The Rambam wrote that a Jew who
became an idolater or publicly desecrates Shabbat is considered a
gentile with respect to all matters. But we have already
explained in 'Kuntras ha-Re'ayot' that his betrothal and
divorces are valid like [those of] a full-fledged
Jew. Just as he releases his wife with a
get, even though he married her when he was a proper Jew, so
may he execute shelichut with regard to a get for the wife of
a proper Jew." Thus, the law concerning a
mumar's inclusion within shelichut is subject to a
dispute among the Rishonim. The Ri'az
maintains that halakha does not exclude a
mumar from shelichut, but he understood the Rambam as drawing a
total equation between a mumar and a gentile, and thus the former, too, cannot
serve as a shaliach.
However, a closer look at the Rambam's comments reveals
that in truth, they bear no relevance to our discussion. He writes (Hilkhot
Geirushin 3:15): "Everyone is qualified to write a get except for
five [groups of people]: a gentile, a servant, the deaf, the mentally disabled,
and a minor. A Jew who turned to the apostasy of idolatry
or who publicly desecrates Shabbat is like a gentile for all
matters." The Rambam here discusses the writing of a get,
not bringing a get to a woman. With regard to the writing of the
get, most Rishonim agree that this responsibility is
not charged specifically on the husband, and we therefore do not need to
employ the institution of shelichut to allow others to write a get
(see Tosefot, Gittin 22b s.v. "ve-ha"). The Rambam there
explains that a gentile is disqualified for this task because he
does not write "li-shma" (with the required
intention): "Why may these five not write [a get]? Because the
writer must have in mind as he writes the man
who divorces and the woman who is divorced, and the
gentile writes with his own intentions"
(ibid., halakha 16). Presumably, then, a mumar, too,
would be disqualified from writing a get because he is similar
to a gentile in this regard. This is the
understanding of Rav Chayim (Hilkhot Tefillin 1:15).
In light of this, the Rambam's
comments provide no proof regarding our issue. It would
seem, then, that we have only the Ri'az's
view, that a mumar is, in fact, included in
shelichot. In actuality, however, the Ri'az's comments
themselves do not justify such a ruling. If we review
the aforementioned passage carefully, we will notice that he proved
(in his "Kuntras ha'Re'ayot") only that a mumar can
effect kiddushin and geirushin - he can betroth and administer
a divorce. From here he concludes that a mumar may therefore
serve as a shaliach for the transmission of a get. But
if we do not consider a mumar under the category of benei
berit, then we must exclude him entirely from the realm of
shelichut, even with regard to halakhot that apply to him -
such as gittin! Indeed, as mentioned, our sugya explicitly excludes
gentiles from the institution of shelichut even with respect to teruma.
In Sanhedrin 72b, the Gemara formulates the
warning to be issued to someone pursuing another with the
intent of killing him: "See that he is a Jew and he is a
ben berit, and the Torah stated, 'Whoever sheds the blood of
man, by man shall his blood be shed'." Tosefot
there address the seeming redundancy latent in the clause, "He is a
Jew and he is a ben berit": "He is a Jew and not a gentile; he is a
ben berit and not a mumar who accepted idolatry." As the Magen
Avraham (O.C. 189) notes, these comments strongly imply that a mumar
is not classified as a ben berit. On this basis, the Magen
Avraham concluded that a mumar is excluded
entirely from the institution of shelichut.
He then proceeds to call into question a comment of the Rema
(E.H. 141:33) equating a mumar with those
whom the Torah disqualifies from serving as witnesses
due to their having violated certain transgressions. This equation
implies that a mumar can serve as a shaliach. How can he
serve as a shaliach if, as Tosefot imply, he is not
classified under the category of ben berit? The Magen Avraham
answers that the Rema spoke there only of a "mumar le-tei'avon,"
one who violates the Torah out of lack of self-control, as opposed
to a "mumar le-hakh'is" - one who acts with the deliberate
intention to rebel. The former retains his status as a ben berit
and hence is included within the realm of shelichut, while the
lattcannot serve as a shaliach, as he cannot be considered a ben berit.
The Even ha-Ozer argues and includes even a
rebellious mumar within the institution of shelichut. He explains
the verbosity of the aforementioned passage
in Masekhet Sanhedrin differently than did Tosefot:
"If not for the comments of Tosefot in
Masekhet Sanhedrin I would have said... that they
said 'he is a ben berit' in order to include an
eved kena'ani... Now that we have resolved
Tosefot's difficulty, it stands to reason that a mumar is
considered a ben berit." He then adds that even should we
accept Tosefot's claim that a mumar is not classified as a ben
berit, we should nevertheless not exclude him from
shelichut. He provides the following explanation:
"That which they said, 'Just as you are benei berit... a
servant is also a ben berit.... ' At first
glance it appears difficult to understand:
why should one include [in shelichut] a
servant, since he is considered a ben berit, and exclude a mumar?
Perhaps we should do just the opposite - include a mumar, who is a Yisrael,
and exclude a servant, who is not a Yisrael!
Additionally, perhaps we should require both - that one be
both a Yisrael and a ben berit. Clearly, then... we include a
servant who is equal to a Yisrael insofar as he is a ben
berit, and we also include a mumar, who is a Yisrael. We exclude
only a gentile, who is neither a ben berit nor a Yisrael."
Thus, the authorities debate the issue of whether or not a mumar can serve
as a shaliach.
3. The Dual Nature of Conversion
In order to explain the position of the Magen
Avraham, that a mumar does not qualify as a ben berit and thus cannot serve
as a shaliach, let us first examine the Rambam's
comments in Hilkhot Issurei Bi'a (12:11): "Servants
who immersed for the purpose of becoming servants [of a Jew] and accepted
upon themselves the mitzvot in which servants are obligated are divested
of the status of gentiles, but have yet to take on the status of
Jews. Therefore, a maidservant is forbidden to
a free man." This requires
some explanation. How should we understand the fact that these
servants "are divested of the status of gentiles, but have yet
to take on the status of Jews"? What is the meaning of this
partial conversion of the servant?
The Rambam writes the following in the next
chapter in Hilkhot Issurei Bi'a (13:14-15):
"Do not think that Shimshon, the savior
of Israel, or Shelomo, the king of Israel, who was
called 'the beloved of God,' married foreign,
gentile women. Rather, the truth of the matter is as follows:
The proper procedure is that when a male or female
convert comes to convert, we check him to see if perhaps
he has come to join the religion because of money that he will
receive or for a certain position that he will attain, or because of fear.
If he is a man, we check him to see if he desired a certain Jewish woman,
and if she is a woman, we check to see if perhaps she
desired a man among Jewish men. If no ulterior motive is found, we
inform them of the weight of the yoke of Torah and the burden
involved in its performance among the masses, in order that they will renege.
If they accepted and did not retreat, and we saw them return [from
idolatry] with love, we accept them, as it says, 'She saw how determined
she was to go with her, and she ceased to argue with her.'
Therefore, the court did not accept converts throughout the period of
David and Shelomo: during the time of David - lest they returned out of
fear; during the time of Shelomo - lest they returned because of the
kingship and the goodness and greatness with which
Israel lived, for whoever returns from idolatry for any of the
vanities of the world is not among the
righteous converts. Nevertheless, there were many
converts who converted during the period of David
and Shelomo before untrained [courts]. The High Court was
suspicious of them: they did not reject them, as they had,
after all, immersed [for purposes of conversion], nor did they embrace them [and
consider them Jews] until they would see
what would eventually happen." The Rambam here implies
that should it turn out that a certain convert
converted for ulterior motives, his conversion is
void. The High Court was therefore
suspicious of all those who converted during the times of David and
Shelomo until they ascertained how they ultimately turned out
as a way of verifying the initial motivation.
However, from the continuation of his comments
(16-17) it becomes clear that this is not what the Rambam intended:
"Since Shelomo converted women and married
them, and Shimshon, too, converted [women] and married [them], and
it was known that these [women] returned [from idolatry] only for
a specific motive, and they were not converted by the authorization
of the court, the Scripture considered them gentiles who remained
forbidden [for a Jew to marry]. What more, the way they turned
out proved their initial motives, for they worshipped their
gods and built for themselves private altars, and the
Scripture considered him [Shelomo] as having himself built them, as
it says, 'Then did Shelomo construct an altar.' A convert who was not
checked or was not informed of the commandments and their
punishment, and was circumcised and immersed in
the presence of three standard judges is a convert, even if it
becomes known that he converted for some ulterior
motive. Since he was circumcised and immersed, he
is divested of the status of gentiles, and
we are suspicious of him until
his righteousness is affirmed. Even if he again worships idols, he
is like a Jewish apostate whose betrothals are valid and whose lost
items there is a mitzva to return. Since he immersed,
he becomes the same as a Jew. Shimshon
and Shelomo therefore kept their wives even though their true
nature was revealed." The Rambam thus
establishes that Shimshon's and Shelomo's wives
converted for ulterior motives, as
evidenced by the way they turned out.
Nevertheless, by virtue of their having been circumcised and immersed, the
wives were no longer considered gentiles. Although
they ultimately worshipped idols, they were
considered like a Jewish mumar, and their marriages to Jews were valid.
It would thus appear that geirut (conversion)
consists of two halakhot. On the one hand, a convert accepts
upon himself the yoke of mitzvot, and he thereby joins the nation chosen
through the covenant of the Torah. Even an eved
kena'ani who immerses for purposes of servitude to a Jewish master
and thus assumes the mitzvot obligated upon Jewish women, divests
himself of his gentile status by joining this covenant. On the other hand,
a convert also becomes part of Am Yisrael. It is not enough for him
to declare, "Your God is my God"; he must also
proclaim, "Your nation is my nation."
Complete conversion entails both the
acceptance of religious responsibilities as well as joining
the nation. In some situations, however, the conversion
cannot take effect completely. For example, an eved kena'ani
does not join Kenesset Yisrael on the social
plane. He does, however, lose his gentile status by taking
upon himself the yoke of mitzvot and joining the covenant.
He nevertheless does not join Kelal Yisrael in the national
sense. The converse situation arises in the
case of the one who converts for ulterior
motives. Though the prospective convert wishes to join
Am Yisrael for various reasons, this wish involves no religious
intent. Such a conversion thus does not bind the convert to the
covenant.
In light of this, we can
understand the Rambam's assessment of the eved
kena'ani, that by immersing for purposes of servitude
and accepting those mitzvot incumbent upon servants, he is no longer
classified as a gentile. Nevertheless, he has yet to be
included within Kelal Yisrael and may not marry a Jewish woman. Meaning,
the institutions of marriage and divorce, and the permission to marry a
free Jewish woman, depend on his joining Am Yisrael. The Rambam
therefore vindicated Shimshon and Shelomo despite
their wives' having converted with ulterior
motives, without having accepted the yoke of mitzvot.
According to our approach, their desire to join tcovenant of fate
that joins together Am Yisrael resulted in their partial
conversion. As such, the laws of marriage and divorce applied to
them. Nevertheless, the verses considered them pagans due to their failure
to join the covenant of destiny based upon the
acceptance of the yoke of divine kingship. As the Rambam
writes, "Even if he again worships idols, he is
like a Jewish apostate whose betrothals are valid."
Clearly, the Rambam speaks here not of a full-fledged convert who
later becomes an apostate, but rather of partial conversion that
lends a status similar to that of a mumar.
4. The Status of a Mumar
Thus, when we come to assess the status of a
mumar, we must take into account these comments of the
Rambam, by which it appears that a mumar has the status of a
gentile only on the religious plane. At the same
time, a Jew belongs to Kenesset Yisrael even if he
sinned, and his betrothals and divorces are thus halakhically
binding.
With regard to shelichut, the sugya in Masekhet
Gittin (23b) raises the possibility that a shaliach must belong to Am
Yisrael: "What is the reason? Is it not because it is
written, 'you, too' - just as you are Jewish, so must your agents be
Jewish?" According to this theory, an eved would not be
included in shelichut, as he has not joined Am
Yisrael at the national level. But the Gemara concludes,
"No; just as you are benei berit, so must your agents
be benei berit." In other words, the possibility of shelichut
depends specifically on the "berit," the covenant, or
the religious plane. Therefore, an eved is indeed
included within the realm of shelichut.
Accordingly, it stands to reason that, as
the Magen Avraham claims, a mumar is excluded from shelichut.
As we have seen, a mumar is considered Jewish only in the national sense;
from a religious perspective, he has removed himself from the nation.
Thus, despite his classification as a Jew, he is not considered a
ben berit. Nevertheless, there is room for the contention of the
Even ha-Ozer, that, according to the Gemara's conclusion, shelichut takes
effect so long as some connection exists between the
shaliach and his dispatcher. Therefore, the connection
established by the ben berit status of an eved,
who has yet to attain the status of a
full-fledged Jew, suffices. Similarly, the connection
established by the national affiliation of the mumar is
sufficient, despite his exclusion from the status of ben berit.
So long as we can apply the principle of "you,
too," as some connection exists
between the meshalei'ach and shaliach, shelichut
can take effect. Therefore, only gentiles, who
are neither Jews in the national sense nor benei
berit, are entirely excluded from the halakha of shelichut.
Sources and questions for next
week's shiur #4:
1. Kiddushin 42a
"v-ela ha d-amar ... tikachu." B.M. 71b
"Ikah d-amri ... l-chlal shlichut." 2. Tosafot
Ketubot 11a s.v. matbilin, Ran Kiddushin [16b in pages of the Rif] s.v.
Garsi] 3. Ktzot 105/1 "omnam hatosafot l-shitatam ...
v'kvar he- erachnu." 4. Gittin 52a '"yitomin ... l-haniach"
Tosafot 40b s.v. ve-katav, Rashba 52a s.v. 'matni.'
Questions:
1. The gemara offers three suggestions
regarding what halakha is derived from
"nasi echad." Is there a
relationship between them? 2. What halakhic
mechanism allows someone who wasn't appointed as a shaliach to
acquire on behalf of another? 3. According to Torah law can
one acquire on behalf of a minor, if it is clearly to his benefit? 4.
How can an apotropis separate teruma even though he was not appointed as a
shaliach?