GEMARA KIDDUSHIN
Please pray for a refuah sheleimah for Moshe ben Penina.
Shiur #02: Shelichut
by Rav Yair Kahn
1. The Parameters of Shlichut
Our sugya deals with the institution of
shelichut and its biblical derivation.
Various sources are enlisted in this process
and the Gemara explains the necessity of each. For example,
the Gemara suggests that we could not assume shelichut for kiddushin if
the Torah had only informed us of the ability to deliver a get via a
messenger, since divorce, in contrast to marriage, does not require
the consent of the woman. The Gemara
continues that shelichut regarding
hekdesh-related issues, such as teruma or korbanot, cannot be
derived from the 'mundane' paradigm of kiddushin or geirushin.
Furthermore, shelichut for geirushin and kiddushin could not be
learned from teruma or korbanot, since the latter are basically mental
processes, whereas concrete action is required regarding the former.
In order to develop a deeper understanding of the shelichut concept,
we will attempt to explain the logic that
underlies these distinctions suggested by our sugya.
We will begin with the difference between
hekdesh and non-hekdesh areas of halakha. In the previous shiur, we
established that direct involvement in mitzvot is
preferable to delegating the performance to
another. Therefore, we cannot assume that the
institution of shelichut was extended to areas of hekdesh, which require
personal participation. It is therefore necessary
to introduce an explicit source, which applies shelichut to areas such as
teruma and korbanot.
In order to appreciate why
shelichut should be limited to mental processes,
let us glance at an additional sugya that is
critical for our understanding of shelichut:
"Given that all tena'im [stipulations that a
person makes when performing a given
halakhic act] are derived from where - from
the tenai of the tribes of Gad and Reuven [see
Bemidbar 32], a tenai that can be fulfilled
through a shaliach - such as the one there
[in the context of Gad and Reuven] - is a
valid tenai; that which cannot be fulfilled
through a shaliach is not a valid tenai." (Ketubot
74a)
Tosafot (s.v. "tenai") assume that
this provision reflects an inherent connection between
shelichut and tena'im:
"This is the reason: since the action [to which
the individual wishes to assign a stipulation] is
within his power to such an extent that he can
even carry it out through an agent, it stands to
reason that it lies within his power to assign a
tenai to it, as well. But
chalitza, which one cannot execute
through an agent, is not within his power to
assign to it a tenai, either; thus, even if
the condition is not met, the action takes
effect."
In other words, shelichut is only possible in areas in which
the individual is in control. Where man is the creator
of the new halakhic status, shelichut
is applicable. However, in the case of
chalitza, the brother does not permit his sister-in-law
to remarry. Although he must participate in chalitza, he is
not in control. He merely takes part in the
ceremony, which results in her license to remarry. His role
is merely mechanical and may not even require his da'at; hence, he
is unable to dictate the terms
of the chalitza. Similarly, he lacks the authority to appoint
another to take his place.
It would appear that the
distinction drawn by halakha between mental processes and
those that require action is rooted in this point. It is
self-evident that man is the creator of changes in halakhic status that
are determined by machshava. Therefore, man
who is in control has the ability to appoint a shaliach.
However, the authority of man becomes questionable
in areas requiring concrete action. Perhaps, the
individual's role in these instances is merely
mechanical, thus eliminating the possibility of shelichut.
Even if we view the individual as the source of the status change in
situations where action is indispensable,
we may nevertheless consider his authority
as diminished relative to areas where machshava alone suffices.
If so, it would be impossible to extrapolate shelichut
from areas that are determined mentally to those which demand concrete
action, as well.
This understanding will
also serve us in appreciating the third
distinction raised by our sugya. Namely, shelichut may be limited to
halakhic changes that are effected by unilateral
action. Clearly, an individual possesses greater
control over something that he effects unassisted.
Therefore, shelichut cannot automatically be
extended to areas dependent upon bilateral
agreement. Hence, an explicit biblical source is needed
to teach us that even in such areas, man is sufficiently in control
to assign a shaliach.
2. Two Types of Shelichut
It is plausible that
the distinction between bilateral and unilateral areas
remains even after the Torah introduces the application of
shelichut in both. The Mordekhai in Kiddushin (#505) quotes the
position of the Kadosh from Radosh that a shaliach sent to deliver a
get has the authority to appoint another shaliach in his place.
However, a shaliach sent to marry a woman lacks this authority, since, in
contrast to divorce, one cannot marry a woman without her consent.
This position seems to suggest that although shelichut applies in both
areas, a basic difference nonetheless exists between the two.
In fact, we may even claim that the drasha does
not merely extend shelichut to bilateral agreements,
but rather introduces a new type of shelichut which can apply to those areas.
We may explain this position based on the insightful
remarks of the Ketzot concerning the precise nature of
shelichut (188:2). According to the Ketzot, the Rishonim debated
whether to consider a shaliach as merely acting on behalf of
the sender, or as actually replacing him. The understanding of shaliach as
a replacement awards him independent status. However, if he merely
performs the given action for the sender, his appointment
does not imply independence.
On this basis, we may claim that only in the case of get, where the
husband has total control, can he confer on the shaliach
independent authority. This status allows the
shaliach not only to deliver the get and activate
the geirushin, but also to appoint a different shaliach in his
place. However, in the case of
kiddushin, where the husband is dependent
upon the woman's consent, he cannot
grant the shaliach independence. The Torah
merely allows him to send a messenger to perform the act
of kiddushin on his behalf. The shaliach therefore lacks the independent
authority to appoint a shaliach in his place and can do no more than
the act of kiddushin itself.
In summary, the Gemara discussed three possible
sources for the concept of shelichut and analyzed the
uniqueness of each source. We sought to demonstrate how the
unique qualities of each source could affect the
extension of shelichut to other contexts. 3.
The Requirement of Shlichut to be mafrish Teruma
Let us now inspect the specific case of
teruma in light of a sugya in Nedarim 36b.
The Gemara there discusses the rule posited in the Mishna allowing
one to separate terumot and ma'asrot on behalf of someone
who vowed not to receive any benefit from him:
"[The Mishna stated:] He may separate
his terumot and ma'asrot with his
knowledge. To what case does this refer?
If we say that [he separates teruma] from
the grain belonging to the owner of the stack [of
grain] on behalf of the owner of the stack, then with
whose knowledge is this done? If we say with
his own knowledge, who appointed him
a shaliach [licensing him to separate the
teruma]? Rather, it must refer to the
knowledge of the owner of the stack -
but does he not then provide benefit for him by
carrying out his shelichut? As Rava stated, we
deal here with a case of one who declares,
'Whoever wishes to come to separate
teruma may come and separate teruma.
'"
The Gemara assumes that the individual from whom the
noder (the one who took the vow) vowed to not
derive benefit may not function as a shaliach for the
noder. However, the Gemaappears to conclude that he
can be mafrish (separate) the teruma if he does not
formally assume that role of shaliach. This is accomplished via a general
announcement allowing anyone to be mafrish the teruma.
From this discussion it seems that hafrashat teruma is
not limited to the owner of the produce. One person can designate
the produce of another as teruma so long as he doesn't violate
the wishes of the owner; no assignment of shelichut is required.
This understanding is quite reasonable: after all, prior to
hafrasha the produce is in a state of tevel, which we may define as
an actual or potential mixture of teruma and chulin. Therefore,
hafrasha merely delineates the teruma within this mixture. In
fact, the Talmud Yerushalmi (Terumot 1:1) entertains the possibility
that hafrasha does not require ownership (see the
Gaon's commentary). However, this
position appears to contradict the very
foundations of our sugya, which applies the principle of
shelichut in order to explain how one can be
mafrish teruma for another. The application
of shelichut assumes that only the owner or his agent can be mafrish
the teruma.
One solution to this problem is to suggest that
in actuality, only the owner or his messenger may be mafrish teruma, as
suggested by our Gemara. Nevertheless, if the owner does not single out a
specific shaliach, then even if the mudar hana'a (the one from whom
the noder may not derive benefit) chooses to fulfill the
shelichut, the neder is not violated. Therefore,
in response to a general announcement allowing
anyone to separate the teruma, the mudar
hana'a may fulfill the shelichut without compromising
the neder. Tosafot (Gittin 66a s.v. "kol") suggest this
approach:
"Although the Gemara states. regarding someone
from whom another may not derive benefit
that he may separate teruma on
his behalf with his knowledge etc.,
and the Gemara explains that this refers to
one who declares, 'Whoever wishes to come
and separate teruma may come and separate teruma,'
this does not mean that if he makes such a
pronouncement, he [the one separating the teruma] is
not considered fulfilling his shelichut. Rather,
specifically with respect to a mudar hana'a
we do not consider this shelichut, by which he
would be viewed as providing benefit for him,
since he did not personally assign him."
The Rashba takes a different approach. He
concedes that according to the Gemara's conclusion in Nedarim, one may be
mafrish teruma for another even without having been appointed
a shaliach. However, he argues that this applies only within the
specific context of that Gemara, which discusses the possibility of designating
one's own produce as teruma in order to render the
produce of another permissible for consumption. Since he owns
his produce, he has the power to designate it as teruma. The Gemara's
question relates to one's ability to indirectly affect the produce
of another via this designation. According
to this understanding, ownership
is indispensable for hafrasha. Hence, the Gemara in Nedarim is
consistent with our Gemara which demands shelichut to replace the
requirement of ownership to allow for
hafrasha.
By contrast, the Ramban (Gittin 66a)
adopts our initial understanding, and denies the need for ownership
as a prerequisite for hafrasha. The Ramban
requires permission, not shelichut. According to this
position, the problem posed by our sugya, which
introduces the institution of shelichut to enable one to
be mafrish teruma for another, resurfaces.
Upon closer inspection,
the Ramban's position becomes even more puzzling.
He tries to prove that shelichut is unnecessary for hafrasha
from the Gemara in Bava Metzia which initially assumes
that one can be mafrish for another:
"Regarding teruma, even an expression
of consent suffices, as the Gemara
states in 'Eilu Metziot' [Bava Metzia
22a], '[If the owner finds someone
separating teruma for him and says], 'You should
have taken from the higher quality
produce,' then if, indeed higher
quality produce was found [thus proving the
sincerity of the owner's comment, and hence his
consent to the separation of teruma], then the
separation of teruma is valid.'"
However, the Gemara explicitly rejects its
initial assumption, and concludes that formal
shelichut is required:
"Rava interpreted it [that beraita] to
accommodate Abayei's position, as referring to a
case where he appointed him a
shaliach. Indeed, this seems
reasonable, for if it speaks of a case where he
did not assign him as his shaliach, could the
separation of teruma be valid? The verse
states, 'you - also you' to include
one's agent [that he may separate teruma
only under the same conditions and terms as the
owner himself]. Just as one separates only with
knowledge [that he separates teruma], so must the
agent separate only with the owner's knowledge."
How can the position of the Ramban be reconciled with
this sugya, let alone supported by it?
Let us return to our Gemara. The Gemara proves
that the institution of shelichut applies to teruma from the Mishna
in the fourth perek of Terumot (mishna
4). However, already in chapter 3, we find a Mishna
which establishes the ability to be mafrish on
behalf of another:
"When does this apply? When he said
nothing. But if he
allowed his family member, servant or
maidservant to separate teruma, the
separation is valid." (Terumot 3:4)
Why did the Gemara choose not to cite this Mishna
as evidence for the application of shelichut to
teruma, selecting instead the Mishna in chapter 4? Moreover, the Gemara
cites a longer passage from the Mishna then would appear necessary.
It would have been sufficient to simply quote,
"If one tells his agent, 'Go and separate teruma,' he
separates in accordance with the owner's intention [the
amount he figures the owner would have given as teruma]."
But the Gemara adds the continuation of the Mishna -
"If he does not know the owner's intention
[whether he would normally give a larger or smaller amount],
he separates the average amount - one-fiftieth."
Why must the Gemara include this passage in its citation?
We can resolve all these difficulties by
proposing that according to the Ramban, two distinct paths can be
taken to be mafrish on behalf of someone else. First,
one can be mafrish once the owner indicates his consent. In
addition, the owner can also make use
of the institution of shelichut. Where shelichut is applied, it is
as if the owner himself was mafrish. Permission, by contrast,
grants the non-owner ability to be mafrish in accordance with the wishes
of the owner.
Based on the above, we can distinguish between these
two tracts. The option of a non-owner designating teruma is
contingent upon the subjective wishes of the owner. If the
whims of the owner are not accommodated, the hafrasha
is void. Shelichut, on the other hand, is
established via a formal designation on the part of the owner.
Once appointed, the shaliach is required to
fulfill his shelichut faithfully and may act in
this capacity as long as he does not objectively violate this trust.
Subjective whims of the owner are irrelevant so long as the
shaliach fulfills his task consistent with the norms governing the
specific shelichut.
If we adopt this distinction, we can easily
explain the Ramban's proof from Bava Metzia. The sugya
there addresses the question of whether one's intention can be assumed
retroactively. The Gemara attempts to resolve this question on
the basis of the braita that appears to allow one to
be mafrish for another without his
knowledge. This perhaps indicates
that eventual acquiescence retroactively legitimizes the hafrasha.
The Ramban proves from this, that the owner's permission is
sufficient for hafrasha, since permission is parallel in this regard
to intention, and can perhaps be applied retroactively.
Appointing a shaliach, however,
constitutes a specific, halakhic act, which
demands expressed da'at and can only be effective proactively.
The Ramban understood that the
Gemara does not reject this basic premise.
Instead, it rejects merely this understanding of
the braita. The option of permission
is inapplicabif the hafrasha does not
correspond to the whims of the owner. According to the
braita, the owner's consent is indicated if, upon hearing of the
hafrasha, he responds that better quality produce could
have been used. Since the hafrasha of the non-owner does not,
in this instance, correspond to the wishes of the owner,
shelichut is the only option left in understanding the braita.
However, the initial premise, which assumed that permission suffices, was never
overturned.
Similarly, the sugya in
Kiddushin proved the possibility of shelichut with regard to
teruma from the Mishna in chapter 4 of Terumot. The
Gemara goes through the trouble to cite the seemingly irrelevant detail, that if
the shaliach is unaware of the amount the owner wishes to be mafrish, he
may assume the norm. According to our understanding, only from this clause
can we prove that the shelichut option is being
exercised. The mere fact that one can be
mafrish for another, which already appears in
chapter 3, can be explained based on the permission
option. However, the possibility of
a legitimate hafrasha that does not correspond to
the wishes of the owner forces us to
acknowledge the application of shelichut to hafrashat teruma.
Sources and questions for next
week's shiur.
Sources:
1. Kiddushin 41b "ela lo likhtov... Ka mashma lan."
Gittin 23b "amar Rav Asi... bnei brit."
2. Rambam Hilkhot Sheduchin V'shutfin 2:1-2,
Rambam Hilkhot Geirushin 3:15-16,
Shiltei Gibborim Gittin [12a in the pages of the Rif] #1 3.
Sanhedrin 72b Tosafot s.v. Yisrael, Magen Avraham Orach
Chayim beginning of Siman 189,
Even Ha-ozer ibid. 4. Rambam Hilkhot Issurei Biah 12:11, 13:14-17.
Questions:
1. Regarding what point does the Riaz argue with
the Rambam? 2. What halakha does the Magen Avraham
derive from Tosafot in Sanhedrin? 3. Is an eved knaani considered a
convert to Judaism? 4. What was the status of Shimshon's wives?