Shiur #04: Zakhin
by Rav Yair Kahn
After deriving shelichut from a
combination of sources, the Gemara suggests that this concept could have
been derived from the verse, "nasi echad"
(Bemidbar 34:18), which assigned each tribal leader the task
of allocating portions in Eretz Yisrael to the members of his
respective tribe. The Gemara initially assumed that each leader
functioned as a shaliach, acquiring the appropriate
portions on behalf of his tribe. But this suggestion is
then rejected, as these leaders also acquired
portions in Eretz Yisrael destined for minors, who are excluded from
shelichut.
The Gemara then proposes that the ability of the leaders to acquire on behalf of the general population, including minors, is the source for the halakha of zekhiya. This halakha, which states, "zakhin le-adam she- lo be-fanav," means that one can make an acquisition for another in his absence, in cases where the acquisition is beneficial for the intended recipient. In this shiur we will examine the nature of this halakha and its relationship to shelichut, an issue which was debated among the Rishonim.
1. Assumed Shelichut
The simplest way to understand zekhiya is to view it as
an application of an accepted halakha, i.e. shelichut. In other words, in cases
of a transaction that is clearly to the advantage of a certain party, we
can assume that had he been present, the beneficiary would have appointed
a shaliach to achieve that benefit.
This presumed appointment merely replaces the
actual appointment normally required in cases of
shelichut (see Tosafot Ketubot 11a s.v. matbilin). The result,
however, is the same, insofar as one person
acts on the behalf of another.
Many Rishonim adopted this
approach and accordingly concluded that zekhiya is
effective only in cases allowing for actual
shelichut. Thus, minors, who are excluded from shelichut,
are excluded from zekhiya, as well. This position is
supported by a Gemara in Bava Metzia (71b) which claims:
"A minor - is it not true that although he is not included in
shelichut, he is included in zekhiya mi-derabbanan!"
Thus, zekhiya applies to minors only by force of rabbinic
enactment; on the level of Torah law, however, ketanim are excluded from
zekhiya.
However, the simple reading of our Gemara would seem to contradict this conclusion. The Gemara concedes that shelichut cannot be derived from the verse, "nasi echad," since the tribal leaders also acquired portions of land on behalf of minors, who are excluded from shelichut. Nevertheless, the Gemara suggests that the leaders were able to employ the halakha of zekhiya to acquire on behalf of the minors. Apparently, zekhiya can be applied to minors although they are excluded from shelichut.
2. An Independent Institution
Based on this
question, the Rashba concluded that zekhiya, which is applied in our sugya
to minors, cannot be viewed as presumed shelichut. It is unclear,
however, how the Rashba explains the
correspondence between zekhiya and shelichut documented in the
sugya in Bava Metzia. (In his commentary on Bava Metzia,
the Rashba prefers a variant reading which alleviates this problem).
The Ba'alei ha-Tosafot, who
understood zekhiya as presumed shelichut, did not
explicitly address the problem arising from our sugya.
Perhaps we can defend their view based on their position
regarding a related sugya. Tosafot in Gittin (64b s.v. shani)
understood that a minor can be zokheh on
behalf of others. This conclusion seems to
counter their position viewing zekhiya as presumed
shelichut. After all, minors are not only incapable of
appointing a shaliach, they cannot serve as a shaliach, either (see
Gittin 23a). In order to resolve this problem, Tosafot claim that the exclusion
of minors, which is derived from teruma, applies only to the shelichut of
trumah. Since minors are unable to be mafrish
teruma, they are likewise incapable of serving as a shaliach for that
purpose. They are, however, capable of acquiring possessions
(in cases of "da'at acheret makneh"), and
they are hence eligible to serve as a shaliach to
acquire for another. According to Tosafot, our sugya disqualifies
minors from appointing a shaliach even to make acquisitions because
the act of appointing demands da'at; as such, a minor cannot assign a shaliach.
Zekhiya, on the other hand, can be applied to minors,
since it is based on presumed appointment
and thus sidesteps the need for an actual act of appointment which entails
da'at.
However, the simple
reading of our sugya indicates that minors are excluded from
shelichut in absolute terms. Furthermore, the Ba'alei
ha-Tosafot themselves were divided as to whether minors
are excluded from shelichut (see Tosafot B.M. 10b s.v. isha).
Therefore, if we are to understand that zekhiya is presumed shelichut, it
is more reasonable to interpret our sugya like the Ran,
who suggested a ingenious approach to resolve our problem.
Like the Rashba, he maintained that minors are entirely excluded from
shelichut. Nonetheless, he managed to explain our sugya according to the
understanding that zekhiya is based upon shelichut. He did this by
weaving the very question of the nature of zekhiya
into the fabric of the Gemara itself.
If zekhiya has an independent Biblical source, we
are free to treat it as
an independent halakha, rather than just an application of the
standard halakha of shelichut. Consequently, when the Gemara
suggests that zekhiya is derived from "nasi echad," it may also
entertain the possibility that minors are included. As zekhiya has its own
source in the Torah, it need not depend on the
guidelines of shelichut. However, the conclusion of our sugya,
that "nasi echad" does not teach us zekhiya, compels us to view
zekhiya in terms of shelichut. Thus the Gemara in Bava Metzia, which
excludes minors and gentiles from zekhiya since they are not
included in shelichut, is consistent with our sugya, which concludes that
zekhiya has no independent source.
In summary, the
Rishonim divided into two camps regarding the understanding of
zekhiya. While some viewed it as an application of shelichut, others
rejected this approach and viewed it as an independent institution.
However, the Rishonim who refuse to view zekhiya
as an application of shelichut fail to explain how zekhiya works.
The Ketzot (105,1) explained that these Rishonim viewed the
me-zakeh as a "yad" (literally, "hand," an
extension of the beneficiary) who can acquire on behalf of the
beneficiary. One who functions as a yad for
another retains his self-identity. It is the me-zakeh
himself who performs the act of acquisition, only
he chooses to do so in order to benefit his
friend. A shaliach, on the other hand, is
appointed and hence represents the beneficiary. Through the shaliach,
it is the me-shalei'ach, not the shaliach, who performs the act of
acquisition.
3. The Category of Shelichut
We may suggest a third
approach to this issue as to the relationship between zekhiya and
shelichut. Though conceptually distinct from
shelichut, zekhiya may nevertheless be viewed as a
variation of the concept of shelichut. In fact, the Ramban agrees
that zekhiya is not based on shelichut, but nonetheless limits
zekhiya to those included in shelichut. Based on the sugya in
Bava Metzia, he claims that according to Torah law, minors and gentiles -
who are excluded from shelichut - are not included in
zekhiya, either. (Zekhiya is applied to minors
only according to rabbinic law.) Although the Ramban
rejected the understanding of zekhiya as implied shelichut, he
nevertheless considered it an application of the general concept of
shelichut by which one can act on behalf of another. Even if we don't
assume that the zocheh would have appointed
a shaliach, one can nevertheless acquire an
object for another. Zekhiya is still within the
parameters of the broader concept of shelichut and thus inapplicable
to those who are excluded from it, though it is not shelichut in the narrow
sense.
We are left with three ways of
interpreting zekhiya. The first views zekas presumed shelichut. At
the other extreme we find those who consider
zekhiya totally unrelated to shelichut. The Ketzot goes so
far as to suggest that even gentiles are included in the
category of zekhiya, although they are undoubtedly excluded from the
entire concept of shelichut. Based on the Ramban, we offered a
more moderate suggestion, whereby zekhiya is not based on the
assumption that the beneficiary would have appointed a shaliach, but
nonetheless falls under the general category of shelichut. This
category includes all cases in which one acts on behalf of another.
As a member of this group, zekhiya is limited to the general
laws governing shelichut.
4. Apotropis
The Gemara concluded that
zekhiya cannot be derived from the verse "nasi echad" and
claimed that this verse is the source of "apotropis"
(a guardian appointed to care for orphans). In order to
appreciate this halachic institution, let us consider a discussion
in Masekhet Gittin that raises the issue of the legal status of
the apotropis. The Mishna (52a) requires the guardian to take teruma and
ma'aser from the fruits belonging to the orphans
under his charge. The Gemara questions the
guardian's ability to designate teruma, as only the owner of the produce or his
shaliach is eligible for this task. As the Gemara cites, the word
"atem" (you) used by the Torah in the context of
teruma (Bemidbar 18) indicates that only the owner or an agent acting on
his behalf can separate teruma (This assumption was discussed in
detail in Shiur #2). The Gemara suggested that the guardian can be
mafrish so as to provide food for the orphans under his
charge. (Separating teruma and ma'aser renders the fruit
permissible for consumption, until this is done, the orphans
may not partake of their fruit.) This answer perplexed the Rishonim,
as it leaves the problem of ownership
unresolved. Even if we acknowledge the
necessity to allow the guardian to be
mafrish, his authority to do so remains questionable.
Tosafot (Gittin 40b s.v.
ve'katav) propose that the sages awarded the guardian ownership in order
to allow him to be mafrish. This is accomplished by invoking
the principle of "hefker beit din hefker," empowering the Bet Din
to grant or revoke legal ownership. Once awarded
ownership, the authority of the guardian to be mafrish is unequivocal.
The Ramban (in
Gittin 52a) offers an alternate suggestion. He claims
that the halakha of zekhiya authorizes the
apotropis to be mafrish on behalf of the orphans. According
to the Ramban, when the Gemara concluded
that we derive the institution of apotropis from "nasi
echad," this verse then becomes the source for the halakha of
zekhiya, as well. This is also the implication
of Rashi in his comments on our sugya (s.v. ela).
The Ramban's position
assumes that the guardian can be zokheh on behalf of the orphans, who are
minors. Thus, the Ramban's understanding of apotropis is dependent
on his position that zekhiya is not presumed
shelichut. (This position of the Ramban in Gittin is not
totally consistent with his opinion voiced in Bava Metzia 71b,
where he excluded minors from zekhiya despite the fact that we
should not view zekhiya as presumed shelichut. An attempt at resolving this
contradiction goes well beyond the scope of this shiur; any
suggestions, however, would be greatly appreciated.)
Tosafot, therefore, who understood zekhiya as presumed
shelichut, which seemingly cannot be applied to minors, could never
have accepted such an approach.
The Ramban's approach also
assumes that one can be mafrish teruma with the consent
of the owner, even without the formal
appointment of shelichut. In an earlier shiur
(#2), we noted that this is, in fact, the position of the Ramban. However,
the Rashba, who (as we have seen) agreed with the Ramban that
zekhiya is not an application of normal shelichut, could not
adopt this interpretation of apotropis. After all,
the Rashba maintained (as mentioned in shiur #2) that only the owner
or his shaliach has the authority to be
mafrish; a guardian whose authority evolves solely
from zekhiya would lack this authority.
Sure enough, we find
that the Rashba (Gittin 52a) offered an alternate
explanation for the apotropis' ability to take teruma: "Yad
apotropis ke-yad ha-yetomin" - the hand of the guardian is considered
the hand of the orphans. This seems to indicate
that although the guardian lacks actual
ownership over the orphans' property, his
position empowers him to act on their behalf. His status
grants him the authority of ownership, though he lacks actual possession. In
this regard, he is similar to the gizbar (treasurer), who has the
authority to buy and sell on behalf of the
temple treasury, although it is clear that the ownership is divine.
In summary, we
encountered three approaches in understanding apotropis.
According to the Ramban, an apotropis operates by
virtue of the halakha of zekhiya. Thus, our Gemara actually
concludes that the verse "nasi echad" serves as the source for zekhiya.
Tosafot maintain that an apotropis is awarded ownership
in order to properly care for the
children under his charge. According to the
Rashba, the guardian's status affords him the authority of ownership, but
not actual possession
over the estate.
Sources and Questions for Shiur #5: