Chav Le-achrini - Disqualifying Shelichut Which Harms Third-Party Interest
Sources for the shiur:
1) Bava Metzia 10a "Rav Nachman ve-R. Yitzchak" ... Mishna.
Rashi s.v. Havei; s.v. Chav; s.v. Lo kana.
Tosafot s.v. Tofes.
2) Beitza 39a Mishna, Gemara "Itmar ... ha-memaleh."
3) Beitza 39b "Ela hakha be-magbiha ... lo kana."
Tosafot Bava Metzia 10a s.v. Rav Nachman. "Ve-Rabeinu Tam piresh ... be-bor."
Ramban Bava Metzia 10a "Amar R. Chiya."
The convention of shlichut (halakhic agency) is a familiar and widespread concept in Halakha. Many halakhic activities such as kinyan, kiddushin, gittin, and hekdesh can be performed indirectly through an agent (shaliach). Yet, the gemara in the first perek of Bava Metzia addresses the situation of "chav le-achrini" in which halakhic shlichut fails. Reuven cannot ask Shimon to collect a loan from a third party assuming this third party debtor has other outstanding debts. In such an instance, Shimon's shlichut or his collection on Reuven's behalf damages other peoples' interests. By appropriating a tract of land for Reuven, Shimon has precluded other potential creditors from collecting that land. In cases of chav le-achrini where the particular act of the shaliach damages others, the shlichut fails. The gemara in Bava Metzia (10a) raises another possible example of this failed shlichut known as "magbi'a metzia le-chavero." Reuven cannot appoint Shimon to acquire ownerless items on his behalf since this agency also damages other people who could have potentially acquired these very same items. This, too, represents a form of chav le-achrini in which classic shlichut is inoperative. This week's shiur will explore the nature of this type of failed shlichut.
What makes this halakha so startling is the fact that the gemara provides no rationale for this deterioration of shlichut. Shlichut is a tried and tested concept and it usually exhibits a high degree of flexibility and broad application. For the gemara to invalidate shlichut in cases of chav le-achrini without even providing a basis is somewhat surprising. To better appreciate this unexpected and strange omission we must only look to an analogous instance of failed shlichut – appointing an agent to perform an aveira (ein shaliach li-devar aveira). There, the gemara provides a clear reason for the failure of the shlichut to work (see Bava Metzia 10b). Yet, in our instance, no such explanation is provided.
This perspective can assist us in understanding the position of Rashi who severely limits this principle of shlichut failing when the agency damages others. According to Rashi, classical shlichut DOES indeed operate even when harmful to others. Only one unique form of agency is disqualified in our scenario. This is known as "zakhin le-adam she-lo be-fanav." In general, Shimon can act as Reuven's agent in cases of absolute benefit for Reuven, EVEN if he were not explicitly appointed as such. This capacity (generally referred to as 'zakhin') grants agents broad license to act on behalf of others without their knowledge, assuming the situation is completely beneficial to the other person. For example, Shimon may not divorce Reuven's wife or purchase an item for him without being directly appointed for these tasks. In either case Reuven might not have desired the consequences. However, Shimon can accept a gift from a third party on Reuven's behalf since this is a singular "zekhut" (privilege, without any possibly undesirable consequences) for Reuven; Reuven can be represented even without his prior consent.
According to Rashi, it was only this special form of 'tacit representation' or zakhin which was disqualified in instances harmful to others. Standard shlichut would be operative in ALL cases including those with negative connotations toward others. Rashi's position seems to contradict several gemarot many of which do not distinguish between standard shlichut and tacit zakhin and some of which actually disqualify even standard appointed shlichut. Reconciling Rashi's position with these seemingly contradictory gemarot lies beyond the context of this shiur. However, it is important to note that though his position is strained textually it seems very logical. Quite possibly, Rashi adopted the above stated logic that standard shlichut should in no way be hindered by chav le-achrini. Hence, he limited the disqualification to very unique forms of representation but allowed classic shlichut to continue operating even in scenarios of 'chav le-achrini.'
Though Rashi's desire to limit the chav le-achrini problem to 'zakhin' cases and not to all shlichut cases seems logical, we still might question the basis for this distinction. Indeed, according to Rashi, it makes little sense to disqualify all shlichut and he, therefore, limits the disqualification to zakhin. Yet, we might still question why even zakhin is discriminated against. If zakhin represents a halakhically viable form of tacit representation why should it fail where that representation will damage others?
The Ketzot Ha-choshen addresses this issue in siman 105:
He explores the manner by which someone can automatically become another's representative without the latter's explicit appointment. He offers two options: 1) We might translate assumed approval into halakhic appointment. Namely, we must assume that Reuven would desire Shimon's representation in situations of absolute advantage. In Halakha, assumed approval is referred to as 'umdana' (literally - we assess the mindset of a person). Even though no formal appointment was enacted, an umdana to such exists and we consider it as if Shimon had been appointed. Had Reuven known about the opportunity he surely would have appointed Shimon; it is as if Shimon were ACTUALLY appointed. 2) The Ketzot suggests another option and indeed a very different source for Shimon's appointment in cases of zakhin. In the absence of outright appointment by the beneficiary, the Torah ITSELF appoints an agent to act on someone's behalf. If Levi wants to transfer a gift to Reuven who is not present the Torah authorizes Shimon as Reuven's agent to accept the gift from Levi. The Torah expects people to act on behalf of others and appoints people to those missions.
Ultimately, the Ketzot posits that Rashi's distinction between shlichut and zakhin might revolve around this factor. Indeed, there seems little reason that peripheral harm to others should subvert shlichut OR zakhin for that matter – assuming that zakhin is similar to shlichut. In the case of shlichut, the beneficiary appoints the shaliach officially while in the case of zakhin he appoints by assumption. The distinctions between them seem slim at best and certainly zakhin should not be discriminated against in cases of chav le-achrini. Possibly, Rashi maintains that zakhin's appointment stems from Torah law - to act for another's benefit. This legislated representation might only obtain if all parties benefit (no one is damaged by Reuven's gain – for example, where Levi stipulates that he only intends the gift to Reuven). If others will lose through Reuven's gain (for example, an ownerless item which anyone can claim or collection of land in lieu of a debt in a case where other creditors exist) the Torah makes no legal appointment for Reuven's benefit. As opposed to an individual, the Torah considers the broader picture and cannot favor one person at another's cost.
We have outlined the basic halakha of chav le-achrini and noted its potency in disqualifying the seemingly omnipresent rule of shlichut. We studied Rashi's position which limits the disqualification to zakhin (tacit representation) and suggested that he sympathized with our concern. The Ketzot suggested an explanation of Rashi's distinction between zakhin and classic shlichut.
Most Rishonim do not distinguish between zakhin and shlichut and claim that chav le-achrini disqualifies each – Reuven cannot even explicitly appoint someone to represent him, if others parties will be damaged. Interestingly enough, both the Ashkenazi commentators – Tosafot – as well as the Sephardi ones - Ramban and his students- disagree with Rashi. Hence, we return to our point of departure - how to explain the invalidation of halakhic representation (zakhin as well as shlichut) in cases which damage other parties.
Oddly enough, this fundamental question is not directly addressed by the Rishonim. Very few, if any, of the Rishonim actually articulate an explanation of this problem. Nonetheless, we might suggest two basic approaches toward understanding this principle. We might locate the failure of shlichut in one of two areas. We might claim that Reuven cannot appoint a shaliach in cases of chav le-achrini since he does not have sufficient authority to appoint. Some commentators direct our attention to the Ran (Bava Metzia 11b) who develops the term ba'al ha-mammon - (literally the owner of the money). In general, I might appoint an agent to marry a woman and give him money to perform this task. As the exclusive owner of the money and the intended husband I am completely authorized to make this appointment. However, I do not have authority to appoint a shaliach to grab an ownerless item since I am not the owner of that item. The failure of shlichut in cases of chav le-achrini lies in the lack of authority of the beneficiary to make the appointment.
An alternate suggestion might place the failure of chav le-achrini not in the appointment process but in the execution of the shlichut. Representation in halakha can only be implemented if no other parties lose. If others are damaged by the agency the representative act misfires. Indeed, the appointment was successful, but the agent cannot effect any action since the entire concept of halakhic representation only applies where only one party is impacted by the situation.
This second view - that the beneficiary can appoint but ultimately shlichut inherently fails where others are impacted - might evolve from an interesting exception to our rule stated by the gemara in Bava Metzia (10a). The gemara suggests that a day-laborer may acquire ownerless items on behalf of his employer. Rabenu Chananel suggests a similar exception in the case of the executor of a state who protects the interests of orphans who are still minors. He may also collect their debts or acquire ownerless items on their behalf. Had the problem with chav le-achrini resided in the appointment process, we might question why these cases are exceptions; they, too, seemingly have to be appointed according to the constructs of shlichut and cannot exist when others are damaged. However, if we view standard representation as inherently irrelevant in cases of chav le-achrini we might better understand these exceptions. The cases of a hired worker or an executor might reflect cases in which standard representation (shlichut) is superseded and the individual can be viewed as my 'direct agent' rather than merely a proxy. Once we view these individuals as super-agents who more directly represent their clients we might justify their effectiveness even in cases of chav le-achrini. Standard levels of representation default in cases of chav le-achrini but possibly higher and more direct forms are sustained.
Upon examining the dominant position of most Rishonim to invalidate all forms of representation, we might present two options. Either the appointment process fails or the actual representation cannot succeed in these cases. One difference between these two approaches might be the case of a laborer or the executor of an estate.
In conclusion, we might inspect a secondary issue pertaining to the definition of CHAV LE-ACHRINI which might be influenced by the essential definition of this principle. To what extent does the disqualification of chav le-achrini apply if others are not directly harmed but are prevented from profiting. Must they actually be injured or merely precluded from generating profit? The Ramban in Bava Metzia (10a) notes the position of Rav Yochanan that a shaliach cannot collect debts for Reuven but CAN acquire ownerless items. In general, these two scenarios are equated by the gemara and taken as textbook examples of chav le-achrini. Yet, Rav Yochanan seems to distinguish between them. The Ramban explains that indeed Rav Yochanan only classified direct loss as chav le-achrini but did not define prevention of profit as such. Hence, a shaliach may acquire ownerless items since he is only preventing potential profit and not outright harming. The gemara's dominant opinion, however, disagrees with Rav Yochanan and views acquiring ownerless items as a form of chav le-achrini.
A similar distinction is drawn by Rabenu Tam surrounding a gemara in Beitza (39b) which allows an agent to draw water on another's behalf – even though he is preventing others from drawing water at that moment. Rabenu Tam concludes that drawing water cannot be considered chav le-achrini since there is sufficient water for everyone and others will wait in line for their turn to draw water. In the case of ownerless items or creditors vying for one tract of land Reuven's gain directly impacts a loss upon others. Other commentators disagree with Rabenu Tam's distinction claiming that, in theory, drawing water would also be classified as chav le-achrini.
These two situations provide an interesting study in the definition of chav le-achrini. To what degree is this question a product of the previous one? We questioned whether the appointment fails or only the actual execution fails. Which perspective of chav le-achrini would demand a real loss for the rule to apply and which perspective would allow even prevention of profit to scuttle the shlichut? This question will be left to reader to ponder.
Sources for the next shiur:
1. Bava Metzia 10a, "Rav Nachman ve-Rav Yitzchak…" until the Mishna. Rashi, s.v. hevi, chav, and lo kana. Tosafot, s.v. tofes.
2. Beitza 39a, Mishna; Gemara, "itmar… ha-memale."
3. Beitza 39b, "ela hakha be-magbi'a… lo kana." Tosafot, Bava Metzia 10a, s.v. Rav Nachman: "ve-Rabbenu Tam perash… be-bor."
Ramban, Bava Metzia 10a, s.v. amar Rav Nachman.
4. 8b, "shenayim she-hayu moshkhin… ve-ika de-amri hanhaga be-gamal," Rashi and Tosafot; Rambam, Hilkhot Aveida 17:5; Sefer Mekach u-Memkar, sha'ar 13, "u-le-olam meshikhat ha-behema… hakhi hu darkhan lirkov"; Rashba 9b, s.v. ba'i R. Elazar.
5. Rashi 8a, s.v. de-rakhev kani; 8b, Tosafot, s.v. "rachuv adif"; Meiri, s.v. amar ha-Meiri, and s.v. zehu; Shittah Mekubetzet 8b in the name of Rivash; Rambam, Hilkhot Aveida 17:6-7; Hilkhot Mekhira 2:6, 10.