Disqualifying a Gentile from Shelichut

  • Rav Moshe Taragin

Several gemarot disqualify a gentile from serving as a shaliach (agent) based on a derivation from one of the three pesukim that serves as a source for shelichut (agency). The Torah describes the process of assigning teruma by stating, "You should ALSO separate teruma" (Bamidbar 18:28). Based on the extra word, “also,” the gemara in Kiddushin (41b) derives the fundamental ability to assign teruma through a shaliach. A sub-derasha excludes gentiles from participating in the general agency of shelichut. Since the Torah develops the concept of shelichut through the phrase "you should also assign," the gemara asserts that just as you (the Jewish owner of the teruma) are a ben brit (a member of the covenant), your sheliach must similarly be a ben brit. Based on this derasha, a gentile is invalidated as a shaliach.

 

The typical approach assumes that a gentile is FORMALLY disqualified from shelichut, just as he is FORMALLY disqualified from serving as an eid (witness). If this is true, the syntax of the limud is merely stylistic. Alternatively, a gentile may be disqualified because he is not equal to the author of this process (known as the meshalei'ach). The institution of shelichut demands a degree of PARITY between the author and his agent, the meshalei'ach and the shaliach. Any significant discrepancy between the two prevents halakhic representation. In this view, a gentile is not FORMALLY disqualified; rather, the fact that he is not part of a covenantal community renders him DIFFERENT from the author and therefore unable to represent him.

 

The most obvious nafka mina of this issue would be situation in which a gentile is not discrepant from the meshalei’ach. The Mishnah Le-Melech (Hilkhot Sheluchin Ve-Shutafin 2:1) cites a comment of the Masa'at Binyamin questioning whether a gentile can serve as shaliach for another gentile. Clearly, if a gentile is formally disqualified from shelichut, he could not serve as a shaliach for either Jew OR gentile. However, if he is invalidated because he is discrepant with his meshlei'ach, he can represent a different gentile whom he is not dissimilar from. This has an intriguing halakhic application concerning the ability of a gentile to represent a different gentile for the purposes of the sale of chametz. The Magen Avraham (OC 488:4) allows this representation.

 

An inverse situation relates to a Jew who is discrepant from his meshalei'ach. The Me'iri in Gittin (22b) claims that a meshumad (a Jew who has converted to Christianity) cannot serve as a shaliach for a different Jew. Even though the meshumad's status has remain unchanged, since he has bought out of the brit (covenant), he is very different from his meshalei'ach. If the disqualification applied to gentiles in a formal manner, a meshumad should be able to act as a shaliach.

 

A surprising statement of Tosafot convinces us that the disqualification is not formal. Commenting on a mishna that invalidates a gentile to deliver a get as a shaliach, Rabbenu Tam claims (Tosafot, Gittin 23b, s.v. ein) that EVEN a gentile in the process of conversion is disqualified. The formal status of a conversion candidate is absolutely identical to any other gentile. If the disqualification were based on the formal status of a gentile, there would be absolutely no reason to consider a candidate for conversion as a potentially valid shaliach. Evidently, the disqualification of a gentile is based on his being excluded from the brit and that fact that he is dissimilar to his sender. The conversion candidate is LESS dissimilar, since he seeks to join the brit, but the mishna disqualifies him as well. The very fact that he is not automatically disqualified suggests that the disqualification is not formal and is not based upon his objective status.

 

A different proof that this is not a formal disqualification stems from an interesting extrapolation of the Ra'avad. Commenting on the inability of a minor (katan) to be represented through shelichut, the Ra'avad claims that we infer this from the pasuk cited above: Ma atem bnei da'at (just as you are cognitively mature), so must your shaliach be cognitively mature (and not a katan). The Ra'avad extends the original derasha disqualifying a gentile and creates a parallel source disqualifying a katan. If the original derasha were merely a poetic way to invalidate a gentile, it would be irrelevant to the situation of a katan. However, since the original derasha demands similarity between author and agent and identifies religious identity as a variable determining this parity, the Ra'avad felt comfortable introducing a different variable to gauge parity or discrepancy. Just as religious identity determines parity, cognitive capacity (katan or gadol) can similarly reflect the level of parity and the ability to create shelichut. Evidently, the Ra'avad also read this derasha as demanding parity between the meshalei'ach and shaliach.

 

In fact, an interesting comment by Tosafot (noted independently by R. Yosef Engel in his sefer, Gilyonei Ha-Shas) claims that the source for disqualifying a gentile is not a derasha at all, but merely an intuitive sevara. Tosafot is forced to reach this conclusion because the pasuk describing teruma separation is utilized – at least according to R. Shimon (Kiddushin 41b) – as the source for a different halakha. Tosafot claim (Gittin 23b, s.v. mah) that the invalidation of a gentile shaliach can be derived LOGICALLY and does not require an exegetical halakha from a pasuk that is already dedicated to an alternate derivation. It seems that Tosafot viewed the disqualification as stemming from the need for parity. This need may be INTUITIVE, as the entire apparatus of shelichut is based upon one person representing another. Without some degree of identity, this representation would fail. Tosafot felt that the entire notion could be intuited, just as the Ra'avad believed that the sevara could be extended beyond the exegetical limits of gentile shelichut.

 

If this is true and a gentile is disqualified as a shaliach because he is different from the meshalei’ach, we may solve an interesting contradiction between two statements of the Rambam. In Hilkhot Eidut (9:4), the Rambam disqualifies a slave from serving as an eid since he IS NOT considered a ben brit. Since he is not obligated in ALL mitzvot, he cannot be considered a full Jew and he therefore cannot testify. Yet in Hilkhot Sheluchin Ve-Shutafin (2:2), the Rambam VALIDATES an eved as a shaliach since – as the gemara in Kiddushin (41b) and Gittin (23b) itself affirms – he is considered a ben brit (as opposed to a gentile).

 

 

Perhaps the two statements are describing very different halakhot, each of which uses the ben brit status differently. A person who is not a full Jew cannot testify from a formal standpoint. An eved possesses partial Jewish status – he is not obligated in all mitzvot, nor does he possess full kedushat Yisrael, as expressed by his ability to marry a shifcha – rendering him FORMALLY unfit for testimony. However, the ability to serve as a shaliach is not based on whether a person’s formal status renders him a complete Jew. Rather, he must possess similarity and association with his Jewish meshalei'ach in order to adequately represent him. Since he DOES fulfill some mitzvot and is generally considered part of the covenant (ben brit), an eved possess enough similarity to represent his Jewish meshalei'ach. Eidut is based on the formal status of an eved, whereas shelcihut is determined by level of identity between sender and agent.