The Inability of a Shaliach to Affect Third Party Interests
Shelichut, the power of agency, is one of the most ubiquitous mechanisms in the halakhic system. With very rare exceptions, a person can delegate an agent to execute halakhic activities (kinyan, kiddushin, get). However, several gemarot describe an interesting case in which shelichut will fail – if the agency harms third party interests. For example, a shaliach cannot be appointed to collect debts from a debtor who owes other people money and has limited funds. Since the collection of the debt on behalf of Reuven will harm Shimon, who is also owed that money, the shelichut fails. Similarly, many maintain that a shaliach cannot be appointed to acquire lost items (aveidot), since acquisition on behalf of one person denies others that opportunity.
Why is shelichut, which is otherwise so pervasive, limited in situations of chav le-achrini, in which third party interests are negatively impacted? In an earlier shiur, the question was addressed and a basic analysis was suggested. In this shiur, we will amplify the analysis and provide significant nafka minot.
One approach is to pin the malfunction of shelichut upon the selection process (minuy). Only the owner of the shelichut-targeted item (ba’al ha-mammon) is authorized to appoint a shaliach. A person cannot appoint a shaliach to sell someone else’s field or divorce someone else’s wife. Money that is owed to other creditors is similarly not the sole possession of the current malveh who seeks to appoint a shaliach. Since other people have rights to that money, the current malveh is not considered the owner of the funds, and therefore cannot APPOINT a shaliach.
Support for this view of chav le-achrini may be drawn from an interesting gemara that identifies an exception to the general rule – a situation in which a shaliach CAN operate even in cases of chav le-achrini. The gemara in Bava Metzia discusses a po’el (laborer) who can operate as a shaliach for his employer even in situations of chav le-achrini. The simplest manner of justifying this halakha is the absence of minuy-dependency. A po’el has been hired as a UNIVERSAL shaliach for the employer, and he therefore does not require specific appointment for each particular task. Since he does not require minuy, he is not deterred from chav le-achrini activities, which typically prevent minuy appointment.
Similar logic would explain the ability of a chatzer to operate as a shaliach for its owner in acquiring items even in situations of chav le-achrini. Presumably, the chatzer is a minuy-independent shaliach and can operate even in chav le-achrini situations that usually prevent minuy.
A different view of chav le-achrini may emerge from the gemara that applies chav le-achrini to collecting lost items (Bava Metzia 10a). According to R. Nachman and R. Chisda, just as a person may not appoint a shaliach to collect debts when there are other creditors, he is similarly blocked from appointing a shaliach to collect lost items that could potentially be retrieved by others; collecting for Reuven is inherently damaging the interests of Shimon. Since an aveida is not owned by anyone else, minuy should be effective in this case, yet shelichut cannot be generated to collect aveidot.
Perhaps chav le-achrini poses a different and more fundamental concern. A shaliach cannot execute an action on behalf of his dispatcher (meshalei’ach) if that action will negatively affect others. The limitation is not inherent in the minuy stage, but rather in the very EXECUTION OF shelichut. A shaliach can usually perform halakhic activities on behalf of his meshalei’ach, but this representation applies only if no one else is harmed. Once negative impact for others exists, the entire representative capacity of a shaliach is crippled.
Put differently, is chav le-achrini an impediment TO APPOINTING a shaliach because the meshalei’ach is not the sole possessor of the item, or is chav le-achrini a breakdown of the inherent REPRESENTATIVE CAPACITY of a shaliach? In theory, the nafka mina between these two possibilities would be situation in which the meshalei’ach seeks to appoint a shaliach who will affect someone else’s property but no harm will be caused.
The gemara in Beitza (39a) describes a case in which one person draws water from a well on behalf of another. The gemara probes the status of the water in the context of Shabbat. Is it considered the water of the one who draws it (and can thus be transported in the techum of that person), or is the water owned by the intended recipient of the water, on whose behalf the water was drawn? R. Nachman claims that the water is identified as the recipient’s water, implying that the “drawer” was able to acquire water for the recipient. Most Rishonim question this ability. Isn’t the “drawer” acquiring water through shelichut in a situation of chav le-achrini? Since other people also own rights to and want to draw this water, chav le-achrini should block shelichut!
Tosafot (both in Bava Metzia and Beitza) cite Rabbenu Tam, who claims that chav le-achrini does not apply in this case since there is sufficient water in the well for everyone. Even though shelichut is being executed over items that are not uniquely owned by the meshalei’ach, the shelichut can operate because no harm is being caused. Evidently, it is the damage to others that impedes shelichut in classic cases of chav le-achrini. Since no damage ensues in the water case, chav le-achrini does not prevent this shelichut.
Similar logic may help explain the famous “exception” in which shelichut operates in a case of chav le-achrini – the situation of migu de-zachi. If the shaliach is ALSO owed money, he can seize money from the loveh on behalf of the malveh even though he is damaging third party interests (see Bava Metzia 8a, 10a). If a meshalei’ach cannot appoint a shaliach on money owned by others, the ability of the shaliach to collect his own debt should not validate shelichut. He may be able to collect the money for HIMSELF, but he should still be barred from being appointed a shaliach because the meshalei’ach is not the sole owner of the money. If, however, it is specifically damage that scuttles the representative capacity of a shaliach, perhaps migu de-zachi scenarios are defined as damage-less situations. Since the shaliach could have personally collected this money, those funds are already inaccessible or LOST to other potential creditors. Since the monies are already lost, no real damage results from the shaliach’s seizure of the funds for the meshalei’ach.
If the chav le-achrini prevention of shelichut stems from the fact that the meshalei’ach does not own the item and cannot appoint a shaliach, the absence of damage should not constitute an exception. If, however, chav le-achrini disqualifies shelichut because of the damage to other parties, situations in which negligible damage occurs should allow for shelichut. If the actual damage impedes shelichut, situations of migu de-zachi render the item already lost. The shelichut no longer causes damage.
By contrast, if non-ownership of the funds owed to others prevents shelichut, a different logic for the function of migu de-zachi in validating shelichut must be developed. Evidently a new model to understand the operation of migu de-zachi must be posed.
Let us return for a moment to the situation of the po’el who can operate as a shaliach even in chav le-achrini circumstances. We suggested above that this exception indicates that the chav le-achrini affects the minuy ability, and since a po’el is minuy-independent, he can freely operate as a shaliach. If chav le-achrini does not affect the minuy, but rather the essence of a shaliach’s representative capacity, the po’el case must be understood differently. Perhaps a po’el represents a different and HIGHER grade of shaliach, whose representative capacity is unaffected by potential damages to third party interests. If this is true, other forms of superior shaliachs may also be empowered, like the po’el, to operate even in instances of chav le-achrini.
The Rosh cites the situation of an apotropus, the executor of an estate who can represent orphans even in chav le-achrini situations. This case is not that much different from a po’el, as an apotropus also does not require action-specific minuy. However, many Rishonim (as part of an attempt to resolve contradictions in Rashi) nominate additional shaliachs who DO require minuy but who nevertheless CAN operate in chav le-achrini circumstances. For example, the Shitta Mekubezet in Bava Metzia (10a) suggests that a shaliach appointed with a harsha’ah (a ”reinforcement” document strengthening the terms of his debt collection) may be able to seize the funds. Similarly, the Shitta suggests that a shaliach who was appointed with eidim may be able to successfully execute chav le-achrini representations. The Shach adds that a shaliach who was paid money may also act in these circumstances. Presumably, all these shaliachs require an appointment process, yet they succeed even in chav le-achrini situations. Evidently, then, the minuy stage is not the problematic issue; even shaliachs who require minuy may be successful. The real issue stems from the shaliach’s incapacity to execute representation when he harms others. The exception of po’el illustrates that more powerful shaliachs overcome this concern. In addition to po’el, other types of shaliach may be seen as equally powerful and similarly capable of overcoming chav le-achrini limitations.
By extension, perhaps a shaliach who can also personally acquire the funds or lost item – constitutes a higher and more powerful form of shaliach. Migu de-zachi doesn’t render the scenario as “harmless” thereby enabling successful shelichut. It empowers the shaliach to operate more autonomously and skirt the limiting effect of chav le-achrini.