Lo Chazra Shelichut etzel Ha-baal (24a)

  • Rav Yair Kahn
 
 
Sources:
1. ללמוד עד סוף הפרק.
2. דף סג: "אמר רב... וחליצה לאחר מיתה", וברש"י.
3. תוספות דף כד. ד"ה והא, חידושי הריטב"א מכת"י.
4. רשב"א דף סג: ד"ה ולענין פסק הלכה "ואי לאו דמסתפינא...".
5. רמב"ם הל' גירושין פ"ו הי"ג, ובמגיד משנה, אבני מילואים קמ"א, א.
 
Questions:
1.    How does Rabbeinu Crescas understand the law of “lo chazra shelichut etzel ha-baal”? 
2.    What is the argument between Rashi and Tosafot explaining “lo chazra shelichut etzel ha-baal”?  Is there a difference between Rashi’s commentary in our passage and his commentary below 63b?
3.    How does the Rashba distinguish between the two passages?  On what does he base this distinction?
4.    How does the Avnei Milluim explain the contradiction in Rashi’s words?
5.    According to the Rambam, the divorce becomes valid when the agent transfers the get from his hand to the hand of the woman, even if we conclude that lo chazra shelichut etzel ha-baal.  What is difficult about this ruling?  How may we explain it?
 
Introduction
 
The Gemara in our passage assumes, as a simple matter, that shelichut where an agent cannot return to the sender is invalid. This is why a woman cannot be both her husband’s delivering agent (sheliach holakha) and her own receiving agent (sheliach kabbala).  On the surface, it appears that this law is a general principle of agency: the agent (shaliach) must return to the principal (meshalei’ach) and notify the principal of the practical execution of the mission.  This notification is part of fulfilling the mission, and therefore if this reporting is not possible, the shelichut itself is null and void.  
 
In order to understand this more fully, we should note that there is no doubt that the shelichut is valid even if the agent does not return.  Even so, ab initio, the agent is required to return and notify his sender, and this notification is an integral part of the shelichut.  Therefore, so that the shelichut may be valid, the possibility of returning must exist — the shaliach must have the capability to go back and notify the principal.  This may be analogous to the famous law of flour-offerings and the amount of oil put in them: “Wherever proper mixing is possible, the mixing is not indispensable, but wherever proper mixing is not possible the mixing is indispensable” (Menachot 103b).
 
However, we should note that outside of shelichut of gittin, we have not found any mention of this invalidation.  Moreover, our passage does not note any source for this innovative law, but merely states: “Ha lo chazra shelichut etzel ha-baal!”  The introductory “Ha” indicates astonishment at the mere concept of validating non-complementary shelichut.
 
Lo Chazra as a Collateral Consideration
 
Indeed, Rabbeinu Chasdai Crescas, in his Chiddushim, understands that the passage does not deal with the invalidation of shelichut per se', but rather with a local disqualification. Since the wife, who acts as the husband's agent, doesn't actually deliver the get, but instead ceases to be the husband's agent. The get transfers from the husband to the wife passively, lacking the netina (act of delivery) required regarding a get. However, this interpretation does not appear reasonable, because the wording of our passage indicates that we are talking about an invalidation of shelichut.
 
Lo Chazra as an Essential Invalidation of Shelichut
 
This law appears elsewhere in the Gemara, below in the sixth chapter (63b).  At first glance, the two passages appear to be parallel, but upon further scrutiny, we will see that there is a significant distinction between them.  In our passage, it is implied that if lo chazra, the shelichut is certainly null and void, while below its status is in doubt:
 
But there has been no time for the agent to return to the husband…! 
 
Rabbi Chiya bar Abba, however, said: “We must consider the matter.” 
 
They again sent to consult Rabbi Chiya bar Abba.  He said: “How many more times will they send? Just as they are unable to decide, so we are unable to decide.  This is a matter of arayot, and whenever it is a matter of arayot, the woman must perform chalitza.” 
 
In a case which actually happened, Rav Yitzchak bar Shemuel bar Martha ruled that both a new get and chalitza to be required.  Why both?  A get as long as he lived; chalitza after his death.
 
Thus, the woman must receive a get to remarry because she may still be married to her first husband, but if he dies without issue, she must perform the chalitza ceremony.  The discrepancy between these passages is glaring and requires explanation.
 
View of the Rashba
 
Attempting to resolve this contraction, the Rashba distinguishes between the passages. According to his interpretation, everyone agrees that lo chazra shelichut etzel ha-baal is a thorough invalidation, and it is clear that this invalidation is relevant in our passage, in which the agent cannot possibly return to the husband.  The doubt below (63b) is that at the time of the appointment and inception of the shelichut, the shaliach is capable of returning to the husband, and only afterwards — at the time of the execution and fulfillment of the shelichut — can no longer return.  In other words, the Gemara has a doubt as to whether the invalidation of lo chazra shelichut etzel ha-baal is an invalidation of the inception or the fulfillment.  When the husband says to his wife, “Be my delivering agent until you arrive there, and when you arrive there, be your own receiving agent,” the very appointment of the shaliach precludes returning to the husband.  However, if the husband appoints a regular delivering agent, there is no deficiency in terms of the appointment and the inception of the shelichut.  However, if afterwards the woman appoints the same delivering agent as a receiving agent, then at the time of the fulfillment of the lo chazra shelichut etzel ha-baal.
 
Rashi’s View
 
Rashi in our passage has a different approach.  He writes:
 
This one is not able to return, because she was sent only to herself, and since she is the actor, and the shelichut is nullified before she returns.
 
The Tosafists dispute this explanation, writing:
 
One is not called an agent unless he is sent by the principal to another and is able to return to the principal and say, “I have fulfilled your mission to your fellow.”  But Rashi did not explain this way.”
 
In other words, according to Rashi, the invalidation of lo chazra shelichut etzel ha-baal is only applicable when the husband’s shaliach is the actor (baal ha-maaseh) himself or herself; in our case, this is the wife.  Tosafot dispute this, arguing that one should invalidate even in a case in which the husband’s shaliach is not the actor.  Even if the husband’s agent undertakes some mission which excludes the status of husband’s agent before he can return and notify the husband, one should invalidate it because the shelichut lo chazra.  Apparently, the Gemara below (63b) dovetails with the words of Tosafot.  There, we are not dealing with the wife herself, but rather a delivering agent who becomes a receiving agent.  See there in Rashi’s commentary, for he also explains according to words of Tosafot in our passage, writing:
 
“Lo chazra shelichut etzel ha-baal” — any agent who returns and becomes an agent for the one to whom he was sent is severed from the original agency before he has the opportunity to return to the principal and say “I have fulfilled your mission,” and if one is not able to return and to report, this is not agency.   
 
Rashi’s words are contradictory, and they require some explanation. 
 
The Avnei Milluim explains that Rashi’s commentary is directed towards the above-mentioned question of the Rashba: our passage invalidates shelichut that precludes returning to the husband absolutely, while in the Gemara below, this is in doubt.  Rashi, according to the Avnei Milluim’s explanation, distinguishes between the two passages.  Our passage, which talks about the wife herself, determines that the shelichut is nullified definitely.  However, the Gemara in the sixth chapter deals with a delivering agent who becomes a receiving agent, and therefore the Gemara has a doubt if one should apply the invalidation of lo chazra shelichut etzel ha-baal in this situation as well. 
 
In order to understand this, we should note that invalidating shelichut because it is cannot return is only relevant when the shelichut is totally uprooted before there is an opportunity of returning to the husband.  According to Rashi, the essential nullification and uprooting of the shelichut occurs when the shaliach is the opposing claimant.  This is because these two roles contradict each other: it impossible to be both the initiator of the divorce and the divorcee, just as it is impossible to be both buyer and seller.
 
According to Rashi, the passage in the sixth chapter ends with a doubt about a situation in which the shaliach becomes the agent of the claimant but is not the claimant himself: is only the actor himself precluded from undertaking a mission for the opposing side, or does anyone who executes a mission on behalf of that actor thereby annul the original agency as well?[1]  The Tosafists write:
 
One is not called an agent unless he is sent by the principal to another and is able to return to the principal and say, “I have fulfilled your mission” before he becomes an agent for others.”
 
Their language seems to imply that any other shelichut, even if it undertaken on behalf of an unrelated party, uproots the original shelichut.  However, this position does not appear feasible at all.  It makes sense that according to Tosafot, only shelichut for the opposite claimant annuls the original shelichut.  If so, Rashi’s doubt is settled by Tosafot. 
 
Moreover, one may explain that according to all views, only the status of the actual party can invalidate the shaliach; if we are dealing with regular shelichut, for example, the seller’s agent becoming the buyer’s agent, the shelichut would be fully valid.  Despite this, the Gemara has a doubt in the sixth chapter as to the law of the delivering agent who turns into receiving agent, and this is because the unique definition of a sheliach kabbala.  A regular shaliach does something for the meshalei’ach, but he does not become akin to the meshalei’ach himself.  However, when it comes to the receiving agent, there are those who understand that shelichut along standard lines is not relevant; some argue that because a woman may be divorced against her will, she does not have, from her point of view, any action of kabbala which she can charge to the shaliach to do on her behalf.
 
This is the language of the Rosh in his Tosafot (Kiddushin 41a):
 
“‘Ve-shillechah’ — this teaches that she makes an agent” — you may say: why do we need two verses, one for the husband’s agency and one for the woman’s agency?  We may say that originally we thought that agency is relevant for the husband only, because he divorces only according to his desire; however, the woman, who may be divorced against her will, does not possess power to the extent that she may appoint an agent in her place.
 
Explaining his words, we may say that the additional derivation creates a new definition of shelichut relating to the sheliach kabbala: the receiving agent does not accept something upon the woman’s behalf; rather the agent becomes the woman, and his hand is her hand.[2]  Therefore, it is specifically the appointment of the agent as a receiving agent which uproots the original shelichut, since his hand is now like her hand, and the shaliach is akin to the wife.
 
The Rambam’s View
 
However, the Rambam (Hilkhot Geirushin 6:13) rules:
 
This is when a husband sends a get to his wife, and when the agent attempts to give it to her, she refuses to take it and tells him in the presence of witnesses, "Hold the get in safekeeping," or "You are an agent to receive it for me."  Until the get is given to the woman, the status of the divorce is in doubt.  Once it reaches her possession, the divorce is definitely binding.
 
In the situation in which the woman appoints the delivering agent to be a receiving agent, the Rambam rules that the get is invalidated due to its doubtful status, which is the conclusion of the passage in the sixth chapter.  However, the continuation is astonishing and perplexing: “Once it reaches her possession, the divorce is definitely binding.”  This is difficult to understand: if the delivering agent is invalidated because he is incapable of returning to the husband, even when the get reaches the hand of the woman, it is not being transferred by the husband or by his agent. This case should be invalid since it lacks the prerequisite netina of the husband or his agent. This question troubled the Taz (EH 141:2).
 
The Avnei Milluim (op. cit. subparagraph 1) responds to this question. According to him, since the husband’s shaliach has not had the opportunity to fulfill his mission and to return and notify his principal, he never assumed agency of the woman, since this would nullify his status as the husband’s agent.  Naturally, if this agent — who is still defined as the husband’s shaliach — ultimately puts the get in the woman’s hand, this will be fine.
 
However, this explanation is imprecise regarding the Rambam’s language.  According to this commentary, the get is not categorically kosher unless the shaliach gives the get to the woman; but if he does not give her the get, even though it reaches her hand, she is not definitively divorced.  If so, the Rambam would have to write: “Until the get is given to the woman, the status of the divorce is in doubt.”  The terminology “Once it reaches her possession” implies that there is no need for the agent to place it there, and if so, the Taz’s question arises once again. 
 
The view of the Rambam only becomes clear in light of his innovative view of what the Rambam termed sheliach havaa (loc. cit. 4-5):
 
Similarly, a woman may appoint an agent to fetch her get for her from her husband.  Such an agent is referred to as an agent who fetches (sheliach havaa).  Neither a sheliach holakha nor a sheliach havaa require witnesses.
 
A woman is not divorced through the medium of a get sent by her husband or brought by a sheliach havaa until the get reaches her hand.
 
Whenever the term “agent” is used with regard to a get without any further explanation, the intent is a sheliach holakha or a sheliach havaa.
 
The Rambam posits an innovative view: the woman may appoint a sheliach havaa, and she is not divorced until the get reaches her hand.  This requires some explanation: this sheliach havaa is the woman’s agent, and if so the act of giving the get over occurs at the time when the husband hands the document over to the agent; despite this, the woman is not considered divorced until the get reaches her hand.
 
This appears to indicate that indeed the sheliach havaa is an agent to receive the get as given by the husband’s hand, thereby solving the problem of netina.  However, the woman is still not divorced, because the sheliach havaa is not defined as the woman’s hand; aside from the husband’s giving over the document, there is also a requirement that the get reach the woman’s hand (see shiur 12).  Only a receiving agent who is appointed in front of two witnesses is defined as the woman’s hand. 
 
In light of all this, it appears that in the view of the Rambam, the invalidation of lo chazra shelichut etzel ha-baal is only relevant to shelichut in terms of the actor himself, as we have seen above in Rashi’s view.  However, the Gemara has a doubt relating to a receiving agent, because we are talking about a certain type of agency: one is not performing an act for the woman; one becomes the hand of the woman.  Only concerning the receiving agent do we say that lo chazra shelichut etzel ha-baal.  Therefore, concerning a delivering agent who becomes a receiving agent, we may say that we do not really apply to him the status of an actual receiving agent, because his hand is like her hand; this will invalidate the delivering agent because lo chazra shelichut etzel ha-baal.  We are compelled to say that the status of the shaliach is merely that of a sheliach havaa, who receives the get when the husband gives it over but is not like the woman’s hand.  Therefore, the woman’s shelichut does not invalidate the shelichut of the husband at all.  Naturally, the giving of the get by the hand of the husband has already been accomplished, and we require only that the get ultimately reach the hand of the woman, as implied by the language of the Rambam.
 
According to this understanding, we should not be surprised that we have not found the law of lo chazra shelichut etzel ha-baal anywhere outside of the context of gittin.  According to the above-mentioned approach, the invalidation exists, when the shaliach is not an actual party, only in the specific case of a sheliach kabbala, who is considered to be the hand of the woman.  However, in regular contexts of shelichut, even one who is appointed to be the agent of the opposing party is not invalidated because of lo chazra shelichut etzel ha-baal.
 
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For next week:
Rei’ach Ha-get — Scent of Divorce (24a-25a)
  1. Mishna 24a, gemara until 25a "umachzirin zeh lazeh bayovel."
  2. Yevamot 52a, "ba'a minei Abaye miRavasheposel bikehuna."
  3. Gittin 86b, "halakha k'Rebi Eliezer … rei'ach haget ein bo," Mishna 81a.
Questions
  1. The mishna lists several different cases of non-lishma. Is there an essential difference between them?
  2. There are four opinions in the gemara concerning a psul kahuna in cases of non-lishma gittin. What is the basis for the disagreement?
 
 

[1] This question might be dependent on the basic concept of shelichut, whether the shaliach is only the hand of the meshalei’ach or becomes the actor himself, but this is not the place to elaborate.
[2] See above, shiur 17: according to Ri Megas, an eved, who is not a party to halakhic marriage or divorce, is ineligible to become a sheliach kabbala, since he has no “hand” for divorce, and the law of his hand becoming like her hand is not applicable.