Migu De-Zakhi Le-Nafshei - Acting as an Agent While Damaging Third Party Interests

  • Rav Moshe Taragin

Last week's shiur addressed the failure of shlichut to operate when it damages a third party.  This issue highlighted the different manners of appointing a shaliach and the different levels of representation which might exist.  This week's shiur will inspect a situation in which shlichut DOES succeed EVEN THOUGH others are negatively impacted.  The gemara in Bava Metzia (8a, 9b and 10a) introduces the concept of migu de-zakhi le-nafshei zakhi nami le-chavrei.  If the agent executing the action can take the item for himself, he can acquire it for another even though he thereby prevents third parties from acquiring.  For example, if Shimon is owed money by Levi, he may appropriate land from Levi for Reuven's debt, even though he thereby prevents other creditors from collecting.  Normally, as an outsider he would not be allowed to collect for Reuven from Levi since he would be harming others.  In this case, however – "migu de-zakhi le-nafshei” (since Shimon can acquire the land / debt for himself), he may acquire it for others as well.  Why should this case provide an exception?

 

            A second possible example of successful agency provided the agent can acquire an item for himself can be found within Tosafot's comments to Bava Metzia (10a).  Rav Yochanan allows Shimon to acquire lost items on Reuven's behalf.  Tosafot question Rav Yochanan's position in light of his general opposition to agency which harms others.  In fact, Rav Yochanan himself in Ketubot (83b) ruled that Shimon cannot collect a debt for Reuven if he thereby prevents other creditors from collecting.  Tosafot resolve the contradiction in the following manner: Indeed, in general, shlichut fails when others are harmed.  Since, however, in the case of lost items the shaliach could have just as easily retained the items for himself - he can acquire them for others as well.  At least according to Rav Yochanan, every case of lost items is considered an example of migu de-zakhi - a situation where the agent could have acted for his own benefit.  Therefore, he may act as someone's agent even if this will impact upon others.

 

            Having explained the failure of shlichut to succeed where harm is caused to others (in last week's shiur), we must wonder why agency succeeds just because the agent could have acted for his own interests.  How might we explain this exception to the rule of chav le-achrini - known as migu de-zakhi?  After all, the agent is still damaging the interests of other third parties!!

 

            One suggestion might be to better understand the essence of halakhic representation.  In general, an agent acts exclusively on behalf of his sponsor.  When an agent acquires an item for his sponsor, though the shaliach personally performs the actual transaction, the item itself is DIRECTLY acquired by the meshaleiach without it 'passing through' the shaliach.  In other words, the acquisition of Reuven is immediate and Shimon the shaliach merely executes the formal transaction.  In the exceptional cases of migu de-zakhi described above (one creditor collecting for another, or Shimon acquiring lost items for Reuven), we might view the transaction as a TWO-STEP process.  If Shimon acts on Reuven's behalf in collecting a debt which he is equally owed, he might really be collecting for HIMSELF and SUBSEQUENTLY transferring to Reuven as a staged process.  A person can certainly collect for HIMSELF even though he damages others; only classic 'direct agency' is eliminated in these cases.  The principle of migu de-zakhi might construct a two-step process whereby the actual acquisition is not performed FOR SOMEONE ELSE but rather FOR THE PERSON HIMSELF.  Only afterwards does the item transfer INDIRECTLY to the final address.

 

            This manner of understanding migu de-zakhi has support in some Rishonim who actually describe a two step series (see for example the Or Zaru'a to Bava Metzia 10a).  It  might also be supported by two halakhic conclusions surrounding the principle of migu de-zakhi.  Tosafot Rabenu Peretz and the Ritva in their commentary to Bava Metzia (8a) note that according to some positions the rule of migu de-zakhi might be limited to cases in which the agent is ACTUALLY acquiring the lost item along with the other person he is representing.  Some positions would not allow Shimon to acquire a lost item exclusively for Reuven but might allow Shimon to acquire that item with intent to share with Reuven.  This limitation to the rule of migu de-zakhi might reflect the aforementioned view of migu de-zakhi.  If indeed migu de-zakhi is a two step process which views the shaliach as the first station, it might only be applied in a situation in which the shaliach ultimately retains some degree of final ownership.  In THOSE cases we might reasonably maintain that he first acquires the ENTIRE item for HIMSELF (something he is clearly authorized to do even though he harms others) and subsequently transfers partial ownership to his sponsor.  If, however, he does not ultimately retain any part of the item, we might find it more difficult to view him as a temporary owner; he is not acting in this context as a future final owner and we might be unwilling to consider him a temporary owner, or waystation to merely transfer ownership exclusively to his sponsor.

 

            A second halakha which might reflect this concept of migu de-zakhi can be located in Tosafot Bava Metzia (10a, see also Tosafot Beitza 39b).  The laws of eiruv techumin allow a person to travel beyond a 2000 ama radius of a city on Shabbat and Yom Tov only if he has prearranged an eiruv (prepositioning a meal within the permitted radius to virtually extend his 2000 ama limit from that point).  Having made this eiruv, a person can not only travel but can also transport his items (on Yom Tov).  The question addressed by the gemara in Beitza (39) is how to define 'your items.'  If Shimon drew water for Reuven (see last week's shiur) whose water is it defined as and which of them having made an eiruv can relocate the water beyond the standard 2000 ama radius?  Rav Nachman and Rav Sheshet disagree, the latter claiming that since Shimon drew for Reuven and he is the ultimate owner it is defined as his water.  Rav Nachman claims that it is defined as Shimon's water and his position is somewhat questionable since, ultimately, Reuven is the owner of the water.  Why should the water be designated as Shimon's item?  The Rabenu Tam cited by Tosafot claims that, in theory, Shimon drawing water for Reuven would be considered chav le-achrini since he prevents others from drawing water.  Hence, Shimon can only acquire water for Reuven through  the magic of migu de-zakhi.  Applying this principle of migu de-zakhi consists of the water initially passing through Shimon's ownership and only subsequently to Reuven's.  Since Shimon was the first owner it is he who may carry the water to his intended destination.  This position, as well, suggests a process of migu de-zakhi which entails a 'staged' transfer.

 

            This concept of migu de-zakhi, though logical, would not be able to accommodate a very troubling position of the Beit Yosef [Choshen Mishpat 105].  Conventionally, migu de-zakhi when applied to the collection of a debt reads as follows: Shimon is owed $100 by Levi but instead of collecting for himself he may appropriate for Reuven even though he harms other potential creditors.  Migu de-zakhi allows him to first acquire for himself and then subsequently transfer to Reuven.  Given this view, we would not authorize Shimon to collect for Reuven more than HE HIMSELF IS OWED.  If he is owed $100 but Reuven is owed $200 he may not appropriate more than $100 since that is all he is capable of personally collecting, acquiring and subsequently transferring to Reuven.  Much to our astonishment (and the surprise of most poskim) the Beit Yosef rules that in fact Shimon MAY collect the $200 for Reuven even though he cannot personally take possession of more than $100.  Evidently, the Beit Yosef understood migu de-zakhi in a completely different manner.  It is not a two-step form of shlichut.

 

            The Ketzot addresses this issue and tries to defend the Beit Yosef.  His strategy is to prove that migu de-zakhi is not merely s SOLUTION to the challenge of chav le-achrini in order to restore classic shlichut.  This, indeed, is the manner by which we understood migu de-zakhi above.  By structuring a two-step transfer we dodge the problem of chav le-achrini.  Instead, the Ketzot tries to prove that migu de-zakhi constitutes a completely new form of representation parallel to shlichut but not identical.  In cases in which conventional shlichut fails, agency can still be manipulated through migu de-zakhi.  We will first examine his proof and subsequently his defense of the Beit Yosef.

 

            The Ketzot finds an ally for this distinction between classin shlichut and migu de-zakhi in Rashi.  Rashi in his comments to Bava Metzia (8a) claims that migu de-zakhi solves an additional shlichut saboteur.  Generally, a shaliach cannot be appointed to perform an aveira.  For example, if Reuven appoints Shimon to steal an item the shlichut relationship is not valid and Shimon HIMSELF is liable.  He cannot defer the liability to Reuven claiming that he acted as his agent since halakhic shlichut in this case is subverted.  Surprisingly, Rashi claims that migu de-zakhi resolves this problem as well.  Rashi's example describes two partners who conspire to steal an item.  If one partner acts as a shaliach of the other he can 'lift' the item on both of their behalves.  Since he could have stolen it for himself he may  grab it for both of them.  Most Rishonim are baffled by this application of Rashi.  Migu de-zakhi is a tailor-made solution to the problem, of chav le-achrini.  I cannot represent you to other people's monetary detriment.  Through Migu de-zakhi I skirt the issue by first representing MYSELF and then transferring to you.  Where shlichut fails because it runs contrary to halakha (the case of shaliach for an aveira) migu de-zakhi would have little application.

 

            The Ketzot (105:2) infers from this Rashi that we may view migu de-zakhi not only as a shlichut-resuscitator but possibly as a brand-new form of halakhic representation which is valid even when standard shlichut fails.  Though the Ketzot does not elaborate, we might suggest the following: Standard shlichut demands formal (or assumed) appointment which identifies Shimon as Reuven's agent and authorizes him to operate on Reuven's behalf.  This might fail for several reasons – among them the detrimental effects to others or the forbidden content of the task.  In these cases, though, if Shimon can act on his own behalf ANYWAY (as a potential party) he may act on Reuven's behalf even though he is not formally recognized or appointed as a shaliach.  The appointment of a shaliach is only necessary to authorize him to act.  Once he is authorized to act anyway, he may act independently on another's behalf.

 

            What the Ketzot accomplished is to redefine migu de-zakhi as a dramatic new form of representation.  It is not intended only as a local solution to the problem of chav le-achrini.  He deduced this from Rashi's applying migu de-zakhi in a context completely unrelated to chav le-achrini.  Having achieved this, the Ketzot can then defend the Beit Yosef who allowed Shimon, though owed only $100 to collect $200 for Reuven.  The new form of representation known as migu de-zakhi is unbounded by chav le-achrini just as it is unbounded by aveira limitations.  Once Shimon has achieved relevancy as a potential party to the collection, he may unilaterally act on Reuven's behalf.  According to the Beit Yosef, once he can legally collect $100 he is deemed a relevant party and can act for Reuven even beyond the limitations of his own credit. 

 

            The challenge in defending the Beit Yosef lay in yanking migu de-zakhi away from conventional shlichut and establishing it as an independent form of halakhic representation.  Having accomplished this, the Beit Yosef's position becomes more defensible.  As a localized solution to chav le-achrini migu de-zakhi would be limited to the amount which Shimon may actually collect for himself.  As the basis for a new form of representation migu de-zakhi might enable a collection far beyond that monetary limit.