The Relationship between Principal and Agent
GEMARA GITTIN 5772
By Rav Moshe Taragin
Shiur 23: The Relationship between Principal and Agent
Having explained the disqualification of a cheresh (deaf-mute), shoteh (mental deficient) or katan (minor)from serving as an agent in the divorce process, the Gemara now ponders the reason an eved, cannot serve in this capacity. As we noted in last week's shiur, the Gemara ultimately cites the derasha of "'atem' — 'gam atem'" to disqualify a non-Jew. This derasha indicates a degree of parity necessary between agent (shaliach) and meshalei'ach (principal); as a non-Jew does not fulfill the criterion of parity, he cannot serve as a shaliach. The Gemara cites a disagreement as to whether an eved, who is considered a partial Jew and therefore enjoys some degree of parity, would be similarly excluded. Even without this disqualification, however, the Gemara raises a different option for explaining the disqualification of an eved; it declares "eino be-torat gittin ve-kiddushin": "he is not within the law of halakhic divorce and marriage." Since he cannot participate in gittin or kiddushin, he cannot serve as an agent for someone who is able to take part.
This gemara evidently adopts a very unique and important view of shelichut. We cannot view a representative as merely someone appointed to execute a physical act on behalf of the meshalei'ach; had this perspective been true, we would not care much about the agent's relevance to the halakhic realm in which he or she is operating. As long as the meshalei'ach is within the realm of gittin, why should we care that the proxy, whom the principal appoints merely to execute a mechanical act, has similar relevance? Evidently, the Gemara views a halakhic shaliach as more than someone who simply performs a symbolic act on behalf of someone else. Many Acharonim (see in particular the Or Samei'ach, Hilkhot Geirushin 2:15) develop a concept which views the shaliach as more than just the puppet of the meshalei'ach; we see him as someone to whom the entire halakhic procedure is transferred. The more conventional view of shelichut sees the meshalei'ach as the person controlling the halakhic process and merely delegating the formal act to a messenger; according to this alternate view, the shaliach is the new "ba'al chalut," the person empowered with directing the halakhic procedure. He is not merely assigned with performing an act; instead, he becomes the conductor of the change on behalf of his principal.
Our gemara certainly supports this new interpretation of the shaliach's role. If we view the shaliach as the new conductor of the halakhic process, we could certainly understand a requirement that he be someone capable of performing that halakhic procedure for himself. If "eino be-torat gittin ve-kiddushin," he would be incapable of coordinating such a process on behalf of someone else.
This central question regarding the nature of a shaliach and to what extent we view him as independent would impact upon many different issues. For example, what would happen if, after appointing a shaliach to divorce his wife, a meshalei'ach were to become a shoteh? Would we require his mental competence (da'at) to drive the halakhic process, or would the da'at of the shaliach be sufficient? If we view the shaliach as the new coordinator of the process (dispatched by the husband) we might not care about the husband's mental state during the issuing of the get. (See the Rambam, Hilkhot Geirushin 2:15, and the associated discussion of the Or Samei'ach.)
A second question which the Or Samei'ach addresses is whose parchment should be used to draft the get. As we established in shiur #13, the document must be owned by the husband, who is effecting the delivery, and not the woman, who is merely receiving the get. Can the parchment be owned by the husband's shaliach, who is formally executing the divorce? If we view him as the person empowered to process the divorce, we might be able to use his paper. If he is merely a puppet executing the delivery, we would require ownership of the document by the husband, who is actually driving the divorce.
A third question addressed by the Or Samei'ach concerns a gemara in Kiddushin (43a) which debates the viability of a shaliach to serve as a witness in the process he is executing. The gemara's debate may relate to the status afforded the shaliach: if he becomes the person coordinating the chalut, we would not allow him to serve as a witness (just as we do not allow the principals of any procedure to serve as witnesses to that event); if, however, we view the shaliach as a puppet, merely performing a desired action of the husband, we might allow him to serve as a witness.
These three questions are raised by the Or Samei'ach and help bring the identity of the shaliach into greater focus. Another issue which would seemingly depend upon our definition of shelichut concerns the ability of the shaliach himself to appoint a new shaliach, the concept of "shaliach oseh shaliach." The Gemara (both on 29a and 66b) contains lengthy discussions about the terms and conditions under which one shaliach can appoint another. At first glance, our question about the nature of a shaliach would greatly impact on his ability to transfer his agency to another. If we view him as a puppet who performs the will of the husband, we could not envision him with the authority to appoint his own shaliach (whom the meshalei'ach never confirmed). If, however, we view him as the coordinator of a new halakhic process, he might just posses the authority to delegate a new shaliach.
This notion – requiring the shaliach to be capable of participating in the halakhic process on his own behalf – might be the basis for an interesting debate in the beginning of the sixth chapter of Gittin (62b). The Gemara questions whether a man is able to serve as a shaliach to receive the get for a woman, and conversely, whether a woman can serve as an agent to deliver a get on behalf of a man. Since a man can never experience 'being divorced by another,' and a woman cannot experience 'actively divorcing another,' perhaps they are each limited to acting within their prescribed roles. This gemara, as well, seems to view a shaliach as a person empowered to conduct a halakhic procedure. How can a woman deliver a get when she herself can never execute a halakhic delivery to her own husband? This concern is structurally similar to our gemara's demand that a shaliach be "be-torat gittin ve-kiddushin." Ultimately, this gemara rejects its initial notion and allows a woman to represent a man and vice versa. Does the Gemara ultimately reject this "empowerment notion" of shelichut; or does it conclude that a shaliach can be empowered as long as he or she is "be-torat gittin" even if the given agent cannot play that particular part as a principal?
The Gemara introduces a concept which might potentially disqualify an eved from serving as the husband's shaliach to deliver a get. Since he personally cannot execute a halakhic get, he cannot perform this on behalf of the husband. This requirement may reveal an important quality about a shaliach, namely that he acts as the new ba'al chalut — someone who is not merely performing the designated act of the husband but is acting as an independent force. As he is the new director of the get, it is appropriate that we demand that he be personally capable of participating in a halakhic divorce.
Sources for the next shiur (#24: Lo Chazra Shelichut Etzel Habaal (24a)):
1. Gemara until the end of the perek.
2. 63b, "amar Rav… l'achar mita"
3. Tosafot 24a, s.v. "veha"; Ritva (Rama)
4. Rashba 63b, s.v. "ul'inyan", "ve'ee lav d'mistafina…."
5. Rambam Hilkhot Geirushin 6,13, Maggid Mishne, Avnei Miluim 141,1