Shiur #18: Shelichut

  • Rav Yair Kahn

 

GEMARA KIDDUSHIN – PEREK BET

 

 

Shiur #02: Shelichut

by Rav Yair Kahn

 

 

1.  The Parameters of Shelichut

 

            Our sugya deals with the institution of shelichut and its biblical derivation.  Various sources are enlisted in this process and the Gemara explains the necessity of each.  For example, the Gemara suggests that we could not assume shelichut for kiddushin if the Torah had only informed us of the ability to deliver a get via a messenger, since divorce, in contrast to marriage, does not require the consent of the woman.  The Gemara continues that shelichut regarding hekdesh-related issues, such as teruma or korbanot, cannot be derived from the 'mundane' paradigm of kiddushin or geirushin.  Furthermore, shelichut for geirushin and kiddushin could not be learned from teruma or korbanot, since the latter are basically mental processes, whereas concrete action is required regarding the former.  In order to develop a deeper understanding of the shelichut concept, we will attempt to explain the logic that underlies these distinctions suggested by our sugya.

 

            We will begin with the difference between hekdesh and non-hekdesh areas of halakha.  In the previous shiur, we established that direct involvement in mitzvot is preferable to delegating the performance to another.  Therefore, we cannot assume that the institution of shelichut was extended to areas of hekdesh, which require personal participation.  It is therefore necessary to introduce an explicit source, which applies shelichut to areas such as teruma and korbanot. 

 

            In order to appreciate why shelichut should be limited to mental processes, let us glance at an additional sugya that is critical for our understanding of shelichut:

  

"Given that all tena'im [stipulations that a person makes when performing a given halakhic act] are derived from where - from the tenai of the tribes of Gad and Reuven [see Bemidbar 32], a tenai that can be fulfilled through a shaliach - such as the one there [in the context of Gad and Reuven] - is a valid tenai; that which cannot be fulfilled through a shaliach is not a valid tenai." (Ketubot 74a)

 

Tosafot (s.v. "tenai") assume that this provision reflects an inherent connection between shelichut and tena'im:

 

"This is the reason: since the action [to which the individual wishes to assign a stipulation] is within his power to such an extent that he can even carry it out through an agent, it stands to reason that it lies within his power to assign a tenai to it, as well.  But chalitza, which one cannot execute through an agent, is not within his power to assign to it a tenai, either; thus, even if the condition is not met, the action takes effect."

 

In other words, shelichut is only possible in areas in which the individual is in control.  Where man is the creator of the new halakhic status, shelichut is applicable.  However, in the case of chalitza, the brother does not permit his sister-in-law to remarry.  Although he must participate in chalitza, he is not in control.  He merely takes part in the ceremony, which results in her license to remarry.  His role is merely mechanical and may not even require his da'at; hence, he is unable to dictate the terms of the chalitza.  Similarly, he lacks the authority to appoint another to take his place.

 

            It would appear that the distinction drawn by halakha between mental processes and those that require action is rooted in this point.  It is self-evident that man is the creator of changes in halakhic status that are determined by machshava.  Therefore, man who is in control has the ability to appoint a shaliach.  However, the authority of man becomes questionable in areas requiring concrete action.  Perhaps, the individual's role in these instances is merely mechanical, thus eliminating the possibility of shelichut.  Even if we view the individual as the source of the status change in situations where action is indispensable, we may nevertheless consider his authority as diminished relative to areas where machshava alone suffices.  If so, it would be impossible to extrapolate shelichut from areas that are determined mentally to those which demand concrete action, as well. 

 

            This understanding will also serve us in appreciating the third distinction raised by our sugya.  Namely, shelichut may be limited to halakhic changes that are effected by unilateral action.  Clearly, an individual possesses greater control over something that he effects unassisted.  Therefore, shelichut cannot automatically be extended to areas dependent upon bilateral agreement.  Hence, an explicit biblical source is needed to teach us that even in such areas, man is sufficiently in control to assign a shaliach.

 

2.  Two Types of Shelichut

 

            It is plausible that the distinction between bilateral and unilateral areas remains even after the Torah introduces the application of shelichut in both.  The Mordekhai in Kiddushin (#505) quotes the position of the Kadosh from Radosh that a shaliach sent to deliver a get has the authority to appoint another shaliach in his place.  However, a shaliach sent to marry a woman lacks this authority, since, in contrast to divorce, one cannot marry a woman without her consent.  This position seems to suggest that although shelichut applies in both areas, a basic difference nonetheless exists between the two.  In fact, we may even claim that the drasha does not merely extend shelichut to bilateral agreements, but rather introduces a new type of shelichut which can apply to those areas. 

 

We may explain this position based on the insightful remarks of the Ketzot concerning the precise nature of shelichut (188:2).  According to the Ketzot, the Rishonim debated whether to consider a shaliach as merely acting on behalf of the sender, or as actually replacing him.  The understanding of shaliach as a replacement awards him independent status.  However, if he merely performs the given action for the sender, his appointment does not imply independence.

 

On this basis, we may claim that only in the case of get, where the husband has total control, can he confer on the shaliach independent authority.  This status allows the shaliach not only to deliver the get and activate the geirushin, but also to appoint a different shaliach in his place.  However, in the case of kiddushin, where the husband is dependent upon the woman's consent, he cannot grant the shaliach independence.  The Torah merely allows him to send a messenger to perform the act of kiddushin on his behalf.  The shaliach therefore lacks the independent authority to appoint a shaliach in his place and can do no more than the act of kiddushin itself.    

 

In summary, the Gemara discussed three possible sources for the concept of shelichut and analyzed the uniqueness of each source.  We sought to demonstrate how the unique qualities of each source could affect the extension of shelichut to other contexts.

 

3.  The Requirement of Shlichut to be mafrish Teruma

 

Let us now inspect the specific case of teruma in light of a sugya in Nedarim 36b.  The Gemara there discusses the rule posited in the Mishna allowing one to separate terumot and ma'asrot on behalf of someone who vowed not to receive any benefit from him:

 

"[The Mishna stated:] He may separate his terumot and ma'asrot with his knowledge.  To what case does this refer?  If we say that [he separates teruma] from the grain belonging to the owner of the stack [of grain] on behalf of the owner of the stack, then with whose knowledge is this done?  If we say with his own knowledge, who appointed him a shaliach [licensing him to separate the teruma]? Rather, it must refer to the knowledge of the owner of the stack - but does he not then provide benefit for him by carrying out his shelichut?  As Rava stated, we deal here with a case of one who declares, 'Whoever wishes to come to separate teruma may come and separate teruma… '"

 

The Gemara assumes that the individual from whom the noder (the one who took the vow) vowed to not derive benefit may not function as a shaliach for the noder.  However, the Gemara appears to conclude that he can be mafrish (separate) the teruma if he does not formally assume that role of shaliach.  This is accomplished via a general announcement allowing anyone to be mafrish the teruma.  From this discussion it seems that hafrashat teruma is not limited to the owner of the produce.  One person can designate the produce of another as teruma so long as he doesn't violate the wishes of the owner; no assignment of shelichut is required. 

 

            This understanding is quite reasonable: after all, prior to hafrasha the produce is in a state of tevel, which we may define as an actual or potential mixture of teruma and chulin.  Therefore, hafrasha merely delineates the teruma within this mixture.  In fact, the Talmud Yerushalmi (Terumot 1:1) entertains the possibility that hafrasha does not require ownership (see the Gaon's commentary).  However, this position appears to contradict the very foundations of our sugya, which applies the principle of shelichut in order to explain how one can be mafrish teruma for another.  The application of shelichut assumes that only the owner or his agent can be mafrish the teruma. 

 

            One solution to this problem is to suggest that in actuality, only the owner or his messenger may be mafrish teruma, as suggested by our Gemara.  Nevertheless, if the owner does not single out a specific shaliach, then even if the mudar hana'a (the one from whom the noder may not derive benefit) chooses to fulfill the shelichut, the neder is not violated.  Therefore, in response to a general announcement allowing anyone to separate the teruma, the mudar hana'a may fulfill the shelichut without compromising the neder.  Tosafot (Gittin 66a s.v. "kol") suggest this approach:

 

"Although the Gemara states… regarding someone from whom another may not derive benefit that he may separate teruma on his behalf with his knowledge etc., and the Gemara explains that this refers to one who declares, 'Whoever wishes to come and separate teruma may come and separate teruma,' this does not mean that if he makes such a pronouncement, he [the one separating the teruma] is not considered fulfilling his shelichut.  Rather, specifically with respect to a mudar hana'a we do not consider this shelichut, by which he would be viewed as providing benefit for him, since he did not personally assign him."

 

            The Rashba takes a different approach.  He concedes that according to the Gemara's conclusion in Nedarim, one may be mafrish teruma for another even without having been appointed a shaliach.  However, he argues that this applies only within the specific context of that Gemara, which discusses the possibility of designating one's own produce as teruma in order to render the produce of another permissible for consumption.  Since he owns his produce, he has the power to designate it as teruma.  The Gemara's question relates to one's ability to indirectly affect the produce of another via this designation.  According to this understanding, ownership is indispensable for hafrasha.  Hence, the Gemara in Nedarim is consistent with our Gemara which demands shelichut to replace the requirement of ownership to allow for hafrasha. 

 

            By contrast, the Ramban (Gittin 66a) adopts our initial understanding, and denies the need for ownership as a prerequisite for hafrasha.  The Ramban requires permission, not shelichut.  According to this position, the problem posed by our sugya, which introduces the institution of shelichut to enable one to be mafrish teruma for another, resurfaces.

 

            Upon closer inspection, the Ramban's position becomes even more puzzling.  He tries to prove that shelichut is unnecessary for hafrasha from the Gemara in Bava Metzia which initially assumes that one can be mafrish for another:

 

"Regarding teruma, even an expression of consent suffices, as the Gemara states in 'Eilu Metziot' [Bava Metzia 22a], '[If the owner finds someone separating teruma for him and says], 'You should have taken from the higher quality produce,' then if, indeed higher quality produce was found [thus proving the sincerity of the owner's comment, and hence his consent to the separation of teruma], then the separation of teruma is valid.'"

 

However, the Gemara explicitly rejects its initial assumption, and concludes that formal shelichut is required:

 

"Rava interpreted it [that beraita] to accommodate Abayei's position, as referring to a case where he appointed him a shaliach.  Indeed, this seems reasonable, for if it speaks of a case where he did not assign him as his shaliach, could the separation of teruma be valid?  The verse states, 'you - also you' to include one's agent [that he may separate teruma only under the same conditions and terms as the owner himself].  Just as one separates only with knowledge [that he separates teruma], so must the agent separate only with the owner's knowledge."

 

How can the position of the Ramban be reconciled with this sugya, let alone supported by it?

 

            Let us return to our Gemara.  The Gemara proves that the institution of shelichut applies to teruma from the Mishna in the fourth perek of Terumot (mishna 4).  However, already in chapter 3, we find a Mishna which establishes the ability to be mafrish on behalf of another:

 

"When does this apply?  When he said nothing.  But if he allowed his family member, servant or maidservant to separate teruma, the separation is valid." (Terumot 3:4)

 

Why did the Gemara choose not to cite this Mishna as evidence for the application of shelichut to teruma, selecting instead the Mishna in chapter 4?  Moreover, the Gemara cites a longer passage from the Mishna then would appear necessary.  It would have been sufficient to simply quote, "If one tells his agent, 'Go and separate teruma,' he separates in accordance with the owner's intention [the amount he figures the owner would have given as teruma]."  But the Gemara adds the continuation of the Mishna - "If he does not know the owner's intention [whether he would normally give a larger or smaller amount],

he separates the average amount - one-fiftieth."  Why must the Gemara include this passage in its citation?

 

            We can resolve all these difficulties by proposing that according to the Ramban, two distinct paths can be taken to be mafrish on behalf of someone else.  First, one can be mafrish once the owner indicates his consent.  In addition, the owner can also make use of the institution of shelichut.  Where shelichut is applied, it is as if the owner himself was mafrish.  Permission, by contrast, grants the non-owner ability to be mafrish in accordance with the wishes of the owner.

 

            Based on the above, we can distinguish between these two tracts.  The option of a non-owner designating teruma is contingent upon the subjective wishes of the owner.  If the whims of the owner are not accommodated, the hafrasha is void.  Shelichut, on the other hand, is established via a formal designation on the part of the owner.  Once appointed, the shaliach is required to fulfill his shelichut faithfully and may act in this capacity as long as he does not objectively violate this trust.  Subjective whims of the owner are irrelevant so long as the shaliach fulfills his task consistent with the norms governing the specific shelichut.

 

            If we adopt this distinction, we can easily explain the Ramban's proof from Bava Metzia.  The sugya there addresses the question of whether one's intention can be assumed retroactively.  The Gemara attempts to resolve this question on the basis of the braita that appears to allow one to be mafrish for another without his knowledge.  This perhaps indicates that eventual acquiescence retroactively legitimizes the hafrasha.  The Ramban proves from this, that the owner's permission is sufficient for hafrasha, since permission is parallel in this regard to intention, and can perhaps be applied retroactively.  Appointing a shaliach, however, constitutes a specific, halakhic act, which demands expressed da'at and can only be effective proactively. 

 

The Ramban understood that the Gemara does not reject this basic premise.  Instead, it rejects merely this understanding of the braita.  The option of permission is inapplicable if the hafrasha does not correspond to the whims of the owner.  According to the braita, the owner's consent is indicated if, upon hearing of the hafrasha, he responds that better quality produce could have been used.  Since the hafrasha of the non-owner does not, in this instance, correspond to the wishes of the owner, shelichut is the only option left in understanding the braita.  However, the initial premise, which assumed that permission suffices, was never overturned.

 

Similarly, the sugya in Kiddushin proved the possibility of shelichut with regard to teruma from the Mishna in chapter 4 of Terumot.  The Gemara goes through the trouble to cite the seemingly irrelevant detail, that if the shaliach is unaware of the amount the owner wishes to be mafrish, he may assume the norm.  According to our understanding, only from this clause can we prove that the shelichut option is being exercised.  The mere fact that one can be mafrish for another, which already appears in chapter 3, can be explained based on the permission option.  However, the possibility of a legitimate hafrasha that does not correspond to the wishes of the owner forces us to acknowledge the application of shelichut to hafrashat teruma. 

 

 

Sources and questions for next week's shiur.

 

Sources:

 

1.         Kiddushin 41b "ela lo likhtov... Ka mashma lan."

            Gittin 23b "amar Rav Asi... bnei brit."

2.         Rambam Hilkhot Sheduchin V'shutfin 2:1-2,

            Rambam Hilkhot Geirushin 3:15-16, Shiltei Gibborim Gittin

            [12a in the pages of the Rif] #1

3.         Sanhedrin 72b Tosafot s.v. Yisrael, Magen Avraham Orach Chayim beginning of Siman 189, Even Ha-ozer ibid.

4.         Rambam Hilkhot Issurei Biah 12:11, 13:14-17.

 

Questions:

 

1. Regarding what point does the Riaz argue with the Rambam?

2. What halakha does the Magen Avraham derive from Tosafot in Sanhedrin?

3. Is an eved knaani considered a convert to Judaism?

4. What was the status of Shimshon's wives?