Shiur #21: Shelichut le-Dvar Averia and the Heter Mekhira

  • Rav Mordechai Willig
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GEMARA KIDDUSHIN – PEREK BET

 

 

Shiur #05: Shelichut le-Dvar Averia and the Heter Mekhira

Shiur given by Rav Mordechai Willig

Transcribed by Aaron Siegel

 

 

I. The Source of Ein Shaliach le-Dvar Aveira and Its Ramifications

 

In Masekhet Kiddushin (42b), the Gemara introduces the concept of "ein shalich le-dvar aveira."  This means that one is held accountable for a transgression he commits even if he was commissioned to do so by another.  The meshalei'ach, or dispatcher, is not punished for the sin despite his having sent the violator to commit the act.  The Gemara raises two possible sources for this halakha.  First, it suggests a "sevara," an intuitive, logical argument: "divrei ha-rav ve-divrei ha-talmid, divrei mi shomin?"  This literally translates as, "The words of the teacher and the words of the student - whom does one obey?"  In other words, the dispatcher cannot be held responsible for commissioning the act, because he could not have expected the shaliach, the agent, to carry out the shelichut in violation of the Torah.  The dispatcher thus did not actually anticipate the shaliach's compliance with his request, as it involved a transgression.  We therefore hold the shaliach himself responsible, rather than the meshalei'ach.  In addition, the Gemara also cites textual sources from the Torah for the halakha of ein shaliach le-devar aveira.

 

            Which source does the Gemara view as conclusive - the sevara or the textual source?  This issue is debated by the Rishonim.  Tosefot (42b, "amai") discuss a situation where the shaliach commissioned to commit the forbidden act is a "shogeig" - he does not know that the action he is requested to perform is prohibited.  In such a case, of course, the reasoning of "divrei ha-rav ve-divrei ha-talmid" does not apply.  Since the shaliach is unaware that the Torah forbids this action, we cannot excuse the dispatcher on the grounds that he could not have expected the shaliach to disregard his command in deference to Torah law.  Tosefot indeed rules that in such a case we assume "yeish shaliach le-dvar aveira" - the meshalei'ach is held accountable.  Thus, according to Tosefot, the conclusive source for the general rule of ein shaliach le-dvar aveira is the sevara, the line of reasoning of "divrei ha-rav ve-divrei ha-talmid… "  Were we to view the verses cited by the Gemara as the actual source of the halakha, whether or not the shaliach is aware of the forbidden nature of the act would be inconsequential. 

 

            The Rema accepts Tosefot's position, that in conclusion the Gemara bases the halakha of ein shaliach le-dvar aveira on the sevara, rather than a Biblical source, and hence the principle does not apply to a situation of shogeig.  Additionally, if the shaliach was known to violate the given prohibition without any apprehension, we would likewise cast responsibility on the meshalei'ach, as he knew that the shaliach would have no qualms about committing the given act.  The Ketzot and Shakh disagree, and argue that ein shaliach le-dvar aveira constitutes a gezeirat ha-katuv, an objective halakha introduced by the Torah, and it therefore applies to all cases, even if the agent does not know that the action he commits is prohibited, and even if he routinely transgresses the given violation.

 

            Tosefot in Bava Metzia (10b, "de-amar") raise a different issue concerning situations of shelichut le-dvar aveira.  The Gemara (here in Kiddushin and there in Bava Metzia) addresses only the question of accountability, whether or not the meshalei'ach can be punished on account of the act he commissions.  Tosefot introduce the question as to the efficacy of the forbidden act committed.  Consider a case of a shaliach commissioned to perform a forbidden act that affords a given status.  Does ein shaliach le-dvar aveira undermine the entire shelichut, such that the shaliach's actions are meaningless and inconsequential, or does it merely place exclusive culpability on the shaliach, but he retains his status as such and his action is thus effective?  Tosefot seem to present two different views regarding this question. 

 

Let us take a practical example.  The poskim discuss a case of a man who seeks to divorce his wife against her will, which is forbidden by force of Rabbenu Gershom's famous edicts, and he commissions an agent to deliver the get.  Ein shaliach le-dvar aveira means that the husband is not punishable for the act, since he did not commit it himself.  But does this delivery of the get through an agent indeed end the marriage?  Does the shaliach retain his status as the husband's agent for this prohibited act, and thus he effectuates the divorce, or does the entire shelichut dissolve since we deal with something forbidden?  The Noda be-Yehuda ruled that the divorce is not effective; in his view, an attempt to commit a sin through a shaliach cannot produce a "chalut," a change of status.  This case became the subject of an entire literature among the poskim.

 

            This issue will likely hinge on the aforementioned discussion concerning the source of ein shaliach le-dvar aveira.  If we accept the sevara, whereby we assume that the meshalei'ach never expected the shaliach to carry out the shelichut, then the intended agent never actually took on the status of a shaliach.  As such, any action he performs on behalf of the so-called meshalei'ach is ineffective, since the meshalei'ach did not seriously appoint him as his shaliach.  If, however, the principle of ein shaliach le-dvar aveira originates from a gezeirat ha-katuv, then it seemingly pertains only to the issue of accountability; the Torah holds the shaliach responsible, and not the meshalei'ach.  This has no bearing, however, on the status of the shelichut.  The shelichut is still valid, and thus the action performed on behalf of the dispatcher is indeed effective.

 

II. The Validity of the Heter Mekhira Sale

 

Let us now proceed to a practical, contemporary question that relates to this discussion.  Today in Israel, many people circumvent the laws of shemita through the "heter mekhira," a formal sale of agricultural lands in Israel to non-Jews.  Among the many issues that this mechanism raises is the prohibition of "lo techanem," which forbids selling land within Eretz Yisrael to gentiles.  Even if we accept the legal viability of the sale and its power to render the laws of shemita inapplicable, many argue that the sale itself is prohibited.  The Israeli Chief Rabbinate, however, follows the lenient position and employs the heter mekhira.  If someone disagrees with the heter mekhira specifically on this point, because of the prohibition of lo techanem, would he be allowed to employ the heter mekhira once the Rabbinate performs the sale?  Once he accepts the viability of the heter mekhira, and objects only to the sale itself as it violates, in his view, lo techanem, perhaps so long as others conduct the sale he may employ the heter mekhira.

 

            This would seem to depend on the previous discussion.  If no shelichut can technically be sustained when it involves a transgression, then here, too, we cannot view the Rabbinate as the individual's agent to sell the farmland.  As far as he is concerned, then, the sale is not valid, and he may not rely on the heter mekhira.  This indeed was the position of the Chazon Ish.  On the other hand, if ein shaliach le-dvar aveira applies only to the issue of culpability, but has no bearing on the status of the shelichut, then this individual may accept the sale ex post facto and rely on the heter.

 

            It would seem, however, that in this situation, the individual may accept the sale regardless of whether or not the shelichut is sustained when it involves a transgression.  As we argued earlier, if the shelichut de facto dissolves when dealing with a forbidden act, this is so because the principle of ein shaliach le-dvar aveira is based on the argument of "divrei ha-rav ve-divrei ha-talmid… "  Since the meshalei'ach did not expect the shaliach to carry out the mission, the shelichut is not valid to begin with.  We also noted that if this line of reasoning forms the basis of ein shaliach le-dvar aveira, then this principle would not apply when the shaliach is not aware that the given act is forbidden.  In the case under discussion, the Rabbinate follows the ruling of Rav Yitzchak Elchanan Spektor who held that the prohibition of lo techanem does not apply to temporary sales, such as that conducted before the shemita year.  One who does not accept this leniency would presumably classify those who do - including the Israeli Rabbinate - under the category of shogeig, as they mistakenly (in his view) consider the given act permissible.  Thus, the argument of "divrei ha-rav ve-divrei ha-talmid" cannot apply, and the shelichut remains intact. 

 

            It turns out, then, that according to both sources of ein shaliach le-dvar aveira, the individual in such a case could rely on the Rabbinate's sale of the farmland.  If we follow the textual source of the halakha, then the issue is only one of accountability; the shelichut, however, is valid (as discussed earlier).  On the other hand, if we accept the logic of "divrei ha-rav ve-divrei ha-talmid," then given that we deal here with a situation of shogeig, the shelichut is not undermined by the fact that it involved a prohibited action. 

 

Indeed, this argument appears in the work, "Or le-Tziyon" (introduction to Shevi'it 4:5).  The author cites the position of Rav Tzvi Pesach Frank ruling leniently in such a case for a different reason, on the grounds of a "sefeik-sefeika," or "double doubt."  First, we are in doubt as to whether shelichut is effective in situations when it involves a transgression.  Secondly, even if it is ineffective, in cases of shogeig, such as in this instance, the shelichut remains in force.  Rav Frank thus employs the principle of "sefeik-sefeika," that whenever we confront two issues regarding which we are in doubt, and either issue will yield a lenient ruling in a given case, we may indeed rule leniently.  The "Or le-Tziyon" notes, however, that when dealing with monetary issues, such as here, when we must determine the legal status of the sale vis-à-vis this individual, we cannot employ the "sefeik-sefeika" principle.  But the "Or le-Tziyon" adds that we may employ the argument discussed, that according to both sources of ein shaliach le-dvar aveira one may rely on the sale conducted by the Rabbinate.

 

III. The Rambam's View

 

            The "Or le-Tziyon" then proceeds to question the validity of this reasoning, based on a passage in the Rambam's Mishneh Torah.  These comments, as we will see, seem to indicate that the two issues discussed at the outset - the case of shogeig and the efficacy of the shelichut - are not necessarily related.  Even if we assume that ein shaliach le-dvar aveira applies when the agent is unaware of the prohibition involved, we cannot necessarily conclude that the shelichut is legally binding.  This, of course, undermines the very foundation of the argument we advanced.

 

            In Hilkhot Me'ila 7:1-2, the Rambam mentions that the principle of ein shaliach le-dvar aveira does not apply to me'ila - the prohibition against the personal use of property belonging to hekdesh (the Temple treasury).  Thus, if a person orders his servant to take sacrificial meat and feed it to his guests, then the host, rather than servant, violates the prohibition of me'ila.  At first glance, we might claim that this halakha flows naturally from the standard guidelines of ein shaliach le-dvar aveira.  As we know, the halakhot of me'ila apply only in cases of shogeig, when one unintentionally tampers with hekdesh.  Only in such a case is one required to pay the fine stipulated by the Torah.  This punishment does not apply to intentional violators.  It would seem, therefore, in light of Tosefot's view (as discussed earlier), that ein shaliach le-dvar aveira does not apply when the agent is unaware of the prohibition, that it naturally can never pertain to me'ila.  The Rambam, however (in 7:2), clearly portrays me'ila as an exception to the general rule of ein shaliach le-dvar aveira.  The culpability of the dispatcher evolves not from the standard guidelines of ein shaliach le-dvar aveira, but rather from a special provision unique to the institution of me'ila.  We must conclude, then, that the Rambam does not accept Tosefot's ruling, and he maintains that even when the shaliach is unaware of the prohibition involved, the principle of ein shaliach le-dvar aveira applies.

 

            Yet, in that same halakha, the Rambam indicates that a shaliach loses his formal status as such when the shelichut involves a transgression.  Although, as mentioned, in cases of me'ila the meshalei'ach is responsible, this does not apply when the me'ila act violates another transgression, as well.  The Rambam rules that if someone sends another person to eat forbidden sacrificial meat ("besar ola"), then the shaliach is culpable even for the violation of me'ila.  Since his action violates an additional prohibition, besides that of me'ila, we revert back to the standard principle of ein shaliach le-dvar aveira, and we cannot hold the dispatcher responsible even for the sin of me'ila.  According to this ruling, the presence of an additional violation undermines the shelichut even with respect to the prohibition of me'ila, where the shelichut would otherwise be maintained.  This would seem to imply that, in the Rambam's view, shelichut cannot be effective when it involves the violation of a prohibition.

 

            What emerges, then, is that the Rambam appears to deny the correlation we suggested earlier between the issues of shogeig - when the shaliach is unaware of the prohibition involved - and the efficacy of the shelichut.  We had argued that if ein shaliach le-dvar aveira applies even in a case of shogeig, then it must originate from a gezeirat ha-katuv, and thus it affects only the dispatcher's accountability, not the validity of the shelichut.  The Rambam, the "Or le-Tziyon" notes, appears to hold otherwise: although he applies ein shaliach le-dvar aveira to cases of shogeig, he nevertheless views the shelichut as de facto invalidated when it entails a violation.

 

            In truth, however, we cannot conclusively determine the Rambam's view concerning this question on the basis of this passage alone.  For elsewhere he implies that, on the contrary, the shelichut is sustained even when a transgression is involved.  The context is the halakha known as "dalet ve-hei."  A thief who steals a sheep or bull and then slaughters it (or sells it) must pay the owner four sheep or five bulls in return.  Like me'ila, the law of "dalet ve-hei" marks an exception to the rule of ein shaliach le-dvar aveira.  A thief who has someone else slaughter the stolen animal is himself liable for the fine.  In Hilkhot Geneiva (3:6), the Rambam addresses a situation of a thief who commissions another to slaughter the stolen animal for him, and the shaliach does so on Shabbat (which, of course, violates the laws of Shabbat).  This scenario appears to precisely parallel the aforementioned case described in Hilkhot Me'ila.  Here, too, a meshalei'ach sends a shaliach to commit a forbidden act generally excluded from the principle of ein shaliach le-dvar aveira, but the act entails an additional prohibition, as well.  As we saw, in Hilkhot Me'ila the Rambam held that the additional prohibition invalidates the shelichut, such that the shaliach is accountable even for the transgression normally excluded from the rule of ein shaliach le-dvar aveira (in that case, me'ila).  Here, in Hilkhot Geneiva, the Rambam rules differently.  Although the shaliach violated Shabbat when executing the shelichut, a violation for which he is clearly held accountable, this has no bearing on the liability for the "dalet ve-hei" fine.  With respect to this fine, we view the shaliach as having acted on behalf of the meshalei'ach, who is liable because ein shaliach le-dvar aveira does not apply to the obligation of "dalet ve-hei." 

 

            This ruling, of course, implies that the shelichut remains in force even when it involves a transgression, and it appears to directly contradict the Rambam's own ruling in Hilkhot Me'ila.

 

            The Mishneh le-Melekh (in Hilkhot Geneiva) suggests that, in truth, when a violation is involved the shelichut dissolves, as implied by the Rambam's view in Hilkhot Me'ila.  In Hilkhot Geneiva, however, the Rambam speaks of a situation where the meshalei'ach did not request that the animal be slaughtered specifically on Shabbat.  He simple commissioned the shaliach to slaughter the animal at his convenience; he never imagined that the shaliach would do so on Shabbat.  That the shaliach decided to violate Shabbat has no impact on the shelichut, which pertains only to the slaughtering of the animal per se.

 

            However, in his commentary on the mishna, the Rambam indeed applies this ruling even to a case where the dispatcher specifically ordered the slaughtering to take place on Shabbat.  Our question, then, remains: why is the shelichut not immediately negated once it entails a violation of Shabbat?

 

            The Or Samei'ach suggests a distinction between the institutions of me'ila and "dalet ve-hei."  Though neither is included in the principle of ein shaliach le-dvar aveira, the exclusion of me'ila involves a much more drastic chiddush than that of the slaughtering of the stolen animal.  First, in the situation of Hilkhot Geneiva, the shaliach slaughters the animal on the thief's behalf; he derives no benefit from the forbidden action.  In the case of me'ila, by contrast, the shaliach was instructed to partake of the forbidden meat.  Although he formally acts as a shaliach, nevertheless he derives personal benefit from his action.  Thus, the maintenance of the shelichut in this case is far less intuitive, and the shelichut is more easily terminated.  Additionally, the shaliach in the case of Hilkhot Geneiva does not have a status of a "bar chiyuva," meaning, he is not included in the specific prohibition the meshalei'ach seeks to violate.  Only the thief himself is liable for the special "dalet ve-hei" fine if he slaughters the animal.  By contrast, in the case in Hilkhot Me'ila, the prohibition of me'ila, which the meshalei'ach instructs the shaliach to violate, applies equally to them both.  This, too, renders the shelichut in case of me'ila far more counterintuitive.  As the shaliach is himself included in the prohibition against eating sacrificial meat, we are less inclined to view him as merely an agent of his meshalei'ach.  The shelichut is therefore more easily canceled when another violation is involved.

 

            The Sha'ar ha-Melekh raises yet another distinction to resolve the difficulty in the Rambam.  In the case of Hilkhot Me'ila, the shaliach eats a piece of forbidden meat, meat that is intended to be burnt on the altar and hence forbidden for human consumption.  Such meat has, by its very definition, two prohibitions associated with it: the prohibition against eating meat meant for the altar, and the prohibition of me'ila - misusing the property of hekdesh.  Thus, the two violations committed by the shaliach are very much interrelated.  As a result, the involvement of one prohibition can easily affect the other with regard to the validity of the shelichut.  In Hilkhot Geneiva, by contrast, the shaliach violates two entirely distinct prohibitions - slaughtering stolen property, and Shabbat desecration.  Once we can separate the two prohibitions from one another, it is likely that the Shabbat violation, with respect to which the shelichut is annulled (because of ein shelichut le-dvar aveira), will have no affect on the second prohibition, slaughtering the animal.  The shelichut thus remains intact for purposes of the "dalet ve-hei" obligation, despite the violation of a different prohibition.

 

            According to the approach of both the Or Samei'ach and the Sha'ar ha-Melekh, the Rambam essentially holds that the shelichut is sustained even when it involves a transgression.  Ein shaliach le-dvar aveira does not undermine the entire shelichut.  The case he discusses in Hilkhot Me'ila, which seems to imply otherwise, marks an exception to the general rule.  Whether we adopt the Or Samei'ach's approach or that of the Sha'ar ha-Melekh, the case in Hilkhot Me'ila is a unique instance where the shelichut can be more easily dissolved, either due to the independence of the shaliach (Or Samei'ach) or because of the inherent relationship between the two prohibitions involved (Sha'ar ha-Melekh).

 

            In light of this, we may now reaffirm the line of reasoning posited earlier to allow one to rely on the heter mekhira even if he himself believes that the sale is prohibited.  We assumed that if ein shaliach le-dvar aveira is predicated on a gezeirat ha-katuv, and it thus applies even to cases of shogeig, then the shelichut remains intact despite the fact that it involves a transgression.  The Or le-Tziyon challenged this presumption based on the ruling of the Rambam in Hilkhot Me'ila, which implies that the shelichut is dissolved, even though the Rambam applies ein shaliach le-dvar aveira to cases of shogeig.  As we have seen, however, the Rambam in fact maintains that generally, the shelichut remains intact.  We may therefore uphold our assumption, and thus even one who personally does not accept the ruling permitting the sale of farmland to gentiles may still accept the validity of the sale after the fact for purposes of the heter mekhira.

 

Sources for shiur #6:

1. Kiddushin 42b, vi-haditanya shaliach...vi-zeh michayev.

2. 21a "shilach biyad cheresh...shlichutei."

3. Rambam Hil. Geneiva 3:6. Rambam's Commentary on the Mishna BK 7:2.

4. Netivot Hamishpat 182;1 till "vi-inach."

5. Sema 292;10; Ktzot 292;1 from "vi-hanireh" till "ela."

 

Questions:

1. Regarding which transgressions is there a specific source from which we derive the culpability of the meshaleach?

2. In these cases, is the meshaleach culpable even if the shaliach was a minor or gentile?

3. If the mishaleach cannot pay, is the shaliach obligated to do so?

4. Does shlichut apply if a person was sent to do an action which entails two transgressions, one in which shlichut pertains and one in which it doesn't?