Appointing a Shaliach on the Basis of Presumption (Umdana)

One of the most powerful and ubiquitous halakhic tools is the mechanism of shelichut - executing halakhic activity through an agent.  Almost all (non-mitzva) activities can be delegated to a shaliach.  In fact, if the situation is overwhelmingly beneficial to a person's interests, a third party can initiate shelichut even without receiving direct verbal deputization.  This concept, known as "zakhin le-adam she-lo be-fanav," is a widespread and commonplace exercise in Halakha. 

Tosafot (in Bava Metzia (10a) and Gittin 11b) assume that the concept of zakhin is merely a derivative of classic shelichut; zakhin constitutes viable shelichut without overt appointment.  Tosafot's position is generally understood as follows: since the situation is so advantageous, a concerned 'friend' may ASSUME that the potential beneficiary would have initiated this shelichut had he only known of the potential windfall.  Armed with an umdana, an extremely sound presumption, the altruist may act as a shaliach.  Tosafot effectively endorse the minui (appointment) of a shaliach even in the absence of a formal designation; a shaliach can be appointed on the basis of a mere umdana.  This constitutes a highly dramatic statement about the nature of minui shaliach, and of course, by extension, the nature of shelichut proper.  However, we will first explore parallel and related discussions to amplify this question.

The first mishna in the seventh chapter of Gittin describes the case of a husband who appoints a shaliach to deliver a get and subsequently became mentally incapacitated.  Though Reish Lakish allows the fulfillment of the shelichut and the delivery of the get even though the sender (meshalei'ach) has been sidelined, Rabbi Yochanan argues and demands that the delivery be suspended until the sender recovers.  Rabbi Yochanan seems to envision a complete suspension of the shelichut during the period in which the meshalei'ach is ill.  Based on this structure the Rosh (Tosafot Ha-Rosh, Gittin 70b) questions how the shaliach may advance his shelichut once the meshalei'ach regains his faculties.  If the original shelichut is rendered invalid during the sender's incapacitation, should we not require a subsequent re-appointment to reinstate the shelichut?

The Rosh answers that since the meshalei'ach originally created the shelichut, we can ASSUME that he wills its resumption after its initial suspension.  Effectively, the Rosh is applying Tosafot's zakhin theory to this situation.  If we can initiate shelichut without ANY prior authorization, simply through the strength of a presumed interest, we can certainly REINSTATE shelichut when it was originally licensed and subsequently suspended. 

An interesting debate appears in the comments of the Mishneh La-melekh to the Rabam (Geirushin 6:3).  Can shelichut be designated even when current conditions do not allow the execution of the shelichut?  For example, a man can appoint a shaliach to deliver a get to a woman whom he has not yet married.  Alternatively, a person may authorize a shaliach to process a get for his wife who is currently mentally incompetent.  Though in either instance the woman in her current condition cannot be halakhically divorced, the shelichut may be appointed prospectively for the time when circumstances will change and provide a 'divorceable' woman.  The Mishneh La-melekh deliberates this question, offering opinions which both allow and deny this position. 

Presumably, this debate invokes the previously defined question.  If we view the appointment of a shaliach as a halakhic DESIGNATION, conveying a new status to the agent.  The verbal appointment is a discrete halakhic action which can only be performed if it possesses halakhic meaning and viability.  If a woman cannot presently be divorced, the act of delegating the delivery of her get to an agent is preposterous.  By contrast, if we view appointing a shaliach in more casual terms, it does not constitute a halakhic designation of the shaliach but rather a general INDICATION by the meshalei'ach of his overall interest in this process.  Such interest can be registered even in the immediate absence of the proper halakhic conditions. 

Essentially, the latter position evolves logically from Tosafot's doctrine of zakhin.  If shelichut can be based on an ASSUMPTION, then the entire function of minui (appointment) is merely to indicate this assumption in less obvious situations; the more obvious cases do not require an explicit appointment, and for them zakhin will suffice.  If minui is merely an indicator rather than a formal designation, it can be formulated in an environment in which the process cannot yet be fully effected. 

It is intriguing to consider how the Mishneh La-melekh would define the mechanism of zakhin, if he rejects the ability to designate non-executable shelichut.  If minui is a halakhic designation which must empower the halakhic process in a halakhically viable setting, how can a shaliach operate in the absence of a formal declaration?  How can the Mishneh La-melekh authorize zakhin but disallow the appointment of a shaliach toward a process which is currently impracticable?

It appears as if this issue of the structure of minui may be found in the Gemara itself.  The beginning of the sixth chapter of Gittin cites a situation in which the husband empowers an agent to RECEIVE a get for his wife.  Halakha does not allow a husband to designate a sheliach kabbala to receive a get for his wife; this option is available solely to the woman.  However, since the husband indicates his interest for this divorce, the agent may process the get as a sheliach holakha (an agent to deliver the get) and effect the divorce.  The Gemara initially explains this phenomenon by asserting that "Since he has indicated interest in the divorce, it may be processed in any permutation possible." This suggests that even in the ABSENCE of a conscious appointment of a sheliach holakha, an agent may still act as such – assuming the husband wishes the divorce to proceed.  The Gemara questions the scope of this principle: what would happen if the shaliach dupes the husband into believing that he has been authorized as a receiving agent by the wife?  If the husband unwittingly concurs to this fabrication, would the shelichut be valid?  After all, even though the husband was deceived, he did show intent!

Faced with the unattractive option of sanctioning a shaliach's dishonesty, the Gemara offers an alternative explanation for the mishna which allows a shaliach, whom the husband unsuccessfully attempted to appoint as a sheliach kabbala to serve as a sheliach holakha.  The Gemara claims that every husband knows that he cannot authorize a sheliach kabbala; when he deputizes the shaliach as a sheliach kabbala knowing that he has no authority to create a sheliach kabbala, he effectively expresses his wish for this individual to be his sheliach holakha."  Of course, were the husband were duped into believing that the shaliach was already appointed as sheliach kabbala, this principle would not obtain, the husband would have no reason for tacitly including this proviso, and the get could not be processed. 

Essentially, the Gemara offers two versions toward understanding the mishna's rule.  Initially, the Gemara believes that the general indication of the husband is sufficient to create a sheliach holakha.  Ultimately, the Gemara concludes that we require specific appointment, but we can assume that the husband maintains 'double intent' directly appointing the agent as a sheliach holakha, even though he verbalizes a desire to appoint a sheliach kabbala.  This deliberation closely parallels the aforementioned question of whether minui shaliach requires a specific and formal designation or can be accomplished through conjecture.  Of course, as the Gemara ultimately discovers an implicit deputization in this case, it may be likely that the gemara does envision direct appointment as a precondition for minui.  If so, we may be forced to reinterpret zakhin is a different manner.