Shiur #22: Appointing a Shaliach to Perform an Aveira
GEMARA KIDDUSHIN PEREK BET
Shiur #06: Appointing a Shaliach to Perform an Aveira
By Rav Moshe Taragin
Appointing a Shaliach to Perform an Aveira
The gemara in Kiddushin (41-43) elaborates upon the various halakhot of shelichut. One such principle is that shelichut is invalid in the execution of an aveira. For example, if Reuven appoints Shimon to murder or physically damage someone, it is Shimon who is held legally responsible. Of course, Reuven's conduct is reprehensible and he is certainly taken to task - biydei shamayim; he will ultimately be punished by the Heavenly courts for this behavior. However, from a strictly legal standpoint, Shimon is held accountable. As the gemara in Bava Metzia (10b) remarks "Divrei ha-rav ve-divrei ha-talmid divrei mi shom'in!! - one should pay greater attention to God's wishes and less to the subordinate wishes of a human being."
Though, in general, this rule - ein shaliach li-devar aveira (there can be no shelichut representation in the execution of an aveira) applies across the board, there exists a category of exceptions. The gemara in Kiddushin (43) isolates three cases of aveira in which shelichut is effective. The first case is tevicha u-mekhira - the issur of slaughtering or selling a stolen animal. If the shaliach executes this crime at the behest of his meshaleach (his sender), he, and not the meshaleach is obligated to pay the fine (4 times or 5 times the worth of the animal). Similarly, if one steals an item of hekdesh in compliance with another's request, it is he who must reimburse hekdesh, and not the meshaleach. The third case relates to the prohibition of shelichut yad - illegally deriving benefit from a pikadon - an object which was deposited to be watched. The actual shaliach who derives the benefit and not the meshaleach is responsible (the gemara suggests that many opinions only accept two of these three cases). How are we to understand these exceptions? Why in these cases does the general rule of "ein shaliach li-devar aveira" fail?
The simplest route would be to understand these cases exactly as such - as exceptions. In each instance a pasuk is cited as the source for the effectiveness of shelichut. One might propose that the rule pertaining to the failure of shelichut in cases of aveira simply carries three built-in exceptions.
Alternatively, one might claim that the rule of ein shaliach li-devar aveira has absolutely no exceptions. The failure of shelichut in cases of aveira applies across the board. In these few instances the reason the meshaleach and not the shaliach is responsible is because the mechanism of shelichut is unnecessary. It doesn't concern us that shelichut per se fails. Responsibility is ascribed to the meshaleach for different reasons. What has changed is not the map of shelichut but rather the definition of these aveirot. This suggestion requires a broader look at the nature of shelichut.
Shelichut itself is one of the most intriguing and useful halakhic implements. It allows an action to be physically delegated to a shaliach even if it is considered halakhically, as having being performed by the meshaleach. For example, if Shimon is mekadesh a woman at Reuven's request, the woman is legally betrothed to Reuven and not Shimon even though he was the one who actually gave her a ring and pronounced "harei at". It goes well beyond the modern conception of "agents". If I sign a proxy for my vote I have, in effect, transferred my vote or right to vote to another. That other is not acting on MY BEHALF but AS MY BENEFICIARY who has obtained my authority. If children of a deceased elect an executor, his division of property is not in their place. He divides the estate and they acquire possession based upon his division. Shelichut goes much further. It allows agency even in actions which require personal involvement. Theoretically a woman is only married to one who is actually mekadesh her. In this case Reuven did not actually execute the marriage ceremony, but the results are ascribed to him. This is the magic of shelichut.
Understanding shelichut as such we must admit that though it is very impressive, it is only necessary in cases in which intimate, and personal involvement are needed. In these cases shelichut substitutes for this involvement. However, in cases in which one doesn't have to be directly involved, shelichut becomes irrelevant. For example, if I ignore my pet lion who proceeds to escape and trounce a person, in no way have I performed the act of damage. The animal is not my shaliach. However, my negligence CAUSED the damage and this obligates me to pay. In order to be liable I don't have to actually perform damage; CAUSING it is sufficient. In cases similar to this shelichut is unnecessary.
Possibly, in these three exceptional cases, the reason that the meshaleach and not the shaliach is responsible is that these aveirot do not revolve around personal action. One who causes hekdesh items to be profaned has committed the sin of me'ila. Similarly, one who steals an item and then causes it to be further damaged has committed this intensification of the original theft and is liable to a heavy fine. In truth, one can NEVER appoint a halakhic shaliach to perform an aveira. The shelichut breaks down and no formal relationship remains between the meshaleach and the shaliach. However, the shaliach only executed the crime because the meshaleach requested. Being that the meshaleach is the 'first cause' of this crime, he is held accountable. Shelichut as a formal category plays no role. Even in the wake of the failure of shelichut the meshaleach is responsible because he EFFECTED this crime.
We have examined two patterns of understanding the culpability of the meshaleach. Normally in cases of aveira as the shelichut fails he is not responsible. In several exceptional cases he does pay. Is that because in these instances shelichut operates? Or does it simply mean that his chiyuv in these instances is independent of shelichut. He pays because he engendered this damage.
The first method of testing this question is by scrutinizing the manner in which "shelichut' operates in these cases. If it operates within the normal patterns of shelichut we might assume that a full-blown halakhic shelichut is active even though an aveira is being commissioned. If, however, in these cases we witness this 'arrangement' operating beyond the perameters of standard shelichut, we might infer that shelichut is not active at all. We are merely assigning guilt to the meshaleach based upon his effectuating the ultimate crime.
The gemara in Me'ila (21a) discusses the form of 'shelichut' when stealing from hekdesh. In one case the meshaleach asks a katan (a minor) to pilfer an item from hekdesh. The mishna maintains that the meshaleach is chayav. In general, a katan may not be appointed as a shaliach. If the meshaleach is culpable in this scenario, this might indicate his guilt is not based upon shelichut. Instead, he is responsible simply because he caused this crime. His role is not affected by the fact that his messenger was a katan. He still generated this crime.
A similar situation concerns a nochri (gentile) who executes the wishes of his meshaleach. The Netivot in Siman 182;1 addresses this concept and defends the fact that a gentile or katan can be this 'shaliach'. A gentile, as well, cannot legally be considered a shaliach. If indeed we obligate the meshaleach for the deeds of his gentile messenger, we might have evidence that this is not based upon conventional shelichut but rather is a chiyuv which stems from the meshaleach's role in causing the aveira.
A second form of nafka mina might surround the culpability of the shaliach. Again on a moral level he is certainly guilty. Even though these three aveirot are exceptions and in these cases the 'shelichut' arrangement in one way or another is effective, we still cannot exonerate the shaliach. Just because the meshaleach ordered a hit does not mean the shaliach should fulfill his wishes. However, a legal question still remains in terms of who must make financial remuneration to the victim. Obviously, as these cases are exceptions to the general failure of shelichut, the primary compensation is taken from the meshaleach. What about secondary compensation? If the meshaleach is indigent or has fled can we turn to the shaliach and request payment? A machloket surrounding this point emerges from a debate between the Sema and the Ketzot in Choshen Mishpat 292 (se'if katan 10 in the Sema). If indeed, in these instances shelichut has operated effectively, we transfer the entire 'action' to the meshaleach and do not consider the shaliach as having perpetrated this aveira (again on a legal compensatory level, not a moral one). If so, we would not except him to be the source for secondary payment. If, however, shelichut has failed EVEN in these exceptional cases and the meshaleach is guilty because he has caused the damage, we might still obligate the shaliach. After all, he also participated in the affair. Given the breakdown of shelichut he is held accountable for his actions. He has no halakhic mechanism for projecting his action unto others or ascribing them to the meshaleach.
A final question would concern the case where shelichut is commissioned for something which contains multiple aveirot. What if a shaliach is sent to slaughter a stolen animal on Shabbat. This action entails two issurim: chillul Shabbat and tevicha u-mekhira. If the exception of shelichut in the case of tevicha u-mekhira entails the successful launching of shelichut it would certainly fail in this scenario. Indeed, tevicha u-mekhira per se do not subvert shelichut but the aveira of Shabbat, which is also integral to this action should!!! The meshaleach should not be guilty because the shelichut has been invalidated by the issur Shabbat!! On the other hand if the chiyuv of the meshaleach were not based upon the effectiveness of shelichut but upon his role on causing the aveira (and the damage), he would be culpable even though the shelichut is void. Adding an extra issur to nullify the shelichut does not in any way change the fact that he caused the aveira and should be guilty. The Rambam in Hilkhot Geneiva 3:6 contends that in such a case the meshaleach is not culpable. Evidently, he viewed the standard case of tevicha u-mekhira as an exception - a case of aveira in which shelichut is operative. Mixing an additional issur invalidates the shelichut and exonerates the meshaleach from payment. See the Rambam in Peirush ha-mishnayot (Bava Kama perek 7) where he seems to imply the opposite.
Sources for Shiur #7:
Kiddushin 43a - "itmar rav delo havei kiddushin"
Ritva s.v. "itmar rav"
Makot 5b - Mishna and Gemara until "she-harag et ha-nefesh" (end of 6a)
Rosh Makot 1:11
Avnei Miluim 42:6 s.v. u-lefi zeh, 7 s.v. amnam
Shulchan Arukh (with Rama), Even Ha-ezer 42:3/4