Shiur #23: Understanding the Source for Zakhin - Unauthorized Shelichut
Yeshivat Har Etzion
Shiur #23: Understanding the Source for Zakhin - Unauthorized Shelichut
By Rav Moshe Taragin
A previous shiur outlined the mechanism of zakhin, which according to several Rishonim is a derivative of agency, shelichut. Conventional shelichut requires minui, appointment; in overwhelmingly beneficial situations, however, Halakha assumes that the recipient would have appointed a shaliach had he only known of the opportunity. Essentially, minui shaliach can be realized through umdana - halakhically recognized assumptions.
The Ketzot Ha-choshen (105:1) raises strong objections to the notion of shelichut which emerges from assumptions. He cites a gemara in Bava Metzia (22a) which assesses a tosefta in Terumot (1:5) describing the selection of teruma by a shaliach who has not been formally appointed. The Gemara does not invoke the specific mechanism of zakhin since presumably, the device of zakhin allows self-deputization to ACQUIRE items and but not to select teruma. Initially the Gemara appears to sanction designation of teruma by an unappointed third party - if this selection is favorable to the owner of the crops. This view seems to ratify the principle of shelichut based upon assumptions. At this stage, we would easily extrapolate zakhin to cases of acquisition and understand its efficacy as a parallel form of presumed shelichut.
However, the Gemara immediately rejects this concept and instead reinterprets the tosefta in Terumot as referring to a situation in which formal designation occurred. The simple reading does suggest, as the Ketzot concludes, that the Gemara is unwilling to consider shelichut based upon assumptions, and zakhin must therefore be based upon some other foundation.
Of course the logical rebuttal to the Ketzot's view is that the gemara does not disqualify ALL forms of shelichut based upon umdana. Perhaps zakhin, in overwhelmingly favorable situations, does furnish an assumption which allows shelichut. In the situation of teruma selection, the benefit is not overwhelming; therefore no workable assumption exists for the launching of unappointed shelichut.
Based upon this gemara, the Ketzot develops a very provocative concept to describe zakhin. Even though the beneficiary never appoints the shaliach, the Torah authorizes this shelichut with an aim to advance the financial interests of given parties without their knowledge. In a scenario which can benefit another Jew, one has halakhic authorization to act as his agent - even though the beneficiary never specifically appoints the other. The appointment of zakhin stems from the Torah's designation not from assumed appointment of the beneficiary.
A gemara which almost intuitively supports this notion of the Ketzot (and which the Ketzot himself cites) is the discussion in Bava Metzia (10a) of the case of "chav le-acherim." The gemara does not allow shelichut if the agency will harm another party's interests while it advances the interests of the beneficiary. For example, if a debtor has limited funds from which to reimburse his creditors, a shaliach cannot seize monies for one creditor since it will prevent the others from collecting: by seizing the funds, he is directly harming Shimon while assisting Reuven. Rashi asserts that while the condition of chav le-acherim precludes the application of zakhin, directly-appointed shelichut can still be executed; if a person were specifically appointed to collect funds form the debtor, he can fulfill his agency even to the detriment of other creditors. If zakhin operates as shelichut because of umdana and assumed deputization we might wonder, according to Rashi, why it fails in a case of chav le-acherim. Just because the action will impair someone else does not mean that the beneficiary is no longer interested in promoting his personal interests. Why should zakhin fail in a case of chav le-acherim if classic shelichut still operates? If we adopt the Ketzot's theory, we may logically assume that the Torah only allows unspecified shelichut if the benefit to Reuven does not hinder Shimon. If Shimon will be injured, the Torah has equal responsibility and concern for his welfare and will not authorize shelichut.
A second interesting halakha which supports the Ketzot's opinion is stated by the Rashba in Kiddushin (23a). Several gemarot indicate that zakhin only succeeds if the beneficiary accepts the results upon discovering the situation. The Gemara in Bava Batra (137a) already mentions that the beneficiary, upon on whose behalf a gift was acquired, may reject the item upon learning about the execution. Similarly, the Gemara in Ketubot (11a) allows a child who was converted as a minor (through the principle of zakhin) to reject his conversion immediately upon maturing into a halakhic adult. Each of these gemarot firmly establish the rule that a beneficiary may reject the zakhin mechanism. This halakha is logical regardless of how we understand the source of shelichut-based zakhin. If the source of shelichut is the assumed agreement of the beneficiary, we certainly understand the disqualification of zakhin if he himself expresses disapproval. Even if the Ketzot is right, and the Torah ordains shelichut for indisputable benefits, the potential beneficiary may veto the acquisition if he judges a particular item to be detrimental subjectively. In such an instance, the veto of the recipient renders the opportunity disfavorable and the potential agent no longer enjoys halakhic empowerment.
However, the Rashba asserts a principle which may dramatically tilt toward the Ketzot's opinion. He claims that in situations of absolute benefit (such as the emancipation of a non-Jewish slave, an eved kena'ani), zakhin may operate EVEN IF the beneficiary attempts to veto the proposal by expressing his opposition. In general, emancipation of an eved is efficacious when a third party accepts the shetar shichrur – (writ of emancipation) on behalf of the slave; even if the eved were, upon discovering the attempt to liberate him, to express his disapproval, he is still freed - zakhin remains operative. In his comments to Hilkhot Zekhiya U-mattana (Chapter 6), the Machaneh Ephraim suggests that we may not trust the slave's 'veto.' Since it is improbable that any eved would reject his own potential release, we must assume that he deeply desires the zakhin and is – for some reason - merely concealing that yearning. Certainly, the Machaneh Ephraim's take on the Rashba can cohere with either opinion of zakhin, since, ultimately, we do assume that consent exists even though it is not expressed.
However, the more literal reading of the Rashba suggests that in certain situations of absolute benefit, the principle of zakhin may operate even WITHOUT the full consent of the beneficiary. This would certainly veer strongly away from understanding zakhin as a type of shelichut stemming from umdana; how can we assume appointment if the person explicitly attempts to entirely reject it? If the Ketzot is correct and the Torah creates agency in cases of benefit, we MAY sanction that agency to operate even in the absence of any tenable presumption of the beneficiary's interest. The Torah may authorize zakhin agency for any objective and commonly accepted benefit.
In fact, the Rashba's position about vetoed zakhin may already be latent in an interesting comment of the Rashbam to the aforementioned gemara in Bava Batra. As mentioned earlier, this gemara conditions the success of zakhin upon the ultimate approval of the beneficiary; if he rejects the present, the zakhin fails. The Rashbam comments that as gifts are moral liabilities (based upon Mishlei 15:27, which encourages one to avoid the receipt of excessive presents), his registered disapproval converts the gift into a burden rather than a benefit. Why is the Rashbam compelled to highlight the moral ambiguity of gifts in order to justify the cancellation of the zakhin principle? Were it not for this moral ambiguity, ambivalence, would the beneficiary be UNABLE to oppose zakhin? Logically, this comment of the Rashbam may be echoing the position of the Rashba: as zakhin operates based on divinely-appointed agency, it may be authorized independent of the beneficiary's personal designation and may, in certain cases, operate even in the face of his stated opposition. Stated disapproval alone would be ineffective in subverting zakhin's ability to enable the receipt of a gift. The only reason that zakhin fails is that the beneficiary's disapproval renders the gift a debt not a benefit.
The Ramban in Chullin (39b) cites an intriguing position which may also yield a portrait of zakhin which is severed from any assumed appointment. A gemara in Kiddushin (45a-b) discusses a father who acts as the shaliach of his adult son — even though he was not appointed — in a kiddushin ceremony. The gemara disqualifies this kiddushin by assuring that we do not worry that the son may have subsequently accepted his father's agency. This gemara certainly suggests that if a son WERE to agree to his father's execution of kiddushin on his behalf, it would be valid – presumably based upon the strength of zakhin. As kiddushin creates an ONUS of marital support for the husband, zakhin should not necessarily operate. Simply stated, this gemara suggests that subsequent acquiescence on the part of the recipient may trigger the application of the principle of zakhin even concerning a process which is typically disadvantageous. The Ramban cites this option and the seeming implication of the gemara and then quickly rejects the notion, reinterpreting the passage.
Clearly, if we do allow this option and advocate the use of zakhin in cases where the acquisition is generally disadvantageous and yet is subsequently embraced by the beneficiary, we are interpreting zakhin more similarly to the Ketzot's view. Were zakhin to operate based on assumed appointment, we would require that assumption "in place" at the time that the agency is performed. Typical and conventional benefits carry those assumptions and allow 'presumptive appointment.' However, conventional onuses disallow such automatic assumptions; minui cannot, in these cases, be created through umdana. By allowing zakhin for burdens subsequently embraced by the recipient, we may be asserting the strategy of the Ketzot: the Torah authorizes agency without personal appointment either actual or presumed for all benefits. Even in a process which is typically detrimental, shelichut may be retroactively authorized if the recipient ultimately expresses his approval. Of course, asserting the Ketzot's opinion does not necessarily invite this position. We may still contend that the Torah only authorizes conventional benefits and not burdens which even one person casts as beneficial. However the most palatable manner of explaining this position would seem to be the Ketzot's form of the zakhin mechanism.