Shiur#09: Culmination of Shaliach

  • Rav Moshe Taragin
The Israel Koschitzky Virtual Beit Midrash

Talmudic Methodology
Yeshivat Har Etzion


 

Lecture #09: Culmination of Shaliach

By Rav Moshe Taragin

 

 

            Typically, "halakhic transformations" may be delegated to a shaliach and enacted in the absence of the true author. The ubiquitous principle of "shelucho shel adam kemoto" allows for almost any halakhic activity to be designated to a shaliach. Once the shaliach executes the prescribed action, the person he represents immediately absorbs the halakhic consequences.

 

            In fact, there is one form of "shaliach" which requires confirmation on the part of the original author. In purely beneficial transactions (known as zechut), a person can serve as shaliach without specific designation. Anyone can unilaterally represent another person if that representation is purely beneficial. Although this principle of zachin le-adam she-lo be-fanav allows self-designation by the messenger, the recipient of the zechut reserves the right to refuse it.

 

The situation of zachin is unique in that the action performed by the shaliach may not ACTUALLY be beneficial to the recipient. Generally, we may assume benefit based on universal norms and act without articulated shaliach. The recipient of the zechut may however, object by insisting that, despite general interest, he views the "action" as detrimental. Once the package is no longer advantageous, the warrant for zachin or self-prescribed shaliach disappears.

 

            We can summarize these principles as follows: In general, shaliach concludes after the agency has been executed, while the unique form of zachin le-adam she-lo be-fanav requires final confirmation.

 

            There are, however, two interesting halakhot which may indicate that even classic shaliach requires some final consultation, or at least the "ability" to secure confirmation. The gemara in Gittin (24a) describes a husband who dispatches a shaliach to divorce his wife and instructs the messenger to appoint a different shaliach to deliver the get; this allows the original shaliach, who was appointed by the husband, to serve as a shaliach kabbala representing the absent wife in receiving the get. The gemara appears to disqualify this setup since "lo chazra shaliach eitzel ha-ba'alim;" this shaliach – who changes sides at the last minute to represent the woman - is incapable of returning to his dispatcher, as he now represents the other party.

 

There are different options for explaining this concept and perhaps limiting it to the unique circumstances of a get. For example, the Nimukei Yosef claims that the infraction occurs because the DELIVERY is compromised. A get must be physically delivered, and one person can't participate in both the delivery and the receipt. In halakhic areas which do not require direct delivery, however, we may allow a shaliach to "play" both sides.

 

The simple language of the gemara, however, suggests a broader concept, demanding that a shaliach remain CAPABLE of representing the dispatcher through the performance of the shaliach. Indeed, both Tosafot (s.v. ve-ha) and Rashi (s.v. lo on Gittin 63b) take the gemara literally - a shaliach must serve the shaliach through, and be capable of reporting back to the meshalei'ach. Why should the structure of shaliach demand such capacity? Shouldn't the entire process terminate with the successful performance of the designated act even if the sheliach cannot "report" back to the one who sent him?

 

            Perhaps this position reflects the essence of a sheliach and the manner in which he represents the dispatcher. Some view a sheliach as merely a "puppet" designated with performing an ACTION which the absent meshalei'ach cannot implement. Essentially, the meshalei'ach remains the "author" and primary catalyst of the process (ba'al chalot), while the shaliach is merely sent to perform a "dumb" action on behalf of the meshalei'ach. If this were true, we might wonder about the need for the shaliach to report back to the one who sent him. After all, the meshalei'ach was driving the process all along, even during the actual performance; once that performance has concluded, the halakhic transaction is complete without the shaliach "checking in" with the meshalei'ach.

 

            Alternatively, if we view the shaliach as the primary executor of this process - by designating him I empower him to independently author an action, which I ultimately absorb - the meshalei'ach essentially withdrew from the process, which is now entirely driven by the shaliach. Conceptually, after the act has been performed, we still may require some "transfer"' of the halakhic package back to the meshalei'ach. Even though we don't require ACTUAL delivery or return, the shaliach must be capable of at least symbolically returning and passing the halakhic consequences back to his dispatcher. If he chooses to represent a different party, and compromises this ability, he may subvert his shaliach. The rule of "capacity of return," if taken literally (as Rashi and Tosafot do), may indicate that a shaliach has become an independent force and is not merely acting as an extension of the original meshalei'ach.

 

            A second manifestation of this concept – and in many ways a more overt example – can be located in a Ra'avad in his comments to the Rambam in Hilkhot Shluchin 1:2. Several gemarot assert that if a shaliach errs in his agency (for example, fetching too low a price for the item he sells on behalf of the meshalei'ach), his shaliach is canceled. The meshalei'ach can challenge him: "I appointed you to my benefit - not my detriment." Most Rishonim believe that once the sheliach deviates, his agency is AUTOMATICALLY cancelled. The Ra'avad, however, claims that the meshalei'ach, upon discovering the deviance, may choose to AFFIRM or REJECT the deviant shaliach.

 

            At first glance, this position is quite surprising. The machinery of shaliach has already been erected and a significant deviance should inherently subvert it. What is the mechanism that allows the meshalei'ach to make the final determination about the nature of the sheliach? Perhaps the above stated structure of shaliach helps explain the Ra'avad's stance. Since a shaliach has been empowered to independently enact the halakhic process, there is a "transfer" point at which he symbolically relays the halakhic package that he has created. The gemara in Gittin requires the sheliach's CAPACITY to report back to his dispatcher(as opposed to joining a different shaliach). The Ra'avad believed that the shaliach is actually confirmed or rejected at that final stage or moment. Although we do not obligate the shaliach to return, the meshalei'ach has the right to refuse or reject a shaliach which was deviant.