Shelichut and Be-Ba'alim

  • Rav David Brofsky
            In this week's shiur, we will attempt to deepen our understanding of a number of halakhot, including "ba'alav imo," "shelichut," "hafarat nedarim" (the right of a husband to annul these vows of his wife which can potentially affect them both), and "yad eved ke-yad rabo."  These all pertain to the issues discussed on daf 96a.
            The gemara (96a) raises the following question: "Ravina said to Rav Ashi: What is the halakha concerning one who says to his shaliach (agent) - 'go and contract yourself and lend my cow?'  Do we require 'ba'alav mamash' - the presence of the actual owner which is lacking; OR do we rely on the principle of 'shelucho shel adam kemoto' - one's agent is viewed as oneself?"
            The gemara then asserts that this question should depend on a similar debate regarding hafarat nedarim: "One who says to an appointed guardian - 'any vow which my wife accepts upon herself from now until I return - you should annul' - and he indeed annulled a vow - I might have said that it should be considered annulled - however, the Torah teaches 'her husband should uphold it (her vow) and her husband should annul it' - these are the words of R. Yoshiya.  R. Yonatan said, we find that there is a general principle of 'shelucho shel adam kemoto'..."
            Let us suggest two possible ways to explain the question posed by Ravina to R. Ashi, which we will employ in our understanding of the gemara's discussion of hafarat nedarim and yad eved ke-yad rabo as well.
1.  The question concerns the nature of the halakha of "be-ba'alim."  In other words, does "be-ba'alim" demand the presence of the actual owner himself or does it suffice if his shaliach is contracted in his place?
2.  Alternatively, it is the nature of "shelucho shel adam kemoto" that is under investigation.  In other words, it is clear that the lender's presence - on some level - is required.  The question is, however, does "shelucho shel adam kemoto" meet this requirement?
            According to the first option, it is possible that without the owner himself being contracted, the exemption of be-ba'alim may not apply.  And even according to the second approach, it is clear that unlike gittin and kiddushin, the lender's presence, on some level, is required.  What is the basis of such a requirement?
            Tosafot (s.v. Shaliach) suggest two options - both related to the parasha of "be-ba'alim:"
1.  The Torah repeats the word "ba'alav" TWICE.
2.  The term "ba'alav" - ITS OWNER - suggests that another cannot substitute for him.
            Tosafot, thus, hinge the requirement solely on a "gezerat ha-katuv."
            Let us attempt to deepen our understanding of this "gezerat ha-katuv" and determine why there should be a more stringent requirement of "presence" for these specific halakhot.
            As discussed in previous shiurim, the halakha of "ba'alav imo" can be addressed on two levels.  On one level - we must determine whether the situation of "be-ba'alim" merely exempts the shomer from payment OR if it classifies him as not being a shomer AT ALL.  On a second level, however, we are left to wonder, what is the rationale behind such a broad exemption?  Some commentators maintain that since the object was borrowed together with the owner - the owner remains responsible for the object.  Thus, a "shomer - object" relationship is never created.  Others, however, suggest that since the owner himself can now be viewed as an EMPLOYEE of the shomer, the owner may no longer obligate his "boss" (the borrower) to pay him for damages to the object (See Shiur #4).
            Based on the above explanations of the exemption of "be-ba'alim" - we may suggest that the gemara itself is grappling with the nature of the exemption of "ba'alav imo."  If we posit that the borrower never actually becomes a "shomer" because the owner remains responsible for the object, then it is likely that the presence of the actual owner himself, "ba'alav mamash," would be required.  However, if we view the halakha of "ba'alav imo" as merely reflecting a different type of relationship between the owner and borrower, or, if the halakha of "ba'alav imo" is to be understood as merely an exemption from payment, then the question of who initiates this relationship seems less important, if not irrelevant.  Therefore, even in a situation in which a shaliach created this relationship, the halakha of "ba'alav imo" may apply.
Shelucho Shel Adam Kemoto
            Alternatively, we may understand the gemara's question as an attempt to understand the nature of "shelucho shel adam kemoto:" Is the shaliach merely an agent authorized to perform certain transactions; or, does he assume the persona of the "meshale'ach" himself?  In other words, how are we to understand "KE-moto" - literally, or in a purely legal sense?
            This question lies at the heart of understanding the principle "shelucho shel adam kemoto."  Let us cite a number of applications of this question.
            There is a discussion among the Acharonim regarding the following issue: If the halakha indeed maintains that "shelucho shel adam kemoto" - why can't a person appoint a shaliach to perform mitzvot such as sukka and tefillin?
            The Ketzot Ha-Choshen (182:1) cites the Tosafot Rid who suggests the following answer: Even if I accept that when a shaliach performs kiddushin or presents a get, etc., the shaliach is to be viewed as the "ba'al" HIMSELF (in other words, that it is as if the ba'al himself betrothed or presented the get to the woman) there are certain mitzvot which the Torah requires that one perform with one's own body, such as sukka and tefillin.  Therefore, one cannot fulfill them through a shaliach.  In other words, from the perspective of shelichut, it is as if the person sat in a sukka, or put on tefillin; however, there are certain mitzvot which the Torah demands be fulfilled with one's own body, and since these actions were not performed with HIS OWN BODY, he has not fulfilled his obligation.
            However, one may offer a much simpler answer: The halakha of "shelucho shel adam kemoto" merely allows a person to transfer one's authority to perform certain transactions to another person.  A mitzva is not an action which a person is authorized to perform; rather, it is a personal obligation which must be performed by the person himself.  (R. Chaim is often quoted as suggesting this possibility, although there are also Rishonim who seem to adopt a similar understanding.)
            Similarly, there is a debate in Kiddushin 43a whether a "shaliach na'asa ed" - whether a shaliach may testify regarding the action which he performed.
"...Rav said a shaliach may become a witness, while it was quoted in the name of the house Rebbe Shela that a shaliach may not become a witness..."
            What is the debate between these two Amoraim?  The gemara continues:
"Rav said a shaliach may become a witness, and his words are considered to be effective.  And Debe Rav Shela say that a shaliach may not become a witness, as Mar said, shelucho shel adam kemoto, a shaliach is like the person himself, 'KE-GUFO,' literally..."
            According to the gemara, Debe Rav Shela seems to adopt an extreme understanding of "shelucho shel adam kemoto" - as literally playing the role of the person.  It is unclear whether Rav rejects this understanding, or whether he accepts it and is still willing to accept the testimony.
            A similar debate is cited by the Yerushalmi (Kiddushin 2:1).  However, the Yerushalmi, unlike the Bavli, says that this debate depends on whether we say "shelucho shel adam kemoto" at all.  Some of the commentaries on the Yerushalmi understand the gemara literally; there is a debate whether we say "shelucho shel adam kemoto" at all!  However, this seems rather difficult, being that throughout that Bavli, and even the Yerushalmi, there doesn't seem to be an explicit debate whether we say "shelucho shel adam kemoto" or not.
            Therefore, it is more likely that these two opinions in the Yerushalmi are debating the nature of "shelucho shel adam kemoto" - is a shaliach merely authorized to perform those acts which the ba'al has the authority to perform, such as kiddushin and gittin, and consequently there should be no reason to disqualify his testimony, or, does he actually assume the persona of the "meshale'ach" himself, and therefore his testimony cannot be accepted.
            Returning to our gemara, it is possible that the gemara's question, whether a relationship created by a shaliach will also include the exemption of "ba'alav imo" - may depend upon this very question.  Assuming (see above) that we require the owner's presence during the initiation of the relationship, do we maintain that a shaliach may actually play the role of the owner, and therefore it is as if the owner is present during the agreement, or, do we limit the role of a shaliach to one who is authorized to lend the cow, but unable to provide the owner's "presence" - which is a necessary component in the halakha of "be-ba'alim."
Hafarat Nedarim
            Let us now attempt to apply the approaches we developed above to the next stage of our sugya, the gemara's comparison to one who appoints a shaliach to annul his wife's vows.  Whether we assume that the gemara is questioning the halakha of shelucho shel adam kemoto, or whether the gemara is grappling with the very requirement of "presence" for hafarat nedarim, on what basis may we require "presence" specifically in the halakha of hafarat nedarim?
            Tosafot, as cited above, offer two suggestions; in both cases there is a repetition in the text, "ba'alav" or "isha" - or that that Torah seems to stress the role of the husband or lender.  As above, however, we may also suggest a reason why the Torah seems to require the husband's presence, to the exclusion of a shaliach.
            As mentioned above, the Ketzot maintains that theoretically a shaliach should always be able to play the role of the ba'al.  However, there are some mitzvot which the Torah insists must be fulfilled by the person himself, such as tefillin and sukka.  Similarly, he cites the Rosh (Nedarim 72b) who maintains that since the Torah insists that the husband HIMSELF hear the vow, the "hearing" of the shaliach doesn't suffice.  In other words, the inability to appoint a shaliach for hafarat nedarim does not reflect the limits of shelucho shel adam kemoto; rather, it points to a similarity between tefillin and the requirement that the husband hear the vow.  Both must be fulfilled with one's own body.
            However, I believe that we can suggest a more fundamental reason.  The gemara in Gittin (83b) asks why the husband has the right to annul his wife's vows, even though he himself did not make the vow, and his wife didn't express any regret (charata).  The gemara answers: "any woman who takes a vow - does so with her husband in mind."  Many Rishonim find this statement to be quite difficult; if so, they ask, than what function does the entire parasha of hafarat nedarim serve?  How, therefore, is this principle to be understood?
            Apparently, the above gemara understood that the Torah gave the husband the right to annul his wife's vows because these vows were taken with the inherent assumption that he would not object.  However, if he does object, then, and only then, does the Torah allow him to annul them.
            If so, then we must ask ourselves, may another person fulfill "and when her husband should hear..." in place of her husband?  If the right to annul the vow is based upon the assumption that the wife herself would not want to uphold a vow which is not approved of by her husband, then it would seem that this only applies if her husband actually hears the vow - and not if he merely instructs a shaliach to annul any vow which she may take in the future.  However, if he did not hear the vow, and his objection to this particular neder is unclear, then the shaliach does not have the authority to annul the vow.
            Let us return to our sugya.  We may now understand the debate between R. Yoshiya and R. Yonatan not as merely a debate regarding the nature of shelichut, or as a question of whether hafarat nedarim must be fulfilled with one's own body, similar to tefillin and sukka; rather, we may suggest that there is a debate regarding the very right of the husband to do hafarat nedarim: Is it to be viewed as an act which the husband has the authority to perform, similar to gittin and kiddushin, and therefore a shaliach may be authorized to annul the vow, or, is the husband's right to annul his wife's vows based upon the assumption that these vows were only made with the husband's approval in mind, and therefore, in the absence of the husband's EXPLICIT disapproval, there is no basis for hafarat nedarim, and therefore it may not be performed by a shaliach.
Yad Eved Ke-Yad Rabo and Eved Lav Bar Mitzvot Hu
            Let us follow our above analysis of the sugya through the next gemara, with questions whether an eved, a non-Jewish slave, can create a relationship in which the exemption of "ba'alav imo" would apply.
"... And R. Illish said to Rava one who says to his non-Jewish slave 'lend yourself and my cow' - what is the halakha?  ... According to the one who says shelucho shel adam kemoto - this is said regarding a shaliach who is a 'bar mitzva,' however, and eved is not a 'bar mitzva.' According to the one who does not say shelucho shel adam kemoto - this is said regarding a shaliach.  However, regarding an eved we say 'yad eved ke-yad rabo' - the hand of the eved is like that of his master!  He said to him - it would seem that an eved's hand should be considered like the hand of his master..."
            The gemara questions whether, according to the side which would view an ordinary shaliach as the ba'al himself, a non-Jewish slave, who is not obligated in mitzvot ("lav bar mitzva") is problematic.
            What is the problem of "eved lav bar mitzva?"  Rashi explains that the non-Jewish slave cannot be authorized as a shaliach, since he himself is not obligated in these halakhot.  Rashi's explanation is very problematic, and we do not have the time now to develop the difficulties, but suffice is to say that according to Rashi, the problem of eved is a technical problem regarding the eved's ability to become a shaliach at all.
            The Ritva, on the other hand, explains that while in general an eved can be a shaliach, here, "an eved is unable to fulfill THIS shelichut and is unable to take the place of a Jewish person...." In otherwords, even if in general a shaliach may provide the "presence" necessary to create an exemption of "ba'alav imo" - a non-Jewish slave, who is not obligated in mitzvot, cannot.
            What we have, therefore, in a debate between Rashi and Ritva whether the gemara is relating to a problem of shelichut, or to a special halakha of "be-ba'alim," as was developed above, which may require some level of presence of the lender.
            The gemara then states that even if we do NOT accept "shelucho shel adam kemoto" as sufficient regarding an eved, we should still say "yad eved ke-yad rabo" - and accept the non-Jewish slave as equivalent to the lender.  Regardless of whether shelucho shel adam kemoto was insufficient because it only reflects the ba'al's successful transfer of authority to the shaliach, and is unable to provide the owner's personal presence, or even if a shaliach in general can be viewed as playing the role of the owner but even this is insufficient for the halakha of "ba'alav imo."  The "chidush" of this gemara is that "yad eved ke-yad rabo" should be a close enough representation of the lender in order for the halakha of "ba'alav imo" to be applicable.  Why is this so?
            We may suggest that, in general, the principle of "yad eved ke-yad rabo" posits that for those halakhot relating to acquisition, the non-Jewish slave is not to be viewed as a separate entity; rather, "yad eved ke-yad rabo" - he himself is an extension of the ba'al himself!  If so, even if in general "shelucho shel adam kemoto" will not suffice to create an exemption of "ba'alav imo," a non-Jewish slave, who is LITERALLY considered an extension his master, WOULD suffice.
            It is interesting, therefore, to note that this stands in sharp contrast to the above debate regarding hafarat nedarim, in which the option of annulling a vow through an eved was not raised.  While the non-Jewish slave's ability to serve as an extension of his master may suffice in creating a "ba'alav imo" relationship, since regarding property it is as if the object never left the hands of the owner, it cannot contribute the "presence" necessary for hafarat nedarim, which demands personal representation of the husband.
Sources for next week's shiur:
1.  96b "Ibaya lehu ... ve-lo dayna" (97a)
2.  Shitta Mekubetzet s.v. Aval ha-Rashba, Ramban s.v. Ha.
3.  Rambam Hilkhot She'ila U-pikadon 1:1-4.
4.  Piskei ha-Rid 96b s.v. Ibaya 97a s.v. Hahu.
1.  Why should a sho'el be exempt in cases of "meita makhmat melakha?"
2.  Must a sho'el verify his claim of "meita makhmat melakha," or is an oath sufficient?
3.  The Rambam substituted "meita bi-sh'at melakha" for "meita makhmat melakha."  What is the significance of this formulation?  Why was this formulation not used by the Rambam in halakha 4?