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Zachin Le-Adam Shelo Be-Fanav as a Derivative of Shelichut

  • Rav Moshe Taragin

One of the most ubiquitous halakhic tools is the apparatus known as shelichut. Activities meant to induce new halakhic states may be delegated to agents through the process of shelichut. The ubiquity and potency of shelichut is due in part to the fact that it is derived from three separate pesukim in three very different areas of Halakha (kiddushin, teruma,and korbanot).


For shelichut to work, it typically requires a DIRECT appointment by the ba'al davar, the person who will dispatch the shaliach and who will absorb the halakhic consequences of the action performed. However, several gemarot assert the ability to represent another person without direct appointment. If the given activity is overwhelmingly beneficial, a “zekhut,” it can be performed by an agent who has not been explicitly appointed. This ability is known as “zachin le-adam shelo be-fanav.” The Rishonim differ as to the relationship between classic shelichut and zachin, and this debate affects to the nature of shelichut itself.


Many Rishonim – particularly Rashi (Bava Metzia 12b, Gittin (9b) and Tosafot (Nedarim 36b, Gittin 11b and Ketuvot 11a) – claim that zachin is a derivative of shelichut. Despite the absence of an overt declaration of agency, one person can represent another in matters that are beneficial. Ultimately, there is only one track allowing halakhic representation – the shelichut track. Zachin is merely unconventional shelichut!


Tosafot (Ketuvot 11a) and the Ran (Nedarim 36b) – as well as Rashi in Gittin (9b) – claim that zachin comprises "appointment by assumption.” Even though no explicit appointment has occurred, we can ASSUME THAT the beneficiary would have appointed the zachin representative had he known that the benefit was available. Halakha often allows umdana, assumptions that serve in place of explicit declarations. In the case of an agent, ASSUMPTION of appointment is sufficient and functions as ACTUAL appointment.


Without question, this interpretation changes our view of how a shaliach is appointed. We might have assumed that appointing a shaliach is similar to any other halakhic process that changes the status of a person or item. Accordingly, it would require full da'at (cognitive intent), since the appointment effectively changes the status of the agent from a common person into a halakhic shaliach. If this were true, "assumed da'at" would not be sufficient to create this appointment. Whenever a person's da'at fuels a halakhic change, it is required in "real time" and not just as an assumption. Presumably, then, if assumed da'at is sufficient to drive appointment of a shaliach, the process of appointment is dissimilar to typical status changes.


Perhaps minuy (appointment) does not actually ALTER the status of a shaliach; rather, it merely broadcasts GENERAL AGREEMENT or interest that another's actions should service the halakhic interests of the representee. This would invite novel applications of minuy. For example, can a shaliach be appointed to perform actions upon a davar shelo ba le-olam, an item that will materialize in the future but does not yet exist? Real halakhic processes cannot affect these items based on the principle of “ein adam makneh davar shelo ba le-olam.” If minuy were similar to classic halakhic "change mechanisms” (known as “chalos”), perhaps it could not work regarding items upon which classic chalos is non-operative. However, if minuy is not a chalos – as evidenced by the fact that assumed appointment can serve as actual appointment – perhaps minuy CAN be projected pertaining to items that have not yet materialized even though classic chalos (such as kinyan) would not obtain.


The Ketzot (siman 105) disagrees with the notion that assumed appointment suffices as halakhic minuy. Interestingly, his opposition was not based on a logical concern, but rather on a gemara in Bava Metzia (21b-22a). The gemara first considers sanctioning the use of a shaliach appointed by assumption to perform teruma designation. Yet the gemara rejects this option, preferring instead to interpret the situation as one of classic shelichut. The Ketzot assumes that this rejection resulted from the gemara's rejecting the VERY NOTION of assumed appointment, choosing the only other option – actual, classically-appointed shelichut. (In truth, there are numerous ways to interpret the gemara's rejection, many of which maintain the validity of appointment by assumption but reject it in the PARTICULAR CASE of designating teruma.)


Instead of viewing the category of zachin as assumed appointment of a shaliach,the Ketzot maintains that the halakhic system itself appoints individuals to act as agents on behalf of an unknowing recipient in situations that are overwhelmingly beneficial to them. Precedent for halakhically/objectively designated shelichut exists in the context of Kodshim. Many gemarot suggest (see Kiddushin 23b) that Kohanim perform certain services as a shaliach of the owner of the korban, yet classic appointment is not required. One explanation is that the Torah appoints the Kohanim as automatic agents in the performance of avodot ha-Mikdash.


The Ketzot suggests a nafka mina between his concept of institutional appointment and Tosafot's concept of assumed appointment. The gemara in Bava Metzia (10a) suggests that a situation of shelichut that benefits some but injures others would fail. Thus, an agent cannot seize funds on behalf of one creditor if others creditors would be impeded from collecting (“tofes ba'al chov be-makomo shechav le-achrini”). Rashi claims that a classic shaliach WOULD succeed in this case, but a zachin agent cannot benefit some while harming others. Evidently – at least according to Rashi – this scenario impairs zachin, but not shelichut. If zachin were simply shelichut by assumed appointment, this limitation would be questionable. Just because a person's benefit negatively affects others does not mean he doesn’t desire that benefit. If a person desires a benefit, we can assume he would have appointed a shaliach, and zachin – namely, shaliach by assumed appointment – should certainly operate!  However, if the appointment is institutional – that is, the halakhic SYSTEM automatically designates agents for beneficial tasks – the gemara’s limitation makes sense. From the Torah's perspective, benefit to one person that entails harm to another cannot be considered "BENEFICIAL" and cannot be institutionally designated to an agent. The unique zachin limitation in situations of benefit to one and harm to another is perfectly suited to the logic of the Ketzot.


It should be noted that the Ketzot asserted this logic within Rashi's position. Previously, Rashi was cited as having clearly articulated zachin as shelichut by assumed appointment. It is difficult to assume that he would agree with the Ketzot's version of institutional appointment. Rashi would presumably offer a different logic to explain the limitation of zachin in situations of benefit to some and harm to others.


Perhaps a different question about zachin can be studied in light of these two models of zachin as shelichut. Should a process be gauged as beneficial in subjective terms or objective terms? Presumably, if the appointment is assumed, we may assume interest as long as the process is PERSONALLY beneficial, regardless of common norms. However, if the Ketzot is correct and the halakhic system appoints a shaliach for beneficial activities, perhaps a more objective gauge should be employed.


An interesting comment is cited by the Ramban in Chullin (39b). Marriage is generally viewed as non-beneficial (chov), and therefore not subject to zachin representation. An un-appointed shaliach cannot execute marriage on a man's behalf since this would obligate him to halakhic marital payments. However, the Ramban quotes a minority opinion that if a husband, upon discovering a zachin employment, expresses interest in the marriage, it is retroactively proven that marriage FOR HIM was beneficial and the zachin is retroactively validated. This position allows personal preference in determining zachin-worthy activities. Even something that is typically considered a chov can be personally determined to be a zekhut and therefore subject to zachin. It is unlikely that the Ketzot would agree to this position; those who define zachin as appointment by assumption would have an easier time adopting this perspective.


A reverse case appears in a comment of the Rashba in Kiddushin (23b). Can a clear-cut benefit be rejected based on personal opposition? The gemara in Kiddushin allows zachin in liberating a slave. A non-appointed shaliach can unilaterally accept a bill of emancipation (shetar shichrur) from the owner of a slave because it is generally beneficial for slaves to be liberated. One would think that if the slave, upon discovering the zachin attempt, registers his opposition, the liberation is deemed non-beneficial and zachin fails. However, the Rashba claims that EVEN IF THE SLAVE OBJECTS, zachin operates. (The Rashba is forced to distinguish between this situation of “forced zachin” and the simple reading of Bava Batra 138a, which implies that zachin can NEVER be forced.)



The fact that the Rashba allows compulsory zachin in a situation GENERALLY deemed to be beneficial appears to reflect the logic of the Ketzot. Since zachin is halakhically appointed shelichut, it works in situations that are conventionally regarded as beneficial. Personal preference may not affect the institutionalized shelichut appointment. However, if zachin entails appointment by assumption, it is difficult to imagine that it could work in situations in which clear opposition is registered.