Kiddushin — Chapter 2 — 5783 — Lecture 20

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[Rabbi Michael Abraham] He says: where does this thing come from? Especially since there’s no verse for it. It’s a reasoning of the Talmudic text, if the later authorities are right; and if the later authorities aren’t right, then it’s from the later authorities. But he says: where did this come from? I think that there too, that’s what connects the evidentiary migo to the list of migos I mentioned here. Because apparently the evidentiary migo also works not only on that reasoning of proof—that if I wanted to lie, I could have lied better—but there’s some kind of halakhic conception that the Sages had: if you can do one thing in one way, that also gives you the power to do something else, or to do it in a different way. Okay? That’s the idea of migo. I think that’s what Atzmot Yosef means. Anyway, that’s just a comment on the previous class. What I want now is to go into two more exceptions, and those are a slave and a worker. With a slave and a worker, the Talmud says that they have some sort of advantage: they can serve as an agent more easily, or they can be a substitute for an agent—the same dilemma that we also have with a partner. And so I want to look at them a bit too. And there too, with a slave and a worker, you can ask: why do a slave and a worker have some sort of advantage in the laws of agency, just as I asked about a partner? You could ask the same question there too. You could say that the fact that he is a slave or a worker gives him power to act. You could say that it allows him to attribute the act to the sender. In the case of a slave, for example, it’s very plausible that the fact that he is a slave does not give him more power to act. On the contrary: a slave is exempt from commandments incumbent on a man, and is obligated in commandments like a woman; a slave is half gentile, half Jew—a kind of upgraded gentile or diminished Jew, right? We talked about Rabbi Akiva Eiger. So a slave is basically less than a Jew. When you ask yourself whether the slave is within the category—that is, whether the slave has the power to do the act—the fact that he is a slave is an inferiority, not an advantage over another Jew. He has less power to do the act. But clearly his bond to me is much stronger. Therefore, with a slave it’s pretty clear that the advantage of his being a slave is not in the ability to do the act, but in the bond of the act to me. More than that: I would ask—even with a slave, you can ask, fine, so you can attribute the act to me, but where does your power come from to do the act at all? With an ordinary agent or with a partner, I say he has the power to do the act, and the question is how to attribute it to me. But with a slave, specifically in terms of the ability to do the act, he is inferior to an ordinary person. He has an advantage regarding attributing the act to me, so the advantage is in attributing the act to me—that’s clear. But the question still arises: how do you solve the problem that he isn’t in the category, that he doesn’t have the power to act? So again, I already said that a slave who isn’t in the category really cannot act. A disqualification of “not in the category” does exist with a slave. But I’m not talking about the disqualification of “not in the category”; I’m talking about lack of ability to act as a parameter in agency. Okay? So that’s regarding a slave. As for a worker: a worker is usually an ordinary person, though it could also be a gentile worker, but generally a worker is an ordinary Jew, so ostensibly he does have the power to act. And there you can discuss: so basically, the fact that he is my worker creates a bond between us, and his being a worker gives him an advantage regarding attributing the act to me. Although if I send, say, a worker to deliver a bill of divorce to a woman, the fact that he’s Jewish doesn’t help, because he can’t divorce that woman, because she isn’t his wife. The fact that he’s Jewish doesn’t help. Okay? Therefore, even with a Jewish worker, you still have to discuss where he gets the power to act from, and not only what attributes his act to me. This is a Talmudic text in Bava Metzia. There’s one source here about a worker and one source about a slave. Yes, you see? Yes, this is a Talmudic text in Bava Metzia 10. Rav Nachman and Rav Chisda both said: one who lifts up a lost object for his fellow, his fellow has not acquired it. A bit like grabbing for a creditor. I see a lost object in the street. Now I want to lift it up for Yosef. Okay? So the Talmud says: one who lifts up a lost object for his fellow, his fellow has not acquired it. I can’t lift it up for Yosef. Why? What is the reason? It is like grabbing on behalf of a creditor in a case that harms others. After all, I have acquired it for Yosef, and in effect the two of you now can’t acquire it because it belongs to him. So I am harming others. And one who grabs on behalf of a creditor in a case that harms others has not acquired it. That itself is an innovation; it needs discussion, because I didn’t make you lose anything, I just didn’t let you gain. Does that too count as harming others? And here too there’s room to discuss whether he appointed him as an agent or whether it works under the law of benefiting someone. What? Don’t panic. Ah, he disappeared? Okay. He was frightened by the terrible innovations he’s hearing here. Rava challenged Rav Nachman: a worker’s find belongs to himself. When does this apply? When the employer said to him: weed with me today, hoe with me today. But if he said to him: do work for me today, then his find belongs to the employer. Yes—if I hired a worker to weed or to hoe, and while working he found a lost object, then the object is his, not mine. But if I said to him: do work for me today—that is, you are my day laborer today, whatever you do today is for me, whatever I tell you, you do, not one specific act—then if he finds a lost object, it’s mine, not his, because basically everything he does belongs to me. What? How does that fit with migo?

[Speaker B] No, we’ll see in a moment.

[Rabbi Michael Abraham] The Talmud asks how this fits with what we saw above, that one who lifts up a lost object for his fellow, his fellow has not acquired it. With a worker we see that I did acquire it, even though someone else could not acquire a lost object for me. The Talmud says: he said to him, a worker is different… I don’t know, it really needs checking, because I could have explained it, but in light of the reasoning I gave earlier, it seems more problematic. If I remove other people’s claims by saying that after all I could have acquired it for myself—that certainly exists here. Not to say that this doesn’t count as “I could have acquired it for myself” because the found object doesn’t really come to me; there’s only potential possibility, whereas the debt really comes to me, the debt belongs to me—it’s much easier to state the migo there. But according to the explanation I gave earlier, yes, that really is true. I don’t know, it needs checking there; the medieval authorities really… the medieval authorities ask this there. In any case, the Talmud says: a worker is different, because his hand is like the hand of the employer. Meaning, the worker’s hand is like the employer’s hand. It’s as if the employer himself found the lost object, and of course a person who finds a lost object can certainly acquire it. We don’t say: you can’t acquire a lost object for yourself because that harms others. A person who finds a lost object can acquire it. After despair of recovery, and so on. So he says: with a worker, his hand is like the hand of the employer. So what does that mean, really? That a worker has an advantage over another person. Another person can’t acquire for me, but a worker can. What is the worker’s advantage? So we see: a worker’s hand is like the hand of the employer. What does that mean? On the face of it, it seems that here the advantage is the bond between the worker and the employer. Meaning, the worker who acquired the lost object—it’s as though the employer himself did it, and the employer himself is certainly allowed to. An ordinary person who did it—it’s not considered that the employer did it, an ordinary person who does it for me. But a worker, yes. Why? Agency. Right. That means: the worker’s advantage is not in the ability to do the act. The ability to acquire a lost object exists for an ordinary person too, for a worker too; on the contrary, for a worker there isn’t even such ability, because whatever he acquires goes to his master. Okay? So from the standpoint of ability it’s even worse. Rather what? It’s simply that his master did the act. The act is attributed to his master, and if his master himself acquired the lost object, there’s no problem of harming others. Certainly a person can acquire a lost object for himself. Meaning, notice that what we have here is really a combination of the two possibilities I mentioned. Because in the end the worker does succeed in doing the act for me. Okay? It’s as if… let’s phrase it differently. It’s as if the employer did the act, and therefore what? Therefore there’s no need to attribute the worker’s act to me. I did the act. If this had been the worker’s act, there would be room to discuss how to attribute it to me. But if it counts as though I myself did the act, then the question of attributing it to me never arises. So the concept of a worker, if you read the language of the Talmud straightforwardly—when you speak about a worker’s act, it really makes the whole discussion unnecessary. That is, there is no question how he can do the act, because he didn’t do it. And there is no question how to attribute the act to me, again because he didn’t do the act—I did the act. So really, a worker solves both problems, but not because it gives him an advantage in doing the act or in attributing the act to me, but because the advantage isn’t needed. I myself did it; he is my extended hand. Say, I could also have said that family is something that… yes… if you hand it over to his young son or daughter, when you return stolen property or when you return a lost object or a deposit, then the Talmud discusses what happens when you hand it over to members of the household. And there, on the face of it, it’s not because of the advantage of household members. What? Agents? No, that’s the question. The question is whether they function as agents, or whether it’s enough that it is in line with their understanding—that I also agree—but they don’t actually have to be my formal agents, because there is no law that I specifically have to receive it. It’s only to exempt you from responsibility, because you returned it; I’m already exempt from responsibility because I placed it with you. Okay? There’s no requirement here that you receive it in a way that really needs the concepts of agency. In any case, for our purposes, in the Talmud’s simple conception, apparently a worker—and I said the same about a slave—operates more on the plane of attributing the matter to me than on the plane of the ability to carry out the act. But in the formulation of the Talmud here, at least if you read it straightforwardly, it comes out that this makes the whole discussion unnecessary. Because when a worker does something in my name, that counts as if I myself did it. So neither question arises: not the question of how he has the power to do it, and not the question of how his act is attributed to me, because he didn’t do it—I did. In a moment we’ll see the implications of this. Only according to Rashi, you don’t need to get to

[Speaker B] the point that the worker is my extended hand.

[Rabbi Michael Abraham] All the Talmud meant here was to say that the worker is the employer’s agent, a particular kind of agent. Just a particular kind of agent in every respect. I saw Rashi: an agent solves the

[Speaker B] problem of grabbing on behalf of a creditor in a case that harms others…

[Rabbi Michael Abraham] Obviously, but the question is why view the worker as an agent?

[Speaker B] Because that’s the meaning of a contract between a worker and an employer: you will do things for me.

[Rabbi Michael Abraham] The Talmud says: his hand is like the hand of the employer. I’m saying that the simple reading of the Talmud is just: we are one. The fact that what you do helps me—that’s true. But the question is whether that thing—this is what I want—the question is whether that is what happened, whether what happened here is an appointment as agent, not just that it helps me. It will help me if it gets carried out, but the question is whether it can be carried out.

[Speaker B] That’s an interpretation of the contract a person

[Rabbi Michael Abraham] makes with his worker.

[Speaker B] Fine, I hear that, that’s one possibility. Okay.

[Rabbi Michael Abraham] No, the fact that he wants it is fine. Again, it doesn’t help that he wants it. The question is whether he did it. That’s the worker. The fact that he wants it—it doesn’t… I also want it. Also under the law of benefiting someone, I want him to do it, to acquire it for me. I want it. But as long as I haven’t appointed him as my agent, he isn’t my agent. Now the question is whether signing a contract with a worker also counts as appointing him as an agent, and not just expressing a wish. That’s not a simple question. Fine, that’s one possibility. Okay. In Bava Metzia 96, there it’s about a slave. Before, we spoke about a worker. Rav Ili said to Rava: one who says to his slave, “Go and borrow together with my cow,” what is the law? The law of borrowing with the owner: if I lend my cow, and I myself am borrowed along with it, then there is an exemption of “its owner is with it.” If some mishap happens to the cow, then he doesn’t have to pay, even though a borrower is liable for accidents, but if its owner is with it then he is exempt. Okay? So what happens if I lent you the cow, and together with it, it wasn’t I who was borrowed, but my slave who was borrowed? Is that considered “its owner is with it” or not? Meaning, is the borrower liable for accidents or not? It can be asked according to the one who says that a person’s agent is like himself, and it can be asked according to the one who says that a person’s agent is not like himself. “It can be asked”—this itself is an interesting question: where do we find an opinion that holds that a person’s agent is not like himself? I talked about this perhaps last semester, I think I did. It’s obvious that a person’s agent is not like himself. Meaning, he can’t sit in the sukkah on my behalf; he can’t put on tefillin on my behalf. A person’s agent is like himself only for certain matters, to effect legal changes here and there. It’s an innovation of the Torah that a person’s agent is like himself, but the agent is not literally like himself. Now here, this dispute is not a dispute over whether a person’s agent is like himself in the laws of agency, but whether a person’s agent is really like himself. The fact that he can be his agent and that his acts are attributed to me—that is agreed upon, that’s clear, that’s the Torah’s innovation in the laws of agency. But the question is whether “a person’s agent is like himself” means literally—whether it is him.

[Speaker B] Yes, obviously it’s not literally him; the question is to what extent.

[Rabbi Michael Abraham] So the dispute is over whether a person’s agent really is like him. What does “like him” mean? That not only, in bringing about various legal effects, do his acts help me, but that it is actually as though I myself did it. Now, we discussed this regarding commandments. Apparently even Rav Ili would not imagine that someone can put on tefillin or sit in a sukkah on my behalf. It doesn’t go all the way; it’s not absolute identity. But it does go beyond the simple legal layer; there is also a dimension of identity here. And therefore the concept “a person’s agent is like himself” that appears here is not the same concept of “a person’s agent is like himself” that appears throughout the Torah, where it simply means the ordinary laws of agency. Here “a person’s agent is like himself” means whether there is identity between the agent and the person.

[Speaker B] The formulation “according to the one who says” shows there is such an opinion, and it’s not just a plausible side of the doubt.

[Rabbi Michael Abraham] Where is that opinion?

[Speaker B] I don’t know. Like, if you say “if you should say that a person’s agent is like himself.”

[Rabbi Michael Abraham] That’s how we find it when the Talmud raises doubts. We find it in several places in the Talmud, for example—

[Speaker B] “It can be asked according to the one who says,” and there is no such opinion.

[Rabbi Michael Abraham] Yes, or at least we don’t find it. Maybe there was such an opinion there and it wasn’t written down. Because on page 42 in Bava Metzia, there concerning a case that began in negligence and ended in an accident, “it can be asked according to the one who says that if it began in negligence and ended in an accident he is liable; it can be asked according to the one who says that if it began in negligence and ended in an accident he is exempt”—and there is no such opinion. Whenever they bring the dispute whether a case that began in negligence and ended in an accident is liable or exempt, they bring that Talmudic passage, page 42. But there they only mention two opinions that somehow are supposed to exist somewhere, but they don’t—or at least it doesn’t seem there are such opinions. Fine. So it could be there were such opinions and they just weren’t written down, I don’t know. It was known in the study halls that there was a dispute on this issue, and it wasn’t brought anywhere. How the Talmud was edited, I don’t know, but that wasn’t brought. And they did bring a passage that refers to those two opinions. It could be those really were two opinions, and it could be it’s just a standard turn of phrase, of course. The intention is not really that there is such an opinion, but: it can be asked on this side and on that side; whether you say this or that. In any case, the Talmud says: it can be asked according to the one who says that a person’s agent is like himself—those words apply only to an agent who is subject to commandment, but a slave, who is not subject to commandment, no. Or perhaps even according to the one who says that a person’s agent is not like himself—those words apply only to an agent, but a slave’s hand is like his master’s hand. Just as we saw with a worker: the worker’s hand is like his master’s hand. What are these two sides? These are exactly the two sides. Exactly the two sides we are talking about here, right? Meaning, if you speak from the standpoint of the slave’s ability to do the act, then the slave is worse than a stranger—he is half Jew, half gentile. He is not fully subject to commandment; he’s not entirely in the category of the matter—meaning, in our category, not in the category of that commandment there, but rather he is not fully obligated in commandments, so he has less capacity to perform. Okay? But in terms of his bond to the sender, he is my slave, he really is my extended hand. So he certainly has more bond to me than an ordinary person who comes through the law of agency. And that is the Talmud’s dilemma. And then the Talmud concludes: it stands to reason that a slave’s hand is like his master’s hand. Meaning, there is an advantage here: the slave’s bond to me compensates for his lack of ability to act. Now once again the same question arises. True, a slave’s hand is like his master’s hand, and therefore there’s no problem of attributing the act to me, because his bond to me is absolute. It’s not like an ordinary person where you attribute the act to me through the laws of agency. Here his bond to me is completely clear. But still, you’re telling me that he is not fully subject to commandment, so how does he have the power to do it? After he does it, it will be attributed to me—but the question is how he succeeds in doing it in the first place. What do you mean? Like the example

[Speaker B] of a tractor in the case of borrowing with the owner.

[Rabbi Michael Abraham] How does he create the status of borrowing with the owner?

[Speaker B] Borrowing with the owner is a factual matter.

[Rabbi Michael Abraham] What factual matter? But the contract changes if this is borrowing with the owner, so it does create some legal effect—the contract now contains different obligations. That factual dimension creates a result.

[Speaker B] If the tractor is with him, then he is exempt from theft?

[Rabbi Michael Abraham] If the tractor is with him—but you didn’t sum up that this is a halakhic rule; it doesn’t emerge from our summaries. “Its owner is with it.” “Its owner is with it” is a halakhic rule.

[Speaker B] Right, but it is based on real-world facts. Obviously. So if the slave was there, then that is “its owner is with it”; that’s a fact. If you count the slave as the owner, he doesn’t need to create anything.

[Rabbi Michael Abraham] No—if you count… that’s exactly the point. If you count the slave as the owner, you’re right. But if you say that his acts are attributed to the owner, okay, then—

[Speaker B] that’s enough, you don’t need any act.

[Rabbi Michael Abraham] That’s exactly where I’m heading. So the claim remains: if I say that this is only the dimension of attributing it to the owner, in agency—then a slave is better, because the slave has more bond to the owner—but the question still remains: how was the thing itself carried out? But here I’ll say what I said about the Talmud above regarding a worker. The Talmud here says that with a slave, the whole discussion becomes unnecessary, because it’s not the slave at all; the master was borrowed together with the animal. The slave is his extended hand; when the slave is there, it counts as though the master himself is there. So neither of the two questions exists. Not how he does the act, because he doesn’t—I do, to the extent there is an act here. And how is it attributed to me? Again, no question. If it’s something someone else does, then there’s a question how it’s attributed to me. But if I myself do it, what question is there about how it’s attributed to me? So I think the simple conception, both with a slave and with a worker, is that their advantages basically make the whole discussion unnecessary. There’s no point asking whether it’s an advantage on the side of attributing the act to me, or an advantage on the side of ability to carry out the act. No. Both a slave and a worker make the whole discussion unnecessary, because what they are really saying is that the one who did the act is the owner. And then, in fact, maybe—as we also said about a partner—I don’t need to get to the law of agency at all. This isn’t a question of agency, but of “a person’s agent is like himself” in the sense of identification, not in the sense that there are laws of agency here. “A person’s agent is like himself” means that when the agent is there, I am there, because a person’s agent is like himself. Now if I am there, then I am there; no need for the laws of agency, no need for anything. The mere fact that you are a worker or a slave basically means identity with me. You are my extended hand. Once you are my extended hand, then I did the act. And once I did the act, there is no need for agents. Here, if I were to ask whether we are talking about a slave or a worker where there was also an appointment—the question of Pnei Yehoshua and Atzmot Yosef. Are we talking about a slave or worker who was also appointed as an agent? Is that what the Talmud is discussing? Or a slave and a worker without their having been appointed as agents? The simple conception is: without appointment as agent, right? The very fact that you are a slave or a worker—that’s what is under discussion here. Is that an adequate substitute for appointing an agent? It’s not a matter of my having appointed him as an agent and asking whether a slave or worker can be appointed as an agent. Rather, the mere fact that you are a slave or a worker is a substitute for the need to appoint an agent. Okay? Why? Because I did the act, so there’s no need for you to be my agent; you are my extended hand. I did it—my extended hand literally, not just “extended hand” as a legal conception of agency. “Extended hand” in the legal conception of agency means that I say the legal definition of an agent is that he is the sender’s extended hand. Fine, according to the Tur. The Tur and Maimonides, where it is implied—the sender. I am talking about “extended hand” in the sense of “a person’s agent is like himself,” identity. That is, he really is my extended hand; this is not just the definition. It is, but it isn’t. Because we are not talking… no, you yourself said no, and rightly, because there is no act here that I am actually effecting; you just need my presence. The presence of the worker is like my presence. In principle, the worker could also put on tefillin for me, theoretically, right? Or sit in the sukkah for me. Since the worker does not function by virtue of agency. It’s not that he is a better agent than a stranger. He is a substitute for the concept of agency. It is I myself who am doing it. So there is no need to resort to the issue of agency.

[Speaker B] You can’t learn two different things. Fine. You can’t infer from this Talmudic passage that he can also do actions on his behalf. Here you only see that his presence is my presence.

[Rabbi Michael Abraham] Why? Because there is some kind of identity between these two persons, so he can also do the actions.

[Speaker B] It doesn’t need identity. It’s just that the category of what it means to be with the cow includes, according to the Talmud here, that my slave is there.

[Rabbi Michael Abraham] No, the Talmud says: a slave’s hand is like his master’s hand. There’s some broader principle here. It’s not just a law in the laws of a loan contract, a law in the laws of a borrower, that the borrowing contract refers not only to the owner’s presence but also to the presence of the slave.

[Speaker B] It’s the reason why this counts as the owner being with him.

[Rabbi Michael Abraham] No, but it’s enough—but that’s not a claim about the contract; it’s a claim about the relationship between the slave and the master. And therefore, if I really identify the slave and the master, that has a practical implication for the borrowing contract, namely that this counts as “its owner is with it,” but it could also have further practical implications. Otherwise, the Talmud should have said: since in borrowing with the owner, a slave also suffices, the presence of a slave also works. That would be an innovation in the laws of borrowing with the owner.

[Speaker B] And the question is why that is so.

[Rabbi Michael Abraham] No, that’s fine—then say why, explain

[Speaker B] why: because that helps here for the borrowing issue.

[Rabbi Michael Abraham] I said, there’s no need.

[Speaker B] But that’s the reason why I count the slave as the owner?

[Rabbi Michael Abraham] Obviously, obviously. And the Talmud does state that reason. That reason says that from the standpoint of Jewish law, we see an identity between the slave and his master. As a fact, the presence of the slave counts as the presence of the master. So if that’s the case, then certainly regarding actions too there is room to say that the action performed by the slave is as though it were the master’s action, because there is identity between them, even though here we’re not talking about performing an act.

[Speaker B] Right, but presence of that sort is not capable of performing actions. Look, in a certain sense, my hand, right—it is enough to exempt in a case of “its owner is with it,” but that doesn’t mean my hand can independently do all sorts of things. Why not?

[Rabbi Michael Abraham] What she says—putting on the head-tefillin… no, exactly. I said no. That’s exactly the point. I don’t think a slave can put on tefillin for me or sit in the sukkah for me, obviously not. That’s why I’m saying: but in principle there would have been room to say, in order to sharpen what was said about a slave, that since we’re dealing here with identity, then that identity—which is not absolute, as I’ve now said—there would have been room even to say that he could put on tefillin for me or sit in the sukkah for me, because this works on the track of identity, not on the track of attributing his actions to me. You attribute his actions to me. With bodily acts there’s nothing to attribute to me. You can attribute results to me, not bodily acts. Do you say there is identity here—when the slave acted, that is the state of affairs that I acted? Fine, that could also be said regarding putting on tefillin or sitting in the sukkah. We don’t say that as practical Jewish law. But I’m saying: one could have said it. And I say this to sharpen what I said about the bond between a slave and his master. Regarding a gentile worker?

[Speaker B] Yes. So there, as all this thing you said applies—that he himself…

[Rabbi Michael Abraham] Right, exactly. Right. In principle, what I’m saying can also be said about a gentile worker. We’ll see that in a moment. So you see that the discussion of Pnei Yehoshua and Atzmot Yosef regarding a partner becomes a bit unnecessary regarding a slave and a worker. One could say that regarding a slave and a worker, everyone agrees that Atzmot Yosef is right. Again, that doesn’t decide the issue there, because regarding a partner, Pnei Yehoshua could say that a partner is different. But the mechanism is the mechanism of Atzmot Yosef. What did Atzmot Yosef say? That when I do the act, they are really there with me; they too are doing the act. That’s really what we see with a slave and with a worker. It could be that here even Pnei Yehoshua would agree that this is how it works. It’s not a proof. I’m only bringing this here… And if that’s so, it solves both questions. It solves both the question of how you can do the act and the question of attributing the act to me. Because simply, you didn’t do the act, so it doesn’t need to be attributed to me—I did the act. Okay. Now let’s see how far this goes. For example, in this context, it could be that they wouldn’t even need to be in the category of the matter. Because an agent needs to be in the category of the matter so that he can carry out the act and then we’ll attribute the result to me. But if with a slave or a worker I see—and maybe also with a partner, if we accept Atzmot Yosef, though with a partner, if he’s a partner then by definition he is in the category of the matter—but theoretically it could be that he didn’t need to be in the category of the matter at all. Because I am doing the act. Why should I care? He could be a lump hand, lifeless, just a piece of iron. If I do the act through him, then also… Of course, one can always say that if he is not in the category of the matter, he cannot count as my hand for this purpose. Just as we say in agency. Even in agency conceived as extended hand, there is the disqualification of not being in the category. If you are not in the category of the matter, you will not be considered the sender’s extended hand. You don’t begin as his extended hand and then ask whether you are in the category. If you are not in the category, you won’t be his extended hand; you won’t count as an agent, and therefore not as his extended hand. So here too, in principle, one could say that. But in principle one could also say not so. Because here, if I really am acting—and it’s not just that the Torah views this act as if it were my act—then I really acted, so why should I care whether he is in the category? I am in the category. It’s a bit similar to the difference between the Tur and Maimonides about extended hand and power of attorney. If the sender really does the act, then if the sender became insane, it doesn’t help that the agent can now do the act—because I am the one doing the act, not him. Okay. Fine. Now let’s look at the Machaneh Ephraim. The Machaneh Ephraim takes things all the way, and in doing so sharpens what I’ve been trying to say here. The question: one who wants to repair the parapet through a gentile craftsman—should he recite a blessing over it? Notice, already here we’re talking about a gentile worker, not a Jew. And that is the worst case of all, worse than a slave. He is a gentile, which is even worse than a slave, and he is a worker and not a slave. Also in terms of his ability to carry out the act, he is worse, because he is a gentile and not even obligated in commandments like a woman; and also in his bond to me he is worse because he is a worker and not a slave. Okay? A slave really has an intimate bond to me. A worker has some legal bond. But then he says: Answer. Yes, I am basically building a parapet—or my worker is building a parapet, a gentile worker. Can I recite a blessing over it? Building a parapet—the commandment of making a parapet for one’s roof, yes. Answer: at the beginning of the first chapter of Bava Metzia, Rav Nachman holds that one who lifts up a lost object for his fellow, his fellow has not acquired it. And they challenged him from the Mishnah about one who hires a worker to do work with him today, where the find belongs to the employer. So evidently one who lifts up a lost object for his fellow does cause his fellow to acquire it. And it answers: a worker is different, because his hand is like the hand of the employer. Yes, this is the Talmud we saw. And one may ask about this: in what way is a worker different from an ordinary agent? Why is a worker better than an ordinary agent, such that an agent cannot lift up a lost object for his fellow but a worker can? If because the worker’s hand is like the employer’s hand, then regarding an agent too we hold that a person’s agent is like himself, and he too is like the employer. And nonetheless he holds that his fellow has not acquired it. For now, he identifies “a person’s agent is like himself” in the legal sense, and “a person’s agent is like himself” as said regarding a worker. Right? That very much sharpens the move we made earlier. He says: but the explanation of the matter is this—an agent is different because a person cannot appoint an agent to acquire for him in a situation that harms others. He is of course assuming Tosafot, not Rashi—that you also can’t appoint an agent, not only that it doesn’t work through benefiting someone, because that is the view of most of the medieval authorities. Not so with a worker, because since the worker’s body is entirely acquired by the employer, his hand is considered literally like the employer’s hand. And it turns out that the law of a worker and of an agent are not the same. For an agent who wants to acquire for his fellow—that is only when he intends to acquire for his fellow. But if he did not intend to acquire for his fellow, then his fellow does not acquire it. Even according to the one who says that one who lifts up a lost object for his fellow causes his fellow to acquire it, that is only if I intended to acquire it for you. If I did not intend to acquire it for you, then of course you did not acquire it. But a worker who was hired for all the employer’s labor, and even for a found object—if at the time he lifted the found object he did not intend to lift it except for himself, not for the employer, it still belongs to the employer, so long as he has not retracted. A worker can retract in the middle of the day, so if the worker retracts he stops being a worker. But as long as he has not retracted, as long as he is my worker, even if he did not intend to acquire it for the employer, he acquired it for the employer. What is that? Why does he bring this? It’s an indication that the one who really does the act is the employer, not the worker. As long as he is my worker, when he acquired the lost object, the one who acquired it was me. And I also saw some days ago in newly found responsa of the Rashba, of blessed memory, and the reason is that his hand is like the hand of the employer, because daily hire is like a sale. Yes, he is really like the employer; he is his property. “Daily hire is like a sale”—the Talmud says in the chapter HaZahav that daily hire is like a sale. And there is a major dispute among the medieval authorities over what that means: whether the renter really acquires a property right in the rented item, or whether it is only a right of use. Tosafot says it is only a right of use; other medieval authorities say it is a bit more than that.

[Speaker B] Because all the Machaneh Ephraim is saying is that the agreement between me and the craftsman is an agreement of a worker. And usually, with a worker, the agreements are contracting arrangements. Right? The one who actually makes the parapet is a worker, but he’s a worker of some contractor.

[Rabbi Michael Abraham] No, then of course it won’t be the same. A contractor is obviously not like a worker. When we speak about a worker, it always means an employee—whether a day laborer or someone hired for a specific act. No, but this is agency because you are a worker. First of all, you have to discuss whether you are a worker.

[Speaker B] And if because this is agency, then contracting should also be agency.

[Rabbi Michael Abraham] No, but not agency to find lost objects for me. And not agency to find lost objects for me.

[Speaker B] He asks about the parapet. I could have understood that also an agent—that also a worker, and also someone who doesn’t function under the law of a worker but as a contractor—he too could validate the parapet with a blessing, because he is my agent to make the parapet.

[Rabbi Michael Abraham] No, you’re talking in terms of the laws of agency, but there is no agency with a gentile.

[Speaker B] No, so that’s what I’m saying.

[Rabbi Michael Abraham] He is trying to show here that this does not work through the laws of agency,

[Speaker B] and that it works specifically with a worker and not with a contractor.

[Rabbi Michael Abraham] And I’m saying: he is coming to say that this is not through the laws of agency. No—therefore with a contractor it won’t work.

[Speaker B] Unless the worker that comes out for us from the deed—yes. The whole leniency the Machaneh Ephraim made was through…

[Rabbi Michael Abraham] You’re saying that if it were a Jewish contractor, maybe it would work through the laws of agency, not through the law of a worker. Fine, maybe. Because contracting is perhaps like appointing an agent in general. In any case, the Machaneh Ephraim here basically sharpens this point that a worker and an agent are not the same thing. An agent is someone I appointed for a specific act, and he has to intend to do it for me, and then it’s fine—where it is fine. But there, lifting a lost object will not work, because it harms others, so the law of agency does not apply there. But the law of a worker does apply there. Why? Because the worker does not function as an agent. The worker is me. It is as though I myself acquired the lost object, and I myself can certainly acquire the lost object for myself. And then he says: and it is comparable to a Canaanite slave, about whom we say in the chapter HaSho’el: if one says to his fellow regarding his slave, “Go and borrow together with my cow,” what is the law? It can be asked according to the one who says that a person’s agent is like himself—that applies only to an agent, but a slave’s hand is like his master’s hand. And the Talmud concludes: it stands to reason that a slave’s hand is like his master’s hand. The second Talmudic passage we brought regarding a slave is like the one regarding a worker, and he too understands that in both places it means that the sender did the act. It has nothing to do with the laws of agency, like Atzmot Yosef, not like Pnei Yehoshua. Meaning: the slave and the worker are not agents who also happen to be a slave and a worker; rather, being a slave or worker is a substitute for agency. Okay? A substitute that is even better. And parenthetically, it is also comfortable for him to say that if one says to his hired worker, “Go and borrow together with my cow,” this is considered borrowing with the owner, because the worker’s hand is like the hand of the employer. He sees the worker and the slave in exactly the same way. Here the Talmud speaks of saying to one’s slave, “Go and borrow together with my cow.” He says that with one’s hired worker it is the same thing; he equates these Talmudic passages completely. And similarly, Rabbi Marshakh wrote that if an administrator of orphans seized something on behalf of the orphans, then they have acquired it. Say he lifted a lost object for the orphans. An agent for the orphans would not help, but an administrator does help. Because an administrator is like their slave, like their worker. The religious court appointed him to be their worker, and therefore what he does is as though they themselves did it. And because his hand is like their hand, as the rabbi wrote, the same is true regarding borrowing with the owner, that he is exempt for this reason. And in the first chapter of the laws of terumot, the rabbi in Kesef Mishneh brought in the name of Orchot Chaim, who wrote in the name of the Raavad, that if one bought stalks from a gentile for the sake of a commandment, and a gentile smoothed them for the sake of a Jew, they are obligated in terumah, because a person’s agent is like himself. Even though smoothing by a gentile exempts from terumah—if a gentile did the smoothing, smoothing by a gentile is exempt from terumah—but here the gentile who does the smoothing does it for a Jew, so it is obligated in terumah. And the rabbi of blessed memory wondered about this, because we hold that there is no agency for a gentile. After all, the gentile cannot count here as my agent. So how does the fact that the gentile’s smoothing is done on my behalf make me obligated in terumah? It’s just the smoothing of a gentile. So he says: apparently it would seem that the Raavad is speaking about gentile laborers who smoothed them. For although a gentile cannot become an agent for a Jew, a worker is different, because his hand is like the hand of the employer. It doesn’t say that there explicitly. But the Machaneh Ephraim claims that the Raavad is probably speaking about a gentile who was my worker, not just any gentile. And then, even though there is no agency for a gentile here, it still helps. Why does it help? Because I did it. Again, exactly the conclusion we reached above: when he is my worker, then I did it. To such an extent that even a gentile can do it. He isn’t in the category, he isn’t in agency, he is nothing—it doesn’t matter. If he is my worker, he can do it. Here is a practical implication for us: my worker, in principle—a gentile worker-agent—could betroth a woman for me. Theoretically. Not sure he himself takes it that far, but theoretically yes. If he is a worker, it is as though I myself betrothed her. Okay? And that also seems to emerge from the Jerusalem Talmud, tractate Peah, “if gentiles harvested it,” etc. And according to this one can say—I’m skipping here—according to this one can say that if he hired a worker to repair the parapet, he recites a blessing over it, because it is considered as though he himself made it. Yes, that is basically the conclusion. So here is the example—you asked earlier whether this could also work with a gentile. The answer is yes, it can also work with a gentile. Once this worker is a gentile worker, then the claim is not that he can now count as my agent even though I didn’t appoint him. If that were the point, then with a gentile it couldn’t work, because a gentile has no place in agency. Rather, the point is that this is a substitute for the mechanism of agency. If he is my worker, then it is as though I myself did it, so there is no need for the mechanisms of agency. And therefore it can also work with a gentile. Now he says: and another reason would seem possible to say that he can recite a blessing over it, even though the gentile made it and there is no agency for a gentile. Even so he can recite a blessing over it. Why? A different line, not the previous one. That is specifically in matters that require agency, such as terumah and the like. Regarding terumah we discussed whether agency is needed or not. But in matters that do not require agency, where in any case another person could do it and what he did is valid—such as our case, where if someone else repaired the parapet without my knowledge, that is perfectly fine—then if a gentile did it too, it is considered as though a Jew did it. A gentile came and built a parapet on my house. Am I obligated to tear down the parapet and build a new one? No. There is a parapet on my house, finished. So I have not put blood in my house, right? I have a parapet. “You shall make a parapet for your roof”—you need to ensure that there is a parapet. But there is a parapet. So in such a case, he says, this is a situation that does not require agency. If someone comes and makes a parapet for my house, he exempted me, even if he is not my agent. He says: for such a thing, a gentile can also do it; it’s like the act of a monkey. You don’t need agency here. Therefore, he says, there is no need to reach the point that a worker… so the previous approach is no longer necessary. Not because a worker is as though I myself did it. Rather, even without my doing it, it doesn’t need to be me who does it; it is enough that it be done—what is done is done. And therefore one who makes a parapet through a gentile may recite a blessing over it, whether the worker is an agent or not an agent, and even if he cannot be something beyond an agent.

[Speaker B] But if in the end the parapet is already there because a gentile did it without my knowledge, can he also recite a blessing?

[Rabbi Michael Abraham] That’s what he argues; we’ll see in a moment. In a moment, in a moment, in a moment. To me too this is strange, and to him too it’s strange. And similarly, Rashba of blessed memory wrote that with immersion of vessels, since if a Jew immersed them without the owner’s knowledge, what he did is effective, then immersion by a gentile also works. Even though the gentile cannot be my agent, he didn’t immerse it in my name. Fine—but if someone immerses on my behalf without my knowledge and that works, that means agency isn’t needed. And if agency isn’t needed, then a gentile can do it too. By the way, there one could have said maybe it works under the rule of “benefiting a person in his absence,” and then a gentile could not do it, because that is a kind of agency. Okay? Rashba apparently understands no—it does not work under that rule; rather, my own act simply isn’t required. It just has to be immersed. That’s all. It doesn’t need to be my act at all.

One could say this is also the reasoning of Raavad in writing that a person’s agent is like himself. But in truth, that reason alone is not enough. That reason by itself is not sufficient. Rather, you can only say that immersion of vessels by a gentile is effective because we do not require agency, as Rashba wrote. But for what the gentile did to be considered as though he himself did it, such that he could recite a blessing over it—that, no. Because even if his fellow did it, it is not considered as though he himself did it, such that he would be obligated to recite the blessing over it. As the Rabbi wrote in Knesset HaGedolah in the name of his teachers of blessed memory, that making a parapet and similar things, where we do not require agency, the homeowner does not recite the blessing over it; rather, the craftsman who fixes it recites the blessing. Since agency is not required in such a case, the one regarded as performing the commandment is only the one who fixes it. See there, in the laws of the shofar. And not like Pri Chadash, who wrote that if one immersed by means of a gentile, he should recite the blessing over it.

So Machaneh Ephraim argues what you were arguing, and it’s a simple logical point: the fact that the house has a parapet and therefore exempts me—that’s perfectly fine—but it’s not considered that I did it. Rather, the house has a parapet, so automatically I don’t need to do it. I’m exempted. But it’s not that I did it, and therefore I can’t recite a blessing over it. By the way, I’ll say more than that. I’m making a more far-reaching claim than Machaneh Ephraim. I claim that even the one who does it cannot recite the blessing. Because it’s not—

[Speaker B] his house.

[Rabbi Michael Abraham] Of course, because what he’s doing is not the performance of a commandment at all. It’s not just that I didn’t do the commandment; no commandment was performed here at all. There is simply a house here that doesn’t need a parapet. The commandment to erect a parapet applies only to a house that needs one. Here the house doesn’t need it, because it has a parapet. So when you made the parapet, you did not fulfill the commandment of parapet—it’s not just that you fulfilled it and not me, so I can’t recite the blessing. No, the commandment of parapet was not fulfilled here at all. I was simply exempted from the law of parapet because the house has a parapet. I am exempt from the commandment, not that I fulfilled it. Okay? That’s not the same thing. And therefore I claim that even the one who fixes the parapet himself is not doing a commandment—unless he erects the parapet as my agent or under the rule of “benefiting a person in his absence,” it doesn’t matter. But a gentile, no. “You shall make a parapet for your roof”—no, he is not doing it.

[Speaker B] No, you—

[Rabbi Michael Abraham] You are not obligated to make a parapet on a house that isn’t yours. The commandment of parapet applies to your house. No, no, no, you are not obligated—it’s not that you can’t. It may be imposed on—

[Speaker B] every person, an obligation to do it. What do you mean, you can’t? But maybe every person has an obligation to remove danger?

[Rabbi Michael Abraham] In the public domain I certainly can. Is there an obligation on me by the commandment of parapet to erect a parapet in the public domain? In the public domain I certainly can. Obviously, in a dangerous place—on the contrary—they should even have to pay me as someone who went down to another person’s field without permission. The public would even have to pay me for doing what it was supposed to do. Why should he recite a blessing? No, there’s no—I’m not—I’d have to check, but it’s clear to me that not. There is no such commandment. The commandment applies to your house. “Do not place blood in your house, and you shall make a parapet for your roof.” The house and roof are yours. No, no, no, the obligation falls on the one to whom the property belongs, but this needs to be checked. In any case, therefore I’m saying, what he says… no, no, Machaneh Ephraim is not saying what you’re saying. Machaneh Ephraim isn’t—he says he recites a blessing because he thinks he fulfilled a commandment. He is not obligated to fulfill the commandment. The commandment of “you shall make a parapet for your roof”—he is not obligated. Yes, he fulfilled it, as it were, on my behalf, but he fulfilled it.

[Speaker B] That’s even more complicated. You’re basically saying that with the commandment of parapet there are two commandments.

[Rabbi Michael Abraham] There is a positive commandment… no, no, no, I’m not claiming that. I’m claiming: there is a commandment on me to put up a parapet. Now someone can come and say: I’m erecting the parapet for you. The commandment is yours. So who performed the commandment? The one who performed the commandment is me, so I recite the blessing. But it is your commandment that I carried out. And we’re still talking about a commandment of mine. Machaneh Ephraim is not saying what you’re saying—that anyone who sees a hazard has to put a parapet there.

[Speaker B] No, so how did he rule that he recites the blessing? What’s the problem?

[Rabbi Michael Abraham] You—it’s like circumcision. Okay? With circumcision and redemption of the firstborn it’s different. There both recite blessings.

[Speaker B] No, again.

[Rabbi Michael Abraham] In circumcision, according to the—

[Speaker B] Because there really the commandment applies to everyone. No, the commandment does not apply to everyone.

[Rabbi Michael Abraham] The commandment is imposed on the father. And if the father doesn’t do it, then the religious court does it.

[Speaker B] And only because of that the mohel can recite the blessing. No, no, not because of that.

[Rabbi Michael Abraham] I don’t think so. In circumcision, according to most medieval authorities (Rishonim), the mohel has to be my agent. Okay? But there are medieval authorities (Rishonim) who say no. Or Zarua, Tosafot Rid, say that the mohel does not have to be my agent. So what does “the father’s commandment regarding the son” mean? What does it mean that the father must circumcise his son? It means that he has to make sure that the son is circumcised. Now when the mohel circumcises the son, why does the mohel recite the blessing? The mohel certainly has no commandment. The father has the commandment.

[Speaker B] No, the agency here—

[Rabbi Michael Abraham] But here, the one who does the commandment does it for the father, not for himself. That’s not the same thing. He performs the commandment for the father, because the father exists here and the commandment is on him. He does the commandment for the father, but since he is the one who carries out the act, he recites the blessing.

[Speaker B] You can’t say the commandment is on him. The commandment is really on everyone. The father is just first in line.

[Rabbi Michael Abraham] No. Or Zarua and Tosafot Rid don’t say that. The commandment is on the father; it’s just that the father’s commandment is not to circumcise, but to ensure that the son is circumcised. But the one on whom the commandment rests is the father. They do not make it depend on the whole public being obligated. It’s something else… when there is no father, the commandment is transferred to the religious court.

[Speaker B] That’s your wording… no, no, no.

[Rabbi Michael Abraham] That’s your wording. But they don’t say that. They say no. The father’s commandment is to ensure that the son is circumcised, but it is a commandment on the father. And therefore, when I made sure the son was circumcised, I brought a mohel, I took care of it, then I fulfilled my commandment—but the actual circumcision, that was done by the mohel. And therefore he recites the blessing, even though he himself is obligated in nothing. Not in circumcision and not in making sure. Only if the father does not exist is it imposed on the public.

[Speaker B] Is there any other case where an agent does a commandment for me, I thereby fulfill my obligation, and he recites the blessing? That’s the question.

[Rabbi Michael Abraham] What do you mean—again, no, you don’t “fulfill your obligation.” What does that mean, fulfill your obligation? Your house has a parapet. What does “fulfilled your obligation” mean? No commandment is credited to your account. You know what? I’ll phrase it for you like circumcision. The homeowner has to make sure that his house has a parapet. He does not have to build a parapet. He has to make sure that his house has a parapet.

[Speaker B] Exactly. To remove the hazard. It’s a matter of turning away evil—getting rid of the obligation by having the danger removed somehow. Either there’s a parapet or the house blew up. The obligation comes off me. But that’s not what I’m talking about. That clearly is not a matter of a blessing. A blessing is if I fulfill it as written in the Torah. Right. Now if I do it through an agent, that depends on another question: when a person does a commandment for me, who recites the blessing over the commandment, me or him? No, but if you do it—

[Rabbi Michael Abraham] Through an agent, certainly I do.

[Speaker B] Certainly the sender recites the blessing. Right, so why does he say here that the craftsman who fixes it—

[Rabbi Michael Abraham] He claims that this is not agency. That’s what he claims. No, he does the commandment for me, but he does not have to be my agent, because I do not have an obligation to perform the commandment; I have an obligation to ensure that it gets done. Exactly like circumcision. So I made sure it got done—there, through that fellow. But that fellow does not have to be my agent, nor under the rule of acquisition, under no doctrine at all. But still, this commandment is imposed on me, not on him. Yet because he is the one engaged in carrying out this commandment, he recites the blessing. Fine. And what’s the example for that? How can—

[Speaker B] a person recite a blessing over a commandment he isn’t obligated in?

[Rabbi Michael Abraham] And that’s from the example of circumcision; I brought the example of circumcision.

[Speaker B] Circumcision is separate.

[Rabbi Michael Abraham] No, according to Machaneh Ephraim it isn’t. According to Machaneh Ephraim it’s a good example. Machaneh Ephraim and Tosafot Rid—that’s what they claim. They do not claim that he recites the blessing because he also belongs to that obligation; they claim that I fulfilled my obligation to ensure that the son is circumcised, not to circumcise him. Therefore you do not need to be my agent, because I am not obligated to circumcise; I need to make sure he is circumcised. But you have no commandment at all, and nevertheless, when you carry out the act—you are the one performing the act of the commandment—then you recite the blessing.

But in our case, Machaneh Ephraim concludes: “But in our case, it seems to me that the homeowner should recite the blessing,” and this is speaking about a parapet, “if he had it done through a craftsman who is a day laborer, for the first reason.” All these moves are moves dealing with the question: maybe you can recite the blessing because… because there is no commandment at all to erect the parapet, only that there be a parapet. And if there is a parapet, then recite the blessing. So he rejected that. He said, no, that can’t be, because in the end you cannot recite the blessing, since you did not perform the act. He says the agent can recite the blessing, and I say I’m not even sure of that. But as for… as for a craftsman or a day laborer—when you send a craftsman or a day laborer to build a parapet, there you can also recite the blessing. Why? Because there it is not like someone else just did it for you and suddenly, poof, we have a house with a parapet, so I’m exempt because the house has a parapet—no. There, you erected a parapet. How? Through your day laborer or your slave. And that is the practical difference he mentioned earlier. In other words, we see here the implication of the claim we saw before—that a laborer or a slave is a case considered as though the person himself performed the act, and therefore neither the question of attribution nor the question of the power to perform the act arises.

Maybe one more note, since sometimes something comes out of this so that… Rabbi Akiva Eiger has a note on this Machaneh Ephraim; he has glosses on Machaneh Ephraim: “And in my humble opinion, even in making a parapet through one’s Canaanite slave, it is not applicable to say that it is as though he himself actually did it, for we do not find that one can annul his wife’s vows through his slave, and certainly not through a laborer.” In other words, he understands that Machaneh Ephraim sees the laborer or the slave as though I myself did it. Fine, so according to that maybe they can also annul my wife’s vows if there is identity? As we spoke about earlier—let them put on tefillin in my name, sit in the sukkah in my name, everything? If they cannot do that in my name, then you cannot tell me there is identity. This does operate according to the laws of agency. And who is it that works according to the laws of agency? A Canaanite slave has no agency, a gentile has no agency, so you cannot recite a blessing over such a thing. If there is an agent, you can recite the blessing. That is his claim.

And again, throughout the whole discussion, on the one hand this strengthens what I said—that Machaneh Ephraim is talking about identity and not about agency. On the other hand, I explained all along that this is certainly not complete identity. We are not talking about him sitting in the sukkah in my name or putting on tefillin in my name. No. Machaneh Ephraim does not mean that either. He means to say that there is partial identity here; in other words, something is said here such that although it is not entirely me, he acts for me as my extended hand, better than an agent. Rabbi Akiva Eiger sees it dichotomously—that is, if it is me, then it is me for everything; if it’s an agent, then with a gentile there is no agency. But Machaneh Ephraim apparently means to say that there is some intermediate level like that.

And then he says: yes, the Talmud there in Bava Metzia, in that same passage: “As it was taught: If one says to an administrator, ‘Any vows that my wife makes from now until I return from such-and-such a place, annul them for her,’ and he annulled them for her—might it be that they are annulled? Scripture says, ‘Her husband may confirm it and her husband may annul it’—these are the words of Rabbi Yoshiyah. Rabbi Yonatan says: We find everywhere that a person’s agent is like himself.” So we see that the administrator acts by virtue of agency, or else he does not act at all. This is a dispute among the Tannaim. So we see that regarding annulment of vows, someone who is not an agent cannot annul vows. An agent—that’s another question—but someone who is not an agent cannot. Therefore there Rabbi Akiva Eiger assumes that just like the administrator, so too a slave and a laborer would be the same. I’m not completely sure I accept that claim; there might be room to distinguish between a slave and a laborer on the one hand and an agent on the other. But I’m saying we don’t need to get there. It could be that with a slave and a laborer there is identity between them and the sender, but it is not complete identity—they cannot put on tefillin for him.

Yes, that’s… And then he says: “Rather, certainly it appears that this applies only regarding borrowed property with the owner present, for in monetary matters the hand of his slave is like the hand of his master. But not regarding other matters. And a master cannot deliver a bill of divorce to his wife through his slave, since the slave is not within the legal framework of bills of divorce and betrothal.” It follows that even through his slave it is ineffective. That’s what I said earlier: according to Machaneh Ephraim, it would seemingly come out that you can send a bill of divorce through a slave or through a gentile laborer. You could send a bill of divorce to a woman. Rabbi Akiva Eiger himself agrees—that is, agrees that this is what Machaneh Ephraim says—but he argues that from the plain sense of the Talmud it does not seem that way. But the conclusion Machaneh Ephraim drew, he also draws it, okay?

And see Tosafot on Kiddushin 42, our passage: “And perhaps from the Mishnah, where one says to his slave, ‘Go and slaughter the Passover offering on my behalf,’ it is proven that a person’s agent is like himself.” Yes, Tosafot asks: why from the case, “one who says to his slave, ‘Go and slaughter the Passover offering on my behalf’”—why don’t we derive from there that a person’s agent is like himself? That’s what Tosafot asks. He says they bring it from another Mishnah about slaughtering the Passover offering; there is an earlier Mishnah: “one who says to his slave, ‘Go and slaughter the Passover offering on my behalf.’” Why didn’t they bring the proof from there? That’s what Tosafot asks on our Talmudic passage.

Rabbi Akiva Eiger says: what’s the connection? There it’s talking about a slave. The fact that you can tell your slave to slaughter the Passover offering—how is that proof that a person’s agent is like himself? A slave, according to Machaneh Ephraim, is more than an agent, right? So what do we see? No—the slave acts here by virtue of agency. Fine, but a slave, seemingly, cannot be an agent. But no: a slave can be an agent if he really is a slave. Slavery enables him to be an agent. Machaneh Ephraim claims that slavery is a substitute for agency. But no—slavery enables him to be an agent, and from here we see that a person’s agent is like himself. That is what Tosafot says, and it is exactly parallel to Pnei Yehoshua and Atzmot Yosef. In other words, Rabbi Akiva Eiger understands that when we speak about a slave or a laborer, the meaning is that slavery and hired labor—his hired status—enable me to appoint him as an agent. Machaneh Ephraim says no: a slave and hired labor are considered me; therefore we do not need the law of agency here—it is a substitute for the law of agency. Exactly as we saw in Pnei Yehoshua and Atzmot Yosef in our passage. Also in Bava Metzia 96, Rabbi Akiva Eiger there makes a similar comment, and it keeps recurring. Look at it in the summary I’ll upload, if you want. That’s it, up to here.