Kiddushin – Chapter 2 – 5783 – Lecture 17
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Table of Contents
- General Overview
- The contradiction between Gittin and Kiddushin and the definition of a gentile’s disqualification
- The Ri Migash, the Ran, and a slave as an agent for a bill of divorce: receipt versus delivery
- Avnei Milu’im and Ayelet HaShachar: giving the bill of divorce, “Here is your bill of divorce,” and the critique of the difficulty
- An additional explanation in the Ran: severance as directed toward the woman and not the husband
- Tosafot in Gittin and the verse “So shall you also set apart”: exclusion or non-inclusion
- The Sages versus Rabbi Shimon: a gentile in the category of terumah, and what is learned from “members of the covenant”
- “A diminished Jew or an upgraded gentile” and the implication for the structure of inclusion and exclusion
- Bava Metzia 96 and Rashi: “not subject to commandments” and “similar to the sender”
- Rashi in Kiddushin: “also” as inclusion of an agent, and the comparison for excluding a gentile
- Additional sources: Chagigah, Bava Metzia 71, and the Ran on the Rif
- Maimonides’ ruling: a gentile “is not a member of the covenant” and a slave “is not in the relevant legal category”
- Transition to the next topic: there is no agency for a transgression, and Shammai the Elder
Summary
General Overview
The text seeks to conclude the topic of a gentile’s disqualification from agency by resolving the contradiction between the passage in Gittin, from which it appears that a gentile’s disqualification is essential, and the passage in Kiddushin, from which it appears that the disqualification stems from the fact that he “is not in the relevant legal category.” The author explores ways to read the Kiddushin passage as also leading to an essential barrier, presents the Ri Migash’s approach through the Ran and the discussion in Avnei Milu’im and Ayelet HaShachar about a slave serving as an agent for a bill of divorce, and continues to establish through Tosafot, Rashi, additional Talmudic passages, and Maimonides that the verse “So shall you also set apart” is a source for the law of agency, from which the limitation of “members of the covenant” is derived. Finally, the text opens the next topic of “there is no agency for a transgression,” and brings the Mishnah, the dispute with Shammai the Elder, and the reasoning of “the words of the master and the words of the student.”
The contradiction between Gittin and Kiddushin and the definition of a gentile’s disqualification
The passage in Gittin indicates that a gentile’s disqualification is essential, while the passage in Kiddushin indicates that a gentile is disqualified because he “is not in the relevant legal category.” The author suggests that according to Rabbi Shimon it is difficult to say the disqualification is essential, because the Talmud asks, according to Rabbi Shimon, what he does with the verse “So shall you also set apart” after he has said that a gentile “does not belong to the category of terumah,” and that question implies that the Talmud understood there was no essential disqualification here. The author suggests that according to the Sages it may still be argued that in the conclusion the disqualification is nevertheless essential, and he seeks to clarify this through the approaches of medieval and later authorities.
The Ri Migash, the Ran, and a slave as an agent for a bill of divorce: receipt versus delivery
The Ran cites in the name of Rabbi Halevi Migash that according to Rabbi Yoḥanan a slave is disqualified only from serving as an agent to receive the bill of divorce, but not as an agent to deliver it. The Ran explains that an agent for receipt must be “in the category of the matter itself,” and therefore a slave cannot receive it because he “is not subject to severance,” whereas an agent for delivery can serve because it is enough that he be “in the category of agency.” The author distinguishes between a slave, who is not essentially disqualified from agency because he is a “member of the covenant,” and a gentile, whose disqualification appears to be essential.
Avnei Milu’im and Ayelet HaShachar: giving the bill of divorce, “Here is your bill of divorce,” and the critique of the difficulty
Avnei Milu’im, section 35, explains that the bill of divorce itself effects the divorce and the phrase “Here is your bill of divorce” is only rabbinic, and therefore an agent for delivery need not be “in the category of divorce” but only belong to agency, because “anything that comes into her hand by the husband’s power is effective.” Ayelet HaShachar objects that in any case there must be a giving that can serve as a giving for divorce, and brings proof from the case of “Take your bill of divorce from on top of the ground,” which is not considered “and he placed it in her hand,” and from this argues that the initial giving must be “fit for the sake of divorce.” The author rejects the objection and distinguishes that “Take your bill of divorce from on top of the ground” is invalid because there is no act of giving by the husband at all, whereas in the case of a slave there is agency carrying out a transfer that is “the husband’s giving” even if not for the sake of divorce, and therefore one can afterward say, “Here is your bill of divorce.”
An additional explanation in the Ran: severance as directed toward the woman and not the husband
The author cites a possible reading in the Ran’s wording that the requirement of severance belongs on the woman’s side, because the whole idea of divorce is to sever her from him and not to separate the husband from her. He brings Kiddushin 5, where if one says “I am not your husband,” it is ineffective because that separates himself from her, and that is not the idea of divorce. According to this explanation, what needs to be “subject to severance” applies to one who stands in place of the woman as an agent for receipt, but an agent for delivery, who stands in place of the husband, need not be subject to severance.
Tosafot in Gittin and the verse “So shall you also set apart”: exclusion or non-inclusion
Tosafot asks that according to Kiddushin it seems that according to Rabbi Shimon there is no need to expound “just as you are members of the covenant,” and he would establish the verse for another exposition, even though everywhere else “a gentile is not subject to agency” regarding acquisition and interest. Tosafot answers that since we derive agency from terumah through “you also,” it stands to reason that we do not include in general except what is similar to “you,” and thus the gentile is not included in the inclusion. The author suggests that according to Tosafot the result is that in the end the gentile’s disqualification is essential, because the source for the law of agency is learned from terumah, and in terumah the gentile is not included, so there is no source to include a gentile in agency even in areas in which he is “within the relevant category.”
The Sages versus Rabbi Shimon: a gentile in the category of terumah, and what is learned from “members of the covenant”
The author clarifies that according to Rabbi Shimon a gentile is “not in the category of terumah” and therefore would not be included in agency from there, but the result still emerges that a gentile has no agency at all because the source of agency passes through terumah. He presents that according to the Sages, although they hold that a gentile is “in the category of terumah,” the verse “So shall you also set apart” limits agency to “members of the covenant,” and therefore a gentile is not included, not as an exclusion after an inclusion but as a limitation of the inclusion itself. The author discusses whether the limitation also applies to the sender, and raises the possibility that the wording “just as you are members of the covenant, so too your agents must be members of the covenant” implies that the sender must also be a member of the covenant.
“A diminished Jew or an upgraded gentile” and the implication for the structure of inclusion and exclusion
The author mentions the discussion whether a slave is “a diminished Jew” or “an upgraded gentile,” and attributes to Rabbi Akiva Eiger a practical implication in the law of shaving the corners of the head through a dispute between the Babylonian Talmud and the Jerusalem Talmud. He parallels this to the question of agency for a gentile: whether an exclusion is needed to remove him from agency, or whether an inclusion is needed to bring him in, and where there is neither an inclusion nor an exclusion, one remains with the default determined by the basic structure.
Bava Metzia 96 and Rashi: “not subject to commandments” and “similar to the sender”
In Bava Metzia 96 the question is asked: “If one says to his slave, ‘Go borrow together with my cow,’ what is the law?” and the Talmud ties this to the question whether “a person’s agent is like himself” or “is not like himself,” and suggests that a slave, who “is not subject to commandments,” may be ineffective, or perhaps “the hand of a slave is like the hand of his master.” Rashi explains that agency is learned from “you, also you, to include your agent,” and “we require similarity to the sender, that the same laws apply to him,” and he emphasizes that in the case of a slave, “the law of a borrower does not apply to him” and “one who lends out has nothing of his own without his master.” The author infers that for Rashi the verse is the source for including agency but also the source for a comparison between agent and sender, creating a disqualification on the basis of lack of similarity, and not merely a general claim of “not in the relevant category.”
Rashi in Kiddushin: “also” as inclusion of an agent, and the comparison for excluding a gentile
Rashi, in the school of Rabbi Yannai, explains: “That is why ‘also’ is written, to include an agent, because it is needed to compare him to the sender, to say that a gentile is disqualified.” The author infers that according to Rashi the verse “So shall you also set apart” is first and foremost a source for the law of agency, and the reason it was written despite the possibility of learning from consecrated offerings and divorce bills is the need for the comparison from which the gentile’s disqualification is learned. The author presents that according to this reading, even if a gentile belongs to the category of terumah according to the Sages, he is still disqualified from agency by the force of the comparison “members of the covenant,” which does not depend on his particular connection to terumah.
Additional sources: Chagigah, Bava Metzia 71, and the Ran on the Rif
In Chagigah it says: “What is the reason that his agent is like him in terumah? Because it is written, ‘So shall you also set apart,’ and the master said: ‘you also’ comes to include your agent.” In Bava Metzia 71, Rav Ashi retracts and determines that agency throughout the entire Torah is learned from terumah, because “just as you are members of the covenant, so too your agent must be a member of the covenant,” and from here it follows that there is no agency for a gentile. The Ran on the Rif explains that it is not necessary that agency be learned only from terumah; rather, its essence is learned from consecrated offerings and divorce, but from terumah we learn the limitation that there is no agency for gentiles, “and so too in the entire Torah,” and the Rif notes, “from here they said that a person’s agent is like himself,” even though not specifically from that source alone.
Maimonides’ ruling: a gentile “is not a member of the covenant” and a slave “is not in the relevant legal category”
Maimonides rules in Laws of Terumot, chapter 4, that if a gentile set aside terumah from his own produce, “by Torah law it is not terumah,” and thus he rules like Rabbi Shimon. In Laws of Marriage, chapter 3, Maimonides writes: “Everyone is fit for agency” except a deaf-mute, an incompetent person, and a minor, “and a gentile, because he is not a member of the covenant,” and he brings the verse “So shall you also set apart” together with the exposition “just as you are members of the covenant, so too your agent must be a member of the covenant, to exclude a gentile.” Maimonides adds: “But a slave… is disqualified from agency for betrothal and divorce because he is not in the relevant legal category,” and the author emphasizes that Maimonides distinguishes between an essential barrier regarding a gentile and “not in the relevant category” regarding a slave. In Laws of Agents, chapter 2, Maimonides rules that a gentile cannot become an agent and that a Jew cannot become an agent for a gentile, and he infers from the verse that just as the agent is a member of the covenant, so too the sender must be a member of the covenant.
Transition to the next topic: there is no agency for a transgression, and Shammai the Elder
The text opens the Mishnah on 42b: “If one says to his agent, ‘Go and kill a person,’ he is liable and his sender is exempt,” and Shammai the Elder says in the name of Haggai the prophet, “his sender is liable,” based on the verse “you killed him with the sword of the Ammonites.” The Talmud brings a baraita that learns from the verse “and the person shall die… the person who sinned, he shall die” that the agent is liable and the sender is exempt, and establishes the rule “there is no agency for a transgression,” with exceptions such as misuse of consecrated property and slaughtering or selling a stolen animal. The Talmud explains the reasoning of the Sages’ view through the logic of “the words of the master and the words of the student—whose words do we heed,” and according to this the responsibility rests on the agent, who obeyed the command to transgress, and not on the sender.
Full Transcript
[Rabbi Michael Abraham] Okay, my plan today is to finish this whole topic of the gentile. So last time I said that we saw a contradiction between two passages. The passage in Gittin implies that the disqualification of a gentile is an essential disqualification, while the passage here implies that the gentile’s disqualification is because he is not in the relevant legal category. I suggested a few possibilities for still reading the conclusion of our passage differently. One of them was that even in our passage we’re really dealing with an essential disqualification, even though according to Rabbi Shimon that’s a bit harder, because in the Talmud, according to Rabbi Shimon, after Rabbi Shimon says that a gentile doesn’t belong to the category of terumah, the Talmud asks: so what does he do with “So shall you also set apart”? Why is that verse needed? After all, he could have excluded it from the fact that the gentile is not in the category of terumah—because according to his view he is not in the category, unlike the view of the Sages. That implies that the Talmud understood that the gentile’s disqualification is not an essential one, because otherwise there would be no question: he would need the verse “you also” to teach that the gentile’s disqualification is essential. But according to the Sages maybe one can still say otherwise, that according to the Sages, in the end, the disqualification is in fact an essential one. In the passage in Gittin we saw the position of the Ri Migash, and that’s what I want to open with. I photographed this from Ayelet HaShachar, by Rabbi Steinman. “A slave cannot serve as an agent to receive a bill of divorce,” and Rashi explains that the same applies—he cannot serve as an agent for delivery either. But the Ran brings the position of Rabbi Halevi Migash, that according to Rabbi Yoḥanan he is disqualified only from being an agent for receipt, not from being an agent for delivery. Right? About that we saw that an agent for receipt has to be in the category of the matter itself, while for an agent for delivery it’s enough that he be in the category of agency; he doesn’t have to be in the category of the matter itself. And the Ran explained that he has no legal hand to receive it since he is not subject to severance. But he can be an agent for delivery, since anyone can be an agent—in other words, he has no essential disqualification from agency; we’re talking now about a slave—because he is a member of the covenant. In the case of a gentile, it seems the disqualification is essential, and that’s exactly the difference: with a slave, the disqualification is not an essential one. And Avnei Milu’im, section 35, asks: in the end, what practical difference does that make? And he wanted to explain that since in the wording of Scripture regarding a bill of divorce, the bill is what divorces, and the need to say “Here is your bill of divorce” is only rabbinic—yes, okay, the wording written in the bill of divorce is what effects the divorce, right? And what you need to say, “Here is your bill of divorce,” is only rabbinic. But in essence the bill itself performs the act of divorce; we saw that. And if so, regarding the act of giving itself, he can serve as an agent, because anything that comes into her hand by the husband’s power is effective. And this came into her hand through the husband’s agency, meaning through the husband’s power. The agent doesn’t need to be in the category of divorce, because what divorces here is the bill, not the agent, so the agent doesn’t need to be in the category of divorce; he does need to belong to agency. For with respect to that it is considered as though the husband himself gave it to her, because the slave was not excluded from the law of agency. Again, though, it implies: the slave no, but the gentile yes. And therefore, with respect to the act of giving, it is indeed called “and you shall give,” for even giving for the sake of deposit, the Ran wrote in chapter HaZorek, is effective if afterward he says to her, “Here is your bill of divorce.” And here, where he gave it to her, it would be effective, even though his statement would not be effective because he is not subject to severance—yes, the statement is only rabbinic. But his statement is not needed. And with this he wants to say that regarding betrothal—this is all about divorce, bills of divorce—but regarding betrothal, speech is needed even when one betroths with a document. The document does not do the betrothing; the person does the betrothing. And therefore the Ri Migash would agree that there a slave is disqualified from serving as an agent to betroth, even as an agent for delivery. Is there someone who says that in documentary betrothal speech isn’t needed? I don’t remember right now, maybe there is.
[Speaker B] Maybe the Rashba, if—
[Rabbi Michael Abraham] If I’m not mistaken, from the start—
[Speaker B] I mean, maybe—I don’t remember right now.
[Rabbi Michael Abraham] “And it requires further analysis, for granted”—“And it requires further analysis, for granted that the Ran wrote that giving for the sake of deposit is effective, in any case don’t we need a giving that could serve as a giving for divorce? Because if not, why doesn’t the case of ‘Take your bill of divorce from on top of the ground’ work, and afterward he says to her, ‘Here is your bill of divorce’?” Right? A bill of divorce is invalid in the case of “Take your bill of divorce from on top of the ground,” because that isn’t called “and he placed it in her hand.” If I put the bill on the ground and say to her, take it from the ground, that’s invalid. So Ayelet HaShachar says that this really creates a difficulty for this explanation of the Ritva—at least for what the Ran wrote—because the giving that I need to make at least has to be a giving fit for betrothal—for divorce, sorry. And therefore, really, even an agent for delivery would have to be for the sake of divorce—sorry, even the agent for delivery would have to be in the category of divorce, because it’s not just about transferring the bill to the woman; it has to be a giving fit for the sake of divorce, even if it wasn’t actually given as a divorce and afterward the husband comes and says, “Here is your bill of divorce.” But the initial giving has to be for the sake of divorce. Because otherwise you could say to her, “Take your bill of divorce from on top of the ground,” and then I say to her, “Here is your bill of divorce,” and that should also work. Because I said to her, “Here is your bill of divorce,” and the bill reached her hand, everything is fine. So it must be that in any case it has to come through an act of giving directly from the husband—that is, a giving that could in itself be effective for divorce even though at that point he had not yet divorced her. See Ayelet HaShachar. What do you say about that? Yes, and since in order to effect divorce one has to be subject to severance, it follows that this was not a giving capable of effecting divorce, so how could she be divorced? What do you answer? I don’t understand the question at all. I don’t see why there’s any need to answer it. What does he want? After all, exactly what the Ran and Avnei Milu’im explained is that in agency for delivery in divorce, true, you need the husband’s agency, but the agency is not what effects the divorce. What effects the divorce is the bill. But they are not saying that you don’t need the husband’s agency. You do need there to be an act of giving by the husband, only the act of giving is not what effects the divorce—the bill effects the divorce. There is a condition that there be an act of giving by the husband. Therefore they say that in the case of a slave, as opposed to a gentile, since the slave is within the category of agency—whereas a gentile is not in the category of agency at all, he has an essential disqualification—whereas the slave is in the category of agency. So if the slave brings the bill to the woman, then there was an act of giving by the husband, not for the sake of divorce, an act of giving by the husband, and now the husband can come and say, “Here is your bill of divorce,” and everything is fine. Now what is he proving from “Take your bill of divorce from on top of the ground”? In that case there is no act of giving by the husband at all. Where did he get the idea that the act of giving has to be a giving fit for divorce? The opposite—that’s exactly the whole point the Ritva is making for him. You need an act of giving, but the act of giving in itself can even be a giving not fit for divorce; the main thing is that it be a giving by the husband. Precisely for that reason he says the agent does not have to be in the category of divorce, he only has to be in the category of agency. Why does he have to be in the category of agency? Because “Take your bill of divorce from on top of the ground” does not help—you need the husband to give the woman the bill. So if someone else brings the bill to the woman, if he’s not the husband’s agent, that’s like “Take your bill of divorce from on top of the ground.” Therefore he has to be the husband’s agent. But why does he infer from this that the agent has to be in the category of divorce? That’s exactly the distinction made by the Ran and Avnei Milu’im. I don’t understand what he wants at all. It’s a very strange question. Maybe the rabbi simply doesn’t understand—
[Speaker B] why a slave—
[Rabbi Michael Abraham] himself—why a slave is different from the ground? I don’t understand what he wants. Of course a slave is different from the ground. Obviously. The slave is his master’s agent, and therefore when he hands over the bill to the woman, there was an act of giving by the husband here—just not a giving fit for divorce, that’s true. Therefore afterward, when the bill is already with her, like as a deposit, as he says, then you can say to her, “Here is your bill of divorce.” And when the husband says, “Here is your bill of divorce,” she is divorced. But there is a condition: the bill has to be delivered into the woman’s hand by the husband. And for that you need an agent to do it, because “Take your bill of divorce from on top of the ground” does not satisfy that condition. After that I can say to her, “Here is your bill of divorce,” but the condition of “and he placed it in her hand” has not been fulfilled, that I am giving her the bill, performing an act of giving the bill. So all that works when the slave functions as my agent. But if I say to her, “Take your bill of divorce from on top of the ground,” obviously that doesn’t help. It doesn’t help because there was no act of giving. Afterward I’ll say to her, “Here is your bill of divorce,” so there is an act of divorce, but the condition is missing that the bill be given to the woman by the husband. Exactly. It’s not my claim—that’s what they write. That’s what they write. I don’t understand what he wants; I haven’t added a word. All I did was repeat what Avnei Milu’im and the Ran say. Look: “But the Ran brought the position of Rabbi Halevi Migash, that according to Rabbi Yoḥanan he is disqualified only from being an agent for receipt.” And the Ran explained that he has no legal hand to receive it since he is not subject to severance. But he can be an agent for delivery because he can be an agent—not because “Take your bill of divorce from on top of the ground” is good. “Take your bill of divorce from on top of the ground” is not good, but a slave can be an agent—not for divorce, but he can be an agent, and you need him to be an agent because otherwise there is no act of delivery by the husband. So what is the comparison to “Take your bill of divorce from on top of the ground”? What does that have to do with anything? He decided that from “Take your bill of divorce from on top of the ground” there is proof that the delivery has to be a delivery fit for divorce. Not true.
[Speaker B] He thinks there’s a requirement that the agent be for the legal category of divorce. Why?
[Rabbi Michael Abraham] But that’s exactly your leonine objection, Ayelet HaShachar. The Ran and Avnei Milu’im say no. They say he has to be in the category of agency, but he doesn’t have to be in the category of divorce. Now, you can hold otherwise—health and happiness to you—but why are you objecting to them? It’s so strange. I don’t need to add a word; that’s what they say. He somehow decides, without any basis in my opinion, that once “Take your bill of divorce from on top of the ground” is invalid, that means you need a giving fit for divorce. But that’s not true. It means you need a giving. It has nothing to do with being fit for divorce. You need an act of giving, and the act of giving is done either by the husband or by his agent. And since the divorce is effected by the document, then all is perfectly fine. So the agent doesn’t need to be in the category of divorce; he needs to be in the category of agency and not in the category of divorce. A gentile will not be able to do that, because with a gentile it’s like “Take your bill of divorce from on top of the ground.” Even if afterward the husband says, “Here is your bill of divorce”—but how did the bill get to her? It got to her not through an act of delivery by the husband, because the gentile is not an agent, so it’s like “Take your bill of divorce from on top of the ground”; she simply took the bill from the ground, she didn’t receive it from the husband. In fact that is exactly the difference between a gentile and a slave. I simply can’t understand what he wants at all. He raises another possibility for explaining it. “And from the language of the Ran it appears that he holds that there is no need for this, that he be subject to severance. And perhaps the reason is as follows: the whole idea of severance is entirely with respect to the woman, that she be separated from what she had been connected to. And that is the whole idea of the wording of the bill of divorce. But the husband, who was not connected to the woman even before the divorce, does not require that the designation of severance apply to him.” In other words, the requirement that there be severance is to sever the woman from the husband, not the husband from the woman—the woman. He says the woman is in the husband’s domain, not the husband in the woman’s domain; the relationship is not symmetric. So when I say there is a requirement for severance, meaning there has to be some kind of personal-status act here, some meaningful act, that is only from the woman’s side. In other words, the woman has to undergo severance from the husband; the husband does not have to undergo severance from the woman. The process applies only to the woman—or call it differently: the status change occurs only to the woman, not to the husband. In other words, the woman was connected to the husband and now there is severance: she is cut off from the husband, now she is detached from the husband. But the husband was not in her domain, so from the husband’s side severance is not needed. And that’s what he says: “And it is explained in Kiddushin 5 that if he says, ‘I am not your husband,’ it is ineffective, because then it turns out he is separating himself from her, and that is not the idea of divorce, for the idea of divorce is to sever her from him and not the husband from the woman.” I have to sever the woman from myself, not myself from the woman, because he does not belong to her. Therefore the Ri Migash holds that everything that requires one to be subject to severance applies only to one who wants to stand in place of the woman, upon whom the matter of severance takes effect. In other words, when I say that as a result of the bill of divorce some matter of severance takes effect—we severed something—that act of severance takes place in the woman, not in the husband. The status change—which status changes here? The woman’s, not the husband’s. Just think about it in terms of practical consequences too. In terms of consequences, the fact that she is my wife doesn’t have much significance for me—I can take another wife. It’s not that I’m unavailable now and therefore I somehow need severance in order to be released. No. The significance is from her side, not from my side. So the status change that I produce through the bill of divorce is a change in her status, not mine.
[Speaker B] But the second party is the one who activates it; he can move her from one status to another.
[Rabbi Michael Abraham] Right, okay, so what?
[Speaker B] You could say the opposite—that as the person who performs that status change, he has to be—
[Rabbi Michael Abraham] He performs the status change, but the status change is not performed on him but on her. The result is on her. On her. No, that’s his claim. One could have said otherwise. But he proposes this explanation, because after all we have a datum. The Ri Migash says that as an agent for receipt the slave cannot serve, but as an agent for delivery he can. That can be explained this way. Someone who said the opposite—fine, maybe your explanation could also be right. This explanation doesn’t have to be necessary, but it is possible, okay? “And therefore the Ri Migash holds that everything requiring one to be subject to severance applies to whoever wants to stand in place of the woman, upon whom the matter of severance takes effect.” Therefore the agent too has to be subject to severance. And even though in the case where the agent for receipt is a man, that exact matter of severance does not apply to him in the same way it does to the woman—so maybe the agent couldn’t be a man? A woman’s agent for receipt of a bill of divorce couldn’t be male, because severance doesn’t apply to men, severance applies only to women. So he says no. Why not? In any case it is enough that he be within the category of severance, that he belong to the topic or section of severance. But an agent for delivery, who has to stand in place of the husband, and the matter of severance does not affect the husband at all, his agent need not be subject to severance, and he is effective and is indeed considered an agent for the whole matter of divorce. I think this maybe joins the point made earlier—that what divorces the woman is the bill, not the husband really, or not the agent. What performs the act of divorce is the bill—that’s what he said above. I think what he says here is built on that earlier foundation. Since what performs the action is the bill, therefore even though the husband—what you asked earlier—the husband performs the act of divorce, not the woman. Yes, but the husband’s act of divorce is performed by means of the bill, not by the one who delivers it. The one who delivers it is only a condition. Once you already assume that, then you don’t need this whole move of his, because the difficulty never arose to begin with. Okay. We talked in the previous lecture about Tosafot in Gittin, “just as you are members of the covenant.” “And if you say that in chapter 2 of Kiddushin it implies that according to Rabbi Shimon he does not need to expound ‘just as you are members of the covenant,’ and he establishes it for another exposition”—after all, they ask Rabbi Shimon why according to Rabbi Shimon the verse “So shall you also set apart” is needed, since according to Rabbi Shimon the gentile is not in the category of terumah. “And if so, according to him, from where do we know?” For we maintain everywhere that “a gentile is not subject to agency,” with regard to acquisition and interest in chapter Eizehu Neshekh. What did I ask in the previous lecture? How do we know that the gentile is barred in an essential way? And Tosafot assumes that the gentile—at least from the passage in Gittin it comes out that the gentile is barred in an essential way—and therefore Tosafot asks: why does the Talmud ask, according to Rabbi Shimon, what he does with “you also”? What do you mean, what’s the problem? He uses “you also” to teach that the gentile is barred in an essential way. What’s the practical difference? In those areas where the gentile does belong to the relevant category, like acquisition and interest and so on. Interest is a bit questionable—the prohibition of interest doesn’t apply to a gentile; lending does apply to a gentile, the prohibition of interest does not apply to a gentile. Fine? So they say: “One can say that in any case, since we derive agency from terumah through ‘you also,’ and from there we learn it generally, it stands to reason that we do not include generally except something similar to ‘you.’” So I said last time that this is basically what I said at the beginning of the topic: when the Sages say that agency in terumah is learned from consecrated offerings and divorce and not from “So shall you also set apart,” and “So shall you also set apart” comes to exclude a gentile—that’s not correct. Because “you also” comes to include; it does not come to exclude. What I said is that it comes—the source for agency in terumah is “So shall you also set apart,” not consecrated offerings and divorce. Only, you ask why that couldn’t have been learned from there, and I say: no, because if I had learned it from there I wouldn’t know that a gentile can’t do it. Okay? And that’s why I need to teach, to bring an additional source for agency in terumah, one that is required not for agency in terumah as such—that I could have learned elsewhere—but in order to exclude the gentile. But really what comes out of this is not that the gentile was excluded, but that the gentile was not included. Okay? That’s really what comes out. The Talmud says “So shall you also set apart”—the source of agency is from terumah, fine, and in terumah a gentile was not included, because “just as you are members of the covenant, so too your agents must be members of the covenant.” So I have no source for agency in the case of a gentile, because the gentile was not included. What does that mean, basically? In the end, is the gentile barred essentially or because he is not in the category? In simple terms, in my opinion, essentially barred. Because that’s exactly what Tosafot asked. Tosafot asked: why does the Talmud ask about Rabbi Shimon? You, Rabbi Shimon, hold that the gentile is not in the category of terumah, while the Sages hold that a gentile is in the category of terumah. Rabbi Shimon holds that a gentile is not in the category of terumah. So what does Rabbi Shimon do with “So shall you also set apart”? After all, “So shall you also set apart” comes to exclude a gentile, and here you don’t need that because the gentile is not in the category, so I don’t need a verse in order to exclude him. Right? That’s what the Talmud asked. Tosafot asks: you see from the Talmud that the Talmud assumed the exclusion of a gentile is only because he is not in the category—there is no essential barrier. Because if there were an essential barrier, there would be no difficulty according to Rabbi Shimon. What does he do with “So shall you also set apart”? He uses it to exclude a gentile essentially, even in things where the gentile is in the category. Okay? You said that with terumah the gentile is not in the category according to Rabbi Shimon, though according to the Sages—
[Speaker B] Rabbi Shimon—he’s not in the category. You can’t come—just—if so, that’s the explanation of the matter—you can’t come from a place where he would be in the category.
[Rabbi Michael Abraham] Exactly. In other words, Tosafot is basically saying that according to—at least according to… With Tosafot it’s an interesting question what comes out according to the Sages. Tosafot says like this: according to Rabbi Shimon, since the gentile is not there—he is not in the category of the matter, not in the category of terumah—then in terumah certainly he cannot be an agent. Right? That we know regardless of the verse. Because he’s not in the category. Yes, that’s logic. The Talmud says that’s logic; you don’t need a source for it. Now the Talmud says… Tosafot says that the Talmud says: but in any case, since I have a verse that comes to include an agent in terumah from “So shall you also set apart”—after all, according to Rabbi Shimon that comes to include an agent, because we exclude stewards and tenant-farmers and so on—so you need a special source in terumah to include that an agent is effective also in terumah. He says: obviously that source can only include what exists within terumah. And what exists within terumah cannot include a gentile, because the gentile is not in the category. So now I already have no source to include a gentile in agency בכלל, at all. In other words, in the final analysis the disqualification turns out to be an essential one, not a disqualification of “not in the category.” In terumah he is disqualified because he is not in the category, and since the source for my law of agency is learned from terumah, and in terumah there is no gentile agent for an external reason—because he is not in the category—but bottom line, there is no gentile agent. So from where will you learn that agency can apply to a gentile? There is no source. A gentile was not included in agency.
[Speaker B] But the rabbi says that agency for a gentile—“you also,” which means agent. Right, that’s “you also” according to Rabbi Shimon. Right. But that’s according to Rabbi Yannai, not according to Rabbi Shimon. Rabbi Shimon learns from the verse “you also”…
[Rabbi Michael Abraham] The Talmud asks. Again, the Talmud asks why the verse “you also” is needed according to Rabbi Shimon. After all, derive it from the fact that he is not in the category. Right? So Tosafot says: what do you mean? You need the verse so that there should be an essential barrier. What kind of question is the Talmud asking? That’s Tosafot’s difficulty. After all, even according to Rabbi Shimon you need the verse so that there should be—Tosafot says—even according to Rabbi Shimon, and apparently also according to the Sages, the barrier is an essential barrier. But we learn that essential barrier from the fact that he is not in the category. Why? Because Rabbi Shimon innovated the… In the Talmud’s answer, Rabbi Shimon derives the law of agency in terumah from “So shall you also set apart.” Right? Since in terumah there was an initial assumption that there would be no agency because there is none in the case of stewards and tenant-farmers and the like, I would have thought that there is no agent there either. So the Talmud, the Torah, comes and says: no, there is agency in terumah. But does that agency include a gentile? No. Why not? Because he is not in the category. Not because of an essential barrier. He is not in the category, so obviously not. They came to include an agent, but not someone who is not in the category.
[Speaker B] But it’s not that there is a prohibition in the agency—that is, that the terumah doesn’t take effect—but that there is no prohibition in it.
[Rabbi Michael Abraham] Not that there’s no prohibition—that it works through an agent. What does that have to do with prohibition? What prohibition? What prohibition is there? What does it mean “forbidden”? What’s the problem? At most the terumah doesn’t take effect. What prohibition is there here? What prohibition did I transgress? Is doing something ineffective a prohibition? Setting aside terumah in an ineffective way—is that a prohibition? What prohibition is there in that? What prohibition is there in that? The prohibition of untithed produce? Fine, the prohibition of untithed produce—obviously, if you didn’t set aside terumah and you ate it, you ate untithed produce. But the mere fact that I did it this way and didn’t eat the untithed produce—did I say prohibition? There’s no prohibition at all. Obviously the novelty is that the terumah is not effective, it does not take effect. So I’m saying again: according to Tosafot this is an indirect move. In other words, Rabbi Shimon basically says that in principle he has no use for the verse, because the gentile is not in the category of terumah. Fine. So what do we do with the verse? Rabbi Shimon says: we learn the very law of agency from the verse. Because I would have thought that the law of agency—not the law of terumah, the very law of agency—I learn from the verse. Why? Because I would have thought that in terumah there would be no agency, just like with tenant-farmers and stewards. Tosafot says: one second, but what kind of agent was included there? Suppose there is agency also in terumah—but who? Obviously not a gentile, only a Jew. Why not a gentile? Not because of the verse “So shall you also set apart,” “just as you are members of the covenant, so too your agents must be members of the covenant”—not because of that. Rather because the gentile is not in the category. Fine, the verse did not innovate that even someone not in the category can be an agent. The verse came to innovate the very fact that there can be agency in terumah, because I would have thought that even a Jew couldn’t be an agent in terumah, like tenant-farmers and stewards. So the verse comes and says no—even in terumah there is the concept of agency. Now you ask yourself: which agent? A gentile obviously not, because he is not in the category. But if the source for the law of agency is terumah—or one of the sources for the law of agency is terumah—and in terumah there is no gentile agent, then it comes out that the source for the law of agency doesn’t include a gentile for an external reason. It doesn’t include a gentile, and therefore the gentile was not included. So until now there is no agency for a gentile in general. Tosafot’s final conclusion is that even according to Rabbi Shimon the barrier is an essential barrier. He was not included, because there is no—
[Speaker B] anything to include him.
[Rabbi Michael Abraham] Yes, because there’s nothing that would include him. According to the Sages, this is an exclusion. Because according to the Sages there is a concept of terumah, there is a concept of agency in terumah. There is no initial assumption that there would not be agency in terumah, and a gentile too is within that framework. So therefore it’s clear that according to the Sages the gentile was excluded. According to Rabbi Shimon he just wasn’t included. But still, according to both of them, in the end there is an essential disqualification regarding a gentile. That’s how Tosafot learns it. Okay? It’s a bit reminiscent of what I brought in the previous lecture, or the one before that, I already don’t remember—I brought that discussion whether a slave is a diminished Jew or an upgraded gentile. Right? And I said that Rabbi Akiva Eiger turns this into a dispute between the Babylonian Talmud and the Jerusalem Talmud. He says that the practical difference is the question of what happens with rounding the corners of the head. What’s the practical difference? Suppose the gentile is a diminished Jew. So what does that mean? The gentile is basically a Jew. But we learn from a woman that whatever a woman is exempt from, the gentile is also exempt from, right? That’s called a diminished Jew. Basically a Jew, only I have a source that excludes him from some of the commandments—the analogy of a slave to a woman, of a slave to a woman. A Canaanite slave. Yes, the analogy of a slave to a woman, a Canaanite slave. Now if I say that he is an upgraded gentile, then it works the other way around. He is basically a gentile. I learn from a woman that whatever a woman is obligated in, he is obligated in too. Meaning, the question is whether I learn from a woman to obligate him in what a woman is obligated in, or I learn from a woman to exempt him from what a woman is exempt from. Where is the practical difference? Rounding the corners of the head. What happens there? In that case, a woman is not exempt; it simply doesn’t apply to her. Now, if I need to learn from a woman that whatever a woman is exempt from a slave is also exempt from, I can’t learn it from a woman, because a woman is not exempt from rounding the corners of the head. It simply doesn’t apply to her. But a slave, for whom it does apply, would then be prohibited in rounding the corners of the head, even though a woman has no such prohibition. Right? Because I need a source from a woman to teach about the slave that he is exempt. I don’t have exemption in the case of a woman; in the woman’s case it simply doesn’t apply, there is no verse exempting her. So if there were a woman to whom this did apply—like the slave, say—yes, if there were a woman to whom it did apply, then there really would be a prohibition. But if I understand that I learn the source for why a slave is obligated from a woman, there is no source in a woman’s case that she is obligated regarding rounding the corners of the head; it simply doesn’t apply to her, so the Torah didn’t speak about it, neither positively nor negatively. So I have no source to obligate the slave regarding rounding the corners of the head. I have no source to exempt and no source to obligate. So in the end it remains with the default. What should I say? If I say he is a Jew and I just need a source to exempt him—then I have no source to exempt, so he is obligated. If I say no, he is a gentile and I need a source to obligate him—then I have no source to obligate him, so he remains exempt. Right? So basically I’m saying the same thing here. Here, regarding agency, the question is whether I need “so shall you separate, you also” in order to exclude a gentile from agency, or whether I need an inclusion of a gentile into agency. Is a gentile fundamentally subject to agency and I just need something to exclude him, or no—a gentile fundamentally does not belong to agency unless he was included, and I have nothing that includes him. The practical difference will be exactly in a place where I have no inclusion and no exclusion, but on the other hand I also have no inclusion that would include the gentile. Then he will remain essentially barred according to Tosafot, because I need an inclusion for him to belong to agency at all. So it starts from the fact that he is not within the framework, and therefore in terumah he does not belong. But since the source for the law of agency is from terumah, I have nowhere from which to include the gentile. It comes out that in the end there is no inclusion for the gentile. And of course in bills of divorce too, the gentile also does not belong there; he is also not within the framework. So the source from bills of divorce also doesn’t help. It could be that with sacred offerings, yes, depending on how we understand a gentile’s connection to offerings. Because here there are meal-offerings that a gentile perhaps can bring, and then he may be considered within the framework or not within the framework. But the Gemara says that agency cannot be learned from offerings alone. You need divorce, and maybe even terumah as well—at least according to Rabbi Shimon—in order to create the mutual necessity between them. To learn the law of agency you need all three. Therefore, if I have two of those three where the gentile is not within the framework, then with regard to a gentile I have no source from which to learn the law of agency for a gentile. What? It could be that two are enough, but still I don’t even have two. In divorce too he is not within the framework. Okay. Basically you need three according to Rabbi Shimon; that’s why I said this is according to Rabbi Shimon. Because according to Rabbi Shimon, in terumah we would not learn the law of agency from divorce and offerings. There is mutual necessity there. Why? Because this is not a case of sharecroppers and guardians. That is the mutual necessity. Therefore in terumah you need an additional source for the law of agency. Right. But then it really comes out that according to—what then according to Rabbi Shimon, this is obvious, right? According to Rabbi Shimon the source for the law of agency is “so shall you separate, you also.” Since a gentile is not relevant within the framework of terumah, it is clear that from there the gentile was not included into agency. And in any case there is an essential barrier. It starts from the fact that he is not within the framework and ends in an essential barrier. What happens according to the Sages? That is not a simple question. The Sages say that the gentile is indeed within the framework of terumah. That is the dispute with Rabbi Shimon, right? The gentile is indeed within the framework of terumah for himself. Okay? So if that is so, then you can’t say that the gentile was not included from “so shall you separate, you also.” Because if I learn the concept of agency from “so shall you separate, you also,” and I have nothing excluding a gentile, then the only question is whether he is within the framework or not. And according to the Sages he is within the framework. So what was included from there includes the gentile as well. So do we, according to the Sages, still remain with an essential barrier? It must be yes. In principle first of all it must be yes. Because after all that was Tosafot’s difficulty. There is a contradiction between the sugyot, right? In the sugya in Gittin there is an essential barrier; in our sugya it is only because he is not within the framework. So for Rabbi Shimon he explained to me that because he is not within the framework, an essential barrier is created. What happens in the opinion of the Sages? In the opinion of the Sages that won’t work. So then the difficulty of contradiction between the sugyot comes up. Okay? Because according to the Sages it comes out that the barrier is not essential—that’s what Tosafot says. Therefore they challenged Rabbi Shimon: what do you do with “so shall you separate, you also”? Because the assumption is that “you also” also does not teach an essential barrier. Otherwise there would be no difficulty on Rabbi Shimon. So they said, okay, Rabbi Shimon gives an answer and then it fits. But the question on Rabbi Shimon came after the conclusion in the opinion of the Sages. So the conclusion in the opinion of the Sages is that the barrier in our sugya is not an essential barrier. So how does that fit with the sugya in Gittin? The answer is that this is the explanation according to the Sages. According to the Sages the gentile is within the framework of terumah. Therefore they say: “so shall you separate, you also”—just as you are members of the covenant, so too your agent must be a member of the covenant. According to Rabbi Shimon there is no such analogy between us and our agent. But the Sages say that “so shall you separate, you also” comes to exclude a gentile. What does it mean to exclude a gentile? Not to include a gentile. But the fact that a gentile is not included is not because he is not within the framework, as in Rabbi Shimon, because the Sages hold that he is within the framework. Rather, simply because the verse itself says: just as you are members of the covenant, so too your agent must be a member of the covenant. So even according to the Sages this does not exclude the gentile; it only does not include him, just as I said in the previous lecture as well. The difference between the Sages and Rabbi Shimon is why the gentile is not included. According to Rabbi Shimon the gentile is not included because he is not within the framework, and therefore he has no agency in terumah, and if the source is from terumah, I have nowhere from which to learn the gentile. But according to the Sages he does belong to terumah, because he is within the framework of terumah. So why don’t we learn the gentile? Rather, no—because it says “so shall you separate, you also”: just as you are members of the covenant, so too your agent must be a member of the covenant. The Torah itself qualifies the concept of agency, that someone who is not a member of the covenant was not included. According to Rabbi Shimon, he does not learn “so shall you separate, you also” to qualify the concept of agency. But in the end, according to his view too, it comes out the same.
[Speaker B] Wait a second, isn’t the verse itself not for agency? The verse itself is for the framework of terumah itself. Not from the verse.
[Rabbi Michael Abraham] Where do we learn that he can separate terumah from?
[Speaker B] Not from the verse. From where? Who knows?
[Rabbi Michael Abraham] I don’t know, another source.
[Speaker B] But that’s what it says here: “you also.”
[Rabbi Michael Abraham] No, this is talking about agency. “Just as you are a member of the covenant, so too your agent is a member of the covenant.” So that was one of the possibilities we raised in the first or second lecture. “Just as you are a member of the covenant, so too your agent is a member of the covenant” means that it’s really not “just as you are a member of the covenant” in the sense of: are you able to separate terumah? Is that only a Jew? Then likewise your agent too is only someone who can separate terumah. So what it says here, basically, is that the principal too has to be a Jew. Or in other words, a gentile is not within the framework of terumah. So what do the Sages do with that? That’s basically what you’re asking. What do the Sages do with that? The Sages do not learn it that way. “So shall you separate, you also” means: just as you are a member of the covenant, so too your agent is a member of the covenant in the laws of agency. In the laws of terumah, both the Jew and the gentile are in the framework. From where do we learn the—
[Speaker B] the gentile? There is another source.
[Rabbi Michael Abraham] Yes, another source. But what one can learn from here—and the later authorities point this out—is what happens if the principal is a gentile and the agent is a Jew? Does that work? A gentile cannot be an agent for a Jew. Can a Jew be the agent of a gentile? So I said that if the barrier is essential, it is not likely. Logically it is not likely, as a matter of reasoning. Why? Because this whole essential barrier is because we don’t belong to the same group. We are not similar, so one cannot act on behalf of the other. If he is not similar to me, then I am not similar to him either. But then I said that this is not certain, because every Jew has a little gentile in him, right? We talked about that. So it’s not certain. So they say yes, but look at the wording of the Gemara: “so shall you separate, you also”—just as you are a member of the covenant, so too your agent is a member of the covenant. Now what does that mean, “just as you are a member of the covenant, so too your agent is a member of the covenant”? Just as you need to be members of the covenant, so too your agent must be a member of the covenant. From which law? From the law of terumah? Just as you—the one who separates terumah—can only be a member of the covenant, so too his agent can only be a member of the covenant? We saw that no, because the Sages themselves hold that a gentile too can separate terumah. So “so shall you separate, you also”—“just as you are a member of the covenant”—is not speaking about the laws of terumah, because in the laws of terumah one does not specifically have to be a member of the covenant. It is speaking about the laws of agency. But if so, that is exactly the answer to your question. If so, it means that the principal also cannot be a gentile, not only the agent. The principal too has to be a member of the covenant. In other words, “just as you are a member of the covenant” is speaking about the laws of agency, not the laws of terumah. In the laws of agency, a principal can only be a Jew, and consequently an agent too can only be a Jew. By the way, where do we know that the principal has to be a Jew? That is an assumption of the Gemara. After all, the verse “so shall you separate, you also” comes to include; it says just as you are members of the covenant, so too your agent must be a member of the covenant. But from where do we know that we are members of the covenant? From where do we know that the principal can only be a Jew? I don’t know. Maybe that is—
[Speaker B] obvious?
[Rabbi Michael Abraham] Why is that obvious?
[Speaker B] Because what is the verse talking about—“you also,” a member of the covenant.
[Rabbi Michael Abraham] No, I’m talking about “so shall you separate, you also,” that the agent has to be like you. Okay, now if I am a gentile then the agent is also a gentile, and if I am a Jew then the agent is also a Jew—fine. But who said that if I am a gentile I cannot appoint an agent? According to one of the approaches we said, that basically—
[Speaker B] a gentile is not considered within the framework of this matter of terumah, only for his own terumah, so he won’t be—it’s not enough to be considered within the framework.
[Rabbi Michael Abraham] Yes, but then—but that isn’t Tosafot’s view, because then it comes out that in the end the gentile is disqualified because he is not within the framework, not because of an essential barrier. But Tosafot’s whole difficulty was that there is some essential barrier here, there is a contradiction between the sugyot. We talked about how Tosafot is Ashkenazi—he makes the Talmud into one wheel, so to speak. Meaning, he doesn’t make disputes between sugyot.
[Speaker B] Here, meaning according to that approach, like Tosafot, then the gentile could be the principal. Right, right.
[Rabbi Michael Abraham] But here according to Tosafot it comes out that the principal also cannot be a gentile. And really it is interesting where that comes from. According to Tosafot, when he reads the Gemara, it somehow comes out as self-evident that the principal cannot be a gentile. The novelty is that since the principal cannot be a gentile, the agent also cannot be a gentile. So that the principal cannot be a gentile—that is obvious, that is a given. It doesn’t come from here; it is an assumption of the Gemara, it doesn’t come from here. Where does that come from? Why assume that the principal can only be a Jew? I don’t know. And if you already have a source for that, then why doesn’t that source also teach about the agent? How—yes—if we know that the principal cannot be a gentile, then I don’t know, I have some source that says agency applies only among Jews. Fine, then learn from there also that an agent can only be a Jew and not a gentile. Why is it that I know from another source that the principal has to be a Jew, but that the agent has to be a Jew comes from the verse here? Ah—now suddenly I’m thinking—it could be, it could be: “so shall you separate, you also,” so they tell me the agent has to be like the principal. What does that mean? If the principal can be either a Jew or a gentile, then what does it teach me that the agent should be like the principal? It must be that there is some restriction on who can be a principal, and then from this very verse one can learn both that the principal has to be a Jew and that the agent has to be a Jew. Do you understand? In other words—oh—that could be an idea, I hadn’t thought of it. Meaning, the verse says “so shall you separate, you also.” And the Sages interpret it: just as you are members of the covenant, so too your agent is a member of the covenant. Meaning, “so shall you separate, you also” comes, according to the Sages, to say that the agent cannot be just anyone. He has to be like the principal. And let’s say the principal can be just anyone—both a gentile and a Jew. Then when you say the agent can be like the principal, you’ve said nothing. What did you come to teach? He can be like the principal—okay, he can be anything. He has to be a person and not a monkey. What did you mean to say here? If there is no restriction on the principal, then saying that the agent must be like the principal—what does “like the principal” mean? But if anyone can be a principal, then anyone can also be an agent.
[Speaker B] That is also a restriction. What restriction?
[Rabbi Michael Abraham] That a gentile can send a gentile and a Jew—
[Speaker B] No, then you are assuming another assumption.
[Rabbi Michael Abraham] That’s true, you are indeed assuming another assumption: that the agent must specifically be like the principal, not just beyond belonging to agency generally. No, Tosafot apparently assumes not. Rather, from Tosafot’s perspective all human beings are one group. Jew and gentile—that is not relevant to agency. Since both Jew and gentile belong to agency, then anyone in that group can be the agent of anyone else in that group—also a Jew for a gentile and a gentile for a Jew. Therefore Tosafot says: if the Torah comes and tells me that the agent has to be like the principal, and with regard to the principal there is no restriction at all on who can be a principal, then the verse is superfluous. So apparently, says Tosafot, the Torah is hinting to us here that the principal too can only be a Jew, and consequently the agent too can only be a Jew.
[Speaker B] And Tosafot assumes that the gentile cannot be what—essentially? There is an essential barrier to being an agent. Because that essential barrier is supposedly due to the fact that he does not belong to the same group as the Jew. Basically, as I said, there is this restriction.
[Rabbi Michael Abraham] No, but that comes from the verse. So I am asking how that comes from the verse. The result is that because we are not of the same kind, neither can be the other’s agent. And I’m asking: before I know that, how does that come from the verse? You tell me the verse says that the agent should be like the principal. Okay, but if the principal can be either a Jew or a gentile, then the agent can also be either a Jew or a gentile. You are proposing that this comes from pure logic, not from the verse, but clearly that is not correct. The Gemara derives it from the verse, “so shall you separate, you also.” Everything I explained about our not belonging to the same group or not being similar—that is to explain what the verse is telling us, not in place of the verse. It is not logic on its own, but an explanation of the conceptual content of what the verse teaches us. Okay? Now look, I want to show you several sugyot where you can see this principle that I just stated: that in the end, “not within the framework” produces an essential disqualification, and agency in terumah really is learned from “so shall you separate, you also.” Contrary to the plain sense of the Gemara, where agency in terumah is learned from offerings and from bills of divorce, and “you also” comes to exclude a gentile. So I said: no, that’s not so. Rather, “so shall you separate, you also” is the source for agency in terumah. Once that is the source for agency in terumah, I then exclude the gentile—according to Rabbi Shimon because he is not within the framework, and according to the Sages because “so shall you separate, you also” means: just as you are members of the covenant, so too your agent must be a member of the covenant. In both cases it is a qualification so that the gentile not be included, not that the gentile be excluded. Right? That is basically my claim. Both according to the Sages and according to Rabbi Shimon. But then it comes out that the source for the law of agency in terumah, both according to the Sages and according to Rabbi Shimon—according to Rabbi Shimon this is clear, it is stated in the Gemara—and also according to the Sages, is “so shall you separate, you also.”
[Speaker B] And then this thing—why did the Gemara come to the conclusion that we learn it from offerings?
[Rabbi Michael Abraham] It didn’t come to the conclusion that we learn it; it raised a difficulty.
[Speaker B] No, but it reached a conclusion.
[Rabbi Michael Abraham] What conclusion? No conclusion. Which conclusion?
[Speaker B] That we learn it from one through the other two.
[Rabbi Michael Abraham] It would have been possible to learn it from both, so why do I need “you also”? For exclusion. To say—not a gentile. But I said: what do you mean, to say not a gentile? “You also” does not come to exclude; it comes to include. So I say no, there is mutual necessity in the structure. In principle it would have been possible to learn from there, but from where was it actually learned? “So shall you separate, you also.” He asks why—after all, it could have been learned from there. The answer is: because otherwise I would not know that a gentile is not subject to agency. Therefore the Torah wrote a source for the law of agency—not to exclude a gentile, but for the law of agency in terumah—from “so shall you separate, you also.” Because without that, one could not have excluded a gentile. So now, because of that, the Torah says that this is the source for the law of agency. We could have learned it from the other two, but now we learn it from the other two? Right, we could have learned it from the other two were it not necessary to leave out the gentile; then we would have remained with that and there would have been no verse in terumah. But since it was necessary to leave out the gentile, a verse was written in terumah. And what does the verse say? Not that the gentile is disqualified. The verse says that from here we learn the law of agency. Consequently a gentile is disqualified, and therefore it had to be learned from here, even though in principle it could also have been learned from there—from offerings and bills of divorce. So in the end, I ask you: from where is the source for the law of agency? From “so shall you separate, you also.” That’s what I’m saying. It is not the plain sense of the Gemara, but on balance that is what comes out, at least if we conclude that the barrier regarding a gentile is an essential barrier. If we understand that the barrier regarding a gentile is because he is not within the framework, then everything I just said is wrong. Right, because if the barrier regarding a gentile is because he is not within the framework, then where is the source for the law of agency from? From offerings and from bills of divorce. And what do I learn from “so shall you separate, you also”? Then indeed “so shall you separate, you also” is superfluous, because the gentile is not within the framework.
[Speaker B] Why can’t you say—
[Rabbi Michael Abraham] that this is according to Rabbi Shimon?
[Speaker B] If you say that a gentile is not within the framework—right—then maybe this whole approach is according to Rabbi Shimon?
[Rabbi Michael Abraham] Which approach?
[Speaker B] That we learn it from offerings and bills of divorce.
[Rabbi Michael Abraham] I’m saying it even according to the Sages. I’m saying according to both. One can learn the sugya in Kiddushin so that both according to the Sages and according to Rabbi Shimon we remain with the idea that the gentile is not within the framework. So I asked: then why do I need the verse “so shall you separate, you also”? That’s what the verse says—what Yosef said earlier. The verse itself says “so shall you separate, you also”: just as you belong to terumah, so too the agent has to belong to terumah. And the verse teaches the novelty that a gentile’s connection to terumah, according to the Sages, is not enough to count as being within the framework, because it is only his own terumah. But in the end the disqualification of a gentile is because he is not within the framework, and that is the plain reading of the Gemara. Maybe it’s pilpul, but that is the plain reading of the Gemara, because otherwise the question on Rabbi Shimon immediately afterward is not understandable. If according to the Sages the disqualification is an essential disqualification, then what is the Gemara asking: what does Rabbi Shimon do with the verse “so shall you separate, you also,” when according to his own view the gentile is not within the framework? It is connected. The gentile is not within the framework, so I would think he is not within the framework of terumah, but I might still think he belongs to agency. The plain reading of the Gemara really is that. The plain reading of the Gemara is that the disqualification is one of not being within the framework, both according to the Sages and according to Rabbi Shimon. This whole approach I just gave is not the plain reading of the Gemara, but it is what comes out in the accounting, and that is probably what Tosafot learned. Because Tosafot says that the sugya in Gittin and the sugya in Kiddushin are not supposed to contradict each other, so in both of them the conclusion is that the disqualification of a gentile is an essential disqualification, not because he is not within the framework. And then all these calculations I made, both according to the Sages and according to Rabbi Shimon, are because the gentile was not included. According to Rabbi Shimon it starts from the fact that he is not within the framework; according to the Sages it ends with the fact that he is not within the framework. The verse “so shall you separate, you also” teaches that one has to be within the framework; it does not come out from logic. That is what the verse teaches. The verse also teaches not only that one has to be within the framework, but that one has to be fully within the framework; and being within the framework of terumah according to the Sages is apparently not enough of being within the framework for him to be able to be my agent. That was one of the possibilities we raised in the Kiddushin sugya. Now if that is indeed so, where is the practical difference between Tosafot’s view, that our sugya ends in an essential barrier, and the simple reading of the sugya, that it is because the gentile is not within the framework? When I ask you where the source for the law of agency is from—that’s not the practical difference but what the implication is. When I ask you what the source for the law of agency is, or agency in terumah, or agency in general, then according to Tosafot the source is “so shall you separate, you also” to include your agent. To include your agent; and “your agent” as members of the covenant, just as you are members of the covenant. Notice: “to include your agent” is one derivation; a second derivation is “just as you are members of the covenant, so too your agent is a member of the covenant.” Don’t read it together—“just as you, to include your agent, to say just as your agent is a member of the covenant, so too you are a member of the covenant.” Rather: to say just as you are members of the covenant, so too your agent is a member of the covenant, meaning it comes only to exclude a gentile. No—it comes to include the concept of agency. “So shall you separate, you also”—to include your agent—that is the first novelty. Consequently, just as you are members of the covenant, so too your agent is a member of the covenant. Meaning, according to Tosafot, “so shall you separate, you also” comes to include your agent. The source for the law of agency, at least in terumah and perhaps in general, is from “so shall you separate, you also”; it is not a source to exclude a gentile. There are three sources, right. Both from here and from the other two places, but I’m saying more than that: since this source is needed in order to exclude a gentile, perhaps it is even the central source in the end. Because it basically gives me the whole picture. From the previous two sources alone I would not get the full picture. Okay? Why am I saying this? Because in several places one can see further support in Rashi or in the medieval authorities. What? In the matter of Yair and Ham. Why? In the matter of learning this—that there are two verses and these two derivations that contain agency. Ah, yes, in a moment we’ll see. So in the Gemara in Bava Metzia 96 it says: If one says to his slave, “Go and be borrowed together with my cow,” what is the law? Is this a case of borrowing with the owner present? We discussed that sugya last semester. “A person’s agent is like himself,” but there are certain places where nevertheless the Gemara distinguishes between the person and the agent. Is a person’s agent like himself or not? Right? So: if one says to his slave, “Go and be borrowed together with my cow,” what is the law? Is this called borrowing with the owner present, in which case the borrower is exempt in a case of accident? Right, in borrowing with the owner present the borrower is exempt in a case of accident. And what happens if it is not the owner who is borrowed together with the cow, but the slave? He sends the slave to be borrowed together with the cow to someone who borrowed the animal. The Gemara says: this should be asked according to the one who says a person’s agent is like himself, and this should be asked according to the one who says a person’s agent is not like himself. That itself is an interesting formulation. Is there really an opinion that says a person’s agent is not like himself? What, is the law of agency disputed somewhere? I know of no such place. “A person’s agent is not like himself”? Yes. Clearly the law of agency certainly exists; it’s just that the agent is not literally like himself. Okay? What does that mean—where would the difference be? In certain places, like halitzah, as we saw, and in other places where it cannot be done through an agent even though in principle a person’s agent is like himself. As we saw also with commandments: an agent to put on tefillin in my place, or an agent to sit in a sukkah in my place—he can’t do that. Why not? A person’s agent is like himself. A person’s agent is like himself, but not really completely like himself. There are certain things where what the agent does counts as if the owner did it, but it is not identity, it is not exactly the same thing. Right? So: this should be asked according to the one who says a person’s agent is like himself, and according to the one who says he is not like himself. This should be asked according to the one who says a person’s agent is like himself: that applies only to an agent who is subject to commandments, but a slave, who is not subject to commandments, no. Or perhaps even according to the one who says a person’s agent is not like himself—that applies only to an agent, but a slave, the hand of a slave is like the hand of his master. He said to him: it stands to reason that the hand of a slave is like the hand of his master. Meaning, if I say a person’s agent is like himself, that refers to an agent. But a slave is worse than a regular agent because he is not obligated in commandments. So what if he is not obligated in commandments? Then is he not within the framework of commandment? Of this borrowing? Right, I think so too.
[Speaker B] But he is a slave.
[Rabbi Michael Abraham] Ah, before that—we’ll see in a moment—that is the initial assumption. I also think the simple reading of the Gemara is that this is an essential barrier. Because if it were about being within the framework, what is the problem? Is a slave not within the framework of borrowing with the owner present? Doesn’t he know how to lend? Can’t he lend things? It’s not—here, in terms of the substance of the matter, there is no question of being within the framework or not; these are monetary laws. Okay? So when you say—and even the wording, it does not say that he is not within the framework; it says he is not subject to commandments. “Not subject to commandments” means he is like a gentile, and he has an essential barrier. Right? That—that is the plain reading of the Gemara. Again, this is not yet the conclusion, this is the initial assumption. In a moment we will see what the conclusion is. But the initial assumption was: I would have thought that according to the one who says a person’s agent is like himself, a slave maybe not. Or perhaps even according to the one who says a person’s agent is not like himself, that applies only to an agent, but a slave—the hand of a slave is like the hand of his master.
[Speaker B] Here this is basically not within the framework of agency?
[Rabbi Michael Abraham] Right, exactly. Meaning, according to the one who says a person’s agent is not like himself, that is in agency, but a slave is like the hand of his master because he is his property. So now, if I ask what the barrier of a gentile or a slave to being an agent is, from the Gemara here—it is quite clear that this is an essential barrier. Right? Because on the side that this involves the laws of agency, they say to me: but a slave maybe not, because he is not—he is not obligated in commandments. On the other side he is not connected to the sugya at all, because this is not speaking about the laws of agency, so it is irrelevant.
[Speaker B] The term “not subject to commandments”?
[Rabbi Michael Abraham] No, he is not—he is obligated in commandments, only like a woman.
[Speaker B] Why wouldn’t that—why would that prevent him from lending his cow? Lending my cow?
[Rabbi Michael Abraham] No, he can lend his cow, but there will not be a law of borrowing with the owner present here, because he is not my agent. Ah, okay. He is not my agent. Why is he not my agent? Because he is not obligated in commandments. So what? The Gemara understands: borrowing with the owner present. Not like a gentile, where a slave is not—he has some essential barrier like a gentile. Right? Like what? Here the essential barrier is like the gentile’s case. So I’m saying this points in the direction of an essential barrier, not merely not being within the framework. Right? It is also true that the Gemara here is only raising a question. The Gemara does not say in the end what the conclusion is, but the side raised in the Gemara—and perhaps this is exactly what the Gemara is deliberating—whether the barrier to agency in the case of a slave is an essential barrier or a barrier of not being within the framework. Okay? Or I would even put it differently: it may be that in the case of a gentile it is certainly an essential barrier, and in the case of a slave the question is whether he too has an essential barrier or whether he is a member of the covenant. That is the question. He is not obligated in commandments, but is that an essential barrier like a gentile? Or no, he is a member of the covenant. Meaning, he does belong in some commandments, as we saw. It probably depends on whether he is an upgraded gentile or a diminished Jew. But perhaps that itself is what the Gemara is deliberating. So look at Rashi here. “A slave, who is not obligated in commandments”—Rashi says: “And agency we derive in Bava Metzia 71 from ‘you, also you’ to include your agent, for we require similarity to the principal, that his laws apply to him. And the law of borrower does not apply to this one, and as lender too he has nothing without his master, for he has nothing without his master.” What is Rashi explaining here?
[Speaker B] Basically, not within the framework.
[Rabbi Michael Abraham] Right? Rashi says something very interesting. On the one hand he says that the slave is not within the framework. But on the other hand he ties it to the verse “you, also you.” But in our Gemara “you, also you” is an alternative to not being within the framework. The Gemara asks: why do I need the verse “you, also you,” after all he is not within the framework, so I don’t need the verse. What does Rashi say? After all, the slave is not within the framework of borrowing. So what if he is not within the framework? There is a verse that disqualifies one who is not within the framework. How did Rashi understand it? Rashi understood that the verse “you, also you” is the source for the law of not being within the framework. Right? Exactly. That is the other side. So it comes out that according to Rashi, in the end we learn it from “you, also you.” By the way, according to Rashi the accounting is indeed like Tosafot’s. Because he says: “And agency we derive from ‘you, also you,’ to include your agent.” So this too is the source of the law of agency, and nevertheless he learns that we require similarity to the principal, that he be within the framework. So Rashi too understands that “you, also you” does not come to exclude; it comes to include. That is the simple sense of the verse—on that one cannot argue. It is just that Rashi does not learn like Tosafot in this respect: Rashi understands that “you, also you” does not come to establish an essential disqualification, but to establish a disqualification of not being within the framework. “Not within the framework” is not the result of reasoning; it is the result of a verse. That is the verse “you, also you.” And one who is not within the framework was not included. But one who is within the framework was included. So there is no essential barrier here; in the bottom line it is not like Tosafot.
[Speaker B] Okay? What’s the practical difference?
[Rabbi Michael Abraham] That if the gentile is within the framework of something, then he can do it. Okay? That is apparently what comes out here. One more point to note—look at Rashi’s wording. He says: “that his laws apply to him.” Whose laws? The principal’s. He has to be similar to the principal, such that the principal’s laws apply to him. This is not exactly “not within the framework.” You are not discussing whether he belongs to the framework of the thing for which he is being sent; you are discussing whether he is similar to the principal. Right? Now, how exactly to classify this, I’m not sure. Because you could say that since certain laws do not apply to the agent but do apply to the principal, then he is not similar. Since he is not similar, he cannot be an agent even in laws for which he is within the framework. Because after all he has to be similar to the principal. Do you understand what I’m saying? So it’s not entirely clear here. Rashi seemingly looks like the view opposite to Tosafot. But when you look more closely, this is not exactly the essential barrier we spoke about until now; rather, there is some analogy between the agent and the principal. Right. What the verse teaches me is that the agent has to be within the framework of the matter. It doesn’t say the law of terumah does not apply to him, but rather the principal’s laws apply to him. Meaning, he is not obligated in commandments like the principal. Seemingly, according to this, a woman could not be the agent of a man, because like the slave she is obligated in commandments exactly like the slave. And if his laws do not apply to her, then a woman too could not be the agent of a man. And we’ve never heard that anywhere. It could be that he holds there is a difference between—after all—
[Speaker B] the slave is a man.
[Rabbi Michael Abraham] In principle all the commandments apply to him; he is just exempt. In the case of a woman, it may be that those commandments are not relevant to her, the commandments from which she is exempt. So that does not make her different from the man; she is different from the man in that she is a woman, not in the scope of the commandments she is obligated in. That is a result. The result of her being a woman is that she is obligated only in some commandments. If she were a man, she would be obligated in everything. The slave, despite being a man, is obligated only in some commandments. So indeed the difference between him and the principal is in the commandments. In the case of the woman, the difference regarding commandments is a consequence. First of all there is a physiological difference, a gender difference, whatever you want to call it today—that’s delicate. Okay? The result is that there is a difference regarding commandments. And perhaps that is not called a difference. And therefore a woman can be the agent of a man, because that is still considered that his laws apply to her. What is the reasoning—
[Speaker B] really, to say in principle that if an agent is not similar to the principal, why can’t he be my agent?
[Rabbi Michael Abraham] He can’t be my representative—what do you mean? It is considered that I did it, but he is not of my type. So what? Then he performs an action for himself, but he cannot do it for me. After all, the whole novelty of agency is that really I am supposed to do the act, and when someone else does it, it is considered as though I did it. That works only if he is the same sort of thing as I am. Then I say, okay, as far as the Holy One, blessed be He, is concerned, if he did it that is as good as if you did it. And that is only if he belongs to the same group, if he belongs to the same kind of thing. But if he is something else—the Holy One, blessed be He, wants a Jew to do it; the Holy One, blessed be He, wants someone obligated in the full set of commandments to do it—then who says that when he does it that is also good? Here this was sort of the issue of—
[Speaker B] whether the commandment itself is a commandment to bring it about in a legal way or in an essential way—that is, whether this agency is something that—what is—
[Rabbi Michael Abraham] the thing we talked about: the question, when I speak about agency, who performed the act? Did the agent perform the act and only the result is credited to the principal, or is it considered that the principal performed the act? One can connect this to the idea of an extended hand, because if you say the agent performed the act, he does not need to be like me. He performed the act, fine; now they tell me the result is credited to me. But if they say that when he performed the act it is considered as if I performed the act, then he has to be like me. I’m not sure it must work that way. One could also say that the result will not be credited to me if he is not similar to me. Fine. So it really is strange—
[Speaker B] about Rashi, that—what? Here it seems that Rashi distinguishes between the two issues: not within the framework and an essential matter.
[Rabbi Michael Abraham] Right. No, in Rashi apparently, if I understand correctly, Rashi really understands that “not within the framework” is an independent reasoning. “Not within the framework” does not come from the verse. From the verse comes the connection between the agent and the principal. And that is not the same thing as “not within the framework.” No, it is an essential barrier for someone who is not similar to the principal. But that is not the same as not being within the framework—say, if this agent were indeed within the framework of the matter to which he is being sent. According to Rashi he still could not be my agent because he is not similar to me, because he is not similar to me.
[Speaker B] And if there were identity, why is that different from—what?
[Rabbi Michael Abraham] No, what I’m saying is that this is an essential impediment, but not like what we learned until now, where in the case of a gentile there is an essential impediment. No. In someone who differs from the sender, there has to be a connection between the agent and the sender. If he is different from me, then there is an essential impediment to his being my agent. And I said: with a woman, it is accepted that a woman can indeed be an agent for a man, so when is that considered similar to the sender and when not? Right, are the priests agents of Heaven or our agents when they offer sacrifices? We cannot offer sacrifices. So how can the priest be my agent? Because in principle I do belong; we also saw this above, if you remember, that a man can be an agent for a woman even though he does not have the laws of divorce applying to him; we discussed that above. But because a man belongs in principle to the category of divorce law, as Ayelet HaShachar says, yes, he belongs to that whole section of divorce law. That is what it means. A woman too belongs in principle to all the sections, except that simply because she is a woman, then no; but in terms of her group affiliation, she belongs to the group of Jews. If she were a man, she would be obligated in all the commandments. A slave, in terms of his affiliation, does not belong in part of the commandments. He does not belong to the Jewish group that is obligated in commandments. In that respect he resembles a woman, in the sense that he is obligated in the same commandments as a woman, but for a different reason. In the case of a woman, she is fully Jewish, and all the commandments are relevant to her; the Torah exempted her because she is a woman, not because she is not Jewish. The slave is exempt because he is not Jewish, not fully Jewish. It just happens to be the same commandments from which a woman is exempt, but that is because he is not Jewish, not fully Jewish. And that is called not being similar to the sender. With a woman, it is not called that she is not similar to the sender. Apparently that’s what one has to say, otherwise it is hard to understand.
Look at Rashi in our passage, “the school of Rabbi Yannai.” Rashi says: “That is why ‘also’ was written, to include an agent, because it was necessary to compare him to the sender, to say that a gentile is invalid.” That is in our passage. The other one was in Bava Metzia. What is written here? The same thing, right? Several new points are written here. Rashi is very brief and compact, but several new points are written here.
First point: why was “also” written to include an agent? Meaning, Rashi understands that this verse, “so shall you also set apart,” is indeed the source for the law of agency. It comes to include an agent, not just to exclude a gentile. “So shall you also set apart” — to include your agent. That is the first point.
Second point: just as you are members of the covenant, so too your agent must be a member of the covenant. But there is here a source for the law of agency, like Tosafot, just as in the end we also inferred in Rashi in Bava Metzia. So “also” was written to include an agent.
Now more than that: why was it written? But agency could have been derived from sacrificial law and divorce documents. That is what bothers Rashi: “because it was necessary to compare him to the sender,” just like everything I said. So this is really the source for the law of agency. Do not read the Gemara simply, as if the source of the law of agency is from sacrificial law and divorce documents, and from here we merely exclude the gentile. No — this is the source for the law of agency. You only ask why it is needed, since it could have been learned from sacrificial law and divorce documents. The answer is: because it was necessary to compare him to the sender, to exclude the gentile. That is why they wrote here a source for the law of agency.
And more than that — that is the second point. The third point in Rashi is that the exclusion of the gentile is by comparison to the sender, exactly as he wrote in Bava Metzia. Not because he is not included in the Torah’s legal framework, but because he is not in the same commandments as the sender. Even in matters where he is included in their legal framework. So according to this, it comes out that according to the Sages, who say that a gentile is included in the legal framework of terumah — a gentile is indeed included in the legal framework of terumah, right? Even so, the gentile can still be excluded by “so shall you also set apart.” Why? Since he does not belong to all the commandments the way I do; there are commandments he does not belong to, like divorce documents. So even in matters where he does belong, and even if we think he belongs exactly as I do — his belonging in terumah is complete; we raised several possibilities — still he cannot be my agent, because it says “so shall you also set apart.” And that is what the Gemara says in our passage.
What does it say in our passage? Since he is not included in the legal framework, why do we need “so shall you also set apart”? In order to exclude the gentile. That is what the Gemara says in our passage according to the Sages. How does that exclude the gentile? Rashi says: because the gentile is not similar to me in the structure of the commandments; he is not subject to commandments. He does not belong to the same commandments as I do. Therefore, even in matters where he is included in their legal framework — and in terumah he is included according to the Sages — even in matters where he is included in their legal framework, he still does not qualify. There is an essential impediment. What is that essential impediment? The comparison between the agent and the sender. And that comparison is based on a difference in commandments. So this is not the reasoning of “not included in the legal framework.” Because the reasoning of “not included in the legal framework” says only that in a matter that is not part of his legal framework, he cannot be an agent. The comparison says that once there are differences between us, then even in matters where there is no difference, there too he cannot be an agent. All of that is written in Rashi in the few words he writes here.
[Speaker B] Already in the earlier Rashi about the cow, he did mention this comparison in the fact that the slave is not a member of the covenant. Exactly. But that’s not about differences in general.
[Rabbi Michael Abraham] You’re saying that he focused on the fact that he is not like me even in the specific law being discussed there. Yes, that’s true. Why did he need that? What he said there is rather forced. You’re asking: can’t he borrow? In monetary matters, after all, those apply to a gentile too. So Rashi is pushed to say that even in the laws of borrowing with the owner present, the gentile does not belong, or the slave does not belong. And I’m asking: why are you forced into that? Even if he did belong there, still, since there is… It may be that what Rashi is saying is that if the slave were like me in monetary law, then maybe that really would be a good question. I hadn’t actually thought of that. Maybe Rashi would understand that if so, then the slave really is like the sender.
[Speaker B] If in monetary law…
[Rabbi Michael Abraham] If he belongs in monetary law, then in what is the slave not included? He is exempt from commandments like a woman, fine, just like a woman, but a woman is considered included in everything. Right? And the gentile too is considered not only included in the legal framework, but also similar to the sender; he can be an agent. Then a slave could too. So you have to tell me: no, no — a slave is not like a woman. There is something about a slave that is essentially different from the sender. But really you’re right that he could have said this about some other law too, not necessarily this law. That’s a good point; I really don’t know, I hadn’t thought about it.
It also says in Hagigah, it is said regarding misuse of consecrated property — yes, misuse of consecrated property is derived by the verbal analogy “sin-sin” from terumah — and there are several laws there, agency for a transgression and all sorts of things like that. About several matters it says in Torat Kohanim: it is said regarding misuse of consecrated property, “and he sins unintentionally from the holy things of the Lord,” and it is said regarding terumah, “and you shall not bear sin because of it.” What is the reason that a person’s agent is like himself? What does “what is the reason” mean? In terumah, because it is written “so shall you also set apart,” and the master said: “also you” comes to include your agent. Meaning, “so shall you also set apart” is the source for the law of agency in terumah at least. Right? “So shall you also set apart” — we understand from this that “so shall you also set apart” comes to include your agent. That’s the opening.
Now let’s explain what they want to say. “Just as you are members of the covenant, so too your agent must be a member of the covenant.” Rashi says: no, “so shall you also set apart” comes first of all to include your agent. This is a source for the law of agency. In addition, know that an agent who is not compared to the sender was not included here. That is the second point. But still, this is the source for the law of agency. We won’t get into all the…
[Speaker B] Wait, but how does the Gemara do this? I mean, it was fully written already in betrothal and divorce the first time, and then it said: why wasn’t it written generally so we could learn one from the other, right? Betrothal and terumah, betrothal and divorce, things like that. Why did they learn this whole matter from terumah for all the laws of agency?
[Rabbi Michael Abraham] No, it did not learn from terumah all the laws of agency, but terumah is also needed. Terumah too is a source, and once one of the sources does not apply to a slave or a gentile — sorry, a gentile, not a gentile — then you cannot say that a gentile qualifies for agency.
[Speaker B] But the very concept of agency is learned from the verse “also you,” right? Not only from terumah. What’s the question?
[Rabbi Michael Abraham] No,
[Speaker B] It’s strange, because why specifically from the verse about terumah would I say that it applies only to terumah and not to all…
[Rabbi Michael Abraham] But no — explain to me why we need a verse in terumah as well. It’s a kind of mutual necessity. And once there is a verse in terumah, then now you can also learn from it. What advantage do those two verses have over this verse? True, even without this verse I would know the law of agency, but I would not know that a gentile is invalid. So therefore this verse too was written as a source for the law of agency, and afterward also to exclude a gentile, but first of all as a source. Now you have three verses that are sources for the law of agency; from which of them will you learn? Whichever is most similar. In most places, incidentally, agency is actually more similar to terumah than to divorce documents and sacrificial law. Terumah is performing a halakhic act in my name; that is the simplest thing. Therefore — but it doesn’t matter. In any case, even if it is not the only one, it is one of the three that are sources for the law of agency in the Torah. The only question is the meta-question of why the Torah needed to say it. But once it said it, now I have another source for the law of agency.
The Gemara in Bava Metzia 71a was already mentioned: Rav Ashi said, when we say there is no agency for a gentile, that applies to terumah, but in the whole Torah there is agency for a gentile. And Rav Ashi then retracted. Why is terumah different? Because it is written, “you, also you” — just as you are members of the covenant, so too your agent must be a member of the covenant. The agency of the whole Torah as well we derive from terumah. What is this? This is already Gemara, not Rashi. The Gemara says that we learn agency throughout the Torah from terumah. Again, same thing. It does not have to be only from terumah, but also from terumah. Because once there is already a source for the law of agency in terumah, then that is the source for the law of agency in the rest of the Torah as well. True, we could have managed without it were it not for the problem of excluding the gentile. But because of the need to exclude gentiles, the Torah wrote the source for the law of agency also in terumah. Now that it has written it, that is a source for the law of agency. The whole discussion in the Gemara is only why it had to be written; but once it is written, then you have a source for the law of agency from here.
In contrast, the Ran on the Rif asks — the Ran, incidentally, is found in our passage in Kiddushin — “As for that which we say in the chapter ‘Which is Interest’: from where do we know agency throughout the Torah? From terumah: just as you are members of the covenant, so too your agent must be a member of the covenant — which implies that agency comes from terumah.” This is difficult for our passage, because in our passage it seems that the law of agency is not learned from terumah, from “also you.” Not necessarily, because certainly the main law of agency throughout the Torah comes from among those passages, and what is meant here is as follows: we say that agency throughout the Torah comes from terumah in regard to the fact that it does not apply to gentiles, for we learn from terumah, “just as you are members of the covenant,” specifically, as it is written “so shall you also set apart,” and we interpret from it, “just as you are members of the covenant, so too your agent must be a member of the covenant”; so too in the whole Torah. Meaning, he says that in the conclusion we do not learn this from here; he reads the Gemara in its simple sense, that there really is no source here for the law of agency.
Now look at what follows. “And the Rif of blessed memory wrote: this statement of Rabbi Yehoshua ben Korha is because it explicitly teaches there, ‘from here they said: a person’s agent is like himself.’ Nevertheless, not precisely, because we do not learn it from this source alone, but from this together with divorce, as we have written.” We do not learn it only from terumah, but from terumah and divorce together, from this together with divorce. But terumah is still a source — that’s what I said in the previous passage. Terumah is a source. That does not mean that it is learned only from terumah. It is learned from terumah and divorce together. But if in terumah a gentile does not qualify, then you can already learn that a gentile does not qualify for agency at all, because in one of the teaching sources the gentile does not qualify. Not just does not qualify — he was excluded there, not included. In short, we see this in many, many places.
With Maimonides, I want to finish here. Maimonides writes: “A gentile who separated terumah from his own produce — by Torah law it is not terumah,” Laws of Terumot chapter 4, because they are not obligated. Like whom does he rule? Like Rabbi Shimon, right? He rules like Rabbi Shimon against the Sages, that the gentile is not included in the legal framework of terumah. What would we expect Maimonides to say regarding agency for a gentile — is it because of an essential impediment or because he is not included in the legal framework? Not included in the legal framework, right? Because according to Rabbi Shimon that is certainly what comes out. According to the Sages I still don’t know; according to Rabbi Shimon that is certainly what comes out.
Maimonides says in the Laws of Marriage, chapter 3: “All are fit for agency except a deaf-mute, an imbecile, and a minor, because they lack understanding; and a gentile, because he is not a member of the covenant, as it is said, ‘so shall you also set apart,’ to include the agent — just as you are members of the covenant, so too your agent must be a member of the covenant — excluding the gentile. But a slave, although he may become an agent for a monetary matter, is invalid for agency in betrothal and divorce documents because he is not included in that legal framework.” Meaning, in the case of a slave there is a disqualification of “not included in the legal framework”; in the case of a gentile there is an essential disqualification. But you ruled like Rabbi Shimon. So according to…
[Speaker B] the account we gave in Tosafot, right?
[Rabbi Michael Abraham] It has to be like the account we gave in Tosafot, that even according to Rabbi Shimon there is an essential impediment in the gentile. He says explicitly that with a gentile it is an essential impediment, unlike a slave where it is only “not included in the legal framework.” Also in chapter 2 of the Laws of Agents: “A gentile does not become an agent for any matter in the world, and likewise a Jew does not become an agent for a gentile for any matter.” You see, also the reverse: the sender too has to be Jewish. “As it is said, ‘so shall you also set apart’ — just as you are members of the covenant, so too your agent must be a member of the covenant; and the same applies to the whole Torah. And just as your senders are members of the covenant, so too throughout the Torah the sender must be a member of the covenant.” What is this? This too is what I said above, right? He also derives from here that the sender must be a member of the covenant. How? But in the Gemara it sounds the opposite. That the sender is a member of the covenant is taken as a given, and the verse comes to include that the agent too, like the sender, must be a member of the covenant. And from where do you know that the sender is a member of the covenant? I don’t know — presumably some other source. No. Maimonides learns it from this verse. And that is the line of reasoning I gave above. Because if the sender could be either a gentile or a Jew, then when the verse comes and says the agent is like the sender, the verse has said nothing, because if the sender can be anyone, then the agent too can be anyone. So what is it coming to say? After all, it comes to exclude something. So by implication we understand that the sender too cannot be just anyone, and the logic already says that this probably comes to exclude a gentile. So the sender too cannot be a gentile, and the agent too cannot be a gentile. All these medieval authorities (Rishonim), I think, managed to align with my broad approach.
Let’s try to stop here. All right, we’re done here. We’ve finished this passage. I’ll send you, maybe upload to Moodle, the next passage. I’m still debating whether we should get into the separation of terumah by a gentile, the dispute between Rabbi Shimon and the Sages, or move on already. We have several basic passages in the laws of agency — acquisition on another’s behalf and agency, agency for a transgression later in the chapter — so maybe we’ll move there. We’ll see; I’ll write to you on Moodle. The next section is the Mishnah of…
[Speaker B] “One who says to his agent, ‘Go and kill a person.’” This mishnah is a bit strange. This mishnah is at the end of our chapter, on page 42b. The mishnah says as follows: “One who says to his agent, ‘Go and kill a person’ — he is liable, and the one who sent him is exempt. Shammai the Elder says in the name of the prophet Haggai: the one who sent him is liable, as it is said, ‘You killed him with the sword of the children of Ammon.’” This mishnah is somewhat exceptional. Why is it exceptional? Because the rule throughout the whole Torah is that there is no agency for a transgression. That is the rule: there is no agency for a transgression. The Gemara in Kiddushin 42 says: “As it was taught: from where do we know that one who says to his agent, ‘Go and kill a person’ — he is liable and the one who sent him is exempt? Scripture says: ‘and the person shall die’ — ‘the person who sins, he shall die.’” The Gemara there brings additional verses, and this is the rule throughout the whole Torah: there is no agency for a transgression. Except for misuse of consecrated property and slaughtering and selling, where it is explicitly written. In other words, we have a rule that there is no agency for a transgression, and here we have Shammai the Elder saying in the name of the prophet Haggai that the sender is liable. And his proof is from King David, as it is said, “You killed him with the sword of the children of Ammon.” King David sent Joab to kill Uriah the Hittite by the sword of the children of Ammon, and the prophet says to him, “You killed him with the sword of the children of Ammon.” Meaning, David is considered as though he killed, even though he only sent someone. So that is the basis of the dispute here between Shammai and the Sages. Let’s open the Gemara in Kiddushin 42b for a moment. The Gemara there discusses this question of there being no agency for a transgression. The Gemara asks: from where are these words derived? How do we know there is no agency for a transgression? And the Gemara brings the verse we saw before. But the Gemara also asks: what did the Sages see to say that there is no agency for a transgression? After all, a person’s agent is like himself. The logic is: when the master says one thing and the student says another, whose words do we obey? Meaning, if the sender tells you to commit a transgression and the Holy One, blessed be He, tells you not to, whom are you supposed to obey? Obviously the Holy One, blessed be He. Therefore the agent is the one at fault, not the sender. That is the basic logic of there being no agency for a transgression.