Kiddushin 82b (5783) – Lesson 7

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] In contrast, the issue of actual performance—or however we defined it, potential or actual—there are agencies where it’s actual performance, and there are agencies where it’s in potential. It’s not either-or, it’s not all one thing. No, it’s the same thing I said, because basically yes, because what you’re really saying is what I said: according to Maimonides there wouldn’t have been room to conduct the discussion whether there is or isn’t agency for a transgression, because there it’s obviously agency of potential. So it’s the same thing, yes. Now, in Nimukei Yosef he’s off. The recorder is off. In Nimukei Yosef there in Bava Metzia he says: “The author said”—let me preface for a moment—the Talmud says there: was a courtyard included because of agency or because of hand? There’s a discussion there in the Talmud about how a courtyard functions on my behalf. For example, when it acquires. Someone puts something in my courtyard, and the courtyard can acquire it for me. Now, there is an opinion in the Talmud that the courtyard is included because of agency. The courtyard is considered my agent. By the way, there are those who claim that a hired worker works like a courtyard. A hired worker is basically my courtyard in a certain sense. But then the Talmud there says that the courtyard is really a kind of my agent. On that Nimukei Yosef says—you see?—this is what Nimukei Yosef says: “The author said: and it seems that a minor who has no ‘hand’ at all, such as one who cannot distinguish between a pebble and a nut, is like a courtyard to obligate the one who sent him, for one cannot say of him: if he wanted, he would do it; if he wanted, he would not do it.” End quote. So he says: with a minor, we distinguish between several levels, or several levels of understanding. Yes? So a child who can’t distinguish between a pebble and a nut—a piece of dirt and a nut—he doesn’t know that a nut is something better, you can eat it, and a piece of dirt is worthless. He relates to both the same way, so he’s really a very small child. Meaning, he understands nothing, he has no cognition at all. So that’s the marker for the most mindless kind of minor there is, at a very, very young age. So with that kind of minor, says Nimukei Yosef, this is a minor who has no “hand” at all, not even rabbinically, because somewhat older minors have at least rabbinically a “hand,” maybe even by Torah law—that’s a dispute among the medieval authorities (Rishonim). So he is considered like a courtyard to obligate the one who sent him. Meaning, he can serve as an agent for a transgression, this minor. “For one cannot say of him: if he wanted, he would do it; if he wanted, he would not do it.” There the Talmud says: why is there no agency for a transgression? Because you can say to him, “If he wanted, he would do it; if he wanted, he would not do it,” meaning he decides whether to do it or not do it. Okay? Now, the minor decides nothing; he has no cognition. You can’t say that it really depends on him. In any case, with him you don’t have the reasoning of “the words of the master and the words of the student—which should one obey?” You don’t have the reasoning that says: wait a second, he wasn’t supposed to do what I told him, therefore if he did it, it’s his problem. No, the minor has no independent judgment. Wait, I’m getting there in a moment. So Nimukei Yosef is basically claiming that here “if he wanted, he would do it” doesn’t apply, and therefore with a minor there is agency for a transgression, like with a courtyard. So now the claim is—yes?—but according to Jewish law, a minor in general can’t be an agent at all. What does it matter whether “if he wanted, he would do it; if he wanted, he would not” applies—say with a gentile. Say there is a gentile. So now with the gentile you start discussing whether there is “if he wanted, he would do it; if he wanted, he would not do it,” and therefore whether the gentile can be an agent for a transgression? A gentile cannot be an agent, period. What is there to discuss here? It seems from Nimukei Yosef that he apparently holds—and we’ll get to this too. I’m saying these are the initial concepts; we’ll meet all of them later on, I’m just trying to sketch the map here. Okay? Apparently Nimukei Yosef claims that the minor was excluded only from agency of potential. Because a minor can’t generate halakhic legal effects; he’s not a player on the halakhic field. But actions he does know how to do; that is, a minor can perform actions. He doesn’t have the cognition that accompanies the action, and therefore maybe for actions there is no legal significance. And that is true also for a courtyard. A courtyard also has no cognition. Right? The minor is no worse than a courtyard. That’s what Nimukei Yosef is saying. So Nimukei Yosef says: just as a courtyard can be my agent—it can do actions, and those actions are considered my actions—therefore with a courtyard, for example, it is clear that this is not agency of potential but agency of actual performance. And it’s not that the courtyard performs the act and the consequence of it is attributed to me. A courtyard can’t perform an act. A courtyard is only this: the act it “does” is considered my act. Okay? That is basically the point, if you like, in the mechanism, I would say. It is more plausible that this is an extended hand than a power of attorney. You don’t authorize a courtyard; a courtyard doesn’t have that. Right, so just as I can’t grant authority to a courtyard, I also can’t grant authority to a minor. But on the other hand, if the minor does something in my name—I told him and he does it—then he is not my authorized representative, because the legal concepts of authorization do not exist for a minor. But the action he did may be agency of actual performance, and that is considered an act that I did, like a courtyard. And that is basically what Nimukei Yosef says—or so it is claimed, and so the later authorities (Acharonim) claim—that this Nimukei Yosef is talking about the difference between agency of potential and agency of actual performance. That the minor, like a courtyard, is essentially my agent for actual performance, such that the result of course also comes into being, because I did the act, so the acquisition also takes effect, everything also happened—but it starts from the fact that the act is considered my act. Therefore, for example, in a transgression, where there is no result at all—the whole discussion is only whether I performed the act or not—there too a courtyard and a minor can be agents for a transgression. Okay? Even according to the Jewish law that there is no agency for a transgression, a courtyard and a minor still can be agents for a transgression. And that is basically the point. What? Only for a transgression? No, anywhere that you need agency of actual performance. Anywhere the agency is not for potential but for actual performance. For example, if I send a deaf-mute, an imbecile, and a minor to burn a field. Fine? Then there too, in principle, it is considered my act. Now, it may be that I will be exempt because it is indirect causation, because if it is my act, fine, but still I caused it—but still, the act is considered my act. Wait, here it’s a lulav, let’s say according to Nimukei Yosef. But when the minor sells to me? Is he my agent? What? He is the agent of the owner of the lulav, not mine. The owner of the lulav. But the money you give him belongs to the owner of the lulav. If the minor functions here like the courtyard of the owner—the courtyard of his sender, yes, of the owner of the lulav. Yes, but even if not, what difference does it make? Then when the money reaches the owner of the lulav, it will be his. The only question is from what point it is acquired by him. There is no fundamental problem in my giving money to someone and it still not being acquired by the sender; when it reaches him it will be acquired by him. The acquisition does not depend on the money, after all, because movable items are not acquired by money. Movable items are acquired by drawing them. So when I buy the lulav from the minor, of course I acquire it. Because there is intent on the part of the one transferring ownership, and there is an action by the buyer. The minor here doesn’t—he doesn’t play a role; it’s monkey work. Even though he passes the lulav to you, it doesn’t matter: my drawing the lulav is what acquires it. What if the owner of the lulav had sent it to me by carrier pigeon delivery with a lulav? A monkey passing me a lulav. Now I take the lulav, obviously I acquired it. Because you don’t need—there is no action of the agent here. The agent just brings the lulav to me, and now I draw it and thereby acquire it. You need the consent of the owner of the lulav. Meaning, if he doesn’t agree, I can’t acquire his property. But no legal action by the agent is needed here. The agent does nothing here. This is unlike betrothal and divorce, where the agent performs an action. If he tried to lower the price? The minor lowered the price for you… Then what? What do you mean by lowering the price? But there is no intent here on the part of the sender. So it depends: if it turns out retroactively that the sender didn’t agree, then maybe I’ll have to return the money, or cancel the transaction, or it depends—maybe overcharging law, maybe. Okay? It could be there is an estimate of intent saying that if the sender said nothing, and he sent a minor, and he didn’t tell him, listen, don’t haggle, or whatever, and didn’t protect his own interests—that’s his problem, he apparently agreed. But again, that’s all disputes about estimating the sender’s intent. On the principled level, right, then it can’t. No problem: “I sent you to improve, not to distort.” So that is basically the distinction between an agent for an act, an agent of potential, and an agent of actual performance, and then according to Nimukei Yosef this means, in effect—the underlying assumption of Nimukei Yosef is that in principle a minor can be an agent. It’s just that he’s not a player in the legal field, so creating legal effects is irrelevant with respect to him. He simply cannot do that even for himself, so all the more so he cannot do it for someone else. But that does not remove him from the concept of agency. Meaning, an agent he can be. It’s just that the significance of his agency can only apply to those things in which he has the capacity to do them. Now, this is what in Jewish law, in another formulation, is called: one who is not “within the law of the matter” cannot be an agent. Yes, one who is not within the law of—for example, a slave cannot be an agent for betrothal. Why? A Canaanite slave—because he is not within the law of betrothal, he cannot betroth a woman. One who is not within the law of the matter cannot serve as an agent. In the simple understanding, he cannot serve as an agent because the assumption is that he performs the action and the action is attributed to me. But he cannot perform such actions; they are not defined for him. They are not defined with respect to him. So this is a rule in Jewish law, and we will talk about this too, that one who is not within the law of the matter cannot be an agent. Nimukei Yosef understands the disqualification of a minor from serving as an agent as part of “one who is not within the law of the matter.” He just says that in the case of a minor, unlike a gentile, he is not within the law of anything legal. A gentile, for example, is within the law of acquisitions; a gentile can acquire acquisitions. He is not within the law of betrothal, but he is within the law of acquisitions, and therefore there might be room to say that a gentile can be an agent for acquisitions, can be an agent of a Jew regarding acquisitions. But all that is only in things he is within the law of. Something he is not within the law of—in the case of a minor, he is within the law of nothing. Therefore, when the Talmud says a minor cannot be an agent, it doesn’t really mean that he cannot be an agent; rather, he simply is not within the law of anything. In his case the “not within the law” expands to all areas, accidentally, fine—and therefore de facto he cannot be an agent. Nimukei Yosef says: but look, this has a consequence, because in agency of actual performance, there you do not need to be within the law of something. In agency of potential, you need to be within the law of the matter in order to generate the legal effect that this authority generates. If you do not belong to that conceptual world, then my authority cannot be transferred to you to do it, because you do not have the ability to do it. Yes, you can’t appoint, I don’t know, appoint a river to hammer nails into the wall in a garden. A river doesn’t know how to hammer nails. Meaning, even if I appointed it and gave it full authority to do so—yes, obviously this is a crude metaphor. So I say the same thing: someone who cannot perform legal actions obviously also cannot perform them for me, because he cannot carry out the action itself. Okay, but this is only a technical disqualification of not being within the law of the matter; it does not really mean that a minor is like a gentile, who does not belong to agency at all. The gentile was entirely excluded from agency, not because he is not within the law of the matter—we’ll discuss that too. But the minor, according to Nimukei Yosef at least, appears to belong to the concept of agency, only he is not within the law of anything. Nimukei Yosef says: yes, but in agency of actual performance, where you need not be within the law of the matter because we are not speaking of authority to create some legal effect, but of doing an act—this a minor can do. His act is an act; physically he performs the act. Okay, so Nimukei Yosef says that in agency of actual performance, this can also be with a minor. What kind of agency of an act? A commandment, like delivering food gifts? Okay, as agency of an act. No, but agency to deliver food gifts—I don’t think that is agency at all. You can send it also by carrier pigeon, what I called monkey work. The main thing is that the food gift reaches someone, but you don’t need to perform a legal, halakhic act of appointing the agent to do it on your behalf. It’s like preparation for the Sabbath, where I spoke about “it is more of a commandment to do it oneself than through an agent”; I don’t need to appoint my cook to be my agent in order for her to prepare fish for me for the Sabbath. Okay? It is enough that I say to her, please prepare me fish for the Sabbath—not that she now has a legal status of agency. If she is a gentile, for example, and with gentiles agency doesn’t apply, so what? So now that I appointed her to do it, that doesn’t take effect? Am I forbidden to eat the fish? It’s not… There are things that I called monkey work. Meaning, something you can send a monkey to do. It is not a legal act that requires a person of legal understanding or someone who belongs in the matter to do it. So food gifts are the same thing: you only need to make sure the portion reaches the other person. There, even more than that: there it may be that the other person doesn’t even need to acquire it. That’s an interesting question, because the Rema writes—and there are major disputes among the halakhic decisors about this—say I’m invited to a meal, okay, and someone gives me, I don’t know, an apple. The host honors me with an apple: here, have an apple, eat it. I take the apple, see a pretty girl nearby, give her the apple and say, “Behold, you are betrothed to me with this apple according to the law of Moses and Israel.” Is she betrothed? Why not? The understanding… There is a dispute about this. And the common understanding in the view that says she is not betrothed is that I was given permission to eat it, but not that the apple is mine. And if I eat the apple, I am not a thief. That does not mean the apple is mine. Okay? Therefore I cannot use it to betroth a woman because it is not mine. You need to betroth a woman with property that is mine, to give her a perutah of my own. Right, so here too, with food gifts, there is room to discuss whether you need to transfer ownership of this gift to the poor person, or whether it is enough to give him permission to eat it—the main thing is that he is happy and eats on Purim and everything is fine. Then it turns out that not only does the agent not need to perform an act of transfer, even the poor person does not need to perform an act of acquisition. Nothing. Just send him the food with a carrier pigeon and let him have something to eat. And in Jewish law? What? I don’t know, you can understand it either way. What? You’re talking about betrothal? Betrothal with that apple? A dispute. What is the Jewish law? Decide what you think; there are decisors who say yes and decisors who say no. There is reasoning… Forget the decisors—there is reasoning for yes and reasoning for no. Decide by the reasoning, not by the decisors. The decisors are just a practical manifestation. Fine, so that is regarding the assumption of Nimukei Yosef about the disqualification of a minor, and we’ll see it later, but this actually brings us back to what we also saw in Rabbi Chaim’s approach in the previous lesson. Because we saw there what he inferred in… Maimonides: why does Maimonides, regarding a man, not say that he has to be an adult, a man appointing an agent, whereas regarding a woman appointing an agent, he specifies that she must be an adult. So Rabbi Chaim says: because in the case of the woman there could have been room to discuss that it would work for a minor girl as well under the law of beneficial acquisition, and therefore Maimonides needs to reject that and say no, only for an adult. In the case of a male minor there is no possibility that it would work under the law of beneficial acquisition. Why? Because with a male minor you need to perform an act of betrothal, and in order for the act of betrothal to be considered my act, you need appointment; beneficial acquisition will not help. Or in other words, the law of beneficial acquisition cannot serve as agency of actual performance, only as agency of potential. And in order for you to be my agent in actual performance, I have to appoint you. Under the law of beneficial acquisition, your act cannot be considered my act. The results of your act, if they are beneficial for me, can be attributed to me, because that is what the Torah says—we derive it from the division of the Land. That the results of your act can be attributed to me—that is the law of beneficial acquisition. So the law of beneficial acquisition parallels agency of potential, not agency of actual performance. If you want the action of the person—the agent—to be attributed to you, you need to appoint him. It is not enough that this is beneficial for you and he acts under the law of beneficial acquisition. That is how Rabbi Chaim explains it. Therefore he says: in betrothal it is not enough that the result of the act be attributed to me, because I need to perform an act of betrothal—as opposed to acquisitions. I need to perform an act of betrothal, because “a man takes a woman,” I need to take her, okay? And that action—if I did not do it, there is no betrothal. So if the agent performs that action for me, you need agency of actual performance, and therefore appointment is required; beneficial acquisition does not help. So if the act of the betrothing party under the law of beneficial acquisition cannot help, then there is no initial assumption that it would help in the case of a male minor, and Maimonides does not need to reject it. But regarding a woman—after all, the woman does not do an action in betrothal. The husband takes her; she only has to consent. She does not do an action. They give her the ring, she receives the ring, and thereby she is betrothed, right? So in that respect it certainly could be—an initial assumption could arise—that an agent of reception could work under the law of beneficial acquisition. If it is clear to me that the woman consents to this, then it is beneficial for her, and after all “it is better to dwell as two,” so that is basically even a simple assumption. So I can act for her under the law of beneficial acquisition, and if so, this would also work for a minor girl. Because the law of beneficial acquisition works even for minors; the Talmud says this later regarding the division of the Land, from which we derive the law of beneficial acquisition, that the law of beneficial acquisition works even for minors. Therefore Maimonides says: no—even for an agent of reception, the woman must be an adult. Okay, but there there could have been an initial assumption that you don’t need agency of actual performance but agency of potential. The question is what is he teaching us. Is he teaching us that even for agency of potential it does not work for a minor girl, or is he teaching us that even in the woman’s case you need agency of actual performance? That the woman must be the one receiving the ring. Even though she is not doing an action of legal significance, still physically it is needed. Regarding a bill of divorce: “and he shall write for her a bill of severance and place it in her hand”—he must place it in her hand. The action must be done by the woman, and for the action to be considered the woman’s action, there must be appointment here; beneficial acquisition does not help. But that needs to be taught, and therefore Maimonides says that this is only with an adult woman, because he comes to teach this. You should know that the Rosh in Bava Metzia, section 6, says that when the sender has revealed his intent that he wants the betrothal, then acquisition also helps. Fine? Meaning, the law of beneficial acquisition helps. Now, it must be understood that although he needs to reveal his intent that it is agreeable to him, that revelation of intent is not appointment of agency. That revelation of intent is only to verify that this is indeed beneficial. Because I cannot decide for someone else that this thing is beneficial for him and then perform all kinds of actions for him. Obviously it must be beneficial for him. So if it is objectively beneficial, then no revelation of intent is needed; that is obvious. But in betrothal, maybe I want this woman, maybe I don’t want this woman. If I revealed my intent that I want this woman, then it is beneficial for me, and then someone can betroth her for me under the law of beneficial acquisition. So says the Rosh. So we see, unlike what Rabbi Chaim said in Maimonides, that in betrothal either you don’t need an act, in which case beneficial acquisition helps, or you do need an act but beneficial acquisition can also function as agency of actual performance and not only as agency of potential. Fine? In any case, it is not like—not like Maimonides, but the Rosh really explains this by saying that acquisition is because of agency. Meaning, in that sense it seems to me that there is some implicit agreement with what Rabbi Chaim wrote, because why did he need to make it depend specifically on—if beneficial acquisition is not because of agency, then what? He wants to say that he too agrees that for there to be agency of actual performance—and in betrothal you need an act of the betrothing party—then the agent needs to be my agent, able to transfer the act onto me; there must be agency of actual performance. Rabbi Chaim. On that point the Rosh disagrees. The Rosh claims that beneficial acquisition is indeed by the law of agency. But on the principled level the Rosh also agrees that if there were not really agency here—if beneficial acquisition were some other law—then it could not create agency of actual performance. That is why the Rosh specifically needs to say that acquisition is because of agency in order to say what he says. Meaning, he too is basically agreeing, in the subtext, with Rabbi Chaim: that some other law which is not the law of agency cannot create agency of actual performance, only perhaps agency of potential. Therefore, according to the one who says beneficial acquisition is not because of agency, then in fact Rabbi Chaim is right and it would not help—so says, so the Rosh would say. And Rabbi Chaim indeed says that Maimonides holds that beneficial acquisition is not because of agency. Fine, so the Rosh disagrees with Maimonides as to whether beneficial acquisition is because of agency or not, but he agrees that if beneficial acquisition is not because of agency, then Rabbi Chaim is right that in betrothal it cannot help. Therefore there is no initial assumption for a male minor. So in that sense, although the Rosh disagrees with Maimonides, it is a disagreement that actually supports Rabbi Chaim’s explanation. Because the fact is that one who disagrees with Maimonides needs to say that beneficial acquisition is because of agency, which implies that he too understands that if beneficial acquisition were not because of agency, then Maimonides would be right. Okay? I am only adding one further remark, just one more remark: when we say that beneficial acquisition is because of agency, these later authorities assume that this means that one who acts under the law of beneficial acquisition is an agent in every respect, and therefore with all that entails, including agency of actual performance, including everything you want. Meaning, there is no difference between one who acquires for another, one who confers, and an agent. I am not entirely sure that that is the case, and we will discuss it when we speak about the law of beneficial acquisition. It is not so simple. When people say that beneficial acquisition is because of agency, some mean only that it works through a mechanism similar to agency. But that does not mean that you can now copy every law of agency and apply it also to beneficial acquisition. They are two different things. The big question then is: so why yes—what exactly is the dispute about whether beneficial acquisition is because of agency or not, if in any case you do not compare them halakhically? Then what—is it just a theoretical dispute? Is it that the mechanism is similar to agency—similar in what sense? Meaning, there is a consequence. So that too—we’ll discuss later. I’m only saying this parenthetically, just so the picture is complete: until now, what I assumed here in the later authorities, and in the Rosh and Maimonides and Rabbi Chaim and Rabbi Shimon and all these Jews, is that when we speak about the dispute among the medieval authorities (Rishonim) as to whether beneficial acquisition is because of agency or not because of agency, the dispute is whether beneficial acquisition is literally agency or not. That is the dispute; it’s a matter of identification. Either you identify them or you don’t identify them. It is not certain that this is really the dispute. By the way, Rabbi Chaim himself talks about this—not sure this is the dispute. For example, I mentioned Rabbi Akiva Eiger, I think, in Bava Metzia, who says: why is there beneficial acquisition for a minor? In Bava Metzia on the next page, he says there is beneficial acquisition even for a minor. But if beneficial acquisition is because of agency, then this is difficult—difficult for all those who say beneficial acquisition is because of agency—because you see there is agency for a minor? But a minor has no agency. First of all, we saw above that it is not certain that a minor has no agency. I think the Ketzot holds that in principle he does, only he must be within the law of the matter. And second, even if we say that a minor essentially has no agency, when we say beneficial acquisition is because of agency, the meaning here is not that the minor serves as an agent, but that the minor appoints an agent—that someone acts as the agent of the minor. Okay? So the claim—because this is also the discussion here in Maimonides—that the minor is the one betrothing; he sends an agent for delivery, meaning the agent is an adult, and he represents a minor sender. Okay? So Rabbi Akiva Eiger says that beneficial acquisition is agency without appointment. Therefore even if beneficial acquisition is because of agency, since no appointment is required, there is no problem in conferring on behalf of a minor. Because the whole problem—why can a minor not appoint an agent? Because he lacks the power to appoint. We talked about this: he lacks the power, he is not a legal entity, he cannot create legal effects and be a player on the legal field, on the legal playing field, fine? So he cannot appoint. But in beneficial acquisition, everyone agrees that no appointment is required. Whether beneficial acquisition is because of agency or not because of agency, the whole idea in beneficial acquisition is that you act for me without my having appointed you. You do not need appointment. The Torah says you can act for me. Okay? If no appointment is needed, then there is no obstacle to being an agent of a minor even if beneficial acquisition is because of agency. Beneficial acquisition is because of agency, but that agency does not require appointment. That is the novelty of beneficial acquisition. So here, for example, is a model according to which beneficial acquisition is indeed because of agency, and nevertheless there are halakhic differences between beneficial acquisition and agency, even though it is because of agency. And that of course now reopens the whole discussion we have had until now. Because now we have to examine each thing on its own terms; even if beneficial acquisition is because of agency, that still does not mean there is identity in their laws. Okay? So that—we’ll discuss later. But with beneficial acquisition, doesn’t the person need awareness? Even if he doesn’t know that you acquired for him, the acquisition still works. That is also true in agency. The sender—but he has to send him. Fine, but he doesn’t know that you acquired for him. I go abroad and betroth a woman for him. He doesn’t know that the woman is now betrothed to him. He may think that it will happen another month from now, or happened a month ago. He doesn’t know when I acted. You don’t need awareness that it happened at the time of the act. You need appointment. We’re going back again to appointment. So that is basically the difference of appointment. In Birkat Shmuel, Rabbi Baruch Ber, yes, Rabbi Chaim’s student, brings this inference of Rabbi Chaim in Maimonides. I mentioned Birkat Shmuel, yes, with the switched tables. So he writes another explanation of Maimonides. Why indeed, in the case of a male minor, there is no initial assumption that agency would help, and therefore Maimonides does not specify that the betrothing man must be an adult, whereas in the case of a woman Maimonides does specify that the betrothed woman must be an adult. So he says there is a rule that “anything that he himself cannot do, he cannot appoint an agent to do.” And a thing that you cannot do, you also cannot appoint an agent to do. Okay? Now he assumes—and this is an assumption that is not agreed upon—that this rule also exists in beneficial acquisition. Meaning, you cannot acquire something on behalf of someone that he himself could not acquire. Fine? That is the claim. That is the assumption. Meaning, this is true not only in the law of agency but also in the law of beneficial acquisition. Rabbi Shimon, for example, writes explicitly not so, but that is the claim here. Therefore, for example, Rabbi Shimon says—Rabbi Chaim too says—that there was an initial assumption that under the law of beneficial acquisition you could acquire for both a male minor and a woman. Right? Under the law of beneficial acquisition. Why? They themselves cannot do it. Because here the rule “whatever he himself cannot do, he cannot appoint an agent to do” doesn’t apply. Why not? Because he isn’t appointing an agent; this is the law of beneficial acquisition. It is not an agent. Okay? And in the law of beneficial acquisition you don’t need that. And what makes it irrelevant in the case of a male minor—that is what Rabbi Chaim says—is because here you need agency of actual performance, not because of “he cannot do it” or “cannot appoint an agent.” It is simply because agency of actual performance is required. So they assume that this rule—“whatever he himself cannot do, he cannot appoint an agent to do”—does not exist in beneficial acquisition, only in agency. But Birkat Shmuel claims that it exists in beneficial acquisition too. So what then? He says: so in the case of a minor girl—this is actually the answer that I think I said, I suggested it at the beginning of the previous lesson—the minor girl can, after all, receive betrothal; the fact is that her father can betroth her. Meaning, she can receive betrothal and be someone’s wife even as a minor girl. Therefore there was an initial assumption here that someone could act for her under the law of beneficial acquisition. Under the law of agency he cannot, because there is no agency for a minor, but under the law of beneficial acquisition he can act, because in beneficial acquisition there isn’t the rule—sorry, although there is the rule “whatever he himself cannot do, he cannot appoint an agent to do,” here she can do it. She can do it. Therefore a person can also acquire on her behalf. Okay? That is in the case of a woman. In the case of a male minor, the male minor does not belong to betrothal at all, even by means of his father. It is nothing. Maybe rabbinically there is something, but in principle, by strict law, when a male minor betroths there is nothing in his act. There is nothing in what he did. So he says that the male minor simply does not belong to betrothal, cannot perform betrothal. And “whatever he himself cannot do, he cannot appoint an agent to do,” and you also cannot acquire on his behalf, even under the law of beneficial acquisition, not only under the law of agency. Therefore, says Birkat Shmuel, that is why Maimonides does not bother to say that the betrothing man must be an adult. Because there is no possible initial assumption that a betrothing party could be a male minor, because even under the law of beneficial acquisition, if he cannot do it, then his agent cannot do it and neither can the one conferring on his behalf. In the case of the woman, yes. What is he basically assuming here? He is really assuming that the fact that a minor girl cannot betroth herself is not due to an inherent problem. The fact is that she can be betrothed to someone if her father does it. Meaning, the concept of betrothal is relevant to her too. Rather, what is the issue? She lacks cognition. She cannot create this legal effect, but it is not that this legal effect does not apply to her. She cannot create legal effects because she is not of legal understanding. So her father can do it for her. That is fine. In the case of a male minor, there is no situation where he could be betrothed by anyone you want. No. The concept of betrothal does not exist with respect to him. Therefore there the claim is that this is why the possibility does not arise that it should work under the law of beneficial acquisition. Where do we see this? It is a Talmudic passage in tractate Kiddushin on page 19. Where do we see that the male minor was excluded in an essential way? Not that he just cannot betroth. One could have said—even for a male minor, betrothal is applicable. One could have said that. Only what? Only for him the Torah did not introduce the law that the father can betroth him. For a minor girl it did introduce it. But even so, in a male minor too this would not be an essential exclusion from the concept of betrothal. So on that Birkat Shmuel brings the passage on page 19: Resh Lakish asked: what about a man designating a maidservant for his minor son? Yes? His son. Did the Merciful One say “his son,” meaning any son, or perhaps “his son” similar to himself—just as he is an adult, so too his son must be an adult. Rabbi Zeira said: come and hear: “a man”—excluding a minor; “who commits adultery with a married woman”—excluding the wife of a minor. And if you say he can designate for him, then we would find marriage for a minor. What does the Talmud assume? That it is not possible for there to be marital status for a minor. It learns this from a verse: “a man”—excluding a minor. So Birkat Shmuel says: here you already see that it is not just that he belongs but cannot create the betrothal; rather, here there is an essential exclusion from the very concept of betrothal. So if so, in the case of a male minor this is a situation fundamentally different from that of a minor girl. A minor girl has only a technical problem: she cannot receive betrothal herself, but the concept of betrothal is relevant to her. But a male minor is excluded from the concept of betrothal. Therefore it is clear that there, neither under the law of beneficial acquisition nor under the law of agency can one act on his behalf, because “whatever he himself cannot do, he cannot appoint an agent to do.” Therefore Birkat Shmuel says that Maimonides wrote this only about the woman and not about the man. That—what? Doesn’t it seem rather that there is no marriage for a minor because he is the one betrothing? No, not because he is the one betrothing. On the contrary—not because he is the one betrothing, but because there is no marital status for a minor. It cannot be that a minor be married in any manner whatsoever. There is some categorical statement here. For a minor girl, after all, it can happen; if her father betroths her, she is fully betrothed by Torah law. The Talmud here assumes—and we see this precisely because it is a difficulty—that it cannot be that a male minor should be betrothed. Why not? What’s the problem? Fine, so if his father did it, or someone—his father designates for him; here that is exactly the example. His father designates a woman for him, so his father betroths her. What is the problem? Why can’t that happen? Because the Talmud assumes this is not a technical problem that the male minor cannot perform the act and someone else will do it; it is not like with a minor girl. With a minor girl it is a technical problem. With a male minor, the issue is that it is simply inapplicable for him to be betrothed at all; the result is inapplicable to him. And this is like what I once wrote regarding copyright, intellectual property. The accepted view is that in Jewish law intellectual property does not apply because there is no acquisition in a thing that has no substance. There is no ownership over a thing that has no substance. Maimonides in the laws of sale says that you cannot own the smell of an apple, or the appearance of honey—yes, the color or look of honey, or the smell of an apple. These are things that have no substance. Now, an idea—intellectual property—is information, an idea. You cannot own an idea. Therefore, in Jewish law by Torah law there is—commonly, there is no intellectual property. And therefore infringement of copyright cannot be considered halakhic theft, and then people start twisting themselves up—so how do we nevertheless make this forbidden? Encroachment, rabbinic prohibitions, the law of the kingdom is law, all sorts of things like that—but the halakhic decisors twist themselves a great deal around this question: how can there be intellectual property in Jewish law? So I once wrote an article in which I argued that they misunderstood the concept of “a thing that has no substance.” In the Talmud, when it speaks about a thing that has no substance, the original case the Talmud speaks about is the airspace of a courtyard. You cannot own the airspace of a courtyard. My claim is that when you cannot own—what? Also sparks from a candle. All kinds of things. For example, the airspace of a courtyard. Now, what characterizes all the examples? The examples Maimonides brings, also sparks of a candle—what characterizes all these things? What characterizes all these things is that they are attachments to a tangible entity. It is a property or aspect of a tangible entity. Right? There is a courtyard—it is tangible. And it has airspace. There is an apple; it has a smell. There is honey; it has an appearance or color. Okay? So in all these places the Talmud says that ownership of the abstract thing is dragged after ownership of the tangible thing. And what about sparks? Same thing. Ownership of the sparks is dragged after ownership of the fire; they are sparks of the fire. And in that case—I think this comes in tractate Sabbath—regarding fire, if you place a vessel to catch the oil from the candle… then it hastens its extinguishing. Not hastens its extinguishing. That the oil of the candle is set aside, and the oil caught in the cup turned the cup into a base for a forbidden item. Okay. If it catches only the sparks, then it is not a base for a forbidden item. Okay, so what does that have to do with it? So the question… this is about ownership. It is subordinate to what. No, this is about ownership. What does it have to do with it? We are talking about ownership. There is no ownership in sparks either; there are various discussions about this. But that is unrelated to the question of being set aside. There is no ownership; you cannot own the sparks. That’s regarding the expression. What? What did you call the airspace of the courtyard? A thing that has no substance—which is also the expression used there, “a thing that has no substance.” Right, but I mean in the context of acquisition law. In acquisition law, the problem with a thing that has no substance is its subordination to a thing that does have substance. That is my claim. Specifically in acquisition? Yes. In terms of the problem that a thing that has no substance creates in acquisition law, it is only a problem because of its subordination to a thing that has substance. But on the principled level you can also own a thing that has no substance, if it is not subordinate to something tangible. For example, an idea, a new idea—yes, intellectual property, some creation—that is not subordinate to anything tangible. It is just a thing that has no substance. Such a thing you can own. Who says not? On the principled level you can own a thing that has no substance; it’s just impossible to detach it from ownership of the thing that has substance to which it is attached. That’s all. Not that you cannot own it. What I tried to argue there is that on the principled level ownership also applies to a thing that has no substance. You can’t always actualize it, but it applies. Same thing with a minor: ownership applies to a minor. A minor can inherit his father, and he acquires that by Torah law. So you cannot say that a minor is outside the concept of ownership. The result—that he owns something—is relevant also to a minor. He cannot create ownership, because he cannot perform actions of legal significance. But you cannot say that the concept of ownership does not apply to him. Fine? Here, however, the Talmud says that betrothal, as a concept, does not apply to him. Not just that he cannot create it. That is exactly the novelty of the Talmud here. Birkat Shmuel says: so if that is the case, that is exactly the meaning of why the law of beneficial acquisition cannot operate here, because “whatever he himself cannot do, he cannot appoint an agent to do”; and he is also not within the law of the matter, and so on. This is somewhat similar to what we saw in the Ketzot, where the Ketzot says that if the sender dies, the agent is still an agent, only he cannot act because the woman is already a widow. So there is no one to divorce; he is an agent for divorce. So there is no one to divorce because the woman is already widowed. We see that sometimes there can be a situation where you have the principled power, but have no way to apply it. Meaning, the principle applies to you, only there are technical problems that prevent you from applying it. Here too, with a minor: in principle it applies that he be an owner of things, but in practice he won’t be able to do it. Or you can, in principle, own a thing that has no substance, only perhaps you have no way to create that ownership. You have no way to perform an act of acquisition on that ownership. So if you want to perform an act of acquisition, after all you will always do it on the tangible thing. If you do it on the tangible thing, then that means you acquired it together with the tangible thing. You cannot detach it. Okay? But if I manage to own a thing that has no substance without needing a legal act of creating ownership—for example, when I invent an idea. When I invent an idea, I own that thing not because I performed an act of acquisition upon the thing. The later authorities compare this to “the spiritual children of the creator,” as even Plato says. Yes, that ideas or insights are the spiritual children of the one who conceived them. Okay? So this basically belongs to me naturally. I don’t need an act of acquisition. It came out of me, it is part of me, so it belongs to me. In such a case there is no reason to assume that I cannot own an abstract thing. I cannot create ownership over an abstract thing, but I can own an abstract thing. So there is a difference between asking whether the thing itself is excluded from me and asking whether I can carry it out in practice or create it in practice. There can be situations in which there is no essential exclusion of the person from the thing, but there is no technical possibility to carry it out. And that is basically the claim here. The claim here is that in the case of a minor girl, in principle there is no exclusion, because the fact is that she can be betrothed; but the male minor is excluded essentially, and therefore one cannot act as his agent. And what about cases where, if you cannot create that thing, why should someone else be able to come as an agent? I mean, it could be that you have ownership of it and you cannot create that ownership. What do you mean, cannot create it? I cannot bring it about when it does not exist, but if it exists, it already exists. How does a minor inherit? A minor inherits, and after the inheritance the property is his. Whoever takes it from him is stealing. But he cannot create—what does “create” mean? “Create” means generate the state of ownership. There is no need to generate it; it already exists. He cannot generate the state, but if the state exists, and the Torah’s laws of inheritance did that, then he becomes an owner. His own capacities are not needed. He becomes an owner. So the concept of ownership applies also to a minor. He is not excluded from the concept of ownership. You cannot say that a minor is not within the law of the matter regarding ownership. He is within the law of the matter. He cannot create the thing, but you cannot say that he does not belong to that conceptual world. That conceptual world exists in him; the concept of ownership exists for minors. But regarding lost property, they made… That is something else; there is someone else’s intent conferring. I mentioned earlier that there is a dispute among the medieval authorities (Rishonim): when there is someone else’s intent conferring, things can be transferred to a minor. Now the question whether that is by Torah law or rabbinically is a dispute among the medieval authorities. But there are medieval authorities who say it is by Torah law, to transfer things to him when there is someone else’s intent conferring them. Why? Because if I transfer it to him, then I performed the act of acquisition. The only thing he cannot do is perform an act of acquisition. But to be an owner he can, like in inheritance. Okay? Therefore, if I do the act for him, it may be that this is effective by Torah law. But with found property there is no someone else’s intent conferring? Correct, and there he truly cannot acquire, only with someone else’s intent conferring. But regarding a minor’s found property they made… There is a rabbinic law. Fine, there are rabbinic enactments, that is something else. There are medieval authorities who say that the whole concept of someone else’s intent conferring is only rabbinic law, like in found property, so that not everyone should come and rob him. Okay, now the claim—so basically we have discussed the concepts of beneficial acquisition, agency of potential, agency of actual performance, power of attorney, extended hand, and to what extent and what the difference is between beneficial acquisition and agency. Now I want to return for a moment to the beginning of the passage of “it is more of a commandment to do it oneself than through an agent.” If I say that agency is an extended hand, meaning that the one carrying out the action is really the sender—does that cancel the rule “it is more of a commandment to do it oneself than through an agent”? Seemingly he did the action; even when his agent did it, he did it. Why not? Because he didn’t do it. He didn’t do it? “A person’s agent is like himself,” an extended hand. I performed the act. If I did it with a long stick, then I did it, right? Now I did it with a long human stick. Why can you still say “it is more of a commandment to do it oneself than through an agent”? So it is obvious—and I also discussed this, and we brought it from Rashi there—that “it is more of a commandment to do it oneself than through an agent” means the one who physically does the act, not the one who is considered legally or halakhically to have done the act, but the one who physically does the act. Why? Because “it is more of a commandment to do it oneself than through an agent” is not speaking about agency at all. It does not discuss agency at all, except for the Makneh who is difficult; I brought him there. But it is not dealing at all with the concepts of agency. It deals with the question of how much energy you invest in service of God, in fulfillment of commandments. And if you yourself do it—“Abraham rose early in the morning and saddled his donkey”—then that is the novelty. Although for saddling a donkey you do not need the law of agency; he could also have sent an agent, but the agent would not be an agent to saddle the donkey, because that is monkey work. Okay, but this is not talking about the concept of agency at all. “It is more of a commandment to do it oneself than through an agent” is only a figure of speech. The intention is that it is more of a commandment to do it oneself than to have someone else do it for you. Usually that other person is called an agent, but this is not speaking at all about the concepts of agency. Therefore it is a mistake to connect this to the question whether the agent is an extended hand or a power of attorney. And this brings me to the following conclusion: when I identify the agent with the sender and say the agent is an extended hand, that the agent is essentially considered as the sender acting through the agent, clearly there is an identification here at the halakhic level. But you cannot say that physically the sender did the action. Even in places where yes—in Sabbath preparations and those examples there—it’s simply not a matter of agency at all. The one doing the preparations is not my agent in any sense. But I’m saying: leave that aside. In places where it really is agency—even if it really is agency, and I conceive of agency as an extended hand, an agent going to effect betrothal, I conceive of him as an extended hand, and this is agency of actual performance, such that the action the agent did is considered an action I am doing—and I said that even about that it still says “it is more of a commandment to do it oneself than through an agent.” Why? Because even after all these concepts of agency of actual performance and extended hand and so on, it is still obvious that physically I did not perform the action. The concept that “a person’s agent is like himself” can introduce novelties in Jewish law; it cannot change… reality. You cannot—this is what I once wrote an article about: what is a scriptural decree? Because I said there that there is no such thing as a scriptural decree about something that it is not correct to regard as true. There is no such scriptural decree, because it is not true. A scriptural decree can tell me to treat it as though it were true. Let me give you an example. People think there is a scriptural decree that relatives are disqualified from testimony. That is what the Talmud says, that it is a scriptural decree, and that is how it is brought in Maimonides, the Tur, the Shulchan Arukh, everybody. It is simple: that the Torah disqualified the testimony of relatives is not because there is suspicion of lying; it is a scriptural decree. Moses and Aaron—yes. Okay, now we treat this very calmly. Two related witnesses come and testify that Reuven murdered Shimon, and Reuven walks away free, cheerful and happy, even though we know he murdered. Because after all, the witnesses are not suspected of lying, and two witnesses not suspected of lying say that Reuven murdered. Okay? Nothing—we do nothing. Fine, true, you can put him in a narrow cell, you can punish extra-legally, but by strict law we do not punish him at all. Why are we so calm? Fine, so somebody who deserves punishment didn’t get it—not so terrible. Let me draw the opposite picture for you. Two valid witnesses come and testify that Reuven murdered Shimon. Okay? Now two related witnesses come and refute them. Two brothers, fine? The latter two are brothers. “Relatives” includes relatives to each other as well, not only to the litigants. Okay? And they refute the first two witnesses. What do we do? This is not a refutation. It is not a refutation, so the first testimony remains valid, which means Reuven is a murderer and we are going to execute him. And we know he didn’t murder. He didn’t murder. Are we going to kill someone who did not murder? Since after all, related witnesses are not suspected of lying, right? What—we are going to kill someone who did not murder? If there were a judge who would do that, I would kill him. He is a murderer. But I know of no source in Jewish law that says that in such a situation we rely on the related witnesses who are refuting them. And refutation is from the Torah too. Fine, but refutation is also there—that’s where I brought it from. My claim—the article deals mainly with the Torah’s novelty concerning false witnesses, to prefer the testimony of the latter two over the first two. And I argued that this too cannot really be a scriptural decree, although the Talmud says it is a scriptural decree, and “you only have it from the moment of its novelty.” But it cannot really be a scriptural decree, because a scriptural decree cannot say that falsehood is truth. If it is two against two, you cannot judge someone for something he did not do because there is a scriptural decree to judge him as though he did do it. Will you hang someone for desecrating the Sabbath or acquit him of desecrating the Sabbath although he did not do it, he did not desecrate the Sabbath? There is no such thing. Therefore I say the same thing regarding the disqualification of relatives, apart from refutation. I brought refutation only to show that there is a disqualification of relatives where we do not rely on them actively, not only passively. Meaning, the scriptural decree not to accept the testimony of relatives here would lead us to kill an innocent person. There is no such thing in the world. Therefore it is obvious that the court cannot kill him. The court will withdraw, like in a fraudulent case or whatever—it cannot kill him, that is obvious. The judge feels this and goes home. The judge, obviously, cannot kill him in such a situation. Why not? Because there is no such thing as a scriptural decree telling me that now it is night, because now it is not night, now it is day. Even if they tell you—right, even if they tell me that day is night, I will listen to them, but the day is still day and not night. By the way, this too is a dispute between the Sifrei and the Jerusalem Talmud, yes? The question whether it is “if they tell you that right is right and left is left,” or “even if they tell you that right is left and left is right”—that is a difference of textual versions. But it doesn’t matter. Even according to the version “right is left,” nobody will tell me—I return to Birkat Shmuel, where I mentioned the story, yes, with the Brisker Rav, Rabbi Chaim’s son, and Birkat Shmuel who was his admiring student. Yes? If Rabbi Chaim had said that this table is a cow—yes?—then the Brisker Rav would say: well, if Father said so, “do not deviate from what they tell you,” he is a great Torah scholar, so apparently, apparently it is a cow. I don’t see it, but Birkat Shmuel is no longer here; he has already run to bring a bucket to milk the table. Meaning, from his perspective that is exactly the foolish student. The foolish student—he wasn’t foolish, I think, so he wouldn’t have run to bring a bucket, I think. But the story is meant to express this. Why is that a foolish student? Because you can say okay, I need to treat it like a cow, I understand—but don’t bring me a bucket to milk it. It is not a cow. A scriptural decree cannot turn a table into a cow. It can tell you to act toward it as though it were a cow for one reason or another. A scriptural decree cannot turn truth into falsehood and vice versa. There is no such thing. Truth is truth and falsehood is falsehood. The same here: there is a scriptural decree that “a person’s agent is like himself.” But I did not perform the action. Fine, so it is considered as though I performed the action, but not factually. Factually I did not perform the action. The fact that there is a law that “a person’s agent is like himself” does not change reality. Okay? Now what does this mean? It means that if there are things that depend on the question of who physically did the action—not who is considered to have done the action, but who physically did the action—then the law of agency will not be relevant to them. Now I’ll give you a whole series of such things. So first of all, of course, this is “it is more of a commandment to do it oneself than through an agent,” as I said before. But that really does not belong at all to the concepts of agency. I’ll give you examples within the concepts of agency. But that one does not belong to the concepts of agency, because to cook for the Sabbath you do not need my agent—we discussed this. So here it depends on who physically did it. The law that “a person’s agent is like himself” does not make me the one who physically did it, even if one understands it as agency of actual performance, as though I performed the action, not merely that the result is attributed to me, and even if one understands the agent as my extended hand and not my authorized representative. It still does not matter, because physically I did not do it. There are things that depend on physical doing. The law “a person’s agent is like himself” is only a legal identification. Similarly—and we will discuss this later too—there is a discussion among the medieval authorities (Rishonim), beginning with Tosafot Rid, and among the later authorities the Ketzot and others discuss this: why can I not appoint an agent to put on phylacteries for me, or sit in the sukkah for me, or take the lulav in my place? The assumption is that you can’t. Why not? Because there is a commandment to take the lulav. I did not physically take the lulav. “A person’s agent is like himself” means as though I took the lulav. And again, even if I am speaking about agency of actual performance. With agency of potential there is certainly nothing to discuss. But if I am speaking about agency of actual performance, then it is as though I performed the act of taking the lulav, not just that the result applies to me. But it is “as though.” Even agency of actual performance is a legal statement. That is what I want to sharpen here. The difference between agency of actual performance and agency of potential is not that in agency of actual performance then you also really did it. You don’t milk tables. Okay? Meaning, even if I say this is agency of actual performance, it is still clear that this is a legal statement. Therefore, in places where physical action is required, the law of agency will not help. So in commandments, that is what Tosafot Rid says: in commandments your own performance is required. The Torah wants you to do it. What does it help that “a person’s agent is like himself”? In a place where your own doing is required only at the legal level, the Torah introduces the novelty that you can do it through an agent and it is considered as though you yourself did it. But where the Torah expects you to do something, to expend energy—an agent didn’t expend your energy. What does it help that “a person’s agent is like himself”? Physically it wasn’t you who did it. So we’ll also talk about agency for commandments. The Talmud in Bava Metzia page 96 discusses a point there that looks on the face of it very strange. Fine, never mind, I’ll do it orally. The Talmud in Bava Metzia page 96 discusses there two contexts. The Talmud says as follows: “Agent”—a dispute of Rabbi Yonatan and Rabbi Yoshiya, as it was taught: one who says to an administrator: all vows that my wife vows from now until I come from such-and-such a place, annul them for her—and he annulled them for her. Could they be annulled? Scripture therefore says: ‘Her husband shall uphold it and her husband shall annul it’—these are the words of Rabbi Yoshiya.” You cannot appoint someone to annul your wife’s vows. Okay? That is Rabbi Yoshiya. Rabbi Yonatan says: we find everywhere that a person’s agent is like himself. So what does Rabbi Yoshiya hold? Does he dispute the rule that a person’s agent is like himself? Apparently he understands that a real, physical action of the husband is required. If the husband does not annul the vows, there is no annulment. Why? Where did he get that from? Another question. But according to Rabbi Yoshiya, the person himself must annul them; appointing someone else will not help. So seemingly we have here a discussion whether a person’s agent is like himself or not. Then immediately afterward it says: Rav Ilish said to Rava: one who says to his slave, “Go and be borrowed together with my cow”—what is the law? Is this borrowing with the owner? “Go and be borrowed together with my cow.” What’s that? “Be borrowed” means: go—while I lend my cow to someone else, you too go work there as a laborer together with the cow. There is a concept of borrowing with the owner. If the owner is borrowed along with the cow, then there is exemption in a case of unavoidable accident, right? The borrower is exempt in unavoidable accident. So he says: “Go and be borrowed together with my cow”—can I be borrowed together with my cow via an agent? Same thing. “You can ask this according to the one who says a person’s agent is like himself, and you can ask this according to the one who says a person’s agent is not like himself.” Is there really someone who says a person’s agent is not like himself? Where? I don’t know such a person. It means “not like himself physically,” as we saw above. That’s what it means. Of course a person’s agent is like himself. Yes, and then it says: an agent is for a commandment, but a slave is not obligated in commandments—not important, that’s another issue. What does “a person’s agent is like himself” mean here? Physically? Yes, yes. Wait, what does physically mean? It means for all the halakhic consequences as though he physically did it. Wait, “a person’s agent is not like himself” here—what does that mean? It means that those consequences that arise from your having physically done it will not exist here halakhically either. But nobody says that day is night. That—no. What? Is there a dispute? Yes, yes, there is a dispute about this and a dispute about that. So what do we see? That with all due respect to “a person’s agent is like himself,” “like himself” is not identity—yes, not physical identity. And there are places where physical identity is needed, and in those places we indeed will not say “a person’s agent is like himself.” So it actually comes out—what? Fine, every context according to its own terms, not important. I’m only saying that the fact that there are such contexts proves that there is a certain level of identification that we do not make. Okay? For example, when Rabbi Chaim says that in betrothal an act of the betrothing party is required, therefore the law of beneficial acquisition does not help, but an agent does help—why doesn’t beneficial acquisition help? So it is clear that the law of agency says that the act of betrothal is considered an act that I did. The law of beneficial acquisition says that the result of the act is attributed to me. But even the law of agency, which says that not only the result but the act is considered an act that I did, still does not mean that I physically did it. “It is more of a commandment to do it oneself than through an agent” still remains a problem here. Fine, there is a three-tier ranking here. In beneficial acquisition, I didn’t do it physically at all. In agency, it is as though I did it, as though I did it legally. But that still does not mean that I really physically did it. That—perhaps in annulment of vows and in various such places—there there is a requirement that it be considered as though you really yourself did it. And that is not fulfilled, at least according to certain views, by the concept of agency. We mentioned something else too: only what can be done with a condition can be done with agency. Right? Regarding halitzah, I mentioned this—I think I mentioned it, no? The Talmud in Ketubot says that what can be done conditionally can be done by agency, and what can be done by agency can be done conditionally. For example, halitzah, which is not possible—you cannot perform halitzah through an agent, so neither can you make it conditional. You cannot perform halitzah on condition. Now why can’t you appoint an agent for halitzah? Presumably because it is like agency for commandments; that is, there is a requirement that you do it physically. You can’t—halitzah. Yes, so Rabbi Shimon, in that same chapter I mentioned to you earlier—I’ll upload it to the model for whoever wants to go through it; recommended—he explains there why, what is the connection between agency and condition. Maybe I’ll talk about it next time because it really is a fundamental point. His claim is that if you can appoint an agent for something, that is a sign that you have complete control over it; you have full power to determine it. And consequently you can also make it conditional. Fine? Because the thing must be under your control in order for you to be able to make it conditional; if it is not under your control, then what are you doing making conditions about something that does not depend on you? Okay? Meaning, the concept of agency stems from the fact that the matter is entirely in your hands. Something that requires that you physically do it—the concept of agency cannot realize that. You have to do it physically. Okay? What? No, I’m saying: your control over the thing—the fact that you cannot appoint an agent means that you are not in control of the thing. If you are not in control of the thing, you also cannot make it conditional. Fine? That’s the point. Now why don’t you have control over the thing in halitzah? Because what is needed is your physical action. Your physical action—you cannot have someone else do that, that is not in your hands. If it were an action that was in your hands, that your intent determines what to do, you could delegate it to someone else. But if the Torah says no, I want you—then obviously, even when I say “a person’s agent is like himself,” it is not considered as though he really physically did it. But that statement is more far-reaching than the trivial. The fact that physically he did not do it is not the novelty. The novelty is that there are halakhic consequences that do not emerge from the concept of agency because in them it is required that it be considered as though I really did it. Meaning, this statement is not just a statement about reality—that it is not considered as though I really did it—like in “it is more of a commandment to do it oneself than through an agent,” where it really is a statement about reality. It is obvious there are halakhic consequences to that statement. It is not that halakhically “a person’s agent is like himself,” and true, factually he is not like himself because physically he did not do it—no. The fact that factually he is not like himself has halakhic consequences in those places where it needs to be an actual factual doing by him. Okay, so that is a subtle point. Now then, I think the claim may be, at least, that this whole idea is learned from the law of beneficial acquisition. After all, there is agency of potential and agency of actual performance in regular agency. In the law of beneficial acquisition, Rabbi Chaim says there is no agency of actual performance, only agency of potential. From where are these two aspects of agency learned? Rabbi Shimon himself notes that there is one source for the law of agency, so from where do we learn two laws? I think that according to Rabbi Chaim at least this is understandable. Because Rabbi Chaim says there is a source for the law of beneficial acquisition—not in the Talmud on the next page. Now you ask yourself: if beneficial acquisition is because of agency, then why are two sources needed—for beneficial acquisition and for agency? What do those two sources teach? Clearly there is something different in the law of beneficial acquisition from the law of agency. So Rabbi Chaim, for example, explains what is different: that beneficial acquisition is agency of potential. In beneficial acquisition it is not considered that I performed the act. If it is under the law of beneficial acquisition, then for it to be considered that I did the act, appointment is required. Without appointment it does not work. So that means that the mechanisms of beneficial acquisition and agency are exactly these two mechanisms. Beneficial acquisition creates agency of potential, and the concept of agency itself is agency of actual performance. And because there is the law of beneficial acquisition, the Talmud apparently assumes that in actual agency it cannot be worse than beneficial acquisition. So if there is agency of potential in the law of beneficial acquisition, then there will also be agency of potential in agency proper. And therefore it comes out that in agency there are both things: agency of actual performance and agency of potential. And still, even after these two laws were introduced, it is still not certain that agency of actual performance speaks about all halakhic consequences. In annulment of vows—no. In halitzah—no. There are commandments for which you cannot appoint an agent. Meaning, even after this double novelty that there is agency of actual performance, there are things for which you are not considered to have done them even if your agent did them for you. Yes, because there is a need that you really do it. A halakhic need that you really do it. The fact that physically you did not do it is obvious; the Torah does not need to teach that. The halakhic result of that physical doing does not exist here, and that is basically the point that emerges from here. There is perhaps a question, parenthetically: why do we need a source for “there is no agent for a transgression”? If we assume there is no agent for a commandment because I need physical action, then so too for a transgression physical action is required in order for it to be a transgression. Why do we need a source that there is no agent for a transgression? I’m speaking about commandments upon one’s own body. An agent for murder. What is the difference between an agent for murder and an agent for taking the lulav? If it is not considered my commandment, then it should also not be considered my transgression, because I did not do it physically. Why should the concept of agency apply to transgressions and not to commandments? Why do we need a source that there is no agent for a transgression, whereas that there is no agent for a commandment does not need a source, it is obvious? The simplest answer is: we need a source for that too, that there is no agent for a commandment; the source is that there is no agent for a transgression. That is the source. From the fact that there is no agent for a transgression, what do we learn? That there are things for which physical doing is required; the Torah wants you to do them, and therefore there is no agent for a transgression because it is not considered that you physically did it. Tosafot Rid says: if that is so, then similarly for commandments there is no agent—we learn it from the sources that say there is no agent for a transgression. The question is why we need this at all in either case—why for both—because you might have thought that the Torah recognizes the act of the one sent as my act. In secular law, for example, incitement to a transgression is considered some kind of transgression, almost as though you committed the transgression itself. In Jewish law, no. In Jewish law, if you incite someone to commit a transgression, it has no significance. “The words of the master and the words of the student—which should one obey?” He is the offender and you are exempt. There is a Yad Ramah in Sanhedrin as an exception who wants to argue otherwise, but that is not the accepted view. What is the law of an inciter? The law of an inciter applies only to idolatry. It is a special novelty in idolatry, a special stringency in idolatry. On the contrary, from the fact that we need a special law of an inciter, we see that incitement in Jewish law has no significance whatsoever. In secular law, incitement or solicitation to a transgression has significance. In Jewish law it has no significance whatsoever. Why? Because each person—if you committed a transgression, that’s your problem, your responsibility. “The words of the master and the words of the student—which should one obey?” Okay? So the point is that there was room to say, like secular law, that if I incite someone to commit a transgression or, so to speak in quotation marks, to perform a commandment, maybe that would be considered my transgression or my commandment. Therefore we need sources saying there is no agent for a transgression, and from there we also infer that there is no agent for a commandment. Okay, that’s enough for today. So next time we really begin entering the topic; until now these were introductions. We will really begin entering the introductions to the laws of agency. We’ll enter the passage of “it is more of a commandment to do it oneself than through an agent.” We’ll see—start looking at the sources brought there, the source for an agent for divorce, an agent for terumah. You can go over the passage a little from the top just to get an impression, and then we’ll start laying it out piece by piece. Okay? But just so that you see that several sources are brought, what the relationships are among them, that there is a need argument among the sources—the picture needs to be in the background even when we discuss each source separately. Okay?