Kiddushin, Chapter 2, 5783, Lecture 6

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[Rabbi Michael Abraham] No, there’s no… not the Pri Chadash on the Shulchan Arukh. The Or Sameach cites it in the name of the Pri Chadash—what he says. But his reasoning is interesting. What happens when the person dies? When he dies, this could be understood in a few ways. One way would be to say that once he dies, even Maimonides agrees that your agency lapses. You can be the agent of an incompetent person, because the incompetent person is still in the world. He can’t appoint an agent, so he has to appoint you while he was still competent. But after he appointed you and you are his agent, then even if he becomes incompetent, there is still someone whose agent you are—he exists in the world. Okay? But if someone dies, you can’t be his agent, because there is no principal. In the absence of a principal, there is no agent. That’s one possibility. It doesn’t seem that the Pri Chadash explains it that way. The Pri Chadash claims that once the principal dies, the marital bond is gone. There is nothing left to divorce, because there is no husband. Notice—not because there is no principal. Meaning, once the principal dies, the problem is not that I’m no longer his agent, because you can’t be the agent of a dead person. No—I am still his agent.

[Speaker B] If he sent you to sell something, then you can sell it?

[Rabbi Michael Abraham] Maybe. Yes. For example. Meaning, in principle, I am still his agent. But what’s the issue? There is no more marital bond. Meaning, when the husband dies, the woman is unmarried. So what are you divorcing—an unmarried woman? You can’t divorce a widow. The problem when the husband dies is not in the relationship between him and the agent, but in the relationship between him and the woman. Once he dies, there is no more marriage, so the act of divorce evaporates, because it no longer exists. That’s the problem bothering the Pri Chadash. In other words, it seems the Pri Chadash understands—and by the way, several later authorities inferred this, from the Rif for example and from other medieval authorities (Rishonim)—they say this is a dispute between Rashi and the Rif. The Rif too basically explains it this way in a case where the principal dies, and the claim is essentially that the agency remains even if the principal dies. The problem is not in the laws of agency; rather, there is simply no marriage. You can’t divorce an unmarried woman. She is unmarried. You need to divorce a married woman; you can’t divorce someone who is unmarried. So the problem is not in the agency; the agency remains even if the principal dies. Okay? For the property of orphans. What? For the property of orphans, agency on behalf of a person is fine. Yes. What…

[Speaker B] Right.

[Rabbi Michael Abraham] It really is strange. That the marital bond belongs to the orphans or to the levir. The levir I can understand. The levir I can understand, but to connect it

[Speaker B] to the orphans—they have no connection at all.

[Rabbi Michael Abraham] I’m going to stop the phone. So the Pri Chadash basically says that the concept of agency—that’s the key point in Maimonides’ view. The Tur’s view is clear. The Tur’s view basically says that if the principal became incompetent—and all the more so if he died, that’s a stronger case—but even if the principal became incompetent, where in principle there is still a marital bond, right? When the husband is incompetent they are still husband and wife. That’s the whole problem of women chained to marriage: when the husband becomes incompetent, the woman is forbidden to remarry. Why is she forbidden to remarry? Because she is still married to the incompetent husband. The marital bond still exists, right? Then Maimonides says: when the husband is incompetent, the marriage still exists, but there is no principal here in the sense of his relation to the agent, and therefore the bill of divorce is rabbinically invalid. But it is valid by Torah law, because the agent is an agent, and there is a marital bond, and there is no Torah-level problem in the laws of agency. The problem would be when the principal dies, and there too the problem is not in the laws of agency—the problem is simply that there is no marital bond. Meaning, you see here very clearly a view that says: once the principal appoints the agent, the agent now receives the power into his own hands, and now he is the one who acts; it doesn’t matter what happens to the principal. The only thing the principal can change here is if he dies, because if he dies then there is no marital bond and you can’t divorce an unmarried woman. But in terms of the bond between agent and principal, in principle it doesn’t matter even if the principal dies. Okay? Once there was an appointment, the principal exits the picture; the agent basically runs everything. I remind you that this is an explanation of Maimonides. Now let me remind you again of the Maimonides we saw earlier, that when he brings the laws of our Mishnah, yes: and likewise a woman who is an adult—sorry—”A man may appoint an agent to betroth a woman on his behalf, whether a particular woman or any woman among women.” And similarly later on, yes: whether a particular man or any man among men, as an agent for receipt on behalf of the woman. What does this novelty mean? It means that I also hand over to the agent the discretion of whom to betroth, or from whom to receive betrothal if he is the woman’s receiving agent. He is not just an agent to carry out a technical act while the principal is the one making the decisions—that’s how we would have thought. Maimonides says no: you can appoint a blank-check agent. Meaning, to give the agent full authority, like I said with Eliezer, Abraham’s servant: go find a wife for my son; whoever you find is acceptable to me. And the decision is your decision. This is an expansion of the concept of agency that already moves in this direction in Maimonides here; it goes in the direction that we also see in Maimonides regarding a principal who became incompetent. Because basically what Maimonides is saying is that once I appointed you as my agent, you stand in my place. You make the decisions, you are the one who acts, and therefore if I became incompetent or if I died, it changes nothing. You can do what you want. What is relevant is that if I die, there is no more marital bond. If there is no marital bond, then you can’t divorce, because there is no one to divorce. But in principle there is no defect at all in your standing as agent, no matter what happened to the principal. That is basically the claim, and that is also what you see in this context. He brings there: “And so too the language of Rashi implies in the first chapter of tractate Gittin: they may not deliver it after death.” Yes—when he appointed people to deliver a bill of divorce, and he died while they were on the way, then they may not deliver it after death, “for as long as the bill has not reached his hand, he has not been freed.” Here this is a deed of emancipation. “And since he died before it reached him, his emancipation is not an emancipation, because the owner’s authority has departed from him and the authority of the heirs has taken effect.” Maimonides says: they may not deliver the deed of emancipation after death. But why not? Not because the principal died and therefore you lost your status as agent—because without a principal you are not an agent. Rather, simply because once the principal dies, the slave is no longer his slave, so he cannot appoint someone to free another person’s slave. Again, the same point we saw in the Pri Chadash, right? Meaning, the fact that the principal dies does not damage the agency link, the link between him and the agent. It simply changes the underlying situation itself, and therefore the agent’s act becomes irrelevant. But in terms of authority to act, the agent can act on behalf of the principal even after the principal dies. It’s as though he commanded him to free the slave of the orphans, yes? Meaning, he still commanded him to free him, and he acts as his agent, only you can’t appoint someone to free another person’s slave. On page 66a, Rashi explains: “After death—what is there? After he died, who is divorcing her?” And the reason is that the divorcer is no longer alive and is not subject to divorce law. The problem is not in the concept of agency. If the principal dies, the agent still functions in his place as his representative, his proxy. Rather, the act that the agent is supposed to perform is no longer defined, because there is no husband, so the woman is unmarried—you cannot divorce an unmarried woman. Or the slave is already the slave of the heirs, so you cannot receive authority to free a slave when he is not the slave of your principal. Okay? So that is the proof the Pri Chadash brings. So he says like this—now I’m returning to the Or Sameach—however, if we say so, that once he appointed him as an agent, we no longer care about the principal, only that it should still be under his ownership—that is, that the act should remain defined—then apparently it depends on this. Meaning, what is the idea underlying this approach of Maimonides? If we say that only the act of the agent is considered as if the principal acted, then of course the principal must be legally capable and mentally competent at the time the agent acts. When the agent carries out his mission, it is as if the principal acted. But if we say that the principal makes the agent like his own body, and the hand of the agent is considered like the hand of the principal, then we can indeed say that once the agent has already been made an agent, we no longer care whether the principal is mentally competent and legally capable. So here he explains the dispute between Maimonides and the Tur. What is he saying? In yeshiva language, it is customary to phrase this as power of attorney or extended hand. And here something clicked for me about this issue. My son was learning in cheder, and they were preparing him for the entrance exams to a junior yeshiva, so they learned this conceptual distinction, and what I called power of attorney, his teacher called extended hand—and vice versa. He reversed the terms. Meaning, what I called power of attorney he called extended hand, and vice versa. At first I didn’t understand what he was saying; everything was backwards for me. We were trying to review with him what he had learned in cheder, and everything was reversed. Then suddenly I understood that first of all there is a terminological problem, and you can see that here. But there is also a real problem there—it’s not just a matter of names. Things like this get switched, and that’s true in many yeshiva-style conceptual analyses. You have to be very careful. Sometimes when you formulate two conceptual possibilities, you can assign the practical ramifications this way and you can assign them that way. And not because the meaning changed—with exactly the same meaning. It’s a delicate business. Let’s see; maybe I’ll comment on that. The point here is this: when he says, “the hand of the agent is considered like the hand of the principal,” is that extended hand or power of attorney? No, that’s power of attorney. And that’s the confusing terminology. What does power of attorney mean? Power of attorney means that I authorize your power, and now you are actually the one acting. I only appointed you; from now on, you’re on the field. That is what I at least call power of attorney, okay? Extended hand means that you are the long arm of the principal—but who is the acting person? The principal. You are just his extended hand; you are basically doing the act as though he is delivering the bill of divorce through you. And basically he is the one doing the act. Right? That’s extended hand. That’s it. Now I would say that if the definition of agency—and this is the question, how do you define an agent, what is an agent? That is why it is so fundamental in discussions of agency. Is an agent someone given power of attorney? Given power of attorney, as we saw in Maimonides, who says that the agent can actually choose who the woman will be, if he received such authorization of course—so he can choose who the woman will be; it could be that the principal is incompetent and the agent decided to divorce anyway. What about the principal? The principal is not mentally competent—doesn’t matter. The agent is the one doing the act; he has replaced the principal, stepped into the principal’s shoes, and from now on he is the principal, he is basically the husband for purposes of divorce, of course. For purposes of carrying out the divorce, he is considered the husband. That is called power of attorney. That is Maimonides’ approach, right? And therefore Maimonides says that if the principal became incompetent, why should I care? The one doing the act is the agent. The agent is the husband for purposes of carrying out the act of divorce, so everything is fine. I don’t care that the principal became incompetent. In principle, even if the principal died, I wouldn’t care—except that if the principal died, the woman is unmarried and there is no one to divorce. But in principle, the agent here is actually the one performing the act; he replaced the husband. The husband was kicked out, he appointed the agent, put him in his place, and left.

[Speaker D] He brought the agent into the action.

[Rabbi Michael Abraham] Right—in a place where his own existence isn’t needed to define the act, then yes, then it works. Now in a place where if I understand it—sorry, that’s Maimonides. According to the Tur, this is what I call extended hand. Extended hand means I am the principal’s long arm. When I give the bill of divorce to the woman, who did the act? The principal did the act. I merely serve as the extension of his hand; he does the act through me. Now clearly, in such an approach, if the principal is incompetent, then what do I care if the principal is holding a long stick and giving the woman the bill of divorce through the stick? Still, he is the one doing the act, and he is incompetent. He cannot do the act. Therefore, under the extended-hand approach—that is the Tur’s approach—if the principal became incompetent, then of course if he died there is nothing to talk about. If he died, not only is she unmarried and therefore cannot be divorced, but there is also no one to divorce her, because the agency too has lapsed.

[Speaker B] Nothing at all, right.

[Rabbi Michael Abraham] So that is the accepted definition. Now if we go back and read it again—it’s just a lesson, a lesson in what?

[Speaker B] That in the Tur he also says that even a physical basis—he can’t do it?

[Rabbi Michael Abraham] You don’t need to write that; it’s obvious. On the contrary: the one who says that it is possible is the one who needs to say it. The lesson I just want to draw from here is this: look at the phrase “his hand,” read it again. But if we say—I’m starting from here—but if we say that the principal makes the agent like his own body, that is the Tur’s view, and the hand of the agent is considered like the hand of the principal—what does that mean? No, that’s not extended hand, that’s power of attorney. Right. I thought the Tur was extended hand.

[Speaker B] Yes, here he derives “hand” in the sense that it is his hand. What? No, “his hand is considered like the principal’s hand” means in the legal sense that he has it.

[Rabbi Michael Abraham] No, so look—it’s not the Tur, it’s Maimonides, I got confused. This is the explanation of Maimonides. What is he saying? You can simply see: we no longer care about the principal, whether he is mentally competent and legally capable. What is he really saying? According to Maimonides, it is power of attorney. But he calls it “the hand of the agent is considered like the hand of the principal.” He means to say that when the agent acts, it is as if the principal acted—but the one acting here is the agent, not the principal. This is not the concept of extended hand. The concept of extended hand is that the principal acts, and the agent is his hand. Here it is his hand, which is why the wording is so confusing and people switch the concepts around. No, no—in Hebrew this is perfectly fine. There is no problem at all. You just have to read it

[Speaker B] with determination and sensitivity.

[Rabbi Michael Abraham] It’s obvious that that is what he means. There is no ambiguity here. It’s completely clear.

[Speaker B] I’m just saying there’s no reason to introduce this whole business of hand—it’s just a mistake.

[Rabbi Michael Abraham] That’s why I’m saying—we are used to the concept of extended hand, and he apparently still didn’t know it.

[Speaker B] No, but even if he didn’t know it, it’s still only confusing. Why did you phrase it as though the hand is like his hand? I am like him, fine. That’s what he means.

[Rabbi Michael Abraham] “A person’s hand” means his legal acts, that it is as though he does it. That is what he means; in analytic legal language that is called his hand. When you say “her hand”—”a woman has no hand to receive betrothal.” What does “she has no hand to receive betrothal” mean? It means she cannot receive betrothal; it doesn’t mean she has no hand. “She has no hand” means that she is not the agent, in philosophical language, she is not the legal actor here. That’s what it means.

[Speaker B] When they say a woman has no hand to receive betrothal, I think they mean specifically this issue of hand in the sense of the possibility of acquisition—something specific.

[Rabbi Michael Abraham] No—for example, if the woman is a married woman, there are later authorities who also say “she has no hand to receive betrothal.” What does “she has no hand” mean? She is not unmarried—does she not have a hand?

[Speaker B] You can’t betroth her. That’s also a problematic wording.

[Rabbi Michael Abraham] So I’m saying, the terminology may be problematic, or whatever, but that’s the accepted terminology. The hand is a metaphor for the body. We may have criticism of the language of the later authorities. Fine. But that’s the language. That’s the language. It doesn’t matter right now whether the criticism is justified or not. In this context, the point is what I’m saying: you need to pay attention when reading, to be sensitive to the meaning and not get hung up on the word. So in short, this Or Sameach is really the main source, even though these ideas also appear a bit elsewhere—already in the Pri Chadash he brings it here and so on. But the Or Sameach is basically the main source from which, usually in the yeshivot, they derive this conceptual distinction: is agency extended hand or power of attorney, and the ramifications are whether the principal became incompetent, whether the principal died, and so on. Now in principle, as I said earlier, this is only a difference in terminology. It’s just terminological confusion. But sometimes there is confusion that is substantive confusion. Meaning, there are situations where the practical ramifications really do reverse. For example, when the Or Sameach writes this, he is speaking about the law of whether an agent can become a witness in the school of Rabbi Sheila; this is later in the chapter, we’ll get to it. The school of Rav Sheila. The question is whether an agent can serve as a witness. All right? And he says: if the agent is the principal’s extended hand, then this question depends on whether you follow Maimonides or the Tur. It depends on whether he becomes the principal’s extended hand or whether he is given power of attorney by the principal. Now try to think for a moment here—you know, if he were the principal’s extended hand, you could formulate this practical difference in both directions. It is very unclear according to which side the agent could serve as a witness and according to which side the agent could not serve as a witness. Very unclear. Because if the agent himself does the act but he is detached by a grant of authority—what I called power of attorney—then can he be a witness or can he not? I would say maybe yes, because then he is not the principal at all. He does the act, but the act concerns the principal. I am betrothing the woman to him or divorcing the woman from him—meaning, it doesn’t concern me at all. Whereas if I am his extended hand, then I am part of him, so I am disqualified from being a witness.

[Speaker B] Why? Because you are not part of him.

[Rabbi Michael Abraham] But since, as the doer of the act, I am part of him, then I cannot testify, because an agent does not become a witness. I’m saying, you can formulate it in both directions. It is a very confusing business, these practical ramifications—some of the ramifications.

[Speaker B] One of the directions isn’t clear to me. What do you mean, because an agent doesn’t become a witness? You’re assuming what has to be proved.

[Rabbi Michael Abraham] No, no—not because an agent doesn’t become a witness. Why doesn’t he? An agent does not become a witness because if you yourself were now to become another person, you couldn’t testify about what you yourself did before.

[Speaker B] Why? If I’m another person?

[Rabbi Michael Abraham] No, what do you mean? You are not another person, but in terms of that act—after all, you are the person who did that act. For another matter you are another person, but with respect to that act, you are the husband. You are now testifying about yourself. You are the husband. The fact that you have now become another person, fine—but the husband is still you. I didn’t become—no, and that’s exactly the point, that you did not become another person. That is exactly the problem. That you were the same person. What do you mean, were?

[Speaker B] I was never another person.

[Rabbi Michael Abraham] So tell me: according to power of attorney and extended hand, according to which one can an agent serve as a witness, and according to which one can an agent not serve as a witness? If it’s extended hand, yes, then maybe he can serve as a witness.

[Speaker B] Why? Why? Why? Why should he be a witness?

[Rabbi Michael Abraham] Because I didn’t do it. Why? “Extended hand” means, well, because he did it. But there’s some kind of identity there: I am his hand. Okay, so that’s a reason to say no, but there’s also a reason to say yes. Okay. And from the other side there’s no reason to say yes. Why? Power of attorney? Even more so. If I’m his authorized agent, right, so what? So you did it—why do I care that you performed the act? But after all, he’s the husband. No, he’s the husband, but still. What do I care who performed the act? The result doesn’t affect him. Obviously, if I transfer ownership—if I buy something for someone else—can’t I testify that I bought it for him? Can’t an agent say, “It was written in my presence and signed in my presence”? An agent in a bill of divorce? You’re bringing proof from the very case itself—that’s the question. No, no, that’s not the question. No. It’s something simple. It’s simple that if the matter doesn’t concern you, if its result doesn’t concern you, then it doesn’t matter that you’re the one who performed the act. That’s exactly the point. If it were specifically “extended hand,” then there would be room to say that the result does concern you, because you’re considered his hand. You’re sort of part of him. So I would say maybe there’s more reason to disqualify you. It’s a very, very non-definitive issue.

There’s—you know—I’ll give you an example regarding conspiring witnesses. Right? With conspiring witnesses, say the standard explanation—according to those who say it’s logical reasoning and not a scriptural decree—the standard explanation is that the refuting witnesses testify about the conspiring witnesses, while the conspiring witnesses testify about themselves, and therefore the second witnesses have an advantage. Okay? And witnesses can’t testify about themselves. Now I ask: but every two witnesses who testify that Reuven murdered Shimon are also testifying that they were there and saw the murder. So they’re testifying about themselves. You shouldn’t be able to accept their testimony. That’s true of any testimony. Why is it possible there? The answer is that when you testify that you were there and saw Reuven murder Shimon, obviously you’re testifying to something that happened to you. But the implications of the testimony don’t affect you, and that’s what matters. The implications concern the question whether Reuven is a murderer or not. So what difference does it make that I’m testifying to something I did? But if I’m a conspiring witness and I testify that I was there, now the discussion is already about me, not about the defendant. Now the discussion is whether to execute me as a conspiring witness. When the discussion is about me, I can’t say, “I was there, and therefore I’m exempt from execution.” I don’t have the status of a witness. But that’s not because it talks about me; it’s because the implications of the testimony affect me.

Now here too, with power of attorney, even if I myself performed the act, it’s obvious that I’m not the husband. The husband—the one who ultimately got divorced or betrothed—is the one who sent me. The legal definition is only that I performed the act for him. So why in the world? I’m not an interested party and nothing of the sort. I’m not the litigant. So the question is whether a litigant is disqualified only because he is interested in the matter. Fine—no, I don’t want to get into all that; this did come up in the Talmud in tractate Bava Batra regarding theft of a Torah scroll. Maybe yes, maybe no, I’m not sure. But I’m just trying to illustrate here—we’ll still get to the question of whether an agent can serve as a witness—I’m just trying to illustrate through this practical difference that the confusion in this conceptual inquiry is confusion on several levels.

First, in terminology: they say here “his hand” and it’s not really “his hand”; rather, it’s specifically power of attorney. But that’s just terminology, that’s language. What I’m saying is that sometimes the confusion actually shifts—meaning, the real notion of “extended hand,” not because we semantically understand the term differently, but because the concept of “extended hand” itself is unclear as to whether its implication goes this way or that way in the case of power of attorney. Meaning, sometimes—and by the way, another claim I wanted to make—is that despite such confusion, those who say this is a practical difference are right. Even though you can take this practical difference in two opposite directions. Because there really are two sides here, this way and that way. It’s not that it’s neutral and you can say whatever you want. There really are arguments this way and that way, and you have to decide which argument is correct. But it is a relevant argument. It is an argument where you understand that it matters whether this is power of attorney or “extended hand” for the question whether he can serve as a witness. How is it relevant? It may be self-contradictory. Meaning, there may be views this way or that way. But that’s another important logical point: when a practical difference can reverse itself, that doesn’t always mean it’s irrelevant. Sometimes it can reverse itself simply because it’s not connected at all. But sometimes it can reverse itself because there really is reasoning this way and reasoning that way, and that’s genuine. Meaning, there is a real connection there, real relevance.

I once wrote about this in a piece—I call it a column on my website—where the column wasn’t about agency itself, but used agency to show the ambiguity in the definition of conceptual inquiries. The confusions that exist in conceptual inquiries in general—you can see this in many places—various pseudo-inquiries or inquiries that switch back and forth. There are inquiries that are simply pseudo-inquiries, there are inquiries that get interchanged, there are all kinds of types of confusion.

Okay, so let me return to our topic. He takes Maimonides from the Tur—what does that mean? If you decide, then there’ll be a decision. The Shulchan Arukh, I don’t remember, but the Shulchan Arukh usually isn’t strict about “disqualified” versus “invalid,” because for it that’s usually relevant to punishment. The Shulchan Arukh generally doesn’t deal with the question whether something is Torah-level or rabbinic-level—sometimes, but usually not. No, generally the Shulchan Arukh follows Maimonides. It’s organized according to the Tur, but in content it usually follows Maimonides. He says there are three—like Rif, Rosh, and Maimonides—and generally it follows Maimonides.

Okay, so Rabbi Chaim says—yes—one can note carefully why in the case of a woman Maimonides writes “an adult woman,” while in the case of a man he does not write “an adult man.” Right. So Rabbi Chaim says this: “It seems that Maimonides intended by ‘adult woman’ to exclude acquisition on behalf of another based on the law of agency. For if acquisition on behalf of another were not based on the law of agency, then by law one could receive for a minor girl under the doctrine of acquisition on behalf of another.” A minor girl—one could have acted as her agent under the law of acquisition on behalf of another, not under the law of agency. If acquisition on behalf of another were not based on agency, Maimonides is basically coming to say that acquisition on behalf of another is based on agency, and therefore even a minor girl cannot become betrothed through an agent, not even under the law of acquisition on behalf of another, because acquisition on behalf of another is based on agency. And since acquisition on behalf of another is based on agency, just as agency doesn’t apply to a minor girl, acquisition on behalf of another doesn’t apply either. Therefore he wrote “adult woman,” because acquisition on behalf of another is based on agency, and one cannot receive for her.

And this is specifically regarding receiving the betrothal, because there acquisition on behalf of another would indeed be effective, since she is not the one performing the act of betrothal. Because in betrothal the woman receives the betrothal; she does not perform an action, she receives the betrothal. Therefore, in that respect, if acquisition on behalf of another were not based on agency, one could acquire on her behalf. Since acquisition on behalf of another is based on agency, one cannot. But with respect to conveying the betrothal—the husband’s delivery agent—even if we were to say that acquisition on behalf of another is not based on agency, one still cannot betroth on behalf of a minor boy, because the law of acquisition on behalf of another is ineffective in betrothal.

That’s how he explains why Maimonides emphasizes that in the woman’s case she must be an adult in order to appoint an agent, whereas in the man’s case he doesn’t emphasize that it must specifically be an adult. He says: because in the man’s case, in conveying the betrothal, Maimonides comes to teach us that acquisition on behalf of another is based on agency—and that’s how Rabbi Chaim explains it. Because if acquisition on behalf of another were not based on agency, then in the case of a minor girl one could have effected betrothal. Maimonides says no: only an adult woman can become betrothed through an agent. That implies that acquisition on behalf of another is based on agency. In the case of a minor boy, even if acquisition on behalf of another were not based on agency, it still would be impossible to betroth through an agent. Why? What’s the difference?

Because in the act of betrothal—as opposed, say, to divorce, where a woman can in principle be divorced against her will—in betrothal the woman’s consent is required. But still, the one who performs the act is the man who betroths, not the woman. He performs an action, and assuming she agreed, the legal effect then takes hold on both of them. And once the minor boy performs an action, you cannot, under the law of acquisition on behalf of another, perform that action for the minor boy, even if acquisition on behalf of another were not based on agency. If acquisition on behalf of another is based on agency, then of course not, because there is no agency for a minor. What? Why not acquisition on behalf of another? Why regarding the woman…? No, not because it isn’t acquisition on behalf of another, but because the woman need not perform an action in order to become betrothed. She needs to consent. Once she consents and receives the betrothal—and that’s just a formal ceremony. But the minor boy does… not that it’s merely formal; there too it’s formal. But the minor boy performs an action. And now, for someone to perform an action for the minor boy, he has to be his agent. Meaning, the law of acquisition on behalf of another won’t help here. And there is no agent for a minor. So it’s not relevant at all.

Therefore, in the case of the man who betroths, Maimonides saw no need to stress that this applies only to an adult man. In the case of the woman being betrothed, he had to stress that it applies to an adult woman, because there was room to think that even in the case of a minor girl it would work under the law of acquisition on behalf of another. That’s what Maimonides says. And the explanation is that acquisition on behalf of another is effective only in transactions, where all that is needed is the intent of buyer or seller. Therefore the law of acquisition on behalf of another works as though there is a buyer or seller here. But in betrothal there is an additional requirement: there must be a man who betroths, because the act of betrothal depends on the husband, and under the law of acquisition on behalf of another it is not called his act.

Meaning, he makes a distinction that isn’t entirely clear, but he distinguishes between transactions and betrothal. He says that in transactions you don’t really need an act as such. The act may express final intention—yes, there is an act of acquisition—but it expresses final intention; you don’t really need an act by the buyer, except perhaps to express his final intention. And therefore the law of acquisition on behalf of another can work in transactions. The law of acquisition on behalf of another means that you performed the act, and if he appointed you to perform the act, then perhaps that act expresses final intention or whatever, and it can work in transactions—though with a minor this still needs discussion, because for a minor what does final intention even mean? A minor has no legal intent. Fine, we won’t get into those implications now.

But in betrothal, he argues, you need an act of betrothal. It’s not only to express final intention; the act has a constitutive status. For example, in transactions there are cases where things are acquired through verbal declaration alone. There are things acquired by declaration; you don’t need an act. Meaning, the act is basically just an instrument; it is not constitutive of the transfer itself, it expresses final intention or whatever. In betrothal, the act has constitutive status; without an act there is no betrothal. Even if you fully intended it and your minds were fully made up and everything, an act must be performed in order for the woman to become betrothed. In such a case, the law of acquisition on behalf of another simply cannot help, not even for an adult. Meaning, the claim is that someone cannot acquire a woman on my behalf, even if I am an adult, because I have to perform the act of betrothal. If I appointed him as my agent and he performed the act in my name, that is considered as though I performed the act. But under the law of acquisition on behalf of another it is not considered that I performed the act. Under acquisition on behalf of another, he acts for me, but it is not considered that I performed the act; rather, the act he performed has implications for me or creates the result with respect to me, but it is not considered that I performed the action. And in betrothal that is not enough. In betrothal, I have to perform the action.

What? Right, under the law of acquisition on behalf of another, even for an adult it wouldn’t help. For an adult it would help under the law of agency. Because if he appointed… yes, that’s the law of agency, that he appointed him. Yes. What does that basically mean—that agency is more severe than acquisition on behalf of another? Stronger? Why? After all, one can acquire on behalf of a minor… No, acquiring there is something a bit different. In the straightforward sense, it’s not really the law of acquisition on behalf of another; it’s a rabbinic transaction enacted so that one can transfer ownership to a minor. It’s not under the law of acquisition on behalf of another. There is a dispute between Rashi and Tosafot whether that is really rabbinic; some say it is Torah-level when another party with legal intent transfers to him. But another party with legal intent transferring to a minor is, in the straightforward sense, a rabbinic rule and has nothing to do with acquisition on behalf of another. Rather, one can transfer ownership to a minor by rabbinic enactment.

What? More severe than agency—I don’t know if… no, no, what do you mean more severe? Less powerful. Of course. Why would it be more severe? The reasoning says it is less powerful. After all, I didn’t appoint you. Obviously if I appoint you, you have more power—at least the same power, if not more—than if I didn’t appoint you and you’re acting for me anyway. Sounds… after all, a minor has no legal capacity to appoint an agent, and we also say he can’t receive, but under acquisition on behalf of another he can. No, that’s something else. I brought Rabbi Akiva Eiger on that at the beginning of the lecture. The whole problem with a minor is not that one cannot be the minor’s agent; rather, the minor cannot appoint. And with acquisition on behalf of another, no appointment is needed, so there’s no problem. But once you are already acting for me either as one who acquires on my behalf or as my agent, we’ve already crossed the hurdle of appointment. Then clearly the agent has more power than one who acquires on behalf of another.

If acquisition on behalf of another is not based on agency, then what is the reason it works at all? Exactly—that itself we learn from minors in the division of the Land. What’s the logic of it? What’s the logic? Like the logic of a guardian: I can acquire for minors. You’re asking in general, about adults, not minors. And acquisition on behalf of another—I don’t know—you can acquire because it is a benefit, and the Torah allows you to acquire on his behalf. What’s the problem? There’s something very strange here, because basically we said agency if we can acquire for him. No, maybe we’ll still discuss this later in the chapter. Even when one says acquisition on behalf of another is not based on agency, obviously it is some kind of agency. The question is what it means to say that acquisition on behalf of another is not based on agency. That is a very difficult question. What does it mean that acquisition on behalf of another is not based on agency? Most later authorities don’t get into this at all: acquisition on behalf of another is not based on agency—it’s just something else, and that’s it. So now do none of the limitations of agency apply to acquisition on behalf of another? Not necessarily. It could be that the same logic that created the limitation in agency creates the limitation in acquisition on behalf of another too, but I’ll leave that for now.

What does Rabbi Chaim say here? I think what’s written here is that the concept of agency basically does two things. This is what the later authorities—Rabbi Shimon and others—call agency for action and agency for legal power. Agency for action means that you perform an act and it is considered as though I performed the act. Agency for legal power means that I transfer to you the legal power to do something, and when you do it, the result takes effect upon me. Okay? For example, in transactions, I transfer to you the power to do something, you do it, it is not considered that I did it, and it need not be that I did it. The fact that you did it creates the acquisition, and now I am the owner of the object; the result is attributed to me, but that does not mean that I performed the act. That is called agency for legal power—a legal power, okay? Agency for action means that when you act, it is considered that I myself performed the act.

I understood that as the same kind of law; that’s not correct. What? Agency for action is “extended hand” and power of attorney. No, no, I don’t think so—I’ll comment on that in a moment. In my opinion that’s not the same thing. On the simplest level, the later authorities who speak of agency for action and agency for legal power usually mean that there are two such kinds of agency. But “extended hand” and power of attorney are a dispute between Maimonides and the Tur. Meaning, how to understand the concept of agency—whether it is “extended hand” or power of attorney. So they can’t overlap. At the most basic level of logical accounting, they can’t overlap. They don’t overlap; I’ll explain in a moment.

Meaning, maybe I’ll explain now. What am I trying to say? This inquiry, whether it is “extended hand” or power of attorney, deals with the question of how agency works. What is the mechanism that operates the agency? Are you functioning as my extended hand, or are you my representative, and what you do is considered as though I did it? Agency for action and agency for legal power are the question of what the result of agency is. Agency for action means that if you are my agent—whether by power of attorney or by “extended hand”—it is considered that I performed the act. Agency for legal power means: you performed the act, but the result takes effect upon me.

I’ll give you an example regarding an agent for a transgression. I brought the Sha’arei Yosher here. Even before “an agent for a transgression,” Sha’arei Yosher formulates these two possibilities—Rabbi Shmuel, of course, his student, followed him. Gate 7, chapter 7: “Now, in the main foundation of agency there are two aspects. One aspect is that the Torah regarded the act performed by an agent as attributable as though the sender had performed it, and we derive this from the verse, ‘So shall you also separate.’ Likewise concerning the slaughter of the Passover offering, where it says, ‘And they shall slaughter’”—this is later in our chapter—“and on this basis the Talmud discusses whether one who sends fire in the hand of a competent person is liable, and the Talmud concludes that there is no agent for a transgression. And where the agent did not know, several medieval authorities rule that the sender is liable.”

Meaning, in the case of an agent for a transgression, when the agent did not know it was a transgression, they say there is an agent for a transgression. What does it mean that there is an agent for a transgression? It means I am considered the one who set the fire. Because when I send the fire in the hand of a deaf-mute, an incompetent person, a minor, or in the hand of a competent person—the competent person is liable there. Sending the fire—in that context, what did agency apply to? There is no legal effect produced there; it’s not betrothal, tithing, or some legal consequence that the act of agency produces. The question is: who has to pay? Who has to pay? The one who performed the damaging act, right? So an agent for a transgression regarding setting my friend’s stack on fire is basically about whether I was the damager or not. It’s not a question of upon whom the result takes effect.

When I betroth someone, the question is not whether I performed the betrothal, but whether the woman is my wife. It’s about the result. It doesn’t matter whether I’m the one who did the betrothing. One can also discuss tort law in terms of responsibility, in which case it would indeed be like a legal effect. Fine, he claims otherwise—I don’t want to get into it. For my purposes I’m only using this. But this is called agency for action, okay? And the second aspect concerns transactions and the like, where what matters is not an act but legal effects. Meaning, there is a legal result to what you do, and the act of the agent is effective and operative like the act of the owner himself. The foundation of this is that for this purpose the Torah considered the agent as though he were the owner himself, such that his actions operate as though he were the owner, as will be explained with Heaven’s help. That is agency for legal power. Your action is considered as though I acted—not that I acted, but that it produces the result just as the result would have been produced had I acted. Fine? That’s called agency for legal power.

Now the implication: there is a Tosafot in tractate Bava Metzia 10b, a famous Tosafot: “And if you would say, what practical difference is there”—there are two opinions there, not important in the Talmud—“why there is no agent for a transgression. What practical difference is there between the one who says ‘if he wanted, he could do it’ and the one who says ‘the agent himself is subject to obligation’? One is not flogged except for intercourse, according to Rava who says at the end of tractate Yevamot: ‘He betrothed her and is not flogged; if he had intercourse, he is flogged.’” Meaning, if a priest betroths a divorcée, he is not flogged for the betrothal; he is flogged only if he has intercourse with her. So he says: if you send an agent for a transgression, you send someone to betroth a divorcée for a priest. The betrothal itself is not the transgression, right? The result is the transgression. “One can say: if he later has intercourse, then he is flogged even for the betrothal.” Meaning, true, there is a condition that only if he had intercourse is he flogged, but after he has intercourse, he is flogged for the betrothal—the betrothal was the transgression, and the flogging only comes when it is actualized, only when he has intercourse. That’s the first answer.

“Alternatively, one can say that even according to Rava there is a practical difference: if there is agency, the betrothal takes effect; if there is no agency, the betrothal does not take effect.” There is a dispute here, and it is a major one with many implications, including the sale permit and many other things. What does it mean that there is no agent for a transgression? Does it mean he is not my agent, and therefore the result never happened? Say I sent an agent for a transgression to perform betrothal—a priest who sent an agent to betroth a divorcée. Now we say there is no agent for a transgression. What does that mean? That the divorcée is not my wife? Because there is no agent—he is not my agent. So if he betrothed her and he is not my agent, then she is not my wife. Or no—there is no agent for a transgression means she is my wife, only the transgression is not transferred to me. The transgression is his and not mine, because “when the words of the teacher and the words of the student conflict, whose words should one obey?”—whatever the explanation may be. The transgression is his, not mine. Meaning, the question is whether “there is no agent for a transgression” means there is no agency at all, or there is agency but no transgression.

A huge practical difference. For example, you appoint an agent to sell land according to the view that says one may not do so because of “do not show them favor,” during the Sabbatical year. So the question is whether it works and it’s merely a transgression—then maybe it’s not my problem; the problem belongs to the one who did it, the agent who did it, because “the words of the teacher and the words of the student…” But I have no problem; I did it through an agent. Or no: if there is no agent for a transgression, then the agency does not exist at all, so I haven’t solved anything—the land is still mine, it was not sold to the non-Jew. The first view is basically that there is no agency for action, but there is agency for legal power. Exactly. The practical difference here sharpens what I meant earlier by distinguishing between agency for action and agency for legal power. Agency for action is agency that transfers the act, that defines the situation as though I myself performed the act. Naturally the result also takes effect on me, but that’s derivative; first of all, I am the one who performed the act.

So according to Tosafot, betrothal doesn’t require agency for action? These are two answers in Tosafot. No, according to the second answer. The last answer. Since she is betrothed, but there is no agent for a transgression in the sense that this is a priestly prohibition? The first answer. So that means betrothal is not as we said—there is agency for legal power, but no agency for action. As we said, the result that she is betrothed did take effect—she is betrothed to me. So the legal power is indeed there, and in the case of an agent for a transgression he is my agent for legal power, but not my agent for action; it is not considered that I performed the act. In this view, that goes against what Rabbi Shimon said. Fine, it may depend on the different answers of Tosafot.

So I think this distinction really sharpens the difference between agency for legal power and agency for action. Of course, what Rabbi Shimon said above is stronger, because here, in the case of an agent for a transgression, both aspects exist. The whole question is: when we say there is no agent for a transgression, which of the two aspects does that cancel—action, or legal power, or maybe legal power too and therefore action as well? In Rabbi Shimon’s case—sending fire in the hand of a competent person—there is no legal power at all; there is only the question of action. So the question whether we say agency for a transgression there or not is secondary. First of all, the very fact that agency is defined there, irrespective of whether it is a transgression or not, means that the agency there is agency for action. Now one has to discuss whether we recognize agency for action in such a case or not. Here, in this case, it is agency both for legal power and for action. It’s just that when we say there is no agent for a transgression, the question is which of the two aspects is canceled or absent.

But there is no such thing as agency for legal power. What do you mean? The radical point, as I understand it, is that every agency is agency for legal power. Because an act someone else does is never an act that I do. No, I’ll comment on that in a moment; that’s not precise. I’ll comment on it in a moment. For example, you see that the transgression is attributed to you in the case of an agent for a transgression… If there were an agent for a transgression, then you too would be considered to have committed the transgression, not only that the betrothal takes effect for you. Right, but that’s because of the act. So what? The act is the transgression. No—and that’s not exact. It’s not true. The act is not the transgression. The transgression is my responsibility for the result. If I managed to cause someone to do something, then I’m still responsible. If I sent… But you are responsible for the causation; that’s exactly the point. But not for the result itself. The result as such takes effect, and you can have it without a transgression, as you said. And that has no connection to responsibility being attributed to me—good. So that means… No, it’s very much connected. No, no. Very much connected. Because then what… when I’m speaking here about act, I specifically do not mean an act like putting on tefillin, where agency doesn’t apply at all, as Tosafot say. That’s exactly the point. When we speak here of act, it is not in that sense. Rather, act here means—even if you call it responsibility—that for me is the act. No, in contrast to legal power. No. No. In the legal sense, that is what is called act. By the way, it’s also like this in the philosophy of action. That is what is called doing an act. Doing an act does not mean a physical description. In a place where you really need a physical definition, the concept of agency truly won’t apply. But here, when we speak about act in the legal distinction between responsibility for the act and responsibility for the result, then act means causing the result. I don’t care right now whether it is responsibility for the fact that the result occurred. If you agree with me that in the end it’s just a question of what you call an act, and of who was responsible for the result occurring… But that’s still not agency for legal power; it’s agency for action.

What’s the difference between the two? The difference is very large. Legal power is only the result—whether the legal effect takes effect. Here responsibility is projected onto me for what happened, not merely that I become the owner. I am a priest who appointed an agent to betroth a divorcée for me. Okay? Legal power means that the divorcée is indeed betrothed to me. That result happened regardless of whether I committed a transgression or not. The result happened. That is called giving agency for legal power. Because what he did successfully produced the act in a way that is attributed to me. He was given the legal power to do it. Agency for action is when I say: I am actually the offender in this act of betrothal. Now it doesn’t matter whether I am considered the one who physically did the act—I did not physically do the act—but legally I am considered the one who performed it. Not just that the woman is now betrothed to me as a result. Rather, I am responsible for what took place.

“Extended hand”… No, no—the question is: with respect to what? No, no. In agency for legal power it isn’t a question of responsibility at all. In agency for legal power the question is whether it happened. That’s all. She’s my wife. It has nothing to do with whether I am responsible or not. But responsibility falls on the agent—what’s the question whether it happened? Why should the legal effect happen? What do you mean? Because there is agency for legal power. What’s the problem? No, but the point in agency for legal power is that in the end you say that the one who performed the act is… No—here you see that that’s not so. You see in Tosafot that it can take effect and I still have no transgression. And I sent the agent. And it happened. And she is now my wife. And still I have no transgression. That’s exactly the point I’m trying… that’s agency for legal power. Okay, fine. All right. I’ve got too much here… it’s necessary to explain Tosafot this way. You’re hanging this on his second answer. Yes. Ah. That if there is agency, Heaven forbid… No, on the first answer. On the first answer. He says that if there is no agency, then the betrothal takes effect but there is no transgression. The second answer is that both are nullified. Yes. So that is the meaning of agency for legal power and agency for action. And I think that is what lies behind Rabbi Chaim.

The final remark—and with this I really have to finish—is exactly what I said earlier as well: I don’t think it is correct to identify this with the inquiry of power of attorney versus “extended hand.” It is not the same thing. Because power of attorney and “extended hand” deal with the question of how the mechanism of agency works. Are you my authorized representative or my extended hand? Here I’m talking about the content of agency. Does the agency produce the result for me, or is the agency considered as though I performed the action? A person can come and say: the mechanism of agency is power of attorney. But the power of attorney means that I am considered the one who performed the act with regard to a transgression, for example, so that the transgression will be attributed to me, even though the conception is power of attorney. And vice versa. It could be that the mechanism is actually agency for action, but in practice I am not considered the one who does the… sorry, I’m going in the opposite direction. Meaning, I might conceive of it as “extended hand”—sorry, I don’t want to say that it is “extended hand”—but the agency only grants legal power and no more. It is “extended hand” in the legal sense; you are my extended hand. It’s not that my hand literally got longer and I physically did the act. That is exactly the point: I did not physically perform the act. Therefore I think these are two independent questions, even though they look very similar. And I think there are later authorities who confuse them. I think they are two independent things.

Okay, I’m not going to get into the next section now. I wanted to make exactly your point: in any case, one has to understand that an agent is not literally me acting. That is obvious. What, in tractate Bava Metzia 96, the Talmud discusses whether “a person’s agent is like the person himself” with regard to borrowing with the owner present, and with regard to what else there? Annulment of vows. Okay? Now if “a person’s agent is like the person himself” means… what is the question? It says “a person’s agent is like the person himself”; we learn it from “so shall you also separate.” “A person’s agent is like the person himself”—does that mean that he literally performs the act, or not? That remains an open question even after we say “a person’s agent is like the person himself” in the sense of the laws of agency, in the legal sense. It does not mean that you really are the owner. And the further implication is really the Tosafot Rid and all those discussions—which we’ll also get to—about appointing an agent to put on tefillin for me, or to sit in the sukkah in my place, or something like that: agency for commandments. Huh? In general the question remains open; it’s obvious that it’s not literal identity. No, no—again, the question is: in what respect? Exactly—that is the open question. After all, no one would say that if I murdered the agent, and the agent was mortally wounded in a way that made him legally doomed, and the sender was mortally wounded in such a way, then I would be exempt. Fine, obviously. That’s why I say: the question is to what extent. The question of to what extent is an open question—that is the question the Talmud asks. The Talmud is not asking other questions. Okay, we’ll stop here.