Agency Matters – Lesson 2 – Rabbi Michael Abraham

[Rabbi Michael Abraham] In the previous lecture we talked about “a commandment is better done by oneself than through an agent,” and we saw there that this rule of “a commandment is better done by oneself than through an agent” doesn’t speak specifically about commandments, and apparently also not specifically about agency, and that’s really two sides of the same coin. Meaning, if the thing is not a commandment, then agency also isn’t required there, and maybe it isn’t even defined there, because it’s just a monkey act. So therefore, when Rav Safra singes the head and Rava salts the shibuta fish, these are actions that are not commandments in the formal sense, apparently. Consequently, someone who does them for me doesn’t need to be an agent, and he probably really isn’t an agent. And nevertheless, about that it is said: a commandment is better done by oneself than through an agent. Afterward I qualified that and said that in several later authorities, the Mishnah Berurah and HaMakneh and others, you can see that they do look for a formal commandment dimension in order to speak about “a commandment is better done by oneself than through an agent,” and therefore when they discuss preparing food for the Sabbath, they talk about honoring the Sabbath and not enjoying the Sabbath. Because enjoying the Sabbath is when I eat the food on the Sabbath itself, then I perform the commandment. Honoring the Sabbath is the preparation of the food in anticipation of the Sabbath; that itself constitutes honor for the Sabbath, and therefore the preparation itself is a commandment, it’s not just facilitating a commandment, and then you can say about it that a commandment is better done by oneself than through an agent. That’s with regard to what we saw last time. Now I want to get into the subjects of agency themselves, to begin touching on the topic of agency itself. So in the Mishnah we saw that there are three kinds of agents. There is the husband’s agent, the woman’s agent, an agent for delivery and an agent for receipt, and the father’s agent to betroth his daughter when she is a young maiden, and afterward the Talmud adds also when she is a minor girl. Also in the passage later on, when they look for a source for the law of agency—we’ll see this later—but the first source they bring is regarding agency in divorce. And there too the Talmud says: from where do we know agency? As it was taught in a baraita: “and he sends” teaches that he appoints an agent, “and she is sent” teaches that she appoints an agent, “and he sends / she is sent” teaches that the agent appoints another agent. It seems to me that the “and she is sent” there has the dot in the heh; it’s not “and she sent,” the woman, but “and she is sent from his house”—I think so, I need to look there again, it just popped into my head now. In any case, they derive here the three kinds of agents: an agent for receipt, an agent for delivery, and an agent who appoints an agent, parallel to our Mishnah, which speaks about an agent appointed by the husband, an agent appointed by the woman, and an agent appointed by the father in order to betroth his daughter. That is essentially an agent who appoints an agent. It’s not at all simple that the father is really functioning here as his daughter’s agent; straightforwardly that’s not the case, but there are some discussions among later authorities—I don’t know if we’ll get to that. Maimonides, when he brings these laws, says as follows, chapter 3, halakhah 14 of the Laws of Marriage: “A man may appoint an agent to betroth a woman for him, whether a particular woman or one of the other women; and likewise the adult woman appoints an agent to receive her betrothal, whether from a particular man or from one of the other men; and likewise the father appoints an agent to receive his daughter’s betrothal when she is under his authority, and a person may say to his minor daughter: go out and receive your betrothal.” Regarding the minor daughter, not only can the father do it for her, he can also send her and tell her, go out and receive your betrothal. And here, simply speaking, she is his agent and he is not her agent, in line with what I said earlier. In any case, Maimonides brings here the laws of the Mishnah, and Rav Chaim on this Maimonides makes the following inference: Maimonides wrote, “A man may appoint an agent to betroth a woman for him, whether a particular woman or one of the other women, and likewise the adult woman…” until here is his language. “And one should analyze why, regarding the woman, Maimonides wrote ‘the adult woman,’ while regarding the man he did not write ‘the adult man.’” You see what he’s saying? “A man may appoint an agent to betroth for him”—it doesn’t say, “an adult man may appoint an agent to betroth for him.” But regarding the woman he said, “And likewise the adult woman appoints an agent to receive her betrothal, whether from a particular man or from one of the other men.”

[Speaker B] He’s distinguishing between a minor girl and a young maiden on the one hand, and an adult woman.

[Rabbi Michael Abraham] Right, but why, regarding the husband, does he not say that a minor boy cannot appoint an agent?

[Speaker B] A minor boy can’t effect betrothal; neither can a minor girl.

[Rabbi Michael Abraham] What do you say?

[Speaker C] There’s also the case of a young maiden.

[Rabbi Michael Abraham] Yes, but when he says “when she is under his authority,” he apparently means both a young maiden and a minor girl. A young maiden can do two things, but he means both a young maiden and a minor girl, whenever the father can still act for her or in her name. And regarding the agent for receipt—

[Speaker D] So what’s the difference? So what?

[Rabbi Michael Abraham] Why, with an agent for receipt, should there be a difference between an adult and a minor, but with an agent for delivery there’s no difference? Can a little boy appoint an agent to betroth a woman? No. So why doesn’t he write that? So what Rav Chaim says—yes. Why, regarding the woman, does he distinguish specifically an adult, while regarding the husband he doesn’t write that it’s specifically an adult? I don’t understand this comment at all. What does he want? Maimonides is completely straightforward. With a minor girl or a young maiden, the father can betroth her. Therefore he says: when the woman is an adult, she can appoint an agent. When she is a minor, then the father betroths her, right? But she herself cannot appoint an agent because she cannot undergo betrothal at all. Okay? But regarding the one effecting betrothal, the husband, what is the reason to distinguish between an adult and a minor? A minor boy can’t do it—neither his father nor he himself can do it. It’s obvious we’re talking about an adult; you don’t need to say we’re talking about an adult. With a minor girl, with the woman, you can say: as an adult she appoints the agent herself; as a minor, the father does it. But in the case of the man effecting betrothal, there is no difference between his father and him, and if he can’t do it, then there’s nothing—so it can’t be. So what is there here? He’s not coming to teach that a minor cannot… Maimonides is not coming here to teach that a minor cannot appoint an agent—that’s not the novelty here. Is he coming to say what?

[Speaker D] That a minor can’t effect betrothal?

[Rabbi Michael Abraham] No, he can’t effect betrothal and he also can’t appoint an agent; he lacks legal capacity. But that’s not the novelty Maimonides is coming to teach here. Maimonides is not coming here to teach that a minor can’t appoint an agent or can’t effect betrothal—that’s obvious. But the novelty of Maimonides is not that a minor girl cannot appoint an agent; that too is obvious. The novelty is that in the case of a minor girl, the father can appoint an agent—this is a positive novelty, not a negative one. You can’t say that novelty regarding the husband, because with a minor husband, a minor boy effecting betrothal, there is no such thing as the father appointing an agent to betroth on his behalf, or betrothing on his behalf. Therefore it’s obvious that when Maimonides speaks here about an adult woman, he is coming to set it in contrast to the next sentence where he will speak about a minor girl. In the case of the one effecting betrothal, there is no sentence afterward speaking about a minor boy effecting betrothal, so he doesn’t speak about an adult man effecting betrothal. It’s obvious to everyone that we’re talking about an adult man, because you don’t need to say it. When you come to say that there is also a law regarding a minor girl who is being betrothed, then you need to say: as an adult she appointed an agent, as a minor the father appointed an agent. When you talk about the one effecting betrothal, there is no father, and a minor can’t do anything, so if he had wanted to teach here that a minor can’t appoint an agent, then he should have said: if the one effecting betrothal is an adult, he appoints an agent, and then you’d understand that a minor can’t appoint an agent. But that’s not his novelty. Even on the woman’s side, that’s not his novelty. When he distinguishes between an adult and a minor, it’s not in order to teach that a minor girl can’t appoint an agent. He doesn’t even write that a minor girl can’t appoint an agent—it’s simply obvious. The novelty is that in the case of a minor girl, the father can. That’s the novelty. Not that in the case of a minor girl she can’t—that’s obvious she can’t. Here you might think that nobody can, so he says: no, in the case of a minor girl there is indeed a framework in which the father can betroth on her behalf or appoint an agent who betroths on her behalf. Therefore he distinguishes between adult and minor; that’s why I don’t understand this inference from Maimonides at all. That a minor girl can appoint an agent? On the contrary, a minor girl cannot appoint an agent, and that is completely obvious, so that’s no novelty whatsoever. That the father can—yes. Either betroth on her behalf or appoint an agent. Once he can even betroth on her behalf, it’s reasonable that he can also appoint an agent, because it’s the same idea. The novelty is that the father can even betroth on her behalf—that’s the point. That novelty does not exist regarding the one effecting betrothal, the husband. Okay? Let’s formulate it perhaps differently. What? Fine. Right, Rav Chaim’s comment is not clear. I’m bringing it because of what follows in his discussion, but the comment itself—the inference just doesn’t exist. Maybe one more comment. So what actually is Maimonides’ novelty? Maimonides’ novelty is that on the side of the one being betrothed, the woman, even in the case of a minor girl there is a possibility of effecting betrothal through the father. Or his agent, it makes no difference, but either the father or his agent. In the case of a minor boy there is no possibility of effecting betrothal. So this basically means that regarding a minor girl, the concept of betrothal exists even for a minor girl. True, she can’t do it because she is a minor, so the father does it for her. But understand, there is a sub-novelty here which is really the fundamental one. The novelty on the surface is that the father can betroth his minor daughter, he or his agent. But what lies behind this novelty is that the concept of betrothal applies even to a minor girl. The reason you can’t betroth a minor girl is not because a minor girl cannot be in a state of betrothal, but because a minor girl cannot undergo betrothal in the sense of performing the act of betrothal. But she can be in a state of betrothal, she can be a married woman. And once the Torah introduced the novelty that the father can indeed do it, then it even has practical realization. By the way, that could have been the case even if the father had not been able to betroth the minor girl. And with a minor boy too—we’ll talk about this later—also regarding a minor boy effecting betrothal there could have been a conception saying that the concept of betrothal applies even to a minor boy. What? No. It applies in principle. The minor boy can be betrothed. It’s just that he has no way to betroth, in the sense that there is no way for that state to be created. Because a minor can’t perform legal acts, and the Torah did not give the father the power to do that for the minor boy. So therefore here that statement remains at the theoretical level. Meaning, a state of betrothal exists for a minor boy, but practically it’s theoretical because there is no way to get to that state, no way to carry it out. In the case of a minor girl, such a state exists and it is not only theoretical. If the father betroths her, then that state is also created, meaning she will actually be betrothed. But I think it is more plausible that in the case of a minor boy, betrothal does not apply at all—not that it applies but only theoretically. Once I wondered: does set-aside status exist even on weekdays? It’s just that on a weekday it’s not forbidden, whereas on the Sabbath it is? Or does the concept of set-aside exist only on the Sabbath? And there’s a practical difference. Tosafot speaks about set-aside status with regard to sukkah ornaments on the intermediate festival days. The prohibition against using sukkah ornaments on the intermediate festival days, Tosafot attributes to set-aside status. How can set-aside status apply to something that is not a festival and not Sabbath? On the intermediate festival days there is no rule of set-aside status; these are weekdays for purposes of set-aside status at least. So if you say things are prohibited there because of set-aside status, that means first of all that the concept of set-aside status exists even on a weekday; it’s just that usually we don’t prohibit set-aside on a weekday, we prohibit set-aside only on the Sabbath. Right? So too the concept of food exists even on Yom Kippur; it’s just forbidden to eat it. Meaning, okay? So here too the question is whether, when we talk about betrothal of a minor boy or a minor girl, the issue is that the state is impossible, or that there is no way to create that state. That’s the question. I’ll give you other examples, for instance acquisition by a minor. When I say that a minor can’t acquire things, is that because a minor cannot be an owner, meaning the concept of ownership doesn’t apply to a minor? Or is it only that there is no way to create ownership because he cannot perform the act of acquisition, the legal act of acquisition? With a minor, for example, I can show you that it’s the latter—that the concept does apply to him. What happens with inheritance? When a minor inherits from his father. He inherits fully; it becomes his. They appoint a guardian to handle it and so on, but the money is his. If the concept of acquisition did not apply at all to a minor, then he would not inherit even through inheritance. It would have to wait until he grew up, or I don’t know exactly, something else. Meaning, we see that the concept of acquisition does apply even to a minor. So why can’t a minor acquire? Because he cannot perform the act of acquisition. He lacks legal capacity; he is not a player on the legal field, so he cannot perform a legal act of acquisition. He lacks understanding. So if he needs to bring about an acquisition, he can’t bring it about, but if the acquisition is brought about—there is a dispute among the medieval authorities (Rishonim), as you know, regarding a minor where there is another person with legal intent transferring to him. If there is another person with legal intent transferring—someone else acquires for the minor or transfers to the minor—it may be that this is effective. The Talmud says it is effective. There is a dispute among the medieval authorities (Rishonim) whether it is effective by Torah law or by rabbinic law. And by the way, what difference does it make whether it is Torah law or rabbinic law? The question whether a rabbinic acquisition helps for Torah law—there are all kinds of discussions about this. I really never understood them; obviously it helps, I don’t understand these discussions. In any case, the law of inheritance shows us that the concept of ownership, the result of the act of acquisition, applies even to a minor. The actual implementation he cannot do, because he lacks legal capacity. Now the question is whether with betrothal it is the same. It could be that with betrothal too, the concept applies, only he cannot perform the act. In the case of a minor girl, from the woman’s side, that is certainly so, because the father can betroth her, and after the father does it—receive her betrothal—after the father does it, the father, sorry, after the father does it, then she is fully betrothed by Torah law. Meaning, the concept of betrothal applies even to a minor girl. So why can’t she be betrothed on her own, not through the father? Just as the minor cannot acquire, she cannot take part in a legal act, because she is a minor, she lacks understanding. Okay? But the concept—if hypothetically she could become a married woman through inheritance, without performing a legal act of her own, then she would be a married woman. So in this case it’s not through inheritance; rather her father does it for her, and then everything is fine. What? It’s only technical that she can’t. Yes, how to create the state—but the state as such is defined even for a minor girl. What about a minor boy? There there is room to discuss. Because one could say that the state is defined, but there is no way to produce it. Except that for a minor boy, unlike a minor girl, no alternative option is defined whereby someone else does it for him. Therefore the possibility that a minor boy would be a husband, that he would betroth a woman, is only hypothetical. Theoretically it could happen—even if theoretically it could happen, in practice there is no way for it to occur. He himself cannot effect betrothal, and there is no such thing as the father betrothing someone on his behalf, so it cannot happen. And therefore with a minor boy there is also room to say that the concept of betrothal itself does not apply.

[Speaker D] What?

[Rabbi Michael Abraham] As if only if—

[Speaker D] The ma’amar doesn’t help. Well, if he doesn’t proceed to the yevamah.

[Rabbi Michael Abraham] Yes, but the concept of betrothal doesn’t really exist with a yevamah; it’s not—there is no betrothal in levirate marriage. The ma’amar is not—the concept of betrothal doesn’t exist there. Meaning, once he performs levirate marriage, then she is his wife in the—so you’re saying maybe from there one can see that the concept of marriage does apply even to a minor boy. Could be, could be. And that’s why I’m saying the novelty of Maimonides here is not only a novelty in the laws of bringing about betrothal, that the father can betroth the daughter, but the novelty is first of all that the concept of betrothal applies at all even to a minor girl, and that she can be in a state where she is betrothed. And the question is whether this exists also from the husband’s side. When he is a minor, does betrothal not apply to him at all, or does it apply and there is just no way to get to that state? If I understand that in the case of a minor boy a state of betrothal simply does not apply at all, then of course it becomes even simpler to understand why Maimonides does not distinguish between an adult and a minor regarding the one effecting betrothal, but does distinguish regarding the woman being betrothed. Because the woman being betrothed can actually be betrothed even as a minor girl, so Maimonides has to say that in the case of an adult it is done this way, and in the case of a minor girl the father does it for her, because a minor girl belongs to the category of betrothal. But on the side of the one effecting betrothal, he doesn’t need to distinguish between adult and minor, because with a minor boy this whole category of betrothal does not apply at all. What are you talking about regarding the husband who effects betrothal? The minor boy is not in the whole area of betrothal at all. What do you want? Maimonides, even when he talks about acquisitions, doesn’t say: an adult who performs an act of acquisition does it this way. Whoever performs an act of acquisition—obviously that’s only an adult. A minor doesn’t perform acts of acquisition. When one performs acts of acquisition, one does them this way and that way. This also reminds me of something else. Once I wrote an article about the topic of conversion. And I argued that acceptance of the commandments is an essential part of the process of conversion. Meaning, if there is no acceptance of the commandments, then it’s not a conversion. There were all sorts of arguments about this around the judge in Ashdod many years ago—there was some controversy around the state conversion system—and the claim was that in the state conversion system they don’t insist on acceptance of the commandments, and therefore their conversions are really not conversions. And I said that I agree. Meaning, I really think that’s correct. That judge also claimed that they were all wicked—that went too far—but on the substance of the matter I agreed with him. So I wrote an article about this issue. Then some controversy arose; people said to me, what do you want? Acceptance of the commandments doesn’t appear at all in the Shulchan Arukh. It says: we inform him of a few commandments or something like that. But it doesn’t appear—what appears in the Shulchan Arukh are three things, actually two things: circumcision and immersion. There is also offering a sacrifice, but that doesn’t apply today and it’s not indispensable—the Talmud says so—regarding conversion. But acceptance of the commandments isn’t written. So I said that acceptance of the commandments is not written just as it’s not written in the laws of acquisition in the Shulchan Arukh that you need to want to acquire. That you need to want to acquire. If you don’t want to acquire, you don’t acquire, even if you performed an act of acquisition. Someone fell on an ownerless object, right, someone fell on an ownerless object and it entered his four cubits. If you did not intend to acquire it in the public domain, you did not acquire it. You need intent to acquire in order to acquire, right? So why doesn’t Maimonides write this, or why doesn’t the Shulchan Arukh write it? Because the laws of acquisition speak about someone who wants to acquire. If you want to acquire, I instruct you how to do it. Like Waze, right? It gives directions to everyone, gives directions to the army—I instruct you how to do it. Okay? So if you don’t want to acquire, then you don’t read that section of the Shulchan Arukh. It’s not talking to you. It talks to whoever wants to acquire; it gives him the instructions how to do that, right? Also in—what? No, obviously not. If you don’t want to acquire, you don’t acquire. Therefore there is no need to mention it, because the desire to acquire is indeed indispensable, meaning without the desire to acquire you don’t acquire, but the desire to acquire is not a law within the laws of acquisition. Meaning, if you don’t want to acquire, you are simply not in the category of acquisition. If you want to acquire, I teach you how one acquires. I argued that conversion, in its essence, is acceptance of the commandments. Whoever wants to accept the commandments—how do you do it? Through circumcision, immersion, and offering a sacrifice. If you don’t want to accept the commandments, then apparently you don’t want to convert, that’s fine, so don’t convert. The Shulchan Arukh does not need to write acceptance of the commandments as a law within the laws of conversion, saying that it prevents conversion, because if you don’t accept the commandments then you simply are not a convert. You didn’t come to convert. You came to do something else. Okay, sometimes there are things that you don’t write precisely because they are so obvious. You don’t write them because it’s clear; it’s a basic condition. No, that’s something else. I’m talking about someone who doesn’t want to accept at all, didn’t come for that at all. The question that does appear in the Shulchan Arukh is: we teach him a few commandments. Why? Because in truth, teaching a few commandments is not a condition in the essence of conversion. You want to accept the commandments. Does that mean that during the conversion process you have to study commandments? No, we’ll learn that afterward, what difference does it make. I want to accept upon myself the yoke of the commandments. The novelty is that part of the process of conversion is to inform him of a few commandments. Here that really does appear as a condition, like circumcision and immersion and offering a sacrifice, without which perhaps there is no conversion—whether it is indispensable or not doesn’t matter right now—but it is part of the definition of the procedure of conversion. But the will to accept the commandments—the will to accept the commandments is the conversion; that is what conversion means. It appears in the title. When it says “Laws of Conversion,” that is where acceptance of the commandments appears. Conversion is acceptance of the commandments. All right? So here too, same thing. Many times when something doesn’t appear, it’s not because it’s not true, it’s simply because it is obvious; that’s the only thing being discussed. So if the minor boy doesn’t appear, meaning that this is only for an adult, that’s obvious, because we’re only talking about an adult; a minor boy is not subject to betrothal. In the case of a minor girl, who is subject to betrothal, you can say, okay, so how is it done? The father can do it for her because she belongs to the category of betrothal. But the minor boy doesn’t belong to it at all. Fine, that’s another dispute, it’s not important, I’m not getting into it now; I only brought the example for this kind of logic. Now there is another point I wanted to make here. There is a difference between the function performed by the husband and the function performed by the woman in betrothal. The husband is the one who actually performs the act of betrothal—he gives her the ring, says “behold, you are betrothed to me”—and the woman is passive. She receives the ring, she consents, but she is passive. She does not take part in the act of betrothal.

[Speaker B] She can walk around seven times, but she doesn’t do anything.

[Rabbi Michael Abraham] Right. Except during the wedding canopy when she circles around him. So this difference in roles is very sensitive today, yes, every other day someone comes to me with these klutz-kashes about inequality and so on—how can it be, maybe the woman also wants to give a ring to the husband and not only the husband to the woman, and all kinds of nonsense of that sort. I try to explain to people that I am completely in favor of equality. I’m in favor of equality as much as possible; Jewish law doesn’t always allow equality. But what does this have to do with equality, this issue of who gives the ring? Ritual equality? In the end the question is: the act of betrothal is completely symmetrical. No one can force the other to become betrothed, unlike divorce. In betrothal no one can force it; the woman must consent, without that he cannot betroth her. It’s completely symmetrical, completely equal. The ceremony itself—how it is defined, or not the ceremony, the legal act that is defined there—that is an act done by the husband, because that is how betrothal is brought about. So what? Meaning, the inequality between husband and wife—there is inequality between husband and wife. But that inequality is in the consequences; it has nothing to do with the question of how you perform the ceremony. If she gives him a ring, so what—now she is allowed to commit adultery the way he isn’t allowed to commit adultery with another woman? No, it’s still forbidden. So it’s still unequal even though she also gave a ring. What difference does it make? This ritual equality is really idiotic. Again, one can discuss why the Torah wanted the act to be done specifically from the husband’s side or not, one can object, all fine, but it has nothing to do with equality. Equality is determined by the practical halakhic consequences. What are the mutual rights, what can each one do. And there there is inequality, absolutely. But all these aspirations to make an egalitarian ceremony are simply idiotic in my view. They’re idiotic precisely because I’m in favor of equality. Wherever possible, I would be very happy to do something as equal as possible. But don’t give me a façade of equality. Meaning, she gives him a ring too and he gives a ring. That can also undermine the act of betrothal itself. Because if it’s not clear that he is the one giving the ring and by that he is effecting betrothal, then it’s not betrothal at all. Because “when a man takes a woman,” and not “when a woman is taken by a man,” as the Talmud derives. So one has to ensure that when the ring is given it won’t be egalitarian, because if it is completely egalitarian it can create problems in the betrothal. But I’m saying just the very desire to make it egalitarian strikes me as such empty fashion, because it’s just nonsense. Now, it is true that at the level, let’s call it ritual or legal, there is a difference. Meaning, the husband performs the act of betrothal and the woman needs to consent. It is still equal at the substantive level because no one can force the other; it depends on the consent of both. But in terms of how the thing is brought about, it is certainly something—I won’t call it unequal but asymmetrical. Meaning, the husband performs an action and the woman is only passively consenting. Okay? Now this has implications. It has implications. One implication—I’ll erase from the board. People think that the husband buys the woman, and that the woman is acquired in three ways, meaning that he becomes her owner in some proprietary sense. That’s nonsense. It’s nonsense not because today it’s unfashionable and there are apologetic arguments against this accusation of inequality, but because already in the time of the medieval authorities (Rishonim), they write that a woman is not the property of her husband, and they write this as an objection to the Talmud—not as a defense against feminist critiques. On the contrary, in places where it sounds as if the woman is acquired by the husband, the medieval authorities (Rishonim) object: but a woman is not the husband’s property. Meaning, this is taken as an obvious premise, not as apologetics. It’s clear—she is not acquired by him in any way. What people don’t understand is that when it says “the woman is acquired,” what does that mean? A legal act of acquisition in Jewish law is not an act that creates ownership, but an act that brings a legal effect into force. One of the legal effects is ownership; that is one kind of legal effect in Jewish law. But any legal effect you want to create, you do it through an act. Therefore when it says “the woman is acquired,” the meaning is: by what legal act of acquisition does one bring the status of betrothal into effect. It does not mean that after I acquired the woman, she belongs to me, she is my property. She is not my property in any way. Okay? “The woman is acquired” means the legal act of acquisition. When we speak about a legal act of acquisition in Jewish law, it means an act that brings about a legal effect; it is not an act that specifically creates ownership. All types of legal effects. Because words—words are just words, you can’t acquire things by speech, you need to perform an act in order to bring about a halakhic legal effect. Except, unlike, say, a vow perhaps, or maybe a woman?

[Speaker C] What? A contract?

[Rabbi Michael Abraham] No, what you have is a contract; that’s unrelated. You’re not buying anything. Of course there are rights. You have rights and she has rights. Okay? So it’s a contract. And a contract is perfectly fine; between any two people there can be a contract and they obligate themselves to one another in various ways. There’s a difference between that and ownership acquisition. I wrote about this too. There was once an article by Rivka Lubitch—she presents herself as a female rabbi—in which she argued that marriage should, in her view, be abolished because it isn’t feminist and so on. A ridiculous proposal even if that were true, but she also said that the husband acquires the woman, and she brought lots of proofs from the Talmudic texts and so on; she knows how to learn, I know her. So I wrote an article—I was sort of pushed into writing a response article on this issue—and I showed there beyond any doubt that the woman is not owned. What is true is that when we’re talking about making a contract, then yes, there is an act of acquisition that creates the contract, and the contract includes mutual obligations between the husband and the wife. Fine, correct, in halakhic language that too is called an acquisition. And “we made an acquisition from him”—what does that mean? That he obligated himself before us, not that we acquired him or that he acquired us.

[Speaker D] Also regarding the ketubah.

[Rabbi Michael Abraham] What? The ketubah is something else. That’s not the kiddushin. The ketubah is a document in its own right.

[Speaker D] Financial obligations. Yes, as if he acquires her.

[Rabbi Michael Abraham] Not related. You can acquire a slave and still obligate yourself toward him in all kinds of ways. Fine. A slave is indeed your property; the slave is acquired by you. Not a ketubah—but a slave has rights too.

[Speaker D] As part of the law in the State of Israel. So what?

[Rabbi Michael Abraham] And he has other rights too; what difference does it make? The fact that someone has rights doesn’t mean he isn’t acquired by me. It doesn’t have to be that way. Anyway, why is this important for our purposes? Because you have to understand that from the husband’s side, in the act of kiddushin the husband effects the kiddushin. He performs the act of acquisition. The woman only consents. Okay? When I talk about an agent, then you understand that the agent functions differently for the husband and for the woman: an agent for delivery and an agent for receipt. The agent for delivery is basically sent by the husband to perform an act of acquisition on his behalf. The agent performs the act of acquisition in the husband’s name. Okay? When the woman appoints an agent, the agent does nothing; he simply represents the woman. Right, the husband gives the ring to the agent, or says to him the formula, “Behold, your messenger is betrothed to me”—fine, so you are the representative who stands in for the woman; you are not doing anything on her behalf. Okay, so therefore, for example, we saw that on the one hand the woman has to consent; without that there is no kiddushin. But on the other hand, consent is a passive matter. And therefore one could have said: who says we even need to innovate a law of agency for this at all? If someone is standing here in the woman’s place and consenting on her behalf, everything is fine; the main thing is that she expresses her consent—it’s monkey-work done by someone else. By contrast, the husband is performing a legal act here: he gives the ring and says, “You are betrothed to me”; he effects the kiddushin. So in order to perform a legal act, obviously if I don’t do it myself I have to appoint him as an agent to do it for me or in my name. So there is a difference between the husband’s agent and the woman’s agent. And that could also be the explanation that may take us in a different direction from what I said earlier: why, in the case of a minor boy, is it not relevant at all to speak about kiddushin through an agent? Or even through the father? Because if the minor is the husband, then he has to perform the act of kiddushin. What the father does on behalf of his daughter is merely to consent for her; he supplies the intent for the minor girl who lacks intent. Fine? So he is the intent, he represents her, he represents her interests, he consents on her behalf and receives the kiddushin for her, either he or his agent. It is much easier to say that such a thing exists than to say that someone can do it for the man who is betrothing her. Because there you need to perform an act of acquisition, and there it has to be through an agent. And if a minor cannot appoint an agent, then a minor cannot betroth. But then of course the conclusion is that the minor does in principle belong to the category of kiddushin. He just cannot perform the act of kiddushin. He cannot—like in acquisitions, right?—he cannot perform that act because he lacks legal intent, and he also cannot appoint an agent to do it for him. So in effect the possibility that he belongs to the category of kiddushin is only hypothetical; it cannot actually be realized. Let me also jump ahead a bit. You know that there is a dispute among the medieval authorities (Rishonim) about how to understand the concept of agency: is it an extended hand, or a power of attorney? What does that mean? By the way, these terms are terribly confusing and people use them in opposite senses, and I’ve already seen people call power of attorney an extended hand, and extended hand they call power of attorney, and it’s really very confusing. So I’ll define for our purposes here what I mean. Okay? “Power of attorney” means that I empower the agent, and now he performs the act in my place; I transferred the power to him—that is called power of attorney. So he is actually doing the act in my place, but the results of the act apply to me. Suppose I send an agent to betroth a woman: then you ask, who is the one performing the betrothal? He is. But who is the husband? I am. Meaning: he performed the act of kiddushin, but the result of the act—the kiddushin itself—is my kiddushin. The woman is betrothed to me, not to the agent. Okay? That is called power of attorney. Power of attorney means that I transfer to him the power that I have, and now he acts—not me. The result, of course, is a result that is associated with me or attributed to me. “Extended hand” means that really I am the one acting. He is my extended hand; I act through him, but I am the one acting. Okay? That is called extended hand. Think of it as if I took a long stick and with it I performed the act. Then nobody would say the stick performed the act. I performed the act by means of the stick. What? What distinctions? In the first source I sent you? I don’t think so; we’ll get to it in a moment. The one who perhaps formulates this most sharply—as others did before him too—is the Or Sameach. In Or Sameach on the laws of divorce, he discusses this issue there. Why? Because it starts from a dispute between Maimonides and the Tur. The Talmud says there, in the chapter about one seized by delirium, that if the sender became insane, then the agent—I appointed an agent to divorce my wife, and I became insane—then the agent cannot divorce the woman. Fine? I appointed him while I was sane, and now I became insane, and now the agent goes and wants to divorce the woman—he cannot. Okay? The question is why. The Tur says he cannot because the sender became insane; an insane person cannot divorce a woman. Maimonides says this is only a rabbinic law. Meaning that at the Torah level he actually could divorce her. The rabbis decreed that he should not divorce in such a case. What’s the difference? On the Torah level there is really a dispute here over whether the agent can act when his sender has become insane. Maimonides says yes; only the rabbis decreed that he should not. But Maimonides says yes and the Tur says no. Why? What is the difference? So now the Or Sameach claims that the argument is over how we understand the concept of agency. The Tur understands agency as an extended hand. So in fact the one divorcing is the husband; he is just doing it through the agent. Now if the husband is insane, an insane person cannot divorce. Yes, we know there are chained women like this, whose husbands became insane and now are not legally competent to divorce them, so even if he gives a bill of divorce she cannot be released. It’s a terrible situation. Terrible in one sense; in another sense, part of marriage is taking care of each other when something happens to the other person. So if he became insane and she wants to leave him, that is somewhat a betrayal of the contract between them. Fine, one can discuss that. What? Vegetative state? Yes, yes, that too can be discussed. Vegetative state, vegetative state—but someone has to take care of him. You have a contract, as they say in the movies again: for better or worse, in sickness and in health. Fine? He needs someone to take care of him. When someone is in the hospital, do you think you leave him to the nurses and doctors and that’s it? Vegetative state. Not if he is vegetative—if he isn’t vegetative.

[Speaker D] If he’s vegetative, then—

[Rabbi Michael Abraham] You still need to make sure he’s being treated properly; you need to see that his needs are met and that there is real care there too. There is care for his property, care for his children, care for a thousand things, all sorts of matters. Fine, okay, not the legal question—the moral question. In any case, for our purposes: the Tur, who says that once the sender became insane, the agent cannot divorce, understands that the concept of agency is based on the mechanism of extended hand. The sender is the divorcer through the agent. If the sender became insane, an insane person cannot divorce. Maimonides, by contrast, understands… I became insane—so what? But he is sane, and he is an adult and competent and everything; he can divorce. I gave him the power of attorney, and from that point on he is in effect the husband for purposes of carrying out the act of divorce, right? So he performs the act of divorce; what difference does it make that I became insane? Therefore in principle he could have divorced her, were it not for the rabbinic decree. But Maimonides says that in principle he could have divorced her. That is the dispute between Maimonides and the Tur: whether agency is power of attorney or an extended hand. Where will there be a practical difference? Another practical difference besides the sender becoming insane: what happens if the sender dies? In the context of divorce, for example. I appointed so-and-so to divorce my wife, and then I died. Now, if he divorces her, she’ll be divorced, right? If he doesn’t divorce her, she’ll be a widow, right? So now this makes a practical difference for a High Priest and an ordinary priest, right? A widow is prohibited only to a High Priest; a divorcee is prohibited also to an ordinary priest. It makes a practical difference for levirate marriage too, right? If she is a widow and has no children, she needs levirate marriage; if she is divorced, she doesn’t. So there are many practical differences here, okay? Now apparently this too depends on the dispute between Maimonides and the Tur. Because if the sender died, then according to Maimonides the agent has power of attorney; he received the power to divorce, and he can divorce, and then she will be divorced. But according to the Tur, of course not, because the divorcer is the sender, and if the sender died, then among the dead one is free; the dead do not divorce. Why?

[Speaker D] Because once the sender dies she automatically becomes a widow, meaning it would suddenly change status from divorcee to widow. No.

[Speaker F] So really—

[Rabbi Michael Abraham] The Tur—no, not the Tur, sorry, Ketzot writes, after bringing this dispute between Maimonides and the Tur, that according to Maimonides even if the sender dies, the agent can divorce because he has power of attorney. He brings a proof for this. There is a dispute between Rashi and the Rif about what happens if the husband dies. The Rif says that if the husband dies, then the agent cannot divorce because there is no longer anyone to divorce; she is no longer a married woman. That implies, however, that if there were someone to divorce—

[Speaker C] Then—

[Rabbi Michael Abraham] He could have divorced, right? Meaning the agency is not nullified; the agency still exists, and in principle he can perform that act. It’s just that there is nothing to do, because the kiddushin has already lapsed; it no longer exists. Okay? So he infers from the Rif that in this case—Rashi says that when the sender dies the agency lapses. From the Rif he infers: no, the agency has not lapsed; in principle you can act on behalf of a dead person. If he appointed you during his lifetime, then you can act even when he is dead. Specifically with respect to kiddushin, you cannot divorce the woman because once he dies she is no longer married, so there is no one to divorce. So he brings this as a proof, a proof for the view that according to Maimonides even if the sender dies the agency remains in force. A practical difference, for example, if I sent an agent—I don’t know—to sell my property, fine? To sell my property, and then I died. Now that property still belongs to the estate, it hasn’t yet been divided, let’s say, no matter, it belongs to the estate. According to Ketzot’s reading of Maimonides, the agent can sell the property even after my death, fine? Or even give it as a gift; that makes a practical difference for the heirs. The heirs will say, wait a second, what are you giving that away for? It belongs to us. No, no, I was appointed as an agent; I can give it away as a gift at your expense. Okay? That’s a very major practical difference. Most of the later authorities (Acharonim) disagree with Ketzot; they do not accept this. They don’t accept it. They say, first of all, you cannot divorce because there is no one to divorce, right? Once the husband dies she is no longer his wife, so whom are you divorcing? Beyond that, they also say that even if the conception is power of attorney, it is not that the connection between the agent and the sender is entirely severed. Meaning, even if the conception is power of attorney, once there is no sender, there is no agent either. If the sender became insane, then there is a sender; he’s just insane and cannot perform the act, so the agent will do it in his place, for him. But if the sender died, then there is no sender. It’s not that he has some limitation and cannot do something—there is no sender. And if there is no sender, there is no agent. Ketzot also accepts the first claim. The first claim says: what does it mean to divorce? The agent cannot divorce the woman because there is no husband. Meaning there is no one to divorce. And Ketzot says yes, but that is only a technical issue because there is no husband. But in regard to giving a gift, for example, or something like that, the agency remains in force even after the sender’s death. And the later authorities say: what are you talking about? The agency too is nullified. Not only has the kiddushin lapsed; the agency too is nullified.

[Speaker D] Because if the sender were here now he would have the power to cancel the act; the sender could regret it and cancel the agency.

[Rabbi Michael Abraham] Correct. So that is an indication of the connection that still exists between the agent and the sender even after the appointment, even after the power of attorney. Yes, correct. Why am I saying this? Because it basically means there are cases where it makes no sense to discuss whether the agent can or cannot perform an act, because there is nothing to do. In the case of a minor appointing an agent to betroth, you can say that the minor cannot appoint an agent. But you can also say there is no kiddushin here, so what can the agent do? For a minor, kiddushin is not defined. And now I’m reminded—there could perhaps be a case, say I was born in Adar, always the practical case of the Minchat Chinukh—

[Speaker B] What? What? I was born in Adar.

[Rabbi Michael Abraham] Fine? Then Nisan came and I appointed an agent to betroth a woman. And then the religious court intercalates the year. So that Nisan becomes—

[Speaker F] Adar II, right?

[Rabbi Michael Abraham] So now I’m no longer thirteen; I’m a minor. Right? Now if kiddushin in principle applies to a minor, after all the appointment of the agent was made when I was an adult. Right? This is the issue of someone who was an adult and became a minor. Here you have the issue of an adult who became a minor. So I appointed him as an adult. Now I’m a minor. So if kiddushin does not apply to a minor at all, then the agent cannot betroth on my behalf because it isn’t defined; there is no kiddushin for a minor. But if kiddushin applies to a minor and the only problem is that he has no way to appoint the agent, then here he appointed the agent as an adult, and the agent can betroth on his behalf. This is of course assuming that the appointment remains valid and is not retroactively canceled after the year was intercalated. What? The age of a minor is according to—no, no, by the presumption of Rava, never mind; we’re talking about Rava’s presumption. So if the court intercalates the year then he becomes a minor. There are no hairs—we didn’t see hairs—but there is Rava’s presumption that if thirteen years have passed, then even if there are no hairs he is an adult. Obviously this again is like that passage brought by the Shakh from the Jerusalem Talmud about a three-year-old whose hymen grows back. God, have mercy on me—the Jerusalem Talmud says that all of nature is handed over into the power of the Torah and the sages. Yes, because once the sages… A three-year-old, her hymen grows back: if she was assaulted or her hymen was ruptured, then if she is under three years old it heals back, but if she is over three it does not. What happens if she had relations on the twenty-second of Adar and then the court intercalated the year and it became the twenty-second of Nisan—sorry, the court intercalated the year and it became the twenty-second of Adar? Fine? What happens in such a case? Does her hymen grow back or not? So in the Jerusalem Talmud it seems to say that her hymen grows back, and you see that everything is in the hands of the court and the whole matter… Fine, it’s absurd even to discuss this, with all due respect to the Shakh, but it is really completely bizarre. Obviously that is not the meaning. Yes, the Jerusalem Talmud says it and the Shakh brings it. Everyone quotes it with great enthusiasm—in Bnei Brak at least. Obviously it is not true. The claim is not that for a three-year-old the hymen grows back exactly at age 3.00; rather, around age three, apparently, the hymen stops growing back. Okay? I don’t know, I haven’t checked, but that’s how the sages estimated it. Now approximately around age three, the hymen stops growing back. Now you need to establish a line, because Jewish law works with lines, so the line is age three. And what the Jerusalem Talmud means is that if the court intercalated the year, the determining age for this issue will be the halakhic age. And that does not mean that earlier her hymen would grow back and now it stopped growing back, or vice versa. Obviously not. Rather, for purposes of Jewish law we do go with the halakhic line, because that is the line we set. That’s all. There is no need here to arrive at mystical notions that the court’s determinations change reality; that is completely bizarre. I drifted there. In any event, for our purposes, yes—what I wanted to say, ah, adult and became a minor, yes. What I wanted to say is that theoretically, if the concept of kiddushin applies also to a minor, then here is a situation in which the agent might be able to betroth a woman for him while he is still a minor. But if we say that for a minor the very state of kiddushin does not apply at all—not the act, the state of kiddushin—then it doesn’t matter whether someone can betroth on his behalf and has an agent ready. It won’t help, because the result cannot take effect. Similar to what we saw in Ketzot: the agent himself may be perfectly fine and have power of attorney, everything is fine, but there is no one to divorce; the woman is already not a married woman. Okay? I return to Rabbi Chaim. So Rabbi Chaim asks why with the woman Maimonides distinguishes between an adult and a minor, but not with the husband. A minor cannot appoint an agent at all, neither be an agent nor appoint one. Here we are talking about where he appointed him while an adult and afterward became a minor?

[Speaker D] No, it’s connected to acquisition; acquisition cannot take place for a minor, so that’s why he didn’t appoint an agent.

[Rabbi Michael Abraham] The question is whether he cannot perform an acquisition or whether he cannot be the owner of something.

[Speaker D] No, I think he inherited something. From inheritance we learn that he has ownership; suppose he inherited. But if, say, the child is a minor and appoints an agent to acquire something for him?

[Rabbi Michael Abraham] He can’t. He can’t appoint an agent.

[Speaker D] In general he cannot appoint an agent for anything.

[Rabbi Michael Abraham] No, he cannot be an agent and he cannot appoint an agent. Fine? There is the rule of “one may acquire on behalf of a person,” which we’ll see in a moment—

[Speaker D] There is such a case there.

[Rabbi Michael Abraham] Correct. So I’m saying the opposite: acquisitions are a good example, because in acquisitions it is clear that he belongs to the category of ownership—meaning a minor can own things. That’s not the problem, that ownership does not apply to him. And still, he has no way to reach that state apart from inheritance. But in the normal way, since he cannot appoint an agent, he cannot perform an act of acquisition, he cannot appoint an agent, so he has no way to reach that state, even though at the theoretical level it is defined for him too. Okay. So when Rabbi Chaim wants to resolve this inference in Maimonides—why he distinguishes between an adult and a minor in the woman but not in the husband—“and it seems that Maimonides intended by saying ‘an adult’ to exclude acquisition on behalf of another by virtue of agency, for if acquisition on behalf of another were not by virtue of agency, then one should have been able to receive for the minor girl under the law of acquisition on behalf of another, and therefore he wrote ‘the adult,’ because acquisition on behalf of another is by virtue of agency and one cannot receive on her behalf.” What does that mean? Rabbi Chaim says Maimonides wanted to teach that acquiring on behalf of another is by virtue of agency. Acquisition on behalf of another is a branch of the law of agency; it is not an alternative mechanism. Why? Because if acquisition on behalf of another were not by virtue of agency—if it were an alternative mechanism—then one could receive kiddushin for a minor girl not through her father. She herself: I could receive kiddushin for her under the rule that one may confer a benefit on a person in his absence. Ah, she’s a minor? But I’m an adult, so I can acquire on her behalf. And if the concept of kiddushin applies to her—not that she cannot be betrothed at all; she can, because her father can betroth her, right?—then I would have thought that another adult, not her father, can in effect appoint himself as her agent, to acquire on her behalf, and then she would become a married woman. That is if acquisition on behalf of another is not by virtue of agency. But if acquisition on behalf of another is by virtue of agency, then it is impossible, because we know there is no agent for a minor. And if acquisition on behalf of another is a kind of agency, then there is no acquisition on behalf of another for a minor either. Just as there is no agency for a minor, there is no acquisition on behalf of another for a minor. Okay? Therefore, Rabbi Chaim says that Maimonides wrote specifically “an adult” in order to teach you that for a minor girl one cannot appoint an agent, because acquisition on behalf of another is by virtue of agency. Maimonides is coming to teach that you should not say that acquisition on behalf of another is an alternative mechanism; it is a kind of agency. And how does he teach that? By saying that this applies only to an adult woman. Because if acquisition on behalf of another were not by virtue of agency, then it would also work for a minor girl; one can acquire for minors. One cannot be an agent of minors, but one can acquire for minors. That is a sugya later in our Talmudic passage; we learn it from the chieftains in the division of the land. In any case. Rabbi Chaim says that Maimonides’ distinction between an adult and a minor in the woman receiving kiddushin comes to teach that acquisition on behalf of another is by virtue of agency. How? How does it emerge from Maimonides’ words? Because if acquisition on behalf of another were not by virtue of agency but an alternative mechanism, then it would apply to a minor too. And then it would follow that a minor girl too could be betrothed through an agent—not that she appoints him as an agent, but by virtue of acquisition on behalf of another, he would acquire the kiddushin for her. It is better to sit as two, so it is a benefit; everything is fine. No, no, there is no father; the father died.

[Speaker D] Only the father has that power?

[Rabbi Michael Abraham] No, that’s what I’m saying—not so. If acquisition on behalf of another were not by virtue of agency, then just as the minor girl can be betrothed through her father, she could be betrothed through some other adult who acquires on her behalf. Why not?

[Speaker D] Because all the power of attorney they gave to the father—

[Rabbi Michael Abraham] They gave power of attorney to the father, and any other person could also acquire on her behalf. What does “his problem” even mean? It seems to me the reasoning of… You understand the right to betroth her as a right given to the father. But no—it could be an obligation given to the father, not a right. If someone else does it, fine, let him do it. Who said not? You treat it as though some right of the father has been infringed. No, no right of the father has been infringed. True, the father receives the money. Fine? By virtue of acquisition on behalf of another she is betrothed, and the father receives the money, the kiddushin money. But still, someone can acquire the kiddushin for her. If acquisition on behalf of another—

[Speaker E] Is not by virtue of agency, she could be betrothed also by someone else and not by the father.

[Rabbi Michael Abraham] Correct, one could have said that. Then Maimonides comes and says no, only if she is an adult. In order to let me hear that acquisition on behalf of another is by virtue of agency, and for a minor girl that does not apply. Fine? What happens on the other side, on the man’s side? “And this is specifically regarding receipt of the betrothal, for there acquisition on behalf of another indeed works, since she does not perform the betrothal. But regarding delivery of the betrothal, even if we say that acquisition on behalf of another is not by virtue of agency, one still cannot betroth on behalf of a minor boy, because the law of acquisition on behalf of another does not help in betrothal. In the case of the one doing the betrothing, even if acquisition on behalf of another is not by virtue of agency, I still would not have thought that one can acquire betrothal on behalf of the minor.” Fine? Therefore Maimonides did not bother to say, in the one doing the betrothing, that we are dealing with an adult, because there was nothing for him to teach. What would you want him to teach? That acquisition on behalf of another is by virtue of agency? Even if it were not by virtue of agency, in the case of a minor boy that would still not apply. In the case of the minor girl, if acquisition on behalf of another were not by virtue of agency, the minor girl could have betrothal acquired for her by someone else. So Maimonides had to say we are talking about an adult woman. But in the one doing the betrothing, even if acquisition on behalf of another were not by virtue of agency, a minor doing betrothal still could not do it. Why indeed not? So let’s read the next passage: “The explanation is that acquisition on behalf of another is effective only in acquisitions, where one needs only the intent of buyer and seller, and therefore the law of acquisition on behalf of another is as though there is here a buyer and seller. But in betrothal there is an additional requirement: there must be one who betroths, because the act of betrothal depends on the husband, and through the law of acquisition on behalf of another it is not considered to be his act.” Again. No, let’s say it really is a benefit for him for the sake of argument. Let’s say it is clear to everyone that this is a benefit: a perfect woman, rich, beautiful, smart, healthy, righteous, all the things. So just for the sake of argument; it’s a hypothetical discussion. So he says—what is his explanation? One might have said that for a minor it doesn’t work because for a minor the very concept of betrothal does not apply at all. So it won’t help if someone else does it for me, because the problem is not with appointing the agent; the problem is that the concept of betrothal itself does not apply at all. Okay? But if you pay close attention to his wording, that is not what he says. He apparently understands that the concept of betrothal does apply to a minor boy too, because with the minor girl we see that it does. Right? In the case of the minor girl, the concept of betrothal does apply; after all, her father can betroth her. Okay? So with the minor boy too it is like that. Rather, what is the issue? In the case of the minor boy, the agency needed is agency to perform an act of betrothal. The minor boy performs an act—he gives a ring, says “Behold, you are betrothed.” He gives a ring, says “Behold, you are betrothed to me.” You need an agent to perform that act in your name. There needs to be one doing the betrothing who performs the act. In that situation the law of acquisition on behalf of another will not help even if it is not by virtue of agency. Or perhaps precisely if it is not by virtue of agency. If it is not by virtue of agency, acquisition on behalf of another cannot help here. Others might say this is not acquiring for a person but acquiring from a person. You are basically taking my ring and giving it to someone else in my name. Don’t give in my name. You can receive in my name, not give in my name. Okay? Fine, but I’m not sure that is really the explanation here. Rather, the claim is that since an act is required here—my act, for the act to count as mine—and the law of acquisition on behalf of another does not do that job. The law of agency does that job. When you are my agent, the act you do is considered an act that I did. But someone who comes on his own initiative, without my having appointed him, and performs the act of betrothal in my name—that is not called that I performed the act. So where does the law of acquisition on behalf of another apply? In acquisitions. Why? Because in acquisitions the act—and this is what Rabbi Chaim assumes, and it is a common assumption among halakhic decisors—in acquisitions, what the act is needed for is only to express full intent. To express full intent. The act has no formal dimension. In betrothal the act is constitutive. Meaning it is what creates the betrothal. It is not just there to express full intent. Without the act, even if there is complete full intent, there is no betrothal. In acquisitions, theoretically, if there is complete full intent, then the acquisition takes effect even without an act of acquisition. The reason one needs the act of acquisition is in order to express the fact that there is complete full intent here. Therefore he says: if it is a complete benefit, then there is full intent. I clearly want it; it is obviously a complete benefit. So someone else can acquire it on my behalf. Okay? So that is in acquisitions. But in betrothal, where the act has to be performed by—there, for this purpose, the law of acquisition on behalf of another does not help; only the law of agency does. Therefore if acquisition on behalf of another is not by virtue of agency, I would not have imagined at all that in betrothal it would work. And certainly there is no need to exclude it for a minor boy, because even for an adult it would not work, not just for a minor. It cannot work at all. Only the concept of agency works, and the concept of agency for a minor of course does not apply at all. Therefore Maimonides does not distinguish between an adult and a minor in the one doing the betrothing, only in the woman being betrothed. Because in the one doing the betrothing, it is obvious that whoever acts on my behalf must be my agent. It cannot work by virtue of acquisition on behalf of another. In the woman being betrothed, it can work by virtue of acquisition on behalf of another, and therefore there was a possible assumption that if acquisition on behalf of another is not by virtue of agency, then it would work also for a minor girl. Maimonides comes to teach: no, acquisition on behalf of another is by virtue of agency, and therefore it does not work for a minor girl. In the case of the minor boy, there was no such possible assumption, because whether acquisition on behalf of another is by virtue of agency or not by virtue of agency, what is needed is agency; the law of acquisition on behalf of another does not help. There was no possible assumption that for a minor boy it would help. The girl? No, that is what Maimonides taught—that it does not. Only the father. Yes. But why did he need to teach that? Because one might have said that acquisition on behalf of another is not by virtue of agency, and then it would work for a minor girl. Maimonides teaches that no, acquisition on behalf of another is by virtue of agency. Fine? So this sharpens what I said earlier, that there is an asymmetry between the husband’s role and the woman’s role in the act of betrothal. The husband performs an act of acquisition of betrothal, and there it is not only to make sure or express full intent; rather, that is the act that constitutes the betrothal. Okay? The woman’s role is simply to consent. So obviously, by virtue of acquisition on behalf of another, someone can consent on her behalf—what difference does it make? Fine? And one more note, things we’ll still encounter. Rabbi Akiva Eiger at the end of the first chapter of Ketubot discusses the law of acquisition on behalf of another in the case of a minor convert, where the religious court acquires the conversion on his behalf. So he speaks there about the law of acquisition on behalf of another, and among other things he explains that from there we see that there is acquisition on behalf of another for a minor—at least according to one view in Tosafot—against what Rabbi Chaim writes here in Maimonides. Or not against—only if acquisition on behalf of another is by virtue of agency. If acquisition on behalf of another is by virtue of agency, then there is no acquisition on behalf of another for a minor. That’s what Rabbi Chaim said, right? Rabbi Akiva Eiger argues that even if acquisition on behalf of another is by virtue of agency, one can still do acquisition on behalf of another for a minor. Why? Because the problem with a minor—why can’t a minor appoint an agent?—is not because it is impossible for someone to be an agent of a minor. This distinction keeps coming back. Rather, it is because the minor cannot appoint the agent. The act of appointment requires intent, and the minor lacks intent, so he cannot perform the act of appointing an agent. But if you could imagine there being a possibility for me to have an agent without my appointing him, then there is no problem with an agent also for a minor. There is no essential obstacle to being an agent of a minor. We keep circling back to this from every direction. The whole problem is only that the minor appoints the agent; the appointment is invalid. But if I can somehow bypass the need for appointment, then there can be an agent even for a minor. So Rabbi Akiva Eiger says: I have such a way—the law of acquisition on behalf of another. Even if acquisition on behalf of another is by virtue of agency, it is obvious that acquisition on behalf of another does not require appointment, right? That is the whole idea of acquisition on behalf of another: that you act for me even without my appointing you. What does that mean? That even if acquisition on behalf of another is by virtue of agency, it is an agency that does not require appointment. Fine. An agency that does not require appointment can exist even for a minor. Because the whole problem with a minor’s agency is that the minor cannot appoint, but if acquisition on behalf of another creates agency even without appointment, then what is the problem? There can be acquisition on behalf of another even for a minor. The question whether acquisition on behalf of another helps for betrothal—Rabbi Akiva Eiger does not discuss that there. That is a separate discussion. But on the theoretical level, perhaps in this he would accept Rabbi Chaim, that acquisition on behalf of another cannot perform an act of betrothal. But he does not accept what Rabbi Chaim writes here, that if acquisition on behalf of another is by virtue of agency, then there will be no acquisition on behalf of another for a minor. That is not correct. Rabbi Chaim assumes that the problem with agency for a minor is that there cannot exist at all a situation where someone is the agent of a minor. The result, the state, cannot occur. And Rabbi Akiva Eiger argues: no, such a situation can occur. You just have no way to bring it about. Because when the minor comes to appoint the agent, he cannot appoint him. He lacks the power to appoint; he is a minor. But if we can somehow bypass the problem of appointment, then there can be an agent for a minor. Exactly as I said earlier regarding betrothal: does betrothal not apply to a minor at all, or can the minor simply not create the betrothal? And in acquisitions too, where it does apply. I once said the same thing in an article I wrote about copyright, about intellectual property. People assume—there is a Maimonides in the laws of sale, chapter 22 I think. Maimonides writes there that there is no acquisition in something with no physical substance: the smell of an apple, the appearance of honey, and all kinds of things like that. And therefore the first intuitive assumption among halakhic decisors is that in intellectual property, when you are talking about ideas, a creation, information or an idea, there can be no ownership over it, because it is something with no physical substance. Then the question is how one creates intellectual property. In Jewish law it becomes a whole difficult story. Apparently there is no way to create it; it is only rabbinic enactments or something like that, but no real way, because it is a thing with no physical substance. So I once wrote an article about this, and I argued that there is intellectual property in Jewish law at the Torah level. And this difficulty—that it is a thing with no physical substance—is a mistake. With a thing that has no physical substance, you cannot perform an act of acquisition. But you can be the owner of something with no physical substance. You just cannot perform the act of acquisition on it. Now my creation is mine not because I performed an act of acquisition on it, but because I created it. So if no act of acquisition is needed, there is no obstacle whatsoever to being the owner of something with no physical substance. Maimonides does not write that you cannot own something with no physical substance. He writes that you cannot perform an act of acquisition on something with no physical substance, so it cannot become yours that way. But if it is yours without needing an act of acquisition, then why not? So even a thing with no physical substance can be yours. In general, all the examples the Talmud brings of a thing with no physical substance are always things with no physical substance that are attached to something that does have physical substance. Like the smell of an apple. So whoever owns the apple also owns its smell. You cannot detach the smell of the apple from the apple. You cannot own only the smell of the apple. Whoever owns the apple also owns the smell. Or the appearance of honey or something like that. But if you can detach it and you are speaking only about the thing itself—if there is something with no physical substance that is not secondary to something with physical substance, but stands on its own—here, an idea. An idea is not secondary to something else with physical substance; it is a thing with no physical substance that stands on its own. Who says there is no ownership of such a thing? There is ownership of it. If it has market value and people value it, and it can be registered as it can today, then no problem—you can own it. There too it is the same idea. You see all the time—we have seen many examples like these from every direction—that there is a difference between saying that in principle such a state cannot exist at all, and saying that one cannot bring such a state about. Those are two different things. Can there not be betrothal of a minor, or can a minor simply not effect betrothal? Those are not the same thing. Because if I find a way to do it without the minor’s act, then perhaps it can take effect. But if it is not defined at all, then it will not take effect even without the minor effecting that act. Okay? So it turns out that according to Rabbi Akiva Eiger, Rabbi Chaim’s inference from Maimonides is not correct. Rabbi Chaim’s inference from Maimonides is not correct, and really it is not correct even aside from Rabbi Akiva Eiger, because his question is not a question, the distinction between the adult and the minor girl. But I’m saying that his basic claim—that if acquisition on behalf of another is by virtue of agency, then obviously acquisition on behalf of another for a minor is impossible—is not correct. There is acquisition on behalf of another for a minor even if acquisition on behalf of another is by virtue of agency, according to Rabbi Akiva Eiger. Because once again, their disagreement is that according to Rabbi Chaim agency does not apply to a minor because you cannot be the agent of a minor. Period. A situation in which an adult is the agent of a minor does not exist; such a situation cannot exist. So obviously there cannot be acquisition on behalf of another for a minor—that is incorrect. There is acquisition on behalf of another for a minor, even if it is by virtue of agency, according to Rabbi Akiva Eiger. Because again—the disagreement between them is this: according to Rabbi Chaim agency does not apply to a minor because you cannot be the agent of a minor. Period. A situation in which an adult is the agent of a minor does not exist. Such a situation cannot exist. According to Rabbi Akiva Eiger such a situation can exist; the minor just cannot create that situation. He cannot appoint the agent. But if there is an agent who does not require appointment, as in the law of acquisition on behalf of another, then even if acquisition on behalf of another is by virtue of agency, he can also be the agent of a minor. And you, Rabbi Chaim, are basically saying—I would have said that in a minor there is no concept of betrothal at all. And therefore Maimonides—if Rabbi Chaim’s question were a good question—I would answer it by saying that in a minor the concept of betrothal does not apply at all. Not only that he cannot effect betrothal. Rabbi Chaim does not assume that. Rabbi Chaim assumes that the concept of betrothal applies to a minor boy just as it applies to a minor girl, because we see that in the case of the minor girl it does apply. Only the minor boy cannot effect betrothal. So why can’t an adult agent acquire for the minor boy? Acquisition on behalf of another does not work, because you need an act of the minor boy, and acquisition on behalf of another does not make the act into the minor’s act. Only agency does that. And the concept of agency itself—the minor cannot appoint. Fine? A minor cannot appoint an agent. So acquisition on behalf of another does not do the job. What? Because a minor cannot appoint him.

[Speaker C] No, he does not belong to the category of agency. Okay.

[Rabbi Michael Abraham] He can’t appoint one, and it also doesn’t apply—let’s say, for the sake of the discussion. Right. And therefore, in the case of acquisition on someone’s behalf, where no appointment is needed, that also doesn’t apply if acquisition on someone’s behalf works by virtue of agency. It doesn’t apply to a minor. Right. So therefore there would be room to say that the betrothal does not take effect at all. Rabbi Chaim says: betrothal simply does not apply to a minor. Rabbi Chaim says no—it does apply to a minor, but there is no way to bring it about. Because by the rule of acquisition on someone’s behalf, you can’t effect betrothal in the husband’s name, and by the law of agency, a minor cannot have an agent; essentially, agency does not exist for a minor. But the concept of betrothal—notice, he’s making a distinction here. Regarding betrothal, Rabbi Chaim takes the position that betrothal does apply to a minor; there’s just no way to do it. Regarding agency, he takes the position that agency does not apply to a minor at all—not merely that there is no way to bring it about. Okay? Meaning, the distinction is the same distinction, but Rabbi Chaim takes a different side when you speak about betrothal for a minor than when you speak about agency for a minor. What? It doesn’t help. He can’t betroth. No, no, certainly not. He can perform the physical act of intercourse, and he can also take a ring and say to her, “Behold, you are betrothed to me.” Physically, he can do the act. But since he lacks legal understanding, such an act has no legal significance. In Sha’arei Yosher, Rabbi Shimon makes a distinction between two types of agency, and this continues the same distinction Rabbi Chaim makes, which really is a correct distinction. The distinction between the husband’s role, the woman’s role, and accordingly also between the husband’s agent and the woman’s agent—what function each such agent serves. Rabbi Shimon says: “Now, in the fundamental basis of agency there are two aspects. One aspect is that the Torah viewed an act done by an agent as being attributed as though the sender himself had done it. And we derive this from the verse, ‘You too shall separate,’ and likewise regarding the slaughtering of the Passover offering, as it is written, ‘And they shall slaughter.’ And for this reason the Talmud discusses whether one who sends a competent person to kindle a fire should be liable, and the Talmud concludes that this is because there is no agency for a transgression. And where the agent did not know, several medieval authorities (Rishonim) hold that the Jewish law is that the sender is liable. That is one aspect. The second aspect concerns acquisitions and the like, where the act of the agent is effective and operative like the act of the owner himself. For the basis of this is that, in this regard, the Torah viewed the agent as though he were the owner himself, such that his actions are effective as though he were the owner. As will be explained, with Heaven’s help.” So Rabbi Chaim says that in the concept of agency there are two different aspects. I would even say two types of agency: agency over an act and agency over authority. That’s how the later authorities (Acharonim) formulate it. What does that mean?

[Speaker B] I’ll explain.

[Rabbi Michael Abraham] Agency over an act is the claim that the act performed by the agent is really an act of the sender. It is considered as though the sender himself performed the act. Okay? That is agency over an act. Agency over authority means that the agent performed the act, but he received the authority to do it from the sender. A kind of power of attorney. Therefore, the result of the act is attributed to the sender. But only the result—that does not mean that the sender performed the act. The agent performed the act; the result is attributed to the sender. Where’s the practical difference? For example, agency for a transgression. I send an agent to murder someone. The Talmud says: there is no agency for a transgression. And according to Shammai the Elder, there is agency for a transgression. Now what kind of agency can even apply to such a thing? Did I murder? He murdered. What does that have to do with me? If you want to hold me liable, that means it is actually considered that I myself committed the murder. Because the act of murder does not create some legal status, some result of the act, that can be attributed to me. Right? It’s an act of murder—who did the act? So if the agent did the act, what does “a person’s agent is like himself” have to do with it? What, now I did the act? The answer is yes. If you are discussing whether or not there is agency for a transgression, then you actually want to hold the sender liable for a murder committed by the agent. What does that mean? It means the first type of agency in Rabbi Shimon—the one called agency over an act—that the act of murder is considered an act that I did, not you. In contrast, in acquisitions, the novelty is not that the action you perform is considered as though I performed it. You perform the action, not me. Rather, the result of the action—the legal effect of the acquisition itself that is created—is attributed to me. Meaning, the one who becomes the owner is me, not you. You performed the act of acquisition, but the ownership, the legal status of ownership, is mine, not yours. That is called agency over authority. You receive authority to create a legal effect on my behalf. Agency over an act means an agency where you perform the act but it is considered as though I performed it. Wait, wait, one second. So that is the distinction Rabbi Shimon makes. Okay? Now this is really the two types of agency that exist for the husband and for the woman: an agent to deliver and an agent to receive. Right? Because with an agent to deliver, as Rabbi Chaim said, the agent performs the act of betrothal and it is considered that the sender performed the act of betrothal. Right? Because after all, this is not like acquisitions; Rabbi Chaim himself distinguishes this from acquisitions. It is not like acquisitions, where all you need is definite intent. Here you need an act by the man effecting the betrothal. So if the agent performed the act, where is the act of the one doing the betrothing? You have to say that the act of the agent is considered the act of the one doing the betrothing—that is agency over an act. Okay? In contrast, the woman’s receiving agent—the woman does not perform any act; she is completely passive. All you need is to express her consent. And therefore, in the end, the result of your agency is that the one being betrothed is her and not you. So the agency of the receiving agent is agency over authority, not agency over an act. There is no requirement that the woman perform an act; the act is done by the husband. This is agency over authority: the moment that this agent expresses consent in the woman’s name, then the legal effect of the betrothal takes effect upon the woman; the result is attributed to the woman, not to the agent. That is the second type of agency. The husband’s agency is the first type. It is an agency that says that the husband is the one who performed the act of betrothal, not only that in the end he will also be the husband. That is also true—that is a result. But first of all, it means that the agency caused the act to be considered the husband’s act, not the agent’s. And what Rabbi Chaim is basically saying is that agency over an act has to be actual agency; the rule of acquisition on someone’s behalf cannot work in such a case—even if acquisition on someone’s behalf operates by virtue of agency, it still cannot work. Only an actual agent can do it, because you need to receive the appointment from me in order for your act to be considered my act. If the only issue is the result—if it benefits me under the rule of acquisition on someone’s behalf—then what’s the problem? Obviously I consent to that result, so if you do it in my name, everything is fine; the result will take effect for me as well. So the woman can make do even with some kind of agent under the rule of acquisition on someone’s behalf. But for the husband, where this is agency over an act and not agency over authority, the rule of acquisition on someone’s behalf cannot work there. Okay? So this really only sharpens further that same distinction Rabbi Chaim made earlier between agency over authority and agency over an act.

[Speaker D] Okay. If the husband dies there’ll be somewhere to return to. No—

[Rabbi Michael Abraham] It has to get back to her. Betrothal is: I hand her the ring. Nothing has to get back to me. Nothing has to get back to me. Right, all these agents are agents to deliver something to the woman, and that’s it—go home. There is a returning agency with the husband; that’s another topic, where on the theoretical level something somehow has to return to the husband, but in practice nothing physically has to return to the husband. I’ll skip a bit because I want to finish this. I’ll just say this in one sentence. The claim, the distinction Rabbi Shimon Shkop makes between agency over an act and agency over authority—the distinction between agency over an act and agency over authority—is a distinction in the question of what the result of the agency is. That relates to what you asked, Noam: what is the result of the agency? Is the result of the agency that the act is considered my act, or is the result of the agency that the legal effect is a legal effect attributed to me and not to you? “His extended hand” or “power of attorney” is a question about how the mechanism of agency works, not what its result is. Is the mechanism of agency my act carried out by you, or your act attributed to me? Now, there may be a connection between the two things, at least in one direction. Meaning, there can be a situation where the concept of agency, the mechanism of agency, is “his extended hand,” but the agency is agency over authority. If you are my extended hand, then what happens is that the result of the act is attributed to me. The reverse is harder to say. Meaning, to say that it is power of attorney but the agency is agency over an act—that is strange. Okay? So there may be a connection between these two conceptual inquiries, because in fact Rabbi Shimon does not mention that inquiry—an inquiry he was certainly aware of. He makes a distinction between two types of agency: what the purpose of the agency is. Is the purpose of the agency to create an act of mine, or is the purpose of the agency to create authority or a result that is attributed to me? The discussion of “his extended hand” and power of attorney is not about the purpose of agency, but rather about how agency works, the mechanism of agency itself. How does it work? How does it achieve that result? We spoke earlier about the result, but how do you achieve the result? That is the question of power of attorney or “his extended hand.” Okay, I’ll stop here.