Agency Matters – Lesson 8 (Final) – Rabbi Michael Abraham

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

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] Where does this novelty come from? I’m saying that in any case, the whole concept of agency here, therefore “the words of the Master versus the words of the student” — the concept of agency here, in my view, simply doesn’t apply. There is a Rashi who says that maybe rabbinically it does, but straightforwardly it doesn’t belong to the concepts of agency. It’s true that in a case like this, if someone sends me to commit some other transgression — not in the laws of the Sabbath but some other transgression, murder, I don’t know, the transgressions being discussed here — and I’m someone who holds that such a thing is permitted, I don’t know, say killing a mortally wounded person, and you think it’s forbidden to kill a mortally wounded person and I think it’s permitted. Just an example, it doesn’t matter, I’m making it up. Okay, there there really is that line of reasoning that one could have said that the logic of “the words of the Master versus the words of the student” doesn’t apply. But even about that, the later authorities discuss whether it depends on the question I mentioned earlier: is the foundation really that reasoning of “the words of the Master,” or is the foundation derived from scriptural verses? And then there is no agency for a transgression regardless of “the words of the Master versus the words of the student,” even in a place where that reasoning doesn’t apply. Because really, in a case of transgression — some later authorities formulate it this way — in a case of transgression, the concept of agency was never introduced. The whole concept of agency is something the Torah introduces. Now, the Torah is not going to introduce a concept of agency in order to let you commit transgressions. So there the concept was never introduced. Some explain “the words of the Master versus the words of the student” that way — Rabbi Akiva Eiger, if I remember correctly. Maybe we’ll see it later. In any event… wait… there’s another question here, maybe if you’re already discussing that question… there’s a similar line of reasoning here too.

[Speaker B] On the one hand here, on the other hand…

[Rabbi Michael Abraham] No, there’s another whole issue here. Suppose he in fact caused you to stumble into a prohibition. Because according to his own view it’s forbidden. Now the question is whether I’m allowed to cause someone to stumble in something that according to me is forbidden but according to him is permitted. That’s in the Talmud in Sukkah 10a. There’s a very interesting Ritva there, who learns from the Talmud there that it’s permitted. It’s permitted, but only where you call the person’s attention to it: pay attention. Sorry — he’s talking about a case where I caused people to stumble in something that according to them is forbidden and according to me is permitted. So he says I’m allowed to cause them to stumble, but only if I tell them: pay attention, there’s a situation here that according to your view is forbidden. And if I do it while they’re unwitting, then I’m forbidden to do so.

[Speaker B] “Do not place a stumbling block before the blind” … yes, according to the plain meaning.

[Rabbi Michael Abraham] In any event, Tosafot — Tosafot in Bava Metzia there — says: “A woman and a slave are subject to obligation. And if you ask, for we learned in the chapter HaKones: one who sends a fire through the hand of a deaf-mute, an incompetent person, or a minor is exempt. But why? Aren’t they subject to obligation?” Now Tosafot brings our Talmudic passage. After all, they are subject to obligation, so why shouldn’t there be agency for a transgression there? “And one can say” — strange question, right? — “and one can say that this is because they are not fit for agency.” What does that have to do with agency for a transgression? A deaf-mute, an incompetent person, and a minor cannot be agents regardless of transgression. Which is basically what I said when I read the Mishnah. So what does the Mishnah say there? Why am I liable by the laws of Heaven? From the perspective of indirect damage. It has nothing to do with agency. There is no agency because a deaf-mute, an incompetent person, and a minor are not fit for agency. Everything they say, that I’m liable by the laws of Heaven, is because I caused damage indirectly, not because they are my agents. And Tosafot at first thought it was really talking about agency — he read the Mishnah not the way I did — but in the conclusion he nevertheless understood it that way. Okay? Meaning, yes, it does talk about — no, it doesn’t talk about agency; it talks about indirect damage. But the Ritva in Bava Metzia, the later Ritva, says there as follows: “And if you ask, how can one say that where the agent is not subject to obligation, the sender is liable? For we learned: one who sends a fire through the hand of a deaf-mute, an incompetent person, or a minor is exempt.” Tosafot asked from our Talmudic passage, right? A deaf-mute, an incompetent person, and a minor are not subject to obligation, and where the agent is not subject to obligation, there is a side in the Talmud in Bava Metzia that the sender would be liable, that there is agency for a transgression. So the Ritva says: “One can say that there it is different, because he did not tell him to damage; rather, he gave the fire into their possession, and in a way that they could not damage except together with the deaf-mute, such that the one sent does only indirect causation, as I explained in its place. The involvement of the deaf-mute causes it” — that’s in the Talmud in Bava Kamma. What is he saying?

[Speaker C] He didn’t send him as an agent.

[Rabbi Michael Abraham] He gave him fire in a situation such that the fire can’t really cause damage unless the deaf-mute does something with it. By the mere existence of the fire, the damage won’t happen. Right. So what comes out from his words? That if he had in fact sent them — but after all they are not fit for agency, a deaf-mute, an incompetent person, and a minor. Tosafot told us that, right? They’re not fit for agency, so why should I care whether you appointed them as an agent or not? He assumes, unlike Tosafot, that a deaf-mute, an incompetent person, and a minor are fit for agency. Why? Since in this matter they are not subject to obligation, and someone who is not subject to obligation — then there is agency for a transgression. But what about the fact that a deaf-mute, an incompetent person, and a minor are not fit for agency at all? In general, regardless of transgression? As far as he’s concerned, that doesn’t bother him. They are fit for agency. We’ll see that in a moment.

[Speaker C] And there’s some logic here. He wants to make the sender liable, to tell him: if you give fire to a deaf-mute, an incompetent person, or a minor, know that you’re guilty; don’t blame him.

[Rabbi Michael Abraham] It doesn’t matter what he wanted. The question is whether he’s liable or not. What he wanted is irrelevant. It’s not interesting that he wanted to make him liable. The question is whether he’s liable. I also want things. I want lots of things.

[Speaker C] He wanted to find some kind of answer.

[Rabbi Michael Abraham] He wanted to find one — the question is whether he found an answer. You know, it reminds me — it reminds me — there’s a book by Professor Gilat, Yitzhak Gilat, called, I think, Chapters in the Development of Jewish Law. And when that book came out, I was in Bnei Brak then, when it came out there was a huge uproar in the world. Everyone was horrified: they said he was originally from Hebron, and how did this Jew go off the path, and so on. By the way, this ties into what we discussed in the previous lecture, that Jewish law — the development of Jewish law — what happened to Jewish law? One typical chapter talks, for example, about the Sabbatical year in our time being rabbinic. So he shows that in earlier sources — there’s an archaeology of the Talmud, right? Researchers distinguish between different layers. In the earlier layers of the Talmud, it’s really clear that the Sabbatical year even in our time is Torah-level. At some stage there was destruction. The Sages, he explains, there was destruction, there was economic distress too, and Roman oppression and everything. The Sages looked for ways to be lenient. So they decided that the Sabbatical year in our time is rabbinic. And then of course you can be lenient in all kinds of contexts. Everyone shouted: what do you mean? What does that have to do with anything? The Sages aren’t influenced by reality at all; after all, they are heavenly beings, as is well known. But beyond that, it really does sound problematic. But when I read it — of course as soon as there was all that noise I read the book, because I understood there were interesting things there — it turns out he didn’t write that, and didn’t even dream of writing that, in any chapter. What he writes is something completely different. Very similar, but completely different. He says: once distress arose, the Sages sat down to work on it because they wanted — yes, what you said — they wanted to find an option for leniency. Okay, and then what? Then they found a line of reasoning, a source, an interpretation, whatever, from which it follows that the Sabbatical year in our time is rabbinic. And therefore one can be lenient. Now that sounds very much like what I said before, but it’s completely different. Because the description I gave before was: they invented a rule that the Sabbatical year in our time is rabbinic in order to be lenient. Here, no. Until now we hadn’t thought through what the status of the Sabbatical year in our time is; we had no motivation. Now an economic difficulty arises, so the Sages ask: is there a way to be lenient? And — lo and behold — they find one. But they find something that really seems correct to them; it’s not that they invented it. It’s just that until they had motivation, they didn’t look. Once you have motivation, you look. When you look — like with prozbul or something like that, although prozbul straightforwardly is rabbinic, but there is a Tosafot in Gittin from which it seems not, it’s the transfer of debts to the court, prozbul, it’s not rabbinic in our time — so what did Hillel do? What did Hillel the Elder do there? He saw there was distress, he sat down to work on it, and he found a device, and that device is Torah-level; it holds water.

[Speaker C] Right, but what I’m saying is: when a decisor comes to issue a Jewish legal ruling, he always comes with an agenda.

[Rabbi Michael Abraham] But in the end, the mechanism he comes up with has to hold water. So why should I care about his motivations? Then explain to me why the mechanism holds water. It doesn’t. The mechanism doesn’t hold water. So why should I care what he wanted? It doesn’t hold water. So what if he wanted it? I know he wants to make him liable. I’m asking why. There’s no reason to make him liable. The fact that you want to — so what if you want to? I also want to make someone liable for indirect causation. I really, really want to make him liable. I want to — but indirect causation isn’t liable. What can you do? I once wrote elsewhere on my website that this is the difference between Modern Orthodoxy and Reform. A lot of the time they look very similar. And I’m telling you from experience — I’ve been accused more than once. But what’s the difference between them? For the Reform, the motivation is the explanation. Meaning: if you want to be lenient, that itself is the reason to be lenient. A Modern Orthodox person wants to be lenient for the same reasons the Reform person does, but he won’t do it if he doesn’t find a mechanism that works halakhically. In other words, the motivation is the same motivation; the only difference is whether the motivation is your explanation — then you’re Reform — or whether the motivation drives you to look for a mechanism, but you really think the mechanism is correct — then you’re Modern Orthodox. Now, you can argue with me whether that mechanism is right or not; fair enough, there are lots of disputes in Jewish law. But you can’t say I’m Reform if I disagree with you. I think the mechanism is correct. The fact that I had a motivation because of which I arrived at that mechanism — so what? In philosophy of science too, they distinguish between the context of discovery and the context of justification. The context of discovery is how a person arrived at his theory. The context of justification is whether it stands up to empirical testing. And the claim is that the context of discovery interests no one. Meaning, if I invent the theory of relativity, who cares how I got to it? My grandmother appeared to me in a dream and told me that bodies change mass when their speed is high. Fine, that’s what happened. The other scientists aren’t supposed to care. What should interest us is what happens in the laboratory. If it happens in the laboratory, then why do you care that it came from my grandmother? And if it doesn’t happen in the laboratory, then even if it came from the mouth of God, it’s not correct, because it doesn’t happen in the laboratory. In other words, the context of discovery — how I discovered the theory — doesn’t interest us. The motivations for why I wanted such a theory don’t interest us. The question is whether the theory is correct.

[Speaker C] In legal arguments, in dialectical reasoning…

[Rabbi Michael Abraham] No, no, no. It’s not science; that doesn’t mean anything goes. You made a huge leap. That it’s not science — true. But that doesn’t mean anything goes. That’s a leap. “Not science” means there’s room for degrees of freedom, there are possibilities to interpret one way or another. It doesn’t mean everything is always possible and anything goes. There are things that aren’t. I don’t see it. Maybe you see it; I don’t. People who aren’t biased don’t see that. They have their justifications. It’s not true that they do whatever they want. They have their justifications. Sometimes you can argue with them; clearly the agenda has an influence. But it’s not that you can do whatever you want. The High Court of Justice didn’t always rule what people thought it would rule and what it wanted to rule. No, that didn’t always happen. Some things, yes. And when you read the decisions, by the way, often things look less absurd than the way they’re described to you in the newspaper. Depends which newspaper you read. If it’s divisible by seven, then… then you read certain newspapers. If it’s divisible by prime numbers, then it’s other newspapers. No, that’s not true. It’s not that it does whatever it wants. No, it’s something else. There’s no certainty — you’re right — but that doesn’t mean anything goes. It doesn’t mean it does whatever it wants. That’s a leap. Okay, Nachmanides already writes this, right? In the introduction to Milhamot Hashem. He writes that the wisdom of our Torah is not like astronomy and mathematics, whose proofs are decisive. It’s not mathematics. There is room for reasoning, room for differences of opinion. It isn’t unequivocal. There’s no mathematics here. “Mistaken in an explicit Mishnah” — that almost doesn’t exist. There’s almost no such thing. It’s an empty concept, “mistaken in an explicit Mishnah.” Almost empty. There are no mathematical proofs, but there is right and wrong. There is “mistaken in judgment.” There is right and wrong. It’s not that the world is ownerless. A lot of postmodernism rests on exactly this confusion. Postmodernism understands that all in all you can justify a great many things from many different assumptions, sometimes opposite ones, so therefore there is no truth. Not true. That nothing is certain — true. But from that it follows that nothing is true? Where did that leap come from? “Certain” and “true” are not synonyms. Okay, in any event, what emerges here? There’s a dispute between the Ritva and Tosafot. According to Tosafot, a deaf-mute, an incompetent person, and a minor are not fit for agency. So in the first clause of our Mishnah they aren’t discussing the laws of agency at all. All they are discussing is the laws of indirect damage. And therefore he is exempt by human law and liable by the laws of Heaven. Right? But I’m saying: according to the Ritva too. Except that it’s speaking in a case where he did not send him. But if he had sent him, then it really would work, and he would be liable by human law, not just by the laws of Heaven — even with a minor, with a deaf-mute, an incompetent person, and a minor. Very difficult. Not only is it difficult conceptually, it’s also difficult in the Mishnah. It should have distinguished and taught within the same case. If the first clause is speaking where you didn’t appoint an agent, then in the latter clause don’t tell me “he sent it through a competent person.” Tell me: “he sent it through a deaf-mute, an incompetent person, and a minor” — meaning he sent them, not that he merely handed them the fire — then he is liable. Why don’t you say that? Right — it should distinguish and teach within the same case, which is what the Talmud always says. You tell me: if he sent a fire through the hand of a deaf-mute, an incompetent person, and a minor, he is exempt by human law and liable by the laws of Heaven; if he sent it through a competent person, the competent person is liable and you are exempt. So you distinguish between a deaf-mute, incompetent person, and minor on the one hand, and a competent person on the other. Why? Distinguish within the category of a deaf-mute, incompetent person, and minor itself. If he gave it to a deaf-mute, incompetent person, and minor without their own active involvement — yes — then he is exempt by human law and liable by the laws of Heaven. And if he handed it to them as agents, then he is liable. That’s the distinction I would expect the Mishnah to make. The Ritva is difficult. Okay, but fine, that is what the Ritva says. That is the Ritva’s position, that such agency applies even to a deaf-mute, an incompetent person, and a minor. Now what is the idea here? Maybe before that, the Nimukei Yosef there in Bava Metzia says: “It appears that a minor who has no independent legal capacity at all, such as one who cannot distinguish between a pebble and a nut, is like a courtyard for making his sender liable, because one cannot say about him: if he wants he does it, and if he wants he does not.” In the Talmud there it says, “if he wants he does it, and if he wants he does not” — that’s with an ordinary agent. But in a place where a courtyard can be an agent, a minor can also be an agent. “And a courtyard was included by reason of agency” — the Talmud says there that a courtyard operates under the law of agency; there are two opinions in the Talmud there, but according to one opinion. He says: in a place where a courtyard can be an agent, why can’t a minor be an agent? So what does that really mean? That there are situations in which even a minor can be an agent. A deaf-mute, an incompetent person, and a minor can be an agent; they are not essentially excluded from the concept of agency, contrary to what Tosafot said. The Nimukei Yosef basically joins the Ritva. What are those cases? Why in those cases, after all we know that agency with a deaf-mute, an incompetent person, and a minor doesn’t apply — those are explicit Talmudic passages. Why do these medieval authorities say that agency can apply to a deaf-mute, an incompetent person, and a minor? It’s because specifically we’re dealing with agency for a transgression. Agency for a transgression is a terribly problematic concept — maybe we’ll see later, if I manage to get there. Usually, with agency, we send someone to create a legal effect, to perform an act that has legal significance. And that act needs to be done by me, so I send someone else, and if “a person’s agent is like himself,” then even though he did it, it’s considered as though I did it. “A person’s agent is like himself.” But a transgression in this respect is just a monkey’s act. Why does it matter that I myself ignite the fire for the object to be damaged? In separating terumah, if I don’t separate the terumah, then it isn’t terumah. I need to do it. So if someone else does it, he needs to be my agent. But damage is damage even if I didn’t do it. It doesn’t have to be that I specifically did it. It’s a monkey’s act. I could have sent a monkey with this torch, right? So it’s not that it specifically requires me for the result to occur. Okay? So in what sense do concepts of agency belong here at all? Straightforwardly, concepts of agency belong here only because of the transgressive significance of the matter. If it weren’t a transgression, agency really wouldn’t belong here at all. But because the result is a result of transgression, and a transgression is like a legal effect — it has halakhic, legal, normative significance, this act — therefore specifically the transgression is what turns the act into an act for which it makes sense to appoint an agent. Precisely because of the transgression. And here the transgression plays a positive role in the matter of agency. Precisely because this act is a transgression, there is room to discuss an agent here. That is, the rule is that there is no agency for a transgression because of “the words of the Master versus the words of the student,” or whatever the reason may be. Fine. But if it is a deaf-mute, an incompetent person, or a minor, then there is no “the words of the Master versus the words of the student,” right? So he can be an agent. An agent for a monkey’s act — not to create a legal effect, not for something requiring mental intent — even a minor can be that. Now, if it’s a transgression, one could have said “the words of the Master versus the words of the student,” but with a minor, a deaf-mute, an incompetent person, there is no “the words of the Master versus the words of the student.” Therefore the Ritva and the Nimukei Yosef argue that there can be agency of a deaf-mute, an incompetent person, or a minor to ignite the fire. And perhaps so too for all transgressions. Agency for murder according to Shammai the Elder — later in the passage, which we won’t get to — there is agency for murder. I send someone to murder, so I am liable. There is an agent for murder — which is very strange. There is an agent for murder? Murder is a monkey’s act? What — he murdered? What — he stuck in a knife? Can I appoint you as my agent to stand on one foot in my name? Stand on one foot — what does “in my name” have to do with it? How am I related to the matter? In separating terumah, only I can separate terumah from my produce. If you do it, you have to do it as my agent; otherwise the result simply won’t happen. Only I can separate terumah. But with murder, or igniting a fire, or something like that — if the result happened, it happened; it has nothing to do with whether I did it or didn’t do it. So why should I care if I said some words to you and in the end you did it — then you committed a transgression. What does that have to do with me? In what sense does agency belong here at all? That’s even before the question whether one says there is agency for a transgression or not. In the very definition of agency, how does agency belong here at all? Only because it is a transgression does agency belong here. Because this monkey’s act has consequences as a transgression, it has normative consequences, so when I send you to do it one could have said that the normative consequences should apply to me, just as the separation of terumah or the act of acquisition apply to me. And on that the Talmud says no. Why? Because there is no agency for a transgression. But that is why the discussion of agency can arise in these contexts at all. In the end, the conclusion is that there is no agency for a transgression, so there is no agent. But all that is when the agent is subject to obligation. If he is a deaf-mute, an incompetent person, or a minor, then what’s the problem? There can be agency for a transgression. Look at Netivot, section 182. “The Nimukei Yosef also asked, for he wrote that with a minor who has no independent legal capacity at all, his sender is liable; but there is no agency for a minor. And from the case of one who sends a fire, etc. And this is puzzling, because he should have asked the same also on Tosafot in Shevuot, who wrote: from the fact that it does not say ‘a man who said to a minor or a gentile: clip my sidelocks,’ and he should have asked: but there is no agency for a minor or a gentile. And we are forced to say” — says the Netivot, or the Shakh, it doesn’t matter at the moment — “and we are forced to say that with agency for a transgression there is a different reason, that we see: in misuse of sacred property, slaughter and sale, and unauthorized use, where the Merciful One included agency for a transgression” — all those are the passages later in our discussion where the Torah explicitly includes that there is agency for a transgression in all those places — “that one is liable even if it was done through a minor, as explained in Me’ilah 21a.” Even when the agent is a minor, I am liable. “And we are forced to say the reason is that since in these cases where agency for a transgression was included, we do not derive it from ‘you too’” — agency for a transgression in all those places is not learned from “so shall you also separate,” but from other verses written there. Right? Specific verses are brought that include it, that there is an agent in misuse of sacred property and slaughter and sale and unauthorized use. In all those places there are verses. Why do you need verses? There is another source for the law of agency; it isn’t included from “so shall you also separate.” Why really not? Because there is no agency for a transgression. There is no agency for a transgression, so from terumah you can’t learn those places. Therefore the Torah writes in those places that nevertheless there is an agent. What does that mean? It means that the concept of agency in those places is not the ordinary concept of agency in the Torah, which is learned from “so shall you also separate.” It’s a specific concept of agency included by those specific verses. Consequently, we do not require there that the agent be similar to the sender. Where do we learn that the agent must be similar to the sender — not a gentile and not a minor and not a deaf-mute? From “so shall you also separate” — “you” and “also you” includes your agents; just as you, so too your agents, the same kind. Okay? But if here there is another source for the law of agency, not “so shall you also separate,” the source is elsewhere — then you have no reason to assume that the agent has to be similar to the sender. Okay? So if it is something that requires mental capacity and a minor has no mental capacity, then he can’t do it because he lacks mental capacity. But if it’s something that doesn’t require mental capacity, then no: “a person’s agent is like himself.”

[Speaker D] But in misuse of sacred property, the Talmud learns that there is agency there from the identical term “sin” from terumah, so that itself is learned from terumah.

[Rabbi Michael Abraham] What — the challenge that we should learn it from terumah?

[Speaker D] No — they ask that there is no agency for a transgression, and then they say no, misuse of sacred property is different because it is learned from the identical term “sin” from terumah. So what is the source that in misuse of sacred property there is an agent? Terumah. By verbal analogy, not by inductive derivation.

[Rabbi Michael Abraham] Ah, by verbal analogy. Yes, right. Fine, that really depends on the question of whether you derive from it and apply it in its own context. Then it could be that you learn the concept of agency from terumah to here, and yet it is still a different concept of agency. It is still a different concept of agency because you learn it by verbal analogy, not from terumah itself; it is not an inductive derivation from terumah, but a verbal analogy. And with a verbal analogy there is the question whether you derive from it and apply it in its own context. Then it could be that you learn from there to here, but here you implement it according to the circumstances here; you don’t import everything that happens there into here. Okay? So the Netivot says therefore there are separate sources, and in those sources it is another concept of agency, and in that other concept of agency a deaf-mute, an incompetent person, and a minor — and also a gentile, in principle — are not excluded. As long as they belong to the matter in principle — yes, there may be other limitations, lack of mental capacity or something like that — but they are not excluded from the passage of agency. Okay? Now he says afterward, but he also explains more. He says: “Accordingly one can also say regarding what the Talmud derives in Bava Metzia from a courtyard — agency for a transgression — such as where someone is not subject to obligation according to Ravina, or where it comes against his will according to Rav Sama, that even if he did it through a deaf-mute, an incompetent person, or a minor, or a gentile, who are not fit for agency, the sender is liable. For the Ritva…” Now he brings this Ritva. “For the Ritva in Kiddushin wrote that the fact that there is no agency for a transgression is not because of ‘the words of the Master.’” Right, we discussed that: not from “the words of the Master,” but from verses. Fine? Which, by the way, is not far-fetched. The claim that if there is a verse and there is a rationale, that necessarily means different opinions — that claim is incorrect. You can argue that one who learns it from the verses does not rely on that rationale. That is a possible claim; it is not far-fetched. “And we are forced to say the reason that truly there is no agency for a transgression is that from terumah one can learn only regarding the validity of the act, whereas in agency for a transgression, where the sender is liable to punishment as though he committed an act involving action, this we do not find to be learned from terumah.” This brings us back to the distinction we made between agency over a legal power and agency over an act. Agency over a legal power means that the result of the act is attributed to me. Suppose I send an agent to betroth a woman, to separate terumah, to divorce — he does the act, and in the end the result needs to be attributed to me. The concept of agency attributes the result to me. That is agency over a legal power. In contrast, there is agency over an act. Agency over an act means agency where it has to be considered that I myself performed the action — not that the result is attributed to me, but that I performed the action itself. Okay? So he says that with an agent for a transgression, in practice this is agency over an act, not agency over a legal power. It is not agency over a legal power because there are no legal effects here; you didn’t effect anything, you performed an act. You sent someone to murder, sent someone to burn; you performed an action. The whole discussion is only about who performed the action. Can we say that the sender performed the action because “a person’s agent is like himself,” or not? As a result we’ll discuss whether you also committed the transgression, because if you performed the action then you also committed the transgression. Okay? So this is agency over an act, not agency over a legal power. Agency for terumah, for betrothal, for divorce — that’s agency over a legal power. You have a legal power; you create, you bring about some legal reality, and that legal reality is attributed to the sender. Therefore he says: you can’t learn from terumah, which speaks of agency over a legal power, to these agencies, which are agency over an act. Therefore those verses are verses that innovate another kind of agency — agency over an act. Yes, so “this we do not find to be learned from terumah.” Really, the question of the identical term from terumah — that’s a bit of a bold question. “And know that according to most decisors, even with agency for a transgression the act is valid, and nevertheless the sender is exempt from punishment.” Yes: if someone sends an agent to commit a transgression — sends him, I don’t know, to steal, or sends him to buy, to sell, whatever. There is agency for selling land — according to the Hazon Ish, say, that there is a prohibition of “you shall not show them favor,” so it is forbidden to sell land in the Land of Israel. Now I send an agent to sell land in the Sabbatical year. Fine? So there is a transgression here. And they say there is no agency for a transgression. Therefore the claim is that because there is a prohibition of “you shall not show them favor,” the sale also doesn’t take effect. Why doesn’t it take effect? Because the one who performed it, the agent, is not an agent, because there is no agency for a transgression. And once he is not my agent, then he can’t sell my field; my field is not sold. So the claim is that because of the prohibition, the act also doesn’t exist legally. But that is a minority opinion, says the Netivot. Yes — anyone who really wants to will insist on relying on that minority. But the truth is that this whole position is utterly untenable halakhically, of course in the Sabbatical year. Why? Because first, what transgression? I think there is no transgression here. Second, even if it is a transgression, the claim that if it is a transgression then there is no agency is a minority position among the decisors. When we’re dealing here with a rabbinic law — the Sabbatical year in our time is rabbinic — then this whole doubt is a very dubious doubt. But that is the argument. That’s what he says here: according to most decisors, the act does exist. Even if the agency is for a transgression, he is my agent; it’s only that the result is not applied to me. What do we see? That the whole concept of whether there is or is not agency for a transgression — what is it talking about? It is talking about attributing the consequence to me. Okay? Therefore you can’t learn it from terumah. That’s what he says: “and nevertheless the sender is exempt from punishment; and likewise in Tosafot in Bava Metzia 10, first answer, regarding one who said to an Israelite…” It follows that the main reason we do not find that agency for a transgression can be learned from the verses of terumah and betrothal is only regarding not making the sender liable to punishment. But regarding the validity of the act, we do learn it even for a transgression. And since the validity of the act and the liability of the sender are two separate matters — and the liability of the sender for a transgression where the agent is not subject to obligation according to Ravina, and certainly according to Rav Sama, comes from the verse about a courtyard written regarding theft; that is learned from a courtyard — if so, then also with a minor, regarding the liability of the sender — yes, even through a minor or a gentile the sender is liable, since regarding the liability of the sender there is no exclusion of ‘you too.’ And the fact that there is no agency for a minor means only that the act of a minor agent or a gentile is not valid.” As for the point that their act is not legally valid — there it is said there is no agency for a gentile or a minor, because they have no mental capacity; they cannot effect legal changes. But with agency for a transgression, that isn’t the issue. Even where a legal effect applies, the legal effect applies in agency for a transgression. The whole discussion of whether there is no agency for a transgression is the question whether the consequences are attributed to me, not whether the legal effect exists. That you can’t learn from terumah. And if there are verses that say yes, then yes — so with a minor too. “But with something where the act cannot be invalidated, such as if he said to a minor, ‘clip my sidelocks,’ the sender is liable; or if he told a minor to burn,” and so on. “And as for the challenge from one who sends a fire — he overlooked the words of the Ritva, brought by the Shitah Mekubetzet,” what we saw, “who wrote that it speaks specifically where he did not tell him to damage; but where he did tell him to damage, then he is indeed liable even with a minor. See there.” “And the Nimukei Yosef agrees with the Ritva” — we also saw the Nimukei Yosef. “And see what I wrote in section 348, so that one should not object from telling a gentile to do something, which is a rabbinic restriction.” Maybe we’ll see that later; I spoke about it earlier regarding agency in instructing a non-Jew. “However, from Tosafot in Bava Metzia 10, s.v. ‘A woman and a slave,’ it is evident like the Shakh.” There is a dispute among the medieval authorities; it’s not that he is necessarily right. But according to the Ritva and the Nimukei Yosef, he is right. According to Tosafot, which we already saw disagrees with the Ritva and the Nimukei Yosef, there is no agency for a transgression at all, not even with igniting. Even in the case of one who sends a fire through the hand of a deaf-mute, an incompetent person, or a minor, there is no concept of agency according to Tosafot. Okay? So this does go like the Shakh and not like the Netivot. In short, a dispute among the medieval authorities. And here in section 348 — this is what he mentioned there. “And behold, in Tosafot in Shevuot 3 etc., it appears that according to the one who holds that when the agent is not subject to obligation the sender is liable, even with a gentile agent the sender is liable.” He sharpens even further what we saw, right? The fact that the gentile was excluded from agency, or that a deaf-mute, an incompetent person, and a minor were excluded from agency — that is only from the agency of “so shall you also separate.” But with an agent for a transgression, just as a courtyard can do it, so too a gentile and a minor can do it. “And so it is in the Shitah Mekubetzet in Bava Metzia, and see what I wrote above in section 182 to resolve so that one should not ask: there is no agency for a gentile. And seemingly this is difficult,” says the Netivot, “because according to this, telling a gentile to do something on the Sabbath should be Torah-level.” Agency for a transgression applies also to a gentile, so telling a gentile to do something should also be Torah-level. And here, when the agent is not subject to obligation — and a gentile is not obligated in the laws of the Sabbath — so where he is not subject to obligation, there is agency for a transgression, and the sender should commit the transgression. A bit like what they told you here… “Therefore it appears that only a transgression that is performed in relation to an Israelite, where the sender is commanded regarding it, makes the sender liable when the agent is not subject to obligation — such as a priest who said to an Israelite, ‘betroth for me a divorced woman,’ where through the agency the divorced woman becomes betrothed to the priest. And likewise in ‘clip my sidelocks,’ where the Israelite becomes clipped through him. But if he says to a gentile, ‘cook for me on the Sabbath,’ the gentile is permitted to cook on the Sabbath, and no transgression was committed at all. And what the Israelite eats after it was cooked contains no Torah prohibition at all.” That’s only food cooked on the Sabbath, right? So what you ate is not the issue. What is he saying? I would have explained it differently, as I told you earlier: in the laws of the Sabbath agency doesn’t apply, regardless of whether it’s a transgression or not, because it’s a bodily act. Agency doesn’t apply in the laws of the Sabbath. You need to rest with your own body. The fact that you sent an agent not to rest means that you didn’t rest? What does that have to do with it? Therefore there is no question from the laws of the Sabbath at all. But he apparently assumes, like the one who told you this assumed — this is like Rashi against the Imrei Binah and the Hatam Sofer — and he assumes that in principle the Sabbath is not different; even on the Sabbath one could discuss agency for a transgression. Therefore telling a gentile to do it should really have been a Torah prohibition — not only a Torah prohibition, but stoning. Meaning, in essence you yourself committed a prohibited labor on the Sabbath if you sent a gentile to cook for you. So he says no. Why not? Because there is a difference between my sending — for example, a priest who sends an Israelite to betroth a divorced woman for him. So he says there: “such as a priest who said to an Israelite, ‘betroth for me a divorced woman’ — through the agency the divorced woman is betrothed to the priest.” Or in “clip my sidelocks,” where the Israelite becomes clipped through him, with a minor clipping someone else, then the Israelite becomes clipped through him. So it turns out that a transgression happened here, and the only question is to whom to attribute it. But when a gentile desecrates the Sabbath, no transgression happened at all. It’s not a question of to whom to attribute it; there is no transgression in the first place. So why is it relevant now that through the laws of agency you would want to attribute the transgression to the sender? If there had been a transgression, there would be room to attribute it to the sender, but there is no transgression here. A gentile who desecrated the Sabbath committed no transgression. This is not entirely clear. Why, when a minor clips an adult’s sidelocks, is there a transgression there? The minor is not obligated in the commandments — why is that different from a gentile? That too is no transgression. So he says: because the Israelite was clipped. The adult was clipped. Fine, he was clipped — but he was clipped by a minor, so what does that have to do with anything? So what? A minor is not obligated in the commandments. A minor is not obligated in the commandments. Again, training him — that doesn’t interest me. Training him is a householders’ consideration. The question is whether it is permitted or forbidden.

[Speaker B] There is a line of reasoning if in the end it comes back to you. Like with the divorced woman.

[Rabbi Michael Abraham] No, but you’re talking about the minor’s transgression. After all, the minor is your agent, not the adult who was clipped, right? The minor is your agent. Now, the minor committed no transgression. There are no transgressions for a minor. So what do you want to attribute to me? The clipping of the adult who was clipped? What does that have to do with me? Fine, so he violated his prohibition as the one clipped — the clipped person violated his prohibition — but what you want to attribute to me is the transgression of the one doing the clipping. And the one doing the clipping was a minor. No — the clipped person violated the transgression as the clipped person. But when I sent the minor to clip him, what is being discussed with regard to me is the transgression of the one doing the clipping, not the transgression of the one being clipped. Now, from the standpoint of the one doing the clipping, the minor committed no transgression because he is a minor. So how is that different from a gentile who desecrated the Sabbath? Or an Israelite — same thing if an Israelite betrothed a divorced woman for a priest. The Israelite betrothed a divorced woman; for the Israelite there is no prohibition on betrothing a divorced woman. Why is that different from a gentile who desecrated the Sabbath? It isn’t clear what distinction he is making here. He apparently feels that if a gentile did something, then simply nothing happened. But if it’s a minor or an Israelite, who are somehow connected to commandments — I don’t know how — perhaps from the standpoint of “do not place a stumbling block”? What?

[Speaker B] It’s even a bit racist.

[Rabbi Michael Abraham] Jewish law is racist — what do you mean “a bit”? Obviously.

[Speaker B] But it’s not only about a gentile; also a Jew who has not accepted the Sabbath versus a Jew who has.

[Rabbi Michael Abraham] Same thing — one can discuss all those cases.

[Speaker B] No, but he distinguishes.

[Rabbi Michael Abraham] In practice it’s like an Israelite who betroths a woman to a priest.

[Speaker C] There, there is no prohibition.

[Rabbi Michael Abraham] Exactly — so I’m saying, what does Jewish law say here? Now you have to decide what Jewish law says. I don’t know what “Jewish law” is — whatever we say here will be Jewish law. So that distinction is very unclear. And I’m saying, I don’t think we need to get into all this. In the laws of the Sabbath, the concept of agency doesn’t apply; it’s like a commandment that has to be fulfilled with one’s own body.

[Speaker C] No, but if on the mystical level the Sabbath was given to Jews and they are its representatives in the world, then only a Jew can damage something by desecrating the Sabbath. If a gentile desecrates the Sabbath, he has no obligation, so there is no damage.

[Rabbi Michael Abraham] And also if a minor clips an adult, then no act of clipping was done here. An act of being clipped was done, but not an act of clipping. What damage is he doing? He’s a minor; he’s not obligated in the commandments.

[Speaker C] He’s not obligated, but there is damage from the fact that he is a Jew, from the fact that he is an Israelite.

[Rabbi Michael Abraham] So what? He’s not obligated in it. What’s the difference?

[Speaker C] He doesn’t become obligated, but then I’m saying: where does that come from?

[Rabbi Michael Abraham] Some sort of mysticism, and there isn’t even a hint of it in the Netivot’s words. And that’s a major innovation — you would at least have to ground it, justify it, define it. On the face of it, it’s exactly the same thing. The way I explain it, it’s irrelevant. It’s like the Tosafot Rid — we haven’t seen him; we’ll see him, I don’t know if we’ll manage to get there. Probably not. The Tosafot Rid asks the famous question, and the Ketzot also discusses it: why can’t I send an agent to sit in a sukkah on my behalf? Or to put on tefillin on my behalf? “A person’s agent is like himself.” Especially since we are talking about agency over an act, not only agency over a legal power.

[Speaker C] Yes, for everything.

[Rabbi Michael Abraham] If I’m talking about agency for an act, not just agency for legal capacity, that means it’s considered as though I did the act, so what’s the problem? So Tosafot Rid says no—you can’t appoint an agent to put on tefillin for you, because at the end of the day, you did not put on tefillin. You may have fulfilled your obligation of putting on tefillin, but you didn’t actually put them on. The commandment is to put on tefillin; the commandment is not merely to be counted as having fulfilled the obligation of putting on tefillin. Okay? You didn’t put on tefillin. You are required to put on tefillin, and you didn’t do that. Even if you say “a person’s agent is like himself,” that doesn’t mean I physically actually performed the action. And with commandments, I am required physically to perform the action, not merely that it be considered in Jewish law as though I performed the action. I brought the Talmud in Bava Metzia 96, where the Talmud brings a dispute there about whether a person’s agent is like himself or not. Now, there is no dispute in the world that a person’s agent is like himself, but in the annulment of vows and in borrowing with the owner, what’s it called—borrowing with the owner and annulment of vows—there is a dispute whether a person’s agent is like himself or not. Why? There is an opinion there that a person’s agent is not like himself. No one disagrees with “כן תרימו גם אתם” (“so shall you also set aside”), but rather, there a physical action is required to be done by me; it is not enough that in Jewish law it is considered as though I did it. And the concept of agency does not accomplish that, okay? So Tosafot Rid says, the same is true with commandments. With commandments, you are required to perform commandments. Where you are required to effect a legal status, no problem—someone else can effect that legal status, and the legal status will be considered as though you effected it. Where what is required from you is an action, then that physical action is not something you did. And I claim that in the laws of the Sabbath it’s the same thing. Meaning: you are required to rest on the Sabbath. If you rested on the Sabbath and sent someone else not to rest, you still rested. In the opposite direction here—it’s a commandment, not a transgression—but it doesn’t matter, it’s the same idea. Therefore the whole concept of agency doesn’t apply here at all. That is basically what Imrei Binah and the Hatam Sofer argue against Rashi. It makes no sense to speak about instructing a non-Jew as agency to the non-Jew, because there is no agency; in the laws of the Sabbath, agency is not relevant. It is rest of one’s own body. You can discuss what happens with murder. With murder too, murder is again that a living body should be killed—but here there is some result: someone has been murdered, okay? There is room to discuss agency there, and the question is whether there is agency for a transgression or there is no agency for a transgression. In the Sabbath, the concept of agency as such does not arise at all.

[Speaker B] What about the issue of the animal? In damages, it has to be your property in your possession—meaning, your property that caused the damage—or do you say it is property, and we maintain it is your assets, so basically with an animal, why are you liable for it?

[Rabbi Michael Abraham] On the Sabbath—you mean the resting of one’s animal?

[Speaker B] No, I mean in damages. Okay, in damages, where I’m liable because it’s “your property”—why is the latter logic there? Because it falls on the animal and then passes over to you as a kind of enduring linkage. Maybe in the laws of the Sabbath it’s like that too—that the reason with your animal, you are obligated regarding your animal,

[Rabbi Michael Abraham] Yes, but there the animal belongs to me. Where would you invent the idea that if I appoint someone as an agent, when he is not an agent at all from the standpoint of the laws of agency, that turns him into something that is mine like an animal, or my periphery like an animal? There is no source for that. It’s just made up, and nobody says it either—at least, if someone wants to innovate that, let him say so. But when there is ownership, then it’s not me—that’s clear. The Rogatchover: I bought it, what do you mean? No, it’s my periphery. Even my body is not me.

[Speaker B] So it’s mine—Sabbath—

[Rabbi Michael Abraham] It’s not specifically things that are you, but also things that—no, these are indeed things that are yours. The resting of one’s animal does not incur stoning; it is not a prohibition of labor. Driving an animal and the resting of one’s animal are not the same thing, because the resting of one’s animal is not my labor. It is incumbent upon me to ensure that the animal rests. I need to ensure that the animal rests; that’s a different matter. In the Rogatchover’s Tzafnat Pa’neach, there are collected notes on the tractates, and in Bava Kamma, I think page 17, he discusses there as well—I’ve written about this more than once—both liability in damages for the fact that one’s property caused damage and also the resting of one’s animal, and he argues that both are built on the same principle: that my property is considered some kind of my periphery. And since that is so, it is basically as though I did not rest, or as though I caused damage, something like that. Once I heard from Rabbi Shlomo Fisher—he writes this in his book Beit Yishai too—that even when a person causes damage, let’s say, it’s not really he—it’s his body. But the body isn’t me either; I am my soul, and my body is just matter. So why? We see that it is always a matter of periphery. My property is a more distant periphery; my wife too is my periphery—“אשתו כגופו” (“his wife is like his own body”). All these are my peripheries. It’s like me, but in wider and wider circles. Okay, but I’m saying that regarding one’s property, we find this in quite a few places, and there are even sources for it: the resting of one’s animal and one’s damaging property obligating payment—all this is explicit in the Torah. When you come to apply that here, it’s very strange. At least note that. At least say it. Bring a source. Or bring proof. Or at least say that there is some innovation here that you are standing behind. Nothing—he just glides over it as though it’s not…

[Speaker B] He inserts it in a place where there is already the idea of an extended hand in place.

[Rabbi Michael Abraham] In a place where agency is relevant? That’s what I’m saying. Once the concept of agency has been introduced—fine. But here the whole claim is that the concept of agency was never introduced. There is no agent here. So you want to say, yes, but he is liable like an agent because he is like an animal. Even though he is not an agent, he is like an animal. So you’re dancing on two weddings, meaning—you say he is not an agent, and then you want to use the fact that he is an agent in order to say he is like an animal. If he were an agent, I wouldn’t need the claim that he is like an animal; I would obligate me by virtue of his being an agent. Okay, let’s continue. Later in the Talmud here, the Talmud says: let us say that a person’s agent is like himself, right, regarding an agent for kindling. So Rashi says: his sender should be liable, and not the agent. Right? Let us say that a person’s agent is like himself—so why is the competent person liable? So the question is not only why the—the question is why is the competent person liable, or why is the sender exempt? So Rashi says both, right? His sender should be liable and not the agent. What is Rashi basically saying? It’s what one of you mentioned earlier—I don’t remember which one—that there is an assumption that only one person is made liable for an act that was done. If the agent is liable, then the sender is not; if the sender is liable, then the agent is not. It’s a zero-sum game. Meaning, you have to choose. In the Talmud it says: if he sent it through a competent person, the competent person is liable. So naturally the sender is exempt. Because there was room to say: the competent person is liable, and the sender is also liable. Or that the competent person is also liable. Who said the sender is exempt? Because there is some assumption here that if the competent person is liable, apparently the sender is exempt. Because only one is made liable. Like two people who did it, or I don’t know exactly what. Meaning, you don’t make two people liable for one act. So—so that means, if neither can do it alone, that is simply two acts; it’s not one act. But where each could do it alone, that is two people for one act, and you can’t make two people liable for one act. So Rashi says, then let us say a person’s agent is like himself—what does that mean? His sender should be liable, and not the agent. He asks both questions. Meaning: why is the agent liable and not the sender? The sender should be liable and not the agent. The one who should be liable ought to be the sender, not the agent. But only one. Okay? In the answer too, Rashi says, what does the Talmud answer? There is no agency for a transgression. An agent is not considered an agent for a transgression so that his sender should be liable; rather, he is considered as acting on his own. Again, the game is: if I act on my own, then I am liable, and consequently he is exempt. If I act in his name, then he is liable, but then I would be exempt. Meaning, a zero-sum game: we have to choose one of the two as liable. Right? There was room to say that the agent is liable, regardless of whether the sender is liable. The agent is liable because he committed a transgression. But the fact that he is an agent—it could be that the sender is also liable. Whether the sender is liable or exempt, it could still be that the agent is liable. It doesn’t have to be zero-sum. Look at Tosafot Rid. Tosafot Rid here says as follows: “If he sent it through a competent person, the competent person is liable. But why? Let us say that a person’s agent is like himself and make the sender liable.” Right? “And make the sender liable.” And what about the agent? He doesn’t say. Explanation: “And even though the agent cannot be exempted, since he is competent, the practical difference is that if it is impossible to collect from him, one collects from the sender.” When the Talmud asked, let us say that a person’s agent is like himself, the Talmud meant to say that I should make the sender liable as well. Not only the sender. Against Rashi. The agent is certainly liable; he is competent and he committed a transgression. The question is why not make the sender liable as well. You’ll say, what do you mean—but they’ll only pay for the damage once, not twice. Ah, because if it is impossible to collect from him, one collects from the other. Suppose the agent runs off to Australia. The fact that we say—why is the sender first?

[Speaker B] If it is impossible to collect from him, first they start with him and then move to the other. If both committed a transgression…

[Rabbi Michael Abraham] No: if it is impossible to collect from him, one collects from the sender.

[Speaker B] The agent—

[Rabbi Michael Abraham] He comes first, because he did it. The law of agency is a secondary law. Meaning, first of all, you committed a transgression—that’s obvious. Right? You committed a transgression. Now you can tell me, fine, but he is also liable because he is the sender. Fine, he is also liable. Now, if it is impossible to collect from the one who physically committed the transgression, we will go to the one who is considered in Jewish law… a transgressor… yes, he is only considered legally as a transgressor; you committed the transgression with your own hands. So we see that Tosafot Rid learned not like Rashi. Meaning, the agent is certainly liable; the whole discussion of whether there is agency for a transgression or there is no agency for a transgression is the question whether to make the sender liable as well. And the conclusion is no: we make only the agent liable. Fine? And not the sender. But that the agent is liable is not some novelty for the Talmud—that is obvious. There is no dispute about that. According to Rashi, that is the novelty: the novelty is that the agent is liable and not the sender. So from both sides, there is a novelty here. What happens with agency for transgressions? No, here it’s money. The question is from whom to collect. “כל דשתיה מיניה משתלמא מיניה”—from whoever it is possible to collect, one collects. If I send an agent to murder, okay? That’s not money, that’s punishment. So what—shall we execute both of them? Or flogging, a flogging offense, rounding the corners of the head. So do we flog both of them? That is the question whether there is agency for a transgression. It may be yes; I don’t know. But it may also be no. Meaning, it may be that what Tosafot Rid says applies only to such transgressions that carry monetary liability. In transgressions that carry monetary liability, you have this principle that from whoever it is possible to collect, one collects. Then I say there is responsibility on the sender too, not only on the agent. And if the agent does not pay, we will go to the sender. But for transgressions that involve flogging or death or something like that, maybe Tosafot Rid would not say this. It may be that he says it only here because this is an agent to set fire to a stack. But if we are dealing with an agent for a regular transgression, then if you really blame the agent, the sender will no longer be liable, because the one who was flogged has already been flogged. And he too agrees that you do not punish two people for the same transgression—the point I attached to Rashi earlier. It may be that he also agrees with that. Only in monetary law, since the responsibility is on you, and we did not collect from the first one because he fled to Australia, I can go to you. Theoretically, if I did not flog the first one—if it somehow compensated for something—I could flog the sender. Obviously that is irrelevant in flogging, and therefore indeed in flogging it would not be relevant. But in money it is relevant, and therefore in money Tosafot Rid says this. Okay? It does not stem from the transgression, but from—

[Speaker B] From what happened, from the result.

[Rabbi Michael Abraham] Yes, and if you are responsible for the result, then if we do not get payment from him, we take it from you. But for a regular transgression, it does not make sense to make both liable. So whom do we make liable? We make the agent liable. The Shakh in section 348, by the way, discusses this. If the Torah introduced in those places where the Torah introduced that there is agency for a transgression, then the question is whether that novelty is only to make the sender liable or also to exempt the agent. He concludes like Tosafot Rid. But he concludes like Tosafot Rid even for ordinary transgressions, not only for payments. Meaning, even regarding agency for a transgression, when we say, for example, an agent for misuse of consecrated property or for misappropriation or something like that, and I sent an agent—when they tell me there is agency for a transgression, what does that mean? That I too become liable, but the agent is also liable. In those places where—what Netivot said, right? In those places where we have a novelty of another track of agency, a novelty that there is agency for a transgression, then the novelty is that the sender is also liable, but that the agent is liable is obvious. And he says this even about transgressions, not only about monetary liability. Tosafot Rid later on is in fact the Tosafot Rid I mentioned earlier. “The reason there is because there is no agency for a transgression.” Some ask: if so, then an agent should work for every commandment, and a person should be able to say to his fellow, sit in the sukkah for me, put on tefillin for me. Now an interesting question: why does he ask this specifically here? On the Talmud here—“the reason there is because there is no agency for a transgression.” Why doesn’t he just ask generally: if a person’s agent is like himself, it requires explanation why you cannot send an agent to put on tefillin? Why does he ask this specifically here? And that is because, as we saw in Netivot, with agency for a transgression a different kind of agency was introduced. For an agent for terumah, they said that the agent is an agent for legal capacity. What relevance does that have to commandments? What legal result is there in the fact that tefillin were put on? What legal status was created here? What happened here? Separating terumah—okay. But here, nothing. So it is obvious that this is not relevant. Therefore, if all I had was the verse about terumah, which would tell me that one can send an agent to separate terumah, or to divorce, or to betroth, or something like that, I would never have thought to say that there is an agent for commandments. But now that you are telling me there is no agency for a transgression, that means you are basically telling me that fundamentally the concept of agency does apply even to a transgression; it is only because of “the words of the master and the words of the student”—that is, whose words should one obey?—that it does not apply. But fundamentally, it does apply. Well then, with commandments it is the same idea. Fundamentally it applies, and there the reasoning of “the words of the master and the words of the student” does not apply, so there will be agency for a commandment. Therefore only here can he ask that question. And what that essentially means is that Netivot is right. When Netivot said that these are two kinds of agency—agency for legal capacity and agency for an act. From terumah we learn agency for legal capacity, and in agency for a transgression—and therefore there too, a minor and a deaf-mute and all the things we spoke about earlier. Okay? So Tosafot Rid also joins that approach. The reasoning of Tosafot can also be challenged. What is the reasoning of “the words of the master”? The reasoning is that we come to you, the agent, and the ball passes to you, and you need to obey the Holy One, blessed be He. But with commandments, wouldn’t it be the same? You are doing the commandment and not I. You are doing the commandment and not the sender. Then you would say that the reasoning of “the words of the master” really applies to commandments too? So that will depend on the question—really, I’ll just finish this one point—it depends on how we understand the reasoning of “the words of the master and the words of the student.” The Sema writes as follows. Right? “In every matter, a person’s agent is like himself,” it says in the Shulchan Arukh. So the Sema says: except in a transgression, because if there are the words of the master and the words of the student, whose words should one obey? Kiddushin 42. Right? He read the Talmud’s “the words of the master and the words of the student” as an explanation of why there is no agency for a transgression. I said I am not one hundred percent sure that that is really what the Talmud says. “And the sender can say: I assumed he would not listen to me to do it; therefore the sender is not liable. But if the agent is not legally obligated, this reasoning does not apply.” How does he understand “there is no agency for a transgression,” this idea of “the words of the master and the words of the student, whose words should one obey”? He claims that this is an argument of the sender. The sender says: you want to attribute his transgression to me? I never imagined he would do it. Because it was obvious to me that if I tell him one thing and the Holy One, blessed be He, tells him something else, he will obey the Holy One, blessed be He. So I never thought he would listen to me at all. That is the point of “the words of the master and the words of the student”—not the usual simple explanation, but rather a claim of the sender: I didn’t think he would listen to me. By the way, there is room to argue that this applies only if the sender actually makes that claim in practice. There is a Talmudic principle, “we do not argue on behalf of an inciter,” in Sanhedrin. And there, regarding the primordial serpent, there is a question—maybe only when he himself makes the claim is it valid, and if he does not make it, then not. That you can understand only according to the Sema. So it could be that it applies only when he makes the claim. Beyond that, the Sema gives another practical implication. What happens if the agent is not subject to obligation? Then you cannot say, I didn’t think he would listen to me. Why not? Because he did nothing wrong; he is not legally obligated. For example, if he is a non-Jew or something like that. But here, for example, if I send a Jew to betroth a woman for me when I am a priest, I’m not sure this exists either. Because I did not think he would obey me and do something that the Holy One, blessed be He, does not want—namely that a priest be married to a divorcée. It doesn’t matter whether you yourself did the transgression; you did something that is against God’s will. You created here a betrothal between a priest and a divorcée. I did not think he would listen to me. That you can say. Only with a non-Jew can you maybe say I didn’t think he would listen to me—although even with a non-Jew one could perhaps say this reasoning. Another point: according to the Sema, it also follows that the act itself is invalid. Remember the sale of land in the Sabbatical year? I said there is a dispute among the medieval authorities as to whether, when we say there is no agency for a transgression, the act still takes effect, only the transgression is the agent’s and not the sender’s, or whether even the act does not take effect. According to the Sema, it is obvious that even the act does not take effect. Why? Because he is not my agent at all—I didn’t think he would listen to me, meaning I never intended to appoint him as my agent. When I told him to do it, I never imagined he would do it, meaning I never appointed him as an agent; I was just joking with him. If so, then obviously the act also does not take effect, not only that the transgression is not attributed to me. Right? As if he sold my land in the Sabbatical year, okay? Is the land sold? Leave aside who committed the transgression of “לא תחנם”; is the land sold? No, because I never imagined he would listen to me. I never appointed him as my agent. That is a major practical implication of the Sema. Okay? In contrast, the simple understanding of the reasoning of “the words of the master” is attributed to Rabbi Akiva Eiger. Rabbi Akiva Eiger there in Bava Metzia, I think—yes, on page 10—says: “Apparently this reasoning means that he should have listened to the words of the Master, and this is agency in a prohibition, and there is no agency in this, as we say in Kiddushin at the beginning of chapter 2, that there is no agency for a transgression, meaning that one cannot appoint an agent for this.” The Torah did not introduce the concept of agency in order to help us commit transgressions. Okay? So he cannot be my agent. Again, that means that the act also does not take effect, not only that the blame does not pass over. But the simple understanding of “the words of the master and the words of the student—whose words should one obey?” is neither of those. Rather, it is an argument about lack of blame. Why are you blaming me for his actions? That’s his issue. He should have thought whether he obeys the Holy One, blessed be He, or me. If he decided to do it, that is his fault. I’m not saying he is not my agent—he is my agent. The act takes effect. But to place blame on me? That was his decision, his transgression. Go complain to him—what do you want from me? Notice: that is neither Rabbi Akiva Eiger nor the Sema. It is a third approach. According to this approach, you can say: yes, he is my agent, the act takes effect, but no blame attaches to me. One final comment, and with this I’ll finish: those places where the Torah introduced that there is agency for a transgression—this itself is a difficulty against the Sema. How can that be? If the person says, I never intended to appoint him as my agent, then he is not my agent regardless of the Torah’s innovations about where there is agency for a transgression and where there is no agency for a transgression. After all, when it is a transgression, I never intended to appoint him as my agent in the first place. Certainly it is a transgression. True—but it is a transgression.

[Speaker B] But the agent depends on religion and on the law of the Torah.

[Rabbi Michael Abraham] But it starts the other way around. Why is there no agency for a transgression? Because I did not intend to appoint an agent—that’s what the Sema says. Well then, even in a case of agency for a transgression—

[Speaker B] If according to the Torah it takes effect—

[Rabbi Michael Abraham] On me. Right. Then fine, then it won’t take effect on me, and therefore I did intend? But the Sema says he is not an agent—I didn’t intend it. So how can it be—as later authorities already point out against the Sema—how can there be places where the Torah introduced that there is agency for a transgression, if the reasoning says the person claims: I did not appoint him as an agent, I never intended to appoint him as an agent? So how can the Torah innovate that he is my agent against my will? Therefore it is obvious that this is a law of the Torah: the Torah determines where yes and where no. It is not some claim of the sender. In the case of an inciter, I think the Sema is right—“the words of the master and the words of the student, whose words should one obey?” in the case of an inciter really does work that way. But you can see that in the summary. Whoever wants, I’ll send him the summary—I’ll actually send the summary here, I’ll send it to you on WhatsApp. Okay, that’s it. May you be sealed for a good year.