Another Look at Conceptual Analyses: The Law of Agency (Column 454)
About twenty years ago my son was doing prep for entrance exams to a “ketanah” yeshiva at the cheder in Yerucham. Among other things, they learned the well-known conceptual analysis (chakirah) of the Ohr Sameach regarding the nature of agency (shlichut): is it a “power of attorney” (yipu’i koach) or a “long hand” (yad arikhta)? It turned out that his teacher defined the two sides of the chakirah the opposite of what I knew. What I called “power of attorney” he called “long hand,” and vice versa. When I pointed this out, he insisted on his phrasing. At first I thought this was merely a wording mix-up: what I call “long hand” he calls “power of attorney,” and vice versa, with no substantive disagreement. But over time I realized there is a deeper dispute here that truly has two sides, and it is typical of other yeshiva-style conceptual analyses as well. Here I will try to describe the matter and, through this example, illustrate the general lesson.
The Amoraic Dispute in Gittin
The Gemara in Gittin 70b brings a dispute among the Amoraim regarding one seized by kordeyakus (a curable madness):
“If he said, ‘Write a get for my wife,’ and then he was seized by kordeyakus and later said, ‘Do not write it’—his latter words have no effect.”
A man appointed an agent to write and deliver a get to his wife, and thereafter lost his sanity. If, while not of sound mind, he retracts and says not to write it, we disregard his words. The Amoraim dispute the scope of this rule:
“R. Shimon ben Lakish says: They write and give the get immediately; and R. Yochanan says: They do not write until he recovers. The reason of Reish Lakish is that it teaches ‘his latter words have no effect’; and R. Yochanan will tell you: ‘His latter words have no effect’—meaning that when he recovers there is no need to consult him anew; nevertheless they do not write until he recovers.”
Reish Lakish holds that the agent may write the get and deliver it to the woman even while the sender is still seized by his kordeyakus. R. Yochanan, by contrast, understands “his latter words have no effect” only to permit writing and delivering the get once he recovers, without requiring a fresh appointment—but not to allow giving the get while the sender is still in the throes of kordeyakus.
The Gemara explains their dispute as follows:
“What do they argue about? Reish Lakish likens it to one who is asleep, and R. Yochanan likens it to a lunatic. And why doesn’t R. Yochanan liken it to sleep?—one asleep lacks no action (to recover), whereas here an action is required. And why doesn’t Reish Lakish liken it to a lunatic?—a lunatic is not ‘in our hands,’ whereas this one is ‘in our hands’ (there is a cure), like red meat on coals and wine on the lees.”
Reish Lakish likens kordeyakus to sleep (since we have a remedy; it is not the status of a classic lunatic), and therefore sees no bar to the agent delivering the get in that state. R. Yochanan likens it to lunacy (because, unlike sleep, recovery requires an act).
Note that both agree that if the husband is a full-fledged lunatic, one may not deliver the get; their disagreement is only whether kordeyakus counts as lunacy or as sleep. Our interest here is the case of a lunatic husband; consequently, the discussion from here on does not hinge exclusively on R. Yochanan’s position.
The Halachic Ruling: Dispute Among the Rishonim
All agree that the halacha follows R. Yochanan (as usual in his disputes with Reish Lakish). Thus the Rambam, Hilchot Gerushin 2:15, rules:
“If he said while healthy, ‘Write a get and give it to my wife,’ and afterward he became deranged, we wait until he recovers and then write and give it to her; there is no need to consult him again after recovery. But if they wrote and gave it before he recovered, it is invalid.”
According to him, a get given while the husband is seized by kordeyakus is invalid. Note that in 2:7 the Rambam writes:
“What is the difference between ‘invalid’ and ‘void’?—Wherever in this work a get is called ‘void,’ it is void by Torah law; wherever it is called ‘invalid,’ it is invalid by rabbinic decree.”
Thus, “an invalid get” is rabbinic, and “a void get” is by Torah law. Accordingly, the Rambam understands that per R. Yochanan, the bar on writing/delivering a get while the husband has kordeyakus is only rabbinic; by Torah law one could divorce if the agent was appointed while the husband was sane. One might have read the Rambam as limiting this to kordeyakus; if the sender is a true lunatic (with no cure), even he would agree that a get cannot be written and delivered on his behalf. But most Rambam commentators understood that this applies even to a true lunatic: by Torah law an agent can operate in the sender’s name even when the sender has become insane, and only the Sages invalidated such an act. As noted, it is plausible that Reish Lakish would not dispute this either (their debate is about kordeyakus, not about a true lunatic).
By contrast, the Tur, Even HaEzer 121, disagrees and holds the get is void by Torah law:
“If he was healthy when he ordered it written and afterward illness seized him, we do not write it while he remains ill; and if they wrote and delivered it during his illness, it is nothing—whether he died of that illness or recovered. But once he recovers, they write it—even if during his illness he protested writing it, that protest is nothing—and they give it when he recovers, and there is no need to consult him again.”
According to the Tur, a get written and delivered while the sender is insane is void (“nothing”). This indeed is the straightforward reading of the Gemara (the commentaries there discuss reconciling the Rambam).
Explaining the Dispute: ‘Yad Arikhta’ or ‘Power of Attorney’
The Ohr Sameach on the Rambam there explains the dispute and the Rambam’s view as follows:
“[…] The Pri Hadash answers: since he made him an agent while healthy, then even though at the time the agent performs the mission the sender is no longer halachically competent, by Torah law the agency is effective; only when he dies—his marital bond ceases and his wife falls to the heirs or the yavam—does it not work.”
The Pri Hadash explains: once the agent was appointed while the sender was sound, the agency stands in force; the agent can act for the sender because he received the authority to do so. So long as the agent is of sound mind, nothing prevents him from executing the act for the sender. On this view, competency is required of the agent who performs the act, not of the sender, since the agent is the one performing it. True, if the sender dies the agent can no longer divorce the wife, but that is not a function of agency law; in that case she is no longer a married woman to him. Note what follows: even the sender’s death would not (of itself) void the agency—how much more so his insanity would not.
He brings proofs from Rashi in two places:
“So too Rashi’s language in the first chapter (Gittin 9b): ‘They should not give it after death’—as long as the get has not reached her hand she is not freed; since death preceded, the freeing is not a freeing, for she has left his domain and fallen under the heirs’ domain. He explains it is because she is now in another’s domain, as if he had ordered freeing the heirs’ slave. And at 66a Rashi writes: ‘Is there such a thing as “after death”?’—after he dies who will divorce her? The reason is that the divorcer is not alive and is not a subject of divorce.”
In both places Rashi explains that the only reason the agency cannot be executed is that the sender died and the object of the agency lapsed; the agency itself remains. [Parenthetically: later authorities do not accept this extreme formulation. For most, once the sender dies, the agency itself lapses and the agent no longer has power to act. The discussion can proceed only where the sender became insane—there is still a sender, but he is not competent. That is the case we focus on from here on.]
How can one say that when the sender became insane (perhaps even when he died) the agent may still act for him? The Ohr Sameach ties this to two conceptions of agency:
“If we say that since he made him an agent, we do not care about the sender’s state—so long as he remains within the sender’s domain—this would seem to depend on the following: if we say that only the act of the agent is considered as if done by the sender, then indeed the sender must be halachically competent at the time the agent acts, for only then can it be deemed as if the sender performed it. But if we say that the sender makes the agent as his own self, and the agent’s hand is considered the sender’s hand, then one could say that once the agent was made, we do not care whether the sender is competent.”
He proposes two ways to understand the relation between agent and sender:
- Power of attorney. The agent was vested with the sender’s authority and he is the one who performs the act (the agent is the divorcer, betrother, purchaser, etc.). Only the result is attributed to the sender (who becomes owner, is divorced, betroths, etc.); the performance itself is by the agent.
- Yad arikhta (“long hand”). The agent is the sender’s extended hand; the sender is the one performing the act (via the agent—as if the agent is a physical extension of the sender’s hand).
Under option 2, clearly if the sender becomes insane (perhaps even dies) the agency lapses, for on that conception the sender is the performer; if he is a lunatic, he cannot perform legal acts. But under option 1, the sender’s powers have been “emptied” into the agent, who now performs the act; only the outcome redounds to the sender. In that case, even if the sender becomes insane (perhaps even dies), the agent can still act in his name.
I note already here that the Ohr Sameach’s wording is quite confusing. His second formulation—“the agent’s hand is considered the sender’s hand”—is how he describes the power-of-attorney mechanism, not “yad arikhta.” And his first formulation—“the act of the agent is considered as if done by the sender”—is actually his description of “yad arikhta.” You can see in this the terminological confusion I mentioned at the outset: linguistically both phrasings can be read either way. In any case, this is only wording; for our purposes I will continue to use “power of attorney” and “yad arikhta” as defined above. As we will see, there is some conceptual fuzziness here too, not only phrasing.
In any event, the Ohr Sameach’s claim is that this is precisely the dispute between the Tur and the Rambam above. The Rambam takes option 1 (“power of attorney”); therefore, even if the sender becomes insane, the agent can still act for him. The Tur takes option 2 (“yad arikhta”); therefore, if the sender becomes insane, the agency lapses and the agent can no longer act.
Practical Ramifications
The Ohr Sameach proceeds to bring several further ramifications (nafka minot):
“So too it appears from Temurah 10a—‘If so, we would find…’—that partners can create temurah, for example when they appointed one agent to consecrate; see Rashi (s.v. ‘If so’) that it is considered a consecration by a single person. If we say it is as if they consecrated through the agent’s mouth, then since the act is theirs and in their name, it should be called a consecration by many. We must therefore say it is attributed more to the agent, and he is the principal party; this is a sound support.”
If two partners appoint one agent to perform temurah, is this temurah by partners or by an individual? Under “power of attorney,” the temurah is done by the agent, so it counts as an individual’s act; under “yad arikhta,” the performers are the senders, so it is the act of two partners.[1]
Another ramification:
“This also explains the Pri Hadash (EH 120:1) who disputes the Ramah regarding whether a get written by the agent on his own paper is valid. He writes that since the agent stands in the husband’s place, we no longer require the husband’s paper; the agent’s paper suffices. This too depends on our issue: if only the act is considered as if done by the sender, then the paper must be the husband’s, so it is as though the husband divorced with his own paper; if it is the agent’s paper, it is like divorcing with another’s paper (not transferred to the husband). But if the agent’s very person is now, for gerushin, as the sender, one may say the agent’s paper suffices.”
Is a get written by the agent on paper that belongs to the agent valid? If the divorcer is the sender (“yad arikhta”), the paper must be the sender’s; under “power of attorney,” the divorcer is the agent, so his paper suffices.[2]
He then brings another ramification concerning acquisition by agav (movables acquired along with land):
“We can also link to this the doubt among the later authorities in the laws of chametz: if an agent transfers movables agav his own land, does the principal acquire? If only the act is deemed that of the sender, then the land used for agav must be the sender’s—so that movables and land come as one—contrary to Mekor Chaim (O.C. 448:19).”
On the “power of attorney” view, the agent could transfer the sender’s movables agav the agent’s land; on the “yad arikhta” view, he could not.
An Agent as a Witness
The Ohr Sameach now explains the Amoraic dispute in Kiddushin 43a:
“It seems this is the Talmudic dispute at the start of ‘Ha-ish Mekadesh’ (Kiddushin 43a): Rav says ‘an agent can become a witness’—we strengthen his words—while they of R. Shela’s academy say ‘an agent cannot become a witness,’ since ‘a person’s agent is as himself,’ rendering him like the principal. The Gemara then brings a Tannaitic dispute and rules that an agent can become a witness.”
The Gemara records a dispute whether an agent can testify about the matter of his mission (e.g., a betrothal agent serving as one of the witnesses to that very betrothal).[3] The academy of R. Shela disqualifies the agent as a witness because “an agent is like the sender,” i.e., he is identified with the principal and thus cannot testify about “his own” act as a party to it (even without personal stake, as the commentators note).
The Ohr Sameach explains this Amoraic dispute via our chakirah regarding agency:
“They argue thus: those of R. Shela hold the agent becomes as the principal’s very self (yad arikhta); Rav holds that only the agent’s act is attributed to the principal—as if done by him—but the agent remains a distinct party and is therefore not disqualified as a witness. This is clear. [See my distinction between matters of proprietary transfer and gerushin/kiddushin at 3:12; it is a correct distinction.]”
R. Shela’s academy sees the agent as the sender’s extended self; hence the agent is the principal and may not testify. Rav sees the agent as merely vested with authority yet a separate person; hence he may testify.
He continues with more ramifications, but for our purposes this suffices.
Initial Discussion
So far I presented the explanation of “an agent becomes a witness” such that if the agent is a mere power-holder, he may testify; but if he is the sender’s extended self, he may not. Yet one can present it exactly the other way around: if the agent is a power-holder, then he himself performs the divorce—he is the “husband” for this purpose—and so he cannot testify (for he is the party). But if he is the sender’s extended hand, then the performance is the sender’s and the agent’s body is like an inanimate stick the sender wields; the agent himself (his mind/person) remains an independent individual, so when he later comes to testify—a function outside the agency—he does so as an independent person and should be allowed to testify.
So who is right? It seems possible to formulate Rav and R. Shela’s academy in two opposite ways. It depends on reasoning, and I cannot decide with certainty. But note: this is not a mere terminological difference. It is not that one can call the mechanism described above “power of attorney” or “yad arikhta” at will (as I noted earlier one can see such flips even in the Ohr Sameach’s own phrasing). Rather, there is a substantive ambiguity: even if we retain the meanings defined above, the ramifications can flip. In fact, under the very same conception of “yad arikhta” one might conclude the agent is disqualified as a witness—or the opposite, that he is qualified. Likewise for “power of attorney.” Hence, this is not mere wording but genuine conceptual ambiguity, as I noted at the outset.
Is ‘Agent Becomes Witness’ Not a True Ramification of Our Agency Chakirah?
The tempting conclusion is that this nafka mina is illusory: if each side can yield either result, it is not a real ramification. Indeed, we have seen several examples of illusory ramifications in other chakirot (e.g., whether pikuach nefesh on Shabbat is “permitted” or “overrides,” discussed in column 404, and the liability-ground in damages law, discussed in my paper here, among others). The lesson—to beware of illusory chakirot and of the ramifications brought for them—has been noted more than once. Yet in our case the situation is more complex. I think this ramification is not illusory. True, one can phrase it in two ways, but we must choose one. I will clarify.
If we decide that the “power of attorney” model disqualifies the agent from testimony, then the “yad arikhta” model will necessarily yield the opposite, and vice versa. In other words, we cannot maintain that under both conceptions the agent may testify or that under both he may not—without emptying the chakirah of content. I assume it has content, as can be seen from the other ramifications the Ohr Sameach brought. Therefore, under one conception the agent may testify and under the other he may not; the only question is which is which. This is confusing, but it seems the ramification remains valid even though the sides might flip.
Methodological Approaches
Faced with such a situation, there are two principal approaches:
- Define the agent’s disqualification as a witness (i.e., the “party” disqualification) in ways that allow two different understandings of that disqualification to flip which side of the chakirah yields which result—while keeping the fact that there is a ramification (each side yields a distinct outcome).
- Propose two different understandings of the chakirah itself such that all other ramifications remain intact, yet for each understanding the “agent becomes witness” ramification comes out opposite (but still a genuine ramification).
Often the difference between these approaches is not sharp, and sometimes they come together (defining the “party” disqualification goes along with sharpening the agency mechanism, which determines whether the agent is a party). I will now briefly illustrate these approaches, just to sharpen the phenomenon.
First Formulations
We might formulate our chakirah thus: is it the agent’s body that is an extension of the sender’s body (“yad arikhta”), or is it the agent’s mind/personhood that is identified with the sender’s (“power of attorney”)? If the agent’s body is an extension of the sender’s body, there is no bar to the agent’s testifying, since as to his personhood he remains an independent individual; when he testifies he is not a limb of the sender’s body. But if there is an identity of personhood between agent and sender, then one may disqualify him from testifying, as if the sender himself were testifying.
A few remarks. First, the link between this phrasing and our chakirah is not obvious. The first side is “yad arikhta,” but the second is not necessarily “power of attorney”; identity of personhood could reflect another reading of “yad arikhta.” Check this against the other ramifications (recall, we want those to stand). It seems that the get may be on the agent’s paper because he is identified with the sender—that indeed resembles “power of attorney.” But when the sender becomes insane, it is not clear the agent could act; still, there is room to argue yes, so we can leave this open. For temurah, the ramification seems to remain (though one must discuss whether identity of personhood might still produce “two persons”).
Second, even if there is identity of personhood, why can’t the agent testify? For the agency he is identified with the sender, but not for testimony. One might counter: since the testimony concerns the giving of the get, the identity in giving the get disqualifies him from testifying about it. Moreover, even if they are “identical,” which direction does the identity run—does the sender become the agent, or the agent become the sender? On the first possibility, perhaps testimony is allowed (though not obvious). Again, you see we can preserve this option, but it depends on further premises. True, the view of R. Shela’s academy—that the agent cannot testify—can be understood only on the second side (even if, as we saw, that side does not necessarily lead there; it is necessary but not sufficient).
This was a proposal for re-formulating the sides of the chakirah (option B above). As noted, one can also work in parallel on the definition of “party” disqualification (option A). I noted above that here we are discussing a “party” who has no personal stake: the agent has no material interest in whether the divorce/betrothal takes effect or not.[4] If a party without stake is not disqualified (some Rishonim and Acharonim suggest this is the point of dispute; see Rivash §82; Avnei Miluim 35:1; Kovetz Shiurim Bava Batra §107), then even under “yad arikhta” the agent could be a witness.[5] But that would untether the outcome from our chakirah, since the ruling would no longer depend on whether agency is “yad arikhta” or “power of attorney.” Perhaps we can propose that a non-interested party is disqualified only if he is the party himself, whereas an agent is merely treated like a party; such a one, absent personal stake, is not disqualified. Then under “yad arikhta,” which posits identity, he would be disqualified; under “power of attorney,” he would not. (Here you see a possible linkage to the earlier approaches.) But then again, why not view the identity between agent and sender precisely under “power of attorney,” where the agent effectively stands in for the husband (he “is” the divorcer)?
Summary and Lessons
I will not continue enumerating possibilities for defining the chakirah and the dispute. My aim was only to present a picture of the network of premises on each side and, through it, the ambiguity that accompanies the chakirah. What seems, at first glance, crisp and clear, upon further look turns out to be not very crisp and not very clear. The possibilities blend and sometimes even invert. In each formulation, some ramifications switch sides while others do not; some may disappear, others remain.
The main lesson is that we must define the sides of a chakirah carefully and not settle for an intuitive first sense that “there’s something here.” Even if the phrasing does not change the fact that there is a ramification, sometimes the sides will flip; sometimes some ramifications will cease to depend on that side—or even vanish.
[1] Note Temurah 51a:
“And in the public domain, how do you find a pit of two partners? If they both appointed an agent and said, ‘Go dig for us,’ and he went and dug—there is no agency for a transgression.”
We see that when partners appoint an agent to dig a pit, the Gemara calls it the partners’ pit (were it not for the rule “there is no agency for a transgression”). One could say the passage refers to ownership of the pit, not to the act of digging.
[2] One can ask whether under “power of attorney” it is also possible to divorce with paper that belongs to the sender.
[3] The early and later authorities dispute whether this refers to testimony of kiyum (serving as one of the two witnesses to the act) or testimony of birur (later court clarification). I will not enter that here.
[4] Of course, if she becomes divorced or betrothed, she is permitted or forbidden to him accordingly—but that is true of any witness to betrothal, even one who was not an agent.
[5] This raises the question whether, after carrying out the agency, the agent still remains a “party,” and thus perhaps the dispute applies only to testimony of kiyum (at the time of the act) but not to birur (afterward). The sources cited discuss this (see also Avnei Nezer EH §362:5; Torat Gittin to Shulchan Aruch EH 141:4).
Discussion
A definition down to the practical difference drains the whole matter of content. The whole idea is to define two sides from which the practical differences will emerge as consequences. Otherwise everything is ad hoc.
With God’s help, on the 21st of Adar I, 5782
The conception that an agent is the principal’s “extended hand” applies both to agency for performing a commandment and to agency for effecting a transfer of ownership. By contrast, “granting power of attorney” can be said only in matters of transfer. In agency for a commandment, we can define this side (that the agent is the doer and not merely an “extended hand”) as: “the act of the agent is attributed to the principal.”
A practical difference would seemingly arise regarding the intent required for the commandment: if the agent is merely an “extended hand,” then the required intent is that of the principal. But according to the side that the act of the agent is attributed to the principal, the agent must intend the intent required for the commandment. Accordingly, Bezalel had to know how to direct the intentions involved in making the Tabernacle, for he was the one doing it.
With blessings, Gabriel Ḥafetzadi Tsveydinimovski
The conception of “extended hand” is perhaps hinted at in what our Sages expounded on “and she sent her maidservant” – that Pharaoh’s daughter’s arm stretched out. The plain meaning is “her maidservant,” but surely the maidservant had no good intention to save him; rather, the maidservant was only Pharaoh’s daughter’s “extended hand.”
Seemingly, there is a simple way to test whether the practical difference between Rav and Rav Sheila accords with the dispute between the Tur and the Rambam. Let us check how each of them ruled on the matter of whether an agent can serve as a witness. If both ruled like Rav or both like Rav Sheila, then at least one of them understood himself differently or understood the dispute between Rav and Rav Sheila differently. If both ruled in line with their own respective approaches, then this is evidence for the Or Sameaḥ; and if both ruled opposite to what the Or Sameaḥ expected, then that is evidence for your opposite proposal.
(And this is unlike the other practical differences, which were not discussed explicitly, so they can be excluded from the Or Sameaḥ’s conceptual proposal.)
It is not always possible to test, because there is not always a ruling on the issues that generate the practical differences. But here I am making a principled point. Even if you discover what the Rambam or the Tur meant, the principled ambiguity still remains.
1. In my opinion, part of the mess in the conceptual inquiry was created because they narrowed it to the fixed framework of two explanations, when there are at least 3 possibilities here:
A. The principal acts, and the agent is nullified to him like a stick.
B. The agent acts, and the principal is nullified (the “hand” of the Or Sameaḥ).
C. Both are in the picture partially.
According to A, an agent can serve as a witness; according to B, not so (assuming we do not require disinterest); according to C, it is unclear – the question is what the agent’s share is and who is defined as the litigant.
So part of the lesson, in my view, is not always to split things into two possibilities, even though that is the natural tendency.
2. The conceptual structure of “consistent with their own positions” gives a clearer picture here and saves part of the problem of undefined inquiries:
If one adopts the Tur, that the principal must be mentally competent, and also holds that an agent cannot serve as a witness – it is clear that even according to the Rambam, where the principal is “erased” and need not be mentally competent, the agent cannot serve as a witness.
And conversely: if according to the Rambam, where a principal who became insane is valid on the Torah level, an agent can serve as a witness, then all the more so according to the Tur he can.
This is a simple way to show that the practical difference is real.
I agree, but there are more than three possibilities (as I showed). That is part of my claim.
“On that day the mountains shall drip sweet wine, and the hills shall flow with milk.” The Tur raises a number of thoughts (some of them gloomy), and I still have not managed to absorb it all.
A. Seemingly, what you wrote in “Two Wagons” – to add another stage of “why” after the inquiry or the law – seems to solve this problem. When something is understood through independent rational understanding and not as some sort of formal, abstract, mysterious principle, then such problems cannot arise at all. [For myself, I place *very* strict limits on the possible answers to “why,” and “legal reasoning” or generating a new, independent principle that advances no goal I accept are not acceptable to me as explanations. But obviously it is impossible to learn the Gemara successfully that way.]
B. Regarding whether an agent can serve as a witness, it seems the tables have turned (somewhat ironically). The Or Sameaḥ says that “an agent cannot serve as a witness” fits the Rambam, according to whom if the principal became insane the agency still exists on the Torah level; and that is the possibility you described as “one can also present it in exactly the opposite way.” True, on the merits this ostensibly does not matter, because the two opposite possibilities still remain in place; but to me it seems that the Or Sameaḥ is right and that his presentation is the more plausible one.
The Or Sameaḥ investigates whether the agent contributes only his mechanical action to the matter and nothing else – that is, everything around it, such as the agent’s paper, the agent’s land, and the agent’s sanity, are irrelevant to the agency (the agent’s sanity is a side condition) – or whether the agent brings with him everything he has (he is like the principal’s very body, meaning a duplication and extension), and therefore he can use his own paper and his own land, and his own sanity is sufficient. Then the Or Sameaḥ says that if the agent does not bring along what surrounds the act, then he can serve as a witness, and vice versa. The opposite possibility that you presented says that if the agent is a hand (if the principal became insane, the agency is void), then he is disqualified from testimony because “he is a hand” and is basically the principal; and if the agent is an authorized representative (if the principal became insane, the agency remains), then he is fit for testimony because he is independent. This does not seem logical – “being a hand” is a borrowed, figurative expression that is irrelevant as a basis for deriving laws of testimony, and to ground fitness for testimony in the agent’s “independence” is something I do not understand at all.
[C. In note 2 you wrote that according to the power-of-attorney conception (if the principal became insane, the agency remains, and the agent can divorce with his own paper), one must consider whether it is possible to divorce with the principal’s paper. True, from pure reasoning there was room to ponder this, but since no one ever entertained such a strange novelty, it is clearly not so; one can also do it with the principal’s paper, and the inquiry should be formulated around that. And the reason is perhaps that an authorized representative is an extension of the principal also with respect to everything around the act, and certainly does not stand in opposition to him. Also in the body of the Tur, in presenting the inquiry, you wrote that in a power-of-attorney model “the principal’s powers have been emptied into the agent,” and that too is too strong a formulation.
D. Regarding substitution in the case of partners: the discussion there is whether, if partners sent an agent to consecrate an offering on their behalf (perhaps from their property, perhaps from his), then the one obtaining atonement is certainly the partners, but the one consecrating – namely, the agent – is an individual (so Rava claims). And there is a verse that partners do not effect substitution. The doubt is whether, in general, the one who consecrates is the one who has the power to effect substitution, in which case here the consecrator is an individual and can effect substitution – meaning that if the agent tries to substitute, then he and his substitute become holy – or whether, in general, the one obtaining atonement is the one who has the power to effect substitution, in which case here the one obtaining atonement is partners, and there is a rule that partners do not effect substitution. In the case of a pit that an agent of partners dug in the public domain, if agency applies to a transgression, then it seems clear that this is a pit for which the partners are responsible, also from the standpoint of the act of digging and not only from the ownership of the pit, which Scripture treated as theirs by virtue of control, because he is their agent. For with a pit, unlike substitution, there is no condition of “not being partners” and no special law concerning partners, only the technical problem that for a pit in the public domain, the one who opened it is the one liable.]
Regarding B-[C-D], it is possible that I missed the train and it is already too late to get into the details of the example rather than the core idea, in which case that is a pity. And A is seemingly trivial. In any case, the idea in the Tur here is a kind of pair of glasses that one has to put on and, over time, see what one sees with them; it is not easy, and it is not enough just to think about it directly and in connection with one discussion. So now that I have put them on, I will see what emerges.
I will comment only regarding a pit of partners. The Gemara remarks that we have not found a pit belonging to partners; that is, the discussion really is about whether there can be a pit of partners.
Isn’t this just a matter of terminology? In tort law there is no difference between partners and an individual (a jointly owned ox certainly exists), unlike substitution, where there is some sort of law that depends on whether the consecrator “is” an individual or partners.
That is, if two people sent an agent to dig a pit in the public domain, and agency applies to a transgression, then clearly they are liable as partners, and there is no side in the conceptual inquiry about agency, or in the basis of liability for pit damages, that would exempt them; therefore the Mishnah quite rightly calls it a pit of partners. Not so with substitution, where Rava comes up with some idea (rather peculiar) that with respect to the special limitation that partners do not effect substitution, if the consecrator effects substitution and the consecrator is a single agent, then this is not included in the scriptural derivation that excludes substitution by partners.
No, it is not a matter of terminology. The question is how one conceives of the notion of agency. When the act of two people is done by one agent, is it the act of the agent or of the principals? For this purpose, it does not matter that substitution does not apply in partnership whereas tort liability does apply to partners.
In the Tur you presented a phenomenon of a conceptual inquiry that is defined ambiguously, so that the terms used to describe the principled sides are reversed among different investigators, and you illustrated this by means of an inquiry about agency. On the Otzar HaChochma forum, there seems to be another example of this regarding foundational terms in Kabbalah. http://forum.otzar.org/viewtopic.php?f=7&t=10258&p=149043#p95800
In the article there by “the Rebbe of Monastrishtsha,” he argues that the terms sovev kol almin and memaleh kol almin are reversed among the disputants regarding the implication for tzimtzum, and he claims that the entire dispute is semantic.
And I hereby quote, without understanding: [page 5 of the PDF] “And the difference between them is only in the terms they used: Rabbi, the author of the Tanya, calls the aspect of the Infinite that was not affected by the contraction sovev kol almin, and the aspect of the Infinite that was contracted he calls memaleh kol almin; while Rabbi, the author of Leshem, calls memaleh kol almin the aspect that was not affected by the contraction, and the aspect that was affected by the contraction he calls sovev kol almin, and that is what constitutes and sustains the worlds.”
And later on [page 7 of the PDF] he says that the words of Nefesh HaChaim are literally identical to those of the author of Leshem, and therefore Rabbi Dessler was correct in writing that there is no substantive difference between the view of the author of the Tanya and the view of Nefesh HaChaim: “And this was already noted in the book Yam HaChochmah (Rosh Hashanah Eve 5767, p. 2), that the difference between the author of the Tanya and Nefesh HaChaim is only one of terminology, for what one calls sovev kol almin the other calls memaleh kol almin, and vice versa.”
I do not understand the matter well enough to express an opinion on whether he is right (that there is no substantive dispute), but from the quotations he brings there it really does seem that, at the very least, there is indeed a reversal regarding the pairings of sovev/memaleh with contraction/non-contraction. Does this seem to you like another example of the phenomenon in the Tur?
Definitely. And it seems to me that I also commented on this in the second book of the trilogy. This is the problem of transcendence and immanence and the question of pantheism. A lot of undefined verbiage. One must remember that when people maintain that contraction is not to be taken literally – which is a meaningless thesis that says nothing – it can be interpreted in all sorts of ways in order to give it some sense.
Very יפה מאד.
The demand at the end – to define things היטב – can sometimes mean defining them down to the practical difference. That is: “an agent is an extended hand in such a way that he can do only what the principal is capable of doing,” or “an agent is an authorized representative in such a way that he can only realize the principal’s power,” as opposed to “an agent is an authorized representative who fills the place of the principal and can do even what is not within the principal’s own power.”
This is because human language is too flexible – or not well-defined enough – to describe in a well-defined way the reasoning and logic at the basis of a legal mechanism.
Is that a correct statement?