Women's Beit Midrash – Kiddushin – Lesson 14

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Opening: defining zakhin and the framework of the dispute
“A man can confer acquisition, but a minor cannot confer acquisition” and clarifying the term “acquire”
Maimonides in the laws of agents and partners, and the parameter of connection between sender and agent
A doubt in the topic: agency or zakhin with regard to a minor
Rabbi Akiva Eiger: zakhin as agency without appointment, and the connection to a minor as sender
The Brisker Rav’s note: the uniqueness of the Passover offering as monetary ownership, and learning acquisitions from it
Tosafot here: the need for a verse, and a minor who is relevant to Passover
Rabbi Chaim on Maimonides: a minor fulfills a commandment without being obligated in Passover
Tosafot in Pesachim: “there is no agency for a minor” and the connection between acquisition and agency
The question of the medieval authorities (Rishonim) on the Talmud: if zakhin works by agency, how does the Talmud distinguish between them?
Rashi: the source that there is no agency for a minor from the exclusion of “man,” and an essential barrier
Zakhin in the division of the Land, and the difficulty: is this an unqualified benefit?
The Talmud’s conclusion: a guardian for orphans, “to impose a liability in order to benefit”
A map of the possibilities for understanding zakhin and the practical difference for a minor
Conclusion: distinguishing between benefit, liability, and complex cases

Summary

General Overview

The lecture defines the law of zakhin as an alternative track to agency, through which one may act on behalf of another person when the act is to that person’s benefit, even without having been appointed as an agent. It then sets out the dispute among the medieval authorities (Rishonim) over whether zakhin operates by virtue of agency or as an independent mechanism. The topic is examined through the exclusion of a minor from “a man can confer acquisition, but a minor cannot confer acquisition,” through Maimonides’ language in the laws of agents and partners, and through the verses regarding the Passover offering and the division of the Land, while emphasizing the distinction between a minor as one who confers acquisition and a minor as one for whom others confer acquisition. Later, the lecture discusses the tension between the possibility that zakhin works for minors and the rule that there is no agency for a minor, and the Talmud moves from a source for zakhin in the division of the Land to a conclusion involving a guardian appointed by a religious court in cases that also contain an element of liability.

Opening: defining zakhin and the framework of the dispute

The law of zakhin applies when the act is a benefit for the person, and therefore even someone who was not appointed as an agent can acquire on his behalf, for example by acquiring a gift from ownerless property when this does not disadvantage others. There is a dispute among the medieval authorities (Rishonim) whether zakhin works by virtue of agency or is an independent law, and the inquiry begins with defining the meaning of that dispute and what exactly each side holds.

“A man can confer acquisition, but a minor cannot confer acquisition” and clarifying the term “acquire”

Rabbi Yitzchak’s statement, “A man can confer acquisition, but a minor cannot confer acquisition,” is explained to mean that the term “confers acquisition” refers to one who enables others to acquire, not to the one receiving the acquisition. So the exclusion deals with a minor conferring acquisition on behalf of an adult, not an adult conferring acquisition for a minor. This distinction is defined as a point that will be important later in the discussion.

Maimonides in the laws of agents and partners, and the parameter of connection between sender and agent

Maimonides writes that a person may appoint as an agent a man or a woman, and even a married woman. The possibility that a “married woman” might have been considered limited is explained as an initial assumption arising from her connection to her husband rather than to the sender. A conception is presented according to which fitness for agency depends not only on whether the agent is “relevant to the task,” but also on the connection between the sender and the agent. The example of a non-Jew is used to explain a case where, even if there is relevance to the act, there is no connection that allows the act to be attributed to the sender. Maimonides rules that a male slave and a female slave can serve as agents for business matters because they have understanding and are obligated in some commandments, whereas a deaf-mute, an incompetent person, and a minor cannot serve as agents and cannot appoint an agent, meaning they are neither agents nor senders.

A doubt in the topic: agency or zakhin with regard to a minor

A question is raised whether, in the passage where it says “a man can confer acquisition, but a minor cannot confer acquisition,” the exclusion of the minor is from agency or from acquisition under the rule of zakhin. The possibility that the wording simply describes the minor’s action without deciding whether it is agency or zakhin is presented as a point of uncertainty. A theoretical possibility is raised that a minor may not be able to be an agent, but perhaps could still confer acquisition, and the question is framed through the need to understand why conferring acquisition would be easier than being an agent.

Rabbi Akiva Eiger: zakhin as agency without appointment, and the connection to a minor as sender

The reasoning of Rabbi Akiva Eiger in Ketubot 14 is brought: zakhin is essentially a law of agency, except that no appointment is required, and one can be an agent without an act of appointment. The explanation focuses on the fact that a minor cannot appoint an agent because the act of appointment is a legal act requiring intent and legal competence. Therefore, where no appointment is needed, there is room to understand how one can acquire on behalf of a minor.

The Brisker Rav’s note: the uniqueness of the Passover offering as monetary ownership, and learning acquisitions from it

The novellae of Rabbi Yitzchak Zev HaLevi explain that in the case of the Passover offering, unlike ordinary offerings, monetary ownership over the offering is required, not merely the status of the one atoned for. Therefore, agency in the case of Passover teaches that agency is effective even for acts of acquisition throughout the Torah. The Mekhilta is cited, which learns from “Draw forth and take for yourselves” that small livestock is acquired by pulling, and from this it follows that the “taking” of the Passover offering is a real act of acquisition and not merely an act creating halakhic affiliation.

Tosafot here: the need for a verse, and a minor who is relevant to Passover

Tosafot ask why a verse is needed to exclude a minor from conferring acquisition, if in any case “a minor has no legal hand.” They answer that with regard to Passover, one might have thought a minor could confer acquisition on behalf of others, because he is relevant to eating Passover offerings and must be registered for it. Therefore a verse is needed to exclude him, teaching that even in an area that is “within his legal framework,” he still cannot confer acquisition. The move is interpreted to mean that the disqualification of a minor is not only because he is unrelated to the act, but rather an essential barrier to being an agent or one who confers acquisition. Tosafot’s assumption that a minor is counted in the Passover offering on a Torah level is presented as far from simple, and connected to contradictions in the passages and disputes among the medieval authorities (Rishonim).

Rabbi Chaim on Maimonides: a minor fulfills a commandment without being obligated in Passover

Rabbi Chaim on Maimonides in the laws of the Second Passover is cited, explaining that a minor has fulfillment of the commandment even though he is not obligated in it. Therefore, if a first Passover offering was slaughtered on his behalf while he was still a minor, and he then became an adult by the time of the Second Passover, the first act still has halakhic significance. The point is presented as a mechanism that appears elsewhere too, where the act of a minor is considered fulfillment of a commandment like that of an adult even without obligation.

Tosafot in Pesachim: “there is no agency for a minor” and the connection between acquisition and agency

Tosafot in Pesachim ask why a verse is needed to exclude a minor from conferring acquisition if “there is no agency for a minor,” assuming that Baba Metzia 12 proves that acquisition works by virtue of agency. They suggest that the verse could serve as the source for the rule that a minor has no agency, but they still struggle, because even for himself a minor does not acquire a found object except for the sake of social peace. They answer that finding an object is different from receiving a gift, where there is da’at aḥeret makneh—another person intentionally transferring ownership—and therefore a minor’s acquisition is stronger. From this it emerges that there was an initial assumption that a minor might be able to confer acquisition in cases where he falls within the legal framework of acquisition, such as a gift, and the verse comes to exclude him and teach that he still cannot confer acquisition on behalf of others, while preserving the assumption that acquisition works by virtue of agency.

The question of the medieval authorities (Rishonim) on the Talmud: if zakhin works by agency, how does the Talmud distinguish between them?

Regarding the verse “one prince, one prince from each tribe,” the Talmud rejects learning agency from it on the grounds that minors are not fit for agency, and therefore that case must be one of zakhin. The lecture notes that this understanding does not fit with Tosafot’s view that acquisition works by virtue of agency. It is noted that Spanish medieval authorities such as the Ritva, Rashba, Nachmanides, and Ran point out this difficulty, whereas Ashkenazi authorities do not comment on it.

Rashi: the source that there is no agency for a minor from the exclusion of “man,” and an essential barrier

Rashi writes that the reason there is no agency for a minor is learned from the exclusion of “man” in passages such as “and he sends and she is sent away,” “when a man takes,” and the passage of terumah, from which we learn that “a minor cannot appoint an agent.” The lecture concludes that according to Rashi this is not merely a matter of logic based on “he is not within the legal framework,” but a scriptural exclusion indicating an essential barrier to agency.

Zakhin in the division of the Land, and the difficulty: is this an unqualified benefit?

The Talmud cites in the name of Rabba bar Rav Huna that Rav Giddel said in the name of Rav that from here we learn that “one may acquire on a person’s behalf in his absence.” But Rav Sheshet objects that this is not an unqualified benefit, because one person prefers a mountain and another prefers a valley, and vice versa. The objection sharpens the distinction that zakhin applies only where there is a benefit, and where there is also some liability it does not apply.

The Talmud’s conclusion: a guardian for orphans, “to impose a liability in order to benefit”

In conclusion, the Talmud interprets the verse as the source for the rule that a religious court appoints a guardian for orphans who come to divide their father’s estate, “to impose liability and to benefit,” and it explains that “to impose liability” means “to impose liability in order to benefit.” The suggested understanding is that this may indicate that we are not dealing here with the ordinary law of zakhin, but with a special mechanism of appointing a guardian by the court in complex situations that contain a mixture of benefit and liability. The lecture notes that there is a dispute among the medieval authorities (Rishonim) whether the verse deals with zakhin or only with a guardian.

A map of the possibilities for understanding zakhin and the practical difference for a minor

Two basic conceptions are presented: zakhin as an independent mechanism that does not require appointment, or zakhin as a mechanism of agency based on implied appointment by force of presumption that this is what the person wants. The implication for a minor is that if zakhin depends on implied appointment, it becomes difficult because a minor is not capable of appointment, whereas if zakhin does not require appointment, it becomes understandable how one can acquire on behalf of a minor even though there is no agency. An additional qualification is suggested: even if zakhin works by virtue of agency, in a case of an unqualified benefit there may be no concern about the minor’s intent, and then there may be room to expand a minor’s ability of appointment in such situations. But that raises implications for actions that may specifically require agency, such as separating terumah.

Conclusion: distinguishing between benefit, liability, and complex cases

The lecture distinguishes between a case of unqualified benefit, where zakhin applies; a case of liability, where zakhin does not apply; and complex cases in which it is unclear whether the law of zakhin applies or whether a guardian appointed by the religious court is required. The example of giving a person something he does not want to receive is used to clarify that one may not impose a liability on a person except in his presence, and it is stated that the continuation of the inquiry will take place in the next lecture by placing the views of the medieval authorities (Rishonim) within the map that has been built.

Full Transcript

[Rabbi Michael Abraham] Okay, let’s begin. Today we’re dealing with the law of zakhin. We’ve already mentioned it more than once as some kind of alternative route to the ordinary route of agency. Zakhin speaks about a situation where the action constitutes a benefit for the person, and in that case even someone who was not appointed by him as an agent can do it on his behalf. Okay, for example, I don’t know, to acquire some gift from ownerless property, as long as at the moment it doesn’t disadvantage someone else. It’s obvious that if you receive something as a gift that’s a benefit for you, so in that situation I can acquire it for you even if you didn’t appoint me as an agent. And that’s the meaning of the law of zakhin. I also mentioned, I think, that there’s a dispute among the medieval authorities (Rishonim) whether zakhin works by virtue of agency or whether it’s an independent law. Today I want to get a little into these matters, because to be honest, even before trying to explain the dispute, it’s really not clear at all what this dispute even means. What does it mean to say that zakhin works by virtue of agency, or that zakhin does not work by virtue of agency? What does that mean? What does each side hold? And after that we can try to look for an explanation of the dispute. But first of all, what is the dispute at all? What are the two sides? Fine, so we’ll get to that later too. I assume this discussion of zakhin will take us at least one more session. In terms of the page, where are you up to? Did you finish the page?

[Speaker C] Not at all. No, no, we didn’t finish.

[Rabbi Michael Abraham] Okay, because I want to add a bit for next time. Fine, all right. Okay, so let’s begin. I want to start with the Talmud in the previous section. I told you it’s worth starting there because it already deals with the concepts of acquisition and agency in zakhin. So let’s look here. “Rather from here: ‘And they shall take for themselves, each man, a lamb for a father’s house, a lamb for a household.’” “But perhaps,” without going into the details—we already saw this Talmudic passage—“but perhaps there too he has a partnership in them.” Right, maybe the person has a partnership, and therefore it’s easier for him to be an agent. “If so, why do I need two verses?” Right, then why are two verses needed? “If it is not needed where he is relevant, apply it where he is not relevant.” “That one is needed for Rabbi Yitzchak, for Rabbi Yitzchak said: A man can confer acquisition, but a minor cannot confer acquisition.” Right, so you can’t learn agency from here; it comes to exclude minors from acquisition. “That one is derived from ‘each man according to his eating,’ and this one is needed for slaughtering the Passover offering for an individual; he holds like the one who says that one does not slaughter the Passover offering for an individual.” For our purposes, what’s important is this statement of Rabbi Yitzchak, where Rabbi Yitzchak says: “A man can confer acquisition, but a minor cannot confer acquisition.”

Now, the one who “acquires” here—and this is confusing wording both in the Talmud and in the medieval authorities (Rishonim)—when it speaks of “the one who acquires,” it means the agent, not the sender. Okay? Even though supposedly the one who acquires, the agent, is the one conferring acquisition, while the one who acquires is the person to whose benefit this ultimately accrues. But no—the term “acquires” in this context means the one who causes acquisition, meaning I acquire on your behalf, okay? That’s the agent for our purposes, all right? Just so that’s clear—you see this in the medieval authorities (Rishonim) here too, and it’s also pretty clear from the flow of the Talmud. We’ll see later that this point matters.

[Speaker C] So in the end the sender acquires it.

[Rabbi Michael Abraham] Yes, I’m only saying that “a man can confer acquisition, but a minor cannot confer acquisition” comes to exclude a minor who confers acquisition, not a minor who receives the acquisition. Okay? The minor who’s going to acquire the offering for someone else who is an adult can’t do that for him. We’re not talking about someone acquiring on behalf of a minor, but rather a minor acquiring on behalf of an adult. The minor can’t be the agent, right? Or the one conferring acquisition—let’s call him the one conferring acquisition, and the one receiving acquisition. What the Talmud is saying here, when it says “the one who acquires,” it means the one conferring acquisition can’t do so for someone else, okay?

Maimonides indeed brings this as Jewish law in the laws of agents and partners, chapter 2, law 2: “A person may appoint as an agent a man or a woman, and even a married woman.” What is this “even”? That’s very interesting. “Even a married woman.” What’s the difference between an ordinary woman and a married woman? Why should it matter?

[Speaker D] You’re not supposed to speak at all with a married woman. Huh? He’s not supposed to speak at all with someone else’s married woman.

[Rabbi Michael Abraham] Not supposed to speak, but that prohibition… that’s not supposed to affect the possibility of appointing her as an agent. It doesn’t seem that she has any deficiency in functioning as an agent, whether he speaks with her or not. He can send her a note by mail, he doesn’t have to speak with her.

[Speaker E] Maybe from the monetary side, though? Monetary acquisition?

[Rabbi Michael Abraham] What do you mean?

[Speaker E] Because what she acquires, her husband automatically acquires too, no?

[Speaker D] But she isn’t acquiring for—

[Rabbi Michael Abraham] —herself. She’s acquiring for someone else. Why assume she’s specifically working in order to acquire for herself? We’re talking here about agency. So the point is, I think this is connected to what we discussed, say, regarding a non-Jew. If you remember, we talked about a non-Jew and a slave, and we said that a non-Jew can’t be an agent because he’s not from my family, so to speak. So he can’t really—our connection is weaker, or nonexistent, or less existent, and therefore he is less able to be my agent than someone who is close to me. We said that this almost complements the issue of being within the legal framework. Right, being within the legal framework is determined by whether the agent is relevant to the task—meaning, if the task is the sort of thing he could possibly perform. But there is another parameter that determines the ability to appoint an agent, and that is the connection between me and him. Someone who can act in my name is someone between whom and me there is a connection. If there is no connection, then his actions cannot be attributed to me. There’s no connection between us. Therefore we said that a non-Jew, even in matters that are within his legal framework, cannot be an agent because there is no connection between me and him. He can’t act in my name.

And here, when you’re talking about a married woman, the married woman has a connection to her husband. So therefore, when I send a married woman, one could have thought maybe she couldn’t be my agent because she isn’t connected to me, she’s connected to someone else. So therefore she can be his agent but not my agent. Of course, all of that is only an initial assumption. Maimonides says no—obviously a married woman can also be an agent. I’m just asking why he bothers to say this “even.” So perhaps there was some initial assumption here, and it hints to what we discussed there: that the connection between me and the agent is also an important parameter in determining whether he can be my agent or not. “And even a male slave or a female slave, since they possess understanding and are obligated in some commandments”—that’s what’s called part of the covenant—“they can be agents for business dealings,” right, for matters that are within their legal framework. “But one who lacks understanding—namely, a deaf-mute, an incompetent person, and a minor—cannot become agents and cannot appoint an agent.” Notice, he says both things: they can’t function as agents, and they can’t appoint an agent to function for them. They can be neither agent nor sender. “Whether a male minor or a female minor. Therefore, if someone sent his minor son to the shopkeeper and he measured for him,” and so on—that’s already the implication.

So Maimonides basically says that from here it follows that a minor cannot be an agent and cannot be a sender. He doesn’t play on the legal field at all. In our Talmudic passage, on the simple level, we’re speaking about the law of zakhin, not the law of agency, okay? It says, “A man can confer acquisition, but a minor cannot confer acquisition,” okay? “Confers acquisition”—apparently, on the face of it, from the style it seems to be talking about the minor acting under the law of zakhin for the adult, not as an agent. It’s not entirely clear, because maybe the intention is that a minor acquires for his sender—they’re simply describing what he does, and not the connection between him and the sender, whether that connection is under the law of zakhin or the law of agency. Rather, he simply acquires the offering for his sender, but maybe he is in fact literally an agent, okay? So here there’s room to hesitate whether our passage is talking about acquisition or about agency. Because the question is: when it says “a man can confer acquisition, but a minor cannot confer acquisition,” does it mean the minor cannot be an agent, or the minor cannot confer acquisition under the law of zakhin?

In the Talmud, that is. So in Maimonides, when it says he cannot be either agent or sender—in our passage in the Talmud, what we read above, it says a minor cannot be an agent. Does that mean he also can’t confer acquisition? Or perhaps he can confer acquisition, and only can’t be an agent? Maybe yes? Why? What’s the idea? Why would he be able to confer acquisition even though he can’t be an agent?

So there’s an argument, and we’ll come back to it later, from Rabbi Akiva Eiger in Ketubot 14. Rabbi Akiva Eiger basically says this: the law of zakhin is really a law of agency—except that no appointment is needed. You can be my agent even if I didn’t appoint you. Okay? It could be that when a minor can’t be an agent, it’s because he can’t appoint—or let’s say the minor is the sender; Rabbi Akiva Eiger is mainly talking about that. If the minor is the sender, then the minor can’t appoint an agent because the act of appointment is a legal act. You need to possess legal understanding for that; you need to be a player on the legal field. But if there is a law of zakhin in which no appointment is needed, then a person can acquire on behalf of a minor, because in order to be one who acquires for another, no appointment is needed. And the whole problem with a minor is that he can’t appoint. Fine—but where no appointment is needed, what’s the problem? A minor can also be included.

[Speaker C] Wait, and if no appointment is needed, then why do I even relate to this as a law of agency? Why should I care?

[Rabbi Michael Abraham] What—I didn’t understand?

[Speaker C] Why do we need to relate to it as a law of agency at all if no appointment is needed?

[Speaker E] In the Talmud it’s brought that this is…

[Rabbi Michael Abraham] Under the law of zakhin, you function for me as if you were my agent. Only you don’t need to be appointed for that. You become my agent without the act of appointment. Okay? In the end, you act as my agent, only appointment isn’t needed in order to create that connection between us. Okay. Fine, so basically—well, we’ll come back to that later.

Another note I want to make here: the Brisker Rav, in the novellae of Rabbi Yitzchak Zev HaLevi on the laws of the Passover offering, writes—this is just a note worth knowing here—that in the Passover offering you see that you have to actually be an owner of the offering. In ordinary offerings, no. In a regular sin offering that you bring, you don’t have to be the owner of the offering. You only have to be the owner in terms of atonement. In Brisk terminology, they call this “the one atoned for.” Not that you are the owner. The offering has to be one associated with you, not in the sense of ownership—that it belongs to you as property—because in the end the offering is consecrated property, it belongs to Heaven, okay? Rather, it has to be the offering that you consecrated, meaning that you are the one who is atoned for through that offering. In the Passover offering, the meaning of “it shall be eaten only by those registered for it”—you have to be registered in order to offer and eat it. What does “registered” mean? The rabbi of Brisk says that the Passover offering is exceptional among all offerings. In the Passover offering, you also have to be a monetary owner of the offering. And therefore, from the fact that agency is effective in the Passover offering, one can learn that agency is effective throughout the Torah, because if in the Passover offering you didn’t really need to be an owner at all, then what’s the problem in my sending someone to acquire the Passover offering for me? He isn’t really performing an act of acquisition. It’s only a connection between me and the offering. You couldn’t learn from here that a person can function as my agent to carry out acts of acquisition on my behalf. But you see that here it’s talking about an act of acquisition.

He also brings the Mekhilta. The Mekhilta learns from the verse “Draw forth and take for yourselves”—also regarding Passover—that small livestock is acquired by pulling. Again you see that from the taking of the Passover offering they learn the laws of acquisitions. Meaning that taking the Passover offering is actually an act of purchase, an act of acquisition, and not merely an act with halakhic significance, that the offering should count as my offering and that I am the one atoned for. Fine, that’s just a side note.

[Speaker C] We didn’t hear the note. Okay—what? We didn’t hear the note.

[Rabbi Michael Abraham] Ah. I’m just saying that the note is this: when we learn the laws of agency from enrollment in the Passover offering, it seems that enrollment means becoming the proprietary owner of the offering. That’s unlike other offerings, where I don’t have to be the owner. I need to be the one who has a connection to the offering, who consecrated it, who is atoned for by the offering. But I don’t have to own it. In the Passover offering, the fact that it is eaten only by those registered for it means that I need to be registered for it. What does that mean? To be its owner. Meaning to acquire it. Okay?

[Speaker D] How do you register for the Passover offering?

[Rabbi Michael Abraham] You acquire it. As they say here, for example by pulling it, or by any other mode of acquisition. Okay?

[Speaker D] Not necessarily with money.

[Rabbi Michael Abraham] No, no—however movable property is acquired. Quite the opposite: in the conclusion, movable property is acquired by pulling and not by money, rabbinically speaking.

[Speaker F] Can you hear me? Now. Now yes. The internet disconnected here, yes, sorry.

[Speaker E] Seemingly, though, I have a question. Seemingly with a minor there are really two problems: both the problem that this is something monetary, and he has no standing in monetary matters, but also the problem that the commandments don’t apply to him. Meaning, even if the Passover offering weren’t a monetary matter, seemingly a minor still wouldn’t be able to be…

[Rabbi Michael Abraham] Fine, but then maybe you wouldn’t need an agent for it at all. What exactly is he supposed to do for me?

[Speaker G] I didn’t understand, but…

[Rabbi Michael Abraham] I need to be the one atoned for. Okay, so I’m the one atoned for. So what difference does it make now? There’s no need for agency on my behalf.

[Speaker E] You have to lay hands, no? There are actions that are done…

[Rabbi Michael Abraham] Laying on of hands is done by the owner; that’s unrelated. We’re not talking here about agency for laying on hands.

[Speaker E] So only agency that… what? So then there’s no law of agency at all, I got it.

[Rabbi Michael Abraham] Yes, on the simple level no agent is needed. There’s nothing to do—what exactly will the agent do on my behalf?

[Speaker E] So basically he learns this from the fact that it’s talking about agency regarding Passover—that’s where he learns the monetary aspect. Now I understand.

[Rabbi Michael Abraham] From the law of enrollment in Passover they learn the laws of agency throughout the Torah; it’s a source for the laws of agency. He also brings the Mekhilta, that from the verse “Draw forth and take for yourselves” they learn that small livestock is acquired by pulling. So you see that “Draw forth and take for yourselves,” which is the enrollment, is actually acquisition. Okay? Fine, that’s a side note so we can see the context; it’s less important for our topic.

[Speaker E] But the problem with a minor—is it only the monetary acquisition, or also just with an ordinary commandment, say that he would be my agent or…

[Rabbi Michael Abraham] No, his problem is not only the monetary acquisition. The problem is that a minor cannot be an agent at all. But in a place where there’s no need for agency, then even a monkey can do it, so it doesn’t matter.

[Speaker E] Right, but say—why can’t he be an agent, basically? Because it doesn’t apply to him…

[Rabbi Michael Abraham] He has no legal understanding, as Maimonides says. Someone without legal understanding doesn’t play on the legal field. In a moment we’ll see in Tosafot here—Tosafot here writes as follows. Look, I highlighted the Tosafot: “A man can confer acquisition, but a minor cannot confer acquisition. And if you ask: why do I need a verse? Why do I need a verse to teach that a minor cannot confer acquisition? We hold that a minor has no legal hand.” A minor can’t buy, sell, make acquisitions; a minor is not a legal entity. So if he can’t acquire for himself, obviously he can’t acquire for someone else. What’s the point?

So he says: “And one can say that regarding Passover it was necessary.” It could be that this verse is needed specifically for Passover. In general, really, you don’t need this verse. But with regard to Passover you do. Why? “For you might have thought that since he is relevant to eating Passover offerings and must be registered for it, as it is written, ‘a lamb for a father’s house, a lamb for a household’—even a minor—say that he can also confer acquisition for others; therefore it teaches us otherwise.” Meaning, with regard to Passover, since the minor himself is relevant to enrollment in the offering—they learn this from “Take for yourselves, each man, a lamb for a father’s house, a lamb for a household”—the Talmud in Nedarim 36 and in several places in Pesachim says that even minors are registered for the Passover offering. That’s unlike other matters, where minors aren’t relevant to commandments and so on. In the Passover offering, the whole family—“a lamb for a father’s house, a lamb for a household”—includes the minors. And then he says that the minors too are registered.

So what? Since in the Passover offering the minor himself can be registered, I would have thought that he could also appoint someone else, or acquire on behalf of someone else, the registration. Therefore the verse is needed to say no. But in another place, where the minor himself is not relevant, there obviously no verse is needed to say he can’t be an agent; I would know that even without it. What is Tosafot’s initial assumption and what is his conclusion? Not Tosafot’s—the Talmud’s initial assumption and conclusion according to Tosafot. What did the Talmud originally think?

[Speaker B] We think he can appoint.

[Rabbi Michael Abraham] What? The Talmud originally thought that a minor couldn’t be appointed because he is not within the legal framework. Not like a non-Jew, who essentially cannot be an agent, but because he is not within the legal framework. So Tosafot says: if that’s so, then why do I need a verse? I know that the minor is not within the legal framework of acquisitions, he’s not within the legal framework of anything, so why do I need a verse that he can’t be an agent? Tosafot says: right—for things that are not within his legal framework, you don’t need a verse. What needs a verse is Passover. Why? Because with Passover he is within the legal framework… and even there he still cannot be an agent, even in things that are within his legal framework, like enrollment in the Passover offering. Meaning, the question you asked earlier, Yael, is exactly the initial assumption and conclusion of the Talmud according to Tosafot. At first they thought that what prevents a minor from functioning as an agent is simply that he is not within the legal framework of the matter. Since a minor isn’t relevant to commandments or acquisitions, he can’t function as an agent either, because he isn’t within the legal framework of the matter. But then it would come out that regarding Passover he could be an agent, because there he is within the legal framework of enrollment—he can be registered. Therefore it teaches us otherwise: that even in things within his legal framework he still cannot function as an agent. Which means there is an essential barrier to his being an agent, not merely that he is not within the legal framework. And in that sense he is like a non-Jew. Okay?

Now the truth is that Tosafot’s assumption that a minor really is relevant to enrollment in Passover is far from simple. The Talmud says “a lamb for a father’s house” is not on a Torah level; maybe it is only a rabbinic law. There are major disputes among the medieval authorities (Rishonim) about this, because there is a contradiction between the Talmud in Pesachim and the Talmud in Nedarim. There is a Rabbi Chaim on Maimonides that I referred you to on the sheet—very interesting and well known, which is why I sent it to you. Again, it’s not important for our purposes, but just for general knowledge. Rabbi Chaim argues there that Maimonides says that if someone—if a minor was enrolled in a Passover offering and they slaughtered the offering on his behalf, and two weeks later he became bar mitzvah, and another two weeks passed and he reached the Second Passover—on the 14th of Iyar, someone who didn’t bring the first Passover has to bring the Second Passover.

[Speaker H] But only someone who was obligated in the first Passover, right? But he wasn’t obligated in the first Passover.

[Rabbi Michael Abraham] So Maimonides says—Maimonides says that if the minor didn’t bring it, he has to do the Second Passover, and if he did bring it, then he is exempt. And the question is, how does that work? So Rabbi Chaim explains there—it doesn’t matter right now, it’s a long argument. Rabbi Chaim explains there that a minor has fulfillment of the commandment even though he is not obligated in it. Meaning, he isn’t obligated, but if he did it, then he fulfilled a commandment. And this is an interesting mechanism; you find it in several places. The levirate marriage of minors—you can perhaps see this according to certain views, Noda B'Yehuda—there are certain things where a minor is indeed not obligated, but his act is still considered an act of commandment like the act of an adult. He fulfilled that commandment even though he wasn’t obligated in it. Okay.

[Speaker H] Are there other examples?

[Rabbi Michael Abraham] Circumcision, for example, according to some views.

[Speaker H] But once you say that a minor has to be registered for the offering, then why would he have to make it up afterward?

[Rabbi Michael Abraham] If he was impure?

[Speaker H] No, if he wasn’t impure—he was pure. But as a minor, on a Torah level he is registered for the offering, so why would he have to make it up afterward with the Second Passover?

[Rabbi Michael Abraham] He is registered—if he was enrolled, fine. If he wasn’t enrolled? Ah, just like an adult. Just as an adult who wasn’t enrolled is obligated in the Second Passover. Fine, that’s just a side note. I’m only saying that what it says here, “a lamb for a father’s house, a lamb for a household,” from which they learn that even minors are enrolled—that’s disputed. There are several and several views among the medieval and later authorities on this, and I’m not going into it here. Tosafot here assumes for our purposes that a minor is relevant on a Torah level to enrollment in the Passover offering. Is he obligated or not obligated? There’s room for hesitation; it’s not clear in Tosafot. Fine, in any case, that’s Tosafot here. What we see from this Tosafot…

[Speaker D] Another question—what does “household” include? Does the household include slaves and maidservants and women—are they all included in the household? What is a household?

[Rabbi Michael Abraham] Slaves and maidservants? I don’t remember. I think yes. I think so, but I’m not sure; it needs checking.

[Speaker C] Meaning they too are supposed to eat from the Passover offering?

[Rabbi Michael Abraham] Yes.

[Speaker B] “No foreigner—”

[Speaker C] “—shall eat of it,”

[Rabbi Michael Abraham] But “foreigner” means a non-Jew, and the slave is effectively one who is circumcised. I’m almost sure that a male slave and female slave are included, almost sure, but I don’t remember with certainty; it needs checking. One second, a question.

[Speaker G] You said that the Passover offering is unique in the sense that ownership of the offering has significance, unlike the other offerings. So when I—so doesn’t that matter, in the sense that when we’re trying to create the distinction between the law of zakhin and agency regarding a minor, it’s very relevant whether there is ownership or no ownership of the offering, when I’m trying to determine whether the minor belongs or doesn’t belong in this area?

[Rabbi Michael Abraham] Since he is relevant to enrollment, then he is within the legal framework of the matter. So I would think that if he is within the legal framework of the matter, then he should also be able to acquire for others—why not? The verse says no. The fact that a minor cannot acquire for others is not only because he is not within the legal framework of the matter, but because there is an essential barrier, like a non-Jew.

[Speaker G] And you still haven’t distinguished between zakhin and agency?

[Rabbi Michael Abraham] No, no, it’s unrelated—I still haven’t made that distinction yet. Okay? So that’s Tosafot here. Tosafot in Pesachim writes as follows: “A man can confer acquisition, but a minor cannot confer acquisition. It is difficult: why is a verse needed? We hold that there is no agency for a minor.” A similar question, but not identical. Tosafot here asked: why do I need the verse, since the minor himself cannot acquire, so in any case he cannot acquire for others. And the initial assumption was that he lacks agency because he is not within the legal framework, right? Here Tosafot asks: there is no agency for a minor, so why think there is acquisition for a minor? Here Tosafot explicitly says that the discussion is about the law of zakhin and not agency, right? In the Talmud and in the earlier Tosafot it wasn’t clear; you could read it either way. In this Tosafot, when it says “a man can confer acquisition, but a minor cannot confer acquisition,” it means the law of zakhin. And Tosafot asks about that: as for agency, there’s no agency for a minor anyway, that’s clear. The verse teaches that there is also no law of zakhin for a minor. Tosafot asks: why do we need a verse for that? If there is no agency for a minor, as you see in the first chapter of Baba Metzia—sorry—and in the first chapter of Baba Metzia 12 it is proven that acquisition works by virtue of agency, that acquisition operates under the law of agency—then if so, just as there is no agency for a minor, there is also no acquisition for a minor. So why do I need a verse?

Tosafot says: “And if you say, perhaps from here we derive that he has no agency”—what does that mean?

[Speaker E] He proves from here that he has no agency. How do you know he has no agency? This is the proof that he has no agency. The source? The source, yes.

[Rabbi Michael Abraham] This itself is the source that he has no agency—the verse!

[Speaker D] It’s not a source, it’s a logical conclusion. He combines two things and reaches a conclusion. If A doesn’t hold and you need A and then B, then not B—it’s a logical conclusion.

[Rabbi Michael Abraham] No, the verse teaches me that “a man can confer acquisition, but a minor cannot confer acquisition,” right?

[Speaker D] That’s with respect to acquisition. Yes.

[Rabbi Michael Abraham] But Tosafot says acquisition works by virtue of agency. That’s his assumption; it’s proven from the Talmud in Baba Metzia 12.

[Speaker D] But he also assumes that we hold there is no agency for a minor. That he assumes.

[Rabbi Michael Abraham] That’s clear; the Talmud says in many places that there is no agency for a minor. The only question is that at first he thought there was another source for that—maybe by logic, maybe from another source. Then he says: if so, why do I need yet another source to exclude the minor from acquisition? And then he says no, there is no other source; this verse is the source. It is the source for that.

[Speaker D] Because it’s the same thing, because—

[Rabbi Michael Abraham] Agency and acquisition are the same thing. Tosafot claims that acquisition and agency are the same thing—it is agency without appointment. But it is still agency; it comes from the section dealing with agency. So Tosafot says: if that’s the case, then this verse is the source. Then Tosafot says: “Still, it remains difficult.” Even if you say this verse is the source, it is still difficult. “Why is it necessary to exclude him from being one who acquires, for even for himself he has no acquisition in a found object except because of the ways of peace, as we say in ‘These Found Objects.’” That is already Tosafot’s question here, right? That’s the question of Tosafot here. Tosafot here basically asked: why do I need a verse that he can’t acquire for others, if he can’t acquire for himself? Then he isn’t within the legal framework of acquisition.

“And one can say that this is specifically with regard to a found object. But a gift, where another person intentionally transfers ownership to him, is better,” as is concluded in “Two Holding” and likewise in the chapter “Receive,” as we say, and so on. What is he saying? That this too is subject to disputes…

[Speaker H] It’s…

[Rabbi Michael Abraham] There are also disputes among the medieval authorities (Rishonim), but this is the view of Tosafot in several places. A minor, generally speaking, is accepted in the Talmud as unable to acquire—he can neither transfer ownership nor acquire; he is not a legal entity. Okay? But the Talmud says that in a case where there is another mind conferring ownership—I'm conferring ownership—when a minor acquires from ownerless property, he is the one performing the act of acquisition, and he can't do that. But if I transfer ownership to the minor, then I am performing the act of transfer for the minor; I'm an adult. So that act of transfer can work even for a minor. That's what's called another mind conferring ownership. When there is another mind, the mind of someone else who is an adult and who transfers the item to the minor, then the minor has an acquisition. Now, this law too is a dispute among the medieval authorities (Rishonim). Can't hear. This law too is a dispute among the medieval authorities (Rishonim) whether it is Torah-level or rabbinic. Tosafot here assumes this is a Torah-level law: that if another mind confers ownership to a minor, then the minor acquires. Now what happens in our case? The minor goes and acquires the Passover offering from the owner of the offering on behalf of the group. Right? The minor? So the Talmud says: then in fact there is another mind conferring ownership here. The owner of the offering transfers it to the minor on behalf of others. So there is another mind conferring ownership here. Therefore, from the standpoint of the minor, he really could acquire on a Torah level. So we need a verse that says: yes, but to acquire on behalf of others, that he cannot do, because he is not included in that legal category, as we saw there. And therefore, unlike Tosafot in our passage, who said this is unique to the Passover offering, Tosafot here says this is true in every case of another mind conferring ownership, not specifically for the Passover offering. But still the line of reasoning is similar: I would have thought that in matters where the minor is included in the legal category, he could also serve as an agent for others or acquire on behalf of others; the verse comes to teach us that no—this is a fundamental disqualification. Even things in which he is included in the legal category, he cannot do for others. Okay? That's what Tosafot in our passage says as well.

[Speaker D] So that means that in this case the minor can acquire, or people can acquire for him, his share in the offering, but he can't pass it on further to others.

[Rabbi Michael Abraham] Correct. I mentioned earlier that “a lamb for each parental household”—according to some medieval authorities (Rishonim), the minor is appointed to the Passover offering on a Torah level. And according to the Rabbi of Brisk, who says that appointment means acquisition, how can that happen?

[Speaker D] That others transfer ownership to him.

[Rabbi Michael Abraham] Only through another mind conferring ownership. Meaning, according to that view, it has to be that another mind conferring ownership works on a Torah level, otherwise the minor could not have been appointed to the Passover offering. Okay? So that's Tosafot's claim. What comes out according to Tosafot's conclusion? Pay attention.

[Speaker H] That acquisition on behalf of someone is still based on agency, grounded in agency, but the minor can have something acquired for him, while he can't be an agent for others. But acquisition on behalf of someone is still based on agency.

[Rabbi Michael Abraham] Acquisition on behalf of someone is based on agency. The minor can't be an agent and can't acquire on behalf of others. Tosafot says: but you would have thought that's only because he's not included in that legal category, and in things where he is included in that category he could indeed be an agent and acquire on behalf of others. The verse comes and teaches: no. He can be neither an agent nor one who acquires on behalf of others in a fundamental sense, even in things where he is included in that legal category. Okay? But according to Tosafot's conclusion, what comes out? That this verse really is the source for the fact that a minor cannot—cannot be an agent and cannot confer acquisition. Right? So why do we need it? To teach me that this is true even regarding things in which he is included in the legal category. Fine. But still, things in which he is not included in that legal category—then he can't be an agent and can't confer acquisition because of the reasoning that someone who is not included in that legal category cannot be an agent and cannot confer acquisition. That's obvious.

[Speaker H] Wait—when you say he can't “acquire,” you mean he can't confer acquisition, right?

[Rabbi Michael Abraham] Can't confer acquisition, yes. Now, when a minor—when a minor is included in some legal category, this is where the verse comes and says: no, he still can't be an agent and can't confer acquisition, because he has a fundamental disqualification from functioning as an agent and as one who confers acquisition. Where do we learn that from? From this very verse. Okay, so this Tosafot is moving along a different but parallel line to the Tosafot in our passage, but it sharpens the point more. In the end, this verse really teaches that there is no rule of acquisition on behalf of someone and no rule of agency for a minor. And why does it teach both? Because acquisition on behalf of someone is based on agency. It's basically the same thing. What happens according to the view that acquisition on behalf of someone is not based on agency?

[Speaker B] Then there's no problem acquiring for him. What? If acquisition on behalf of someone is not based on agency, then there's no problem acquiring for him.

[Speaker C] We still don't know that—it’s like you can't draw that conclusion. There's no connection between acquiring for him—no problem—the question is whether he can acquire on behalf of others.

[Speaker B] No.

[Rabbi Michael Abraham] If acquisition on behalf of someone is not based on agency, then Tosafot asked his question only on the side that acquisition on behalf of someone is based on agency, right? Meaning, if acquisition on behalf of someone is based on agency and a minor can't be an agent, then why do we need a verse to say a minor cannot acquire on behalf of others—of course he can't. But according to the view that this is not a law of agency, then the entire move of Tosafot is irrelevant.

[Speaker B] Right.

[Rabbi Michael Abraham] A minor can't be an agent—maybe by reasoning or whatever it is, right? But as for acquisition on behalf of someone, I might have thought a minor could do that, because it's a different mechanism; it's not a mechanism of agency. And therefore we need the verse to say that this mechanism too does not exist for a minor. Right? That's what has to be said. Tosafot's whole approach goes according to the view that acquisition on behalf of someone is based on agency. But if it is not based on agency, Tosafot's question never arises, and accordingly Tosafot's answer isn't needed either. And then it turns out that according to the view that acquisition on behalf of someone is not based on agency—which other medieval authorities (Rishonim) hold, Tosafot doesn't owe them anything—but according to Tosafot's assumption, what would those medieval authorities (Rishonim) say? That a minor is not subject to agency not from this verse, right? Because if this verse excludes the minor from the law of acquisition on behalf of someone, that doesn't mean he was excluded from the law of agency. That can't be the source; acquisition on behalf of someone is not a law of agency. So how do I know that a minor is not subject to agency? Maybe by reasoning? From the fact that he's not included in the legal category—whatever—but I have an independent source that a minor cannot be an agent. But what would I have thought? That maybe he could acquire on behalf of others, because that's an alternative mechanism. Who says the minor was excluded there too? This verse comes and says: an adult man acquires, but not a minor. This verse teaches that in the law of acquisition on behalf of someone too, the minor was excluded. By the way, Rashi in several places—I referred you to him—Rashi explains that a minor is not subject to agency from the fact that in several places in the section dealing with agency it says “man.” With regard to terumah it also says “man,” and it says “when a man takes a wife” regarding agency in betrothal, there too it says “man.” Right, so Rashi writes in several places that the word “man” comes to exclude a minor. Meaning, he understands that this is not mere reasoning; it is excluded by a verse. But there is an exclusion that a minor cannot be an agent. Yet with regard to acquisition on behalf of someone, if that is not based on agency, then maybe there is such a thing for a minor. Therefore our verse comes and says: an adult man acquires, but not a minor acquires—that acquisition on behalf of someone also cannot apply to a minor.

[Speaker D] The verse doesn't exactly say that—that's Rabbi Yitzhak's understanding of this verse. Maybe there are other ways to understand it.

[Rabbi Michael Abraham] Because the verse says “the children of Israel shall slaughter.” What? Fine, Rabbi Yitzhak expounds the verse this way.

[Speaker D] But maybe one could understand the verse differently; it doesn't have to be only this way.

[Rabbi Michael Abraham] Right, it doesn't have to be. That's what Rabbi Yitzhak says. If you find another amora, then fine. On our own we can always suggest lots of possibilities. In any event, maybe I'll get to that later as well—fine, we'll see, we'll talk more. By the way, according to Tosafot's view that acquisition on behalf of someone is indeed based on agency—wait. Sorry, I mean according to the view that acquisition on behalf of someone is not based on agency. According to the view that acquisition on behalf of someone is not based on agency, then there would be room to say that a minor is not subject to agency, but with regard to acquisition on behalf of someone he is. Agreed? Therefore we need the verse to say that he also is not included there. Without the verse, what would I have thought? That he is not subject to agency but yes to acquisition on behalf of someone. You see that it's easier for a minor to be included in acquisition on behalf of someone than to be an agent. In the end the verse says that even acquisition on behalf of someone doesn't apply to him. But in principle, even if I know that a minor can't be an agent, the possibility is still open that he can confer acquisition. That's according to the view that acquisition on behalf of someone is not…

[Speaker H] Based on agency.

[Rabbi Michael Abraham] Yes—acquisition on behalf of someone is not based on agency. And therefore we need the verse to tell me that the minor also is not—he also is not included in acquisition on behalf of someone. What's the argument for saying that acquisition on behalf of someone is easier for a minor than agency? Again: an agent is appointed; that's a legal act. Maybe you can't appoint a minor as an agent because he's not on the legal playing field. But the rule of acquisition on behalf of someone is something else; the Torah decided this. Maybe that can work even for a minor. Okay? By contrast, if acquisition on behalf of someone is a law of agency, then once you say the minor is excluded from acquisition on behalf of someone, from here, Tosafot says, we also learn that he is excluded from agency. Okay?

[Speaker H] So from the fact that they say a minor is excluded from acquisition on behalf of someone by this verse, does that show that it's legal?

[Rabbi Michael Abraham] What do you mean by legal?

[Speaker H] That you do need a legal act here in acquisition on behalf of someone, like you say that with agency, the appointment is a legal thing, and therefore a minor is not…

[Rabbi Michael Abraham] There is no appointment here, but the fact that you function as my agent has some legal significance. You are a player on the legal field. Yes. But I'm saying that even if no appointment is required, still a minor can't do this.

[Speaker H] Regardless of the legal issue?

[Rabbi Michael Abraham] No—with relation to it. Just not only the act of appointment, which is an important legal act, but his very status as my agent. How can he act for me as my agent? That too requires legal competence. Fine. Okay. Now the Talmud moves on. Here, I'm now reading the passage. That was only the introduction. Now in our passage: “But with regard to that which Rav Giddel said in the name of Rav: From where do we know that a person's agent is like himself? As it is said: ‘one prince, one prince from each tribe’—let agency be derived from here.” There it's talking about the division of the Land, where the princes divided the inheritance of their tribe among the members of the tribe. So the Talmud learns from here: you see that the princes acquired the inheritance for the members of the tribe, so you see that there is a law of agency in the Torah, that one person can perform an act of acquisition on my behalf. The Talmud asks: “Let agency be derived from here?” What's the question?

[Speaker D] How do we derive agency from here?

[Rabbi Michael Abraham] Yes—why don't we derive agency from here? Or alternatively, why do we need this verse, since we already have other verses that teach the law of agency? Okay? Now here this is a point I want to stress a little in relation to what you asked earlier. When it says “one prince, one prince from each tribe,” is the question that this verse is superfluous because I already have sources for the law of agency? So why was this verse written? That is certainly not the question. Why was this verse written? To tell me how to carry out the division of the Land. The verse did not come to innovate the law of agency. The verse is an instruction for how to carry out the division of inheritances in the Land. So of course the verse has to be written; there is no question that this verse is superfluous. Rather what? The question is: why do you, Rav Giddel, see fit to derive the law of agency from this verse? We have other sources for the law of agency, or vice versa: if we have this source, why do we need the other sources? All the “why each source is necessary” discussions we did earlier apply here too. And to that the Talmud answers: “Can you really think this is agency? But minors are not subject to agency!” It can't be that this is talking about agency, because minors are not subject to agency. How do I know that minors are not subject to agency? This is the Rashi I mentioned earlier; it appears elsewhere too, but also here. Look at the Rashi I highlighted: “And here too, there were minors among those inheriting the Land. And did those who acquired for them come as agents? But agency does not apply to a minor.” Now he says where this is learned from: because regarding “and he shall send” and “and she shall send,” it says “man”; and “when a man takes” [a wife], and from there we learn that a minor cannot appoint an agent. Okay? This is not mere reasoning that a minor cannot appoint an agent. It is learned from an exclusion where the verse says “man.” Why am I saying that? Because this means that a minor's inability to be an agent is not only because he lacks understanding. It is a fundamental disqualification. Because if it were only because he lacks understanding, we wouldn't need verses. We would learn it by reasoning, because he lacks understanding, as we saw in the earlier passages, that people who do not have understanding do not need a verse to exclude them from agency. If according to Rashi we need a verse to exclude a minor from agency, that means that according to Rashi the minor's disqualification is a fundamental one, not because he lacks understanding.

[Speaker C] Wait, but in the matter of “a prince for each tribe,” the prince is also an agent for the minor. Right. So does that mean the minor can appoint agency here?

[Rabbi Michael Abraham] Wait, we're getting to that.

[Speaker H] Wait, but Rabbi, here he says “and did those who acquired for them come as agents?” Meaning, he distinguishes between the law of acquisition on behalf of someone and the law of agency.

[Rabbi Michael Abraham] No, no—those who acquire are agents. At this point we don't yet have acquisition on behalf of someone.

[Speaker H] Wait, but he says they are not in the category of agents. Right. So he means that acquisition on behalf of someone is different; it isn't based on the law of agency.

[Rabbi Michael Abraham] Wait—that's the Talmud, not Rashi. Maybe…

[Speaker D] Right here exactly.

[Rabbi Michael Abraham] Here is exactly where the issue of acquiring on behalf of someone in his absence comes in. The Talmud says: “Can you really think this is agency? But minors are not subject to agency! So what is it instead?”

[Speaker H] No, but the Talmud doesn't use the word…

[Rabbi Michael Abraham] It does, it does—the very next word. The Talmud says: “Can you really think this is agency? But minors are not subject to agency! Rather what is it? Rather, it is the law of acquisition on behalf of someone. There you have it!” Yes, because of the law of acquisition on behalf of someone, not the law of agency. Right, that's what the Talmud says. It's not Rashi; it's the Talmud. Okay? Rashi is only adding here how I know that minors are not subject to agency, and he says that we learn it from a verse. That matters, because if we learn it from a verse, that means this is a fundamental disqualification, not just because they lack understanding. Okay? That fundamental disqualification was said about agency, but perhaps not about acquisition on behalf of someone. So the Talmud says: from here you cannot find a source for the law of agency, because this is not speaking about agency, but about acquisition on behalf of someone. So what, then, will we derive from here? The law of acquisition on behalf of someone, not the law of agency. In a moment—that's the next line in the Talmud, I'm about to get there. Why—why when Rashi brings the source here that a minor can't acquire, why does he bring—why doesn't he bring the Talmud we quoted above: “an adult man acquires, but not a minor acquires”? Why does he bring the “man” from “when a man takes a wife” and those sources? There is a source on our page a little higher up.

[Speaker D] He doesn't want to use the word “acquires.” He wants to separate agency from acquisition on behalf of someone.

[Rabbi Michael Abraham] And then what?

[Speaker D] Because “an adult man acquires, but not a minor acquires”—he wants to say that here, in this specific case, there is indeed an issue of acquisition on behalf of someone; they are acquiring for the minor.

[Rabbi Michael Abraham] But in the verse about the Passover offering it isn't specifically talking about acquisition on behalf of someone. It says, “Draw out and take for yourselves, a man, a lamb according to the parental households”—we are taking the lamb. That could be by agency; it could be by acquisition on behalf of someone. The Talmud learns from here that only an adult man can acquire and be an agent for someone else, as we saw in Tosafot—both agency and acquisition on behalf of someone. But it's not specifically acquisition on behalf of someone.

[Speaker D] He just wanted to make that separation, so that here we'll know that it isn't talking about this and is talking about that.

[Rabbi Michael Abraham] Why assume that in the verse it's talking specifically about acquisition on behalf of someone? We derive that too, but not only that. So really, why didn't he bring it? There are two possibilities here. One possibility—let's formulate it this way: one possibility is like Yael just said: maybe above he learned that this is a law of acquisition on behalf of someone, and here he is looking for a source that a minor cannot be involved in agency, not in acquisition on behalf of someone. But as I said, that's not so plausible. It's not plausible because the verse about the Passover offering is not speaking specifically about acquisition on behalf of someone. We learn from there that a minor cannot acquire on behalf of others, but to the same extent a minor also cannot be an agent. A minor cannot acquire the Passover offering for me, whether by the law of acquisition on behalf of someone or by the law of agency. The verse isn't talking… So I think the reason they didn't bring the verse above is because of what I emphasized to you earlier. Above, is the minor the recipient or the one conferring the acquisition? The recipient. Above?

[Speaker E] No, the one conferring it.

[Speaker C] Now he is conferring it for them.

[Rabbi Michael Abraham] The minor is conferring the Passover offering to the group. Here, with the inheritance of the Land, he is only the recipient.

[Speaker C] He isn't conferring it.

[Rabbi Michael Abraham] Here he is the recipient. Right? The verse above says that the minor cannot be the one conferring acquisition. But here—maybe he can be a recipient? What's the logic for distinguishing?

[Speaker C] That here he is definitely a recipient. Huh? Here he is definitely a recipient. I didn't understand. In the inheritances, he is definitely part of those who receive.

[Rabbi Michael Abraham] Why? That's what the Talmud says. The Talmud says that the prince cannot acquire for the minor by the law of agency, because agency does not apply to a minor. Right? But above we saw that the minor cannot himself be an agent. Here we are talking about the minor as the principal. Above we spoke about the minor as the agent. What's the difference? When the minor is the principal, the person performing the act is an adult. It may be that an adult can act for a minor, certainly under the rule of acquisition on behalf of someone, where no appointment is needed. So what's the problem? The minor didn't appoint him—fine, no appointment is needed. What difference does it make? Above, the minor is the one conferring the acquisition. When the minor is the one conferring the acquisition, you need legal competence, because a minor cannot perform acts of acquisition. Therefore the source above, which says the minor cannot be the one conferring acquisition or the agent, cannot be a source for saying that a minor cannot be the principal. For that you need a different source. That's why Rashi brings “man” and not minor. That's what it seems to me. In any case, the Talmud continues and says this: so what is it then? Meaning, the law of agency can't be the issue here. So what is? The Talmud says: “Rather, it is like that which Rava bar Rav Huna said, that Rava bar Rav Huna said that Rav Giddel said in the name of Rav: From where do we know that one may acquire on behalf of a person in his absence? As it is said: ‘one prince, one prince.’” The same verse, only this time he learns from it the law of acquisition on behalf of someone, not the law of agency. Above, Rav Giddel said in the name of Rav brought this verse as a source for the law of agency. And to that the Talmud says: but it can't be talking there about agency, because some members of the tribe were minors. And if this were a law of agency, the prince could not acquire for the minors. Therefore, clearly, this is talking about the law of acquisition on behalf of someone. So this verse cannot teach us the law of agency; it can teach us the law of acquisition on behalf of someone. Okay? That's what the Talmud says according to Rav Giddel in the name of Rav.

[Speaker D] According to the Talmud's understanding here, this actually doesn't fit with what Tosafot say, because they say that according to the Talmud here there is an essential distinction between acquisition on behalf of someone and agency, and that doesn't fit with Tosafot.

[Rabbi Michael Abraham] Exactly right, we'll get to that in a moment. All the medieval authorities (Rishonim) here note it: Ritva, Rashba, Nachmanides, all of them here, Ran. All of them note it here. The Spanish medieval authorities (Rishonim). The Ashkenazic ones don't; the Ashkenazic ones are silent. In any case, the Talmud here ultimately derives the law of acquisition on behalf of someone. And what's the source? What does this source come to teach? That there is acquisition on behalf of someone for a minor?

[Speaker C] First, that you don't need agency, right?

[Rabbi Michael Abraham] What do you mean, you don't need agency? Appointment.

[Speaker C] In the law of acquisition on behalf of someone you don't need agency.

[Rabbi Michael Abraham] That there is such a law in the world, yes. So that's what I'm asking: does this verse teach the very law of acquisition on behalf of someone? Or does it teach that there is acquisition on behalf of someone even for a minor?

[Speaker H] Just as they don't have agency—yes, it teaches that there is acquisition on behalf of someone even for a minor. Meaning that one can acquire for a minor.

[Rabbi Michael Abraham] But what is the source for the existence of the law of acquisition on behalf of someone at all?

[Speaker D] The Talmud says that one may acquire on behalf of a person in his absence; it is speaking about a general action, not specifically about a minor.

[Rabbi Michael Abraham] Correct. The Talmud derives from here the law of acquisition on behalf of someone in general. It's true that from the Talmud you can understand that this law also works for minors, because otherwise the question we asked earlier would not have been resolved. We moved from agency to acquisition on behalf of someone—so what? There are still minors here. Therefore the subtext of the Talmud is that acquisition on behalf of someone also works for minors, but the text of the Talmud, what is actually written in the Talmud itself, is that from here we derive the very law of acquisition on behalf of someone, not specifically the law of acquisition on behalf of someone for minors. The very law—this is its source; this is where we learn it from. Okay? Why does the law of acquisition on behalf of someone work for minors even though agency does not?

[Speaker H] He is considered as being absent—the minor is considered… what? Like a person for whom someone acquires in his absence. Because that person for whom they acquire in his absence doesn't… it's not according to his own conscious decision, right? And the minor also has no understanding, so…

[Rabbi Michael Abraham] But that person does have understanding.

[Speaker H] No, but when it's in his absence, then his understanding doesn't enter the picture at all.

[Rabbi Michael Abraham] Maybe because from the standpoint…

[Speaker C] It's not a matter of being absent; maybe it's because of legal understanding.

[Rabbi Michael Abraham] Wait, one at a time. Yael?

[Speaker C] It's not a matter of legal understanding; rather, “in his absence” means that he didn't need to appoint anyone or even think about it, but simply received it—either as a gift, like it said earlier, or it was given to him one way or another. But it's not a matter of legal understanding. Look, I…

[Rabbi Michael Abraham] One can formulate in two ways why the law of acquisition on behalf of someone works even without appointment. One possible understanding is that the law of acquisition on behalf of someone is basically a law of agency, and where it is a clear benefit, no explicit appointment is needed, because obviously you want to appoint him; there is implicit appointment here. Right? That's one possibility. That is probably the possibility behind the view that acquisition on behalf of someone is based on agency, because it basically takes the concept of acquisition on behalf of someone as a kind of agent, except that where the agency concerns something that is an unequivocal benefit, there is no need for you to appoint me, since I know on my own that you want me to do this for you, and therefore no appointment is needed.

[Speaker C] But that's a bit…

[Speaker H] No, no, it's an assessment of a person's intention.

[Rabbi Michael Abraham] Yes, meaning: if we were to ask you, clearly you would want me to do this for you, right? And therefore we assess your intention as appointing me—you would have appointed me had I asked. And therefore it's fine; I can be your agent even without your appointing me, because it's as if you appointed me implicitly. By contrast, one could understand differently: no, acquisition on behalf of someone is a different mechanism that doesn't require appointment. Not that there is an appointment here, just an implicit one—no. It doesn't require appointment, because it's a different mechanism. Okay? Two possibilities. Now, if I understand that there is a difference between acquisition on behalf of someone and agency in the case of a minor, then what does the Talmud mean? The Talmud says that agency doesn't apply to a minor, but acquisition on behalf of someone does, right? Therefore the prince can acquire for the minors but cannot function as their agent. Why? If where it is a benefit, that's really just an assessment that you intend to appoint him, then implicit appointment still would not apply to minors. Right? Because they are not capable of appointment.

[Speaker H] Because you're relating to their intention.

[Rabbi Michael Abraham] Exactly—they are not capable of appointment. So if you require… according to the conception that this is implicit appointment, you are basically saying that even in the law of acquisition on behalf of someone there is appointment; it's just that the appointment need not be explicit where it is obvious this is what you would have done had we asked you. Okay? But all that applies only to someone who knows how to appoint, who is capable of appointing. But a minor who cannot appoint—you can't explain that I am his agent without his having appointed me, on the ground that really he appointed me implicitly. Even if he had appointed me explicitly, it wouldn't have worked. So if he appoints me not explicitly, then it will work? But if I understand that the law of acquisition on behalf of someone is an alternative mechanism, not agency—no appointment is needed, not that the appointment was done implicitly. Rather, this is a mechanism that requires no appointment: the Torah said you may acquire for him. In such a situation there is room to say that this works even for minors. And this is where what Rabbi Akiva Eiger says in Ketubot comes in: that the whole reason a minor can't appoint an agent is because he is not capable of appointment; the minor cannot appoint. In the law of acquisition on behalf of someone, where no appointment is needed, there is no barrier to my acquiring for a minor, because he does not need to appoint me. That can be said if I adopt the conception that acquisition on behalf of someone is not based on agency.

[Speaker H] So wait—if it's not based on agency, then can the minor acquire for you?

[Rabbi Michael Abraham] What? I didn't understand. No, no—I am talking about my acquiring for a minor.

[Speaker H] I understood, but if you're saying that acquisition on behalf of someone is not based on agency, why shouldn't the minor acquire for you?

[Rabbi Michael Abraham] He can't acquire; he can't…

[Speaker D] Perform a legal act.

[Rabbi Michael Abraham] He can't even do it for himself. He is not included in that legal category. This connects exactly to the Tosafot we saw: the question whether acquisition on behalf of someone is based on agency, in which case the disqualification is because he is not included in that legal category, or whether it is not based on agency. We'll return to that in a moment.

[Speaker D] I have a question. According to the second understanding, that acquisition on behalf of someone is not based on agency, then basically you can't—can't perform an act that the beneficiary doesn't want? Meaning, that acquisition, that entitlement, doesn't take effect?

[Rabbi Michael Abraham] That's the conception. The law of acquisition on behalf of someone does not exist where the beneficiary doesn't want it.

[Speaker D] For example, from what we learned earlier: we discussed a case where on Sabbath eve, if I'm staying with someone and I want to bring him, say, a bottle of wine, okay? Then I can acquire it for him before the Sabbath in his absence, and bring it to him on the Sabbath and it is his. Right? Then there is no act of acquisition on the Sabbath. Now suppose instead of a bottle of wine I want to bring him drugs, illegal drugs, which is something he has no interest in receiving—in fact he doesn't want to own that item.

[Rabbi Michael Abraham] You won't be able to transfer it to him under the law of acquisition on behalf of someone.

[Speaker D] You can't transfer it?

[Rabbi Michael Abraham] Of course not—benefit. Acquisition on behalf of someone means giving a benefit to someone.

[Speaker D] So that's what I'm asking: then you can't do it for something that imposes a liability on him.

[Speaker H] You can't impose a detriment.

[Rabbi Michael Abraham] That's exactly the meaning: “One may acquire on behalf of a person in his absence, but one may not impose a detriment on a person except in his presence.”

[Speaker D] And that's true according to both views, whether it's…

[Rabbi Michael Abraham] That's the definition of the law of acquisition on behalf of someone; it has nothing to do with the different understandings. But the question still remains: where this is a clear benefit for the beneficiary, why does the law of acquisition on behalf of someone work without appointment? Is it because there is an appointment, only it is implicit? Or because no appointment is needed? And the difference is with regard to a minor. Because if the answer is that acquisition on behalf of someone works because there is implicit appointment here…

[Speaker H] Then it doesn't work for a minor.

[Rabbi Michael Abraham] Would implicit appointment be stronger than explicit appointment? A minor's explicit appointment is ineffective, so his implicit appointment would be effective? But if I understand that in the law of acquisition on behalf of someone no appointment is needed, then here there would be room to say that in agency the minor cannot appoint an agent because he is not capable of appointment, he does not belong in appointment, he cannot perform the act of appointing. But in the law of acquisition on behalf of someone, where no act of appointment is needed, perhaps a minor can receive through someone else.

[Speaker E] But doesn't Rabbi Akiva Eiger say that according to the view that acquisition on behalf of someone is agency? Based on agency?

[Rabbi Michael Abraham] No—why?

[Speaker E] I understood that he says it from that view, only that he says it's some technical issue, and therefore even if…

[Rabbi Michael Abraham] Apparently you didn't understand. Did you see him inside?

[Speaker E] Right. We already once… we already spoke about him in the past in previous classes too, and I thought he did see it as a law of agency.

[Rabbi Michael Abraham] No. If I say again: acquisition on behalf of someone is not based on agency. You operate like an agent for me; what you do is relevant to me, is credited to me. But you are not from the section of agency; this is another section. Now, in the section of agency, the minor was excluded. A minor cannot appoint an agent. But in the section of acquisition, who says the minor was excluded?

[Speaker C] I actually had a question like that. If someone wants to confer a benefit on someone, but the person who is supposedly going to receive it doesn't want it—meaning, it's not something bad…

[Rabbi Michael Abraham] Then it's not a benefit. So the law of acquisition on behalf of someone doesn't apply.

[Speaker C] The law of acquisition on behalf of someone doesn't apply? Even if it's something good? Like the bottle of wine…

[Rabbi Michael Abraham] I can't take care of you in a way you don't want me to take care of you.

[Speaker C] Got it. Okay.

[Rabbi Michael Abraham] So again: these are two possibilities, and the practical implication is with regard to a minor. What do we see here? That the law of acquisition on behalf of someone works for a minor, right? The law of agency doesn't work for a minor. So if acquisition on behalf of someone is based on agency, that is difficult, right? How can that be? If acquisition on behalf of someone is based on agency, then why in the case of a minor, where agency doesn't work, does acquisition on behalf of someone work?

[Speaker C] But now we said that acquisition on behalf of someone is independent; it's without agency.

[Rabbi Michael Abraham] We didn't say that; those are two views.

[Speaker C] We said from “one prince…”

[Rabbi Michael Abraham] I said there are two views whether acquisition on behalf of someone is based on agency or not. Now I want to say: the view that acquisition on behalf of someone is not based on agency fits the Talmud well. The view that it is based on agency does not fit the Talmud. Because the view—and this is what we saw in Tosafot, right? Tosafot… Tosafot holds that acquisition on behalf of someone is based on agency. Tosafot in Ketubot, Tosafot in Pesachim, Tosafot in several places—his position is that acquisition on behalf of someone is based on agency.

[Speaker G] I didn't understand why implicit appointment wouldn't work for a minor.

[Rabbi Michael Abraham] Why should it work? If he appoints explicitly, would that work?

[Speaker G] It wouldn't work, but only because he lacks understanding, because I can't know that it's really a benefit for him, that he really wants it. But you said this too, I think, in Elul—you said it about the betrothal of a girl, that in principle it's only a technical limitation that he can't appoint. Meaning, it's only a technical limitation that I don't know what he thinks. But through acquisition on behalf of someone, it works.

[Rabbi Michael Abraham] Those two things you're saying are not the same thing.

[Speaker G] No? Why not?

[Rabbi Michael Abraham] Your first statement is actually a good point, and I'm getting to it in a moment. What you're really trying to argue is this: even according to the view that acquisition on behalf of someone is based on agency, so that I am basically saying there was an appointment here, only it was implicit—still there is room to say that in the case of a minor it would work, what Rabbi Akiva Eiger says. Why? Because even if the minor had appointed me explicitly, why can't he appoint me as an agent? Because where the matter depends on judgment, a minor doesn't have judgment. There are aspects of detriment and aspects of benefit; an adult can decide what he wants to do, but with a minor I don't rely on him to have really decided what is correct for him. But where it is an unequivocal benefit for him, then there is no question that this is the right decision. So here it could be that the minor actually is capable of appointment, and then the law of acquisition on behalf of someone would work. Except that if so, this would also mean—and that's a bit forced—that according to this, agency for a minor would also work in such a case. Something that is an unequivocal benefit for the minor—he could also appoint me as an agent, not only have me acquire on his behalf. Because clearly, implicit appointment cannot be better than explicit appointment. And the concern that perhaps this appointment is not the right judgment for him does not exist, because it is an unequivocal benefit.

[Speaker G] No, but then that means that if the minor appoints me regarding something that is an unequivocal benefit for him, he is only revealing that he wants it, and from there it becomes implicit appointment.

[Rabbi Michael Abraham] No. If he appoints me as an agent, I am now asking: am I acting under the law of agency or under the law of acquisition on behalf of someone?

[Speaker G] Maybe also under the law of agency?

[Rabbi Michael Abraham] That's what I'm saying. According to this suggestion, it comes out that the minor can also appoint an agent in something that is a benefit to him, not only under the law of acquisition on behalf of someone. In that very thing that is a benefit to him, he can also acquire through someone…

[Speaker G] Under the law of acquisition on behalf of someone and also…

[Rabbi Michael Abraham] And appoint someone as an agent to act for him.

[Speaker G] But he can't appoint in the same way an adult appoints. Why can he? No—he can create the possibility of implicit appointment.

[Rabbi Michael Abraham] Practically speaking, there is an appointment here—it is agency. In any case—let's say in places where only an agent can work and acquisition on behalf of someone cannot work, for example when it is a gentile. A gentile was excluded from agency, but perhaps not excluded from acquisition on behalf of someone. If acquisition on behalf of someone is not based on agency, then I don't know—maybe a gentile can function under the law of acquisition on behalf of someone. Can a minor appoint a gentile to be an agent? Wait, no—that is specifically appointment. No, generally. No, I need something that can work only under the law of agency, not under the law of acquisition on behalf of someone. So for example, separating terumah. Regarding separating terumah there are views that this does not work under the law of acquisition on behalf of someone; it has to be under the law of agency.

[Speaker C] If this child lives in a house where there is a slave there, the father has a slave—can he appoint the slave? I didn't understand. Can the child, the minor, appoint a slave? Not a gentile—a slave?

[Rabbi Michael Abraham] Who says he can appoint anyone at all? Right now, the whole question is whether he can appoint. I am saying: what's the practical difference between whether he can appoint or whether it works under the law of acquisition on behalf of someone?

[Speaker C] So for example, in separating terumah.

[Rabbi Michael Abraham] If someone wants to separate terumah for a minor, he can't, because under the law of acquisition on behalf of someone you can't separate, and under the law of agency, agency doesn't apply to a minor. But where it is an unequivocal benefit, it could be that even appointing an agent is something a minor can do. Then the practical implication would be that one could separate terumah for him.

[Speaker G] No, but why?

[Speaker E] Why is that true?

[Speaker G] Whenever one acquires, whenever I acquire for a minor, it will always be under the law of acquisition on behalf of someone, and he always has no legal ability to appoint me as his agent.

[Rabbi Michael Abraham] No—wait, a moment ago didn't you say otherwise?

[Speaker G] No, right. So I said: one could say even according to this view that I acquire for a minor. One could say that I acquired for him under the law of agency because of implicit appointment. That doesn't mean he can appoint me, even if it's an absolute benefit. No—why not?

[Rabbi Michael Abraham] Why would implicit appointment work for a minor if explicit appointment doesn't work, while implicit appointment does?

[Speaker G] That's why I'm saying—that's why I'm saying—that if he tells me regarding something that is an absolute benefit that he wants it, then that means it's not exactly appointment, because even if he says he doesn't want it, I can still appoint myself implicitly as his agent, because it is an absolute benefit, even if he says he doesn't want it.

[Rabbi Michael Abraham] No, but then you're mixing the two views. If the law of acquisition on behalf of someone works without appointment—not with implicit appointment, but without needing appointment—then you're right. But if the law of acquisition on behalf of someone works because from my perspective there was an appointment here—the fact that he didn't explicitly appoint doesn't matter, because we know that clearly if we had asked him, he would have appointed—then that means that there was in fact an act of implicit appointment here. Now, if that works for a minor, that means a minor's implicit appointment is valid. So a minor's explicit appointment would not be valid? How could that be?

[Speaker G] No, it wouldn't be valid; it would simply be meaningless. What he says is irrelevant.

[Rabbi Michael Abraham] No, that's very important, because there are things that only an agent can do and acquisition on behalf of someone can't do, like separating terumah.

[Speaker G] So if it's an absolute benefit, then he can do it even if the minor says he doesn't want it. Exactly.

[Rabbi Michael Abraham] Then he is an agent.

[Speaker G] No, but if the minor says he doesn't want it…

[Rabbi Michael Abraham] A minor saying he doesn't want it is irrelevant. I am speaking about the question whether the minor appointed or did not appoint.

[Speaker B] But he can't appoint.

[Rabbi Michael Abraham] If he doesn't appoint, then he works for me under the law of acquisition on behalf of someone. But regarding terumah it isn't clear that the law of acquisition on behalf of someone works; there were disputes among the medieval authorities (Rishonim) about that. But if the minor can also appoint him, then he functions for me as an agent, and an agent can separate terumah for me. But how can a minor…

[Speaker D] Appoint? The whole idea of implicit appointment is that the minor himself doesn't need to appoint; rather, we as adults have some understanding that this is something for his benefit, so we don't involve his opinion or what he thinks at all, and therefore there is implicit appointment. You can't conclude that if he… we are involving his opinion—only…

[Rabbi Michael Abraham] The assumption is that what he thinks is what any reasonable person would think. That's the meaning of implicit appointment.

[Speaker D] Implicit appointment means that I know he has said, “I appoint him.”

[Rabbi Michael Abraham] That's called implicit appointment.

[Speaker D] But from that you can't—you can't ask the question from that; you can't ask the question that if there is implicit appointment…

[Rabbi Michael Abraham] Then why…

[Speaker D] Can't he appoint on his own? You can't ask that. Why? Because the whole idea of implicit appointment is some understanding on our part as adults that it's for his benefit; it doesn't involve his own opinion.

[Rabbi Michael Abraham] I am talking about a situation where we understand that it's for his benefit, and now he comes and also appoints him as an agent—in that situation.

[Speaker E] But that has no meaning whatsoever.

[Speaker D] No meaning?

[Rabbi Michael Abraham] Why? Of course it has meaning.

[Speaker E] Because he can't appoint, so that mechanism doesn't take effect.

[Rabbi Michael Abraham] No, he can appoint. That's Rivka's suggestion. Again—let me go back for a moment, look.

[Speaker E] We kept saying that the problem there is procedural, that the minor can't appoint.

[Rabbi Michael Abraham] Right, okay, that’s what we said up to her objection. But now, after she raised that objection, I’m saying: pay attention to what comes out of this. I’ll go back again because I think you got a little lost. Look. I presented two possibilities for understanding how the rule of acting on someone’s behalf for their benefit works. One possibility is that this rule is basically agency—agency without appointment. What? How can that be? Agency always requires appointment. There is an appointment here. How is there an appointment? He didn’t appoint. He did appoint. Meaning, if we had asked him, he would have said that he appoints, so as far as I’m concerned he appointed. That’s one possibility. The second possibility is that this rule does not operate through the mechanism of agency at all; it’s an alternative mechanism. This mechanism doesn’t need appointment; it’s not implicit appointment; it doesn’t need appointment; it works without appointment—the Torah appointed him. Okay? Those are the two possibilities. Now I claimed the following: Rabbi Akiva Eiger’s reasoning, to explain why a minor is included in this rule of acquisition on someone’s behalf but is not included in agency—what did Rabbi Akiva Eiger explain? That the whole reason a minor is not included in agency is because he cannot appoint, right? In the rule of acting for someone’s benefit, you don’t need appointment, so therefore it works even for a minor. I said that this can only be said according to the second conception, that this rule is not based on agency. Why? Because according to that conception, in this rule you don’t need appointment, so here it could be that even a minor can be included, because no appointment is needed. But if the first conception is correct—that this rule works because there was an implicit appointment—then that basically means that this rule works because I am the minor’s agent; there was an appointment here too, even if implicit. But that can’t be, because a minor cannot appoint even explicitly, so how could an implicit appointment of a… of a minor work? That’s what I argued. Now Rivka comes and says: wait, no. There could be a third possibility. According to the view that this rule is indeed based on agency, except that there is implicit appointment here, it still could work for a minor. Why? Because with implicit appointment—the reason a minor’s appointment in ordinary agency cannot work, why can’t it work? No, it’s not a scriptural decree. Rather, it’s because we don’t rely on the idea that he exercised the best judgment for himself. An adult has judgment, so he decides for himself what is best for him. A minor—I don’t rely on his judgment. It’s not a scriptural decree; it’s reasoning. I’m saying: that’s only in a place where there are considerations in both directions. But in a place where this is an absolute benefit, there is no issue of judgment. Any reasonable person would want such a thing. Here I have no concern that the minor is not expressing a sensible position for himself. So therefore this rule can work even if it is based on agency. That’s Rivka’s point. What I said is that this may be possible, but notice the implication. The implication is that a minor, in situations where this is an absolute benefit, would also be able to appoint you explicitly as an agent. And then you could act as his agent, not only acquire on his behalf. Because even if he appoints explicitly, the only reason he cannot appoint is not a scriptural decree. The reason he cannot appoint is that it’s not certain that this appointment reflects his true best judgment. But if the judgment here is clear, then it does reflect it. This is an absolute benefit. There is no concern that he didn’t make the best calculation for himself. Therefore here he could also appoint an agent. And then the practical difference would be what happens if he appoints someone to separate terumah for him. According to the view of the medieval authorities (Rishonim) that in separating terumah you cannot do it for me through this rule of acting for another’s benefit, only through agency—in such a case it could be that the minor would be able to appoint you as his agent, and you could separate terumah for him.

[Speaker H] But does a minor have ownership? After all, terumah has to come from something that is yours.

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker H] Does a minor have ownership? Because terumah has to be taken from something that belongs to you.

[Rabbi Michael Abraham] Yes, he inherited it, it doesn’t matter. A minor inherited it from his father.

[Speaker E] But specifically if it can’t work under the rule of acting for someone’s benefit, then there’s no implicit appointment here. I didn’t understand. If you can’t do it under that rule, then why would I have implicit appointment? If you can’t separate…

[Rabbi Michael Abraham] Not implicit—this is explicit appointment, not implicit.

[Speaker E] But we said that the whole option we’re giving the minor to appoint is because there is implicit appointment, so if there is implicit appointment then obviously he can appoint too.

[Rabbi Michael Abraham] No, no, it works the other way around. Why does a minor’s implicit appointment work, according to Rivka’s suggestion? Why does a minor’s implicit appointment work? Because really, even a regular appointment by a minor works in a place where I am sure he made the best judgment for himself. But the issue of acquisition on someone’s behalf and terumah—that’s exactly the point… it’s not implicit appointment, it works the other way around. The implicit appointment works because implicit appointment is a regular appointment.

[Speaker E] But regarding acquisition on someone’s behalf and terumah, we said—

[Speaker C] —that only theoretically this can’t be possible. I didn’t understand. Theoretically it can’t be possible, because if implicit appointment is based on the possibility of appointment, and a minor lacks legal understanding and therefore has no appointment, then there is no implicit appointment here.

[Rabbi Michael Abraham] That’s exactly what has now changed. According to Rivka’s suggestion, there is no principled problem with a minor appointing an agent. He has no principled problem. Rather, when he appoints an agent in complicated situations, I’m not sure he exercised the best judgment for himself. Therefore I don’t know whether that expresses his real intention. We’ll wait until he grows up, and then he’ll say what he really thinks. But in a place where there is no room for judgment, where it’s an absolute benefit, there is no hesitation, no concern that maybe he didn’t make the best judgment—in such a case he can appoint. That is exactly what Rivka suggested earlier: that the problem with a minor not being able to appoint is not a formal problem. A minor really can appoint; I’m just concerned that maybe he didn’t think it through fully.

[Speaker B] But in terumah that’s not—

[Speaker C] —specifically a case of acting for someone’s benefit, because we said it’s not… exactly, yes, it’s a loop. Are there examples of an absolute benefit? What? Meaning, we’re talking about an absolute benefit—where can that show up?

[Rabbi Michael Abraham] For example, I acquire something for you from ownerless property. I found a wallet full of money and I want to acquire it for you. Is there any downside to accepting it? What’s the problem? It’s only good. There is absolutely no drawback here.

[Speaker E] The example… but the example of terumah is this kind of loop. Because why do we say that terumah can only be done through agency? Because in acting for someone’s benefit we are concerned that maybe he himself wants to do it—that was the claim. So I’m not at all sure that the minor would want this agency.

[Rabbi Michael Abraham] No, again. You’re right on the technical level. I’m saying that in a situation like terumah, where the law of agency would work but the rule of acting on someone’s behalf for their benefit would not work, it could still work for a minor. You’re right that in terumah specifically, maybe it won’t be a good practical difference, because his own action is required. Maybe he wanted to do it himself, to sharpen the meaning.

[Speaker C] Wait, I want to say something—Hadar, sorry, here, Hadar—they sent questions in the chat, and it’s been a while. I understood, there are questions in the chat.

[Rabbi Michael Abraham] Let them ask. I said I’m not looking at the chat because it disrupts my flow. Whoever wants to ask should ask.

[Speaker C] Okay. No, I just mean for next time.

[Rabbi Michael Abraham] Okay. Fine. So are the three possibilities clear? I want this to be clear because we’re going to continue and build somewhat on these things. So again: one possibility is that acting on someone’s behalf for their benefit is not based on agency; it’s an alternative mechanism, and therefore no appointment is needed. A second possibility: it is based on agency; no appointment is needed because there was an appointment, an implicit appointment. Within the second possibility there is room to deliberate what this means regarding minors. One option is to say that for a minor this rule cannot help, because it is based on agency and there is no agency for a minor. That’s the simple account. Rabbi Akiva Eiger’s reasoning does not fit according to that side. A second option: no, one can say like Rabbi Akiva Eiger even according to that side. Why? Because the whole point that a minor cannot appoint is only because of the concern that maybe he didn’t make the best calculation for himself. In situations where there is no such concern, then he can. Okay?

[Speaker I] But maybe there’s a somewhat basic question, but it sort of goes back to this: at the beginning we saw that we have the verse from which we learn that a minor is not in the category of transferring to others, and in the end from the continuation of the Talmudic discussion we saw that specifically one can acquire on his behalf. So why do we say from here that a minor is included in the rule of acquisition on someone’s behalf but not in agency? But he’s not entirely included in that rule—meaning he’s included only on one side.

[Rabbi Michael Abraham] We’re talking here only about a minor who receives, not one who transfers to others.

[Speaker I] Okay, so when we use this rule, we mean only one side all the time?

[Rabbi Michael Abraham] That’s what the Talmudic discussion here is dealing with. The Talmud here is talking about a tribal prince who acquires on behalf of a minor.

[Speaker H] So now according to the third possibility, the source here is problematic, because the Talmud continues that this is not an absolute benefit; it also has an element of obligation.

[Rabbi Michael Abraham] Exactly. We just read that. Now I’ll continue. So now the Talmud says: “Rava objected: Is it a benefit? There is also a detriment in it, because there are those who prefer the mountain and do not prefer the valley, and there are those who prefer the valley and do not prefer the mountain.” Right—what do you mean? How can you say that this is the rule of acting for someone’s benefit? It isn’t. This is not a pure benefit. It has dimensions of detriment and dimensions of benefit. So then this rule also cannot work here—neither agency nor this rule. “Rather, it is as taught by Rava bar Rav Huna, for Rava bar Rav Huna said that Rav Giddel said that Rav said: From where do we know that when orphans come to divide their father’s estate, the court appoints a guardian for them, for detriment and for benefit? For detriment—why? Why would we want to disadvantage them? Rather, for detriment in order to benefit.” From where do we know that the court appoints a guardian for orphans in situations that involve benefit and detriment together? “Scripture says: ‘You shall take one prince, one prince from each tribe.’” Now here there is an interesting point. At the end of the day, does this guardian operate under the ordinary rule of acting for someone’s benefit, or not?

[Speaker H] No. Why not? Not necessarily. After all, it says “for detriment in order to benefit”; the ultimate goal is that in the end he benefits from it.

[Rabbi Michael Abraham] But there are aspects of detriment here. Say an adult could say: I want the valley and not the mountain; I don’t want the prince to decide for me.

[Speaker H] But if they asked him, “Do you want an inheritance or not want an inheritance?” he would say, “I want an inheritance.” Maybe we said before that if he doesn’t want an inheritance then he doesn’t…? No, he wants an inheritance, but he has preferences. Why? The inheritance he wants. It’s just that when I grow up I’ll tell you what I want.

[Rabbi Michael Abraham] No, he wants the inheritance, but—

[Speaker H] Maybe only once there is already an inheritance does he have preferences?

[Rabbi Michael Abraham] Wait until I grow up and I’ll tell you what I want—valley or mountain. Why are you forcing a particular inheritance on me now?

[Speaker H] What do you mean? So his benefit is a detriment to others.

[Rabbi Michael Abraham] Yes, fine, so what? Why are they preferable to me?

[Speaker H] You can’t benefit in something that imposes an obligation on others.

[Rabbi Michael Abraham] What do you mean? It’s not an obligation to others. I’m making a lottery; my right is exactly equal to theirs. They are allowed to benefit and disadvantage me, so why am I not allowed?

[Speaker H] But if you say—

[Rabbi Michael Abraham] I want equal rights for everyone; let’s make a lottery. So in short, the Talmud is basically saying here that at the end of the day this is a benefit that is also a detriment—something more complex. Now in the end, does this work under the ordinary rule of acting for someone’s benefit or not?

[Speaker H] I think yes. Yes.

[Rabbi Michael Abraham] Big question. A big question. On the face of it, one could say no. That’s why the Talmud also talks about a guardian. The Talmud does not say that some random person comes and performs actions for minors voluntarily. No. The court appoints a guardian, and only because of that does he have certain powers to act for the minors. But just any person—wait, wait, only to that extent of authority, just a second—an ordinary person who acts for the minors without the court appointing him would not be able to do this. Meaning, in other words, such a thing does not work under the ordinary rule of acting for another’s benefit. Okay? Maybe. Or maybe not.

[Speaker H] The prince too is an appointment. He’s not just anyone.

[Speaker C] An agent too is an appointment.

[Speaker H] The tribal prince is appointed.

[Speaker C] The question is who does the appointing.

[Rabbi Michael Abraham] But in the case—

[Speaker C] In the case of the orphans, the court appoints.

[Rabbi Michael Abraham] But a guardian is an agent of the court.

[Speaker H] Right.

[Speaker C] Not every agency—

[Speaker H] Not every guardian is an agent of—

[Rabbi Michael Abraham] I’m saying: when the court appoints a guardian here, seemingly that means this is not working under the ordinary rule of acting for another’s benefit.

[Speaker C] Under the law of agency.

[Rabbi Michael Abraham] Because if it were under the ordinary rule, then there would be no need to say that the court appoints a guardian. Rather, anyone who wanted could act according to his best understanding for the minors. If the court appoints a guardian, it seems this is a special enactment. It is not the ordinary rule. The ordinary rule does not work when there is both benefit and detriment. In a place where there are minors and there is a problem because they do in the end want an inheritance, as Ruti said earlier, and so on—then the court institutes that it appoints a guardian for him, and the guardian will make complex decisions for them. But this is not under the ordinary rule; it is a special law of guardianship. Without this, under the ordinary rule one could not act for the minors. That is how one could understand the Talmudic discussion. And we will see later that there is a dispute among the medieval authorities (Rishonim).

[Speaker H] But maybe it’s because the court has proper judgment in this matter about how to evaluate it—

[Rabbi Michael Abraham] So they—

[Speaker H] —decide that it is a benefit, that it is after all a benefit. She’s suggesting that after all this would still—

[Rabbi Michael Abraham] —be under the ordinary rule, after the court decided that it really is a benefit. That—there is, as I said, a dispute among the medieval authorities (Rishonim). There are medieval authorities who understand that in the end this verse is not dealing with the ordinary rule at all. Now I’ll ask you: what is the source for the rule of acting on someone’s behalf for their benefit? I don’t know—not from here. Okay? So actually that does not emerge here, and then it follows that maybe there is no such rule for minors. Just as there is no agency for minors, so too there is no such rule for minors. Everything we thought—that there is such a rule for minors—was at the earlier stage of the Talmudic discussion. But according to the Talmud’s conclusion, that this is not talking about that rule at all, we can go back and say that this rule is based on agency. And just as there is no agency for minors, there is no such rule for minors either, according to the Talmud’s conclusion. The entire difficulty for the view that this rule is based on agency was at the earlier stage of the discussion. And in the conclusion, it is resolved. But if I understand that even in the conclusion this works under the ordinary rule, and what we have here is an action of the prince under that rule for the minors, and not a special enactment of guardianship, then this verse teaches the rule, and this verse also teaches that there is such a rule for minors. Then it must be that this rule is not based on agency. Because the fact is that minors do not have agency, but they do have this rule.

[Speaker H] But earlier you explained that maybe there can be agency for minors.

[Rabbi Michael Abraham] Unless we accept Rivka’s qualification. Now I said all this—we’ll see it next class in the medieval authorities (Rishonim) themselves. But what I’ve said until now is basically the scheme, and if you go back over it and understand it, then you’ll already get through the second part easily too. Because this is the map. Now I’m going to place the medieval authorities (Rishonim) into this map. Okay? So for me the important thing is only that you understand this structure and the connection between the different possibilities. I’ll send summaries; you can go over it. Or from the recording. Fine. Thank you very much. All right. If there are questions or comments, you can ask. Is there some question or comment? Does anyone want to ask or comment?

[Speaker J] I want to ask something—I just don’t have a camera. Regarding this qualification of an absolute benefit: after all, the whole idea of this rule is that it is an absolute benefit. Meaning, whether for an adult or a minor—I feel that this qualification is like adding another rubric now, of an absolute benefit that is especially obvious. But that’s the whole point of the rule—that it’s obvious.

[Rabbi Michael Abraham] In the end the Talmud says that the prince acquired on behalf of the minors even in things that are more complex, where they are not an absolute benefit. The question whether that works under the ordinary rule or whether it is a special law—that is a dispute among the medieval authorities (Rishonim) that we’ll still see. But if the claim is that this is the ordinary rule, then that rule exists even in such a situation.

[Speaker J] No, I’m talking about what we said earlier, about the issue of the minor—that if it’s an absolute benefit then certainly it is… you understand what Rivka added, that it’s something definite. So I’m asking about this extra addition—how relevant is it at all? Because as far as I’m concerned, when we talk about this rule, in general it’s obvious. Meaning, why do we need to add another layer of an obvious benefit? You understand?

[Speaker D] Maybe we just have to distinguish between three—

[Rabbi Michael Abraham] —cases: benefit, detriment—

[Speaker D] —and something complex in the middle?

[Rabbi Michael Abraham] No, the complex thing is the Talmud’s conclusion.

[Speaker D] No, but I’m saying an answer to Inbar is that maybe we need to distinguish between three cases: one, where it is a complete benefit; the second, where it is a detriment, and then obviously this rule does not apply; and a third case, maybe the complicated cases, where for some people it would count as a benefit and for some people it would count as a detriment, and therefore in that case it’s not clear.

[Rabbi Michael Abraham] And there is a dispute among the medieval authorities (Rishonim) whether there is this rule here or not, after the court has decided that the benefit nevertheless outweighs, of course. Okay? Okay, thank you, goodbye, God willing, thank you very much.

[Speaker B] Thank you very much. Good evening.

Women's Beit Midrash – Kiddushin – Lesson 14

Table of Contents

Summary

General Overview

Opening: defining zakhin and the framework of the dispute

“A man can confer acquisition, but a minor cannot confer acquisition” and clarifying the term “acquire”

Maimonides in the laws of agents and partners, and the parameter of connection between sender and agent

A doubt in the topic: agency or zakhin with regard to a minor

Rabbi Akiva Eiger: zakhin as agency without appointment, and the connection to a minor as sender

The Brisker Rav’s note: the uniqueness of the Passover offering as monetary ownership, and learning acquisitions from it

Tosafot here: the need for a verse, and a minor who is relevant to Passover

Rabbi Chaim on Maimonides: a minor fulfills a commandment without being obligated in Passover

Tosafot in Pesachim: “there is no agency for a minor” and the connection between acquisition and agency

The question of the medieval authorities (Rishonim) on the Talmud: if zakhin works by agency, how does the Talmud distinguish between them?

Rashi: the source that there is no agency for a minor from the exclusion of “man,” and an essential barrier

Zakhin in the division of the Land, and the difficulty: is this an unqualified benefit?

The Talmud’s conclusion: a guardian for orphans, “to impose a liability in order to benefit”

A map of the possibilities for understanding zakhin and the practical difference for a minor

Conclusion: distinguishing between benefit, liability, and complex cases

Full Transcript

השאר תגובהלבטל

Table of Contents

Summary

General Overview

Opening: defining zakhin and the framework of the dispute

“A man can confer acquisition, but a minor cannot confer acquisition” and clarifying the term “acquire”

Maimonides in the laws of agents and partners, and the parameter of connection between sender and agent

A doubt in the topic: agency or zakhin with regard to a minor

Rabbi Akiva Eiger: zakhin as agency without appointment, and the connection to a minor as sender

The Brisker Rav’s note: the uniqueness of the Passover offering as monetary ownership, and learning acquisitions from it

Tosafot here: the need for a verse, and a minor who is relevant to Passover

Rabbi Chaim on Maimonides: a minor fulfills a commandment without being obligated in Passover

Tosafot in Pesachim: “there is no agency for a minor” and the connection between acquisition and agency

The question of the medieval authorities (Rishonim) on the Talmud: if zakhin works by agency, how does the Talmud distinguish between them?

Rashi: the source that there is no agency for a minor from the exclusion of “man,” and an essential barrier

Zakhin in the division of the Land, and the difficulty: is this an unqualified benefit?

The Talmud’s conclusion: a guardian for orphans, “to impose a liability in order to benefit”

A map of the possibilities for understanding zakhin and the practical difference for a minor

Conclusion: distinguishing between benefit, liability, and complex cases

Full Transcript

שתף

השאר תגובהלבטל