Agency Matters – Lesson 5 – Rabbi Michael Abraham

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

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[Speaker C] Yes, but if they don’t want to beautify the power—these sages who determine the Jewish law don’t want to allow a person to appoint an agent and then be able to change his mind afterward; there will be problems and all that. So no—do it yourself.

[Rabbi Michael Abraham] Why, in other agency cases, do they allow it? He may change his mind, he may not… In agency for betrothal he can even change his mind, after all, or in agency for divorce he can change his mind, and that creates crazy problems. The rabbis even uprooted the betrothal because of all the problems created when you cancel the agent not in his presence. There are terrible problems, and nobody cancelled agency because of that.

[Speaker C] But there he put the bill of divorce in his hand.

[Rabbi Michael Abraham] He put the bill of divorce in his hand, and now he left. Now I cancel the bill of divorce. I cancel it.

[Speaker C] That’s something else. But when we were talking about ownerlessness, to tell someone, “Go now and declare my property ownerless”—he can retract.

[Rabbi Michael Abraham] There too he can retract. What difference does it make that he put the bill of divorce in his hand? What kind of proof is that? He said it in front of two witnesses. It’s not a question of proof. The question is what actually happened, not whether I have proof of it. The problem isn’t in the laws of evidence. The problem is what happened. About that they’re not concerned. About that they’re not concerned. He could also say, “I didn’t understand what you said. You gave me a bill of divorce, I thought I was supposed to make a kite out of it.” That’s not how it works. Meaning, maybe on the rabbinic level sometimes they make an enactment, but here it doesn’t work like that; this is by Torah law. So the Ran and the Maharit really are difficult according to Rabbi Akiva Eiger. It really is difficult why an agent cannot help in declaring property ownerless. To declare ownerless, to declare ownerless—not to cancel the bill of divorce. To declare ownerless, to declare ownerless—or to cancel? Yes. No, to cancel the bill of divorce—that does work, sorry. To declare ownerless. By the way, I had something here,

[Speaker C] Declaring something ownerless is too dangerous a thing. They don’t allow it.

[Rabbi Michael Abraham] Wait. According to the one who says “say to others,” wait—according to the one who says “say to others,” then writing a bill of divorce can be mere words. Agency for writing a bill of divorce is mere words. Right? But according to the one who says that “say to others” is invalid, we would have had to conclude that the writing of the bill of divorce itself—wait, the writing itself—is mere words. Right? The writing itself is mere words. And the reason I can tell the scribe to write is because agency isn’t needed. But according to the one who says “say to others” is valid, then the writing of the bill of divorce may not be mere words.

[Speaker E] The first agent and second agent—right, not right—for writing a bill of divorce. You said the first and second agent could apply even if it’s “say to others.” Right. The first agent yes and the second not, if he told him—

[Rabbi Michael Abraham] That’s first agent or second agent. Right. Yes, right, so from the standpoint that this is the first agent it would be problematic—not because writing a bill of divorce is mere words. Yes, so it comes out problematic according to all views. What I thought here maybe is: what does it mean to call someone an agent to declare property ownerless? That’s very strange—an agent to declare ownerlessness. Declare it ownerless yourself—what? Why do you need an agent? Say my money is in Australia—do I need someone in Australia to be my agent to declare it ownerless? I declare it ownerless from here. “My property in that house in Australia, in Melbourne, is null like the dust of the earth.” Ownerless. Why do you need the appointment of an agent? And it could be that what the Ran means has nothing at all to do with the laws of mere words; rather, you cannot appoint an agent to declare your property ownerless because there is simply no point to it. It’s monkey-business, meaning it’s irrelevant. And where no agent is needed, there is no halakhic definition of an agent. An agent is defined only where you need him. Where there is no need whatsoever for an agent, why appoint one? Why should the Torah define the concept of agency there at all?

[Speaker C] No, if you just said you declared it ownerless and nobody knows about it…

[Rabbi Michael Abraham] No, that’s a different question—whether you need to declare ownerlessness in front of two people or not. Let’s say I declared it ownerless in front of two people. It doesn’t matter. I can declare ownerlessness in front of two people regarding my property located in Australia. There’s no… the agent has nothing I don’t have. Maybe in some very remote situation, if I’m on a deserted island, then I call someone else who is in a place where there are two other people who can serve as witnesses, so he should declare it ownerless in the name of those two witnesses on my behalf. Fine. So on the phone I can declare it ownerless before two listeners who will be witnesses. It’s not… in short, it could be that what the Ran means is something much more prosaic, not connected at all to the laws of mere words. Rather, simply with declaring ownerlessness—and likewise with consecrating property, which is what the Maharit says, that you can’t consecrate. So he does connect it to the law of mere words, at least as he is quoted—I haven’t seen it inside. But when Rabbi Akiva Eiger quotes him, he says you can’t consecrate through an agent because it is mere words. But it could be that neither consecrating nor declaring ownerlessness is relevant to agency, because you don’t need an agent—do it yourself and that’s that. There is no situation in which someone has to represent you. That of course requires some additional assumption: that in places where agency isn’t needed, agency also isn’t defined. Even in things that are legal acts, like declaring ownerlessness or consecration—meaning, these are indeed legal acts—in those places where there is basically no added value to the agent, you don’t need the agent, it could be that the Torah simply does not define an agent at all. Fine. But in the Maharit at least, he ties it to the law of mere words. And he continues afterward and says: “However, regarding what I saw in the book Beit Meir mentioned above, at the beginning of his remarks, where he questioned the ruling of the above Maharit, for from Rashi’s explanation it appears that the problem with mere words is only that the agent cannot appoint another in his place, but the agent himself is effective with mere words, for a bill of divorce and a gift themselves are also nothing but words, and yet they write and give”—that is the end of his language. So he says against the Maharit: even if you think consecration is mere words, what’s the problem with mere words in the case of a first agent? The only thing you can’t do with mere words is appoint a second agent. So Rabbi Akiva Eiger says: that’s not correct, and this objection to the Maharit is not difficult. “And in my humble opinion we already wrote that this works well according to the one who says ‘say to others’ is valid, but according to the one who says ‘say to others’ is invalid, it is impossible to say that the problem with mere words is only that he cannot appoint another agent in his place, for when he says to the scribe ‘write,’ he is not appointing the scribe in his place, but rather by the husband’s instruction he says to him ‘write,’ and this itself is the first agent’s agency—to make the scribe an agent in place of the husband, and the scribe’s agency from the husband is created through this agent. And for this purpose the husband makes him an agent, that by his agency he should say to the scribe, ‘write.’ Rather, we are forced to say that one cannot make any agent at all for mere words.” And as for a bill of divorce and a gift, he argues that this is not mere words at all—it’s performing an action, so the whole category of mere words doesn’t apply. Now he continues: “However, it still requires examination according to the one who holds like the Maharam of Radosh,” a responsum cited in Beit Shmuel, “that in betrothal, even with a document, an agent cannot become an agent, since it still depends on her consent, and thus the act is not yet in the hands of the agent, for the agent does not have the power to complete the act, since perhaps she will not consent.” I mentioned the Rashba in a responsum who says also regarding blessings that if it depends on someone else, then you do not recite a blessing. The commandment of charity—why don’t we recite a blessing over the commandment of charity? Because maybe the poor person won’t want it. So it doesn’t depend only on you; you recite a blessing only over something that depends only on you. “If so, according to the one who says ‘say to others’ is invalid, according to our explanation, the reason is that even the first agency cannot work through mere words. If so, how can we ever find agency in betrothal?” Yes, the Maharam of Radosh says that even with a document, an agent does not become an agent. Why? Because anything that depends on the will of another party is called mere words. Because it’s not a complete act, since the act is not in your hands, so basically it has the status of mere words. He says: according to this, how can one appoint an agent for betrothal at all? After all, according to the one who says “say to others” is invalid, the problem with mere words already exists with the first agent, not only the second. And if agency for betrothal is mere words, then even a first agent cannot exist for betrothal—you can’t appoint an agent for betrothal. Yet it says, “A man betroths by himself or through his agent.” Yes, there is an agent for betrothal. “And investigate.” He says that according to the Maharam of Radosh, this doesn’t work—meaning Rabbi Akiva Eiger’s explanation doesn’t work. What? His reasoning.

[Speaker C] Right—an agent can’t complete the act, and therefore it’s mere words.

[Rabbi Michael Abraham] But if it’s mere words, that’s it—then you can’t appoint an agent. So how can you appoint an agent for betrothal? If you say that the problem in agency exists only according to the one who says “say to others” is valid, who holds that the problem is only with the second agent, then according to the one who says “say to others” is invalid, there shouldn’t be any agent for betrothal at all.

[Speaker C] Because it’s mere words, right? Yes.

[Rabbi Michael Abraham] And with mere words, even a first agent is impossible, not only a second agent. Here I suggest that there are two kinds of mere words. There is one type which is simply words—an agent for words. An agent for words—you cannot appoint even a first agent. Now with an agent in betrothal, certainly by means of a document, that definitely is not an agent for words; you hand him an object. That’s the basic definition excluding mere words. Rather, what’s the issue? It only depends on the woman’s consent. In such a case, this type of mere words—in the first agent there is no problem, only in the second agent. I’m distinguishing between two kinds of mere words. Meaning then it would come out that with mere words of this type, “say to others” would be valid. Because the problem is only with the second agent, not the first. Okay. Up to here the issue of mere words, at least for our purposes; we won’t be able to get beyond this. Fine, so now I’m moving on to agency for setting aside terumah. Let’s begin that. I sent you the page: agency for setting aside terumah. First I’ll start a little with the framework in the Talmud. I still want, we still have four more meetings besides today. I want also to get to acquisition on behalf of another, agency for a transgression, maybe agency regarding one’s own body as well, and commandments—agency concerning commandments. And beyond that I want agency for setting aside terumah; that’s more or less what I want to cover by Yom Kippur. So here first of all I want to mention what we saw in the name of Rabbi Shimon Shkop: that the law of agency requires the sender’s full control over the act. Right? Therefore we saw that what the Talmud discusses about agency in halitzah, and it says that whatever is not subject to condition is not subject to agency. Whatever you cannot appoint an agent for, you also cannot make conditional. Why? Because if you cannot appoint an agent for it, then you are not the exclusive master over the matter; you don’t have full control over it, and therefore you also cannot make it conditional. So we see that if you are not the absolute owner of the matter, you cannot appoint an agent. Okay? Yes, there’s something interesting here that I once heard from some fellow in a Sabbath class he gave אצלנו in Lod—Rabbi Isser Repshtein. He was a yeshiva lecturer in Kiryat Shemona and then went to work in high-tech. In any event, he suggested the following. He said: how do we derive the laws of acquisitions from the Scroll of Ruth? After all, it says, “A man drew off his shoe.” We learn the laws of acquisition from there, especially barter, but the laws of acquisitions in general. So he said that “a man drew off his shoe” basically expresses the firm intent of the one transferring ownership. That’s the act of acquisition expressing the transferor’s decisiveness. In halitzah, why does the woman remove the yavam’s shoe? Because the yavam did not take upon himself the responsibility to marry her in levirate marriage. Or in other words, he did not firmly resolve to do what he was supposed to do—what the Torah expects him to do—certainly if we hold that levirate marriage is the preferred path and halitzah is only after the fact. Okay? So he did not firmly resolve. So what is the symbol of that? That the woman removes his sandal. Basically, instead of him taking off his shoe and expressing firm intent, she does it. And that expresses the contempt shown toward him because he basically wasn’t a man, he didn’t firmly resolve. Exactly. Because many times we think—and that’s usually how people understand it, certainly today—that halitzah is an humiliation of the woman. That’s why today there are all kinds of complaints about the matter, that the halitzah ceremony is humiliating and things like that. By the way, I never understood that. Meaning, it’s not a pleasant ceremony, but it’s not that there is some essential humiliation of the woman here. What there is—yes. What is it? He argues that it’s a humiliation of the man, not the woman. Even better. I’m saying, the idea is to humiliate the man, not the woman—because he didn’t do his duty, he didn’t enter levirate marriage with her. And he says the humiliation is also symbolic, meaning he didn’t do the required act, and firm intent is expressed by “a man drew off his shoe,” so she removes his shoe. She basically does the act in his place. Fine, never mind, that’s just in parentheses. In any case, what does that mean? It basically expressed the fact that he has no control over the matter. Halitzah is the removal of control from his power. Basically, she removes it from him; he doesn’t remove it from her. So how could he create agency in halitzah? It’s not his act at all; it’s her act. We always say, “He performs halitzah with her,” right? That’s the halakhic expression, that the yavam performs halitzah for his yevamah. But no—she removes his shoe, not he hers. Meaning, the claim is basically: you didn’t perform halitzah, so she performs it to you in place of your performing it to her. An interesting idea. In any event, for our purposes, what matters is that you need control over the matter in order to appoint an agent. Right? That’s what we learned. Now let’s look at the Talmud. The Talmud makes a need-for-both argument between the sources for agency. “We found it in divorce; from where do we know it in betrothal? And if you say that it is learned from divorce—what is unique about divorce? That it can take place against her will. The verse says, ‘And she goes out and becomes’; it compares becoming to going out. Just as with going out one appoints an agent, so too with becoming one appoints an agent.” Yes, so agency in betrothal is learned from agency in divorce. Now from agency in divorce you couldn’t learn directly because it’s against her will, but they make the comparison of “and she goes out and becomes.” And we said that a comparison cannot be refuted—remember we spoke about that, that a comparison cannot be refuted—therefore the fact that there is a refutation here doesn’t matter if I’m learning it from a comparison. What does this mean, exactly? What does it mean that “divorce can take place against her will,” and therefore you can’t learn from divorce to betrothal? Why is the fact that it can be against her will a refutation? Because the husband’s control over the act is absolute. Right? As opposed to betrothal, which depends on the woman’s consent. Therefore we also saw that this is mere words according to the Ketzot and the Rashba and so on—yes? Because it basically depends on the woman’s consent. So that is exactly what is being said here. Since it can be done against her will, if it can be done against her will then full control is in the husband’s hands. Full control is in the husband’s hands, so perhaps that is why indeed the husband can appoint an agent for delivery in divorce, and you cannot learn from that to betrothal, where he does not have full control. So we see that the dimension of control is relevant to the question whether you can appoint an agent. The stronger your control, the more you can appoint an agent. So perhaps let’s learn it from agency of receipt in divorce? In agency of receipt, after all, the woman appoints an agent, and she has no control at all. Right? Since it can be against her will—that was the refutation to the second derivation. So then learn from agency of receipt by an a fortiori argument. After all, a refutation in one direction is an a fortiori argument in the other direction, right? Why in divorce is it easier to have an agent than in betrothal? Because it can be against her will. Right? So now with an agent of receipt, if it can be against her will, then learn from there to betrothal. So—I said about this that it is a different kind of agency. Agency over an act, and you can’t learn from that to agency over a legal power. And that basically means that the fact that something can occur against the woman’s will serves two functions, in two directions. On the one hand, it strengthens the husband’s power to appoint an agent because he is the exclusive controller. On the other hand, when the woman appoints an agent, it is clear that this is not the usual type of agents, of power of attorney. It’s something else. Therefore you can’t learn anything from that. It clearly needs a special source. And from that source you can’t learn to other agency.

[Speaker C] But if the agent of receipt received the bill of divorce and he lost the bill of divorce? What? But if the agent received the bill of divorce—the woman’s receiving agent—and he lost the bill of divorce?

[Rabbi Michael Abraham] It doesn’t matter. The moment he received the bill of divorce, she is divorced. He doesn’t need to bring her the bill of divorce. In principle he could even throw it away. You don’t need to preserve the bill of divorce except as evidence and so on, but the moment he received the bill of divorce into his hand, she is divorced. That is also the moment of divorce. Not only is that the act that effects the divorce, it is also the moment of divorce. The moment of divorce is when the agent received the bill of divorce. There is a question: what happens if you give the bill of divorce to the agent and you say, “But she won’t be divorced until the bill of divorce reaches her”? Then there is a problem that the agency does not revert to the husband, and the Talmud discusses these matters. That’s more complicated. In an ordinary receiving agent, it’s from the moment he receives it. The Talmud continues: “But as to that which we learned: one who says to his agent, ‘Go separate terumah’—he separates according to the owner’s intent. And if he does not know the owner’s intent, he separates an average amount, one fiftieth. If he reduced by ten or added by ten, his terumah is terumah.” This is a Mishnah in Terumot, chapter 4, mishnah 4. What do we see? That there is agency in terumah, right? You can appoint someone to separate terumah for you. From where do we know this? And of course this is not a Torah source; it’s a source from a Mishnah. So it can’t be the ultimate source. We see that there is agency for setting aside terumah, but the question still remains: where did the Mishnah know this from? We need a source from the Torah. From where did the Mishnah know that one may appoint an agent for terumah? So the Talmud says: “And if you say that it is learned from divorce—what is unique about divorce? That it is secular.” The verse says, “You too”—to include the agent. You cannot learn it from divorce, because divorce is secular and terumah is sacred. Why should sacred matters be less able to involve agency than secular matters? Again, in my opinion this is an issue of control. Sacred property—every place it exists, it belongs to the domain of the Merciful One. Meaning, sacredness is basically a domain unto itself; everything is in the domain of the sacred. Okay. Therefore your control over sacred matters, even if they are in your possession, is basically limited control, and therefore you cannot learn from agency in divorce to agency in terumah. Because this is sacred. You cannot learn sacred from secular. In secular matters it is easier to perform legal acts. In sacred matters you need special novelties. Again, I think this connects to the issue of degree of control. So what then? So you can’t learn it from divorce? By the way, this is the place to ask: why not learn it from betrothal? Betrothal is also sacred, isn’t it? The Talmud on page 6 says regarding betrothal that if one says, “the leg of this woman should be elevated,” it compares this to consecrating half a woman. And it says that just as in consecration the holiness spread to all of it, so too in betrothal the betrothal would spread to all of her. And the medieval authorities and later authorities explain there that this is literally like consecration—that is, betrothal has a dimension of sacredness. Meaning, the act of betrothal—there’s room to elaborate here as well—but from the Talmud here we see not so. Otherwise the Talmud would say: fine, betrothal is learned by “and she goes out and becomes” from divorce, and from betrothal, which is sacred, we can learn to terumah. What’s the problem?

[Speaker C] Because something is lacking there. What? There too there is no control; you need the consent of the other side.

[Rabbi Michael Abraham] Ah, you’re saying there would be a different refutation in betrothal? Right—it is sacred, but it requires the woman’s consent. Okay.

[Speaker F] But what about a common denominator, maybe?

[Rabbi Michael Abraham] What common denominator?

[Speaker F] That one appoints an agent.

[Rabbi Michael Abraham] “Appoints an agent” is the result. What is the common denominator? The common denominator has to be some shared characteristic between the two that determines the ability to appoint an agent. Now it’s true that sometimes the Talmud doesn’t frame it and explicitly state what the common denominator is. Yes? “Commanded immediately and for generations”—that’s the example in the baraita of examples of a common denominator. Meaning: here there is command immediately and for generations, and there too there is command, so everywhere “command” means immediately and for generations. Why everywhere? What is shared by all commands? Many times the Talmud says there is a refutation from here and a refutation from there, so let both come and let us learn from both of them. But usually that’s not how it works. Usually they say: the common denominator of both is such-and-such, that it is your property and its safeguarding is upon you, or that they have some characteristic, and because of that one is liable to pay damages, like the first mishnah in Bava Kamma. Therefore anything that is your property and its safeguarding is upon you must—meaning, you need some characteristic shared by the two source cases, because the refutations always say there is a characteristic unique to the first source that is not found in the second or in the learned case. And there is a characteristic unique to the second that is not found in the first nor in the learned case. Therefore from each one alone you can’t learn. Now if you want to learn from both together, then you need to find a characteristic shared by both source cases that is also found in the learned case. Because if it is found in both but not in the learned case, that itself will be a refutation. One can refute the common denominator by pointing to a characteristic shared by the two source cases. That is a refutation of the common denominator. So there has to be a shared characteristic between the two source cases that also exists in the learned case. Fine, in any event there is some room for hesitation here. You could say yes: precisely if there is no shared characteristic, that shows that anyone who can appoint an agent can appoint an agent, because we see that it doesn’t depend on anything—because the fact is that the unique characteristics do not matter, since both betrothal and divorce work. You do find things like that in the Talmud. Apparently here the Talmud doesn’t do that because it is looking for a shared characteristic. Maybe Tosafot says this; I no longer remember. Wait, maybe elsewhere a little… no. Fine, in any event, the Talmud brings another source for the law of agency. So if so, we now already have three sources. One source in divorce for the three types of agency. In betrothal it is “and she goes out and becomes,” and we discussed the question: what in betrothal? Delivery, receipt, and so on? Whether an agent can appoint another agent. And in terumah it is “so shall you also set aside”—“you too” includes your agent. There is a bit of room… there is a bit of room to hesitate whether “so shall you also set aside” is an interpretive derivation. And what is the meaning of the verse? “You too” means someone else too—there is someone else. Not a derivation, just the meaning of the verse. There is room to hesitate whether this is a derivation or not. In any case, it includes the agent. Then the Talmud—again, you see that a source is needed for every halakhic context; I spoke about this in the first class—says: “And let the Merciful One write it only concerning terumah, and let these others come and be learned from it.” Because there is a possible refutation: terumah can be done by thought. Therefore from terumah you cannot learn about divorce and betrothal. About betrothal there is never a question, because betrothal is learned from divorce by “and she goes out and becomes.” There is no special source for betrothal for which you ask whether it is superfluous. But regarding divorce there is always the question: learn divorce from terumah, and “and she goes out and becomes” will already teach betrothal. Okay? So he says no, because terumah can be done by thought, while divorce and betrothal require speech. Meaning—or action, speech—but thought alone does not help. What does it mean that terumah can be done by thought? “He directs his eyes to this side and eats from that side,” as it is written, “and it shall be considered,” “and your terumah shall be considered for you”—it can be separated by thought. What does this mean? That your control over the matter is much stronger, right? You don’t even need an act; it’s enough that I think something and it becomes terumah. And again, the parameter of control is the important one. And the refutation—or the a fortiori argument, depending in which direction you look—is always determined by your degree of control over the matter. If it can be done by thought, then your control is complete. If the control is complete, then from the fact that one can appoint an agent for terumah you cannot learn to bills of divorce and betrothal. Okay? Fine. Now I’m going to enter for a moment into terumah itself. So we saw the Mishnah that was cited. Here. “One who says to his agent, ‘Go separate terumah’—he separates according to the owner’s intent. And if he does not know the owner’s intent, he separates an average amount, one fiftieth. If he reduced by ten or added by ten, his terumah is terumah.” And from this we learn that there is agency in terumah. How do we know? “So shall you also set aside”—to include your agent. We’ll see later that the source from terumah is considered the main source in the Talmud. Generally, when they want to find a source for agency, they bring “so shall you also set aside.” For example, “Just as you are members of the covenant, so too your agents must be members of the covenant,” and therefore a gentile cannot be an agent. So additional laws of agency are learned mainly from this source of terumah. Fine. In any event, for our purposes two laws appear here. First: I can say to my agent, “Go separate terumah.” That is the first law appearing in the Mishnah. And the second law is that if you don’t know how much to separate—one fortieth, one fiftieth, or one sixtieth—you separate according to the owner’s intent, and if he reduced by ten or added by ten, nothing happened. Okay? Two laws appear in the Mishnah. From where do we learn the law of agency? Seemingly from the first clause, right? From the fact that you appoint an agent. “If he reduced by ten or added by ten”—you don’t need that for this. Once he says to his agent, “Go separate terumah,” and it works, that shows there is agency in terumah. Why do we need to bring the continuation, that if he reduced by ten or added by ten, his terumah is terumah? The Pnei Yehoshua asks this, but on the face of it it’s not so terrible. Many times they quoted the… they don’t quote only the first clause, they quote the Mishnah more fully. Okay? So they also bring the continuation, but in principle the law of agency is learned from the first clause of the Mishnah. You really don’t need the latter clause that says, “If he reduced by ten or added by ten, his terumah is terumah.” But the Pnei Yehoshua argues not that way. Before I get to the Pnei Yehoshua, just a note. Look at Rashi. “He separates according to the owner’s intent”—according to how he knows the owner, whether generous-eyed or stingy-eyed: generous-eyed is one out of forty, stingy-eyed is one out of sixty, for no explicit measure was stated for terumah, only ‘the first of your grain,’ and even any amount.” He means, simply, we are used to this. In the lesson on reasoning I sent—God willing—yes. Okay, so fine, that article, if I sent it, that’s what I meant. I’m only commenting here from Rashi in continuation of that article, because from Rashi here it is usually accepted to think that the Torah-level measure for terumah is that one grain exempts the whole pile, and the rabbis established three measures: one out of forty for the generous eye, one out of sixty for the stingy eye, one out of fifty for the average eye. But there are Talmudic passages and in Maimonides it is systematically clear that these are Torah-level measures, not rabbinic measures—one out of forty, fifty, and sixty. And Rashi here also implies that way. It’s not conclusive, but it seems to me the plain sense of his language is that way. Because what does he say? “It has no explicit measure, only ‘the first of your grain.’” So one out of forty, one out of fifty, one out of sixty is an unexplicit measure. What does “it has no explicit measure” mean? If the Torah-level measure is one grain and the rabbis established one out of forty, fifty, and sixty—what does explicit and unexplicit have to do with it? It has nothing to do with explicit or unexplicit. It’s also not unexplicit in the Torah. It’s a rabbinic measure. And Rashi seems to say that the difference is—and also in the Taz, in Rashi in Hullin—Rashi seems to say that the difference is that one grain is not the explicit measure, and one out of forty, fifty, and sixty are the real measures, they’re just not explicit in the verse. Fine, that’s basically the claim. And that whole article there is basically devoted to this issue. My claim is that the measures of one out of forty, fifty, and sixty are Torah-level, not rabbinic, contrary to what people usually think, and that has various implications. So I think you can also see that in Rashi here, but as far as I’m concerned I won’t get into that here. See the article if you want. Okay, so now look at the… wait. Where is it here?

[Speaker C] Why did I delete that file?

[Rabbi Michael Abraham] Okay. Before I enter the laws of terumah, I’ll preface with the law of acquisition on behalf of another, even though we’ll deal with it later, but I need it for the discussion of terumah. So the Talmud on page 42a, and later in Kiddushin, says as follows: “But as 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 stated, ‘And one prince, one prince from each tribe.’” Let us derive agency from here. Let’s learn agency from here. It says, “And one prince, one prince from each tribe,” so the prince basically acquired for the whole tribe the various inheritances in the Land. So we see that there is agency. From here one could learn the law of agency. He was the agent of his tribe to acquire the inheritances. “Why don’t we derive agency from here?” Why do we need the sources of terumah, divorce, betrothal? Here is a source. So the Talmud says: “Can you really think that this is agency? But minors are not subject to agency.” How can you tell me that this is agency? He acquired inheritances also for minors, and there is no agency for a minor; a minor sender cannot appoint an agent. Therefore it is clear that this is not the law of agency. So what is it? “Rather, like that statement of Rabbah bar Rav Huna, for Rabbah bar Rav Huna said that Rav Giddel said that Rav said: From where do we know that one may acquire on a person’s behalf in his absence? As it is stated, ‘And one prince, one prince.’” We learn the law of acquisition on behalf of another from here, not the law of agency. And simply from this Talmudic passage it seems that acquisition on behalf of another is not based on agency. I commented on this in one of the earlier lessons. Right? What does it say? If it were agency, then it shouldn’t work for minors. If it works for minors, then it’s not agency. What is it then? It’s the law of acquisition on behalf of another. And that law works even for minors; the law of agency does not. Okay? Therefore what is learned here is the law of acquisition on behalf of another, and you cannot learn from here the law of agency, because of course that’s the point. What is learned from here is the law of acquisition on behalf of another, not the law of agency, and you cannot learn agency from here. Okay? Once again, you see that the law of acquisition on behalf of another and the law of agency are not the same thing. The Talmud asks: “Can you really think it is a benefit? There is also a liability, for there are those who prefer a mountain and not a valley, and those who prefer a valley and not a mountain.” It wasn’t always a benefit. After all, you give this one this inheritance and that one that inheritance—maybe he would have preferred the other one and the other one would have preferred this one. It is a benefit in principle, but it is a benefit that also has an aspect of liability. Okay, so what? What does that mean? It basically means that something like this can be done only by means of an agent, not by acquisition on behalf of another. Therefore the Talmud says: you’re telling me this is acquisition on behalf of another and not agency? Not true. If it were acquisition on behalf of another, you couldn’t do something that also has a liability aspect. A complex thing like this, which is indeed a benefit but also has a liability aspect—that only an agent can do, not someone acquiring on another’s behalf. Okay? “Rather, like that statement of Rabbah bar Rav Huna, for Rabbah bar Rav Huna said that Rav Giddel said that Rav said: From where do we know that with orphans who come to divide their father’s property, the court appoints a guardian for them both to their detriment and to their benefit? To their detriment—why? Rather, to their detriment for the sake of their benefit. The verse says: ‘One prince, one prince from a tribe you shall take.’” In the end this is actually a source for something else entirely. But for our purposes—we’ll get to this when we discuss the law of acquisition on behalf of another—for our purposes what matters here is this: there is such a concept called acquisition on behalf of another. It does not operate through the mechanism of agency, at least that is what seems from the plain meaning of the Talmud, even though in the conclusion they back away from that; still, that is what appears from the plain meaning of the Talmud—it does not operate through the mechanism of agency. Now, when we speak about agency in terumah, we need to ask ourselves: when I say to someone, “Separate terumah for me,” and he can separate it as the Mishnah says, and from here the Talmud says you see there is agency for setting aside terumah—do you need an agent at all for setting aside terumah? It may be like what I said about ownerlessness and betrothal and consecration—sorry—it may be that you don’t need an agent at all. All that is needed is that I agree that you should separate the terumah. You can separate terumah, because once it has been separated, it has been separated, and I need to agree that it be transferred. Fine—that he should separate the terumah. What is this… first of all, you don’t have to give it to the priest. The separation fixes the untithed produce even before it is given to the priest. Afterward the terumah has to be given to the priest, but that’s… let him separate it, or I’ll give it, or the owner will give it—what difference does it make? But the separation itself I can do without giving it to the priest. Separation—I’m only separating terumah. That’s it.

[Speaker F] Transfer

[Speaker C] it to the priest.

[Rabbi Michael Abraham] Fine. Now I’m asking: does that separation require being an agent in order to do it? Why? Maybe yes, maybe no. And on the contrary, from the Talmud it seems yes, because the Talmud learns from here the law of agency.

[Speaker C] But it’s thought, no? If it’s something… it’s not physical.

[Rabbi Michael Abraham] Well, so all the more so, then you don’t need agency. So how does the Talmud learn the law of agency from here? The Talmud says that we see from here that there is agency with regard to terumah. But why exactly? In terumah, the fact that you can separate on my behalf is not because you are my agent, but because you don’t need to be an agent. If you separate on my behalf, everything is fine either by the rule of acting for someone’s benefit, or simply by virtue of my consent. That’s all. I just tell you, okay, as far as I’m concerned that’s fine. Obviously, if I don’t consent, you can’t separate terumah. You can’t take my produce and make terumah from it. That’s obvious. The question is what is required in order for you to be able to do it. Do I have to appoint you as an agent, or is it enough that I say I have no objection, no problem, everything is fine, go ahead and separate? And here there are three levels, and we’ll have to get to this later, so I’m already defining it here. One level is that I appoint you as an agent. A second level is that you act by the rule of acting for someone’s benefit. But that rule is like agency, whether it operates through agency or not, but still, you are acting as some kind of representative empowered by me. Maybe not through the formal law of agency, maybe through an alternative mechanism, but still the mechanism is that you act as my authorized representative. But there is a third mechanism: no agency, no acting for someone’s benefit, nothing at all is needed; all that is needed is that I not object. So if I told you, “Go separate,” what I really said is: I’m not objecting, do whatever you want. And if you go and separate, everything is fine. And maybe that is enough for the terumah to take effect. You don’t need to be my agent. If that’s so, then it’s not clear why the Talmud learns from here that there is agency in terumah. It could be that in terumah all that is needed is simply consent, that’s all. If the Talmud learns from here that there is a law of agency in terumah, the Talmud is apparently assuming that consent is not enough. And we’ll see proofs that that’s not true; consent is enough.

The Pnei Yehoshua says—yes, let me maybe give you an example. Someone builds a parapet on my house. I have a house that needs a parapet, and someone builds a parapet for me. Fine? Does he need to be my agent? Once he builds the parapet, my house has a parapet. That’s it, I’m exempt. You can discuss whether I have fulfilled the commandment of building a parapet, whether I performed the commandment. On the face of it, no. But clearly the house is no longer lacking a parapet, right? Meaning, it’s no longer obligated in a parapet because it has one. The same thing may be true of terumah. It could be that if he is not my agent, then I will not have a commandment in that separation of terumah, because I didn’t do it, he did it. Fine? But it could still be that the terumah takes effect. I won’t have the commandment, but the terumah has been separated. If I object, then the terumah also was not separated, because he can’t do it. But it may be enough that I consent in order for the terumah to take effect. Maybe you need an agent only so that I will have a commandment—although it is preferable to perform a commandment personally rather than through an agent, still there is also a commandment when it is done through an agent. Okay, so for that he has to be an agent. But for the terumah itself to take effect, who said agency is required? It could be that consent is enough, and certainly the rule of acting for someone’s benefit.

Now, in terumah this is more far-reaching than with a parapet. Because with a parapet, let’s say if he makes the parapet from his own materials, then what’s the problem? There’s no problem at all; clearly he did it and everything is fine. But what if he makes a parapet from my materials? What? Seemingly that’s theft. What do you mean? Leave it to me to decide whether I want to build a parapet or not. No, I didn’t invite him; he’s doing it on his own initiative. I said that if he makes the parapet, then the house has a parapet, fine? He’s not allowed to do it, right? I don’t know—the house has a parapet, but he’s not allowed to do it. Fine. In terumah he does it from my property. He takes my produce and separates terumah from it. Now it’s true that I am obligated to separate terumah for the priest, but practically speaking the produce is mine. As untithed produce, it’s mine. So when he separates produce of mine, there is room to say that maybe consent is not enough. Because we’ll see later that a person can separate produce of his own as terumah for my produce, and then clearly consent is enough. You don’t need agency. But if he does it from my produce, there is room to hesitate. There is another point too: maybe I want to do the commandment myself, and I’m not willing for someone else to do it, because I lose the commandment. And then I’m not willing for someone to do it in my name. So it could be that here you really do need agency.

But the Pnei Yehoshua comments as follows. He says: “If he reduced by ten or added by ten, his terumah is valid—from where do we know this? And it seems to me that it was necessary to bring the latter clause of the Mishnah.” We spoke about this: why did it bring the latter clause, that if he does not know the owner’s intent he separates an average amount, and if he reduced by ten or added by ten, his terumah is valid—why bring that? Let it just say at the beginning: “One who says to his agent, ‘Go separate terumah,’ he separates according to the owner’s intention.” We see there is agency in terumah; why do we need the continuation of the Mishnah? So I said that the difficulty isn’t so strong, because after all it brought the whole Mishnah even though the proof really is only from the first clause. But the Pnei Yehoshua argues that this is deliberate. By the way, I don’t remember—maybe it actually isn’t the whole Mishnah. And if it isn’t the whole Mishnah, then the point is even more correct. If they didn’t bring the entire Mishnah but only the first part, then it really is a question why they didn’t bring only the opening clause itself—why did they also bring the middle? Okay? I don’t remember at the moment whether it’s the end of the Mishnah or not. We’d have to look there.

In any case, the Pnei Yehoshua asks why they brought it, and he says this: “And it seems to me that it was necessary to bring the latter clause of the Mishnah, because from the first clause alone nothing is proven that we are dealing with the law of agency; for one could say that it is because it is to his benefit, and one may act to a person’s benefit in his absence.” If we had only the opening clause—“One who says to his agent, ‘Go separate terumah,’ he separates according to the owner’s intention”—I would not have been able to learn from here that there is agency in terumah. It could be that it works by the rule of acting for someone’s benefit, the same rejection we saw regarding the princes in the division of the Land. If it works by that rule, then you can’t bring proof from here that there is a law of agency. The same thing here. Even when it says, “He says to his agent, ‘Go separate terumah,’” the fact that he separates may be because of that rule. So why did I say to my agent, “Go separate”? Why do I have to tell him if it’s by the rule of acting for someone’s benefit? I have to tell him because otherwise it may be that I don’t want him to separate; it’s not a benefit, because I lose the commandment. Fine, I want to do the commandment myself, or at least I lose the advantage of personally doing a commandment rather than doing it through an agent. That advantage I certainly lose. And therefore I need to tell him to separate, so that he will go and separate. But practically speaking, now that I told him, when he goes and separates it is not necessarily agency; it could be by the rule of acting for someone’s benefit.

I’ll now add in parentheses—this is how the Pnei Yehoshua writes, and I’m adding in parentheses—it could be that it’s not even a matter of acting for his benefit, but simply consent. I simply revealed that I have no problem with it. Yes, exactly—but not even acting for someone’s benefit, just plain consent. The Pnei Yehoshua formulates it in terms of that rule, but it doesn’t have to be that. And therefore he says that from the opening clause by itself one could not prove that there is agency in terumah. “And even though one could say that it is not to his benefit, since a person prefers to perform a commandment himself, nevertheless, since he revealed his intention that he does not care, because he said ‘Go separate,’ therefore he can separate, by the rule of acting for someone’s benefit and not because of agency where there is an element of obligation in the matter itself. And even though regarding the rule of acting for someone’s benefit itself, most commentators agreed that it operates through agency, nevertheless this is not so absolutely compelling, as I will explain later. Therefore it brings the latter clause.”

What is he saying? He’s saying that if I only had the opening clause, I wouldn’t be sure that this is by the law of agency; it could be by the rule of acting for someone’s benefit. You’ll say: maybe that rule doesn’t apply because perhaps he doesn’t want it, because he wants to perform the commandment himself. But he said to his agent, “Go separate terumah.” And the reason the Mishnah has to get to the point that he says to his agent, “Go separate,” is not because he is appointing him as an agent, but because without that he cannot separate. Fine? But once I said that to him, all I did was reveal my intention that I have no problem with it, and from then on he separates by the rule of acting for someone’s benefit—and I would add, even more so, maybe not even by that rule but simply on his own, and I merely consented, so I have no problem with it.

And therefore they brought the latter clause, says the Pnei Yehoshua, because from the latter clause it is clear that this is by the law of agency and not by the rule of acting for someone’s benefit. Why? As I said before: “Therefore it brings the latter clause of the Mishnah, that if he reduced by ten or added, his terumah is valid. This implies that even though there is an element of obligation, nevertheless it is effective since he said to him, ‘Go separate terumah,’ and he can say, ‘This is what I meant.’ This implies that it is by reason of agency; so it seems to me.” From the opening clause you couldn’t prove that it is by the law of agency, because it could be by the rule of acting for someone’s benefit. Ah, but there is an element of obligation there, because maybe I myself wanted to do the commandment? No—he said to him, “Go separate terumah,” so he revealed his intention that he has no problem with not doing the commandment himself. From then on it is a complete benefit; it falls under the rule of acting for someone’s benefit. So when he separates, that is not proof that there is agency in terumah; it could be that he is operating by that rule.

That is why they brought the latter clause. Why? Because if he didn’t tell him how much, then he acts according to his understanding. And if he reduced by ten or added by ten, meaning the owner comes and says, “Wait, wait, I wanted one-fiftieth, and the one separating for me took one-fortieth? That’s too much, I didn’t want that.” Even so, his terumah is valid. Why? By the rule of acting for someone’s benefit, this could not have worked, because that rule does not work in a case where there is also an element of obligation. Therefore it must be by the law of agency, and that is why they brought the latter clause, because from the latter clause there is clear proof that there is such a concept as agency in terumah. From the opening clause, it could also work by the rule of acting for someone’s benefit.

And after all, merely revealing my intention that I consent even to ten more than I had in mind—there is nothing in my saying to him “Go separate terumah” from which you can prove that I consented even to one-fortieth. I assumed that he knows how much I usually separate and that he would separate accordingly. But the Talmud says that even if he added ten, his terumah is valid. So you see from here that it is by the law of agency and not by the rule of acting for someone’s benefit, because by that rule it could not have worked. The rule of acting for someone’s benefit does not work when there is an element of obligation, although even on that we’ll see there is a discussion in the Talmud there, like what I mentioned earlier about the acquisition by the princes. But we’ll get to that when we discuss the rule of acting for someone’s benefit and we’ll see it. Okay, we’ll stop here.