Agency Matters – Lesson 6 – Rabbi Michael Abraham (YouTube)

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[Rabbi Michael Abraham] Can he buy the commandment back from you? The one who set aside the terumah was him. What difference does it make if he gave me fruit back? The commandment is setting aside terumah; the commandment is not not to lose money. You lost money, very nice, but that wasn’t for the sake of setting aside terumah. You could throw it into the sea too if you want. The commandment is the separation of terumah. Now I just want to sharpen a bit more the meaning of the question here. What are the two sides of the doubt? The two sides of the doubt are only about the question—I don’t know whether to call it factual, but psychological, I don’t know what to call it—about whether this is considered a benefit for him or not. That’s the whole question, right? Is it a benefit for him or not, because he loses and gains fruit, but he loses the commandment. The question is what outweighs what. Is this a benefit or not, okay? But on the side that it is a benefit, everyone agrees that I can do it even without his knowledge, right? Meaning, the whole side in the Talmud that says you need his knowledge is only because it’s not clear that this is a benefit for him. But in a place where it was clear that this was a benefit for him, then there’s no question. Clearly the rule of acquiring on someone’s behalf would be enough. Okay? So in a certain sense it’s true that there’s a question here whether you need his knowledge or not, but we see that the whole problem is only a technical problem. Meaning, there’s no essential problem with setting aside terumah for someone by a person who is not an agent—or at least by the rule of acting for his benefit—even if he didn’t explicitly agree, but at least the rule of acting for his benefit. There’s no principled problem. The whole question is whether this is really a benefit. But if it were a benefit, then there’s no requirement that it specifically be through an agent, right? That’s the plain meaning of the Talmud. The whole discussion is only about whether this really is a benefit or not. A factual question. But on the side that this really were a pure benefit, then clearly it would be possible. Meaning, there could have been room to say no: “So shall you too set aside” means either you or your agent. Without agency it doesn’t help—not because of the question whether it’s a benefit or not. Even if it were entirely a benefit, the rule of acting for someone’s benefit would not be enough; you need actual agency. Okay? We’ll see later that there really are also views like that. But the plain meaning of the Talmud doesn’t seem that way. The plain meaning of the Talmud seems to be that the Talmud has no principled problem with my acting under the rule of acting for someone’s benefit. The whole question is only whether factually this is really a benefit or not a benefit. Now actually, as I said in the previous class, here too there’s room to hesitate when the Talmud says you need his knowledge or you don’t need his knowledge. Does it mean to say—meaning, does the rule of acting for someone’s benefit operate here, or do you actually need real agency? Or maybe the first side is not about acting for someone’s benefit at all, but just simple consent. You don’t need me to be your agent at all; you need nothing. You only need me to agree, not to object. And you can’t set aside terumah for fruit of mine, even if you’re doing it from your own fruit, no matter. You can’t set aside terumah for my fruit if I object. And the fact that I lose the commandment of setting aside terumah means that there may be an objection here. Otherwise the problem is not because of acting for someone’s benefit. You don’t need that rule. All you need is that I not object. The question is whether in such a situation a reasonable person objects or not. And that is the Talmud’s doubt. So it’s not a doubt between the rule of acting for someone’s benefit and agency, but between consent and agency—or between consent and even acting for someone’s benefit, if you like. Meaning, on the side that this is a benefit for him, then it works under the rule of acting for someone’s benefit. On the side that it’s not a benefit for him, then it can’t work. Why can’t it work? Because there is no consent. Not because there is no rule of acting for someone’s benefit here. And on the side that it is a benefit for him, then you don’t need the rule of acting for someone’s benefit; it’s enough that I don’t object and you can set it aside. Now you’ll ask: if it’s a benefit for me and everything is fine, let’s say I still object. Then he won’t be able to set it aside. That’s the assumption according to this explanation, right? Why not? If it’s a benefit for him and everything holds, then why not? That’s the rule of acting for someone’s benefit if I do it, right? No, no—you’re already bringing in that I’m losing a commandment and therefore losing something. I’m saying I lost nothing; I just have a whim: I don’t want you to set it aside. I hate you. Okay? I don’t want you to set it aside, I’m losing nothing. The question is why. Why not? After all, this is a benefit for him; we have the rule of acting for someone’s benefit. What’s the problem? Notice, my current assumption is that setting aside terumah does not need to be done by the owner, right? Therefore you need neither agency nor really the rule of acting for someone’s benefit. All that is needed is that he not object. If it had to be done by the owner, then you could say: setting aside terumah is a duty on the owner; he has to fix his produce. Now if someone else does it, then he has to do it either under the rule of acting for someone’s benefit or through agency. He has to do it in my name. We said that both the rule of acting for someone’s benefit and agency are both my act, through someone empowered by me. But on the side I’m raising now, maybe you need neither acting for someone’s benefit nor agency. Consent is enough. What does consent mean? It means anyone can set it aside; it’s not imposed specifically on me. I just need my produce to be fixed. If someone else fixed it, it’s like putting a guardrail on a house, okay? So simply, the plain meaning of the Talmud doesn’t look like that. The plain meaning of the Talmud seems to be that the Talmud has no principled problem with my acting under the rule of acting for someone’s benefit. The whole question is only whether factually this is really a benefit or not a benefit. Why, according to this conception, if I object, can’t you do it? According to the first conception, if I object then clearly you can’t, because there’s no rule of acting for someone’s benefit here and certainly no agency. But if I say you need neither acting for someone’s benefit nor agency, then why is my objection relevant at all? So what if I object? There is some subtler conception here that says: you cannot impose legal effects on property of mine without my permission. If I don’t agree, you can’t do it—like the rule that a person cannot prohibit something that is not his. A person can’t keep fruit untithed; I’m fixing it for him. No, I understand, but once you are fixing my fruit, you can’t do that without my permission. Understand? So if I say—but the Talmud’s doubt here, as I understand it, could also be this. The question is whether on the principled level simple consent works; you don’t need agency. Meaning, anyone can fix the produce, not specifically me, okay? But still, if I object, then you can’t do it. Okay? If I object, you can’t do it. The question is why. If you don’t need to be my agent and to act in my name—if you don’t need to be my agent—then what difference does it make if I object? Like with a guardrail, as you said. Someone builds a guardrail and I object—so what, it’s not a guardrail? Factually it’s a guardrail. But clearly in terumah there is something beyond a guardrail. You changed the status of my fruit. Not just the terumah fruit—the terumah fruit are yours, after all; you set aside from yours for mine. But you fixed my untithed produce. You can’t apply a legal designation to my produce or my fruit without my permission, against my will. That doesn’t mean you have to be my agent or my representative. That’s true even if agency or the rule of acting for someone’s benefit isn’t needed. Still, you can’t change the legal status of my property if I object. You can’t act. Somewhat similarly, a person cannot prohibit something that is not his. Suppose I—say you have a vineyard, and I plant grain right next to your vineyard, right on the border. Now there is a certain distance such that less than that creates forbidden vineyard mixtures, okay? Now if I do that next to your vineyard, your grapes do not become forbidden. Why don’t they become forbidden? There are mixed species here. Because a person cannot prohibit something that is not his. You cannot cause a designation, change the designation of someone else’s property, without his permission, on your own initiative. Okay? If you did something factual—there is a guardrail on the house—that’s a fact, that’s facts, okay? But here we are speaking about applying a halakhic designation. Jewish law does stop that. Meaning, Jewish law does not allow you to act if it is not your property, in someone else’s territory. What if someone comes at night—someone has no guardrail—and at night you come and install one for him without his permission? Okay, no—then he has a guardrail. On the contrary, there I claim he has a guardrail and his objection won’t help. It may be that I trespassed, because I entered without permission. I don’t care; but suppose I did it from the air, with a helicopter, okay, I didn’t trespass. But in the end there is a guardrail on the house, meaning factually. But in terumah it is not in the factual realm; in terumah it is in the legal-halakhic realm, like forbidden vineyard mixtures. And in the halakhic realm, the rule is that a person cannot act to change the halakhic status of something that is someone else’s property. You cannot invade or control someone else’s property without his permission, and that is unrelated to whether you need to be my agent in order to set aside terumah; even if not. That’s what I want to argue. Meaning, even if you don’t need to be my agent, still if I object you won’t be able to do it. Okay? Now here too in the Talmud, when they tell me that maybe he performed a commandment, he lost a commandment—he set aside terumah for me and I lost the commandment—and so what? According to the simple conception, then this is not a benefit and there is no rule of acting for someone’s benefit here; indeed you need appointment as an agent, the rule of acting for someone’s benefit is not enough. According to the way I’m presenting it, no. You need neither acting for someone’s benefit nor agency, but since you caused me to lose a commandment, I do not consent to your setting aside terumah, and therefore you cannot set it aside—not by the rule of acting for someone’s benefit and not by agency, but simply because I did not consent. And on the theoretical level, even if I hadn’t lost a commandment, but I were shouting and saying I don’t want you to set aside terumah, you wouldn’t be able to do it. And as for what a reasonable person would do if he isn’t here—we don’t assume he objects, and therefore we get into the question whether there is really a reason to object, that he lost a commandment or something like that. But on the theoretical level you don’t even need that. Meaning, if the person were standing here and saying I do not agree that you should set aside terumah, you would not be able to set aside terumah anyway. Okay? So that is if I understand that the point really is not the rule of acting for someone’s benefit versus agency, but consent versus agency and acting for someone’s benefit. Okay? Because, for example, in this context, commandments were not given for personal enjoyment. Okay? So perhaps losing a commandment is not—never mind why; I want the commandment. What difference does it make, on the halakhic level, that commandments were not given for enjoyment? I want the commandment. So if I don’t agree, you can’t set it aside. The Ran here, when he explains the Talmud’s question, writes as follows: “They raised the following question: one who sets aside terumah from his own produce for that of his fellow—does he need his fellow’s knowledge or not? Do we say that since it is a benefit for him, he does not need his knowledge, because one may act for a person’s benefit in his absence, and presumably he is like his agent?” In the Ran it is pretty clear that he understood this as a doubt between the rule of acting for someone’s benefit and agency, right? Meaning: does the rule of acting for someone’s benefit apply here or not? Because he lost a commandment, maybe this is not a benefit, and then there is no rule of acting for someone’s benefit here. He mentions: one may act for a person’s benefit in his absence. Meaning, he understands that the discussion here is about that rule, and according to him mere consent probably is not enough. Consent does not help. Meaning, only because if I consent or if this is a benefit for me, then he can act under the rule of acting for someone’s benefit, and acting for someone’s benefit is like an agent. That is what he says: “and presumably he is like his agent.” He even emphasizes it; he does not consider the possibility that no, he doesn’t need to be my agent and it also doesn’t work by the rule of acting for someone’s benefit, but simply because I consented. If I consented, he can set it aside—what’s the problem? No. The side that it works is only on the assumption that the rule of acting for someone’s benefit applies here. And if you act under that rule, it is like an agent. Maybe one can even infer from here that acting for someone’s benefit is based on agency. I already mentioned that among the medieval authorities (Rishonim) there is a dispute about this; we’ll discuss it in the next class. Rashi too seems this way. Rashi says: “Since it is a benefit for him, for he profits that terumah is set aside for him from another’s produce—he profits the fruit, I pay with the fruit, and he need not give him anything—he does not need his knowledge, because one may act for a person’s benefit in his absence.” He doesn’t mention that it is based on agency; that you can’t infer from Rashi here, unlike the Ran. But still, it is clear that Rashi invokes the rule of acting for someone’s benefit in his absence. Meaning, Rashi is not speaking here about mere consent. Now later the Talmud resolves this from a Mishnah about one who is forbidden to benefit from another. One who is forbidden to benefit may set aside terumah for the one who prohibited him. Meaning: “Come and hear: He may set aside his terumot and tithes with his knowledge.” I can set aside his terumot and tithes with his knowledge; he is not forbidden to benefit from me. He is forbidden to benefit from me. Now if I set aside terumot or tithes, it is permitted for me if it is with his knowledge. The Talmud asks: “What are we dealing with? If you say from the owner of the pile on behalf of the owner of the pile, then whose knowledge? If his own knowledge—who made him an agent? Rather, if the knowledge is that of the owner of the pile,” the Talmud asks, “but he is benefiting him, for he is performing his agency.” After all he is benefiting him because he carried out his agency. And once you carry out his agency—even though it is from the produce of the owner of the pile himself—since you carried out his agency, that is called benefit. Clearly if I set it aside from my own produce, I certainly benefited him, right? But if I set it aside from his produce, then how did I benefit him? I benefited him only in that I performed an agency for him. That too is considered benefit. I did work for him. If he had needed to hire someone to set aside terumah for him, he would have paid him a few shekels. So I benefited him by those few shekels, and therefore it is forbidden. Therefore the Talmud says it cannot be talking about the owner of the pile’s knowledge and from the owner of the pile’s produce. Rather, from his own produce on behalf of the pile. Rather, it is talking about where he set it aside from his own produce for the produce of the owner of the pile. And whose knowledge? If you say the knowledge of the owner of the pile—he is benefiting him. Why is he benefiting him? For two reasons: first, he gains my produce, right? And second, I also benefit him by having done his agency. Rather, must it not be his own initiative, and he sets aside from his own produce on behalf of his fellow’s? And if you say knowledge is required, then he is benefiting him. But you require his knowledge, and if you require his knowledge then again you are doing something in his agency, so you benefit him. Rather, must it not be that knowledge is not required. “Actually, it is from the produce of the owner of the pile on behalf of the owner of the pile, as Rava said, in a case where he says: anyone who wants to set aside terumah may come and set it aside. So here too, in a case where he says,” etc. I set aside from his produce for his produce—not from my produce, because then I benefit him—from his produce for his produce. Whose knowledge is that? The Talmud says it’s not exactly about the owner of the pile’s knowledge, but about a case where he says: anyone who wants to set aside terumah may come and set it aside. Here too, where he says: anyone who wants to set aside terumah may come and set it aside. And if he says anyone who wants to set aside terumah may come and set it aside, and I come and set it aside from his produce for his produce, I am allowed to do that even though he is forbidden to benefit from me. Why? Well, he did not profit in produce from me, because I set it aside from his produce. But I performed his agency. So apparently it is not his agency. But if it is not his agency, how does the terumah take effect if I am not his agent? And that is the problem, right? So look at the Ritva: “He may set aside his terumot and tithes with his knowledge, and we established the Mishnah as dealing with a case where the one who prohibited benefit says, ‘anyone who wants to set aside terumah may come and set it aside.’ Explanation: for now he is not performing his agency, because the matter depends on the decision of the one setting it aside, and even where he sets aside from his own produce on behalf of his fellow, it is like paying his debt. And this is what is proven in the Talmud.” This is a remarkable novelty. It’s written plainly in the Talmud, but it’s a big novelty. He says: when the owner of the produce says anyone who wants to set aside terumah may come and set it aside, I am not considered his agent. Not considered his agent. And therefore it is not considered that I benefited him. So he says: “even where he sets aside from his own produce on behalf of his fellow.” Even if I set it aside from my produce. Now if I set it aside from my produce, it is easier for me to understand why the terumah takes effect even though I’m not his agent. But on the other hand, he is forbidden to benefit from me. So even if I’m not his agent, there is still benefit here, because he gained the produce. I am paying with the terumah produce instead of their taking it from him. So he says no—it is proven in the Talmud that setting aside terumah is considered like paying off his debt. The Talmud there brings a very interesting discussion. The Talmud there brings a case where, say, you are forbidden to benefit from me and you owe a lender money. But I come and pay your debt. That is permitted. Even though apparently I benefited you and you are forbidden to benefit from me. Why? Because paying another’s debt is like driving away a lion. Driving away a lion means: if a lion comes to devour one of your lambs, I drive the lion away. If I drove away the lion, I didn’t profit you anything; I only prevented your loss. That is not called that you benefited from me. Now with paying a debt it is not exactly like that. After all, if you owed him one hundred shekels and now you don’t owe them, you gained one hundred shekels; that’s not mere prevention of loss. The Talmud sees paying a debt as preventing loss. I once wrote an article about this and a response on my site. My claim is that a loan is basically a gift. When you borrowed money from him, he gave you the money as a gift. The Torah imposes on you an obligation to repay: repayment of a debt is a commandment. It is not a legal debt. It is a commandment. That specific commandment turns into a lien, and therefore in the end it still enters monetary law. In principle it is a commandment. Therefore, for example, the Talmud says that minor orphans are not subject to performing commandments, and therefore they do not need to repay their father’s debt. When they are adults, then it may be that one collects it from the inheritance simply because the father repays the debt, but when they are minors they are not obligated to repay their father’s debt, because they are not subject to the performance of commandments. Now clearly if the father caused damage, then one collects even from minor orphans, because his assets are liable; he has to return the money. That is a legal obligation, not a commandment. It has nothing to do with whether these minors are obligated in commandments. If the father stole, then what—shall we say the orphans are not subject to commandments and therefore there is no “he shall return the stolen item”? It has nothing to do with the commandment of returning a stolen item. You have my money; return the money to me, it is mine, you stole it from me. With a loan it is not like that. Why not? Because with a loan, when I come to claim from you the money that you owe me, I am not claiming my money. The money is yours. You have a commandment to return the money to me. It is a commandment, not a legal debt. The commandment turns into a legal lien—for the view that biblical liens exist, and even for the view that biblical liens do not exist, then there is a lien on property, a lien on the person—but it is only by force of the commandment that it becomes a lien. Therefore minors, who are not subject to performing commandments, also do not have the legal lien; it is not like theft. And so when I now come and pay the debt, in fact he had one hundred shekels and he remains with one hundred shekels. I prevented a loss for him, because if you had come to claim it, he would have lost one hundred shekels when repaying you what he owes you. That is called a loss, because that money is yours. So if I give you those one hundred shekels and you do not claim them, I only prevented his loss; I did not profit him. And therefore that is called driving away a lion—paying off his debt. The Talmud says that setting aside terumah is like driving away a lion. Meaning, if I take my own produce and set aside terumah on behalf of your pile in order to fix your pile, you gained produce. He says no, you didn’t gain produce, you only didn’t lose. It is like paying his debt. Okay? Because setting aside terumah too is basically a commandment. It is a commandment that has a monetary outcome. So if you didn’t fulfill the commandment of setting aside terumah, you ate untithed produce, or you set aside terumah but didn’t give it to the priest, and instead you ate the terumah yourself too. Never mind that right now. In any case you committed a transgression, but that is an account between you and the Holy One, blessed be He. The priest cannot come to you claiming theft. Again, that’s not such a simple question, but that seems to be what emerges from the Talmud there. Therefore the Ritva says that when the other person says—that is, if he appointed me as an agent—it is forbidden for me. Why is it forbidden? Because if I fulfill his agency, then in effect he benefits from me by the very fact that I fulfilled his agency, whether I set aside from mine or from his. But if he did not appoint me as an agent, then there is no such benefit that I acted in his agency, and the benefit of the produce is not a benefit because it is like driving away a lion. Therefore I am permitted to do it. Okay, that is the Ritva’s claim. “Our rabbi of blessed memory wrote”—the Ritva’s “our rabbi” is usually the Ra’ah. Sometimes it is Nachmanides, but I think with Nachmanides it is “our great rabbi” or something like that; he has some difference in formulation. “But if he said to him: set it aside, it is forbidden.” He says: this is talking about “anyone who sets it aside will not lose.” If he says to him “set it aside,” then it is forbidden. Why is it forbidden? Because he is performing his agency. “Even when he sets aside from the owner of the pile’s produce on behalf of the owner of the pile, as is proven in the Talmud.” And that is what we see in the Talmud: if he appointed him as an agent—if he says to him “set it aside”—then even if he sets it aside from his own produce, it is forbidden to me. Why? Not because I gained produce—I didn’t gain produce, it is from his—but because he fulfilled my agency. Okay. “And this is what our rabbi of blessed memory inferred: and we learn from here that one who is forbidden to benefit from his fellow may not appoint him as an agent, and even if it were his agency in a matter such as assigning the terumah designation, for which people do not normally take wages, it is still forbidden, because once he said to him and he did it, he benefited him against his will. And where he says: whoever hears my voice should set it aside, it is forbidden for this person to set it aside because he is performing his agency, for this kind of formulation is agency, as we learned in tractate Gittin regarding a bill of divorce: whoever hears my voice should write a bill of divorce for my wife—they write and give it to him. But if he said: anyone who sets it aside will not lose, that is not his agency at all, and in the analogous case of one forbidden to benefit it is permitted, and so our rabbi of blessed memory wrote later.” He says there are three levels. If he says to him “set it aside,” then he appointed him as an agent. It does not matter from which produce he takes; it is forbidden because I benefited from him. If he says “whoever hears my voice should set it aside” and you go and set it aside, there too it is forbidden. Why is it forbidden? That too is appointment as an agent. It is appointment as an agent indirectly, and whoever ends up setting it aside turns out to be the agent whom I appointed. But practically, I did appoint you. That is more far-reaching, because in the end I did not appoint you specifically and you just responded, but as long as you functioned as my agent, then there is benefit here. Okay? But if he says “anyone who sets it aside will not lose,” then not “whoever hears my voice should set it aside,” but rather: whoever wants to set it aside, I have no problem with that. Then it is fine. Okay. Now here there is room—so why is it fine? Because it is not agency at all. So what is it? Here one has to discuss. So maybe it is by the rule of acquisition, that’s the simple understanding—it is by the rule of acquisition. Then there is no appointment as an agent, because in the first two cases there really is explicit appointment as an agent. So this is by the rule of acquisition. But that too is a little difficult. What difference does it make if it is by the rule of acquisition? At the end of the day I am acting as his agent. True, by the rule of acquisition I can act as his agent even without appointment, but in the end I am acting as his agent and doing some sort of work for him. So even if it is by the rule of acquisition, as a matter of logic I don’t see room to distinguish between that and “whoever hears my voice should set it aside.” What difference does it make? In the end you were my agent and acted in my name. So what if I didn’t appoint you? Why is that important? The essence is not that I didn’t turn to you directly. Even in “whoever hears my voice should set it aside” I didn’t address you directly; I said whoever hears should set it aside. From the standpoint of reasoning it is very hard. There is a halakhic difference, but from the standpoint of reasoning it is very hard to distinguish between “whoever hears my voice should set it aside” and the rule of acquisition. What’s the difference? In both cases you act in my name, even though I did not appoint you directly. Therefore I tend to think that in the Ritva here what is written is what I said. Namely, it is only consent. Meaning, “anyone who sets it aside will not lose” means I have no objection to someone setting it aside. That’s what I’m saying. If I have no objection to someone setting it aside, it is true that this also enables the rule of acquisition. If I say I have no objection, that means I am not insisting on the fact that I lose a commandment—that was the problem above. But it seems to me that if you distinguish this from “whoever hears my voice should set it aside,” then it seems to me that this is not talking about the rule of acquisition, but rather saying: you may set aside terumah, anyone who wants may set aside terumah, I have no objection. But you are not doing it as my agent, not even by the rule of acquisition. Because as long as you are acting in my name, there is some sort of benefit being given. So that already is evidence that one can set aside terumah entirely without agency. Without acting for someone’s benefit and without anything. You just need me not to object. That’s all. This of course sharpens very much the point from the previous class. So how did the Talmud even want to derive the law of agency from terumah? After all, for terumah you don’t need agency. Consent is enough. And if I’m right about the Ritva here, then this is clear evidence that consent is enough. In fact this is evidence from the Talmud already, not just from the Ritva, because the Talmud itself distinguishes between “anyone who sets it aside will not lose” and “set it aside,” or “whoever hears my voice,” where we see in Gittin that that too is appointment as an agent, otherwise the divorce document would not be valid. So what do we see from here? We see that for setting aside terumah, agency is not needed at all. Consent is enough. So I come back to our issue: how can the Talmud say that if he set it aside then his terumah is terumah, if the law of agency is not needed at all? It could be that his terumah is terumah because I did not object. And how do you learn from here that a person’s agent is like himself—that in a place where my own act is needed, someone else can act as my empowered representative? How do you know that? Perhaps this is only in terumah, and in terumah indeed you don’t need my act; you only need that I not object. Fine? Now true, it says: one who sends an agent and he set it aside, his terumah is terumah. That is in our Mishnah, yes? But still, from “one who sends an agent, his terumah is terumah” there is no proof that agency works. The only proof is that if I don’t object, you can set it aside. And the fact that I appointed you as an agent is enough to show that I don’t object, even if there were no rule that a person’s agent is like himself. Therefore I still think that from the first clause the Pnei Yehoshua is right that one could not have learned the law of agency. And so this strengthens even more the Pnei Yehoshua’s inference, even though his difficulty is not really a difficulty, as I said—they mentioned it in passing. But his claim is a good one: from the first clause one could not have learned the law of agency. From the latter clause one can, because if he reduced by ten or increased by ten—there you cannot tell me that it works simply because of consent. That is only because it is a benefit for him, and that is either by the rule of acting for someone’s benefit or by agency, and then you can prove the law of agency. And by the way, even if it is by the rule of acting for someone’s benefit, it can still work, because that rule too proves to me the law of agency. It’s just that in the case of acting for someone’s benefit, where it is a benefit, the law of agency applies even without my appointing him. It doesn’t matter. But that is only a subsection within the law of agency, certainly if you understand that acting for someone’s benefit is based on agency. Meaning, what I draw from the first clause is because in the first clause—it’s not because in the first clause this is the rule of acting for someone’s benefit. In the first clause there may be neither the rule of acting for someone’s benefit nor agency; it may be just simple consent. But if he reduced by ten or increased by ten, then it is not simple consent but either acting for someone’s benefit or agency. The Rashba there too in Nedarim writes as follows: “As for that which they asked: one who sets aside terumah from his own produce on behalf of his fellow—does he need his knowledge or not? It is difficult for me, because agency is not based on whether he is pleased or not pleased, but is a decree of Scripture: ‘you’—with your knowledge; so too your agents—with your knowledge.” So what is he saying? He says: “anyone who sets it aside will not lose,” and since this is a benefit for him, it is fine. Why should I care whether this is a benefit or not? You need to act as my empowered representative. “So shall you too set aside” includes your agent. The Rashba understands the verse “so shall you too set aside” as teaching a double lesson: first, that agency is required, and without agency the terumah is ineffective; and second, that agency is effective. A derivation to be stringent and a derivation to be lenient. Right? Meaning, on the one hand he learns from there, “so shall you too set aside,” that agency is required; without agency you cannot set aside for me, consent is not enough. On the other hand he says yes, but agency really is effective. Meaning, if I appoint an agent it helps. Therefore one can derive the law of agency from here. One could have said no—the derivation there is only lenient: if you appoint an agent, that is fine. But in principle agency is not necessary. That is what seems to emerge from the Ritva we saw above. Agency is not necessary; consent is enough. If you appointed an agent, that is also fine—meaning, a person’s agent is like himself. That does not mean agency is required. The Rashba understands that from here we learn that agency is also required. Now why is that really so? Why does the Rashba say that? I think the simple understanding is that if agency were not required, then the Torah would not have innovated that agency works. We already spoke about this—it would be like an ape’s action. Meaning, in the end, if agency is not required, then in the end it’s like a guardrail: it happened, he set aside the terumah. So why would the Torah have to innovate that a person’s agent is like himself? The lenient innovation depends on the stringent innovation. Meaning, if in terumah agency is not required, then the Torah would not have needed to innovate that agency works. If the Torah innovates that agency works, then from that we understand that the Torah is also saying that agency is required. It must be either you or your representative, because otherwise the law of agency would not have been innovated here at all. That is how the Rashba understands it. In any case, for our purposes, it seems not like the Ritva, because according to the Rashba you really need to be the representative of the owner of the produce, meaning mere consent is not enough. “And know, for after all if one says to his fellow, ‘go and set aside terumah for me,’ and he went and found it already set aside, according to the one who says we do not presume an agent performs his mission, we say at the beginning of the first chapter of Hullin that it is not set aside. For perhaps another person heard and went and set it aside. And the Merciful One said: ‘you, and also you’—just as you do so with your knowledge, so too your agent with your knowledge. And even though there he is pleased that his pile should be fixed.” There it says: I appointed an agent to set it aside. Fine? Now I didn’t see what he did. I went there and found that it was already set aside. Fine? I don’t know whether it was my agent or not my agent. Now it depends: if there is a presumption that an agent performs his mission, then I appointed him as an agent and he probably also set it aside. So if it was set aside, then probably the agent is the one who did it. But there is an opinion there, a side in the Talmud, that there is no such presumption. Not that he does not do it, but there is no presumption that he does. You can’t rely on that presumption. If so, then there is a concern that someone else set it aside. Why? Because he heard that I want someone to set it aside, so he volunteered and did it for me. Not just some wicked person; rather he understood that that was desirable. And the Talmud says that this does not count as terumah. Why? Why is it not terumah? After all, I really want it set aside, so what is the problem? The Rashba says: from here there is proof that “so shall you too set aside” includes a stringent innovation as well, not only a lenient one—that it must be my agent and with my knowledge. If someone did it not with my knowledge, even if it is a benefit for me and even if I said I wanted it, that does not help. Against the Ritva. How would the Ritva learn that passage in Hullin? Here it seems like decisive proof, no? No, it is not decisive proof. Because if I told someone “go set aside terumah for me” and he set it aside for me, to whom does the commandment belong? To me—because a person’s agent is like himself. True, it is preferable to perform the commandment oneself rather than through an agent, and if it was done through an agent my commandment is lesser, but still I receive reward for the commandment. It’s not like I did it myself, but I still receive reward for the commandment, right? Now when I said to someone to go and set it aside as my agent, I did not waive the right to the commandment. Now if you come and set it aside not as my agent but only on the basis of consent, who says I agree to that? Therefore the Ritva need not be fazed by that point. He says a person’s consent is enough, but here, unlike the Rashba, there was no consent. The fact that he told someone else to set it aside does not mean he thereby waived his right to the commandment. Because if the agent had set it aside, then I would have had a commandment. I did not say that I do not want the right to the commandment. So now someone else cannot come and set it aside merely because I’m pleased. Okay? Because I want the commandment. Therefore there is no proof here against the Ritva. The Ritva can manage with the Talmud in Hullin. But the Rashba, according to his own view, for some reason does see this as proof. And he understands that consent really is not enough; it has to be an agent. It may be that the Rashba really holds that there is no concept of mere consent at all; the whole discussion here is whether it is the rule of acting for someone’s benefit or agency. Then if someone comes and sets it aside even though I sent someone else, he is operating by the rule of acting for someone’s benefit. If he is operating by that rule, then whose commandment is it? Presumably mine. Because that is a kind of agent; it doesn’t matter what kind of different sort of agent, but he is authorized on my behalf. Just as the legal consequences apply to me, the commandment too accrues to me, just as if I had sent an agent—only this is the rule of acting for someone’s benefit; it’s agency without appointment. Fine, but still he acts in my name. Therefore the Rashba says: there in that Talmudic passage we see that I did not consent, even by way of the rule of acting for someone’s benefit. So then why is it not terumah? Because specifically agency is required; the rule of acting for someone’s benefit is not enough. Specifically agency is required. Okay? In any case, we see in the Rashba that consent is not enough, whether the Talmud assumed that or whether the Talmud resolved it. But we see that consent is not enough. According to the Ritva, consent is enough; there is no proof from the Talmud in Hullin, because there the Talmud said that I want either an agent or someone acting on my benefit, but not someone who does it merely on the basis of my consent, because then I have no commandment at all, okay? And therefore it is not terumah. And the Rashba says: fine, then what do we see here? The Rashba asked a question, right? The Rashba says: yes, what is the Talmud saying here? The Talmud here says: why should it matter whether he is pleased or not pleased? You must be an agent. Even the rule of acting for someone’s benefit is no help here, certainly not mere consent. You must be an agent: “so shall you too set aside” includes your agent. So what difference does it make whether it is a benefit for him or not a benefit for him—why is that relevant? There is a stringent law that it must be an agent; this is not only a leniency that an agent too can set aside. It is also a stringency: only an agent can set it aside, either I do it or an actual agent. Even the rule of acting for someone’s benefit does not help here, according to the Rashba. Very far-reaching. He says not only that consent alone is not enough—even the rule of acting for someone’s benefit does not help. It must be that I appoint someone as an agent here, like an agent for commandments, as we discussed, yes? If I send an agent to put on phylacteries or to sit in the sukkah on my behalf, it doesn’t work. Why doesn’t it work? Because I have to do it with my own body. So agency won’t help there. The Rashba understands setting aside terumah in the same way. It is a commandment of one’s person, only agency works. That is learned from “so shall you too set aside.” “And one can say,” says the Rashba, “that one who sets aside from his own produce on behalf of his fellow is different, for we require his agency and his knowledge only when he sets aside from the owner of the pile’s produce on behalf of the owner of the pile. But when he sets aside from his own produce on behalf of the owner of the pile, since it does not belong to the owner of the pile, we do not require his actual agency, and the matter depends only on whether it is a benefit for him, and one may act for a person’s benefit in his absence. But it is not a benefit for him, because his own commandment is preferable to him, as appears correct to me.” So he says this: if I set it aside from my produce, then in fact I do not need to be his agent. Everything written in “so shall you too set aside” includes your agent—set aside from your produce, only either you or your agent. But if someone else sets aside from his own produce for yours, he need not be your agent. Here the rule of acting for someone’s benefit is enough—notice, not mere consent, but the Rashba says by the rule of acting for a person’s benefit in his absence. Here the rule of acting for someone’s benefit works even without agency. But if it is from the owner’s produce, then only agency. Very interesting. Meaning, the Rashba is basically saying: until now I assumed there is no difference between acting for someone’s benefit and agency, except that acting for someone’s benefit is agency without needing formal appointment. And the antithesis of both is mere consent, where you need not be my representative at all—not by way of acting for someone’s benefit and not by agency. For the Rashba, the whole game is between acting for someone’s benefit and agency. A bit like what is implied in the Pnei Yehoshua that we saw in the previous class: the difference between acting for someone’s benefit and agency. So what is the difference there? Even if you act as my representative under the rule of acting for someone’s benefit, that is still not the same thing. It is not just agency without empowerment, without appointment; rather it is a different mechanism. Therefore where one sets aside from another person’s produce on behalf of that same person, the rule of acting for someone’s benefit won’t help. Meaning, even if the person says: I have no problem, I waive the right to the commandment—it still won’t help by the rule of acting for someone’s benefit. It must be agency. A person’s agent is like himself; one who merely acts for his benefit is not like himself. Only if I set aside from mine on behalf of my fellow—then what is the problem? Setting aside from mine I can do on my own; I don’t need him. So I don’t need to be his agent; it is enough if it is by the rule of acting for his benefit. Meaning, all along I assumed there is no difference between acting for someone’s benefit and agency. The difference is only that with acting for someone’s benefit, if it is a complete benefit, then there is agency even without appointment. We will see this in the next class—that is Rabbi Akiva Eiger’s view—that acting for someone’s benefit is really full agency, only where it is a complete benefit you don’t need appointment, that’s all. But when you act, you act as my actual representative, just like an appointed agent. If that were so, then even if I set it aside from your produce—if you say you waive the commandment, it doesn’t bother you—then it remains a complete benefit, right? If it is a complete benefit, why should I not be able to do it by the rule of acting for someone’s benefit? What’s the problem? I am entirely your agent. If an agent works, then the rule of acting for someone’s benefit should also work. What is the difference? Will you say it is not a benefit? No, it is a benefit. He says: no problem, anyone who sets it aside will not lose. No—that will not help according to the Rashba. Why not? Because the Rashba understands that acting for someone’s benefit itself is apparently a different mechanism from agency. You are less my representative. You are less my representative. It’s not just that you are the same except that where it is a benefit you don’t need appointment. No. Acting for someone’s benefit is not a mechanism of agency; it is a different mechanism. And in terumah you specifically need to act as my agent regarding my produce. Regarding someone else’s produce—where I set aside from my produce on behalf of someone else’s produce—there the rule of acting for someone’s benefit is enough, because in essence I am not supposed to be your representative. The rule of acting for someone’s benefit does not work from your authorization. And if so, that brings back through the back door the question of consent. Because it may be that the Rashba understands that the entire concept of the rule of acting for someone’s benefit is really nothing other than what I earlier called consent. The rule of acting for someone’s benefit is not a mechanism of agency, just without appointment. No. It is another mechanism. It is a mechanism that operates only where I am not really needed. In such a place, if this is a benefit for me, someone else can come and act not as my representative—he just does me a favor, he works in my place. He does not work as my representative. What I called consent—perhaps for the Rashba that is what is called acting for someone’s benefit. It is not a mechanism of agency. But in practice it turns out that this mechanism does not operate when we are dealing with the produce of the owner of the pile, where I set aside from the owner of the pile’s produce for his produce. It does operate when I set it aside from my produce. Whether the Rashba understands this by the rule of acting for someone’s benefit as true agency, or whether he understands it as consent. Then it may be that regarding my produce the Rashba agrees with the Ritva that consent also helps. What he calls acting for someone’s benefit means consent. And if that is so, then even the Ran and Rashi—all that we read, “one may act for a person’s benefit in his absence,” where they brought the rule of acting for someone’s benefit—they are not necessarily against the Ritva. Or perhaps that is what they call the rule of acting for someone’s benefit. “Acting for someone’s benefit” means you don’t need agency. You act, and if the other does not object, it is fine. That is called the rule of acting for someone’s benefit. Acting for someone’s benefit is a kind of agency, no? Like an agent. Well, what an agent does, someone acting for another’s benefit can also do. In the Ran it is harder to say that, I agree, and I’m not entirely sure of it anyway. You act like his agent, but by the rule of acting for someone’s benefit it is an alternative route. In Rashi, where it is not mentioned at all that it is like agency, it is easier to say it. Again, relative to what? We already mentioned this matter, and in the next class we’ll go into it more—the question whether acting for someone’s benefit is based on agency or not. The medieval authorities (Rishonim) are divided on this. Here we saw it regarding the princes and minors there in the later Talmudic discussion. Perhaps here that is exactly the argument. The Rashba understands that acting for someone’s benefit is not based on agency. And acting for someone’s benefit is not an agent who was appointed without formal appointment. No, he is not an agent at all. Acting for someone’s benefit is the possibility, based on mutual responsibility, that someone else can act for me without being my agent, not my representative; he can act for me because anyone can do it in my name so long as it is only a benefit for me. Fine? And that is the concept of acting for someone’s benefit not being based on agency. Whoever says that acting for someone’s benefit is based on agency is essentially saying that acting for someone’s benefit is simply a mechanism of agency, only without appointment. In a place where consent is enough, then you don’t need the rule of acting for someone’s benefit either; nothing is needed, consent is enough. Suppose I consent—say in a place where there is a commandment, yes?—and I say: leave it, I don’t care about the commandment in setting aside terumah, fine? Will the rule of acting for someone’s benefit work? If acting for someone’s benefit is not based on agency, there is room to say that it won’t work in such a situation. It works only where the matter is an objective benefit. Any person understands that this action is entirely beneficial; there is no aspect of obligation in it. Then the rule of acting for someone’s benefit applies. But if there is something that has both an aspect of benefit and an aspect of obligation, only I say that for me the obligating aspect doesn’t matter—I don’t care that I lost a commandment here—then the rule of acting for someone’s benefit will not work here. It will work only if consent is enough, but the rule of acting for someone’s benefit will not work here because it is a kind of agency, fine? And that may be the practical difference. Now there is a Talmudic passage in Bekhorot 11: Rav Shizvi said in the name of Rav Huna: one who redeems the firstborn donkey of his fellow, the redemption is valid. My friend had a donkey born, congratulations—a four-legged one, I mean—and there is the law of redeeming a firstborn donkey, okay? Now I jumped in and redeemed his donkey, whether with my own money or not, with his money, I redeemed his donkey. So it says that the redemption is valid, meaning it works, it takes effect. The Rashba in Kiddushin 23 learns from this as follows: “And similarly in that chapter, where they asked whether one who sets aside terumah from his own produce on behalf of his fellow needs his knowledge or not”—that’s the Talmud in Nedarim we saw earlier—“and it was not resolved. And they did not resolve it from what Rav Huna said in the first chapter of Bekhorot: one who redeems the firstborn donkey of his fellow, the redemption is valid.” Why didn’t they resolve it from there? Why didn’t they settle it from there? There you see that you can give priestly gifts belonging to your fellow in his name without his permission. “One who redeems the firstborn donkey of his fellow” means without his expressing knowledge, presumably; that’s the simple meaning. Otherwise what, he appointed me as an agent? Then what is the novelty? Well, maybe you can force some explanation. True, but then you need to make a forced reading, and the Talmud did not make such a forced reading. In Nedarim the Talmud made such a forced reading, analyzed, and reached an interpretation. Why here does it not analyze? Because here that does not bother it. Why does it not bother it? Apparently because even if you simply jump in and redeem it, that is fine. The Rashba says: so why did they not resolve from here the doubt in the Talmud in Nedarim? The Rashba says: “And the reason there too is that they wanted to resolve only from a Mishnah or a baraita.” The Rashba says, in truth, it is similar. Really they could have resolved it from here. But there they wanted to resolve the matter only from some Mishnah or baraita, and here it is an Amoraic statement, so they didn’t want to. What do we see from the Rashba’s words? Two things. First, that redeeming a firstborn donkey really is similar to terumah. And not only that, but from here one can really resolve the doubt there. And as a matter of law, a person really can set aside on behalf of his fellow without his knowledge, because it is similar. The fact that the Talmud there did not bring this as a resolution is only because it was looking for a resolution from tannaitic sources, that’s all. But on the principled level, for us who now come to rule Jewish law, one really can resolve it from there. Now note: this is the Rashba. Remember, the Rashba explained that the Talmud in Nedarim is talking about one who sets aside from his own produce on behalf of his fellow, right? Because if it were from his fellow’s produce, you have to be an agent. Only when it is from his own produce is there a discussion in the Talmud whether his fellow’s knowledge is required or not, right? About that he says it should be resolved from one who redeems his fellow’s firstborn donkey. Meaning, clearly it is talking about the redeemer redeeming it with his own resources, not his fellow’s, because otherwise what? There is no connection. Right? It couldn’t work. Now Tosafot in Bava Kamma 68 also writes this way, that it is talking about one who redeemed it with his own resources, but he argues that one cannot prove from the firstborn donkey to terumah. Why? Look at the Keren Orah. The Keren Orah in Nedarim writes as follows: “The Mishneh LaMelekh of blessed memory there wrote that the question is resolved from the fact that one may redeem his fellow’s firstborn donkey without his knowledge, and he brought this in the name of the Ritva of blessed memory.” And also the Rashba, as we just saw. In principle it is indeed resolved; the Talmud did not bring it because it wanted tannaitic sources, but really it is the same thing and one can resolve it from there. “And I also did not understand,” says the Keren Orah, “how one can resolve from there to here. For there it is different, because one may redeem even entirely without his knowledge, meaning against his will. But here, in terumah, entirely without his knowledge one certainly cannot set it aside; rather only where it is not known to him are we in doubt whether it is a benefit for him or not. Therefore Tosafot of blessed memory wrote in Bekhorot that redemption of the firstborn donkey is not similar to one who sets aside from his own produce on behalf of his fellow, because regarding terumah it says ‘so shall you too,’ just as you are with your knowledge, so too your agent with your knowledge, and that means that we require the owner’s will. But regarding redemption of the firstborn donkey, we do not require the owner’s will at all, and one may redeem it even against his will, like ordinary consecrated property.” What is he saying? He says the firstborn donkey is different, because you can redeem a firstborn donkey even against the other person’s will. I don’t know whether he means even with the other person’s property or only with your own, but at least with your own—we are speaking only of your own—so with your own you can redeem even against the other person’s will. In terumah you certainly cannot do that against the other person’s will, even if you set it aside from your own produce. Why not? Now note his reasoning: because it says “so shall you too set aside.” But the Rashba himself explained—and this is a challenge to the Rashba, and also to the Rashba—the Rashba himself explained that it is not like that. “So shall you too set aside” speaks only about the situation where I set aside from his produce for his produce, then I need to be an agent. The stringent law learned from “so shall you too set aside”—that there must be an agent, not merely that it is possible by means of an agent but that it must be by means of an agent—right? If I set aside from mine for his, then I do not need to be an agent. That is all the Rashba says there. So what do you want? Then in terumah too it is like the firstborn donkey, so what is the difference? No. Even if in terumah formal agency is not needed, still his agreement is needed. He needs not to object—agreement. He must not object, and let’s say “anyone who sets it aside will not lose,” right? Explicitly in the Talmud, he must say “anyone who sets it aside will not lose.” Why? If this could be done even against his will as with the firstborn donkey, then the Talmud would not need to say “anyone who sets it aside will not lose”; after all I can do it even against his will, certainly if I set it aside from my own produce. We see from the Talmud that is not true. According to the Rashba, there is indeed a difference between setting aside from another person’s produce on behalf of that same person and setting aside from my produce on behalf of my fellow. But in both cases it is clear that I cannot do it against his will. If I do it from his produce, I really need to be an agent. If I do it from mine, then either it is by the rule of acting for someone’s benefit or by consent—we saw two possibilities—and still at least consent is needed. If he objects, it cannot be done even if it is from mine. With redeeming a firstborn donkey it is not like that. There you can do it even against his will. If so, then the Keren Orah is right despite the Rashba’s distinction. He is right in his challenge to the Rashba despite the Rashba’s distinction. Because even though the Rashba says that when I set aside from my produce on behalf of my fellow’s, formal appointment as an agent is not needed—“so shall you too set aside” is not talking about that—it still does speak at least in the sense that his agreement is needed. You don’t need me to be his agent, but you do need him not to object; you need consent. And for the redemption of the firstborn donkey, if the Keren Orah is right, you don’t even need that; I can do it against his will. So why are you bringing me proofs from redeeming a firstborn donkey to that case? But the Rashba and the Ritva did bring such a proof, and also Nachmanides. That’s what he claims—never mind the exact proof right now, but that’s what he claims. Clearly you don’t need the donkey owner’s appointment as an agent, yes? Now of course, if all these medieval authorities (Rishonim) did bring the proof—that’s what he says, look. “The Mishneh LaMelekh of blessed memory was puzzled by the words of Tosafot, and I do not know why. Rather, what he wrote there, that he asks whether knowledge is required because it says ‘you’—just as you, so too your agent with your knowledge—and here Tosafot of blessed memory wrote that regarding one who sets aside from his own produce it was not said ‘so too your agent with your knowledge,’ and so too the Rashba of blessed memory wrote”—the same Rashba we saw—“that we do not require that he command him. Nevertheless, the essence of their words is compelling, for certainly against his will it is not terumah. Even according to the Rashba it is clear that one cannot set it aside against his will. But redemption of the firstborn donkey can be done even against his will, and if so we do not learn from one who redeems the firstborn donkey to this.” So why are you bringing proof from one who redeems a firstborn donkey to terumah? Even if we accept that there he redeems with his own resources and in terumah, from one’s own produce, agency is not required, still agreement is required, whereas for redeeming a firstborn donkey it is not. So one who does not bring proof—fine. But those who do bring proof, what then? Tosafot in Bekhorot really says one cannot bring proof; he makes this distinction. One cannot bring proof. But the Ritva and Rashba and all the others who did bring proof—and in a moment we’ll see that Maimonides too, according to some commentators, holds that way—those who did bring proof, why do they really bring proof? One can say one of two things. Either say that even regarding redeeming a firstborn donkey, one cannot do it against his will. True, you don’t need formal appointment as an agent, but either by the rule of acting for someone’s benefit or simple consent is enough. But against his will—who says it is possible? The whole discussion in the Talmud there, one who redeems a firstborn donkey without his knowledge, does not necessarily mean against his will, as Tosafot understood, but those authorities say: not against his will, but where there is consent or at least no objection. The question is whether the absence of objection is enough. That is one possibility. A second possibility is that they brought proof from redeeming a firstborn donkey to terumah because even if there is a difference, and with a firstborn donkey you can do it against his will whereas in terumah at least consent is needed, still at least you can prove that agency is not needed. That is what they wanted to prove: that agency is not needed; consent is enough. True, there is a difference between redeeming a firstborn donkey and terumah in that with the firstborn donkey not only is agency unnecessary, even consent is unnecessary—you can do it against his will—and in terumah consent is needed. But if it were necessary that you be the owner’s agent, then both in redeeming a firstborn donkey and in terumah you would need to be an actual agent. From the fact that with redeeming a firstborn donkey an agent is not required, you see that agency is not required. Ah, but in terumah consent is needed—true; with the firstborn donkey it is not needed and in terumah it is. But still one can learn from the firstborn donkey that agency is not needed. In short, “so shall you too set aside”—what can be learned from it partially, yes? Meaning, if it is from the owner’s produce, then actual agency is required. If it is from my produce, then still the verse “so shall you too set aside” is relevant. True, agency is not required, but the owner’s consent is. With redeeming a firstborn donkey, where there is no parallel verse there, perhaps even consent is not needed. But in practical terms one can learn from redeeming a firstborn donkey that agency is not needed. Not needed. Maybe consent is, but agency is not. So the Kehillot Yaakov in Nedarim in fact assumes that the dispute is over whether redeeming a firstborn donkey works against the owner’s will—the second possibility I mentioned. Those medieval authorities who learn from redeeming a firstborn donkey to setting aside terumah understand that there too, in redeeming a firstborn donkey, it means that he did it without objection. You cannot do it against his will; rather, without objection. And since there the absence of objection suffices, so too in terumah it suffices. As I said earlier, I’m not sure. It may be that even according to the Keren Orah or according to Tosafot, who says that even against his will it works, one can still learn from it that agency is not needed. The fact that knowledge is needed is true, but as for agency, the fact is that it works—priestly gifts do not require that you be the owner’s agent. Maimonides there writes as follows. He says: “Five may not set aside terumah, and if they did, the terumah is not terumah,” chapter 4. “And if they did, their terumah is not terumah: the deaf-mute, the mentally incompetent, the minor, and the gentile who set aside for that of an Israelite, even with his permission, for ‘so shall you too set aside’ includes your agents—just as your agents are members of the covenant, so too you are members of the covenant; just as you are members of the covenant, so too your agents are members of the covenant. And one who sets aside that which is not his without the owner’s permission. But one who sets aside from his own produce on behalf of others—this is terumah, and he has fixed their produce.” Apparently even without agency. He does not write, “provided that he made him an agent,” right? If he sets aside from his own produce, he need not be an agent. Just as the Rashba says. “And the right of assigning the benefit is his, to give it to whichever priest he wishes.” Therefore if he is an agent, then the right of assigning the benefit is his. Okay—if he is not an agent, sorry, then the right of assigning the benefit is his. So the Kesef Mishneh asks what Maimonides’ source is, and says: “It appears to me that our master relied on what we say in the first chapter of Bekhorot: Rav Huna said, one who redeems his fellow’s firstborn donkey, the redemption is valid. And he brought this law in chapter 12 of the Laws of First Fruits, law 13. If so, one can learn from here that just as there we say that one who redeems with his own resources and without the knowledge of the donkey owner, his redemption is valid, so too regarding terumah, one who sets aside from his own produce on behalf of his fellow without the knowledge of the owner of the pile, his terumah is terumah. And even though this question was not resolved in its own place, why did they not resolve it in the Talmud from the firstborn donkey? That is not a difficulty, for we have many such cases in the Talmud: questions not resolved in their own place but resolved elsewhere. And similarly Tosafot wrote in the first chapter of Kiddushin,” as we saw, “that Rav Huna said,” etc. “And even though in the chapter ‘There is no difference for one who is prohibited’ the question was not resolved, nevertheless it is the Talmud’s way in many places not to resolve except from a Mishnah or a baraita.” They wanted to resolve it from a Mishnah or baraita. You ask about practical Jewish law? The sugya in Bava Kamma resolves it. “And so too the Ran wrote in the chapter ‘There is no difference for one who is prohibited.’” So Maimonides too joins all those medieval authorities who resolved the Talmud’s question: whether one can set aside without the other’s knowledge, when it is with my produce. One can set aside without his knowledge or not. But if it is with his produce, then actual agency is required. That is what one sees in the Talmud. And if so, notice, then if I return to our Talmudic passage—you remember in our Talmudic passage what the Pnei Yehoshua remarked, that from the first clause of the Mishnah, where we see that if the agent set it aside his terumah is terumah, the Pnei Yehoshua says one cannot derive the law of agency from there. Because one could have said that it works by the rule of acting for someone’s benefit or by consent. Fine? That is no longer true. Why is it no longer true? Because there it is talking about where he set it aside from my produce for my produce. And there certainly he must be a full-fledged agent according to Jewish law. Right? The whole discussion whether consent or the rule of acting for someone’s benefit is enough applies only if I set aside from my own produce to fix your untithed produce. But still, says the Pnei Yehoshua, fine—but perhaps from the first clause of the Mishnah one still could not have learned it. Therefore they brought the latter clause. After we learn from the latter clause that he has to be an agent, now we return to the first clause, and even if he does not alter from the owner’s intention, still without his being an agent it would not be terumah. And that we learn from an Amoraic statement. We learn it from an Amoraic statement that says that regarding one’s own produce consent is enough, but regarding the other person’s produce—if I set aside from his produce for his own untithed produce—then he must truly be an agent. So that in the final analysis, even in the first clause of the Mishnah we are dealing with real agency. But one could not have brought proof from there, and therefore they brought the latter clause. Okay. Tosafot in Gittin 66 says: “And that which we say, ‘whoever hears his voice should write a bill of divorce,’ applies specifically to ‘whoever hears.’ But if he said, ‘anyone who wants to write a bill of divorce for his wife may write,’ no, for in the case of one prohibited from benefit, in such a case it is permitted, as we say in Nedarim: one prohibited from benefit by his fellow may have his terumah set aside for him, and we establish it in a case where he said, ‘whoever wants to set aside terumah may come and set it aside.’ The reason is that ‘whoever wants’ is not like a full agent, for he leaves the matter to his discretion. But ‘whoever hears my voice should write’ is a full agent.” Right? That is what he says. There is a difference between “anyone who sets it aside will not lose” and “whoever hears my voice should set it aside.” And the proof is from bills of divorce, because if for a bill of divorce I say “anyone who writes will not lose,” the writing is invalid because he is not my agent. Fine? Or not by the law of “for her sake”—we talked about this Nachmanides, that what I need to tell the scribe is only for the law of “for her sake,” the issue of mere words, we spoke about that. But in any case I need to appoint the scribe, either as an agent or for the law of “for her sake.” Therefore “anyone who wants to write” is not enough. But “whoever hears should write” is an indirect appointment. And the same applies to setting aside terumah. “And if you ask, if so, how can his terumah be terumah, given that we require an agent? One can say that regarding terumah, mere disclosure of intention that he is pleased is enough; this is the implication in tractate Bava Metzia, chapter ‘These found items.’” What is written here? Even more far-reaching. It seems he is speaking also about terumah from your produce for your produce. Mere disclosure of intention is enough. Now I’m not getting into the sugya in Bava Metzia 22—it is a complicated sugya concerning unconscious despair, where this appears. I’m not entering that right now. But in the final analysis, the Ritva goes one step further. He claims that even in setting aside terumah from your produce for your produce, formal agency is not needed. Disclosure of intention is enough. Not only that, but it appears that disclosure of intention is enough and you don’t even need the rule of acquisition. Disclosure of intention means simply that I consent, that I have no problem with it. Because “anyone who sets it aside will not lose”—that is how he explains the Talmud on page 36—that “anyone who sets it aside will not lose” is also fine. Why are we forced to say that? Because otherwise, if you are my agent, then I profited from you. It must be that this is a situation in which you are not my agent at all, okay? And you are not my agent at all, and nevertheless the terumah takes effect. The Rashba says because you set it aside from yours. But the Ritva learns that the Talmud made no such distinction between whether it was from yours or from mine: disclosure of intention is enough. The question is whether that disclosure of intention operates by the rule of acquisition or because of simple consent. But what—a kind of agency? No, mere consent. No, you are not acting as my representative; I just don’t object. And that is unlike what is needed for a bill of divorce—“whoever hears.” No, there you need to be an agent. Without your being an agent, the scribe did not write for her sake, or did not write on my agency, and the divorce is invalid. But this is what he says: in terumah, “anyone who sets it aside will not lose” is also fine. Why is that also fine? After all, from bills of divorce you see that in such a situation he is not an agent, because the divorce document is invalid. So why is it valid in terumah? Because in terumah mere disclosure of intention suffices. What is written in “so shall you too set aside” means only that I reveal my intention that this is agreeable to me. A very great novelty emerges from this Ritva, a view we have not yet encountered until now: that in setting aside terumah, including from the produce of the owner of the pile himself, formal appointment as an agent is not needed. Disclosure of intention is enough. Then of course the Pnei Yehoshua becomes much stronger. Because in the first clause, where it says that the agent set it aside and his terumah is terumah, from that you cannot prove that a person’s agent is like himself; after all, disclosure of intention is enough. Therefore you need the latter clause of reducing by ten or increasing by ten, where you certainly need real agency. Okay? Then it turns out that in setting aside terumah, in practice, there is no stringent innovation of the Rashba, only the lenient innovation. You don’t need to be my agent for the terumah to take effect. True, if you appointed an agent it helps, but you don’t really need agency. The Rashba assumed that if agency isn’t needed, the Torah would not have innovated that agency helps—just an ape’s action; so why innovate it? The Ritva says no. The Torah innovated only the second innovation: that agency also helps. But in practice agency is not needed; disclosure of intention is enough. A very big novelty. Meaning, all the places where we speak about agency in terumah are voluntary. Just because the owner decided he wants agency, but in principle even if you are not my agent the terumah is effective. And simply, as I said, it does not even seem to be by the rule of acquisition. The agency comes from the force of “you.” What? The verse, that “you” gives him the agency. Yes, but I’m saying—the question is this. The Rashba says that from “so shall you too set aside” we learn a stringent innovation and a lenient innovation. A stringent innovation: that agency is required. And a lenient innovation: that agency works. The Ritva claims only the lenient innovation. Agency also works, but in practice you don’t need the agency; if you want, terumah can also be set aside without agency. Look at the Ran in Nedarim there later: “Here too, in a case where he says, ‘whoever wants to set aside terumah may come and set it aside,’ and in such a case it helps regarding terumah, for mere disclosure of intention that he is pleased is enough. But regarding one forbidden from benefit, it is not considered that he benefited him, since he did not explicitly make the other his agent.” Fine? So it works. “And it is not specifically where he says, ‘whoever wants to set aside terumah may come and set it aside,’ because if he said ‘whoever hears my voice should set it aside,’ that is full-fledged agency and is forbidden in the case of one forbidden from benefit, as we say in the chapter ‘One who vows’: whoever hears my voice should sustain—he is performing his agency. And we derive this matter in the chapter ‘Receive,’ that regarding a bill of divorce it is effective if he says, ‘whoever hears my voice should write a bill of divorce for my wife.’ Therefore it is specifically where he says, ‘whoever wants to set aside terumah may come and set it aside,’ for that is not full agency. However, when we say that for terumah at least it is effective, that is specifically when he says it in this wording, for this wording is intermediate. Therefore, although regarding one forbidden from benefit it is not agency, regarding terumah at least it is effective. But if he said, ‘anyone who sets it aside will not lose,’ it is possible that even regarding terumah it is not effective, for that is not as good a formulation as ‘may come and set it aside.’ And so too it is proven that if one says ‘anyone who supports is not losing out,’ and one person went and supported, he is not obligated to pay him, because he did not make him an agent at all.” If “anyone who supports my wife will not lose out,” and someone comes and supports your wife, you don’t reimburse him. I didn’t ask you to support her. Whoever supports her, good for him. You may support her—thank you. It sounds strange, but that’s what the Talmud says. But notice: the Ran makes a novel point here, introducing another formulation. He says this: one who says “whoever wants to set aside terumah may come and set it aside”—that is called disclosure of intention. It is not agency, and therefore in the case of one forbidden from benefit it is permitted to do this. According to the Ritva, “whoever wants to set aside terumah may come and set it aside” is actual agency; such a thing would be forbidden in the case of one forbidden from benefit. Only “anyone who sets it aside will not lose,” which is merely disclosure of intention and not agency at all, would be permitted in the case of one forbidden from benefit. Why is the Ran so insistent here? Because the Ran disagrees with the Ritva and claims that “anyone who sets it aside will not lose” cannot help with respect to terumah, because with respect to terumah mere disclosure of intention is not enough. Some degree of agency is needed in order for it to work, unlike the Ritva’s approach. So then what is the meaning of what the Talmud says there? After all, if you are forbidden from benefiting, then you can’t be his agent, right? So how is your terumah effective? You are not his agent, and for terumah you need an agent. He says: there is an intermediate formulation. The formulation that says, “whoever wants to set aside terumah may come and set it aside.” “Whoever hears my voice should set it aside” is full appointment as an agent. That is forbidden even in the case of one forbidden from benefit. Of course, that is effective in the laws of terumah because you appointed him as an agent, but for one forbidden from benefit it is forbidden because if you appoint him as your agent—him. The novelty of the Talmud there is: if you say “anyone who sets it aside will not lose,” that does not work in the laws of terumah, because it says “so shall you too set aside”; he has to be my agent. Okay? So it doesn’t work in the laws of terumah, and then it also won’t help for one forbidden from benefit because for the basic laws of terumah it won’t work. But there is a niche in which for the laws of terumah it will work, and yet it still won’t be considered benefit, and therefore even one forbidden from benefit is allowed to do it. What is that? The intermediate formulation. The formulation “whoever wants to set aside terumah may come and set it aside.” “Whoever hears my voice should set it aside” is real appointment as an agent. “Anyone who sets it aside will not lose” contains no appointment as an agent at all; it doesn’t help for terumah. “Whoever wants to set aside terumah may come and set it aside” is an intermediate formulation. What does that mean? I am basically saying to you: I’d be glad if you set it aside, but you are not acting as my full agent. In the laws of one forbidden from benefit, this is not called that you benefited me. But from the standpoint of the laws of agency, there is some dimension of agency here, and that is good enough for setting aside terumah. Why does he do all this pilpul? In order to gain what the Ritva cannot gain. Because the Ritva says “anyone who sets it aside will not lose” is also good for terumah. But if that too is good, then what is “so shall you too set aside”? Just simple disclosure of intention? Obviously that is self-evident; for that I do not need “so shall you too set aside”—that the owner’s disclosure of intention is needed so that I can set it aside. That is obvious, at least from his produce. Therefore the Ritva is pushed into saying that what you learn from “so shall you too set aside” is that disclosure of intention is needed in terumah, unlike redeeming a firstborn donkey which can be done against his will. That, according to the Ritva, is the innovation. Okay, but in practice there is no stringent innovation of the Rashba at all. Only the lenient innovation that an agent is effective. There is no stringent innovation that agency is required. The Ran says that cannot be. It is not reasonable. Clearly in “so shall you too set aside” there is some stringent innovation saying that mere disclosure of intention is not enough; some dimension of agency is needed. Maybe a weak kind of agency of one sort or another, but some dimension of agency is needed. The innovation is that such weak agency is also enough; that is the stringent innovation. And therefore in one forbidden from benefit, if he is appointed as an agent of that sort—a weak agent—that is fine. It is not called that he benefits the owner. Because now the owner does not profit money from him; he is doing his agency—but a weak sort of agency like that is not considered… Like all the medieval authorities (Rishonim), in different ways, are twisting around this question of how much of a stringent innovation there is in “so shall you too set aside,” that agency is required, alongside the lenient innovation. There are views that say that with my produce you need full agency, only formal appointment as an agent—even acting for someone’s benefit won’t help. That is a true stringent innovation. There are medieval authorities who say that with my produce you need agency stringently, but with someone else’s produce even disclosure of intention or acting for someone’s benefit or disclosure of intention can work. There are medieval authorities who say that even with my produce a weak agency is enough—that is the Ran. And the Ritva says that even with my produce disclosure of intention is enough—that is the most extreme novelty of all. Okay, so why does he include “you” there? He takes the “you” and relies on it. Yes, but “also” is read as the minimum requirement: disclosure of intention is enough even with my own produce. And is that a collective stringency? Yes, anyone can come and set it aside as long as I don’t object. Maybe—but that is not the simple understanding. “So shall you too set aside” means that some kind of agency is needed here, at least on some level. Okay? The Ritva says no; the Ran says some sort of weak agency; the Rashba says full agency—on my produce perhaps not, but on your produce full agency. Okay? Now all this really comes back to our sugya, because in our sugya whenever we learn the law of agency from terumah, what are we learning from there? First of all, we learn that agency works. But if agency is not needed, then saying that agency works is not much of a novelty. After all, if agency is not needed, then of course if I appoint an agent it works, right? So with my produce, since it is talking about my produce, for most views the meaning is that full agency is indeed required. Fine? But there are views that say no, and then indeed only from the latter clause of the Mishnah can we learn that agency works here and that it is a novelty that agency works. Because admittedly, on the principled level agency is not needed, so there is no great novelty in saying that agency works. But if he reduced by ten or increased by ten, then it is a novelty, because the weak agency will not allow you to reduce by ten or increase by ten, and here only if there is actual agency can you function even with reducing by ten or increasing by ten. So even so, we see that the concept of agency was renewed here in terumah. Up to here. We’ll stop here. I’ll send you a summary that includes additional things we won’t get to. In the next class I’ll speak about the rule of acting for someone’s benefit.