Agency Matters – Lesson 7 – Rabbi Michael Abraham

Table of Contents

• Planning the lectures and the overall framework
• Defining the rule of acquisition on another’s behalf and the question whether it is based on agency
• Sources from the Talmud: Passover and the assumption that a minor cannot acquire on behalf of others
• Maimonides’ view: agency in the case of a minor and the lack of an explicit mention of acquisition on another’s behalf
• Tosafot: “a minor has no legal hand,” acquisition based on agency, and a gift granted by another’s intent to transfer
• Rabbi Akiva Eiger: even if acquisition is based on agency, acquisition on behalf of a minor may still be possible
• An analogy to “something with no substance” and intellectual property
• The division of the Land: the move from agency to acquisition on another’s behalf and finally to a guardian
• The dispute between Tosafot and Ritva in understanding the passage: does acquisition on another’s behalf apply to a minor?
• Rashba: the link between acquisition, an element of liability, and agency for a minor
• The explanation of “implicit appointment” versus “no appointment is needed”: the Ketzot and the implications
• Despair without awareness and tithing without awareness: evidence against “implicit appointment”
• Conceptual distinctions: limitations, mechanism, and the criticism of “conceptual analysis without substance”
• Basic examples involving judgment: acquisition, minors, and free choice
• Conclusion and continuation

Summary

General overview

The text presents a concluding lecture on the rule of acquisition on another’s behalf as part of the broader concepts of agency, with the goal of completing a basic picture of agency and then moving on to agency for a transgression. It examines the relationship between acquisition on another’s behalf and agency through sources in the Talmud, medieval authorities (Rishonim), and later authorities (Acharonim), and shows that the dispute over whether acquisition on another’s behalf is based on agency or not depends on how the mechanism is understood: whether it is agency with an implicit appointment, agency without any need for appointment, or an independent mechanism. The discussion focuses especially on how this operates in the case of a minor, when a guardian is required, and what this implies for understanding whether one can act on behalf of someone who is not legally capable of agency.

Planning the lectures and the overall framework

The lecturer notes that there are two meetings left, today and Tuesday, and he dedicates the current lecture to the rule of acquisition on another’s behalf, in a quick top-down overview so he can finish it in one session. He says that in the next meeting he will try to touch on agency for a transgression as well, even if he does not fully finish it, and presents this as an attempt to complete a basic picture of the concepts of agency within the available time.

Defining the rule of acquisition on another’s behalf and the question whether it is based on agency

The lecturer defines the rule of acquisition on another’s behalf as permission to act for a person without being appointed, when what is being done is an unqualified benefit for that person. He notes that the medieval and later authorities discuss whether this is based on agency or not based on agency, but his main claim is that it is not clear what the precise difference is between those two definitions or what their practical meaning is. He says that the literature brings practical implications of this question with respect to a minor, a gentile, and so on, but argues that even those implications depend on prior assumptions about what “based on agency” as opposed to “not based on agency” really means.

Sources from the Talmud: Passover and the assumption that a minor cannot acquire on behalf of others

The lecturer brings a section from the Talmud dealing with the source for agency from the verse, “And they shall take for themselves, each man a lamb for a father’s house, a lamb for a household,” and presents the possibility of rejecting the proof because of partnership in the lamb. He cites Rabbi Yitzhak’s exposition, “A man acquires, but a minor does not acquire,” and explains that most commentators understood this to mean that a minor cannot acquire on behalf of others, not that he cannot be among those for whom acquisition is made—while noting that there is a dispute among the medieval authorities about this. He argues that from the plain sense of the passage it appears that even acquisition on another’s behalf does not apply to a minor, because the Talmud does not suggest distinguishing between agency and acquisition on another’s behalf in a place where ordinary agency is ineffective.

Maimonides’ view: agency in the case of a minor and the lack of an explicit mention of acquisition on another’s behalf

The lecturer cites Maimonides in the Laws of Agents, chapter 2, where he validates as an agent “a man or a woman, even a married woman,” and also “a male slave or a maidservant,” because they possess understanding and are subject to some commandments, while disqualifying “a deaf-mute, an incompetent person, and a minor,” who can neither be appointed as agents nor appoint agents. He notes that Maimonides does not mention the concept of acquisition on another’s behalf there, and suggests that the overall move may be understood to mean that Maimonides equates agency and acquisition on another’s behalf regarding a minor—so just as there is no agency for a minor, acquisition on another’s behalf also does not apply to him.

Tosafot: “a minor has no legal hand,” acquisition based on agency, and a gift granted by another’s intent to transfer

The lecturer brings Tosafot, who asks why a verse is needed for “A man acquires, but a minor does not acquire,” when “we hold that a minor has no legal hand,” and answers that regarding Passover there is a reason one might have thought that a minor could acquire for others, since he is relevant to eating the Passover offerings and has to be counted in. He then cites Tosafot in tractate Pesachim, who asks why a verse is needed if “there is no agency for a minor,” and in tractate Bava Metzia it is proven that acquisition on another’s behalf is based on agency. He adds that Tosafot raises a further difficulty: even for himself, a minor does not acquire a found object except “for the sake of the ways of peace.” He emphasizes that Tosafot distinguishes between a found object and a gift, and says that “another person’s intent to transfer ownership” is stronger. He concludes that Tosafot implies that whenever one must rely on the laws of agency, there is no agency in the case of a minor, and therefore acquisition also does not apply if it is based on agency.

Rabbi Akiva Eiger: even if acquisition is based on agency, acquisition on behalf of a minor may still be possible

The lecturer cites Rabbi Akiva Eiger in tractate Ketubot 11, who says that even if acquisition is based on agency, it may still be that a minor cannot acquire on his own but can acquire through someone else. He presents two possible understandings of why agency does not apply to a minor: one essential possibility is that a minor is not a legal agent at all, so the whole category of “the agent of a minor” simply does not exist; the other possibility is that the problem is only the appointment, because the minor lacks understanding. He argues that according to the second possibility, acquisition as a form of agency without appointment may allow acquisition for a minor, because the whole deficiency in ordinary agency is only the need for appointment.

An analogy to “something with no substance” and intellectual property

The lecturer uses the example of “there is no acquisition regarding something with no substance” in order to distinguish between a problem of being unable to perform an act of transfer and a problem of being unable to be an owner. He describes the common position that there is no intellectual property in Jewish law because it is “something with no substance,” and says that he wrote an article arguing that the problem concerns the act of transfer, not ownership itself. Therefore, a spiritual or intellectual creation can be “yours automatically” even without an act of acquisition. He gives the example that a minor becomes an owner through inheritance without any action, and draws a parallel to the claim that a minor may be able to hold rights or benefit from legal results when no action is required on his part.

The division of the Land: the move from agency to acquisition on another’s behalf and finally to a guardian

The lecturer cites the Talmud in tractate Kiddushin, which brings the verse “one prince, one prince from each tribe” as a source for agency. The Talmud rejects that: “Can you really think this is agency? Minors are not legally capable of agency,” since minors were also among those inheriting the Land. He explains that the Talmud then corrects itself with “rather,” and establishes the exposition as the source for “from where do we know that one may acquire for a person in his absence,” and this is the first time the Talmud explicitly distinguishes between the mechanism of agency and the mechanism of acquisition on another’s behalf. He emphasizes that the continuation of the Talmud asks that even acquisition is not a good fit, because “there is also an element of liability here,” since some prefer a mountain and some prefer a valley, so this is not a pure benefit. He cites the conclusion that the matter is established under the law of a guardian: “for orphans who came to divide [property]… the court appoints for them a guardian, whether to their detriment or benefit… but a detriment for the sake of an ultimate benefit.”

The dispute between Tosafot and Ritva in understanding the passage: does acquisition on another’s behalf apply to a minor?

The lecturer presents one possible reading according to which Tosafot would say that the conclusion involving a guardian shows that there is no proof from here for acquisition on another’s behalf in the case of a minor. Even though at the beginning the passage was framed in terms of acquisition on another’s behalf, in the final conclusion the Talmud backed away from that, and therefore there is no acquisition on another’s behalf for a minor. He argues, however, that the plain sense of the Talmud suggests that acquisition on another’s behalf does apply to a minor when it is a pure benefit, and only where the benefit is mixed with liability do we need a guardian. He then cites Ritva, who proves that “acquisition is not based on the law of agency at all,” because if acquisition were based on agency, the Talmud should have gone back and asked again that a minor is not legally capable of agency. He explains Ritva’s phrase “an even better point than that” as meaning that Tosafot relies on a stronger objection—namely, that this is a benefit mixed with liability—which does not depend on the dispute over whether acquisition on another’s behalf applies to a minor.

Rashba: the link between acquisition, an element of liability, and agency for a minor

The lecturer cites Rashba, who explains, “When it says that he has acquisition but does not have agency—meaning that a minor cannot appoint an agent—that is in a case where there is an element of liability.” That presents the possibility that where there is no liability and the benefit is clear, acquisition can help even for a minor, because no judgment is needed. He notes that Rashba goes on to argue, according to some understandings, that a minor “has no acquisition on a Torah level at all,” but the emphasis here is on the connection between an element of liability and the need for appointment and agency.

The explanation of “implicit appointment” versus “no appointment is needed”: the Ketzot and the implications

The lecturer develops two ways to understand why in acquisition on another’s behalf “no appointment is needed”: either there is an implicit appointment, because it is obvious that the person would have appointed him, or the Torah simply waived the requirement of appointment. He cites the Ketzot in section 105, who argues that in acquisition on another’s behalf “implicit appointment” is impossible; rather, no appointment is needed. He connects this to the dispute between Rashi and Tosafot in the passage about “one who seizes property for a creditor in a place where that harms others.” He explains that Rashi allows such seizure under the law of agency when there is an actual appointment, but not under the law of acquisition on another’s behalf, because the Torah does not make special accommodations at the expense of others. From that he infers that acquisition on another’s behalf is not based on an estimated appointment, but on an independent rule.

Despair without awareness and tithing without awareness: evidence against “implicit appointment”

The lecturer brings from the Ketzot a proof from the passage in tractate Bava Metzia 22 about despair without awareness, where proof was brought from tithing without awareness, and it is explained, “Rava interpreted it according to Abaye as a case where he made him an agent.” He emphasizes that the Jewish law follows Abaye, that “at this point, at least, he does not know,” and concludes that according to the Ketzot, if acquisition on another’s behalf worked as an implicit appointment, there should have been room to validate it even without explicit agency. But in practice one needs the condition that “he made him an agent.” He raises possible ways to reject the proof—for example, that this is not a case where “all people” would agree, or that tithing includes not only removal of property but also transfer to someone else—but presents the discussion as a basis for the question whether acquisition on another’s behalf is implicit appointment or rather the cancellation of any need for appointment.

Conceptual distinctions: limitations, mechanism, and the criticism of “conceptual analysis without substance”

The lecturer describes, in the name of Rabbi Chaim as cited in Birkat Shmuel, an approach that says, “It is clear that the acquirer is literally an agent,” and that the whole doubt whether acquisition is based on agency is just whether the limitations of agency also apply to acquisition. He rejects that presentation as a conceptual distinction “without substance,” arguing that the absence of limitations must stem from a difference in mechanism, not merely from downstream consequences. He illustrates the criticism through examples like the difference between a positive commandment and a prohibition, and the claim that one cannot define the whole difference only through practical ramifications. He also cites Rabbi Shmuel Rozovsky, who says that proofs from tithing show that the real doubt in acquisition is whether the person who acquires acts “with the power of the acquirer” or “with the power of the person for whom the acquisition is made.” That shows that the dispute concerns the nature of the mechanism, not only the question of limitations.

Basic examples involving judgment: acquisition, minors, and free choice

The lecturer suggests that the reason a minor cannot act on the legal plane stems from a lack of judgment, and therefore in situations where there is no dilemma or where it is a clear case, a minor may perhaps be able to act or to appoint implicitly. He then weaves in a broader discussion of free choice through Benjamin Libet’s experiments, distinguishing between “picking” in a neutral decision and “choosing” when the choice is substantial. He mentions a later experiment led by Uri Maoz dealing with value-laden decisions through donations to charities, and describes a different appearance of the readiness potential there. He uses examples like elections in Syria and in Switzerland in order to distinguish between a case where there is only one option and a case where there are many options but the choice carries no real significance, and applies that to the idea that a minor can perhaps be included where no real judgment is required.

Conclusion and continuation

The lecturer sums up by saying that this is “enough for the basic principles of acquisition based on agency,” stops the lecture at that point, and says that he will send the students the accompanying material.

Okay, now let’s begin. We actually have two more meetings: today and Tuesday. Today I want to talk about the law of acquisition on someone’s behalf. I’ll do it quickly, more as an overview, so we can get through it in one sitting. And next time I’ll try to touch on agency for a transgression. There too, one time won’t be enough, but still I hope it will complete some basic picture of the concepts of agency. That’s what we can do within our time frame. One second. Okay, so this law of acquiring on someone’s behalf has already come up more than once in previous classes. We know that beyond the concepts of agency, in Jewish law there is also a rule that when something is an outright benefit for the sender, for the beneficiary, then one can act on his behalf even without formal appointment. That rule is called acquisition on someone’s behalf. I already mentioned that the medieval authorities (Rishonim) and later authorities (Acharonim) discuss whether acquisition on someone’s behalf operates by virtue of agency or not by virtue of agency, but it’s really not clear what exactly is meant when they say it is by virtue of agency or not by virtue of agency. What exactly is the difference between them? Or what is the similarity and what is the difference? And there are all kinds of implications. The medieval authorities (Rishonim) and later authorities (Acharonim) bring implications for the question whether acquisition on someone’s behalf is by virtue of agency or not, regarding a minor, regarding a non-Jew, regarding all sorts of things like that, and we’ll see whether it really does depend on the question whether acquisition on someone’s behalf is by virtue of agency or not. It’s really not clear. Meaning, even when people derive an implication, it depends on certain assumptions about what it means to say acquisition on someone’s behalf is by virtue of agency or not by virtue of agency. But let’s start for a moment with the Talmudic passages themselves. I’ll begin perhaps with a section that comes even before the actual topic of acquisition on someone’s behalf begins. The Talmud brings a proof from slaughtering the Passover offering—I’m skipping that, it doesn’t matter right now—but it brings a statement of Rabbi Yitzhak, and it says as follows: “Rather, from here.” They’re looking for a source for the law of agency. We’re still in the realm of agency. “Rather, from here: ‘And they shall take for themselves, each man, a lamb according to their fathers’ house, a lamb for a household.’” “But perhaps there too…” Meaning, “a lamb for a household” means that one person can take the lamb for others, so we see that appointment can be done by an agent. So from here one can learn the law of agency. “But perhaps there too he has partnership in it?” Maybe there he can act as their agent because they are partners in the lamb. He is not doing the act for them; he is doing the act for himself and also for them. Fine. So since it is together, that gives it some kind of advantage. Again, that rationale itself is worth a long discussion, but I’m not going into it. “If so, why do I need two verses?” Therefore that can’t be, because we already learned that from an earlier verse. “If it is not needed for a case where it applies, apply it to a case where it does not apply.” “This one is needed for the teaching of Rabbi Yitzhak. For Rabbi Yitzhak said: A man acquires, but a minor does not acquire.” Yes, “a man acquires, but a minor does not acquire.” The question is whether this means to acquire for himself or to acquire for others. Most commentators understood here that it means to acquire for others—that a minor cannot acquire on behalf of others, not that he cannot be one of those who benefit. Whether he can be among those who benefit is a dispute among the medieval authorities (Rishonim), but I’ll note that in passing. So the Talmud says: “And is that not derived from ‘each man according to his eating’?” “According to his eating you shall count for the lamb”—it has to be a man and not a minor. “And it is still needed for the view that one may slaughter the Passover offering for an individual.” He holds like the one who says one may not slaughter the Passover offering for an individual. Fine. In any case, the claim from here is that there is no acquisition on behalf through a minor. That’s what comes out, without going into all the details right now. What the Talmud assumes here is that there is no acquisition on behalf through a minor. It isn’t defined here—that is, the Talmud still does not yet distinguish between the mechanism of agency and the mechanism of acquisition on someone’s behalf. Here the terminology is that “the minor acquires.” But the Talmud does not in any way introduce the point that we are dealing here with the formal law of acquisition on someone’s behalf. You’ll see in the next section of the Talmud, if you saw it then you already saw it, that there the Talmud explicitly makes the distinction between a mechanism of agency and a mechanism of acquisition on someone’s behalf. Here the terminology is that the minor acquires, but the Talmud is still dealing with the law of agency. Fine. But if this were by virtue of agency, then one could still say: all right, but maybe by virtue of acquisition on someone’s behalf it would work. Agency through a minor does not exist, but perhaps acquisition on someone’s behalf does? So even though in the Talmud itself it isn’t clear whether this is the law of agency or the law of acquisition on someone’s behalf, from the plain meaning of the Talmud it seems that the law of acquisition on someone’s behalf also does not apply to a minor. Because otherwise the Talmud should have commented: you say a minor cannot do it by virtue of agency, but maybe by virtue of acquisition on someone’s behalf he can? The Talmud doesn’t say that. Because the Talmud understood that if he can’t, then he can’t, whether it’s acquisition on someone’s behalf or agency. So true, the Talmud itself does not make the distinction between the two laws, but still it seems that the law of acquisition on someone’s behalf also does not apply to a minor, and perhaps even more than that I would say—not only does it seem that acquisition on someone’s behalf does not apply to a minor, but acquisition on someone’s behalf and agency are the same thing, and that’s why the Talmud does not distinguish. Why is there no acquisition on someone’s behalf through a minor? Because there is no agency through a minor, and acquisition on someone’s behalf and agency are the same thing. All right? That at least is how one could have read it from here. And indeed Maimonides writes in the Laws of Agents, chapter 2: “A person may appoint as an agent a man or a woman, even a married woman.” What does “even a married woman” mean? A woman married to someone else can be my agent. Meaning, once she is another man’s wife, she is very tied to him, so there might have been reason to say perhaps she cannot be my agent, only her husband’s agent. So he says no, she too can be an agent, “and even a slave or maidservant, since they have understanding and are subject to some commandments,” meaning they are not non-Jews, “they may become agents for business matters. But those who lack understanding, namely a deaf-mute, an imbecile, and a minor”—a minor, that’s what interests us at the moment—“cannot become agents and cannot appoint an agent.” Meaning, he cannot be an agent and he also cannot appoint someone else, even an adult, as his agent. “Therefore, if one sends his minor son to the shopkeeper and he measured out for him oil worth an issar and gave him the issar, and he lost the oil and the issar, the shopkeeper must pay, because he sent him only to notify him.” Never mind the details—bottom line, no agency: a minor cannot be an agent, and in Maimonides himself the concept of acquisition on someone’s behalf is not mentioned. The question what happens with acquisition on someone’s behalf in the case of a minor is not mentioned. If we continue the direction of the Talmud, then I would say Maimonides says the same thing about acquisition on someone’s behalf as about agency; just as the Talmud made no distinction, just as agency does not exist for a minor, so too acquisition on someone’s behalf does not exist for a minor. No difference. Okay. Now let’s move to the Talmud and Tosafot here. Tosafot says: “A man acquires and a minor does not acquire.” “And if you say: why do I need a verse? We hold that a minor has no legal hand.” “A man acquires and a minor does not acquire,” but we already know that a minor has no legal hand. What does it mean that a minor has no legal hand? Does that disqualify the minor as a beneficiary or as one who acquires for others? Both, apparently, right? Meaning, you can’t do this act; you also can’t be an agent, but also one cannot do the act on your behalf, since you yourself cannot do it, an agent cannot do it for you either. Okay? Tosafot writes: leave aside the laws of agency—the question whether a minor can be an agent or appoint an agent is irrelevant. Because even if theoretically he could appoint an agent or become one, it wouldn’t matter—he can’t perform the act itself. So why should I care whether he can be or appoint an agent? “And one can say that regarding the Passover offering, it was necessary. You might have thought that since he is included in eating the Passover offerings and needs to be counted on it, as it is written ‘a lamb for a fathers’ house, a lamb for a household,’ even a minor too perhaps acquires for others. Therefore it teaches us otherwise.” Is he speaking here about a minor acquiring for others? I said that most commentators learn in the Talmud that “the minor does not acquire” means he does not acquire for others, not that others cannot acquire for him. Okay? So that’s what Tosafot says. “A lamb for a fathers’ house, a lamb for a household.” By the way, there is a dispute whether a minor has to be counted on the Passover offering. Some want to claim that this is not Torah-level / of biblical origin; this is a dispute in tractate Nedarim 36, but Tosafot here understands that it is Torah-level / of biblical origin and that a minor does have to be counted on the Passover offering. Since he must be counted, the act itself does pertain to a minor. There—he has to be counted, and apparently can also be counted. Okay? So if that’s so, then were it not for a problem in the laws of agency regarding a minor, there really would be no problem at all. Therefore the verse is needed to disqualify the minor from the laws of agency—not to be an agent and not to appoint an agent. Okay. Tosafot in tractate Pesachim as well says: “A man acquires and a minor does not acquire.” “This is surprising—why was a verse needed? We hold that there is no agency for a minor. And in the first chapter of tractate Bava Metzia it is proven that acquisition is by virtue of agency.” Here for the first time we get “acquisition is by virtue of agency.” “And if there is no agency for a minor, then there is also no acquisition for a minor. And if you say that from here itself we know he has no agency”—that is, from this very verse we learned it—“it is still difficult: why was it necessary to exclude him from acquisition? For even for himself he does not acquire his found object, except because of peaceful social order, as we say in Gittin.” “And one can say”—the same question as Tosafot asked in our passage—“that this is specifically a found object, but a gift, where another person has intent to transfer ownership to him, is stronger, as concluded in ‘Two Who Are Holding’ and likewise in ‘Receive’,” etc. Meaning there are things that a minor can do. And if a minor can indeed do them, I would have thought that there too an agent would help, or that he himself could be an agent or act through an agent. Therefore it teaches us that this too does not work. Meaning, there is a problem in the laws of agency. In practice, Tosafot’s view implies that a minor cannot acquire for others and others cannot acquire for him, although in a place where another person intends to transfer ownership, it may be that one can acquire for him. Okay? But if we need the laws of agency, then the laws of agency do not apply to a minor. But from Tosafot it emerges that if we were to understand that acquisition is not by virtue of agency, then perhaps the concept of acquisition would apply to a minor. Right? We know there are medieval authorities (Rishonim) who claim that acquisition is not by virtue of agency. Tosafot assumes acquisition is by virtue of agency, and therefore says that just as there is no agency for a minor, so too there is no acquisition for a minor. But within his own words it seems that he himself is saying that if someone holds that acquisition is not by virtue of agency, then the possibility opens up to say that although there is no agency for a minor, perhaps acquisition does exist. I’ll already say parenthetically here: Rabbi Akiva Eiger in Ketubot 11, whom I already mentioned, says that even if you say acquisition is by virtue of agency, it may be that the minor himself cannot acquire, but he can acquire through someone else. Meaning, someone else can acquire on his behalf. And why? Because even if you say acquisition is by virtue of agency—and agency, after all, does not apply to a minor—the question is why agency does not apply to a minor. Does agency not apply to a minor in an essential sense? Meaning, one cannot be the agent of a minor. Just as the minor cannot perform acts, so too he cannot appoint an agent. In other words, it is conceptually impossible for someone to be the agent of a minor; a minor is not a legal agent, right? He does not operate in the legal field. That is one possibility. A second possibility: in principle, someone can be the agent of a minor; the problem is only that the minor cannot appoint him, because he lacks legal understanding. So a minor cannot perform legal acts. According to the first possibility, then even the law of acquisition on someone’s behalf would not apply to a minor, because a person cannot be the agent of a minor, since the minor is not an acting legal entity—there is nothing to do here. But if you say there can be someone who is the agent of a minor, only he has no way to become the minor’s agent because the minor cannot appoint him—now, in the law of acquisition on someone’s behalf, and I’m speaking according to the view that acquisition is by virtue of agency, then acquisition on someone’s behalf is a concept of agency without appointment; no appointment is needed. So in that case it may be that the minor can indeed acquire through others, because the whole problem even in agency itself—the whole problem with a minor—is not a substantive problem. Someone can indeed be the agent of a minor; the only issue is that the minor cannot appoint him. So all of that is in agency, which requires appointment. But in the law of acquisition on someone’s behalf, which is a concept of agency—we’re speaking according to the view that acquisition is indeed by virtue of agency—then acquisition on someone’s behalf is real agency, only a kind of agency that does not require appointment. So if it does not require appointment, then perhaps a minor too can acquire through someone else, because he can have an agent without appointment. You can see this issue in many places in Jewish law; one has to think about this distinction. For example, there is no acquisition in something that has no physical substance. Maimonides says this about the scent of an apple, the appearance of honey, all those things. Meaning, things with no physical substance cannot be acquired. The question is: what does “cannot be acquired” mean? You cannot own them, or you cannot effect ownership in them? There is no acquisition act that can give you ownership of such a thing, because what are you going to do—draw it to you, lift it? You can’t. It has no physical substance; you have no way to perform an acquisition act on it. So the question is whether the problem is that you cannot perform an acquisition act on it, or whether the problem is that you cannot own such a thing because ownership simply does not apply to something with no physical substance. Let’s say an acquisition act not by way of some formal transfer act either. Okay, the question is whether you define such an act regarding something with no physical substance. After all, we know that different objects are acquired in different ways. Now it could be that for something with no physical substance these secondary modes of acquisition do not work for some reason, and then you say fine, so I’ll have to lift it, draw it, whatever. But that can’t be done at the conceptual level. One could go into the passages, but I’m speaking now on the conceptual level. Where is the difference? The difference is in a case where I can be an owner without performing an acquisition act. For example, say I have an idea—we’re talking about intellectual property. Fine? I have an idea, and the question is whether I can own the idea. The accepted view in Jewish law is that an idea is something with no physical substance, and since it has no physical substance there is no intellectual property in Jewish law. So—no, wait—so I’m saying, the accepted view in Jewish law is that there cannot be ownership over something with no physical substance. And therefore there is no ownership—there is no such thing as intellectual property in Jewish law. So everyone twists themselves into knots and invents tricks: maybe it’s encroachment, maybe it’s a rabbinic ban, maybe they try to define all sorts of indirect odd constructions, sometimes very, very forced, because everyone understands that it is very important to protect intellectual property. But on the other hand, what can you do? There is no acquisition in something with no physical substance. And I once wrote an article about this, and I said that with something with no physical substance—and I brought proofs for this—the problem is not that you cannot own it; the problem is that you have no way to apply ownership, no way to acquire it. But with your own intellectual creation, you do not need to acquire it; it is yours because it is your intellectual creation, so it is yours automatically. Right, and therefore you do not need an acquisition act in order to become its owner. So there is no problem whatsoever with there being intellectual property, and I brought proofs that there is Torah-level / of biblical origin intellectual property in Jewish law. Right, exactly. For example, one of the examples I brought there is: how does a minor become an owner through inheritance? Right, it is not forced on him; it is done for him; he does not need to perform an act in order to acquire that inheritance. By virtue of being his father’s son, he steps into his father’s place and is now the owner in his stead. In a place where no acquisition act is needed, even a minor may be able to be an owner. Meaning, the limitation is not that he cannot be an owner; the limitation is that he cannot perform acts with legal significance. Fine, but in a place where no act is required, he can be an owner. I’m saying the same thing here: perhaps the concept of agency also applies to a minor—this is what Rabbi Akiva Eiger says. The whole problem is only that he cannot appoint, because performing an act with legal consequences is something a minor cannot do. But where no act is required and the result happens automatically, perhaps that too is possible for a minor. Meaning, when Tosafot says that if agency does not apply to a minor then acquisition also does not apply to a minor, Tosafot makes that depend on the fact that acquisition on someone’s behalf is by virtue of agency. If acquisition on someone’s behalf is not by virtue of agency, then acquisition can apply to a minor. What I want to claim—what Rabbi Akiva Eiger himself claims in Ketubot—is that even according to the view that acquisition is indeed by virtue of agency, it still may be that there can be acquisition for a minor, because agency itself in principle applies to a minor; it just requires appointment. So acquisition, which is like agency only without requiring appointment, can also exist for a minor. Okay. Now the Talmud continues with us in tractate Kiddushin: “But as for 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: ‘One prince, one prince from each tribe.’” “Let us derive agency from here.” Right—what is the case? It is the division of the Land. So the princes, in the lottery, whatever portion came up for each family—the princes essentially made the lottery and acquired on behalf of all the families of their tribe. Okay, so that is what is written: “one prince, one prince from each tribe,” and so we see that the prince can acquire on behalf of others, and so there you have the law of agency. And the law of agency is learned from here. What, only here? No, not only here—we already saw several sources. We saw it in divorce, we saw it in terumah, there is also in sacrificial matters and in other things. The Talmud—I’m skipping; we didn’t go through the whole Talmud—but even from the things we saw, we already saw several sources. Then afterward they discuss why all these sources are needed; we already saw those discussions too. In any event, here too there is a source for the law of agency. And then the Talmud says: “And can you really think that this is agency? But minors are not subject to agency.” How can you tell me that this works by virtue of agency? There were tribes where, say, the father had died, so the ones who inherited were the minors. Now for minors there is no law of agency, so you cannot say that what the prince acquired on behalf of the members of his tribe was by virtue of agency. So Rashi says: “There were also minors among those inheriting the land, and did those who acquired for them come as agents? But there is no agency for a minor, for regarding ‘and he sends’ and ‘and she sends’ it is written ‘if a man takes,’ and from there do we learn that a minor cannot appoint an agent?” Fine, and Rashi has a source for why a minor cannot appoint an agent. Notice, here we’re talking about the minor as sender, not as agent, yes? The minor as sender, because it says “man,” and that means a man and not a minor. That raises the question Tosafot asked above: why is any source needed at all? A minor is not even part of the realm of legal acts. We already showed the answer there. The answer is that sometimes one does not need the legal act, only the legal result. Fine. In any event, that is what Rashi says. So what did Rav Giddel think? Rav Giddel, who says that one learns the law of agency from here, understood that apparently a minor can appoint an agent. Right? Only the Talmud says: how can this be a source for agency? The Talmud says: no, this is not agency here, because minors are not subject to agency. So what does that mean? It means that when Rav Giddel said in the name of Rav, “From where do we know that a person’s agent is like himself?”—the Talmud asks Rav Giddel, “Let us derive agency from here.” Right? Rav Giddel, why don’t you learn the concept of agency from here? Why do you need terumah and divorce and all the sources we saw earlier? So what does the Talmud say? Ostensibly the Talmud is defending Rav Giddel. What does it say? No, this is not agency here, because there are minors and minors are not subject to agency. I don’t understand—so what did Rav Giddel say? You’re not saving him with that, because he wanted to learn from here that a person’s agent is like himself, and you want to tell me that necessarily we are not speaking here about the law of agency, because a minor is not included in the law of agency. So then what did Rav Giddel say? Either way, you still do not understand what Rav Giddel said. If this is agency, as Rav Giddel says, then it isn’t clear why this is not the source, why a source is needed from terumah and divorce. And if it’s not agency—then why are you telling me “from here that a person’s agent is like himself”? This is not a concept of agency at all. So it is not at all clear what Rav Giddel said, and therefore this rejection does not really save Rav Giddel. And therefore the Talmud indeed says: “Rather, like that which Rav Abba bar Rav Huna said, for Rav Abba bar Rav Huna said in the name of Rav Giddel in the name of Rav: From where do we know that one may acquire for a person in his absence? As it is stated: ‘One prince, one prince.’” Notice that it begins with “rather.” What does “rather” mean? A correction of what came before, right? And we cannot remain with the reading that Rav Giddel in the name of Rav really said there is a source here for the law of agency, because otherwise how do the minors benefit? Minors certainly do not belong to agency, right? Therefore—a correction. That is not what Rav Giddel in the name of Rav said. What did he say? He said that from here there is a source for the law of acquisition on someone’s behalf, not for the law of agency. And this is the first place in the Talmud where—above we said it was just terminology—but here for the first time the Talmud explicitly distinguishes between the law of acquisition on someone’s behalf and the law of agency. What does it say? Agency does not apply to a minor, and from here we learn the law of acquisition on someone’s behalf. And from this what do we understand? That a minor can indeed benefit. “Benefit” here means he is the sender, yes? Not that he benefits for others, but that others benefit for him. Yes? That is what the Talmud says, right? Otherwise what did you gain by moving from agency to acquisition on someone’s behalf? We rejected agency because it doesn’t apply to a minor. So he says no, here it is acquisition on someone’s behalf. What, acquisition on someone’s behalf also doesn’t apply to a minor. No—he says acquisition on someone’s behalf does apply to a minor. So what about the Tosafot and the medieval authorities (Rishonim) we saw above, who say that just as there is no agency for a minor, so too there is no acquisition on someone’s behalf for a minor? It may very well be—as we will soon see the continuation of the Talmud—but even here, it could be that the Talmud here, in Rav Giddel in the name of Rav, is speaking about the minor as the beneficiary. The Talmud in appointing for the Passover offering—at least according to the common explanation among the medieval authorities (Rishonim)—there the meaning was that the minor is the one acquiring on behalf of others, the one acting for others, the agent who enrolls others onto the offering. Okay? So a minor cannot do that, because it is not possible for him to be an agent. But a minor can have an agent appointed for him—sorry, a minor cannot appoint an agent, can be the sender perhaps as long as no appointment is needed, according to Rabbi Akiva Eiger, or by virtue of acquisition on someone’s behalf because acquisition on someone’s behalf is not by virtue of agency—the two possibilities I raised above. Either because acquisition on someone’s behalf is not by virtue of agency, and then there is no limitation regarding minors, and even a minor can benefit through others. Or because even if acquisition on someone’s behalf is by virtue of agency—not like Tosafot said—even if acquisition on someone’s behalf is by virtue of agency, as Rabbi Akiva Eiger said, because this is a type of agency that does not require appointment. So therefore there can be a distinction here between when the minor benefits and when the minor acquires for others. And what Rav Giddel in the name of Rav says is: true, the minor cannot be an agent, but he can have someone act on his behalf, especially since we are speaking of a case where another person intends to transfer ownership, and here the prince transfers to the minors. So there is another mind here transferring to them, or—yes, never mind who—whoever stands on behalf of the Holy One, blessed be He, in dividing the Land. Right? So another party is transferring ownership to the minors, and therefore there is no obstacle to this being done also by an agent. Now there are two ways to understand the law of acquisition on someone’s behalf. Is the law of acquisition on someone’s behalf by virtue of agency? If I say that acquisition on someone’s behalf is not by virtue of agency, then it is another mechanism—I don’t know what exactly—something else. If I say that acquisition on someone’s behalf is by virtue of agency, then why is no appointment needed in the law of acquisition on someone’s behalf? So either I say that this is ordinary agency, only in a case where the benefit is absolute no appointment is needed—the Torah dispenses with appointment. One can acquire without appointment. Or I say that appointment is needed, but where the benefit is absolute, there is implied appointment. Meaning, it is completely obvious that I appoint you, so even if I didn’t say it explicitly, we understand that there is implied appointment. And therefore in fact there was an appointment here. Fine? Now, what is the practical difference? If you say that acquisition on someone’s behalf is by virtue of agency, and what eliminates the need for appointment is that when the benefit is absolute, it is clear that anyone would appoint you—you don’t have to say that you appoint, because it is obvious to everyone that you appoint, it is an absolute benefit—then the appointment here is made implicitly, but there was an appointment, only it was implicit. That will not help for a minor. Because a minor, even if he appointed explicitly, cannot appoint. So the fact that I have a clear indication that the minor truly intends to appoint—what does that help me? Even if he were to state his intent and appoint, it would not help. The only way you can say Rabbi Akiva Eiger’s explanation is if you assume that acquisition on someone’s behalf works by virtue of agency, but does not require appointment—not that the appointment is implied, but that no appointment is needed. If no appointment is needed, then perhaps a minor can also have the acquirer act on his behalf—not appoint, but be the one on whose behalf the acquisition is made. Okay? Therefore the practical difference is that Rabbi Akiva Eiger’s reasoning will depend on this. If you say there is an appointment, only it is implied, then it does not apply to a minor, because a minor is not capable of appointment. But if you say no appointment is needed, then it may apply even to a minor. If acquisition on someone’s behalf is not by virtue of agency, then this is a new legal category. One can discuss whether the fact that a minor is not included in agency means he is also not included in acquisition on someone’s behalf, or perhaps not—perhaps he is included in acquisition on someone’s behalf. Tosafot, for example, assumes that only if acquisition on someone’s behalf is by virtue of agency does it have a problem with how a minor can benefit, right? Which implies that if acquisition on someone’s behalf is not by virtue of agency, then everything is fine. And why indeed? Because we saw in Tosafot—or not in Tosafot—we saw in Rashi that the disqualification of a minor from agency is derived from the word “man.” Right? From the fact that it says “man.” A man and not a minor. Meaning that in order to exclude the minor, you need an exposition, a source. Now as for the law of acquisition on someone’s behalf—from where do we learn the law of acquisition on someone’s behalf? From here, from the division of the Land, right? “One prince, one prince,” right? There it does not say minors are excluded; on the contrary, there it says it worked even for minors, right? Therefore there it is clear that one may acquire also for a minor, since the starting point is that even a minor is included. If there is a verse that excludes the minor, and in agency there is such a verse, okay, then that’s one thing. But if in fact a verse is needed in order to exclude the minor, then in the law of acquisition on someone’s behalf, the source that teaches me the law of acquisition on someone’s behalf does not exclude minors; on the contrary, it is stated in a place where there are minors. So not only do I not have a verse excluding minors—on the contrary, there I have a source that includes minors. Not only is there no exclusion that removes minors, but since the prince acquired also for minors, it shows that minors are included. Therefore the law of acquisition on someone’s behalf also applies to minors. What? A minor cannot acquire. We said that where another person intends to transfer ownership, he can. It can be that he has legal acquisition generally, as long as there is a way to apply that acquisition. Meaning, the whole problem is only applying the acquisition, but being an owner may well apply to a minor too. Why? They acquired it for them. Why can he? Because another person intends to transfer ownership. The prince is another party transferring ownership to the minor, and there are views that this works at the Torah level / of biblical origin. Okay. Now, one comment—I once got this point from my daughter. Even according to the view that in acquisition on someone’s behalf there is implied appointment, and therefore no appointment is needed, and I assumed that this does not apply to a minor, because a minor, even if he actually appoints, it won’t help, right? So when I say no actual appointment is needed because there is a presumption that he really wants to appoint, what do I care that he really wants to? His will is worth nothing. That is not so simple. Why? Because why indeed can a minor not appoint? Because we do not rely on his settled intent, on his judgment, on his making the judgment, understanding the consequences, and making decisions optimally for himself, right? But where this is an absolute benefit, there are no competing considerations. Every person of sound mind wants such an appointment. In such a place, perhaps a minor can also appoint. And then, when I say there is implied appointment here, perhaps that can help even for a minor. Because the whole reason a minor cannot appoint is not some scriptural decree either. It stems from the fact that we do not rely on the minor’s judgment. He is not yet mature, not old enough, that’s all fine. But where no judgment is needed—meaning there is only one side on the field, no second side—then here you do not need judgment where you ask whether the minor made the optimal judgment. He need make no judgment at all; this is a clear case. In such a place, perhaps a minor could even appoint, even in a place that requires agency. And therefore, for example, in a place where agency is required and acquisition on someone’s behalf is not enough—remember we said in the previous class that with terumah there are medieval authorities (Rishonim) who want to claim that specifically the concept of agency is required. You cannot acquire terumah on my behalf. It specifically requires agency because it says “so shall you also lift up,” to include your agents, and you need to do this by virtue of the owner’s power; you need to be an agent, not merely one acting for another’s benefit. Okay? So only agency helps. Acquisition on someone’s behalf does not help. Now suppose for the moment that in separating terumah there is no element of obligation. We discussed that perhaps there is an element of obligation, because if I do it for you, you lose the commandment. You yourself want the commandment of separating terumah, and after all a minor is not obligated in commandments at all. So perhaps from his perspective that is not even considered an element of obligation. Then let us assume, at least for the sake of discussion, that in terumah it is an absolute benefit for the minor. To separate terumah from the minor’s produce is an absolute benefit for him. But let us also assume the view of those medieval authorities (Rishonim) who say that in separating terumah one specifically needs agency; acquisition on someone’s behalf is not enough. According to what I am saying now, perhaps even so it would work. Because with agency, what is the problem in agency? That appointment is needed, right? Fine—but in a place where this is a clear case, where all considerations point only in the direction of benefit, then even the minor can appoint, not merely that one can act on his behalf. And then perhaps even agency for a minor would exist. Yes, but what does he gain? Right, exactly, so the appointment is not bound up with judgment. The appointment is just a formal matter. So fine, then the court will appoint for him, no matter—he can appoint. We see that this appointment is perfectly acceptable. So he can appoint, and then perhaps he could even appoint an agent, not just benefit through acquisition on someone’s behalf. In Rashi it does not sound like that, because Rashi excludes it from the verse that says “man”—a man and not a minor. So it seems he does not make this depend on the settled intent of a minor. Otherwise perhaps we would not even need a verse. You would say from logic: he lacks legal understanding, so he cannot appoint. And therefore when understanding is not needed, he could appoint. If there is a verse excluding him from agency, perhaps the verse excludes him even where no judgment is needed. This reminds me of discussions in the topic of free will, determinism versus free will. People think that someone who believes in free will must think that every action a person does is under his control. Meaning, every action a person does is the product of his free choice. That is not true. Meaning, even someone who believes in free will admits that there are actions that are not the product of free choice. There are several kinds of such actions. For example, an action regarding which you have an irresistible urge, for which you have no criminal liability. You have some urge and you cannot overcome it, a temporary psychosis. Okay? Then you are not in control of yourself, so it is not the product of choice. But it is not only that; there are much more banal things. Like what you said. There are lots of things, for example, that we do absentmindedly—we do not think about them at all. So we do what first occurs to us; we do not exercise judgment and think. Most of the actions we do are like that, right? But these are actions that are in my hands—I could have thought about them, but in practice I didn’t. Okay. There is a third kind of thing, and these are actions that are clear cases. Actions where there is no dilemma. In actions where there is no dilemma, I theoretically chose to do it, but it is not that I exercised judgment; there was nothing to deliberate between. It is obvious—do what you want, the matter is simple. And therefore one of the great debates that arose in the 1970s was around the experiments of a Jewish American neurologist named Libet, Benjamin Libet. He conducted a series of experiments—he himself was a libertarian, he believed in free will. He conducted experiments that proved there is no free will, scientifically, in neuroscience, and to this day they repeat these experiments in all kinds of versions and variations. And these debates fill whole libraries—not shelves, whole libraries. The Libet experiments and their continuations to this day. What did he do? He seats a person by a table and there is a button, and he says to him: press whenever you decide to press. But in front of him there is a clock whose hand moves relatively quickly; he tells him: pay attention to the clock and try to identify the moment when you decided to press. Not when you pressed—we can see that, we measure it. Ask yourself when you decided to press. Okay? Now they trained the subjects on this matter and apparently they managed to reach a point where a person can identify where the hand was at the moment he made the decision to press. No, no—he makes decisions; he was not given a strategy. He makes a particular decision: now I want to press, and you look at where the hand was. Why is that important? Because it was already known, ten or twenty years before Libet, that we have in the brain an electrical potential—the readiness potential, RP—that spikes before we perform the action. They put an EEG on him, measure when the readiness potential appears, and measure his press. The press always comes after the readiness potential, right—that was already known. What Libet hit upon was a brilliant idea. He said yes, so we have the timeline. Fine? On the timeline we have here the appearance of the readiness potential, here the press. The interesting question is: when did you decide to press? Was it here between the two, or was it here before the readiness potential? Why is that important? Because if it was before the readiness potential, then it means your decision caused the readiness potential, and so you have free will. But if it was after the readiness potential, that means we knew you were going to press before you decided. You have the illusion that you decided to press, but in truth exactly—the future is foreseen and permission is not given. You think—you have the illusion—that permission is given. Now it turns out the readiness potential appears before the decision. And there are experiments that found the gap to be something like five seconds. Meaning, this is not a tenth of a second or milliseconds—it is a five-second difference, a massive difference. Not a small difference. Okay? And this is not something that can just be experimental error. And then of course a whole uproar broke out. Libet himself said—remember, he himself was a libertarian—he was honest enough to say: folks, the experiment shows me I was wrong; basically we are machines. We are machines, we have no free will. Now many thinkers sat on this. An acquaintance of mine did a master’s thesis on this at the Hebrew University and summarized all the literature up to that point—I’m talking fifteen, twenty years ago. Since then a lot more experiments and a lot more literature have been added. But I summarized it in my book where I dealt with it, and my main argument against all this was as follows. The question of when to press is a completely neutral question. What does it matter if you press now, in another second, a second earlier? There is no preferred moment. There are no substantive considerations one way or the other over which you deliberate and decide whether to press or not and when to press, right? So how do you make the decision? You have a readiness potential telling you to press now, so you press now. Meaning, in a place where your decision is what is called choosing—a real choice—there I argued that the decision would be what triggers the readiness potential. It would appear before the readiness potential, then there would be the readiness potential, and then the action. Because the decision is what determines it, since there this is an action of choice. But in a picking decision, and with Libet it was picking and not choosing, there was no choice there, just deciding on some moment—so when a readiness potential arose in me, I pressed. Why not? What do I care? Okay? Therefore I argued that this proves nothing about choice. To test choice, you need an experiment that tests the same thing with choosing and not with picking. And after that I argued that even if they did an experiment on choosing, it still would not prove that we lack free will. That is beyond this. But first of all, I said, do it for me on choosing, then we’ll talk. Two years after my book came out, a very large experiment was conducted with a neuroscientist, Uri Maoz, an Israeli. In America, at New York University I think, he led the team that did it—a team from all over the world, twenty or thirty brain researchers from all over, among them Liad Mudrik from Tel Aviv University, right? She has a lecture on YouTube where she describes the results of the experiment, and lo and behold. First of all it’s a very interesting experiment because it’s hard to do such an experiment. You can’t let a person make an immoral decision in an experiment—you won’t get approval from the Helsinki committee. What, what will you tell him, decide whether to steal or not to steal, or whether to murder or not to murder? What? No, okay, maybe that too would be possible. But I mean in the moral context, they found a trick. They found a trick: they have him decide which charity to donate to. And there are charities that are nastier and charities that are less nasty, and the question is—and here there are nastier charities but with some bonus to you, and less nasty charities—but all are legal, so the Helsinki committee cannot prohibit it. Okay? Then the person makes the decision, they attached electrodes to him, and they checked. It turns out that in decisions of that type, the readiness potential appears after the decision and not before it. Yes. I emailed her to ask whether by any chance they had seen what I wrote in my book; it turns out they hadn’t. But—but yes, in the end it turned out that… anyway. For our purposes, what I want to say is that there are things where the decision is neutral, where it makes no difference. In such a place you do not really undergo a process of choosing. So I’m saying, for example, in a lottery—say you conduct a lottery over inheritance in the Land. There is no problem that a lottery be on behalf of a minor, because the result can be this or can be that—what difference does it make? You are conducting a lottery. Or a lottery among brothers who divided an inheritance, whether they are heirs or purchasers—we conduct a lottery to divide the inheritance. Why? Because there is no preference of this over that; it doesn’t matter. That’s one type. In another type of case, where it is a clear case, where one option is obviously preferable in every respect and there is no hesitation at all—the same thing applies there. A minor too can play on that field, because it does not involve a decision. There are two kinds of cases where a minor can make decisions, because it does not involve judgment. The whole problem with a minor making decisions is only when judgment is required. If judgment is not required—and that happens in one of two situations: either it does not matter what comes out, or it is perfectly obvious what should come out—then in those places there is no reason that a minor too should not be able to act. Okay? This reminds me of another nice example about free will. I once gave the example that there is a certain feeling that Torah and commandments, meaning halakhic obligation, eat away at the value of freedom. Right? They limit us all the time. And therefore the Kuzari, Rabbi Yehuda Halevi, says: “Servants of time are servants of servants; only the servant of God is truly free.” It always sounded to me like a George Orwell kind of statement: ignorance is strength, slavery is freedom, all that sort of thing—trying to pump something into your brain that is nonsense in the hope that it will convince you. What do you mean, only the servant of God is free? There may be many advantages in being the servant of God, but free it is not. Free is completely alone, as the song says. It is not free. And then I thought to myself that this is not right. Why? Because think of three mechanisms of free choices, democratic political elections. Okay? The first mechanism is Syria. You approach the ballot box—not today, today I don’t know what is going on there—but in the days of Assad the father, Assad the son. There is one slip. You enter the ballot box, there is one slip, you freely choose the slip that is there, and whoever is chosen by majority vote—which of course is always Assad—will be president of Syria. Right? There elections always come out 99.7 or something in Assad’s favor; I never understood where the other 0.3 disappeared to. In any event, perhaps that’s computer rounding or something. Anyway, those are the elections in Syria, which are a facade of course, right? There is complete freedom there, only the constraints are such that they dictate the result; there is only one possible result. Second model: elections in Switzerland. What happens in Switzerland? You approach the ballot box, there are several slips, you freely choose one of them, and whoever gets the majority of votes will be president of Switzerland. What’s the problem? That in Switzerland there are no problems. What do I care who the president is? Draw lots. There is no significance to policy. If you have this policy, that policy—we are not dealing with problems, so what do I care? You can just as well draw lots. So true, there is freedom here, and true, there are several possibilities, but it does not matter which possibility is chosen; there are no costs to any of the possibilities, neither benefit nor cost, no damage. Meaning, it does not matter. So draw lots. Where do democratic elections have significance? In countries where you have several possibilities to choose from, and there are costs, and you will pay for wrong choices and gain from right choices. The question is whether, within that framework imposed upon you, you choose correctly. When you act autonomously within constraints, you are a free person. When you have no constraints, you are merely free. Okay, in Switzerland you are free, but not a free person in that deeper sense. Freedom is a value-neutral thing. Freedom is a state. It has no—today people think freedom is a value. There is no value in freedom. There is value in being autonomous. There is no value in being free. What, being free is an asset, not a value. Freedom in animals? Yes, say, okay, you can relate to animals as Syria. Meaning, because they basically do what is dictated to them; they do not choose. So it isn’t exactly Switzerland. But if they are in a zoo, as opposed to somehow in the wild—no. But even if they are not in a zoo, it is still Syria. They do what their nature dictates to them; they do not choose. So that is basically Syria. No, it is something dictated to them. Right, so that’s Syria. So I am saying: whether in a zoo or not in a zoo, animals are always Syria. It’s never—inside the zoo and outside the zoo it doesn’t matter. All the rest is just who dictates the constraints to them. But in the end they act according to constraints. Okay, so that also parallels what we are talking about here. In Switzerland, for example, does a minor have the right to vote in Switzerland? Yes, certainly, why not? He can draw lots too, after all it makes no difference, right? And in Syria too a minor has the right to vote, right? Because in any case only Assad can be chosen, so it is a clear case. In other words, so what difference does it make? The only place where you would not give voting rights to a minor is in other countries that we do not know, where there are actual problems, okay? Meaning, where you have freedom to choose and there are real stakes. I added a fourth type of country where you have freedom to choose, except it doesn’t matter what you do because you always chose badly—maybe all the options are bad. There are countries like that too. It reminds me of a story from a friend of a friend of mine, a friend who has already passed away. He told me that he was wandering in the forests of Burma—today Myanmar; then it was called Burma. And he reached some little primitive hut village in the huge Asian jungles, right? He got there to some primitive little hut village, where hardly a human foot ever set foot. And suddenly he discovered there was some sort of post office there, a little postal hut. He was amazed. But he went to send some letter to his family in Israel, something, I don’t know. And suddenly he sees on the wall of the hut all kinds of boxes sorted by continents and countries. Go send your letter, put it into whichever—he was shocked. What, in such a hut that no one ever reaches, how can there be such sophistication? In the most advanced western post offices you don’t find such a thing. That was back when people still sent letters, not emails. So he was stunned. He got closer—there was a line there—so he got closer to the window, and beside him were all the sorted mailboxes, right? Then he looked; he reached the window and saw the other side. On the other side there was one big sack into which all the boxes emptied. Meaning, it didn’t matter where you put the letter, it all fell into the same sack. Yes—that is the parable for the fourth kind of country. You have free choice, you can choose Likud, Labor, I don’t know, Bennett, whatever—you choose, all are equally bad, so you have free choice and there are issues, everything is in place. Except that whoever you choose, in the end it all turns out awful. So that is the fourth type. Okay, back to our subject. What I really want to say is that even if I do not allow a minor to act on the legal plane, that may apply—at least if it is from logic—only in a place where judgment is required. In a place where judgment is not required—Syria or Switzerland, yes—if it does not matter what you do, or if it is completely obvious what the right thing to do is, then in those places there is no reason a minor too should not be able to act. Okay? Now the Talmud continues: “And can you really think it is a benefit? There is also an obligation. For there are those who prefer the mountain and do not prefer the valley, and there are those who prefer the valley and do not prefer the mountain.” There are different inheritances in the Land of Israel. The prince draws lots for different inheritances for different families, and there are families that prefer the valley and families that prefer the mountain. Each suits a different type of crop or a different type of agriculture, whatever. Different livestock, I don’t know exactly what. Therefore it is not true that this is pure benefit. It is a benefit that also includes an element of obligation—sorry, it is not a pure benefit. It is a benefit mixed with obligation. In short, there is significance here to judgment. It is a lottery, yes, but you are acquiring for me something that involves judgment. And if it involves judgment, then you cannot be my agent. There is actually an interesting question here: why does it matter if I receive it by lottery? After all, if I receive it by lottery, then true, there is some side issue of judgment. But it is not in my hands. As a rationale, yes? Meaning, there is good and bad, but it is not in my hands. What can be done? So why in such a case? But the Talmud assumes that nevertheless in such a situation there is no—or because after all the prince did choose the portions; he drew lots for the inheritances of the tribes. The lottery was for the inheritances of the tribes. But the division of the tribal inheritance among the families perhaps the prince did not do by lottery. I don’t know. Or even if it was done by lottery, still agency does not apply in such a situation because this is something involving a mixture of benefit and obligation. Therefore the Talmud says, so really you cannot—remember? Let me just remind you—we rejected the possibility that this is agency and moved to the law of acquisition on someone’s behalf. And we assumed that acquisition on someone’s behalf applies also to a minor, right? Up to this point we saw that there is acquisition on someone’s behalf for minors. Now the Talmud says: wait a minute, but the acquisition on someone’s behalf here also does not work. Agency didn’t work, I understand, because it’s a minor. But acquisition on someone’s behalf also doesn’t work here. Why? Because the law of acquisition on someone’s behalf applies only when it is a pure benefit. But this is a benefit mixed with obligation, so the law of acquisition on someone’s behalf does not apply. Because you need judgment; you need to decide what the minor prefers. He cannot yet prefer anything. So the Talmud says: “Rather, like that which Rava bar Rav Huna said, for Rava bar Rav Huna said in the name of Rav Giddel in the name of Rav: From where do we know that when orphans come to divide their father’s property, the court appoints for them a guardian, to their detriment and to their benefit?” “To their detriment—what is that?” “Rather, to their detriment in order to benefit them.” “Scripture says: ‘You shall take one prince, one prince from each tribe.’” By the way, beyond the question that this is a lottery anyway, so in any event there is no room for the minor’s own judgment, there is another question. What is the alternative? If the prince cannot acquire for them, then you leave him with nothing. That is certainly worse. Let him get mountain land, let him get valley land—but to get nothing is certainly… that is always less good. Therefore this is not a benefit mixed with obligation; it is pure benefit. Fine, so there are several questions here and they need clarification, but for our purposes the Talmud ultimately says that this worked by virtue of guardianship. By virtue of a guardian—what does that mean? A guardian has the ability to make decisions for minors even when it is not a pure benefit for them, even when the benefit is mixed with obligation. And now of course the question remains: does this belong to the law of acquisition on someone’s behalf, or is it a third law? We saw there is the law of agency, we saw there is the law of acquisition on someone’s behalf, we rejected both. Now we say fine, so now it’s guardianship. The court, right? The court itself is the guardian of orphans, or it appoints someone on its behalf to handle their rights. So this is very important. Why is it very important? Because at the previous stage it came out that there is acquisition on someone’s behalf for minors, right? But Tosafot said that if acquisition on someone’s behalf is by virtue of agency, then acquisition on someone’s behalf does not apply to minors, right? How does he get along with our Talmud? Tosafot in Ketubot—how does he get along with our Talmud? In our Talmud it says there is acquisition on someone’s behalf for minors. After all… after the Talmud rejected the possibility that this is agency, it said that this is acquisition on someone’s behalf. Why did we reject agency? Because it’s minors, and minors have no agency. Ah—but acquisition on someone’s behalf? Apparently that does apply to minors, otherwise you’ve proven nothing. So we see that acquisition on someone’s behalf does apply also to minors. How does Tosafot deal with that? Ah. Tosafot can apparently say that the Talmud rejected that whole line and said: no, here we are dealing with a guardian. A guardian can act for minors; that doesn’t mean there is a law of acquisition on someone’s behalf for minors. This is a third law, guardianship. But the law of acquisition on someone’s behalf does not apply to minors, even in a place where it is an absolute benefit. Fine? Not a “benefit in order to cause detriment.” That is one possibility. Then Tosafot remains inconsistent with the initial assumption, but remains consistent with the conclusion of our passage. In the conclusion this is not acquisition on someone’s behalf. Still, that is somewhat forced. It is somewhat forced because the Talmud should have rejected the possibility that this is the law of acquisition on someone’s behalf according to Tosafot and said: “Acquisition on someone’s behalf also doesn’t help, because there is no acquisition on someone’s behalf for minors.” Why didn’t the Talmud reject it that way? But they did not reject it on that basis. Why not? They should have… the Talmud should have said: “You established that this is acquisition on someone’s behalf.” According to Tosafot I would expect the Talmud now to say no, that can’t be acquisition on someone’s behalf, because there is no acquisition on someone’s behalf for a minor. What the Talmud rejected was not because there is no acquisition on someone’s behalf for a minor; rather, the Talmud rejected it because this is a benefit mixed with obligation. But had it been benefit alone, then according to the Talmud that would have been perfectly fine under the law of acquisition on someone’s behalf. Why? But there is no acquisition on someone’s behalf for a minor. So from the plain meaning of the Talmud it appears that even in the conclusion there is acquisition on someone’s behalf for a minor. Only here, since this is a benefit mixed with obligation, one must invoke the law of a guardian. But in a place where it is only benefit and then it would work under the law of acquisition on someone’s behalf, there truly is acquisition on someone’s behalf also for a minor. Tosafot apparently did not read it that way. Tosafot apparently read… the Talmud itself was unsure about exactly this. The Talmud says: there is acquisition on someone’s behalf here, and yes, there is acquisition on someone’s behalf for a minor. Then the Talmud says: wait, but this is a benefit mixed with obligation, because acquisition on someone’s behalf does not apply to a minor. Rather, there is a benefit mixed with obligation here, and therefore obviously this is a case of a guardian, and only for that reason does it help for minors. But the law of acquisition on someone’s behalf, even where there is an absolute benefit, cannot apply to a minor. A guardian can do this for a minor, because he can do even a case of mixed benefit and obligation; all the more so where it is benefit alone. But someone who is not a guardian—even acquisition on someone’s behalf when it is a pure benefit cannot do it for a minor. There is no acquisition on someone’s behalf for a minor. What? Never mind, I mean on the conceptual level. Conceptually, to acquire a found object for him. Why? Don’t preserve it, let it be lost—what do you care? It’s better for him to have the money than not. What do you mean? To acquire a found object or a gift. No, not like with land. With land, the Talmud assumes there is a possibility that they can wait and get what they truly want and not let the prince decide for them. What interest? You’re talking about a found object. If you don’t acquire it for the minor, someone else will take it. That is a pure benefit, no? What is the problem? Or to give him a gift, no matter, all kinds of things like that. So according to Tosafot, who says there is no acquisition on someone’s behalf for a minor—just as if acquisition on someone’s behalf is by virtue of agency then there is no acquisition on someone’s behalf for a minor—then you are forced to read our passage as saying that in the initial assumption they thought there was, but in the conclusion that itself is what was rejected. And they said no, the law of acquisition on someone’s behalf does not apply to a minor at all. Here we are dealing with a guardian, and therefore it applies. And the proof that it is a guardian is that this is a benefit mixed with obligation. So that is only a proof. In principle you would have had to reach the conclusion that it is a guardian even if this had been a pure benefit, because there is no acquisition on someone’s behalf for a minor. That is how Tosafot would read it. In truth the plain meaning of the Talmud is not like that. The plain meaning of the Talmud is that the law of acquisition on someone’s behalf applies to a minor. Here one had to invoke a guardian because it is a benefit mixed with obligation. The Ritva says: “And we ask: can you really think that Rav derives this from the law of agency? But in the division of the land they were also liable to lose, and minors are not subject to agency. Rather, certainly this is what he means: from where do we know that one may acquire for a person in his absence, etc. From this we learn that acquisition is not a law of agency at all, and a person may acquire even for one who is not capable of agency. For if not, the Talmud should still have said: can you really think this is acquisition? But acquisition is by virtue of agency, and a minor is not capable of agency. Rather, certainly as we have said.” Right? He proves that acquisition is not by virtue of agency. Because if acquisition were by virtue of agency, then the Talmud should have rejected here also the interpretation of acquisition and said: how can this be for a minor? Right. Now you’ll say: but that’s what the Talmud did. No, he understands that the Talmud did not do that. And he disagrees with Tosafot. Right? He understands that this remains. What the Talmud rejected was because this was not a pure benefit, since it was a benefit mixed with obligation; therefore one had to invoke a guardian. But if it had been a pure benefit, then one could do it even for a minor, even without a guardian. How? Because acquisition on someone’s behalf is not by virtue of agency. This is not like Tosafot, and not like Rabbi Akiva Eiger either. Because Rabbi Akiva Eiger says that even if acquisition on someone’s behalf is by virtue of agency, there is still acquisition on someone’s behalf for a minor because no appointment is needed. In that sense the Ritva agrees with Tosafot that it depends on whether acquisition on someone’s behalf is by virtue of agency or not, but the Ritva disagrees with Tosafot and says: from here we see that acquisition on someone’s behalf is not by virtue of agency. Now look at his last sentence: “But Tosafot wrote that in the conclusion we rely on something stronger than that.” Three words—what does he mean? Tosafot says, after all, that acquisition on someone’s behalf is indeed by virtue of agency, and therefore acquisition on someone’s behalf does not apply to a minor. How does he fit with this Talmud? “In the conclusion we rely…” Right, in the initial assumption they really thought acquisition on someone’s behalf worked for a minor, but that itself was what the conclusion said: “And can you really think so?” This is a benefit mixed with obligation, and therefore it is a matter of guardianship, and we backed away from it in the conclusion. Fine? This is exactly what we said earlier. Therefore we have to say that this is how Tosafot read the Talmud: in the initial assumption it really comes out that acquisition on someone’s behalf is by virtue of agency, and therefore does not help for a minor, but that itself is what was dropped in the conclusion. The Ritva says no, and the Ritva follows the plain meaning of the Talmud. Notice: what does “something stronger than that” mean? What is stronger in the conclusion than in the initial assumption? Obviously, what… no, that is not what he means. “Something stronger than that” means—as Tosafot often asks in many places, that is Tosafot’s way—why didn’t they ask this way? Why did they ask that way? Because they had a stronger question to ask. They asked that question, but in fact they could also have asked this other one. That is also what he means here. Because after all, what is difficult for Tosafot? For Tosafot, the difficult thing is the way the Talmud is read, because the Talmud should really have objected to the interpretation that this is the law of acquisition on someone’s behalf. According to Tosafot, it should have rejected it not because this is benefit mixed with obligation—even if it were pure benefit, it should have rejected it, because there is no acquisition for a minor. To that Tosafot will answer: the Talmud asked a stronger question. Meaning, it asked from the fact that this is benefit mixed with obligation, and therefore under any circumstance it cannot be speaking of the law of acquisition on someone’s behalf. I might ask myself and say to you: even if this were a case of acquisition on someone’s behalf, that does not help for minors—but on that you can argue with me. Why? Because in fact the Ritva, for example, says there is acquisition on someone’s behalf for minors; I have no proof against him. Right? So what the Talmud did was to take a stronger question: this is benefit mixed with obligation, and therefore under any circumstance it cannot be a case of acquisition on someone’s behalf. That is what “stronger than that” means. It means they asked a question stronger than the question you would have expected according to Tosafot. Fine? But isn’t that like dodging the harder question? What? Like dodging the harder question? What? If it were only a benefit, what then… no, according to Tosafot the conclusion here is that this is guardianship, not the law of acquisition on someone’s behalf. But in places where there is a pure benefit without obligation, then it would work by the law of acquisition on someone’s behalf, and that still would not help for minors. There is no acquisition on someone’s behalf for minors. Why? That is what they say—there is no acquisition on someone’s behalf for minors. Tosafot in Ketubot. There is no acquisition on someone’s behalf for minors because they are not a legal entity. Here it isn’t because of minors? This is not a case of acquisition on someone’s behalf at all, because here it is not pure benefit. It has nothing to do with minors. Even if they were adults it still could not work, because it is not the law of acquisition on someone’s behalf, since there is both obligation and benefit here together. Okay? Therefore here it is a case of a guardian, that is clear. If so, then if I ask you now, what is the source for the law of acquisition on someone’s behalf? The princes. For a minor? From inheriting from his father? Where do you see the law of acquisition on someone’s behalf there? He inherits—not by the law of acquisition on someone’s behalf, he inherits, no one acquires for him. So I don’t know. There was room to say that we learn it from here, from Rav Giddel in the name of Rav. And in the conclusion, because there is obligation too, one must invoke acquisition on someone’s behalf through a guardian. A guardian too acts by the law of acquisition on someone’s behalf. But a guardian has a stronger power than ordinary acquisition on someone’s behalf, and therefore he can act even where there is obligation and benefit together. But still, if you ask me what the source of the law of acquisition on someone’s behalf is—it is this verse, the princes. The initial assumption remains; one only needs to invoke a guardian because there is both benefit and obligation mixed in. That is how one can say it according to the Ritva: according to the Ritva there is a source for the law of acquisition on someone’s behalf in this verse. What you are telling me—that one must invoke a guardian—is not because there is no law of acquisition on someone’s behalf here. There is such a law here, only a kind of acquisition on someone’s behalf that also involves obligation, and not just anyone can do it, only a guardian. You ask me what the source of the law of acquisition on someone’s behalf is? The prince—that is the source of the law of acquisition on someone’s behalf. But in the case where there is also obligation, how do I derive from that a case where there is only benefit? That is something… no, if there is only benefit, that is an a fortiori argument. If where there is also obligation you can act, then certainly where there is benefit you can act. That’s it. Meaning because it is a guardian, not because there is also obligation. Maybe only a guardian can, and there is no general law of acquisition on someone’s behalf? You’re saying this is an extension by logic. The only reason you needed a guardian is because there is obligation mixed with benefit here. Which implies that if there were benefit without obligation, then you would not need a guardian at all, because no judgment is really needed. You can make that extension by logic. That is according to the Ritva. But according to Tosafot, after all, it comes out that this verse is not talking about the law of acquisition on someone’s behalf at all. This is a special law of guardianship. Because if it were speaking of the law of acquisition on someone’s behalf, it would not help for minors at all. So where is the source for the law of acquisition on someone’s behalf? According to Tosafot, we have no source for the law of acquisition on someone’s behalf. But according to Tosafot, acquisition on someone’s behalf is by virtue of agency. So one does not need a source for the law of acquisition on someone’s behalf. The source for the law of acquisition on someone’s behalf is the law of agency. Only in a case where it is an absolute benefit, no appointment is needed—you can be an agent even without being appointed. But the source of where the law of acquisition on someone’s behalf comes from is those same sources for the law of agency, because acquisition on someone’s behalf is by virtue of agency. According to the Ritva, who says acquisition on someone’s behalf is not by virtue of agency, one needs a source for it, because we have sources for the law of agency. How do you know the law of acquisition on someone’s behalf? One has to say that the Ritva read our passage as really bringing a source for the law of acquisition on someone’s behalf. Only where it is mixed with obligation too, then the one acquiring must be a guardian. In a place where it is not—fine? Therefore there is a source for the law of acquisition on someone’s behalf according to the Ritva. According to the Ritva. In terms of practical outcome, is it more similar to…? What, again? What again? According to both Tosafot and the Ritva, the conclusion is the same in the end, that one can… can acquire… no, only a guardian can. According to Tosafot only a guardian can. But an ordinary person cannot. According to the Ritva an ordinary person also can. No—in pure benefit. According to the Ritva an ordinary person can; according to Tosafot he cannot. In a benefit mixed with obligation, everyone agrees that only a guardian can do the job. In a pure benefit, Tosafot will say that one also needs…? Yes. An ordinary person cannot acquire for minors. There is no acquisition on someone’s behalf for a minor, because acquisition on someone’s behalf is like agency. Just as there is no agency for a minor, so too there is no acquisition on someone’s behalf for a minor. That is the dispute between Tosafot and the Ritva. What happens when there is pure benefit? When there is benefit mixed with obligation, they agree that it is only a guardian. Look here at Rashba—he writes in Tosafot’s approach, really like Rabbi Akiva Eiger: “And he explained, may his memory be blessed, that when it says he has acquisition but not agency—that a minor cannot appoint an agent—that is where there is an element of obligation, because even for a competent adult perhaps he would not want it in this way.” Like my daughter’s comment. Fine? Meaning, where there is an element of obligation, then there is hesitation. If there is hesitation, you need judgment. You need judgment, and you need the minor himself; you cannot do it for him. “And according to their words, a minor has no Torah-level acquisition at all, neither through himself nor through others, as is also explicit in Bava Metzia. So too it seems in our chapter above.” So what exactly is he saying? That is less important for us. The first sentence is important. What is he really saying? He goes like Tosafot, that acquisition on someone’s behalf is by virtue of agency—and therefore a minor… sorry. He says that a minor has no agency, but there can still be acquisition. Why? Since in acquisition judgment has no significance, therefore where there is an element of obligation there truly will be no law of acquisition on someone’s behalf for a minor, only a guardian. Where there is no element of obligation, only benefit, then there is no room for judgment, and so there will be acquisition even for a minor. Now this does not fit Tosafot’s own view, because Tosafot himself said acquisition on someone’s behalf is by virtue of agency, and just as there is no agency for a minor, so too there is no acquisition for a minor. This specifically fits Rabbi Akiva Eiger’s understanding of Tosafot. Rabbi Akiva Eiger said that although acquisition on someone’s behalf is by virtue of agency, still there will be acquisition for a minor because it is agency without appointment, and the whole problem with a minor is only that he cannot appoint. Now, earlier we discussed why acquisition on someone’s behalf does not require appointment. Is it because there is implied appointment? In a place where it is a pure benefit, it is obvious implicitly that he intended to appoint. We see what is in his heart and in the heart of every person. Or did the Torah waive the appointment in such a case? Some will say that this is the meaning of the view that acquisition on someone’s behalf is not by virtue of agency—that the Torah does not require appointment, not that there is implied appointment. The Ketzot in siman 105 argues that in acquisition on someone’s behalf there cannot be implied appointment. The reason no appointment is needed is not that there is implied appointment, but that no appointment is needed. The practical consequence is that Rabbi Akiva Eiger is right. Meaning, if no appointment is needed, then there can be acquisition even for a minor because no appointment is needed. The whole problem is only in… if implied appointment is needed, then as I said there is room for doubt. It may be that it would not help, because for a minor there is no appointment at all, not even implied. So what does he say? He says this is Rashi’s language in the first chapter of Bava Metzia: if one seizes on behalf of a creditor in a place where he causes loss to others, it is like a person who comes on his own and seizes another’s money on behalf of a debt owed to another, trying to get ahead so another creditor does not seize it. He has not acquired, as we say in Ketubot, because he has no power to jump in and harm those others where the creditor did not appoint him as an agent to seize. But Tosafot and the commentators already asked in chapter “The One Who Writes,” regarding the incident of Yimar bar Chashu… Meaning, there is a dispute between Rashi and Tosafot on the question: if one seizes on behalf of a creditor in a way that harms others, has he acquired or not? Okay? Meaning, suppose someone owes money to two people. Now I go and seize on your behalf. He has only one hundred shekels, he owes you one hundred and another person one hundred. Now I seize the only hundred for you. You did not appoint me. Fine? Can I seize for you? If one seizes on behalf of a creditor in a place where he harms others, he has not acquired. Since I am taking the only hundred shekels, the other person cannot receive, so I cannot be your agent. You yourself can seize for yourself, but I cannot seize for you. Without appointment. Right, so Rashi says I cannot, by virtue of acquisition on someone’s behalf—but if you appointed me, then just as you can do it yourself, you can appoint me. And Tosafot argues no—neither by virtue of acquisition on someone’s behalf nor by virtue of agency can one do this. Fine? It’s theft… something like that; one can discuss it, I’m not getting into the explanations now. So he says: Tosafot follows their own approach, namely that acquisition is by virtue of agency, and since this is a benefit for him, we are all witnesses that he made him an agent. What does that mean? Because this is a benefit for you, we are all witnesses that you made me your agent, right? Therefore, if this were possible by virtue of… if it were possible through agency, it would also be possible through acquisition. Because in acquisition too there is really a clear presumption that you made me your agent. So why in the law of acquisition is it impossible? Therefore Tosafot says no, this cannot work either through agency or through acquisition. You cannot seize for someone else, even if he appointed you. Therefore Tosafot understands this as implied appointment. Therefore he says you cannot distinguish between acquisition and… and agency. Rashi, who does distinguish, what does he say? By virtue of acquisition on someone’s behalf you cannot do it; by virtue of agency you can. But there is implied appointment! It is obvious that you appoint me to be your agent—it is an absolute benefit. That does not help. Why not? Because the law of acquisition on someone’s behalf does not work due to implied appointment. The reason no appointment is needed is not because you appointed me implicitly. The reason no appointment is needed is that the Torah waived appointment, according to Rashi. Now, all that is in a place where it works for your benefit but does not harm others—the Torah does not give you favoritism. The Torah does not allow me to act for you without the need for appointment when it comes at his expense. The Torah has no preferential attitude toward you over someone else. So if the Torah appoints me, it does not appoint me as your agent at someone else’s expense. If you appoint me, then you appointed me. Fine? So what is the law of acquisition on someone’s behalf? It is an appointment by the Torah, not implied appointment. It is not that there is an estimate that you appoint me, because if so, there is implied appointment. And that is obvious. Okay, therefore the Ketzot says that the dispute between Rashi and Tosafot is precisely on this question. Does the law of acquisition on someone’s behalf not require appointment because there is implied appointment—that is how Tosafot understood it—or because appointment is not needed—that is how Rashi understood it. Fine? Then he says: “However, I have already been troubled by this, for how can we say that acquisition is by virtue of agency? For in chapter ‘These Findings,’ 22, regarding the dispute of Abaye and Rava about despair without awareness—Rava holds that since when he knows, he will despair, then now too it counts as despair. And Abaye holds that for now he does not know.” This is a dispute regarding despair without awareness, right? Someone—I found a lost object, and there is someone who lost it. He does not even know he lost it. After he notices that he lost it, he has already despaired, but when I lifted the lost object he had not yet despaired. But I know that if he knew he would despair, and the proof is that after he heard he indeed despaired. Does such a thing count as despair or not? Rava says yes, Abaye says no. This is one of the cases in the mnemonic where the law follows Abaye, that despair without awareness is not considered despair. Okay? And on this the Talmud says: “Come and hear: how did they say that one who separates terumah without permission, his terumah is terumah? If one went down into his fellow’s field and gathered produce and separated terumah without permission—if the owner is concerned about theft, his terumah is not terumah; if not, his terumah is terumah. And how is it known whether he is concerned about theft or not? If the owner came and found him and said: go to the better produce—if better produce than those are found, his terumah is terumah; if not, his terumah is not terumah.” Right, the owner comes after he separated it and says: why did you take from such inferior produce? You should have taken from better produce. As if to say: clearly I am happy that you separated terumah for me, only too bad you didn’t separate from even better produce. So he says, if… yes. Then the Talmud says: if better produce than those are found, his terumah is terumah. If we do not find better produce, then clearly the owner is saying it sarcastically. What are you doing to me—why not separate from the very best? But he has nothing better. Clearly he is rebuking him and saying I do not agree. Okay? But if better produce are found, then certainly we take his words at face value. It is like icons on the internet: you never know if it’s sarcastic or sincere. Someone says, yes yes, of course you’re right. Now without intonation, you don’t know whether he says it sarcastically or really agrees that you’re right. So sometimes in speech it is like that too, and then you say: if better produce are found, it means he was not being sarcastic, he meant it seriously. Now if he meant it seriously, then everything is fine, says the Talmud, right? So the Talmud asks: “Why? At the time he separated it, the owner did not yet know. This is difficult for Abaye.” Why is it difficult for Abaye? Because this is despair without awareness. Right—true, if he had known you were separating terumah, he would have agreed; that became clear to me only afterward. But before he arrived, he did not know that you separated it. So the fact that if he had known he would have agreed—why is that enough for my separation of terumah to take effect? According to Abaye, explicit agreement is required; it is not enough that if he had known he would have agreed, but rather he must actually know and actually agree. Here we see that is not so, so it is difficult for Abaye. So the Talmud says: “Rava interpreted it according to Abaye as a case where he had appointed him an agent.” We are speaking of a case where he appointed him an agent. But if he did not appoint him an agent, then according to Abaye it does not work—and the law is ruled like Abaye. Now I ask you: is there a clear presumption here? Is there implied appointment? Of course there is, right? After all, he arrives later and says, excellent, you did well, right? So it is obvious to us that if we had asked him earlier, when I did it, he would have agreed too. There is a clear presumption, right? Yet according to Abaye, and that is the law, it is not enough. What do we see? Says the Ketzot, that the law of acquisition on someone’s behalf cannot work by implied appointment. Therefore this will not work by virtue of acquisition on someone’s behalf, only by virtue of agency. But if this were a case of acquisition on someone’s behalf, it would not work. Why not? Because the law of acquisition on someone’s behalf is not implied appointment. According to the Ketzot, by the way, this is the dispute over whether acquisition on someone’s behalf is by virtue of agency or not. If acquisition on someone’s behalf is by virtue of agency, the meaning is that acquisition on someone’s behalf is really agency where the appointment was implied; and if acquisition on someone’s behalf is not by virtue of agency, the meaning is no, there is no implied appointment here—the Torah appointed. That is what is called acquisition on someone’s behalf not by virtue of agency. Fine? Not everyone agrees, but that is what comes out from the Ketzot here. So what do we really see? That this is difficult for Rashi—for in Rashi we saw above, according to what the Ketzot explained, that in Rashi we saw above that acquisition on someone’s behalf is—sorry, according to Tosafot—that implied appointment means acquisition on someone’s behalf is implied appointment, and according to Rashi acquisition on someone’s behalf is not implied appointment. And from this Talmud there is proof for Rashi against Tosafot. One cannot say that acquisition on someone’s behalf is by virtue of agency. “By virtue of agency” means implied appointment. Okay? What is the difference? There, in despair without awareness, he loses and the one from whom it was taken loses; here he gains because they did a commandment for him. I didn’t understand. As an agent, I mean. The question is whether when you make a decision—whichever direction it goes—the question is whether when you make a decision without awareness, but we know that if you had known you would have made that decision, whether that helps or not. Fine? Now there are a few ways to distinguish and save Tosafot. First of all, this is not a case where all people would agree. This particular person came an hour later and said, I agree, so it is obvious to us that had we asked him earlier he would have agreed. It could be that Tosafot too would agree that this does not help. When we speak about implied appointment, we mean if it is obvious to us that every person of sound mind in such a case would agree, as in acquiring a lost object or something like that, or seizing on behalf of a creditor. Okay? So that is not necessarily a difficulty. Second, acquisition on someone’s behalf in terumah is acquiring from a person, not acquiring for a person. After all, I separate terumah and give it to a priest. So true, it is something that perhaps does work for you, but that work consists in taking something from you and transferring it to someone else. Okay? It may be that Tosafot was not talking about that. “One may acquire for a person in his absence” means to benefit him, and there if there is implied agreement then fine. But to take from a person—even Tosafot would agree that real agreement is required and implied agreement is not enough. Therefore the proof is not conclusive. Now there is a discussion among later authorities about the meaning of this dispute among the medieval authorities (Rishonim), whether acquisition on someone’s behalf is by virtue of agency or not. We saw in the Ketzot that he essentially explains the dispute as whether acquisition on someone’s behalf is agency with implied appointment, or whether in acquisition on someone’s behalf no appointment is needed. But the mechanism of acquisition itself, according to everyone, is like agency. The only question is whether it happens without appointment or with implied appointment. And there is no one who says acquisition on someone’s behalf is not by virtue of agency in the sense that acquisition is not a mechanism of agency at all, but something else. Okay? So Rav Chaim—this is brought by the Birkat Shmuel, I’ll send you the file and you can see it inside, but I’ll say it orally here—he brings in the name of Rav Chaim that clearly the acquirer is literally an agent. The mechanism of acquisition is a mechanism of agency. When we speak of acquisition on someone’s behalf by virtue of agency or not by virtue of agency, the question is whether the limitations on the law of agency also apply to the law of acquisition on someone’s behalf or not. For example, that it does not apply to a minor, a non-Jew, all sorts of things like that. Those are indeed the practical differences the medieval authorities (Rishonim) bring. So the question is only whether the limitations apply there or not, but clearly we are talking here about agency. I never understood these technical distinctions. Why should the limitations not apply? They do not apply because it is a different mechanism—you can’t dance at two weddings at once. Right, the implication is that the limitations do not apply, but that implication stems from some difference between acquisition and agency. If there is no difference between acquisition and agency, then why are there no limitations in acquisition? If it is the same thing, then what is this, just wordplay? Obviously the limitations do not exist because there is something different in the mechanism of acquisition itself as opposed to the mechanism of agency. Yes, people often say: what is the difference between a positive commandment and a prohibition? I wrote about that once too. What is the difference between a positive commandment and a prohibition? Usually we understand that the difference is whether you are commanded to do something or commanded not to do something, right? But that does not withstand the test of the facts. There are positive commandments telling you not to do, and prohibitions telling you to do. For example, “Do not stand idly by your neighbor’s blood.” What does that mean? You must get up and save someone. That is a commandment telling you to act, not not to act, right? Or “Do not place blood in your house”—what does that mean? Build a fence! It says “do not place,” a prohibition, but the prohibition means perform an action, right? Or a positive commandment that tells you to refrain—cessation on the Sabbath. The reverse, yes? It is a positive commandment telling you not to do something. So the definition, the difference between a positive commandment and a prohibition, is not in the mode of action. I once saw an article by Aharon Shemesh, of blessed memory, who was a faculty member here, a Talmud scholar. In Tarbiz he once wrote an article where he argued that the difference is linguistic. The question is how the Torah formulates it: if it writes it with “do not,” “a man who,” “lest,” and so on, then it is a prohibition. If it writes it in positive language, then it is a positive commandment. Fine—the linguistic difference can be an indication of the difference between a positive commandment and a prohibition; it cannot be the essence of the difference. Why does the Torah write this in passive language and that in active language? Presumably because there is indeed a difference. You cannot say that the practical outcome is ever the explanation of the difference. The practical outcomes are the result of the difference; they are not the difference itself. Okay? And so in many things. Rabbi Yosei HaGelili says that offerings of lesser sanctity are the property of their owners. What does “the property of their owners” mean? People always say: the practical difference is that one can betroth a woman with them. The practical difference is that one can betroth a woman with them, but explain to me why this is the owner’s property; in what sense is it his property? The implication is that one can betroth a woman with it. So they always bring the practical consequence and say that is the difference. No—the difference, you need to explain to me what the difference is; afterward show me how the practical consequences emerge from that difference. But the practical consequences are not the difference. Okay? So here too the same thing. Meaning, when you tell me there is acquisition on someone’s behalf not by virtue of agency in the sense that the practical implications of agency do not apply, that the limitations on agency do not apply in acquisition—why not? Because in acquisition there is something else; that is why they do not. It is not arbitrary, not just a game. So that is one possibility from Rav Chaim. And the second possibility, in section b there, also in the name of Rav Chaim, is that acquisition differs from agency in essence: in agency the principal performs the action through the agent, whereas in acquisition the acquirer performs the action, only the results are credited to the one for whom he acquired. This is somewhat related to what we discussed in the introductory class: whether agency is authorization or an extended hand, whether it is agency over an act or agency over power—I’m not going back into that now—but these are the two possibilities. Yes, so all the medieval authorities (Rishonim) who bring proof that acquisition is by virtue of agency from separating terumah—in separating terumah you need agency, and if acquisition works there, then acquisition is by virtue of agency. So clearly… yes, all the medieval authorities (Rishonim) who bring proof that acquisition is by virtue of agency from separating terumah—that in separating terumah one specifically needs agency, and if acquisition works there, then acquisition is by virtue of agency—so clearly, what does it mean that one specifically needs agency? One specifically needs the mechanism of agency. Now, if acquisition were the same mechanism as agency, only without the limitations, then that would be irrelevant. Because if agency is needed, fine, acquisition is also agency. So what if a non-Jew can or a minor can? The mechanism is still the same as agency. If you tell me that because terumah specifically requires agency, therefore acquisition will not work there, then you are really talking about the mechanistic difference between acquisition and agency, not about the practical implications. But as I said, this conceptual inquiry is a distinction without substance; both sides really collapse into one side. Meaning, it does not really have two genuine sides. Because even if the difference concerns the limitations, obviously that difference concerning limitations stems from a difference in mechanism—the difference does not begin and end with the limitations. So Rabbi Shmuel Rozovsky indeed talks about this there. Yes, so let’s end with this perhaps. The Rashba here and Tosafot in Nedarim proved that acquisition is by virtue of agency, from what they say there in Nedarim that one can separate terumah from his own produce on behalf of his fellow by virtue of acquisition. And in separating terumot and tithes we specifically require agency. And it emerges from their words that the reason we specifically require agency in terumah is because one specifically needs the owner’s power in order to separate. And in acquisition, the acquirer has the power to acquire for his fellow, but this is not by virtue of the owner’s power, and therefore it should not help in terumah. Since acquisition does help in terumah, it follows that in acquisition too he has the owner’s power, like an agent. And that is the rule that acquisition is by virtue of agency. And it follows from their words that the basis of the doubt regarding acquisition—whether it is by virtue of agency—is about the definition of acquisition: whether he acts by the power of the acquirer or by the power of the one for whom he acquired. And this is not like what Rabbi Baruch Ber said in the name of Rav Chaim in Birkat Shmuel, that the whole issue is only in the limitations, that the mechanism is the same mechanism. Here we see that the difference is in the mechanisms, not merely in the practical consequences. But again I say: there is no such thing as “only practical consequences”; practical consequences are always the result of a difference in mechanisms. Okay. Good, we’ll stop here. That’s enough for me regarding the basic principles of acquisition on someone’s behalf by virtue of agency. Up to here. I’ll send it to you.