Kiddushin, Chapter 2, 5783, Lesson 10

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[Rabbi Michael Abraham] appoint the second agent. So when he appoints the second agent, he isn’t transferring to him the agency that he himself received. He’s simply carrying out the mission I assigned him and saying to him: okay, from now on you are the sender’s agent. So there’s no problem; he was basically just my telephone. Fine. Is this conditional on his saying it specifically to so-and-so? That’s an interesting question. It’s really certainly not decided. I don’t know why Nachmanides or the Ketzot assume that it specifically has to be to a particular person. He apparently understands that if you say, tell someone, then “someone” includes you yourself as well. In other words, if you make sure that the bill of divorce gets written, then de facto this really is agency for writing the bill of divorce and not agency for appointing. So where would the practical difference be? Suppose I say to someone: listen, tell someone else—not you, I don’t care who, but not you—to write the bill of divorce. Maybe that would indeed be valid even according to Nachmanides and the Ketzot. Really the point isn’t “so-and-so”; the point is that the content of the agency is not writing a bill of divorce, but appointing someone to write a bill of divorce. That’s the whole idea here in the Ketzot. The whole idea is that if the content of the agency is mere words, from your standpoint, then you can’t transfer that to someone else. But if the content of the agency is mere words and you are not transferring it to someone else, then there’s no problem. Appointing someone is mere words, but you are still an agent; it’s just that you can’t pass it on. And when you appoint him to be an agent, you are not appointing him to appoint—you are appointing him to write. So you didn’t transfer to him the “mere words” with respect to which you are an agent.

I didn’t understand why that helps. So he says: in a bill of divorce, these three options don’t help; in a gift, the third one helps. And again, the third one helps simply because this isn’t really a second agent. The second agent is the sender’s agent; the first agent is no longer in the picture once you’re talking about a specific person. Yes, it seems from here that it isn’t enough that I be comfortable with your appointing a second agent. It has to be the content of the agency—that I tell you: go appoint a second agent. Meaning, it isn’t enough that I say to you: okay, take care of the bill of divorce, I don’t mind if you even do it through an agent, no problem. Meaning, the problem with “mere words” is not that I’m unhappy with what you’re doing, because if I appoint you to do whatever you want, then I am happy with it; there’s no problem of comfort or willingness. In the Ketzot you see that mere willingness is not enough. I have to appoint that person to be an agent; this has to be done as my will, not merely that it’s enough that I don’t object. In other words, it has to be my will.

If I told someone to write a bill of divorce, and I know he doesn’t know how to write—“make sure a bill of divorce gets written”—and I know he doesn’t know how to write, maybe there too it would work that way. So he expands this so much that really, at that point, you don’t need anything here. Fine, okay, he expands it, so he expands it; this whole business here is obscure. The Ketzot makes this distinction on his own. Okay, so I’m making yet another distinction within his distinction. In the Talmud itself, neither this nor that is written.

And regarding a bill of divorce—yes, because it requires “for her sake,” and we specifically require that the husband command the witnesses, and it doesn’t help if it’s not in his presence. Therefore, with a bill of divorce this does not work. And regarding a bill of divorce as well, in the case of an agent for receiving, in this sort of case, where he says “say to so-and-so,” it works, since it is like appointing an agent not in his presence. And in the case of an agent for receiving, “for her sake” is not required except in the writing and signing. What is he saying? Now he moves to an agent for receiving a bill of divorce. Until now we were talking about an agent for delivery. For an agent for receiving, he says that since you don’t need “for her sake” in the receiving agent itself, then a receiving agent who appoints another agent to receive—there is no problem of “mere words” here. Why? Because there is no issue of “for her sake.” After all, even in a bill of divorce, in the case of “say,” the whole problem—in the case of “say to so-and-so,” which is what we’re discussing now—in the case of “say to so-and-so,” in an ordinary bill of divorce, for delivery agency of a bill of divorce, that is invalid; for receiving agency of a bill of divorce, that would be valid.

What happens with “say” in general, not to a specific person? There it seems that just as with a gift it doesn’t help, so too with a receiving agent for a bill of divorce it won’t help, right? A receiving agent for a bill of divorce is like a gift, unlike a delivery agent for a bill of divorce, okay? Therefore it won’t change anything. But every “say” that is invalid specifically in delivery agency for a bill of divorce and valid in a gift, in receiving agency too it will be valid. Because in receiving agency you don’t need the receiving to be “for her sake.” What you need “for her sake” for is the writing and signing. But in a case of “say according to your own judgment,” which is invalid because “mere words are not transmitted to an agent,” there is no distinction between a bill of divorce and a gift. Right? “Say according to your own judgment” means that he doesn’t appoint a specific person, but says: okay, do whatever you want. So he is comfortable with it, but we saw earlier that even in a gift that doesn’t help. That isn’t called “say.” In other words, Nachmanides claims that “mere words are not transmitted to an agent” in an essential sense. Meaning, only where this simply is not a case of “mere words” being transmitted to an agent—only there will “say” help. Not that “say” helps within the law of “mere words”—no. “Say” is only a situation in which this simply is not “mere words.” Okay.

Because as far as “for her sake” goes, there is no distinction, since those who say are acting in place of the husband to appoint an agent, and they appoint the agent in his presence; rather, it is invalid because of “mere words,” and in that respect there is no distinction between a bill of divorce and a gift. And this is explicitly explained in the Ran there, in the chapter “HaMitkabel,” where he brings Nachmanides’ opinion. From the plain wording of the Tur, who wrote in the name of Nachmanides to distinguish between a bill of divorce and a gift, it sounds as though with a gift, when he says “say” in general, even if he does not single out a particular agent by saying “say to so-and-so,” and this requires analysis. Except that in Even HaEzer it appears that the Tur’s view is that even with a bill of divorce as well, when he says “say”—there are all kinds of opinions here. But at the end he brings the Tur in the name of Nachmanides, that in a gift, when he says “say” generally, not only when he says “say” to a specific agent, then it seems that according to Nachmanides, “say” really is a qualification on the rule of “mere words,” even when it really is “mere words”—or I don’t know—or else he’ll define this thing as not being “mere words.”

You could say that maybe once he says “say according to your own judgment,” then he agreed, and willingness is enough—unlike the Ketzot’s own view, and what he brings in the name of the Ran, where he claimed that willingness is not enough. I need to appoint him; the content of the agency has to be to appoint that particular second agent. Then this is not “mere words” and it can be done. But where the agency itself is “mere words,” “say” won’t help. And therefore willingness too—the problem with “mere words” is not my willingness, that I’m uncomfortable with it, because here I am comfortable with it. The problem with “mere words” is that the concept of agency is not defined in such a situation; even if I want it, that won’t help. So why, in the case of “say to so-and-so,” does it help? Again, because it simply isn’t “mere words.” It’s a situation in which the concept of agency is completely defined; there’s no problem at all. I simply appointed an agent by telephone, that’s all.

Now regarding an agent for receiving, Tosafot Rid here writes as follows: “That the agent makes an agent”—this means that the husband’s agent appoints an agent, as we learned in chapter 2 of tractate Gittin: he forms a court and sends it. But the woman’s agent cannot appoint an agent, because these are “mere words,” since the woman transmitted to him nothing but words alone: “receive my bill of divorce for me,” and we rule like Rabbi Yosei in the chapter ‘HaOmer Hitkabel,’ who says that mere words are not transmitted to an agent. And this is not similar to the husband’s agent, to whom he handed over his object, and therefore he can appoint an agent, as I explained in the responsa pamphlet.” So he says two things here, differently from what we saw above, a bit, in Nachmanides.

First of all, a receiving agent of the woman cannot appoint an agent—a receiving agent of the woman. Why? Because it’s “mere words.” And notice: here he is not apparently talking about “say.” It doesn’t sound like he is talking about “say” in the plain sense. “The woman’s agent cannot appoint an agent”—we’re talking about the woman’s receiving agent, not the woman’s agent to appoint someone; a receiving agent. This is not “say.” So he says: in the case of a receiving agent, receiving agency is essentially a “mere words” agency, and therefore the agent cannot appoint another agent. What happens with “say”? Apparently like a gift, or like anything else—in the bill of divorce itself, maybe Tosafot Rid disagrees with Nachmanides that a bill of divorce is exceptional; perhaps the law of a bill of divorce is like the law of a gift. But the law of “mere words” itself—a receiving agent is “mere words.” This is not exactly the same discussion we saw above, because above we saw what the law is regarding “say” in a receiving agent, right? It implied that in an ordinary receiving agent without “say,” it really is invalid. The whole discussion there was only about “say,” which is like a gift and a bill of divorce. Here Tosafot Rid is simply saying the same thing: without “say,” in ordinary “mere words,” even with the woman’s receiving agent, it is “mere words.”

But here he explains the concept of “mere words,” which we didn’t see above. What is the concept of “mere words”? What is the difference—why is a delivery agent in a bill of divorce not “mere words,” while a receiving agent in a bill of divorce is “mere words”? A delivery agent in a bill of divorce gives the agent the bill of divorce itself, the concrete object of the bill of divorce. In the woman’s receiving agent, what the woman gives the agent is words—mere words. Okay? Just words. And therefore, by the way, “mere words” sometimes means things, but in this case it means speech, yes? Not things. So the claim of Tosafot Rid is that receiving agency, by its essence, is agency of mere words.

But an ordinary receiving agent can of course be appointed, right? A woman can appoint—this is what he compared: that he appoints an agent and that she appoints an agent, and after that that the agent appoints an agent. So again, the “mere words” are not problematic when I appoint an agent regarding “mere words”; it is problematic when the agent I appointed wants to appoint a second agent to pass on those “mere words.” So if the first agent’s agency was “mere words,” he cannot transfer that to the second agent, unless it is in the case of “say,” where then the dispute is whether it helps or not—that’s another discussion.

The Ritva and the Rashba—and let’s take the Rashba for example—disagree with Tosafot Rid, and he claims that a receiving agent is not “mere words” at all. Therefore, even without “say,” the receiving agent can appoint a second agent. Why? Because he defines the concept of “mere words” differently. Clearly in the background there is a different definition of the concept of “mere words.” “This teaches that the agent makes an agent. And if you say: granted, my agent can appoint an agent, but how can her agent appoint an agent? These are mere words, and mere words are not transmitted to an agent, as we say in ‘HaMevi Tanya.’ And Rabbi Barzeloni answered: here we are dealing with a case where she appointed him as an agent by means of a formal acquisition, which is stronger for appointing an agent.” So he says this is a case of an actual formal acquisition, and then it is something else. With a formal acquisition, it is apparently really that the first agent fully steps into my place. When he appoints the second agent, it’s like appointing a first agent concerning “mere words.” And that’s fine, let’s say, something like that.

And it seems more likely—now the Rashba himself says no: it’s where she gave him permission to appoint an agent. If she gave him permission to appoint an agent, that’s also fine; no need for a strong formal acquisition, unlike Barzeloni. He disagrees with him, yes? “For we only say that mere words are not transmitted to an agent when the agent appoints the other agent on his own initiative. But by the owners’ consent, he appoints an agent. As is proven there, because in the case of ‘say,’ an agent appoints an agent.” What is he saying here? In my view—and unlike Rabbi Barzeloni—in the case of a receiving agent, “mere words are not transmitted to an agent,” but that is only when the agent does it on his own initiative. Meaning: he was appointed as an agent to write the bill of divorce, and on his own he appoints someone else. But if he received permission from me to appoint an agent, then this is not “mere words,” because that is “say.”

Now pay close attention. This means that the concept of “mere words” exists even in a receiving agent. Right, that too he agrees with. A receiving agent is in principle “mere words.” And he interprets the concept of “say” differently—not what I said earlier. In “say,” he interprets it differently. What does that mean? He claims that in “say” it is enough that you received permission to appoint an agent. It is absolutely clear that this is not like what the Ketzot said above, that it only works for a particular person. It’s not only that—he goes much further. He says not only do you not need to tell him to appoint a particular person, but you don’t even need to appoint at all; you only need to agree or give him permission. In other words, willingness is enough. Somehow it seems that the concept of “mere words” is rooted in the fact that I do not agree. Therefore mere words are not transmitted to an agent. But if there is some indication that I do agree, then there’s no problem. And that’s how he understands the qualification of “say.” Why is “say” valid even in “mere words”? Because in “say” it is clear that I agree.

It’s a bit strange conceptually—why, if the agency is “mere words,” does that mean that I probably don’t agree that it should be done by someone else? That isn’t really well grounded conceptually. You can define it that way, but I don’t see why. Why would people think that when I appoint an agent to write a bill of divorce, my intent is that specifically he should write it and not someone else, unless I said so? What? It’s not a technical act, so I don’t care who does it. For all I care, a monkey. And if the act is not physical, then what? If the act is not physical, then it has a different kind of meaning. As though I want someone to speak on my behalf. So I care that it be a specific person. I want someone to write a bill of divorce for me, let’s say—it’s not even speaking. Why should I care who writes it? There is significance to how it is done. Once it’s not a physical act. Writing a bill of divorce is completely technical. You write the bill of divorce. What—so I don’t know. Conceptually I have trouble understanding it, but it seems from the Rashba that maybe that is indeed how he understood it. In other words, it seems that for him the problem of “mere words” is lack of agreement by the sender, and “say” simply indicates that he agrees, that he has no problem, that he is comfortable with it.

“The writing of the bill of divorce is not a technical act; the bill of divorce has to be for her sake”—that’s the point. So what? No, I brought his “for her sake,” not the other person’s. I said I agree; from here on he only implements it. If it were a monkey, that wouldn’t pass through the requirement of “for her sake.” Only the command to the scribe would not pass through him. Fine, okay. And who does the “for her sake,” the scribe? Yes. I need to command the scribe and the scribe writes for her sake. No, but the point is: who says I agree that it be the scribe and not him—that’s how I understand it, right? After all, that’s what the Rashba says. Maybe he did not agree to appoint someone else to do the act. Yes, and he asks: but why should I care who does it? Because “for her sake” isn’t just a technical act that in the end the bill of divorce should be written. If it were enough for a monkey to write the bill of divorce, then it would help—but no. Because on him he relies; he simply trusts him not to mess up the “for her sake.” That’s the point. He is more careful, like a particularly meticulous sacred-text scribe, not just any scribe. And it is personal, and therefore I don’t want to get into that, because elsewhere this will break down. The point is that I care about more than just the result.

But wait—even as far as the result goes, I mean, I don’t know how you write. Maybe you’ll write the bill of divorce in a problematic way. So obviously it might matter to me who writes the bill of divorce. Maybe you’re not an expert scribe. So that can happen in actions too. No, in actions too the same problem can exist. Why is it specifically with “mere words”? What, because actions can be done correctly or incorrectly, more carefully or less carefully? Maybe some actions? There are actions that can’t. Fine, but there are some that can. And in writing a bill of divorce, for example, there isn’t a problem. Meaning—yes, there is some problem here. Anyway, so it seems here that according to the Rashba, “mere words” is really a question of the sender’s settled intention, and therefore willingness is enough; he does not need actually to command.

Alternatively, says the Rashba, if the agent fell ill or was prevented by circumstances, so that the agent appoints an agent, this is because ordinarily, whenever he falls ill, it is the owner’s intention that he appoint another agent. Again, you see very clearly that the whole problem is what the owner wants. Therefore, if the agent fell ill, then obviously the owner would prefer that he appoint another agent rather than that it not be done at all. Although basically he wanted specifically that one, still, all along you see in the Rashba that the problem with “mere words” is that he is not comfortable with someone else doing it. Therefore once you express that there is willingness, then there is no problem. So the whole distinction of the Ketzot, for example, collapses here of course. There is no difference between saying to a particular person, write it, or choose someone to write it, or I don’t care if you find someone to write it, you do it or someone else—all these formulations are included in “say,” according to the Rashba. Right, so according to the Rashba this really is a case of an agent appointing an agent even in “say.” What? Yes—that “say” basically shows that he has no problem with it. Is that not agency? Right, it’s willingness, not indirect agency. According to the Ketzot, “say” is indirect agency. Let’s say according to the Rashba, it is entirely possible that even in “say,” the second agent is the first agent’s agent, not the sender’s. It’s just that I have no problem with the agent appointing an agent. It could be yes and it could be no, but it’s left open. According to the Ketzot, clearly the second agent is the sender’s agent, not the first one’s. Okay?

“And so too here, we are dealing with this kind of case, and they came here only to teach that the owners may appoint an agent, and that their agent appoints an agent according to its rules.” Okay? Meaning, when in our Talmud it says: this teaches that he appoints an agent, this teaches that she appoints an agent, this teaches that the agent appoints an agent—who is the agent that appoints an agent? The Rashba of course understood that this includes both a delivery agent and a receiving agent. Right? Because both can appoint an agent. Except what? Except that with a receiving agent there is of course a limitation: at least the woman must express willingness, that she agrees that the receiving agent appoint another agent, because without that it is impossible. So they didn’t get into that here, says the Rashba. The meaning is that the agent can appoint an agent without getting into the details right now of when and how exactly this is valid and when it is not. But there is a situation in which an agent also appoints an agent, without getting into the details right now. For the details, look at the topic of “mere words” and “say.” Okay?

And is there a possibility that the sender wants the agent to write an invalid bill of divorce? Meaning, I asked an agent to write the bill of divorce, and the agent doesn’t know how to write, with the intention that there should be no bill of divorce. I don’t know—if there is a presumption that he does not seriously intend to give the bill of divorce, then fine, yes; I don’t know, that depends on evaluating the reality, it’s not a question of law. You have to assess the reality. It’s like conditions, yes—like a condition saying “on condition that you ascend to heaven.” He conditions the bill of divorce on your ascending to heaven. So there are those who hold that “on condition that you ascend to heaven” simply doesn’t fit the laws of conditions, and therefore the condition is void and the act stands. And there is Rabbenu Tam—as brought in the old Tosafot on Ketubot—who says that obviously he did not mean to stipulate. Someone who stipulates such a thing obviously does not mean to make a condition; he’s just mocking her. He’s just mocking her. It’s not so simple; it depends on the situation, it depends on the context. If people speak that way, then fine, yes. I know everyday expressions: if hair grows on your palm—people speak that way. Okay. No, but sometimes he is trying to harass her. Meaning, he really does condition it on her ascending to heaven, only of course that can never happen. Because he wants to harass her. Fine, that’s not important. But I’m saying: there are situations where if the presumption is that the person clearly does not mean what he says, then fine, yes.

There is a Mordechai in Gittin that says this: “Rabbi Rabbenu Baruch raised a difficulty in chapter 2 of Kiddushin in Sefer HaChokhmah: but we say, ‘and he sent and she sent’ teaches that an agent appoints an agent, and this is nothing but mere words; so how can he appoint an agent?” What is the difficulty? So it’s not “mere words”—where did he decide that this is “mere words”? What, every agent is “mere words”? Clearly he understood from the structure of the baraita. It says: this teaches that the husband appoints an agent, this teaches that she appoints an agent, this teaches that the agent appoints an agent. Therefore it is clear that when they speak of an agent appointing an agent, they mean the two agents mentioned above: both the delivery agent appoints an agent and the receiving agent appoints an agent. And on that he asks: with a delivery agent that’s obvious, there is no problem, but with a receiving agent that is “mere words.” Meaning, his assumption is that when they talk about an agent appointing an agent, it refers to the two types of agents above—though not everyone agrees. What? Like the Rashba. Yes, like the Rashba. “So how can he appoint an agent? And some explain that receiving a divorce document or betrothal is a complete act.” It is not “mere words.”

Notice the implication: then you don’t need “say.” It’s not “mere words”; it’s a complete act. So the limitations of “mere words” don’t apply. This is not about “say,” unlike what we saw above, where even in our case we were talking about “say,” some sort of willingness according to the Rashba, doesn’t matter, but in a situation where you solve the problem of “mere words.” Here he claims—the “some explain” before “my teacher the priest”—that receiving a divorce or betrothal is not called “mere words.” “Mere words” is when you send an agent to write a bill of divorce. But when you send an agent to receive a bill of divorce or receive betrothal, that is not “mere words.” Therefore there is no problem if the agent, even on his own initiative, appoints another agent; no “say” is needed and nothing else is needed. The law of “mere words” does not exist here. Why? What is the definition? He says: because receiving the divorce document or betrothal is a complete act. What does “complete act” mean?

Now this is a bit strange, because the second agent is the one who will perform the act. Because “mere words,” as I understand it, means he did not transfer anything from the first agent to the second. Here he says that he did transfer something because the mission—the mission was—no, the content of the mission. He is talking differently. Until now we thought “mere words” meant that if there is an object that you transfer from agent to agent, as in delivery, something like that, then it is not “mere words.” If you transfer only a task verbally, then it is “mere words.” He says no—the question is what the content of the mission is. You don’t need to transfer an object. If the content of the mission is to receive some object, then that’s fine, even if he receives it when he performs the agency, that is called a mission that is not “mere words.” It’s a mission to do something, even if you did not receive the object from the sender; you will receive the object from the opposing side’s agent. What? Like a receiving agent. Exactly. But as long as into this receiving vessel enters some object, perhaps—or a complete act, we’ll soon see that issue—then it is not called agency of “mere words” and you don’t need “say.”

Now according to this, of course, unlike the Rashba—the Rashba noted above, and not for nothing, that “the agent appoints an agent” means both a delivery agent and a receiving agent, but of course with the required limitations, that with a receiving agent you need “say,” and so on. He says no, no: receiving agent and delivery agent—that is exactly what they want to tell you here, that in both of them an agent can appoint an agent and this is not “mere words”; there are no limitations. It doesn’t belong to “mere words.” “Mere words” is only when you appoint an agent to write a bill of divorce. An agent to receive a bill of divorce—that is not “mere words,” unlike what we’ve seen until now.

Now it isn’t completely clear what he means when he says “it is a complete act.” What does “complete act” mean? So look, one could say—I don’t think that’s the implication of his language—but one could say that he really means that no object passes here from the woman to the agent, but there is some action that will be done by means of an object, receiving a bill of divorce or betrothal. In agency to write a bill of divorce there is nothing at all; you have to write. It is agency for an act; nobody here transfers an object from one to another. You perform a physical act of writing, but that is an act, not an object. Maybe that’s what he means, although when he says “complete act,” he doesn’t say “complete object.” What does “complete act” mean? Why do I say this? Because he says: “And from my teacher the priest”—I continue reading—this is brought as though it were another explanation, although one could say it means the same thing.

“And from my teacher the priest I received: wherever the matter is not completed by the agent, it is considered mere words and is not transmitted to an agent. But receiving the bill of divorce is the completion of the matter.” When you receive the bill of divorce, that actually effects the divorce, it completes the procedure; it’s not “mere words.” “Mere words” is always something in the middle of the road, where the matter has not yet been finalized. Okay? Therefore he says: but writing, where he said to the witnesses—that counts as “mere words,” because the matter is not completed until the giving of the bill of divorce. In any case, agency for writing is “mere words.” And although Rabbi Meir and Rabbi Yehuda disagree with Rabbi Yosei regarding “mere words,” whether they are transmitted to an agent, that is only when he made them into a court, such as when he said to three people. But when he said to two, who are not a court, everyone agrees that they are not transmitted to an agent.” In other words, his claim is that even one who disagrees with Rabbi Yosei agrees that “mere words are not transmitted to an agent”; he claims that in a court one can make a second agent with “mere words,” but if it’s not a court, then everyone agrees. It’s not important right now. For our purposes, practically speaking, “mere words are not transmitted to an agent.”

What is the difference between the explanation of “my teacher the priest” and that of “some explain”? It isn’t entirely clear. It could be that this is exactly the same meaning. What does “it is a complete act” in the “some explain” mean? “It is a complete act” means it completes the act, the act is complete—which is exactly the definition of “my teacher the priest.” No—“complete act” as opposed to speech, almost like… No, “my teacher the priest” says that a complete act is what finishes the legal effect. So then isn’t writing a complete act? Why is writing not an act? He means that writing, in his eyes, is a kind of speech. So it’s not a complete act. What does it mean, a form of speech? You’re not writing a letter; you’re writing a bill of divorce. You’re preparing the object of the bill of divorce. It is literally preparation of a bill of divorce—how is that different from processing the parchment? So that’s it: it’s not clear to me what he means, I don’t know. It is brought here as two explanations; perhaps one could say that “my teacher the priest” is just clarifying more fully what “some explain” mean—I don’t know. But it really is a question; I don’t know what to say.

In any event, for our purposes, he makes the question of “mere words” depend on the content of the agency, not on the question whether an object was transferred from hand to hand or whether it was only words, but on what the content of the agency is. If the content of the agency is to perform an act that completes the matter, then it is not “mere words.” If it is an act that is in the middle of the process—basically just some act that has no definitive legal consequences—then that thing is “mere words.” I’ll maybe just bring an example for this. But really there is something not very intuitive here, because I would have expected that if “mere words” is weaker, then the opposite: it should be easier to appoint an agent for “mere words,” not harder. If the distinction is between complete act and incomplete act, whether it finishes the matter or doesn’t finish the matter, I would expect the opposite—that appointing an agent who finishes the matter… And this joins the things we said at the beginning: these conceptual arguments can go in both directions. I agree with both of them—but both directions. Because the law of agency basically says that the legal effect you bring about can be attributed to me as though I brought it about. So if you are not bringing about any legal effect, then maybe the law of agency doesn’t apply to that. You are performing an act; the act is one I need to perform. If you say: perform some legal act here that has consequences and do it in my name—that is the novelty of the concept of agency. So one can understand it either way.

No, what do you mean? There is a consequence in the sense that the bill of divorce is valid or invalid, but there is no legal or halakhic effect in the world; it doesn’t create a result in the world. It’s like the fact that my putting on phylacteries has a consequence—I fulfilled a commandment—and still you cannot do it by agency… No, that’s for another reason, because it requires that I do it, that I put them on. Okay, it doesn’t even need me to do it; I can send someone, but he has to put it on my arm. Fine, not important—it will be placed on me. But here that is exactly the point, or at least the initial assumption, that when you appoint an agent for an act, the act is something you have to do. At most you can say that the legal effect the agent brings about belongs to me, is attributed to me. That’s where agency applies, but only in an act that creates legal effects. And if it’s an act that merely does things, then maybe it’s like phylacteries, maybe it’s like…

One has to remember that this is only the problem of “mere words”; it is always a problem for a second agent, not for a first agent. In other words, there is agency for a first agent, so it’s not like commandments in any case, because agency to write a bill of divorce certainly is possible—I can say to a scribe, write me a bill of divorce. I cannot say to someone, put on phylacteries for me. But I think the idea is nevertheless a similar one.

In tractate Nazir, the Talmud talks there about… the Talmud discusses someone who vows naziriteship except for wine, right? Or without wine or without impurity—a partial naziriteship, okay? So the Talmud says that this is full naziriteship because it is a condition against what is written in the Torah; the condition is void and the act stands. Meaning, he vowed naziriteship on condition that he may drink wine—he is a nazir and forbidden to drink wine. So Tosafot there says: “For when he said, ‘Behold, I am a nazir,’ naziriteship took effect upon him in all respects, and when he said ‘on condition,’ he imposed a condition on what is written in the Torah, and the condition is void.” “And if you say, let him derive it from the fact that naziriteship cannot be performed through an agent, as is said in tractate HaMadir that we require a condition similar to the case of the children of Gad and the children of Reuben, where the act was carried out through Joshua, who was Moses’ agent, and there a condition works to undo the act and not elsewhere.” He says: you can’t stipulate conditions regarding naziriteship because it’s something that… cannot be done through an agent. And there is a rule in the Talmud in Ketubot—we talked about this rule—that something about which you can stipulate conditions is only something that exists in agency. We talked about this with Rabbi Shimon Shkop: your control over the matter is complete, and therefore you can stipulate conditions and you can appoint an agent. So he says there’s a problem here because this act cannot be done through an agent, so why does the condition work here? Now here the condition doesn’t work in principle only because it is a condition against what is written in the Torah; in principle it is a condition. He asks: why in principle is it a condition?

So the Shitah Mekubetzet brings in the name of Rabbenu Azriel: “And here it is not relevant to require the rule that the condition be possible through an agent like the condition of the children of Gad and the children of Reuben. That applies specifically to an act done physically, such as acquisition, halitzah, bill of divorce, betrothal, and the like. There, certainly, if it cannot be carried out by another but only by himself, then the act is strong, and even if the condition is not fulfilled, the act is not nullified. But vow and naziriteship, where no physical act is needed, only that he should be careful and guard himself, it is not strong enough to stand if the condition is not fulfilled.” In other words, he says vow and naziriteship are speech, not actions. And speech is something you can make conditions about even where it is impossible through an agent. Okay—that’s the claim. Without getting into all the details right now.

The Kovetz Shiurim there comments on this that it cannot be that the matter is speech. Why doesn’t Tosafot like that explanation? Because naziriteship is not speech. Why? Because following the speech of naziriteship there is a legal effect: I become a nazir. There are things acquired by speech, but the fact that I do it with my mouth does not mean it is “speech.” “Speech” means that I talk and there are no legal consequences; it is just speech alone. That is speech. But if speech has a practical halakhic result, then that thing is an act. As a practical consequence, yes, the Kovetz Shiurim brings there the rule “speech does not come and undo speech”—here, after all, what is the problem? When the thing is speech, then speech can come and undo speech. Therefore you don’t need the novelty of the laws of conditions to make a condition on something that is speech. The whole reason you need the novelty of the laws of conditions is because without that novelty we would say: the speech of stipulation is speech, and speech cannot uproot an act. But if the act is not an act and only speech, then the speech of stipulation can uproot it even without the novelty of the laws of conditions. And therefore there it could be that even when it is not subject to agency, or something like that, it doesn’t matter. It doesn’t fulfill the laws of conditions—so what? You don’t need the laws of conditions in order to uproot speech.

An interesting question then is why “a condition against what is written in the Torah” does apply here. So if you don’t need the laws of conditions, then everything is fine. Or perhaps “a condition against what is written in the Torah” is not from the laws of conditions at all, but another law—that you cannot stipulate against the Torah, not because you didn’t do it according to the laws of conditions and therefore the condition is not strong enough, but rather no, you cannot go against the Torah. That is a discussion in its own right. In any case, the Kovetz Shiurim says: in a case where the speech contains a result, contains some legal effect—there is a halakhic or legal consequence—you cannot say that now speech can uproot this because it came about through speech. It came about through speech, but now there is a practical result. How can speech change a practical state? And therefore in such a case, he says, this is speech that undoes an act. He claims that this is why Tosafot does not accept Rabbenu Azriel. He says: because if speech causes an act here, then it is an act, not speech.

There is a commandment to accept the Sabbath before the Sabbath enters. Therefore, in ceremonies where usually in practice they recite the Sabbath acceptance after the time when the Sabbath begins, one says the sentence: “I hereby accept upon myself the Sabbath with respect to the prohibition of labor.” That sounds like a condition—meaning, according to what you’re saying, I accepted Sabbath upon myself in every respect. That is not a condition at all. First of all, in the plain sense that isn’t even necessary. Because if the community accepted the Sabbath upon itself, then the Sabbath begins based on the community’s acceptance. Whoever wants to be strict and personally accept it upon himself, fine, but it is not a condition in any way. Why is that a condition? What are you stipulating here? That I accept half a Sabbath. I accept the Sabbath with respect to prohibition of labor, meaning that… No—that is at most a reservation, not a condition.

By the way, in that very topic in Nazir, there is a dispute among the Amoraim—Rabbi Yehoshua ben Levi and Rav Chisda, I think—about whether someone who says “I am a nazir except for wine” or “on condition that I drink wine,” whether that is a reservation or a condition. A reservation means: I accept upon myself half a naziriteship. A condition means: I accept naziriteship on condition that I not drink wine, and if it turns out that I need to be allowed to drink wine, then I don’t want to accept the naziriteship, so I cancel all of it. That’s a different mechanism. Here, at most, you accepted Sabbath for a certain purpose. That is not a condition; it is a reservation. Okay? If you say: I accept the Sabbath upon myself on condition that it still be permitted for me to do, I don’t know, trapping—but not selecting, only trapping—that won’t help. That is a condition against what is written in the Torah. Are you saying this before Sabbath enters or on Sabbath itself? It doesn’t matter when—you cannot accept Sabbath in a way different from how the Torah defines it. Meaning, if you stipulate that Sabbath, like one who betroths a woman on condition that she has no claim against him for food, clothing, and marital rights. Betrothal includes food, clothing, and marital rights. That won’t help. You cannot stipulate against what the Torah prescribes. The Torah says there are thirty-nine primary categories of labor that are forbidden, and their derivatives. You cannot say, “I accept upon myself a Sabbath of 20 labors.” Maybe as a vow it could work, but that is not Sabbath acceptance.

Now, regarding a delivery agent in betrothal: we have just spoken about a delivery agent in divorce, a receiving agent in divorce, and he also said receiving in betrothal and divorce. What about a delivery agent in betrothal? There is a dispute among the medieval authorities on this issue. It’s interesting. On the face of it, there it is completely like a delivery agent in divorce: you receive the money of betrothal or the document and you betroth the woman. Right? It’s interesting whether one can betroth a woman through an agent who will have intercourse with her. Money, document, and intercourse—those are the three ways to betroth a woman. If you betroth by means of an agent, can that be done through intercourse? In the plain sense, no, but I don’t know. Maybe it’s like phylacteries? Huh? Could be. Although there’s also a problem here, because the moment he has intercourse with her she becomes a married woman, so he is having intercourse with a married woman. In short, there is room here for pilpul. Her becoming married and the intercourse come simultaneously. Fine.

In any case, Tosafot Rid says as follows. Tosafot Rid is actually on our passage, by the way—not on 66b—therefore the medieval authorities discuss it here. “We found it in divorce; from where in betrothal? Meaning: from this we derive in betrothal that the man may betroth through an agent, but not that the agent may appoint an agent, because these are mere words.” This is what is learned—yes, this is the continuation of the Talmud. The Talmud, after learning the source for agency in divorce, says: we found it in divorce; from where in betrothal? How do we know there is agency in betrothal? So they say: “and she went out and she became”—betrothal is linked to divorce. There is agency in betrothal too. Yes, but not entirely. Sorry, you said betrothal comes through an agent. Isn’t it written somewhere that it parallels possession in a field? No, the opposite. I once discussed this in lectures—I think in the introduction to this semester—that one of the great wonders is that the Talmud and the medieval authorities, except for Nachmanides I think in one place, don’t even remark that when they look for a source for marrying a woman, after all there is the comparison to Ephron’s field. “Taking, taking.” So what is the problem? A field is acquired by money, document, and possession, and a woman by money, document, and intercourse. And intercourse is literally possession—it is use of the woman; if I had to define possession in a woman, that would be intercourse exactly. And yet the Talmud asks: from where is document derived? from where is intercourse derived? Why? There is a comparison, and a verbal analogy isn’t partial. That’s a very good proof, I think, that they don’t really compare a woman to a field. And it’s probably not entirely a verbal analogy either. It’s a revelation of the meaning. What? I’m saying, the Nachmanides you mentioned doesn’t also… No, Nachmanides asks this as a question. Ah, he asks it as a difficulty. A difficulty. Others don’t even ask, because to them it is so clear that these are two different things. The question is whether if you bring verses for “from where”… I don’t know what was newly taught there. Fine, that is always a question.

Huh? That still stands. If possession is ineffective where the original owner objects in advance—at least during the first three years. Meaning, if there is an opposing intention regarding acquiring the field, possession won’t work. A document will. Fine, in any case, you’re mixing concepts here. Presumptive possession of three years in land is evidentiary possession, not acquisitive possession. We are speaking here about locking, fencing, or breaching. That’s in the Mishnah later, chapter 3 of tractate Bava Batra, not the first mishnah there. You are talking about the first mishnah, the presumption regarding land of three years. There you need the previous owner not to protest. If the previous owner protests, then I need to preserve the deed; anyway, all the discussions there in Bava Batra. I’m talking about acquisitive possession, not evidentiary possession. There it is evidence that there was an acquisition—I had a deed and it was lost. After three years I can make that claim, and the fact that he didn’t protest is evidence. But I’m talking about possession—how do I… we agreed you would sell me a field, okay? Now how do I physically acquire it? How do I perform the act of acquisition? Lock, fence, breach. That is possession. Or money or document. Okay? If you don’t agree, you can’t acquire by money, document, or possession. If you don’t agree, you cannot acquire it. It’s your field. We’re talking where you do agree. There they’re talking about protest, not that you don’t agree. You claim you never sold it at all. You have a dispute whether there was any sale in the first place. He claims there was no sale, and you claim there was. That’s a dispute in the laws of evidence. It’s not a dispute about whether… Okay?

The first thought is that if that is the parallel in possession, then an agent should help there, just as it helps in possession. Is that right? Yes. But the distinction one could still make—fine, you say that’s not true at all, it’s not parallel to possession—but even if you did say it was parallel to possession, it still wouldn’t be similar, because possession commonly involves a person using his property through an agent. Meaning, that too is my use of the land if I sent someone to perform possession there. Use that is intercourse—no? Intercourse—no, nobody uses his wife through an agent. But then you wouldn’t need him to be your agent in possession. If you use it through someone else, that counts as your use, so you don’t need to appoint him as an agent. That is your mode of use—to let someone else plow the field. When you speak of doing it by means of an agent, it means that he represents you, that what he does is in your name or place.

So he says: “But not that the agent appoint an agent, because these are mere words—he said to him: go betroth a woman for me. But if he handed him some object, that is not similar. And even if he handed him some object, it is not similar to a bill of divorce.” First of all, you see the underlying assumption. The assumption is that “mere words” or not depends on whether you hand over an object. That is the accepted view among the commentators, although above we saw several other views. Okay? But he says here that in this case, even if he handed him some object—for example, the money for the betrothal—that is still not like a bill of divorce. Why? “Because the bill of divorce is the thing that divorces, such that if the bill of divorce is lost, the agent has no power to divorce her. But the betrothal object that he handed him—if it is lost, he can betroth her with his own.” There is the law of the Canaanite slave and the law of the guarantor, so you can give your own money and betroth the woman on behalf of someone else. So the money you received from the man who betroths is not essential to the act of betrothal. It follows that the essence of the agency is “mere words.” The agency is not to give this money to the woman; the agency is to perform the act of betrothal. He gives you the money, but your agency is not to give this money to the woman. As far as I’m concerned, you can give other money, and then this money will just reimburse you so that you don’t lose the betrothal money. But you are appointed to perform an act, not to receive an object. Therefore he claims this is “mere words.”

Now clearly he understands that although as a result of this act the marital bond is created, right—according to all the definitions we saw above, the act is completed by this action—still, for him, that has nothing to do with “mere words.” We see that even though the act is completed, as long as you did not receive an object, it is “mere words.” Even where you do receive an object, that is only where the object is essential to creating the legal effect. But if the object is incidental, and really the main point of your agency is to perform an act, not tied to this particular object, then I don’t care that you received an object. It is still “mere words.” That is basically the claim. In its subtext, this is the prevailing approach to “mere words.” The prevailing approach to “mere words” is whether an object was transferred or not. Although to me it is strange, that is the accepted approach. He just qualifies it by saying that the object must also be essential, not an object that has substitutes.

Okay, I just want to finish—there is here the Kedosh MiRadosh. Maybe let’s do this piece too. The Mordechai interested me here only as points regarding an agent appointing an agent; I’m not really getting into that topic. “The man betroths”—he learns from there that an agent appoints an agent. This is a photograph of the Mordechai, yes, on our passage at the beginning of the chapter. “And even according to Rabban Shimon ben Gamliel, who says in the chapter ‘Kol HaGet’…” Sorry, a gloss, yes, here. “The Kedosh MiRadosh ruled that one who appoints an agent to betroth a woman and hands him the ring to betroth her—even if he was delayed on the road—cannot appoint another agent, because these are mere words, and mere words are not transmitted to an agent. And even though regarding a bill of divorce we hold that an agent appoints an agent and it is not mere words because of the delivery of the bill of divorce, here too there is delivery of the ring.” On the face of it, it’s the same thing? He says: not similar. “Because with a bill of divorce, a woman can be divorced against her will, and as soon as the bill of divorce reaches the hand of the agent, it is as though she were divorced. Therefore this is not mere words, for the agent can divorce her against her will, because the hand of the agent is like the hand of the husband. But with an agent for betrothal, if the woman does not demand—really, agree—she is not betrothed. Therefore it is mere words.”

This is different from what we saw above in Tosafot Rid. Where is the practical difference? Betrothal by document. Right? According to Tosafot Rid, betrothal by document—is that “mere words” or not? No. Because the document is essential to the betrothal; he cannot use another document. The document has to be written by the one betrothing, right? So it’s like divorce. Only money, in his view—even though I handed over the object—is still considered “mere words,” because the money is not essential. Okay? According to the Kedosh MiRadosh, he claims that since the matter depends on the woman—it’s like a Rashba in the laws of blessings, yes? About something on which you don’t say a blessing, like charity, because the poor person may not take the charity, or because it depends on someone else. There’s that responsum of the Rashba that… what? So I need to make a blessing? No, nobody needs to make a blessing. I’m not doing any commandment. What, are you benefiting him? Yes, well known. We came first of all to benefit you. Right. Anyway, the Kedosh MiRadosh claims that the criterion for “mere words” or not is whether the act is finalized. In that respect it is very similar to what we saw in the previous Mordechai, that it depends on completion of the act, in the name of “my teacher the priest.” Yes, it depends on completion of the act.

But here he says—this is more nuanced than that—because in a delivery agent, meaning I assess completion of the act not when the act is done, but when I hand the task to the agent. The moment I handed the bill of divorce to the agent, I am basically already out of the picture, because the agent stands in my place, and the woman can do nothing, because she may be divorced against her will. So the act is complete. Not because at the end the act will effect divorce, but because the moment I handed the bill of divorce to the agent, it was over. That’s it; nobody has anything more to say. In betrothal it is not like that. Even if I handed him my full authority, the woman can refuse. Now that is true in betrothal by document too, not only betrothal by money. Right? There too there is no difference between money and document. It is not like what we saw above, where the question was whether the object is essential or not essential. Here it goes according to the concept of completion of the act. But this is completion of the act in the sense of whether appointing the agent is final—not whether the act the agent will eventually do is final. In short, from this you can get an impression of the different directions regarding “mere words.” For our purposes this is enough.

I just want to finish with famous words of Rabbi Akiva Eiger in Gittin 32. He discusses the question of what the meaning of “mere words” really is. What is the invalidity of “mere words”? So he says: “At first glance one could ask: why does it work through an agent? We hold that mere words are not transmitted. And according to several halakhic decisors, like Rabbi Yosei, even ‘say’ is invalid. And it would seem that the main dispute whether ‘say’ is valid or not depends on this.” What is the dispute whether “say” is valid or not? He says that this is the dispute. The dispute is over what the invalidity of “mere words” is. The qualification of “say” expresses two different conceptions of the invalidity of “mere words.” What? “According to the one who says that ‘say’ is valid, the main rule that mere words are not transmitted to an agent means that the agent has no power to transfer his own authority under the rule that an agent appoints an agent, if he is not transmitting to the second one an act but only mere words. Therefore, without ‘say’ to the scribe, but only telling him ‘write,’ where he thereby becomes the husband’s agent, he has no power to return and transfer the authority of his agency by saying to another ‘write,’ since he transmits only mere words. But one agency is possible through mere words.”

The agent who received “mere words” cannot transmit that to a second agent, but appointing an agent for “mere words” is possible. When I say to the scribe, “write,” there’s no problem; the scribe can write. Okay? Therefore the whole problem of “mere words” is in the transfer from the first agent to the second. That is the accepted understanding. Okay? Even though it isn’t the plain sense of the language—“mere words are not transmitted to an agent” sounds as though there can be no agency in matters of words. But this is the accepted understanding because in the plain reading of the topics that is what comes out: the whole problem with “mere words” is the transmission from the first agent to the second. “That is, that the husband can appoint an agent for mere words, and we say that the mere words through which he appoints the agent are like the words of the owners themselves. Therefore ‘say’ is valid, because the husband appoints him for this purpose—to speak the command to the scribe, ‘write,’ so that the agent will do this on his behalf. And when the agent says to the scribe ‘write,’ he is not transferring to him his own authority under the rule of agent appointing agent, but rather he is doing so as the sender’s agent, and for this very thing he is an agent: to say to the scribe ‘write’ in place of the husband.”

His agency is not to write, but to tell the scribe to write. Now when the scribe writes, he does so as my agent, not as the first agent’s agent. Therefore there is no problem at all: the first agent does not transmit to the second agent the “mere words” that he received. He didn’t receive any such thing. He has no authority to write a bill of divorce; he has authority to appoint someone to write a bill of divorce. That is “say.” Of course, according to this—and I remind you of what we saw above in the Ketzot—according to this the Ketzot is indeed right that willingness is not enough. Willingness is not enough; you have to tell him to appoint an agent—so-and-so as agent, or at least to appoint an agent even if not so-and-so. That’s on the side that says “say” is valid.

What does the one who says “say” is invalid hold? “But the one who holds that ‘say’ is invalid holds that even a single agency does not take effect through mere words. There is no power to appoint an agent on mere words alone.” He says: if “say” is invalid, how can that be? After all, in “say,” as he explained above, the second agent is the sender’s agent. The first agent does not transmit to the second agent anything from the agency he received. So what is the problem? Why is “say” invalid? How can that be? It must be that the view that “say” is invalid understands that the problem of “mere words” already exists with the first agent. The first agent cannot appoint the second because he himself is not an agent. No—the problem is not in appointing the second agent, but rather he himself cannot be an agent; this is agency for “mere words.” You cannot be an agent. So even if I told you to appoint someone else, I appointed you as an agent for “mere words,” and that is impossible. The first agent is not validly appointed, not the second one. Therefore even “say” won’t help so long as this is “mere words.”

“And there is no power to appoint an agent on mere words alone, and therefore the husband cannot command the scribe to write through an agent, because what the agent says to the scribe, ‘write,’ is not like the husband saying it, since the power of agency does not take effect through mere words alone.” When the agent now goes to the scribe and tells him “write,” since the agent is not the husband’s agent because there is no agency for “mere words,” then the one who told the scribe to write was not the husband. And that—that is the problem of “for her sake.” Okay? That takes us back a bit to Nachmanides.

The big question that arises here is: so how can I myself say to the scribe to write? After all, that is agency for “mere words.” No—I, the husband, am there myself. The husband goes to the scribe and says, write. Now, if “mere words” doesn’t work even for a first agency, not only when an agent appoints an agent, then how can the husband appoint a scribe to write? So what will you say, illiterate people can’t get divorced? Yes, if that’s not reasonable—but that is what seems to come out of his words; it’s a difficulty on him. The answer is… I don’t remember whether he himself writes this or this is how people explain him, but when you tell the scribe to write, that is not agency at all. The scribe does not need to be your agent. It is only by virtue of “for her sake.” You remember the Ketzot on Nachmanides? The Ketzot on Nachmanides said there are two things: one must express “for her sake,” and he must be your agent. Therefore because of the laws of “for her sake,” “mere words” won’t help here. According to Rabbi Akiva Eiger, on the view that “say” is invalid—and we said this is a dispute among the halakhic decisors—telling the scribe to write is not appointing agency; it is simply turning his writing into writing “for her sake.” That’s all. The scribe does not need to be my agent.

But the woman’s agent—what is the agency there? Is that also not agency? I didn’t understand. No, in betrothal, the woman’s agent… who says that is “mere words”? I’m saying it depends on all the disputes we’ve seen until now. According to his position, it has to be that a receiving agent in divorce and betrothal is not “mere words,” because if it were “mere words,” then one couldn’t appoint a first agent there either. Yes, that’s what… but fine, there are plenty of medieval authorities who say that, so it’s not terrible. But there are medieval authorities for whom it is clear that he is not right.

Okay, we’ll stop here. I don’t want to get into the details of the topic of “mere words,” only to understand the concept of an agent appointing an agent. We’ll continue onward regarding “and she went out and she became” and terumah as sources for the law of agency.