Kiddushin, Chapter 2, 5783, Lecture 12

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[Rabbi Michael Abraham] Wait, we’ll see in a second, we’ll see — that’s exactly what the Pnei Yehoshua says here. So from the Mishnah, basically, you see that agency works for terumah. Where do you see it? Simply, right at the beginning, as we learned: “If one says to his agent, ‘Go separate terumah,’ he separates according to the owner’s intent.” So you see that agency is effective for separating terumah, right? Just from the opening words. Does that mean agency is required for terumah? No. He appointed an agent here, but it could be that even without appointing an agent one can separate terumah, either through the second mechanism or the third mechanism. But it is true that you see agency is effective; that you definitely do see. Is agency necessary? That’s a different question that needs discussion. But it could be that the phrase “his agent” here is just ordinary language: he tells someone else to separate terumah, but it doesn’t really mean an agent in the essential legal sense of the word; maybe it means one of the other mechanisms. So you’ll ask: then what about the word “says”? From the fact that it says “if one says,” it sounds like this is an agent. That’s why I said beforehand: no — the other mechanisms also require the grain-owner to say something, because in this particular case — not always, but in this particular case — it definitely may not be a benefit for him, because he wants the commandment for himself, or he doesn’t want you going into his granary and applying the designation there. The designation of terumah requires that he at least express consent. So speech is required whether we are talking about the first mechanism, the second, or the third. And from the fact that it says “if one says,” you can’t infer that we’re dealing with an appointed agent, because statements are required in all three mechanisms. The word “his agent” itself seemingly says there is an agent here, but even that is not certain. It could very well be that “his agent” means he tells someone else — de facto he is his messenger — but not that he formally appointed him as an agent. Rather, he says to the person, “Go separate terumah,” meaning: I have no problem with it, go ahead and separate, I’d be happy if you do, and so on. He’s not appointing him as an agent. And if that is really the case, then it could be that from this passage in the Mishnah you cannot bring proof that there is agency in terumah. If you do want to bring proof that there is agency in terumah, then apparently you have to learn that we really are talking here about a formally appointed agent. Now if we’re talking about acquisition on another’s behalf, that’s already a more interesting question, because if this is acquisition on another’s behalf, one could say: fine, true, acquisition on another’s behalf is not agency, but if acquisition on another’s behalf exists here then agency exists as well. Meaning, especially if acquisition on another’s behalf is because of agency, then even if I explain this as acquisition on another’s behalf, I can still understand that the Gemara brings proof from here that there is agency in terumah, because agency is like acquisition on another’s behalf — acquisition on another’s behalf is a kind of agency. So true, here it’s acquisition on another’s behalf — why should I care? But bottom line, you see that agency is relevant to terumah. If acquisition on another’s behalf is not because of agency, then here there is room to discuss it, as we saw regarding acquisition on behalf of a minor, where that does not mean there is agency. The Gemara there rejects the proof by saying there is a law of acquisition on another’s behalf, so don’t learn the law of agency from there — but there it’s talking about a minor. Therefore there you can indeed say: fine, it works by virtue of acquisition on another’s behalf, but that doesn’t mean there is such a concept as agency. But here there is no principled problem with an agent; we’re talking about an adult speaking to an adult, not a gentile, nothing like that. Meaning, in principle there is no problem — unless there is no concept of agency in terumah. But if there were no concept of agency in terumah, then acquisition on another’s behalf also simply would not work. Therefore here, unlike acquisition for minors in the division of the land, if I explain this as acquisition on another’s behalf, it is still fine to learn from here the law of agency. But one could also explain it by the third mechanism, which is just consent, and then certainly you cannot learn from here the concept of agency. Now let’s look at the Pnei Yehoshua. “If he decreased by ten or increased by ten, his terumah is valid. And it seems to me that it was necessary to bring the latter part of the Mishnah.” He says: our Gemara brought the entire Mishnah. Let’s go back for a moment to the Mishnah — look at the Mishnah — and he asks: why didn’t our Gemara bring only the opening clause: “If one says to his agent, ‘Go separate terumah,’ he separates according to the owner’s intent”? That’s it. Why do you need the rest? “If he does not know the owner’s intent, he separates an average amount, one out of fifty. If he decreased by ten or increased by ten, his terumah is valid” — why do we need all the rest? Just say the beginning: “If one says to his agent, ‘Go separate terumah,’ he separates according to the owner’s intent” — you see there is agency in terumah. So I already noted what I noted, and that already gives us a hint toward a possible solution, because apparently from the opening clause alone it was not certain one could understand that there is a law of agency in terumah. By the way, the Pnei Yehoshua’s question — we’ve already seen harder questions than this. The Gemara very often, just in the flow of things, quotes the whole baraita or the whole Mishnah even though it really needs only part of it. We’ve seen such things more than once. The question isn’t all that difficult; I assume the Pnei Yehoshua understands that too. His answer is better than the question, but the answer is still good. Meaning, leave aside the question — the question is only methodology, how one presents the answer or says it in a lecture — but he probably really intended to say the answer. “And it seems to me that it was necessary to bring the latter part of the Mishnah, because from the opening clause nothing is proven that we are dealing with agency, for one could say it is because it is a benefit for him, and one may act to a person’s benefit in his absence.” Maybe the opening clause works through acquisition on another’s behalf, and therefore you cannot learn from here the law of agency. Why can’t you learn the law of agency from acquisition on another’s behalf? As we saw later in the Gemara concerning the division of the land, where the Gemara says: how can you learn the law of agency from there? Maybe there it is the law of acquisition on another’s behalf. So you see that if something works by virtue of acquisition on another’s behalf, you cannot learn agency from it. And of course that isn’t really correct, as I said before, because there it’s truly a problematic case, since there is no agency for a minor. So they say: fine, there it works because a minor can have acquisition on another’s behalf, but from the fact that there it worked by acquisition on another’s behalf, you can’t know whether the concept of agency would work. In our case, even if it is effective by virtue of acquisition on another’s behalf, that is not because agency doesn’t apply here. If acquisition on another’s behalf works, then agency works too. Therefore it seems to me that his point is really not that strong, because even if it works by acquisition on another’s behalf, that would still prove to me that there is agency in terumah. If I add what I said earlier, his point becomes stronger.

[Speaker E] I’m saying—

[Rabbi Michael Abraham] At least if acquisition on another’s behalf is based on agency, at least. Right, you are correct that if acquisition on another’s behalf is not based on agency, then there is room to discuss it — because perhaps the intention is acquisition on another’s behalf based on agency. And that is a different kind of agency. But still, why assume agency would not exist here? If acquisition on another’s behalf is effective here, then agency is effective here too. An analogy — what’s the problem? Why not learn one from the other?

[Speaker B] If in acquisition on another’s behalf you later reveal that in fact he wasn’t pleased with it, does that cancel the acquisition on another’s behalf?

[Rabbi Michael Abraham] Afterward? That’s exactly what the Gemara discusses on this very Mishnah. If he comes afterward and says, “Go to the better produce,” then if he says, so to speak, “Go to the better produce,” if no better produce than these was found, then indeed it is not terumah.

[Speaker B] I’m talking about the law of acquisition on another’s behalf here — this is part of the discussion here, which mechanism is operating.

[Rabbi Michael Abraham] In the law of acquisition on another’s behalf, all the more so. If he reveals that in his view this is not a benefit for him, then certainly it did not operate. If in agency that helps, then in acquisition on another’s behalf it certainly helps. No, it’s not certain that it’s like that. I’m saying: if in agency it works, then in acquisition on another’s behalf it certainly works retroactively. Why? Because in acquisition on another’s behalf all you need is that it be a benefit for me, and I revealed that it isn’t. In agency, you could say that unexpressed intentions are not legally significant. You appointed him as an agent.

[Speaker B] Yes, but one could have said that even in acquisition on another’s behalf it doesn’t work.

[Rabbi Michael Abraham] No — one could have said it, I’m just saying the hierarchy is clear. Meaning: if retroactive disclosure in agency cancels the consent, then in acquisition on another’s behalf it certainly cancels the consent.

[Speaker B] You can still distinguish, but it doesn’t matter to me that much. Fine, okay. But it seems that this weakens the Pnei Yehoshua’s argument a bit. There? Because now the Pnei Yehoshua suggests that from the latter clause you see it better. Right. From the latter clause of the Mishnah. It also says there that it works, even though the owner revealed his opinion. Okay. But if you say that even in acquisition on another’s behalf that revelation would not cancel it, then the Pnei Yehoshua is not right that the proof comes specifically from the latter clause.

[Rabbi Michael Abraham] Who said it wouldn’t help? But it would help.

[Speaker B] I don’t know — that’s exactly what I’m asking. Who says it would help?

[Rabbi Michael Abraham] The Gemara says so there. Not here — there.

[Speaker B] The Gemara says — what does he—

[Rabbi Michael Abraham] If he says, “Go to the better produce,” then it does not work.

[Speaker B] It doesn’t work to cancel?

[Rabbi Michael Abraham] No, it doesn’t work — the separation isn’t effective.

[Speaker B] The separation isn’t effective. Right. The Pnei Yehoshua says from that the opposite — wait.

[Rabbi Michael Abraham] Here it says: “He decreased by ten or increased by ten.” In Bava Metzia, in “These Found Objects,” there, regarding unconscious despair, the Gemara begins to discuss: wait, what exactly is the case there? If afterward he comes and says, “Go to the better produce,” or not “go.” If better produce was found, then it needs to be discussed in the passage there — I don’t think we’ll have time to get to it today — but we definitely need to discuss that passage there in comparison with here. But I want to go step by step. So he says: it could be that this operates by the law of acquisition on another’s behalf — one may act to a person’s benefit in his absence. “And even though one could say that it is not a benefit for him” — after all, I said before, it says “if one says to his agent.” “If one says to his agent” means he appointed him as an agent; this is not acquisition on another’s behalf, because acquisition on another’s behalf does not require saying anything. And that’s not correct, because here it could be that he is not pleased with it, and you need him to say that this is agreeable to him, that it is a benefit for him; otherwise it is not a benefit. He says here: “And even though one could say that it is not a benefit for him, since a person prefers to perform the commandment himself, nevertheless, since he revealed his opinion that he does not mind, for he said ‘go and separate terumah,’ therefore he can separate, because one may act to a person’s benefit, and not because of agency. Where there is some aspect of detriment in the matter itself — even though most commentators agreed that acting for a person’s own benefit is based on agency — nevertheless, this is not so certain, as I will explain later.” Meaning: in principle, one could have established this case as one of acquisition on another’s behalf. True, it says “if one says to his agent,” but that is not proof, because he had to say it, since without saying it there would be no law of acquisition on another’s behalf here, because maybe it is not a benefit for him — all the introductory points I made at the beginning. Therefore the fact that he says it proves nothing, and one can say that this works by the law of acquisition on another’s behalf. And if it is by acquisition on another’s behalf, then you cannot prove that there is such a concept as agency in terumah, because perhaps it is by acquisition on another’s behalf and not by agency. That in itself, I’m saying, is very problematic in my view, because if acquisition on another’s behalf works, why shouldn’t agency work? So he himself notes this. He says: even though according to most views acquisition on another’s behalf is based on agency — and what does he mean? Since that is so, then if acquisition on another’s behalf works, obviously agency also works — what’s the difference? But this is not so obvious. What does he mean? According to the one who says acquisition on another’s behalf is not based on agency, obviously the question is difficult. According to the one who says acquisition on another’s behalf is based on agency — that is only after you already know there is acquisition on another’s behalf and there is agency, and then you understand that acquisition on another’s behalf is based on agency. But it is not so obvious from the outset. Therefore, if I had a source for the law of acquisition on another’s behalf, I’m not sure I would also derive the law of agency from it, because it is not so obvious. After we learn the law of agency and the law of acquisition on another’s behalf, I say that acquisition on another’s behalf is based on agency. So his question is actually difficult both according to the one who says acquisition on another’s behalf is based on agency and according to the one who says it is not based on agency. That’s what he essentially wants to say. It is difficult according to all views. So what does he answer? He says: “Therefore it brings the latter clause of the Mishnah: ‘If he decreased by ten or increased by ten’ — if he decreased or increased, his terumah is valid. Evidently, even though there is some aspect of detriment, nevertheless it is effective, since he said to him, ‘Go and separate terumah,’ and he can say, ‘That is how I evaluated your intent’; evidently this is because of agency.” So what is he saying? He says as follows: in the opening clause, indeed one could have established it as a case of acquisition on another’s behalf, and acquisition on another’s behalf not by virtue of agency, and everything we said; therefore from the opening clause there is no proof that the concept of agency exists in terumah. And I’m saying in parentheses: I’m not at all sure he’s right about that, but that is his claim. Therefore they brought the latter clause. His original question had been: why did they bring the whole Mishnah and not only the opening clause? So they brought the latter clause because from the latter clause it is clear that we are dealing with agency. Why is that clear? Because if there it was a matter of acquisition on another’s behalf, it could not work. Why? Because if “he decreased by ten or increased by ten, his terumah is valid” — what happens if the person comes and says: what do you mean? I wanted one out of fifty, and you separated one out of forty?

[Speaker B] You could say that even in agency it shouldn’t help, if the person comes and says: I didn’t want that — like the Mishnah of “go to the better produce.”

[Rabbi Michael Abraham] Only in agency it would help — the opposite, we’ll see in a second. The argument is this: the person comes and says, wait a second, but that’s not what I wanted; this is not a benefit for me, what do you want from me? Now if this were acquisition on another’s behalf, says the Pnei Yehoshua, then the terumah separation would be void. Not necessarily.

[Speaker B] What exactly is he saying first of all?

[Rabbi Michael Abraham] What do you mean afterward? He says it would be void. Right? Why? Because acquisition on another’s behalf is built on the idea that this is a benefit for me. If I say that this thing is not a benefit for me, then that’s it — you cannot act by acquisition on another’s behalf. Therefore, in the latter clause, says the Pnei Yehoshua, you cannot explain it as operating through acquisition on another’s behalf. Because otherwise, if he decreased by ten or increased by ten, it could not be that his terumah is valid. Rather, we are forced to say that this is agency and not acquisition on another’s behalf. Why does agency work? But still — “I sent you to correct, not to spoil.” I said I was sending you to separate terumah, and I wanted one out of fifty, and you separated one out of forty? That is more than I wanted to give. Right? So the agency should also have been void. So he says no. Why? “That is how I evaluated your intent” — this is the Gemara I mentioned before. I assessed that this is what you meant. As long as you did not indicate otherwise, unexpressed intentions are not legally significant.

[Speaker B] More than that — part of the agency is also agency to make that assessment. I’m not only sending you to do the technical act, but—

[Rabbi Michael Abraham] Yes, but on that itself he can also say: no, I did not mean to give you the right to guess; only to separate. And to that itself the answer will be: you should have said so. Same question, same point. And what does “that is how I evaluated your intent” mean?

[Speaker E] What does “that is how I evaluated your intent” mean?

[Rabbi Michael Abraham] I assessed that you would be comfortable with one out of forty. Even though the average person, let’s say, separates one out of fifty, I know you as a generous person, and I assessed that you would be happy with one out of forty.

[Speaker B] And that can work only in agency? It seems to me it could also work in acquisition on another’s behalf.

[Rabbi Michael Abraham] Okay, the Pnei Yehoshua says that in acquisition on another’s behalf it does not help. Yes.

[Speaker D] If a larger terumah amount — say one out of forty — is not considered a benefit, doesn’t confer any gain to the owner, then why does he even call it… say that again? If a larger terumah amount doesn’t benefit the owner at all, then what is the advantage in—

[Rabbi Michael Abraham] What do you mean it doesn’t benefit—

[Speaker B] the owner—

[Speaker D] at all?

[Rabbi Michael Abraham] It benefits the priest. No — it benefits the owner too: terumah was separated for him. What do you mean? You fixed his pile.

[Speaker D] One out of forty — but you could also have done that with one out of sixty.

[Rabbi Michael Abraham] Fine, the act itself — the act itself benefited you. There is a detail there that you don’t like; okay. So that is what the Pnei Yehoshua says: if this were acquisition on another’s behalf, then in acquisition on another’s behalf there are no trade-offs. In acquisition on another’s behalf, if there is some problematic detail here, the whole authorization falls away. You cannot act for me. Therefore, once I say that I wanted one out of fifty and you separated one out of forty, that’s it — it is not terumah. The whole produce remains untithed. But if it is… therefore it must be agency. Because in agency — and this is also a novelty — in agency it would work. We might have said that even in agency it would not work: I did not appoint you on that basis. But no: unexpressed intentions are not legally significant. If the average person wants to separate one out of fifty — if that is indeed the fact — and you appointed me without specification and said nothing special, then you appointed me according to the standard of the average person. If you want to claim that you really did not mean that, but only one out of fifty or one out of sixty or something like that, the answer is: you should have said so; otherwise unexpressed intentions are not legally significant. And by the way, “unexpressed intentions are not legally significant” itself — I’m just tossing in a parenthetical remark — can be interpreted in two ways. “Unexpressed intentions are not legally significant” can mean: even if you intended that—

[Speaker B] it doesn’t matter, because what you say determines things, not what you intend. And one could also say: no, now suddenly you changed your mind; I don’t believe you that at the time you really intended that, because if you had intended it you would have said it.

[Rabbi Michael Abraham] And there is a third possibility: that what you intended simply does not matter at all.

[Speaker B] What you said matters more. That’s the first possibility he mentioned. Ah, that was the first? Yes. And even in acquisition on another’s behalf you can separate the elements. He benefited from the fact that terumah was designated, and the detail that he gave one out of fifty instead of— what happens with the detail, then? So part will be terumah and part will remain ordinary produce? What? No, he still benefited from terumah being designated, but he did some other detail.

[Rabbi Michael Abraham] No, there are no trade-offs in acquisition on another’s behalf. Meaning, if you do something — although in the division of the land the Gemara says yes, but that is probably only in the case of a guardian. The Gemara, simply speaking, if you do something for me that is a benefit but also has an aspect of detriment, there is no law of acquisition on another’s behalf. I need to decide which advantage outweighs which disadvantage; you cannot decide for me. Even if you think the advantage truly outweighs the disadvantage, still, in a case where there is also some downside, I can always say: listen, leave decisions about me to me; you cannot make decisions on my behalf.

[Speaker B] The truth is that here it is different, because to a certain amount he agreed and to another amount he—

[Rabbi Michael Abraham] So I’m saying: that’s why I asked you before what you meant. Do you mean that there would be terumah here, only part of it would not be terumah — the part he didn’t want would remain ordinary produce? Apparently they assume here that this cannot work. I also hesitated about that. It apparently cannot work. I separated terumah from this thing — either the act takes effect or it does not take effect. You cannot say that it takes effect only on part. I did not intend it for only part; I intended it for the whole. So either it takes effect, or it doesn’t; or I had no authority, in which case nothing takes effect.

[Speaker B] Is it the same with better produce? Again — is it the same with better produce, where he separated produce better than what had been suggested to him?

[Rabbi Michael Abraham] In principle it should be the same. The difference is that with quantities there is an estimate based on the average person. The estimate of the average person is one out of fifty. Therefore if he said nothing, the assumption was that he was also willing to go — there was a possibility to think — that if he said nothing, then one out of fifty is according to the standard average person. The Gemara teaches: no. If he said nothing, he should have said so. If he said nothing, then it can go ten in one direction or ten in the other. With better produce, it is not clear that there is some norm of the average person, and therefore there you may not be able to assume that in advance, independently of the owner’s own claims. You cannot make assumptions he never told you. But this is not a principled difference; in principle, with better produce or inferior produce it should have been the same as with a larger, smaller, or average quantity. It is only a question of whether you are permitted to make assumptions or not. And for that we need to see the passage in Bava Metzia. So basically, says the Pnei Yehoshua, the derivation that there is agency in terumah comes from the latter clause of the Mishnah, not from the opening clause. In the opening clause of the Mishnah it was possible to explain it also by acquisition on another’s behalf. In the latter clause of the Mishnah it must be agency. Now as for — I’m not sure I agree with you about the question whether one could also argue even there from the law of acquisition on another’s behalf. And in fact, it may be that one could also explain the latter clause by acquisition on another’s behalf.

[Speaker B] If acquisition on another’s behalf is based on agency, then you’re right.

[Rabbi Michael Abraham] No, that’s not right.

[Speaker B] Because in agency, it’s a matter of unexpressed intentions.

[Rabbi Michael Abraham] Yes, in agency I appointed him, and the rest is unexpressed intentions. In acquisition on another’s behalf I said nothing — why are you jumping in and doing things against my will? When I said something and was silent afterward, they say: why were you silent? If you thought something else, you should have said it. Here I was silent from the outset; I said nothing, and you suddenly jumped in and separated terumah. It has nothing to do with whether acquisition on another’s behalf is based on agency.

[Speaker B] If in acquisition on another’s behalf he did say—

[Rabbi Michael Abraham] Huh? If in acquisition on another’s behalf he said that it is a benefit for him? Yes — no — on the principled level, in acquisition on another’s behalf you really do not need to say anything.

[Speaker B] If it is based on agency, I understand that to mean that sometimes there is implicit agency here. As if — as if you said that I…

[Rabbi Michael Abraham] No, but as if I said what? As if I said “separate terumah for me”? Or as if I said “separate one out of fifty for me”? Which is it? It’s not the same thing.

[Speaker B] No, as if I said it here too — what does he say? No, it’s not the same thing. He says to his agent, “Go and separate terumah.”

[Rabbi Michael Abraham] Come on, obviously not. No, I don’t think that’s the normal situation. No, no, no — absolutely not. Even if acquisition on another’s behalf is based on agency, it is not the same thing. Because the claim against me will always be: why were you silent? I wanted one out of fifty and you separated one out of forty. So you tell me, “That is how I evaluated your intent.” What do you mean? But I didn’t want that — don’t evaluate me and don’t do anything. So then you tell me: wait, why were you silent? You know perfectly well that I can also separate that amount. From the fact that you were silent, according to one formulation at least, it is proven that you agreed even to that.

[Speaker B] And if it is from the fact that I was silent?

[Rabbi Michael Abraham] If it is acquisition on another’s behalf based on agency, that will not help here, because I was silent in any case; you separated without my saying anything.

[Speaker B] Here I said that it is—

[Rabbi Michael Abraham] the reasoning from acquisition on another’s behalf. At least one could say that is enough to say that from acquisition on another’s behalf you cannot derive agency. But in the end, I think there is a much stronger claim here than what the Pnei Yehoshua says. Because it really may be that we are not talking here either about acquisition on another’s behalf or about agency; we may be talking about simple consent. “If one says to his agent, ‘Go separate terumah,’” is basically, as the Pnei Yehoshua himself says, when he said “Go separate terumah,” by that he revealed that he is pleased with the matter. Now the fact that he revealed that he is pleased with the matter — does that necessarily take us to the law of acquisition on another’s behalf, as the Pnei Yehoshua assumes? It may be that it takes us to the third mechanism. If I have no problem with it… anyone can come and separate terumah, even without acquisition on another’s behalf, even without agency, without anything. And then, of course, the question becomes much stronger. Because if it is acquisition on another’s behalf, you can still say: fine, from acquisition on another’s behalf one can still learn the law of agency. But if it is consent, then obviously that is irrelevant, because consent means that in terumah it is not necessary that I separate it; therefore your separation is effective. How can you learn from here the law of agency? Agency works in places where the owner’s action is needed, and agency says: yes, but someone else can do it in his name. How can you derive that from here? Here the whole reason someone else can separate terumah is because it is not necessary that I separate it. So the question is much stronger. Now, if I accept what you’re saying — and I don’t accept it, as I already said — but even if I do accept what you’re saying, that under acquisition on another’s behalf one can also challenge the latter clause, under consent one cannot. I think you have to admit that if this is done by simple consent, then clearly one could not say “That is how I evaluated your intent.” Therefore it is clear that in the latter clause we are dealing at least with acquisition on another’s behalf — in my opinion even with agency — but certainly not with mere consent. And therefore, from this Mishnah one really can prove that there is a law of agency — either I learn agency from acquisition on another’s behalf, or it is actual agency, it doesn’t matter right now. What they are trying to rule out here is the possibility of simple consent, not the possibility of acquisition on another’s behalf — that is what I want to claim. And then of course the whole move becomes much stronger. And then also, whether acquisition on another’s behalf is not based on agency, whether it is based on agency — it doesn’t matter at all, it’s not relevant, because we are not dealing here with acquisition on another’s behalf at all; we are dealing with consent. Now, of course, the fact that in the latter clause we are dealing with agency — does that mean simple consent is not effective? That agency is required? The fact that agency is effective is obvious — you see in the latter clause that agency is effective. Is agency required? Or can one separate terumah even without agency?

[Speaker B] You can’t infer that, right?

[Rabbi Michael Abraham] It’s not clear; it remains open.

[Speaker B] Aside from the fact that the Mishnah specifically speaks about agency—

[Rabbi Michael Abraham] No, because it wants to say “he decreased by ten or increased by ten,” and that cannot be said in a framework of mere consent.

[Speaker B] It doesn’t speak about that case, but you were asking in general why it didn’t speak about—

[Rabbi Michael Abraham] this. It wanted to teach the novelty of decreasing by ten, and that is a novelty only in agency. So you cannot prove from here that agency is required for separating terumah. Meaning, it could be that mere consent is enough. True, if I appointed you as an agent, then you can do more and you can do less. Now again, from the very fact that I appoint you as an agent, one might seemingly infer that the owner’s action is required — meaning, that the concept of agency does belong here. But on this point I’m somewhat uncertain; it’s not so clear. Because it may be that if you want to separate however much you like, then you need agency, but if you are separating what any average person would separate, then maybe that is effective even without a mechanism of agency, just through simple consent. Therefore it may be that in terumah the owner’s action really is not required. It is not required. Anyone can come and separate terumah, provided it is clear that I do not object — not that it is a benefit for me, not by the law of acquisition on another’s behalf; it comes through simple consent. It must be clear that I do not object. But if he acts on that basis, he will not be able to separate more by ten or less by ten — at least not if afterward I say to him: wait, I don’t agree to that; that isn’t what I wanted. If I say that, then nothing will help; he cannot do it. There, if I appoint him as an agent, that would help. Now notice: this is a bit strange, because I appoint him as an agent even though the conception is that the owner’s action is not needed. But still I can appoint him as an agent, because the owner has some privilege — he can separate more or less. Someone else who separates on my behalf can do so even not as my agent, because the owner’s action is not needed, but he is tied to a certain measure of separation — what the average person does, or the minimum, or however we define it. So here the concept of agency comes out as a somewhat strange concept, although it is possible. It is basically a law where the owner’s action is not needed, and yet agency is still defined with respect to it. You understand that this is not the usual conception. Therefore we will see later that there are medieval authorities (Rishonim) who want to claim that agency is required — not only that agency is effective, but that agency is required. Because it may be that in a place where agency is not required, it is also not effective, because it was never instituted in a place where it is not needed. Why? Because the owner need not perform the act at all, so the Torah simply did not define the concept of agency there — that someone else can do it for me. Go ahead and do it, no problem, but you cannot be my agent. Because there is no agency — I am not needed, I have no special status here.

[Speaker B] Maybe agency is required if he wants to separate more than the standard amount.

[Rabbi Michael Abraham] But I’m saying: if that is really so, and I still insist that consent is enough in terumah — say, when he is not decreasing by ten or increasing by ten — then simple consent is enough, agency is not needed, then something unusual comes out here. What comes out is — I’m just saying, but we need to notice it — a situation in which I am prepared to define a concept of agency even in a halakhic context where the owner’s action is not required. Because there are views that would say that in a place where, from the halakhic point of view, there is no requirement at all that it be the owner who performs the act, there the concept of agency is not defined. After all, if anyone can come and separate terumah, then essentially I do not need to separate it. If I do not need to separate it, then the Torah does not define a mechanism of agency at all by which I can appoint you.

[Speaker B] Because the whole mechanism of agency is to bridge the gap, so that even though you did it, it is considered as though—

[Rabbi Michael Abraham] I did it, because it needs—

[Speaker B] to be me doing it.

[Rabbi Michael Abraham] At the base level. And if it does not need to be me doing it, then maybe the concept of agency was never introduced at all. And if so, then here too, even if I appoint you as an agent and you—

[Speaker B] decrease by ten or increase by ten, it won’t help, because there is no agency.

[Rabbi Michael Abraham] The concept of agency is simply not defined here.

[Speaker B] And then it would revert to the law of consent.

[Rabbi Michael Abraham] I didn’t understand. It would help by the law of consent. What if I appointed him? If I tell you explicitly that I want you to do one out of forty. Then no problem? Then no problem. No problem? But there is no agency. No, right, obviously.

[Speaker B] No, so now your question comes back. Why did the Torah need to introduce a law of agency here? What problem does it solve? What would have been wrong if there had been no law of agency? I could have done the same acts. They really wouldn’t have needed a law of—

[Rabbi Michael Abraham] No, if he said nothing and the agent decreased by ten or increased—

[Speaker B] by ten, it would not have worked without agency. And it also would not help with agency.

[Rabbi Michael Abraham] In agency too, you need to tell him—

[Speaker B] explicitly that I want him to decrease or increase. No, you don’t need to tell him explicitly.

[Rabbi Michael Abraham] That is exactly what the Pnei Yehoshua says — you don’t need to.

[Speaker B] “That is how I evaluated your intent”? Yes. “That is how I evaluated your intent” could also work in law, even without agency. No — that’s what he says. No, look, maybe you… no. The whole reason it doesn’t help is because I said nothing. Right. But if I tell the person explicitly, then obviously it—

[Rabbi Michael Abraham] No, no problem. But “that is how I evaluated your intent” is not an explicit statement. What do you mean? He did not tell him explicitly.

[Speaker B] No, if I tell a person, “Do whatever seems right to you,” right?

[Rabbi Michael Abraham] Then “whatever seems right to you” — what’s the problem? No — to reveal your intent. Ah, you appointed me to do whatever seems good to me; I no longer need what you revealed in your intent.

[Speaker B] That’s the point — that will work as an appointment.

[Rabbi Michael Abraham] I don’t care, because you said that you agree, and I have no problem with that. But I’m talking about a case where he decreased by ten or increased by ten without my having said so.

[Speaker B] Is there ever a possible case in which agency would not help? Okay. What would I not be able to do?

[Rabbi Michael Abraham] Nothing — you could do everything.

[Speaker B] Exactly. So then the question remains: why did they invent—

[Rabbi Michael Abraham] But here it isn’t like that. Because here, if he said nothing and he decreased by ten or increased by ten, it would not have worked.

[Speaker B] No, but in our case he did say something.

[Rabbi Michael Abraham] No, he didn’t. Bottom line, he didn’t. He said to him, “Go separate terumah”; he did not tell him how much to separate, he did not tell him “decide on your own,” he did not say any of that.

[Speaker B] It would also have worked even if it didn’t help—

[Rabbi Michael Abraham] No — what are you talking about?

[Speaker B] If I told someone, “Go separate terumah,” in the end it can be understood that I rely on him.

[Rabbi Michael Abraham] No — what does “I rely on him” mean? Do the act of separation. But do it according to the measure that I want. What do you mean?

[Speaker B] Then why am I telling specifically him? Because I trust that he—

[Rabbi Michael Abraham] No, not at all. No, no. What do you mean? I want him to separate, that’s all. I didn’t tell him anything else. That seems to me to be what’s written here, very simply. Again, there too, in the Gemara regarding “go to the better produce,” you see that it isn’t like that. In the Gemara in Bava Metzia. You see from there itself that it isn’t like that. In “go to the better produce” that will not help.

[Speaker B] People don’t know what you’re saying. What I’m understanding now is this: if there is such a mechanism as agency, then apparently I meant that he should stand in my place, right? And therefore it helps. But if there is no such mechanism of agency, then I didn’t mean—

[Rabbi Michael Abraham] No, I’m saying there are two possibilities.

[Speaker B] A person is just asking his friend; he doesn’t know whether it works through this mechanism or that one.

[Rabbi Michael Abraham] It is always a question how we apply these kinds of reasonings to ignoramuses, like with a migo. Right. Fine, the assumption is that we treat everyone as knowing the Jewish law. No, no — not exactly.

[Speaker B] It doesn’t relate—

[Speaker D] even to—

[Rabbi Michael Abraham] not even to scholars. No, no, but the assumption here is that people know. That is the assumption in the halakhic calculation.

[Speaker B] Because if they don’t know by what mechanism it works — we are now interpreting whether it is a mechanism of agency or not. And I’m saying: if you say that when one person tells another, “Separate terumah for me,” by that he reveals his view that he agrees, then why, if he says—

[Rabbi Michael Abraham] If he says to him “go to the better produce,” why is it void? That’s what I’m asking you — the Gemara says so. Why, if he says “go to the better produce,” is it void?

[Speaker B] That I can always explain — even in agency it is void, because maybe that’s not what I sent him for.

[Rabbi Michael Abraham] Ah, but if he… no, if I told him “separate however much you want,” I can’t then say to him “go to the better produce.” No, it wouldn’t be void.

[Speaker B] If I said so explicitly. Exactly!

[Rabbi Michael Abraham] Exactly! It would be void under the law of acquisition on another’s behalf — that’s what I’m saying. Right. That’s what I’m saying. Therefore here we are dealing with a case where he did not tell him. Here we are dealing with a case where he did not tell him. He sent him, that’s all. Now, if it is by the law of agency, then the claim is that he should have said so if he didn’t want it, and therefore if he decreased by ten or increased by ten his terumah is valid. No. No — in the law of agency, no.

[Speaker B] Suppose it is by the law of consent or by acquisition on another’s behalf.

[Rabbi Michael Abraham] No, no, you cannot infer that I did not object. What are you talking about?

[Speaker B] No, but if you really objected, why didn’t you say so?

[Rabbi Michael Abraham] Why should I say so? What do you mean? I did not appoint you as an agent, I did not give you authority. I said to you: fine, if you separate terumah, that will be acceptable to me.

[Speaker B] There are assumptions behind that. Yes, so the assumption is that he doesn’t know — fine.

[Rabbi Michael Abraham] The assumption is that he does know.

[Speaker B] The realistic assumption is that he doesn’t. People don’t know all this. Even I — until I’m not so—

[Rabbi Michael Abraham] No, no, no — I’m not talking about facts. This is a legal presumption, not a factual one. The law assumes that people act according to the halakhic rules and know what they are. That is the law, because otherwise you’re always talking about ignoramuses, and it’s impossible. It could be — let’s put it this way — if you want, just to brush it away, if a religious court really sees that someone doesn’t understand and said it on that basis, then perhaps indeed the law would be different. Fine. But let’s say now: with scholars, what would the law be? Fine. It doesn’t really matter.

[Speaker B] No, even with scholars, in my view in the end they are the factor for knowing… in the end what matters here is the owner’s intention, and I don’t think—

[Rabbi Michael Abraham] I told you — I’m not at all sure. There are two ways to understand it. The question is whether your silence proves that you agreed, or whether your silence proves that once you appointed me, from that point on you have no further say, because unexpressed intentions are not legally significant, even though you did not mean that at the time of appointment. It can be understood in two ways.

[Speaker B] Right. Certainly that’s okay, fine. It still means the owner’s intention matters, because the intention determines what… what people ordinarily mean in such a situation — that determines it.

[Rabbi Michael Abraham] Yes, what matters is his satisfaction, not intention. Because there is no intention here; he did not appoint him, so there are no intentions here. The whole question is only what is agreeable to him and what is not agreeable to him. So now…

[Speaker B] So the question is whether what matters is what is agreeable to me as a specific person, or what is agreeable…

[Rabbi Michael Abraham] It’s clear that what’s comfortable for you is what’s comfortable for you. “Comfortable for you” — what does that mean, “go to the attractive ones and not the unattractive ones”? Every person wants what he wants. That’s each individual separately. Right, fine. Good. So in the end the claim is that if what we’re dealing with here is mere acquiescence, then on the one hand acquiescence is enough to separate terumah — meaning, you don’t need an action by the owner in separating terumah — but on the other hand the concept of agency is still defined here, and that’s what’s being discussed, at least in the latter clause, when it says: if he reduced by ten or added ten, his terumah is valid. As I told you earlier, okay, you can say that, but that’s a novelty. You have to pay attention to this point, because many will say: fine, if that’s so, then it’s just monkey business — meaning, it’s not something that really requires the owner, so agency isn’t defined here at all, and consequently there’s no possibility of agency either. Now, the Talmud in Nedarim, Nedarim 36b, says: they raised a dilemma. The context there is the context of someone prohibited by vow from benefiting from another person. Yes, someone forbidden to benefit from his fellow. So there are all kinds of fascinating novelties there. For example, he can repay his debt. He can separate terumah on his behalf — that’s what it says in the Mishnah. Why? Seemingly he’s benefiting: I repay his debt, so the one prohibited from benefiting from me is making money from me — how can that be? Or if I separate terumah, then in effect he’s benefiting from me. If, say, I separated from my grain for his grain, then he saved grain; he benefited from me. The Talmud’s claim there is that this is called driving away a lion. Driving away a lion. What does that mean? Suppose I’m prohibited by vow from benefiting from you, so I’m not allowed to benefit from you. Now you see a lion coming to devour one of my sheep, and you drive the lion away. Is that considered that I benefited from you? That I violated the prohibition of benefit? The answer is no. I had a sheep, and I still have a sheep. You only drove away a lion; you prevented me from suffering a loss, you didn’t give me a gain. What I had still remains with me; I didn’t gain anything from you — you just prevented a loss. Therefore that’s called driving away a lion, and in a case of prohibited benefit, driving away a lion is permitted. You may not add to my assets, but you may prevent me from losing something. You may not, for example, go patrol and act as a guard over my property, because I pay guards to do that job. Then you’re actually giving me labor of value. But if by chance you see a lion attacking my sheep, you’re allowed to drive it away, because that’s only driving away a lion. You merely prevented a loss and didn’t create a profit for me. And the same thing with repaying a debt — I spoke about this in the past — that repaying a debt is also driving away a lion, which is a very big novelty. Because the claim basically is that I didn’t profit from you if you repaid my debt; you only prevented me from losing. You could say that the debt itself is like a gift. A loan is basically a gift.

[Speaker B] What’s the discussion here? Even if we say it was forbidden, the prohibition isn’t on…

[Rabbi Michael Abraham] The prohibition isn’t on me.

[Speaker B] I’m saying it’s strange to make such a vow. How can I vow about something that isn’t under my control? From the outset it’s a strange vow.

[Rabbi Michael Abraham] I’m forbidden to benefit from your property. The fact that you benefit me against my will — that is under my control, so don’t benefit me. What do you mean?

[Speaker B] It’s under my control that you won’t benefit me? How?

[Rabbi Michael Abraham] In the sense that my benefiting is under my control. You can’t do things to me against my will on my side. You can’t vow something about what you won’t do in your own house, and I can vow that I don’t want to benefit from you. You could also force-feed me with a tube into my mouth something from which benefit is forbidden — so what, I can’t forbid that benefit to myself? Fine, you’re benefiting me against my will; I vow about myself not to benefit.

[Speaker B] Right, even in that example I think it’s not included in the vow at all. A person can’t vow about things he’s compelled to do.

[Rabbi Michael Abraham] Of course he can; it’s a prohibition of benefit. He can say that I was coerced if you shoved it into my mouth with a tube. But I still violated the prohibition.

[Speaker B] Even though you were coerced, that’s not — there it’s like unintentional involvement; it’s not part of the vow at all, because in practice you benefited. But here it’s something else.

[Rabbi Michael Abraham] No, because in practice I ate. Even if I had forbidden eating to myself, not benefit. Okay? In a vow, eating — it still would be forbidden. At most you can say I was coerced. But I can forbid my own actions to myself even though someone can force me to perform that action. The action is my action. The fact that he forces me —

[Speaker B] If someone moved my hand, that’s not my action. What? Again — no, again, because I’m coerced.

[Rabbi Michael Abraham] Because I’m coerced. You’re saying the definition of coercion is that the action is not mine? That is the definition of coercion according to some opinions. Coercion means that the action is not mine. But it doesn’t matter; it still means that basically there was something here that I could have forbidden to myself, only I have a claim of exemption — coercion — which you can explain either as an exemption or as “I didn’t do it because I was coerced,” it doesn’t matter. But I forbade it to myself… no, it could be that those are two different explanations.

[Speaker B] One explanation is that I didn’t do it and someone moved —

[Rabbi Michael Abraham] — my hand.

[Speaker B] There’s an explanation that every case of coercion is like that. Can I vow that you won’t move my hand? It’s funny, no?

[Rabbi Michael Abraham] I can vow that I forbid to myself your moving of my hand. Yes. Not vow about you, that you not move my hand, as an obligation on the person; I forbid the object-state to myself. I forbid to myself a hand movement that comes from you.

[Speaker B] But I didn’t move… “a hand movement that comes from you” — you moved my hand.

[Rabbi Michael Abraham] Basically that’s what I forbid to myself, that hand movement. That’s it. I forbid it to myself, not to you; I can’t forbid anything to you. Same thing with one prohibited by vow from benefit: I can forbid to you, for example, a loaf of my bread. That I certainly can do. I can prohibit you by vow from benefiting, and you can go and eat it. No — you can go and eat it, right? How can I forbid you from benefiting from it? Because it’s mine, what do you mean?

[Speaker B] So he says that then it will always be theft — that’s the meaning.

[Rabbi Michael Abraham] Not theft, but you violated the prohibition of the vow; it’s not theft. One prohibited by vow from benefit — certainly, one prohibited by vow from benefit. There’s a dispute between the Ran and Maimonides as to who violated the prohibition here, but —

[Speaker B] Because it’s mine, that’s exactly the point.

[Rabbi Michael Abraham] So what if it depends on someone else? If it’s mine, I can forbid it. If it concerns me — if it’s my benefit — I can forbid it. Fine, but let’s not get into the laws of vows now. So the Talmud there says: they raised a dilemma — if one separates terumah from his own produce for that of his fellow, does he need the other’s consent or not? What does that mean? I take my grain, not my fellow’s grain. Until now what were we discussing? I go to my fellow’s grain and separate terumah from it, but the grain is his, the heap is his, the terumah is his, the untithed produce is his — everything is his. Now I’m saying something else: I take my grain and designate it as terumah for his grain, for his heap. So does it require the other person’s consent or not? It’s not entirely clear what “requires his consent” means — we’ll see in a moment.

[Speaker D] Is it possible to designate something…

[Rabbi Michael Abraham] Yes, you can separate from your own produce for that of your fellow. The whole question is whether his consent is needed. So the Talmud says: do we say that since it is a benefit for him, his consent is not needed, or perhaps the commandment is his, and he prefers to do it himself? Meaning, what is the uncertainty? The uncertainty is: maybe it’s a benefit for him, because overall he gains: first, terumah has been separated; second, he saved the grain that he otherwise would have had to give to the priest, and the grain is my grain, okay? So he gained in every way. Therefore it’s a benefit to him, and then his consent isn’t needed, because one may confer a benefit upon a person in his absence. In the straightforward sense, it’s under the law of conferring benefit.

[Speaker E] “His consent” means his agreement? What? “His consent” here means his agreement, according to what’s written.

[Rabbi Michael Abraham] His agreement, his appointment — I said, we have to understand exactly what’s being discussed here; we’ll see in a moment. Or perhaps the commandment is his, and he wants to perform the commandment, and therefore he prefers that he himself perform it and not that someone else perform it.

[Speaker D] Can’t you separate terumah a second time?

[Rabbi Michael Abraham] No, you can’t. You can’t designate terumah from ordinary produce; you can designate terumah from untithed produce. Untithed produce you can turn into terumah; ordinary produce you can’t turn into terumah.

[Speaker D] But can you separate a second time, just out of doubt about the first one?

[Rabbi Michael Abraham] If you have a doubt, then it’s not “a second time.” There’s a dispute between Rashi and Tosafot in Yevamot whether the whole prohibition of untithed produce is because terumah is mixed into it. That it’s basically ordinary produce with terumah mixed in, and that’s what the prohibition of untithed produce is. Very strange, but there is such an opinion among the medieval authorities. Then, when you remove the terumah, the untithed produce turns into ordinary produce; nothing happened to the untithed produce itself — just now there’s no terumah in it, so everything is fine. Okay? So here it’s clear, for example, that if this thing is ordinary produce, then no terumah is mixed into it. How will you separate terumah out? There is no terumah there.

[Speaker B] Right, according to that you could say that I claim there’s still some terumah inside, so I take out more. What do you mean?

[Rabbi Michael Abraham] How is it ordinary produce? If terumah remains inside, then it’s ordinary produce?

[Speaker B] No, it becomes clarified retroactively. Just as when I separate the first time, it becomes clarified retroactively that the terumah is this, right? So if I separate a second time, it becomes clarified retroactively that in fact there was more terumah here. And it turns out retroactively that this was untithed produce and not ordinary produce even before.

[Rabbi Michael Abraham] The practical difference is if someone ate beforehand, he ate untithed produce. That’s very strange. Very strange. Yes, that’s strange enough. Yes, right, it’s strange in any case. Okay, in any event, so the Talmud here is discussing the question whether separating terumah can apparently operate under the law of conferring benefit, right? Or whether agency is required. In the simple reading, that’s how we would read it, right? The question is whether it works under the law of conferring benefit or whether it requires agency. In fact, one could have discussed this in light of what I said earlier —

[Speaker E] According to the side that says “he prefers it,” that he prefers to do the commandment himself, then it’s not a benefit.

[Rabbi Michael Abraham] Right, and therefore you need appointment as an agent. And if he appointed him as an agent, then there’s no problem, because he told him that from his perspective it’s fine. It’s also clear that even if he says, “it’s fine with me, I have no issue with the commandment,” then you can also work under the law of conferring benefit. The whole question is what happens when he said nothing. Now you came and acted under the law of conferring benefit — does that work or not? Okay? Now here, in this context, it’s an interesting question, because acquiescence is not entirely clearly an option here. Because I’m doing it from my own produce. Now in the straightforward sense, if you don’t need the owner’s consent in order to separate, then you also don’t need acquiescence. Because I turn my grain into terumah, and that permits the other person’s heap. If I separate from his grain, then one can come and say: no need for the law of conferring benefit, no need for agency, no need for your action. Once you agree that I apply the designation of terumah to your grain — I can’t interfere in your produce and determine what it will or won’t be, okay? So your acquiescence is needed. But if I’m doing it with my grain, then either way — perhaps here you need the law of agency or the law of conferring benefit because you need the action of the person who separates, or his agency, or something like that. But if you don’t need that, then seemingly acquiescence here is not an option. Why? Acquiescence regarding —

[Speaker B] Regarding the fact that I agree to lose the commandment. Why is it my commandment? That’s the question?

[Rabbi Michael Abraham] No, why does it help? Not why it’s my commandment. Why is the terumah effective?

[Speaker B] Why does he have to agree? He has to agree because the commandment rests on him.

[Rabbi Michael Abraham] So what? Why do I care?

[Speaker B] You’re not allowed to snatch it.

[Rabbi Michael Abraham] Why not? Pay him ten zuz, what’s the problem? No, you want to claim that the terumah is not valid terumah. I’m asking: why is the terumah not valid? If the owner doesn’t need to separate it — if the owner does need to separate it, then I have to be his agent or act under the law of conferring benefit and do it for him. But if he doesn’t need to separate it, then if I separate from his produce, one can say: I can’t turn his grain into terumah without his permission; a person cannot prohibit something that isn’t his. But if I turn my own produce into terumah for his produce, and fundamentally his action is not needed, then why wouldn’t no acquiescence be needed either — no nothing. So seemingly here it must be either the law of conferring benefit or agency; there is no option of acquiescence here.

[Speaker B] So learn from here to all terumah. Huh? So we see from here that acquiescence doesn’t help for terumah — is that what you want to say?

[Rabbi Michael Abraham] No, you don’t see that. That’s not correct. No — in the case of my terumah, when I separate from my grain. But if I separate from your grain, then acquiescence is fine. What’s the problem?

[Speaker B] No, but you see from here a general principle that it isn’t enough. If acquiescence were enough, then here nothing else would be needed and it would work. From the fact that acquiescence doesn’t help in this case, when I separate from my own produce for my fellow’s, you see that there’s a rule that terumah has to be done specifically with consent.

[Rabbi Michael Abraham] Yes, and that’s what the Talmud proves. Right, right.

[Speaker B] So that applies to all terumah.

[Rabbi Michael Abraham] No — that’s what the Talmud… that’s why I’m saying: here there is no option of mere acquiescence. The whole Talmudic discussion is whether it is under the law of conferring benefit or under the law of agency. Now if acquiescence alone were sufficient, there would be no need for this. That it works under the law of conferring benefit — because one may confer a benefit upon a person in his absence, and presumably he is like his agent. You see, that’s the Ran. “Presumably he is like his agent” — again, the question is whether one should infer from here that conferring benefit works because of agency. Not necessarily. Same thing in Rashi: “his consent is not needed,” because one may confer a benefit upon a person in his absence. Later in the Talmud, it says as follows: come and hear. Yes, that was the dilemma, whether his consent is needed or not. Come and hear: “He separates his terumot and his tithes with his knowledge.” This is a quote from the Mishnah about one prohibited by vow from benefit, that he separates his terumot and his tithes with his knowledge. The Talmud asks: what case are we dealing with? If we say from the owner of the heap for the owner of the heap — meaning, in the Mishnah I separate from his heap for his heap. And “with whose knowledge”? If we say with his own knowledge — who made him an agent?

[Speaker E] What does “with his own knowledge” mean — whose? The one separating it.

[Rabbi Michael Abraham] Rather, with the knowledge of the owner of the heap. Meaning, with the knowledge of the owner of the heap — but then he is benefiting him, because he is carrying out his agency. Meaning, if it’s with the knowledge of the owner of the heap, that also can’t be, because then this is a case of prohibited benefit by vow. It can’t be that I’m allowed to separate with his knowledge, and throughout the discussion the Talmud assumes that if I separate with his knowledge — in other words, as his agent — that is indeed considered benefiting him.

[Speaker E] Why isn’t that just driving away a lion?

[Rabbi Michael Abraham] It’s not driving away a lion because I’m carrying out his agency, not because of the financial gain. Here too there is no financial gain, because I’m separating his terumah, not my own; I’m separating from his produce for his produce. Okay? But the point is that when I do his agency, in principle if you hire someone to do work you pay him, as I said earlier. So if you now appoint me as an agent, I’m doing work for you. That certainly counts as benefiting you. That is forbidden for me. And that’s what the Talmud says. Therefore the Talmud says: if it’s with the knowledge of the owner of the heap, then he is benefiting him — yes, he is his agent. Rather, must it not be with his own knowledge, and he separates from his own produce for his fellow’s?

[Speaker E] Wait, you skipped a line: rather from his own produce for the heap owner’s. Where? Go back one line.

[Rabbi Michael Abraham] Rather from his own produce for the heap owner’s. Ah — rather from his own produce for the heap owner’s. And with whose knowledge? If we say with the knowledge of the owner of the heap, then he is benefiting him. Meaning, even if I separate from my own produce for the owner of the heap, if I’m doing so as his agent, that counts as benefiting him; it can’t be that this is permitted. Rather, must it not be with his own knowledge — the knowledge of the one separating. And he separates from his own produce for his fellow’s. By his own knowledge he can separate; “he separates his terumot and his tithes with his knowledge” means with his own knowledge. Meaning, you can’t take my grain and separate for yours, of course, but I can, even though I am prohibited from benefiting from him. It’s not exactly “with his knowledge” in the usual sense, because after all I’m the one doing the separating. And if you say that consent is required, then he is benefiting him — meaning, if it is from his own produce for his fellow’s, then he is benefiting him. So the Talmud says: he benefits him by the produce itself. Rather, must it not be that consent is not required? The Talmud answers: no, actually we are speaking of from the owner of the heap for the owner of the heap, as Rava said: in a case where he says, “Whoever wishes to separate, let him come and separate.” Here too, it is a case where he says, “Whoever wishes to separate, let him come and separate.” So we are speaking of a case where he said, “Whoever wishes to separate, let him come and separate.” And now I separate from the owner of the heap for the owner of the heap, not from my own produce. In the Mishnah, yes — we’re talking now about the Mishnah. In the Mishnah, it means separating from the owner of the heap for the owner of the heap. The owner of the heap says, “Whoever wishes to separate, let him come and separate,” so he did not appoint him as an agent. If he appointed him as an agent, then he is benefiting him, because he is doing work for him. If he says, “Whoever wishes to separate, let him come and separate,” then it’s fine. That’s acquiescence, no? What? That’s acquiescence. Now the question is: what is that? When I separate from his produce, and in separation from his produce there are the three mechanisms. In separation from my own produce, I said acquiescence doesn’t really arise, but in separation from his produce, here now we have to discuss it. Because when he says, “Whoever wishes to separate, let him come and separate,” what has he said? Basically he said: if you say this is appointment of agency, then we’ve accomplished nothing, because that is benefit. So what shall we say? Maybe we’ll say it’s under the law of conferring benefit, because when he says, “Whoever wishes to separate, let him come and separate,” he’s merely revealing his view that he isn’t insisting on performing the commandment himself. That’s all. Then the law of conferring benefit applies here, and I separate under that law — or I separate based on acquiescence. Okay? So the Ritva writes there as follows: “And regarding ‘he separates his terumot and his tithes with his knowledge,’ and we explained the Mishnah as speaking where the one prohibited by vow said, ‘Whoever wishes to separate, let him come and separate.’ Explanation: now he is not carrying out his agency, because the matter depends on the will of the one separating. And even in the case of one separating from his own produce for his fellow’s, that is like repaying a debt, and so it is proven in the Talmud.” Because if he separates from his own produce, then he is indeed benefiting him, so in a case of prohibited benefit by vow it is forbidden to do so. Therefore the conclusion is that you have to separate from his produce.

[Speaker E] What does that “even” mean? “And even in one separating from his own produce for his fellow’s” — what?

[Rabbi Michael Abraham] Even in one separating from his own produce for his fellow’s, which is like repaying a debt.

[Speaker E] And then what?

[Rabbi Michael Abraham] I’m repaying a debt, and therefore his consent is needed. “Our teacher wrote: but if he said to him, ‘Separate,’ it is forbidden, because he is carrying out his agency. Even where he separates from the produce of the owner of the heap for the owner of the heap.” After all, he gains nothing if I separate from his produce for his produce, but since I am carrying out his agency, it is forbidden in a case of prohibited benefit by vow, as is proven in the Talmud. “And this is why our teacher was precise and we learn from it that one prohibited by vow from benefiting from his fellow may not perform agency for him; and even if it is agency of the sort of designating the name of terumah, for which one does not take wages, it is forbidden.” Yes, this isn’t the kind of agency for which people take wages — all you’re doing is designating it as terumah. Still, if you perform work for me, that counts as benefiting me. Okay? Therefore you are forbidden to perform missions for me. “And since when he says it and he does it, he benefits him.” End quote. “And where he said, ‘Whoever hears his voice should separate,’ this one is forbidden to separate, because he is carrying out his agency; and such wording is an expression of agency.” What does that mean? I’m basically appointing an agent — not a specific person, but whoever hears my voice. But whoever heard my voice, I appointed as my agent.

[Speaker E] Not like “whoever wishes to separate, let him come and separate.”

[Rabbi Michael Abraham] Not the same thing. What’s the difference? “Whoever hears my voice should separate” means I am directing an appointment toward whoever heard my voice. “Whoever wishes to separate, let him come and separate” is an expression of willingness. As we learned regarding a bill of divorce: “Whoever hears his voice” — as someone mentioned earlier regarding a bill of divorce — “whoever hears his voice should write a bill of divorce for his wife,” they write and give it to him, and so on. “But if he said, ‘Whoever separates will not lose,’ that is not his agency at all, and the parallel in a case of prohibited benefit by vow is permitted.” Here we need to discuss what “not his agency at all” means. Does it mean under the law of conferring benefit, or just plain acquiescence? If it means under the law of conferring benefit, then at least according to the view that conferring benefit works as a form of agency, what’s the difference? You’re still doing agency for him. It is much more likely — not that it’s absolutely necessary, but much more likely — that we’re talking here about mere acquiescence. Meaning, “whoever wishes to separate, let him come and separate” means: I’m basically saying, I don’t need to be the one to separate; I waive the right that I perform the commandment. Whoever wishes to separate — I have no problem with that. And that is exactly the concept of acquiescence. And regarding this he says that one who says, “Whoever separates will not lose,” this is not agency at all. “At all” means not even conferring benefit. So what is it? Acquiescence. And of course you still have to say something, even though this is acquiescence. Why? Because without that, you can’t apply the designation of terumah to my grain. But to your grain, it may be that even that is not needed. To your grain — because with your grain, if it’s only acquiescence regarding your grain, then nothing is needed. Okay? Only with my grain. There are other medieval authorities.

[Speaker F] Can you go back to why that is?

[Rabbi Michael Abraham] Because if it were under the law of conferring benefit, then seemingly — at least according to the view that conferring benefit works through agency — it would still be like agency, and in a case of prohibited benefit by vow he would be forbidden to benefit from it.

[Speaker F] And if it’s from his own produce, then it’s certainly prohibited benefit by vow. What? If I separate from my own produce for my fellow, that’s certainly prohibited benefit by vow.

[Rabbi Michael Abraham] No — right, and therefore the Talmud says that if I separate from my own produce, then in the Mishnah dealing with prohibited benefit by vow that’s not what it’s talking about. “If one separates from his own produce for his fellow’s, does he need his consent or not” — that’s the discussion in the Talmud. In the Mishnah, when it says this, it’s certainly not talking about my produce, because that is certainly forbidden, as the Talmud says; it’s only from your produce. But even if it’s from your produce, if you appoint me as your agent, then I have carried out your agency, and you have effectively benefited from me. So what is the alternative? The alternative is that he says, “Whoever separates will not lose.” Now the question is what that means. If “whoever separates will not lose” is only under the law of conferring benefit — what kind of conferring benefit? Then at least according to the view that conferring benefit works through agency, it still seems, in the straightforward sense, that you benefited from me; I did your agency. If you say that his action isn’t needed at all, it’s enough that he merely say, “I have no problem, I don’t object to it,” and from then on anyone can come and separate — that’s much easier. I’m not one hundred percent sure about this, because one could say that even under the law of conferring benefit, if I came on my own initiative and you didn’t appoint me, then even if conferring benefit is because of agency, still the very fact that I… If you appoint me and I carry out the agency, then it’s as if I’m working for you. One could say that, and then there’s no necessity to say that this is only acquiescence. But I think the simpler explanation is that it’s only acquiescence. The Rashba there says as follows: “They raised a dilemma: if one separates from his own produce for that of his fellow, does he need consent or not? Do we say that since it is a benefit for him, he does not need it? This is difficult for me, because agency is not based on whether he is pleased or not pleased; rather it is a scriptural decree: ‘you’ — with your knowledge — and likewise your agents with your knowledge.” Why do I care whether he is pleased or not? What is that relevant to? In agency, you need an appointment of agency. Then it doesn’t matter whether he’s pleased or not pleased; and if there is no appointment, it doesn’t matter whether he’s pleased or not pleased. Meaning, he assumes that in terumah you need appointment as an agent — not merely that appointment as an agent helps, but that you need agency. Therefore he says: so what does his willingness accomplish? Either decide one way or the other: if he is an agent, it doesn’t matter whether he is pleased or not pleased; if he is not an agent, it doesn’t help even if he is pleased. So what is the Talmud’s discussion? “Rather it is a scriptural decree: ‘you’ — and ‘also you’ — your agents; just as you act with your knowledge, so your agents act with your knowledge. And you should know this, for if one says to his fellow, ‘Go and separate terumah for me,’ and he went and found it already separated, according to the one who says there is no presumption that an agent performs his mission” — that there is no presumption that an agent performs it, or that the presumption is that he doesn’t, yes — “we say at the beginning of the first chapter of Hullin that it is not terumah. For perhaps another person heard and went and separated it, and the Merciful One said: ‘you, and also you’ — just as you act with your knowledge, so your agents with your knowledge — and even though there he is pleased that they fix his heap.” And he proves from the Talmud in Hullin that neither conferring benefit nor certainly acquiescence helps; you need actual agency in terumah. Not merely that agency helps — agency is required; you must have agency. Meaning, neither conferring benefit nor acquiescence helps. “And one can say that one who separates from his own produce for that of his fellow is different, because we require ‘his agent with his knowledge’ only where one separates from the produce of the heap owner for the heap owner. But where one separates from his own produce for the heap owner, since it does not belong to the heap owner, we do not require his actual agency, and the matter depends only on whether it is a benefit for him and one may confer a benefit upon a person in his absence, or whether it is not a benefit for him, because he prefers his own commandment,” and so on below. Here I’m hesitant. In the straightforward sense he’s talking about the law of conferring benefit — one may confer a benefit upon a person in his absence. My instinct tells me that he doesn’t mean the technical law of conferring benefit. If it’s a benefit for him, then he acquiesces; everything is fine. Because otherwise it takes us back to the question whether conferring benefit works through agency or not. I don’t think — again, he uses the language of conferring benefit, but I think he means exactly our discussion. The question is whether you need his agent with his knowledge. If you’re talking about that, then he says: if you separate from my produce, then certainly you need to be my actual agent; neither conferring benefit nor acquiescence nor anything else helps — you have to be my agent. Okay, that’s what he proved from the Talmud in Hullin. But our Talmud is discussing a case where I separate from my produce for yours, for your heap. In such a situation, “so shall you also separate” — including your agents — was not said, because that speaks only about a situation where I separate from your produce. When I separate from my produce — do whatever you want — there it’s only the agency aspect. “Whoever separates will not lose” means: I don’t mind. But that willingness, I don’t think he means the law of conferring benefit; he means mere acquiescence. We need to finish already, so I’ll jump for a moment. There is a dispute among the medieval authorities whether one can connect the discussion there to redeeming a firstborn donkey. Rav Shizvi said, in the Talmud in Bekhorot 11: Rav Shizvi said in the name of Rav Huna: one who redeems his fellow’s firstborn donkey — the redemption is effective. I go and redeem my fellow’s firstborn donkey, I give to the priest, because this is one of the priestly gifts, so it is redeemed. So the Rashba in Kiddushin 23 says as follows: and whose money is it?

[Speaker E] The money that he pays? His own — the redeemer’s own.

[Rabbi Michael Abraham] The redeemer’s own, yes. “And similarly in that chapter, they raised the dilemma: if one separates from his own produce for that of his fellow, does he need consent or not? And it was not resolved.” This is the Talmud we saw earlier. “And they did not resolve it from what Rav Huna said in the first chapter of Bekhorot: one who redeems his fellow’s firstborn donkey — the redemption is effective.” Why didn’t they resolve it from there? “And the reason there too is that they wanted to resolve it only from a Mishnah or a baraita.” They couldn’t resolve it. Exactly. They could have resolved it; they just wanted to resolve it from a baraita. Tosafot in two places says that you can’t resolve it from there. Why? Because redeeming a fellow’s firstborn donkey can be done even against his will; you don’t need his consent. That’s not the same as terumah, because in terumah you do need — and again, the question here is whether in terumah you need to be my agent or you need my willingness, but in any event you need some kind of consent of the owner. Why? Because it’s like a parapet. His claim is that it’s like a parapet. If I redeemed it, then it is redeemed — what, what does that have to do with you? Meaning, all I did was produce the result; the result happened. Now if you understand it that way, then you can’t decide or resolve the Talmud’s doubt in Nedarim from redeeming a firstborn donkey. But whoever says that you can — that’s the big question. Whoever says that you can resolve one from the other — and this continues into the Mishneh LaMelekh, and you’ll see this later in the summary; I’ll upload the summary to the site as well — whoever says that you can, some later authorities want to claim, Keren Orah discusses this and others too, that he also agrees that redemption of a firstborn donkey can be effective even against the owner’s will. And in terumah you need willingness. But one thing you can still resolve from redemption of a firstborn donkey is that in such a case willingness is clearly sufficient, and with a firstborn donkey even that is unnecessary. But in terumah, it is clear that if there is willingness, we have returned to the situation of a firstborn donkey. And then it is fairly clear that the claim is that in terumah willingness is sufficient, and you don’t need either agency or the law of conferring benefit; otherwise it has nothing at all to do with redeeming a firstborn donkey. Whoever says that you can’t resolve it from there says so simply because perhaps agency is required. Whoever says that you can resolve it from there, then either he thinks that there too willingness is required, or even if there willingness is not required in redeeming a firstborn donkey, that is a technical difference — there willingness is not required, while in terumah it is. But in both places you can still infer that you do not need to be the agent or the beneficiary-conferrer for the one doing the separation. All you need is his willingness, and then we’re back to the case of a firstborn donkey — that it’s like a firstborn donkey. But in terumah — and this brings us back to what I said at the beginning — even if I say that willingness is required in separating terumah, it’s still not like a parapet. Because with a parapet, if someone did it without my willingness, then maybe he’s an offender, trespassing, whatever, fine — but the house has a parapet. In terumah, even if willingness is sufficient, without willingness the terumah will not be valid terumah; it’s not just that you’re a thief or something like that. Okay? And the question whether redeeming a firstborn donkey is like this or like that — that is really the question. Okay, I’ll stop here. Next semester we’ll probably continue, so I’ll have to go back a bit, summarize where we were, and then continue. Thank you very much.

[Speaker E] Thank you very much.