Kiddushin, Chapter 2, 5783, Lesson 19

[Rabbi Michael Abraham] We—I want to deal today with a point that comes up from the give-and-take in the Talmud. The Talmud brings sources for the law of agency from the slaughtering of the Passover offering, or from being appointed over the Passover offering, and it rejects those sources on the grounds that maybe there the agent was a partner, and therefore you can’t learn from there the general law of agency. I want to touch a bit on this issue of what the difference is between an agent who is a partner and an ordinary agent. What advantage does an agent who is a partner have over an ordinary agent? And from that I also want to touch on two more contexts that come up in a similar connection—sort of two topics that come up in a similar context—and that’s regarding a worker and regarding a slave. A worker and a slave—in different places in the Talmud you can see that they can do something even if an agent can’t do it. Meaning, we basically have three legal personalities, or three kinds of legal personalities, that have some kind of advantage—at least as an initial assumption they have some kind of advantage—over an ordinary agent: a slave, a partner, and a worker. And the question is why, really, and what does that teach me about the concept of agency? Meaning, the fact that there is an advantage there says something about the concept of agency—what helps it and what doesn’t help it—so from there we can learn a little about the question of what agency is. But before that I want to go back for a moment to the Talmud. On 41b the Talmud says: “We derive it from Rabbi Yehoshua ben Korcha.” In other words, we’re talking about agency in sacrificial matters. How do we know agency in sacrificial matters? You can’t derive it from terumah, not from bills of divorce, and not from betrothal, because they all have a secular analogue unlike sacrificial matters. And then the Talmud says: so where do we really know agency in sacrificial matters from? “We derive it from Rabbi Yehoshua ben Korcha, for Rabbi Yehoshua ben Korcha said: From where do we know that a person’s agent is like himself? As it is stated: ‘And the whole assembly of the congregation of Israel shall slaughter it at twilight.’ Now does the whole congregation all slaughter? Surely only one person slaughters! From here we learn that a person’s agent is like himself.” Okay? Meaning, it says: “And the whole assembly of the congregation of Israel shall slaughter it at twilight.” Obviously not all Israel slaughter; one person slaughters, and through that it works for the whole congregation of Israel. So we see that agency works in slaughtering sacrificial offerings—this is the Passover offering there. That’s the discussion on 41b. After the Talmud talks about terumah, which is what we dealt with in the last few lectures, the Talmud says like this—it continues the discussion, I’m skipping over terumah because that’s what we dealt with in previous lectures, I’m just trying to put you in context. So the Talmud says: “This works well according to Rabbi Yehoshua ben Korcha,” right? We saw that Rabbi Yehoshua ben Korcha brings the source for slaughtering sacrificial offerings from “and the whole assembly of the congregation of Israel shall slaughter it.” “But according to Rabbi Yonatan, who uses that verse for another interpretation, from where do we know it?” This verse, “and the whole assembly of the congregation of Israel shall slaughter it at twilight”—Rabbi Yehoshua ben Korcha learns from it the law of agency in sacrificial matters, but Rabbi Yonatan learns something else from that verse. So the question is: from where does he derive agency in sacrificial matters? What does he learn? “As it was taught: Rabbi Yonatan says: From where do we know that all Israel can fulfill their obligation with one Passover offering? As it is stated: ‘And the whole assembly of the congregation of Israel shall slaughter it at twilight.’ Now does the whole congregation all slaughter? Surely only one person slaughters! Rather, from here we learn that all Israel can fulfill their obligation with one Passover offering.” Rashi here basically explains that we learn that eating does not prevent fulfillment, right? If all Israel fulfill their obligation with one Passover offering, then there isn’t an olive-sized piece for each and every one to eat from the offering. So if all Israel can fulfill their obligation with one Passover offering, that means eating does not prevent fulfillment. That’s what Rabbi Yonatan learns from this verse. And then the question is: fine, so Rabbi Yonatan, for whom this verse teaches the law that eating does not prevent fulfillment—from where does he derive the law that agency applies in sacrificial matters? So the Talmud says: “From it itself.” From that very verse. Why? True, I derive from it that eating does not prevent fulfillment, but in practice how does this work? It works because one Passover offering is slaughtered for the whole congregation of Israel. Does the whole Jewish people slaughter this offering? Obviously not. One person slaughters that offering. So true, the verse teaches me that eating does not prevent fulfillment, but the meaning of the verse—it’s not a midrash, not an extra word or something like that—the meaning of the verse says that a person’s agent is like himself in sacrificial matters. And that sharpens a point I’ve already spoken about, I think more than once: when we learn something from a verse in the world of midrashic interpretation, in the sphere of interpretation, that doesn’t prevent us from learning something else from it in the sphere of plain meaning. Meaning, in this respect those rules were not said—that if it’s already being used for one thing, you need another source in order to learn another law—because there are things that are not learned from the verse; they are simply written in it. Things learned from the verse—then you say, it has to be extra, it has to not be teaching something else, and then it teaches this. But there are things that simply emerge from what the verse says; it’s written in the verse, it’s not learned from the verse. Okay? And here there are no questions of duplication. There is something written in the verse and something learned from the verse, and that doesn’t contradict learning both. That says something about the relationship between plain meaning and midrashic interpretation—that plain meaning and interpretation are not competing with one another, but are two parallel planes for reading the verse, and on one plane you can derive one conclusion from it and on another plane you can derive a different conclusion from it. And there’s no question of how you can derive something from this verse when it already teaches something else. It doesn’t teach something else; something is simply written in it. Those are two different things. In any event, that’s what the Talmud says. I mentioned this, I think—at the beginning of the chapter there’s Tosafot who talks about “and he shall send” and “and she shall send,” that he appoints an agent, she appoints an agent, and an agent appoints an agent. And there’s a long discussion there in Tosafot, and the Maharsha and the Maharam dig into it even more, and at least there comes up the possibility that one of those three laws is not learned from some extra wording in “and she shall send,” but simply from the fact that it says “and she shall send”—meaning the meaning of the verse itself says it. Everything else is interpretations, and about them you can discuss whether there’s an extra word or not. So that’s at the beginning of the chapter. What? There really isn’t any other possibility; you can’t…

[Speaker C] You can’t say: I don’t learn from the plain meaning. It just doesn’t make sense.

[Rabbi Michael Abraham] I agree, you know, but—

[Speaker C] So—

[Rabbi Michael Abraham] I’ll tell you, for example, from what. The Minchat Chinukh writes—there are two Minchat Chinukhs—the Minchat Chinukh writes that there is no prohibition against tripping a blind person on the road. What? Because it’s—

[Speaker C] Really very straightforward, right.

[Rabbi Michael Abraham] Fine, so from him too I’m trying to tell you why I’m saying this. You ask why I’m saying this. The Minchat Chinukh is at least worth enough for us to say that he’s wrong. Meaning, he says there’s no such thing, because the Sages interpret “You shall not place a stumbling block before the blind” as referring to unfair advice and causing someone to sin. This is such a strange position in the Minchat Chinukh, because it basically assumes that what I said here is not true. He’s basically saying that even what is actually written in the verse itself enters this whole game of extra words: if you learn one thing, you can’t learn something else. He doesn’t distinguish between what you derive and what is actually written in the verse itself—this “from it itself” that’s here, okay? That’s basically what he assumes there.

[Speaker C] You want to say that you have to explain the verse metaphorically, and then the plain meaning isn’t written there—as if it’s not speaking about a blind person and it’s not speaking about a stumbling block.

[Rabbi Michael Abraham] You’re saying that’s not a derivation, it’s a metaphorical interpretation. If it were a derivation, you’d be right. You’re saying it’s a metaphorical interpretation, which is basically an alternative to the plain meaning. Okay, I hear what you’re saying—interesting.

[Speaker C] Because it sounds strange to ignore what’s written.

[Rabbi Michael Abraham] There is—the Minchat Chinukh writes—well yes, but you know, verses are taken out of their plain meaning; that’s what the Talmud says in Yevamot on 12, I think. The Talmud says there that there are interpretations that remove a verse from its plain meaning. “He shall rise up in the name of his dead brother”—I think the Talmud in Yevamot talks about that—that you need to name the child after the dead brother; that’s the plain meaning of the verse. The Talmud says no, we learn from it that one must perform levirate marriage, but not that he must name him after him.

[Speaker C] I don’t know, what—

[Rabbi Michael Abraham] That the plain meaning really disappears. You have to think about that, although there I think the Talmud treats it as some kind of interpretation and not as a metaphorical explanation, but that needs checking. I don’t know, I hadn’t thought about that option. There’s another Minchat Chinukh that I remembered. He says—it’s somewhat related, I don’t know, just an association—he says, let’s say you have a sick person on the Sabbath and you need to give him something prohibited to eat because it’s a matter of saving life. Now you have two options. One option is something prohibited that is explicitly written in the Torah, and the other prohibition is one derived from the Torah by interpretation. Which is preferable to give him? So he says it’s preferable to give him the prohibition explicitly written in the Torah. Why? Because if you give him the prohibition derived through interpretation, then he’ll be violating two prohibitions: also “do not deviate,” because you have to obey the voice of the Sages with regard to their interpretations, and also the prohibition itself that the Sages learned. And that’s more severe than violating a prohibition explicitly written in the Torah. Now I think that there too there’s something—I don’t know, it just popped into my mind as an association—I think there too there’s something like this. Meaning, he is basically claiming there that what is written in the verse competes with what I derived from it. Now obviously it’s not exactly the same thing, but I think there is a similar way of thinking there. Again, I think there too he is wrong; it’s fairly clear that he’s wrong. “Do not deviate” simply reveals to me that what the Sages said about the verse is the binding plain meaning for me. And that is what is written there. And now it’s prohibited because it’s written in the verse. It’s not that this counts as rabbinic.

[Speaker C] So he told me that it’s a Torah prohibition, so—

[Rabbi Michael Abraham] I violated a Torah prohibition, not a rabbinic one. Exactly. That’s exactly the same claim. Right. So what’s really the point? The point is that “do not deviate” is an authorizing verse; it’s not a prohibition. It’s a verse that authorizes the Sages to determine what is written in the verse. Once they are authorized to determine what is written in the verse, now the prohibition imposed on me is what is written in the verse, not what the Sages said. Now, it’s not so simple, because yes, there’s the well-known Netivot in 234. Netivot says that if I violate a rabbinic prohibition inadvertently, I do not need repentance. Why? Because it’s not merely a personal prohibition; personal prohibitions maybe also require repentance even if inadvertent—it’s an obedience prohibition. A certain type of personal prohibition. Meaning, all that is prohibited in a rabbinic prohibition is not obeying the Sages. The moment you don’t know that they prohibited it, because it was inadvertent—you didn’t know this was poultry with milk, you thought it was soy—then you didn’t know that the Sages prohibited it, so there was no rebellion against their authority, and therefore you did not violate “do not deviate.” That says something a bit different. So that somewhat suggests that “do not deviate” really is a prohibition and not just an authorizing verse. Because if it were just an authorizing verse, then apparently I should say that I violated a prohibition inadvertently. Once the Sages revealed to me that there is a prohibition in this verse, or that this thing is prohibited, then now this thing itself is prohibited—not obedience to the Sages. “Do not deviate” only reveals that the Sages can generate prohibitions. But now the prohibition imposed on me is the prohibition they generated, not obedience to the Sages. Maybe there’s room to distinguish between enactments and interpretations—fine, we won’t get into that. In any event, for our purposes, the Talmud says: “from it itself.” Meaning, it’s learned from that very thing. The Talmud says: “But perhaps it is different there, because he has a share in it.” Right? You tell me that “the whole congregation all slaughter,” and from the verse it follows that there is agency in sacrificial matters because the slaughterer is really slaughtering on behalf of all Israel, since not all Israel slaughter at once. So the Talmud says: okay, so from there we learn agency in sacrificial matters. Then the Talmud asks: maybe you can’t learn from there, because there he has an advantage—he has a partnership. After all, he too is one of Israel who are appointed over this Passover offering, and therefore he is really slaughtering also for himself; he is a partner in this group that is appointed over this Passover offering. And therefore you can’t learn from here that an ordinary person can also be an agent. Maybe here he can be an agent because he is a partner. But a person who is not a partner—how do you know he too can be an agent?

[Speaker C] In just a moment—

[Rabbi Michael Abraham] We’ll see. There’s a dispute among later authorities there; some really do say that. “Rather, from here: ‘They shall take for themselves, each man, a lamb for a father’s house, a lamb for a household.’” What does that mean? Before we talked about slaughtering the Passover offering; now we’re talking about taking the Passover offering, the appointment. So when it says, “They shall take for themselves, each man, a lamb for a father’s house, a lamb for a household,” again, the person goes and takes it—not everyone takes it together. A person takes the lamb for the group that sent him. So we see there is an agent for appointment, not from slaughter. The Talmud says: “But perhaps there too it is because he has a share in it.” There too, because he is a partner, that is why he can acquire it for them, and you can’t learn from here that an ordinary person can be an agent in sacrificial matters. The Talmud says: “If so, why do I need two verses?” What are you telling me, that in both cases it’s about partnership? Then one of them is extra. “If it is not needed for a case where it applies, apply it to a case where it does not apply.” So true, both of them basically may be speaking about partnership. But one of them is extra. Since one of them is extra, I learn from it also about a case that is not partnership. Meaning, what comes out in the Talmud in the end is that the two verses in principle really are speaking about an agent who is a partner. And an agent who is a partner has an advantage. But since I have two verses, one is extra, so “if it is not needed” for an agent who is a partner, “apply it” to an agent without partnership—that is, an ordinary agent. So throughout the whole Talmudic discussion you see that partnership gives you an advantage in the law of agency. And if I know he is a partner, it may be that he can perform things that an ordinary agent cannot perform. Or it may be that agency can exist in him in a way that it cannot in an ordinary agent. Right—those two formulations are exactly the two possibilities you mentioned earlier. The question is whether we’re dealing with a partner who is an agent, or whether partnership as such is an alternative to agency. Now, a few comments on this matter. First of all, why in the first source that was brought, the one we read at the beginning, with Rabbi Yehoshua ben Korcha—remember on the previous page? Right? Later the Talmud rejects it and says it’s interpreted for something else. Here the Talmud—yes, that which we read at the beginning of the lecture: “We derive it from Rabbi Yehoshua ben Korcha, for Rabbi Yehoshua ben Korcha said: From where do we know that a person’s agent is like himself? As it is stated: ‘And the whole assembly of the congregation of Israel shall slaughter it at twilight,’” etc., “from here we learn that a person’s agent is like himself.” Why doesn’t the Talmud reject that too—maybe it is different there because he has a share in it? Exactly like it rejected above. No, why? Why would it reject in any case? It’s only the opposite—it remains. The Talmud only says below: “This works well according to Rabbi Yehoshua ben Korcha; what can Rabbi Yonatan say?” Rabbi Yonatan brings another source. Fine. But Rabbi Yehoshua ben Korcha is the source. So why doesn’t the Talmud reject it and say: it is different there because he has a share in it? Right—Tosafot on 42a asks this question. Let’s put it this way: Pnei Yehoshua claims—Pnei Yehoshua claims—that on 42a we are not speaking about all Israel slaughtering one Passover offering. That is only according to Rabbi Yonatan. Right? That is only according to Rabbi Yonatan. Rabbi Yonatan says that “and the whole assembly of the congregation of Israel shall slaughter it” means that the whole Jewish people slaughter one Passover offering. How can that be? He says because a person’s agent is like himself. Then the Talmud rejects it: yes, but that’s an agent who is a partner, so you can’t know from there. Okay? But there it’s all because “the whole assembly of Israel shall slaughter it at twilight.” Rabbi Yehoshua ben Korcha doesn’t read the verse that way—that’s what Pnei Yehoshua argues. Rabbi Yehoshua ben Korcha says it is not talking about one slaughter and the whole Jewish people. Rather, no matter—the different groups slaughter. “And the whole assembly of the congregation of Israel shall slaughter it” means that every person from the congregation of Israel can slaughter the Passover offering on your behalf. Not that all Israel fulfill their obligation with one Passover offering. That is exactly the difference between Rabbi Yehoshua ben Korcha’s reading and Rabbi Yonatan’s reading. Rabbi Yehoshua ben Korcha reads “and the whole assembly of the congregation of Israel shall slaughter it” not as meaning that all Israel are registered on one Passover offering, because he does not accept Rabbi Yonatan that eating does not prevent fulfillment, and in his view eating does prevent fulfillment. So by definition this is not one Passover offering for the whole Jewish people. Then how does he read the verse? After all it says, “And the whole assembly of the congregation of Israel shall slaughter it at twilight.” Apparently it means every Jew can slaughter the Passover offering on your behalf. Okay? So if that’s the case, then indeed a person’s agent is like himself, and there too you cannot reject it by saying “it is different there because he has a share in it,” because I am slaughtering for another group—every person in Israel can slaughter, including someone who is not part of the group. So he has no share in it. In the case where all Israel send an agent to slaughter, the agent too is part of Israel, so by definition he has a share in it. And therefore here they reject it that way, and there they do not reject it that way. Here, Tosafot. Tosafot 42a: “But perhaps it is different there, because he has a share.” From Tosafot’s wording it appears that he learned that we are speaking about an agent who is a partner. Right, that’s fairly clear. He says: how do you know one can appoint an agent if he is not a partner? Here you know one can appoint him as an agent if he is a partner; how do you know one can appoint him as an agent if he is not a partner? So it seems Tosafot says that “he has a share in it” means he is an agent who is also a partner. We’ll see that later. Right—but in the plain wording of Tosafot it seems to me that this is indeed so. “And one cannot say that indeed, where he has no share in it, one cannot make him an agent.” Say: fine, what’s the rejection? Maybe indeed an agent can only be a person who has a share, at least in sacrificial matters, right? An agent can only be someone who has a share—what’s the problem? How do you know not? The Talmud treats this as a rejection, as if it’s obvious to me that an agent can be anyone, and from here it turns out only an agent with a share—so it’s a rejection. No—maybe in fact only an agent with a share can be an agent in sacrificial matters. The Talmud says this cannot be, because we learned in the chapter “The Woman”: if one’s master said to him, “Go and slaughter the Passover offering on my behalf,” and he forgot what his master had told him—whether a kid or a lamb—he should take a kid and a lamb and say: if my master told me “kid,” then the lamb is mine and the kid is his; and if my master told me “lamb,” then the kid is mine and the lamb is his. And from the fact that it says “the lamb is mine and the kid is his,” it sounds like he has no share in the kid, and nevertheless he slaughters the kid for his master. Now this is a situation where clearly there is no partnership, because you give your master one and take another for yourself, and nevertheless you can slaughter on his behalf. So evidently one can make him an agent even where he has no share in it. An interesting question is where the Mishnah knows this from—but fine, we do have proof from the Mishnah that this is so. Meaning, agency is not only where you have a share in it. And the question really is from where—no, there’s no question. “And if you say: why did it not reject above as well, and say that Rabbi Yehoshua ben Korcha too is speaking where he has a share in it, as it says here?” Right? What I asked before: why with Rabbi Yehoshua ben Korcha, who brings proof from this verse that a person’s agent is like himself, did they not reject it in the same way—maybe it’s only where he has a share? “And one can say that according to Rabbi Yonatan, who derives from this verse that all Israel can fulfill their obligation with one Passover offering, since he holds that eating the Passover offering does not prevent fulfillment, then when it says one slaughters for all of them, it is speaking where he has a share in it, for this is what this verse is discussing. But according to Rabbi Yehoshua ben Korcha, who says that all Israel cannot fulfill their obligation with one Passover offering because each one needs to eat an olive-sized portion, then this phrase ‘and the whole assembly of the congregation of Israel shall slaughter it’ means that one person slaughters many Passover offerings. For from one Passover offering there is not an olive-sized portion for each and every one. And therefore he derives correctly that where there is no partnership, he can still slaughter.” Meaning, one person slaughters all the Passover offerings of Israel—he slaughters many Passover offerings. So regarding his own group, true, he is also a partner there, so you can’t prove anything. But he also slaughters for other groups, and so we see that even if you have no partnership, you can slaughter. That’s a little different from what I said before. Before, I said every person from Israel can slaughter for us. So there are different medieval authorities who explain it in different ways. Some explain it this way, some explain it that way. That’s regarding the question why Rabbi Yehoshua ben Korcha is not rejected that way. Pnei Yehoshua claims—Pnei Yehoshua claims—that actually even according to Rabbi Yehoshua ben Korcha it means that all Israel slaughter, and he explains it the way he explains why that possibility wasn’t raised there. But in the Talmud itself it doesn’t sound that way. In the Talmud itself it seems that really not—even though in the simple meaning of the verse it does seem that way according to Rabbi Yehoshua ben Korcha, and also in the plain wording of Rabbi Yehoshua ben Korcha it looks that way, still from the flow of the Talmud it seems that the Talmud apparently did not understand it that way. Now a few more comments I want to make. When the Talmud brings the source from appointment, or from taking the Passover offering, the Talmud says: so you can’t learn from “and the whole assembly of the congregation of Israel shall slaughter it,” because maybe he has a share in it. So from where do we learn? From “they shall take for themselves, each man, a lamb for a father’s house, a lamb for a household”—from appointment, from taking. And then the Talmud rejects it: no, there too maybe he has a share in it. Now there it’s a little tricky. Because if indeed the whole Jewish people have already, let’s say, taken the offering, and now one of them goes to slaughter it, then—in the case of appointment, as long as he has not yet acquired the offering, he is not yet a partner. Meaning, he will be a partner after he takes the offering and acquires it on behalf of the whole group. So he acquires for the group of which he is one member. But the partnership is created after the act he performs. The act he performs is what creates the state of partnership. There, it’s a big novelty what the Talmud says, that there too you can’t learn the law of agency because he has a share in it. In the first case it’s simple: he is already a partner anyway, if they were already appointed, the offering already belongs to them, everything is fine, now all that remains is to slaughter it. The slaughterer is one of the group, so of course he is slaughtering also for himself. The partnership existed before the act of slaughter. But when you’re talking about the act of taking or appointment itself, then there the act itself is what creates the partnership. When he does the act, he is not yet a partner. So the question is whether he can do such a thing. Why am I saying this? Because there is a Kovetz Shiurim in Ketubot—in Gittin—there’s a logical discussion there too, interesting. He brings in the name of Nachmanides—it’s a famous Nachmanides, many medieval authorities bring it, Rashba and Ritva and others—that the prohibition against freeing a slave is under the law of “you shall not show them favor.” When you free a slave, you’re basically giving a gift—“you shall not show them favor,” you shall not give them a gratuitous gift. So since it is forbidden to give a gratuitous gift to a gentile, that is why it is forbidden to free a slave. That is Nachmanides’ claim, and everyone asks on him—that of course cannot be what Nachmanides means, it just obviously isn’t right. Nachmanides means to say that the definition is like “you shall not show them favor,” not that it is under the law of “you shall not show them favor.” What does he mean? For example, Rabbi Eliezer freed his slave in order to complete a quorum. Right? They were lacking a tenth for the prayer quorum, so he freed the slave. When you free a slave he becomes a Jew, so he can complete the quorum. They were one short for the quorum, so he freed the slave. The medieval authorities ask there: how could he do that? There is a prohibition—“forever shall you make them work for you”; it is forbidden to free slaves, it is a positive commandment. So what, what? Obviously there is a prohibition of “forever shall you make them work for you”; what difference does it make if he’s a valid slave? So some of the medieval authorities say that the prohibition is giving them a gratuitous gift—what Nachmanides means, yes—the prohibition is giving them a gratuitous gift. But if it’s not a gift for his sake, it’s the use I am making of him. After all, what am I supposed to do? I am always supposed to work with the slave, not take care of him; I am supposed to take care of myself. I took care of myself—I was lacking one for the prayer quorum, so I freed the slave and thereby made use of him. That was the use I made of him. On that there is no prohibition. That’s what Nachmanides says. Obviously Nachmanides does not mean that the prohibition of freeing slaves is under the law of “you shall not show them favor.” He means that its definition, its character, is like “you shall not show them favor”: here too the prohibition is to give him gifts for no reason. And if you use him in this way, then there is no prohibition, just like the prohibition of “you shall not show them favor”—not that he means it is literally that prohibition. Okay, but for our purposes, there are all kinds of questions on Nachmanides that are resolved immediately if you understand it this way, because obviously Nachmanides didn’t mean that. But Kovetz Shiurim asks: when you free the slave he becomes a Jew, so you didn’t give a gratuitous gift to a gentile; you gave a gratuitous gift to a Jew. So what’s the problem?

[Speaker C] The moment it becomes his is the moment he becomes a Jew, right.

[Rabbi Michael Abraham] Right. So to whom did you give the gift? Did you give the gift to the one who was here before the giving of the gift, or to the one who was created by the giving of the gift? Now that’s what he asks, and he connects it to—this appears in Ketubot—there is the conversion of a minor there, so that works under the law of conferring a benefit…

[Speaker C] Let’s say now—

[Rabbi Michael Abraham] I murdered someone—so?

[Speaker C] After he died, whom did I murder? He no longer exists.

[Rabbi Michael Abraham] No, that’s not the same question. You created his being dead. Fine. But I created his being Jewish, so what’s the problem? There isn’t some gentile here holding gifts. The prohibition is that there be a gentile holding gifts from me—there is no such state of affairs. Fine, you can answer—that’s not just empty casuistry. You can say that the prohibition is on the act and not on the result. That’s not at all a simple matter. The simple view is that you’re not supposed to benefit a gentile, and “to benefit” means not the act but that he is now in a better state as a gentile. You’re not… I think that’s the simple explanation.

[Speaker C] But here there’s also a question that isn’t just hairsplitting, but really the question is that I didn’t actually benefit… the one who received the benefit is a Jew.

[Rabbi Michael Abraham] Yes, exactly. So that’s why, in the case of a minor who converts, the Talmud says it works by the principle of acting for someone’s benefit. After all, a minor lacks legal capacity, so the religious court converts him on the basis of acting for his benefit. There are all kinds of discussions there about how this principle works; maybe we’ll still get to that when we discuss it in our own topic. But in any case, the question comes up there too about acting for the benefit of a gentile, right? And then Rabbi Elchanan asks: what do you mean, acting for the benefit of a gentile? This is acting for the benefit of a Jew, because the moment you convert him he becomes a Jew. And he claims that this Nachmanides contradicts what Tosafot says in Ketubot, so he raises difficulties from it, not important right now, just as an aside. But those are two comments of his that are actually very similar to what I noted here. Because what am I really saying? When you send an agent to register people for the Passover offering, the act of registration performed by the agent is what creates his status as a partner. So is that called an agent who is a partner? The partnership is created after he performs his agency, or his agency is what creates the partnership. Can you also say here that this is better than an ordinary agent? Maybe yes, I don’t know, but it’s not exactly the same thing as an agent for slaughtering. And an agent for slaughtering is already fully a partner beforehand. Okay? And then it could be that this itself is the Talmud’s line of reasoning. The Talmud says: it is different there, since he has partnership in it itself, regarding an agent in slaughtering. The Talmud doesn’t learn it from there; no, it learns it from an agent for registration. What did the Talmud think? Doesn’t it understand that here too there’s a problem, because you could say he is a partner? No, the Talmud thought that such a thing is not called partnership in it itself, because at the moment he performs the act of registration he is not yet a partner. And to that the Talmud answers: no, this too is called partnership in it itself. Fine. But the Talmud’s initial assumption—why did it bring that up in the first place? Apparently really because of this difference.

By the way, regarding Rabbi Elchanan’s difficulty—why is the difficulty incorrect? For several reasons, but why is it incorrect? Because Nachmanides is not speaking in terms of “do not show them favor.” Now if it’s not from the law of “you shall work them forever,” then what are you really telling me? “You shall work them forever” doesn’t apply to a slave? But when you free him, that itself is the prohibition against freeing a slave. The Torah says there is a prohibition against freeing a slave, so what exactly do you want? What else could it be talking about? And if it really were from the law of “do not show them favor,” then you’re telling me there’s no prohibition to free a slave, there’s only a prohibition to give a gift to a gentile. But I didn’t give a gift to a gentile—the one who received the gift was a Jew. He became a Jew together with the gift, right? That’s a good question. But Kovetz Shiurim understands that Nachmanides is saying the prohibition against freeing a slave is because of “do not show them favor,” and that’s just not true. What Nachmanides says is that it’s similar to the law of “do not show them favor”: here too it’s forbidden, the whole prohibition is to do it gratuitously, but if you do it for your own use, then yes. He doesn’t say it’s a prohibition against giving a free gift to a gentile. And therefore the question of Kovetz Shiurim doesn’t even get off the ground. There are several more questions on this Nachmanides that also don’t get off the ground, because later authorities, for some reason, understood him as speaking literally in terms of “do not show them favor,” but that’s simply not correct. Fine, that’s just in parentheses. So in any case, that’s why the Talmud really rejects it?

[Speaker A] Rejects what? That you can’t be registered. I mean, before this he wasn’t registered; before this he wasn’t a partner.

[Rabbi Michael Abraham] It apparently understands that even such a thing is called partnership, at least in the sense that it’s better than an ordinary person. After all, that’s enough—it doesn’t have to be exactly like a partner in slaughtering. A partner in slaughtering isn’t even in question; it’s obvious that he can be an agent. Here it’s not obvious the way it is with a partner in slaughtering, but it still doesn’t teach us about an ordinary agent, because in the end the act itself really turns him into a partner. With an ordinary agent, even as a result of the act he won’t become a partner. So here you can say that it’s still better than an ordinary agent, and therefore as a rejection it’s a good rejection. At first the Talmud thought: yes, it’s not like an agent for slaughtering, true, but on the other hand it’s also not an ordinary agent. You can’t derive…

Actually, this needs some discussion; it’s not so simple. There’s some sense that once you perform this act, and this act turns all of you into partners, then it is called an agent within a partnership. We are partners in the sense that you’re performing an act that is shared by all of us—not partnership in the financial sense. The partnership in the financial sense is only created after the registration, after I take the offering; only then are we partners, because only then is our ownership created at all. But the act of registration is done in the name of the group, and the group apparently exists. And the group apparently exists—their group, the group is created with the registration, or the group is created with the decision to register. And now when you go to register for the Passover offering, or to register everyone for the Passover offering—maybe that’s the better way to say it, to register everyone for the Passover offering—then you really are a partner in the group, because you’re performing an act that concerns yourself too, not only them. You’re registering yourself and everyone else together. Right? In other words, the question is whether we’re talking about the financial partnership, which really is created only after you acquire the offering, because before that it belongs to no one; or whether the partnership is simply because the act is one done both for myself and for others. And then it really is full partnership. Okay?

Why am I saying this? We’ll see later, but what is the advantage of a partner? Why is it easier for a partner to be an agent than for an ordinary person? You can look for it in two directions. The concept of agency means: Reuven sends Shimon to perform an act on his behalf, on behalf of Reuven. Fine? Two things have to happen here. First, Shimon has to perform a valid act—that is, he has to be capable of carrying out the act. Second, he also has to be able to serve as Reuven’s agent in the sense that what he did will be credited to Reuven. Right? Both of those things have to exist.

Now the law of agency basically says that the agent’s act is valid, and the result is credited to the sender. Now when I’m a partner, is my advantage over an ordinary agent on the first level or on the second level? You could say that my being a partner basically means: well, if I’m a partner then I can certainly register, because after all I’m registering. It’s not like divorce. In divorce, I send an agent to divorce the woman. The agent is not a partner in the woman; he cannot divorce the woman on his own. Right? He can divorce a woman if she is his wife, but not this woman. This woman he cannot divorce; he’s not her husband. So there is a problem here even with the agent’s ability to perform the act, before you even get to the question whether the act will be credited to the sender. The very performance of the act cannot be done by the agent. The Torah introduces two innovations: first, the agent can perform the act; second, that act is credited to the sender.

Now when I speak about a case where the agent is a partner—say there were two owners to the woman, right? In the case of the designated maidservant—we talked about that once, I think—a designated maidservant, maybe a wife of two dead men. So it could be that the agent is a partner. Fine? Why is it now easier to understand that he can divorce the woman on my behalf? Is it because he can simply divorce this woman? Is his advantage that he can perform the act? Or is his advantage that he can more truly be my agent because he is my partner? So his connection to me is closer than that of a stranger. The advantage of a partner could be in either of those two components. Okay? In the ability to perform the act, or in the ability to serve as my representative so that the result of the act is attributed to me. Which of the two?

Now if I understand that it’s about the ability to perform the act, not about being my agent, then it seems to me that an agent for registration is a partner in every respect. Because what am I really saying? I can do it—I’m doing it for myself too. Just as I’m doing it for myself, I can do it for others as well. Right? So what does that really mean? Maybe I’ll put it to you this way. The advantage of a partner can be an advantage in the sense that he can perform the act because he is a partner, as in divorce; and it can be an advantage in his connection to me, in that the act he performed is credited to me. Why does his being a partner give him an advantage in that? Here it could be either because, if he’s my partner, then he has some connection to me, he is close to me—just as a gentile is too far from me to be my agent, a Jew who is closer to me can be my agent. So it’s a question of closeness. A partner is even closer. Maybe that could be a reason—we’ll see regarding a slave and a hired worker and so on; maybe there that really is the point. But it could also be like: since he can acquire for himself, he can acquire for another too.

As the Talmud says in Bava Metzia: if someone seizes property on behalf of a creditor in a way that harms others, he has not acquired it. Right? Say Reuven owes money to Shimon and to Levi. Now Yehuda comes and seizes—say he owes one hundred shekels to Shimon and one hundred shekels to Levi, but he only has one hundred shekels. Now Yehuda comes, seizes the one hundred shekels from Reuven, and gives them for Shimon. Fine? The Talmud says: that doesn’t work, you can’t do such a thing. Why? Because if someone seizes property for a creditor where this harms others—after all, Reuven only has one hundred shekels, and if you seized his hundred shekels, then Levi won’t get his hundred shekels. So you are harming Levi, and therefore you can’t do it for Shimon. There is a dispute between Rashi and Tosafot whether this is even when he appointed him as an agent, or whether if he appointed him as an agent then he can do it; but in any case, ordinarily, someone who seizes property for a creditor where it harms others has not acquired it. If the one seizing is Levi himself, or Shimon himself—Shimon himself can seize both for himself and for Levi, even though he is harming others. Why? Since he can acquire for himself, he can acquire for another too. After all, he could have seized it for himself, because he is one of the creditors. Right? Reuven also owes him money. Since I could seize for myself, I can also seize for others. So similarly—not exactly the same thing, by the way, but similarly—you could say: if I am a partner, then since I take the Passover offering for myself, since he can acquire for himself, he can acquire for another too. That is basically an advantage on the plane of agency, not on the plane of capacity to perform the act—or at least also on the plane of agency. Why can I perform an act for others? Because I could have done it for myself. So my ability to do it for myself enables me to serve as a representative for others too. So that gives me an advantage in my connection between me and them—not because a partner is closer to me, as you might say a gentile is distant, a Jew is closer, and a partner is closer still. What I’m trying to suggest now is a different explanation. A partner has a connection to me not because he is closer to me, but simply because since he can acquire for himself, he can acquire for another too. Since he is doing it for himself as well, he can also do it for others.

Right, there is—this isn’t the “miggo” of “why would he lie.” There is a miggo of “since it serves as a wall for the sukkah, it serves as a wall for the Sabbath too.” Right? On the Sabbath during Sukkot, there are wall-laws where for the Sabbath it wouldn’t help, but for a sukkah it would. For example, a sukkah with three walls. For the Sabbath, in order for it to count as a private domain, you need four walls. Fine? But on the Sabbath of Sukkot, the Talmud says, even a sukkah with three walls is a private domain: since it serves as a wall for the sukkah, it serves as a wall for the Sabbath too. Okay? Or: since it serves as an enclosure for the sukkah, it serves as an enclosure for the Sabbath.

[Speaker D] Isn’t there some logical fallacy here? It’s not logic.

[Rabbi Michael Abraham] What do you mean, some logical fallacy? It’s a halakhic principle. No, obviously not—it’s a halakhic principle, not a logical one. So the claim is apparently that the concept of domain—when you speak about the concept of domain—it’s not “a domain for the Sabbath” and “a domain for the sukkah.” There is a concept of domain that has particular expressions regarding the sukkah and the Sabbath. Now if, for the sukkah, it constitutes a domain, then it is already a domain, and automatically it is also a domain for the Sabbath. In contrast, if you understand that the concept of domain doesn’t exist in itself—there is a domain for sukkah and a domain for the Sabbath—then what’s the connection? Just because something is a domain for the sukkah, why would that make it a domain for the Sabbath? That’s just the same term, not really the same concept. The claim is that the concept of domain is a universal concept, and it has different manifestations in the Sabbath and in sukkah. So if on the Sabbath of Sukkot, from the sukkah side, it becomes a domain, then it is a domain, and so for the Sabbath too it will be a domain. Fine? The law of the excluded middle? If you assume there is a universal concept of domain, yes. The law of the excluded middle? No, not that; I assume it’s contradiction—I mean, it’s the law of non-contradiction, not the law of the excluded middle. In any event, the claim is that here too I want to say: since I can acquire for myself, I can acquire for others as well. So that means I actually have perhaps even two advantages over an ordinary person. First, I have the power to perform the act of acquisition itself—as opposed to divorce, for example, where I cannot divorce your wife; she isn’t my wife. I cannot perform the act; I have no power to perform the act at all—not in the sense that it won’t be credited to her, as though, you know, I don’t want it credited to you, I want to divorce her for myself. There is no such thing. I cannot divorce a woman who is not my wife. Okay? And second, I also need the act to be related to you. So we said the law of agency introduces both things: I can perform the act, and it will be related to the sender. Okay?

[Speaker C] Maybe this sounds absurd, but a person cannot acquire for someone else except by specifying some part of his own personal standing. Because it’s obvious that if I can do it for you, then that itself gives me the power to perform the act. The reason I can’t divorce this woman is because she isn’t my wife. But if I were a partner?

[Rabbi Michael Abraham] No, in law you’re talking about the conclusion; I’m talking about the initial assumption. In the initial assumption, when you look at the question why we need the novelty of the law of agency—what would happen if there were no such novelty? I would say there are two problems here. First, I can’t divorce your wife. And second, even if I could, then I’d be divorcing her from me—but how from you? Now when the law of agency says it works, it says both things. You’re right. When you say that an agent can act, you’ve said both things: you’ve said both that he can divorce and that the divorce will take effect for the husband’s benefit. Obviously, because one doesn’t exist without the other. So the law of agency really does innovate both things, but there are still two innovations here.

[Speaker C] I’m not deriving from this that the law of agency teaches both; I’m just saying there’s a connection between them. Of course you can’t say it’s simply that I can’t do the act; there are cases in which…

[Rabbi Michael Abraham] No, in divorce it’s simply that you can’t do it.

[Speaker C] There are cases where I simply can’t do it—for example, a gentile cannot do things that I can, and that’s one kind of story. But there’s another story where I can’t do it only because I’m not you. Once agency solves that problem—

[Rabbi Michael Abraham] No, I’m saying that’s not precise. You can call it the other side of the coin. When I cannot divorce your wife, it’s not only because I’m not you. I don’t want to divorce her for you; I want to divorce her from me. That’s exactly—no, but it’s not because I’m not you. The fact that I’m not you prevents me from divorcing her from you. But I’m saying: if theoretically you could divorce her from me—

[Speaker C] She isn’t married.

[Rabbi Michael Abraham] Exactly, so there is no such thing. No, fine, that’s it—so I can’t divorce her.

[Speaker C] You said: you can’t do something when you’re not in that situation. Right, it doesn’t exist.

[Rabbi Michael Abraham] Right, right. Or that you have…

[Speaker C] No, but it doesn’t exist essentially, not because I’m not there. It doesn’t exist essentially. A gentile cannot divorce.

[Rabbi Michael Abraham] No, but here too it’s essentially impossible, not like “I’m not there.” If I’m not there, I can get there. Here it’s essentially impossible. She is not my wife. No, I cannot divorce a woman who is not…

[Speaker C] And after he divorces her?

[Rabbi Michael Abraham] After he divorces her, then in fact I’ll be able to divorce her.

[Speaker C] After—

[Rabbi Michael Abraham] After he divorces her, then in fact I’ll be able to divorce her. I’m talking about now. Right now it’s an essential matter. Fine, but it doesn’t matter; right now it’s an essential matter.

[Speaker C] I have the power to perform the act. No, you don’t.

[Rabbi Michael Abraham] What power? You have no power; it’s not defined. What do you mean, you have power? It’s like—once I wondered whether there is muktzeh on a weekday. After all, on a weekday it’s permitted and on the Sabbath it’s forbidden. The concept of muktzeh simply isn’t defined on a weekday. Where does this make a practical difference? There is Tosafot in Sukkah that says the prohibition against using sukkah decorations and sukkah wood is because of muktzeh. There is a discussion there whether that is Torah-level—“festival to God,” set aside for God—so it’s muktzeh; apparently there are two things there. So, because of muktzeh. Now, muktzeh on intermediate festival days—there is no such thing as muktzeh on intermediate festival days. Intermediate festival days are weekdays with respect to the laws of muktzeh, from the standpoint of the laws of the Sabbath. Intermediate festival days have the laws of the festival but not the laws of a full holiday day, okay? In the simple view, that’s how it is.

There is the Chayei Adam who wants to argue that the intermediate festival is itself a festival. It says in the Torah, according to Nachmanides, that the Torah handed over to the Sages which labors to forbid on this festival, but it is a labor prohibition like an ordinary Sabbath prohibition. Therefore in the laws of intermediate festival days, the Chayei Adam goes through all thirty-nine primary categories of labor, and for each one discusses whether it is forbidden or permitted and how. In other words, he seems to understand it as a festival in every respect, except that there are things the Sages permitted and things they forbade, because the Torah gave the Sages authority to determine which things were prohibited. But the simple understanding is not like that. There are no labor prohibitions on intermediate festival days. What is forbidden is because of preserving the character of the festival and to avoid financial loss and so on, but these are not labor prohibitions in the sense of a full holiday. Then it is basically a weekday. It’s Sukkot, but a weekday. On Sukkot there is the festival of Sukkot and there is the weekday of Sukkot. What does muktzeh have to do with a weekday? Yet we see that there is muktzeh on a weekday—but on an ordinary weekday it is permitted, whereas on intermediate festival days it is forbidden. A certain kind of muktzeh, not all forms of muktzeh. Only sukkah wood and sukkah decorations. Okay? Fine, it’s the same thing. The question is whether a person who is not the woman’s husband cannot divorce her, or whether he can, except there is no one to divorce. This somewhat resembles the dispute between Rashi and the Rif. I mentioned it. We saw the dispute between the Tur and Maimonides regarding the sender becoming mentally incompetent. If the sender became mentally incompetent, can the agent still divorce the woman, depending on whether the agent is an extended hand or an empowered representative? Now the Ketzot asks: what happens when the sender dies? He claims this too is a practical difference. That is, according to the one who says the agent is an extended hand, the agent cannot divorce the woman once the sender has died. But according to the one who says the agent is an empowered representative, in principle he could divorce the woman. Except what? Except there is no one to divorce, because she is no longer a married woman once her husband has died. In other words, in principle he can divorce the woman, and he cites a dispute on this between Rashi and the Rif. And there is a question how to explain the fact that after the sender dies, the agent can no longer divorce. You can explain it by saying there is no sender, no agency; the agency has expired. Or you can explain it by saying no, the agency still exists, there’s simply no one to divorce because the woman is not a married woman. That is exactly our discussion here. When I say that I cannot divorce the woman because she is—

[Speaker C] Not my wife—what does that mean? That I can’t divorce the woman? No, or that I can divorce—I have—

[Rabbi Michael Abraham] The power, but because she is not my wife, there is no one to divorce. Fine? Fine. Maybe to say it in a way that would make the distinction clearer in this case? No, the distinction is clear; there’s no need to formulate it differently. The distinction is clear because I’m saying you could also have said otherwise. You could say otherwise. It’s obvious that there are two reasons why a person can’t do something. One reason says there is a problem in me, and the second says there is a problem in the circumstances. Okay, and still—and still—I do not have the power to do it. So you can still say that although these are two different reasons, and they really are two different reasons, still you can say that I do not have the power to do it, and the novelty of the law of agency introduces both things: that I have the power to do it, and that it will be credited to the sender. Of course in the end they always come together. In the initial assumption there are two problems here; in the conclusion, when you say we solved the problems, obviously we solved both of them—you can’t solve one without the other. And therefore the novelty of the law of agency introduces both things: it both gives me the power to do it and says that what I do will be credited to the sender.

And now I ask: is the advantage of a partner an advantage in the ability to perform, or is it an advantage in the ability for the result to be credited to the sender? Maybe yes, maybe no. It could be both, and here there is room for discussion. Because one could have said that since I can do it for myself—since he can acquire for himself, he can acquire for another too. And therefore, since you are yourself involved in this matter, you have an advantage over someone who is trying to acquire this offering for others to whom he has no connection. That is an advantage related at least also, if not only, to the ability to be their agent, not to the ability to perform the act. Because here, what is the problem with the ability to perform the act? I could have taken the offering and registered myself for it. I certainly could have. I’m just not doing it; I’m doing it for another group of which I’m not a part. Fine? So there is no problem here of ability to perform; the problem is the ability to do it for others. I’m saying: if I am part of the group, then since he can acquire for himself, he can acquire for his fellows too. Fine? So that helps me on the level of being an agent for others. Why am I saying this? Because if I understand it that way, then an agent for registration is a partner in every respect. There is no difference between an agent for registration and an agent for slaughtering. Because in registration too, he registers himself in the matter. It doesn’t matter that he is not substantively a partner so long as he hasn’t yet performed the act of registration, right? So long as he hasn’t taken the offering, we said he is not a partner because none of them owns the offering. Okay, true—but you don’t need partnership in that sense. You need the act to be done for himself as well, and then it is easier to say that it is done for others too. And that certainly exists in registration no less than in slaughtering. Even though right now he is not a partner, because when he performs the act, he performs it for himself as well and not only for others. And since he performs the act for himself, it is easier to say that he can also do it for others.

In contrast, if I understand that my being a partner only means that I am closer to my partners and therefore can be their agent, then here there is room to distinguish between an agent for slaughtering and an agent for registration. Because in the case of an agent for slaughtering, I am already close to them—we are partners here, I’m not just some person from the street. But in the case of an agent for registration, at the moment I still have no closeness to them at all. We have nothing in common except perhaps the shared desire to be registered together for the offering, but at this moment we have no closeness; the closeness will be created after I register us for the offering. So it could be that this depends on that. We’ll see later; it may depend on that. Why am I saying this? Because later we’ll see—just so you can see the context—that there are two more figures the Talmud says have an advantage in the laws of agency over an ordinary agent: a slave and a hired worker. Okay? Now for a slave and a hired worker, their advantage over an ordinary agent is, simply speaking, only in their connection to the sender, not in their ability to perform the act. On the contrary, in terms of ability to perform the act, a slave is worse; a slave is half-gentile. We talked about that Rabbi Akiva Eiger, right? Upgraded gentile or diminished Jew. Okay? A slave is half-gentile. Meaning, if you ask yourself whether he falls under the legal category, whether he has the power to perform the act—much less than an ordinary Israelite stranger. So why does the slave have an advantage over an ordinary Jew? Because his connection to the sender is stronger than that of a stranger. He is my slave, he is part of me, he is my extended hand. Okay? So the advantage of a slave, and similarly of a hired worker—a hired worker doesn’t literally belong to me, but he is still my extended hand. Fine, so he is somewhat like a slave. And the advantage of both the hired worker and the slave is clearly on the plane of their connection to the sender, not on the plane of the ability to do the act. They are simply closer to the sender than an ordinary person who wants to be his agent. It is a novelty of the Torah that he can be an agent, but with a slave or hired worker the connection is stronger than with a stranger. There perhaps even without the Torah’s novelty I would say that their acts are credited to the owner or sender, because they are literally his extended hand, acquired to him.

So there the advantage is clearly not on the plane of ability to perform the act—where there is even a deficiency, at least with a slave—but on the plane of the connection between the act you performed and me, meaning how this act is credited to me. With a partner there is room to discuss whether the advantage of a partner is the connection between me and him, or whether the advantage of a partner is his ability to perform the act. And therefore the advantage of a partner is not necessarily the same thing as the advantage of a slave and a hired worker.

[Speaker A] But the closeness of a slave and a hired worker—they’re closer to their senders than a partner is, right?

[Rabbi Michael Abraham] Obviously. That’s why I say that the advantage of a slave and of a hired worker is an advantage in their connection to the sender, not an advantage in their ability to perform the act. The slave is less able to perform the act—he isn’t a Jew at all, or not fully a Jew. So he certainly has no advantage over an ordinary Jew in ability to perform the act. But he does have an advantage in his connection to me, because he is my slave or my worker. In contrast, with a partner there is room to hesitate whether the partner’s advantage over a stranger is on the plane of ability to perform the act—after all, in the end he performs the act for himself too, whereas a stranger does not perform it for himself—or whether the advantage is on the plane of the connection between him and me, meaning on the plane of the ability to attribute what he does to me, not in the very ability to perform.

Yes. So in the end, as I said before, in the end the Talmud rejects it. “This is needed for Rabbi Yitzchak, for Rabbi Yitzchak said: a man can acquire, but a minor cannot acquire,” so apparently this is another source; they learn something else from it. “That is derived from ‘according to each man’s eating.’” “And this is needed for the teaching that we slaughter the Passover offering for one who is absent from the place,” and he holds like the one who says we do slaughter the Passover offering for one who is absent from the place. That’s less important for our purposes. Practically speaking, what remains is that this is the source, and it is learned by the method of ‘if it is not needed for one matter’ according to Rabbi Yonatan. According to Rabbi Yehoshua ben Korchah, it is learned from the verse “and the whole assembly of the congregation of Israel shall slaughter it.” Fine? That is the conclusion of the topic.

Now the Pnei Yehoshua here says as follows: “And perhaps it is different there because he has partnership in it itself—it appears that this means a partner whom one appointed as an agent. For if it were a partner without agency, don’t we say below that according to Rabbi Shimon a partner without agency is weaker than an ordinary agent?” Let’s see. The Pnei Yehoshua asks about the Talmud that says, “Perhaps it is different there because he has partnership in it itself.” He discusses the question: what is called “he has partnership in it itself”? Does it mean that because he is a partner there is no need to appoint him as an agent, and there would be no law of agency here at all? If only that had been written, then we wouldn’t know there is any law of agency at all. Or no—he means that they appointed him as an agent, and because he is a partner I would think that only a partner can be appointed as an agent, but an ordinary person cannot be appointed as an agent. Two possibilities. What does “he has partnership in it itself” mean? Is he an agent who is also a partner, or is partnership itself an alternative to agency? And the practical implication is this: if I learned it from this verse, and in this verse I would say that he has partnership, what would I think? Would I think there is no such thing as agency at all, because here it works by virtue of partnership, not by virtue of agency? Or would I think: no, there is a concept of agency, but the concept of agency was only introduced in the case of someone who is a partner, while someone who is not a partner cannot be an agent. Fine?

The Pnei Yehoshua says: “And perhaps it is different there because he has partnership in it itself—it appears this means a partner whom one appointed as an agent. For if it were a partner without agency”—it’s talking about someone who appointed his partner also as an agent; there is both partnership and appointment as agent, not just partnership itself—“for if it were a partner without agency, then we say below that according to Rabbi Shimon a partner without agency is worse than an ordinary agent.” He has proof for this from the earlier discussion. He says: if it were talking about partnership itself, and you tell me that a partner is preferable to an agent—that’s really what you want to say, right? If it’s an agent who is a partner, then the superiority is obvious: he is both an agent and a partner. But if he is only a partner, who said at all that a partner is preferable to an agent? Why does the Talmud assume, “it is different there because he has partnership in it itself”? Partnership is all very nice, but who said a partner is preferable to an agent? Why do you assume that?

So he says he has proof for this: according to Rabbi Shimon, a partner without agency is worse than an ordinary agent. Which Rabbi Shimon is this? In terumah. Right, “so shall you also set aside”—remember? Rabbi Shimon claims that a gentile does not belong to the law of terumah, and since he is not within the legal category of terumah, you don’t need the verse to exclude gentiles. “You”—and even members of the covenant—just as you are members of the covenant, so too your agents must be members of the covenant. According to Rabbi Shimon you don’t need that, because it follows from the fact that the gentile is not within the law of terumah, okay? So they ask: then why do you need the verse “so shall you also set aside”? To teach the very law of agency in terumah. Why? Because it says regarding terumah: “you” and not partners, “you” and not sharecroppers, “you” and not guardians. I might have thought this also means “you” and not an agent. The verse comes and says that an agent does work. So what do we see? That even though a partner cannot, an agent can. Meaning, an agent is something stronger than a partner, right?

Now the Rabbis disagree. The Rabbis think that in partnership, obviously there is agency despite “you”—meaning “you and not guardians and not partners and not sharecroppers”; they also agree with that law. And yet they still think that an agent does not need a verse, the very concept of agency in terumah. Okay? But in the hierarchy between the two, there seems to be no reason to say that the Rabbis and Rabbi Shimon disagree. They both agree that an agent is stronger than a partner. According to the Rabbis we know this even without a verse, and according to Rabbi Shimon the verse is what teaches it. Fine. But now, after the verse, at least according to everyone, it emerges that a partner is weaker than an agent. Now there it is clear that we are talking about a partner who is not an agent. If he were an agent, then let it follow from agency itself; you wouldn’t need this. So clearly they are not coming to say that a partner cannot be an agent. A partner, as opposed to someone who is not an agent, is only an improvement. All they want to say is that partnership as such—a partner who is not an agent—is not an alternative to agency. Partnership does not help, while agency does. So what do we see? That agency is something stronger than partnership. Therefore in our case, how can you say, “Perhaps it is different there because he has partnership in it itself”? If so, then all the more so agency should work, because an agent is stronger. We are forced to say that here we are talking about a partner who is an agent, not just a partner. And then what? It is different there because here it is a partner who is an agent. It may be that he can act, but how do we know that an ordinary agent who is not a partner can also act? Seemingly conclusive proof, right?

“Necessarily, here it is speaking of a partner through agency. And even when we establish it in the conclusion by the method of ‘if it is not needed for one matter,’ you cannot establish one verse for partnership through agency and the other for partnership without agency, for on the contrary, we should rather establish it for agency without partnership, for that is preferable to a partner without agency, as I proved.” What is he saying? The conclusion of the topic is that according to Rabbi Yonatan there are two sources for agency with respect to sacrificial matters—from registration and from slaughtering. In both of them, I could have rejected them by saying they involve partnership, and therefore the Talmud says “if it is not needed for one matter.” But, says the Pnei Yehoshua, you could have said something else. You could have said that you have two sources for agency in sacrificial matters: one of them is partnership plus agent, and one of them is partnership without an agent. Okay? So why do you need to reach “if it is not needed for one matter”? One deals with partnership plus an agent, and one deals with partnership without an agent.

When the Talmud says “if it is not needed for one matter,” that means it understands that both verses deal with partnership plus an agent. Only one of them is superfluous, so automatically I derive from it that ordinary agency exists. But why not say that one of them deals with partnership without an agent, and in fact an agent alone is ineffective? An agent who is a partner works, and a partner alone works; an agent alone does not work. Who says otherwise? Why do you say “if it is not needed for one matter” and infer that an agent alone can work too? It could be that one verse teaches an agent who is a partner, and the second teaches an ordinary partner without agency. But an agent without partnership cannot exist. As he says, according to this it is of course settled, right? “For on the contrary, we should rather establish it for agency without partnership, for that is preferable to a partner without agency, as I proved from Rabbi Shimon,” since we see that agency is preferable to partnership. So if you have two verses, one of them about an agent who is a partner, and now you have another verse—how will you interpret the second verse? As a partner who is not an agent, or as an agent who is not a partner? Obviously with the minimal novelty, right? What is the minimal novelty? An agent who is not a partner. Because to say that a partner who is not an agent can perform it is a greater novelty. That’s what we see in Rabbi Shimon, right? Therefore the Talmud says that the second verse teaches me about an agent. What?

[Speaker A] The second verse according to Rabbi Shimon, right? Here we see that an agent is stronger than a partner?

[Rabbi Michael Abraham] No, no. Both Rabbi Shimon and the Sages agree that an agent is stronger than a partner. It’s just that the Sages know it even without a verse, while Rabbi Shimon needs a verse for it. That’s what I said before. It doesn’t depend on a dispute between Rabbi Shimon and Rabbi Yehuda; they both agree on the hierarchy. It’s just that according to the Rabbis this hierarchy is so obvious that no verse is needed. Even though it says “you and not partners,” I would know by reasoning that there is agency in terumah. By reasoning—or from other sources, whatever. I don’t need a verse to teach me that there is agency in terumah. Meaning that according to the Sages, by reasoning alone, agency is stronger than partnership.

Now according to Rabbi Shimon, by reasoning alone I would not know that; I would think that if a partner cannot, then an agent also cannot. So in the stage of the initial assumption, Rabbi Shimon does not necessarily agree with the hierarchy of the Sages. But once the verse comes and says that there is—meaning that an agent can act—then the verse introduces the idea that an agent is more than a partner. Otherwise I would have said that “so shall you also set aside” comes to include the partner, not the agent, right? If you say it includes the agent, that means an agent is better. So therefore in the conclusion, after there is already a verse, both Rabbi Shimon and the Rabbis agree that an agent is better than a partner. So in our case too it must be so. And therefore the Talmud’s “if it is not needed for one matter” is perfectly clear. Why does the second verse—you can’t establish it as an agent who is a partner because you already have such a verse—why do you establish it as an agent? Establish it as a partner. Instead of an agent who is not a partner, establish it as a partner who is not an agent. What? I choose the smaller novelty. And from Rabbi Shimon we see that the smaller novelty is an agent who is not a partner. And that is exactly what the Pnei Yehoshua says. Therefore when our passage says, “let it follow from the fact that he is a partner,” it does not mean that his being a partner is an alternative to being an agent; rather, it means a partner who is also an agent. That is, since he is a partner it is easier to appoint him as an agent. Not that because he is a partner he can perform it even if he is not an agent—no. Rather, because he is a partner, perhaps agency works there; but with a stranger, perhaps agency would not work. That is the Talmud’s rejection.

The Atzmot Yosef here disagrees with him: “And perhaps it is different there because he has partnership in it itself.” Difficult: why not say that divorce proves otherwise, for even though no partnership applies there, one can appoint an agent. What about divorce, where it can take place even against her will? Sacred matters would prove otherwise. So he wants to argue that one can learn from divorce that an agent without partnership is effective. And there is some rebuttal—you also need sacrificial law—but you see that their having partnership does not interfere. Meaning, you can learn that agency exists even without partnership from divorce. His logic, by the way, is problematic. Because if there are two sources that each have distinctive features, that does not necessarily mean that none of those features is relevant. This probably depends on a dispute among the medieval authorities in Bava Kamma. The Rosh and the Geonim in Bava Kamma 6, right? The question is: when you have a derivation from a common denominator that comes from two sources, and each of those two sources has a distinctive property, do both of those distinctive properties have to appear in the thing derived, or neither of them?

[Speaker C] A common denominator says neither of them.

[Rabbi Michael Abraham] No, the logic there—the Rosh brings a dispute among the medieval authorities about this, how it fits with the practical workings of a common denominator.

[Speaker C] A new property that exists only in the common denominator? Exactly.

[Rabbi Michael Abraham] Right, exactly. No, but it could be that this new property exists only in a place where either these distinctive characteristics or those distinctive characteristics are present. No, so—

[Speaker C] That’s the whole idea of a common denominator.

[Rabbi Michael Abraham] No, that’s not the whole idea; for that I’d need to go into a whole lecture. It’s a dispute among the medieval authorities there, and one can definitely explain both kinds of medieval authorities. By the way, it’s actually a three-way dispute. The Rosh himself rules neither this way nor that way. He claims—it applies only to the characteristics of a pit and not the characteristics of fire. Only one of the source cases, the more essential one, let’s call it that. Fine. In any event, for our purposes, he raises a difficulty, and then he says: “And it appears that one can resolve it according to all views by saying that here, where he has partnership, the reason is not because of agency.” You see? Not like the Pnei Yehoshua. When I say he has partnership, the point is not that he is an agent who is a partner. No, just a partner. “Rather, since he has partnership in it itself, it is as if he and its owner are with him, and he goes to do his own part. And since he goes concerning his own property, automatically that of his fellow is done as well.” What is this? First of all, he says we are talking about a partner. And he also explains what the advantage of a partner is, which is what I discussed before. What is the advantage of a partner over another person? You can understand him in both dimensions. It appears as though when I do it, the owner comes along with me, because after all we are partners. So what does that mean? That I am more able to be his agent. Not that I have more power to perform the act, but that I have more power to be his agent in performing the act on his behalf. That is the advantage of a partner. Okay? There’s some possibility there that there’s a…

[Speaker C] He doesn’t need to act as an agent at all. Say there’s a joint bank account—I’m not her agent when I withdraw cash. I simply have the right to do it for both of us.

[Rabbi Michael Abraham] Yes, but there you’re talking only about the right to do it. When it comes to rights, her waiver is enough, that’s sufficient. But with appointment, in the end there’s a result that takes effect on her too.

[Speaker C] Here too there’s a result, if I take on a debt.

[Rabbi Michael Abraham] There’s no result?

[Speaker C] I take a loan from the bank. So. She also has to pay it back, even though I wasn’t her agent; I took it.

[Rabbi Michael Abraham] But that’s only because she agreed. Here too…

[Speaker C] Fine, so you can say it that way too. When you… when people form a partnership, you can’t—

[Rabbi Michael Abraham] take—you can’t take on a debt for me if I don’t agree.

[Speaker C] I’ll phrase it differently. That’s one way to see it. And another way to see it is: the question is who took on the debt. I can say that I took on the debt and she agreed to it. I can say something else: the partnership took on the debt, and each of us acts on behalf of the partnership. So I’m not her agent.

[Rabbi Michael Abraham] So that depends on the question of how exactly you define the concept of partnership. That’s the Ran at the beginning of the chapter “the partners.” How do I understand…

[Speaker C] Like a kind of small limited company of two people. So the idea is that each of us is the operative force.

[Rabbi Michael Abraham] So that’s what he says here. Therefore it’s as though “he and its owners are with him,” and he goes to do his own part.

[Speaker C] Yes, I’m just explaining what the idea of “its owners are with him” is. It’s not because of “its owners are with him.” It’s because of… no, because of the partnership. The subject here isn’t me, but the partnership.

[Rabbi Michael Abraham] In his wording he says: since he goes for his own portion, it automatically becomes effective for his fellow’s portion as well. It sounds a bit like… yes, it’s a kind of migo. Since he can acquire for himself, he can also acquire for his fellow. Yes, okay. And since that is so, when we ask, “What is special about divorce, in that it can take place against her will,” it would not make sense to answer and say, “Sacred offerings here prove otherwise,” because here it is not by virtue of agency. Okay? According to the Pnei Yehoshua, the question he raised at the beginning will be difficult. Why not learn it from the common denominator of divorce and this? So the Pnei Yehoshua will explain it like the dispute between the Rosh and the great authorities that I mentioned earlier. Okay? But that is his claim. Now he himself senses the difficulty raised by the Pnei Yehoshua. Atzmot Yosef can read. “And one should not argue precisely that if it is based on partnership alone, after all above we exclude partners from terumah and include an agent.” That is Rabbi Shimon, yes? Even though partners are not applicable in terumah, the agent is included according to Rabbi Shimon. So evidently an agent is preferable to a partner. Exactly the proof of the Pnei Yehoshua. Yes? After all, says the Atzmot Yosef, I am saying that here we are dealing with a partner, not a partner who is an agent. And the Gemara says that a partner is better than an agent, but in the Gemara above it is proven that an agent is better than a partner. And therefore, apparently, the Pnei Yehoshua is right that when the Gemara here speaks about a partner, it means a partner who is an agent—not just an ordinary partner. Okay? So he says: one should not infer that. Why? Because there it is different, since the other partner did not reveal his intent; but here, where he went with the consent of all the partners, it is considered as though everyone who has a share there is going and slaughtering it, since the one who has a partnership in its body is the one slaughtering it. What does that mean? There it is speaking about a situation where the owner of the produce did not reveal that he wanted his partner to separate the terumah. If he had revealed that he wanted his partner to separate the terumah, there would be no problem at all, and then the partner could separate it. In our case, they sent him to appoint everyone onto the offering. So there is a revealing of intent by the partners that they agree he should do it. When there is a revealing of intent by the partners that they agree, there a partner is indeed better than an agent. When an agent is better than a partner—that is where the other partner did not reveal his intent.

[Rabbi Michael Abraham] Now notice: this takes us back to the whole discussion we had in the topic of terumah—whether we are really dealing there with the concept of agency in the ordinary sense, or whether consent is enough. Is it even necessary that I separate the terumah? We saw that there is a dispute among the medieval authorities (Rishonim) about this.

[Speaker C] What? There it wasn’t a partner. What? How can there be a revealing of intent that someone…

[Rabbi Michael Abraham] I said: there was a dispute among the medieval authorities (Rishonim) there, and that is exactly this discussion. Meaning, it could be that the Pnei Yehoshua claims no—revealing intent there is not enough, and that is exactly why he does not accept the Atzmot Yosef’s rejection. And we saw that there is a dispute among the medieval authorities (Rishonim) there in that passage. The question is whether, in principle, the Torah requires the owner of the produce to separate the terumah, and therefore the concept of agency means that it is not enough for me merely to express consent, but I have to appoint you as an agent. Or perhaps not—it need not be that I myself separate it, but of course you cannot separate it against my will. If I agree and I’m content that terumah be separated, anyone can come and do it, and then it is enough for me merely to express my consent in the matter. Okay? Now that is exactly what he is claiming here. The Atzmot Yosef claims that there, what is needed is consent, and therefore a partner can separate it even though he is not… sorry, there, there is no consent, and therefore the partner is worse than an agent because there is no consent—but not because agency is required, rather because consent is required. Okay? In our case there is consent; once there is consent, then the partner, even though he is not an agent, can do the job.

[Speaker C] There is consent and he is a partner.

[Rabbi Michael Abraham] So otherwise it won’t help. And in terumah what?

[Speaker C] Yes? And in terumah what? What do you mean, “there”?

[Rabbi Michael Abraham] According to other opinions. Not necessarily. No. In terumah, if he is a partner, then with terumah it says that a partner is ineffective but an agent is effective. The Pnei Yehoshua says that is because there we are dealing with a case where there was no consent. If there were consent, then a partner would indeed be effective. What happens if there is consent without partnership? That is a completely different discussion. Without partnership and without agency—just consent—we talked about that there. But why—

[Speaker C] would it be different between sacred offerings and terumah? The question is what is required.

[Rabbi Michael Abraham] What? The question is what is required. The question is whether in terumah consent is enough, or agency is required—or alternatively, partnership plus consent. In sacred offerings the definition could be different. In every place you have to check what the Torah requires. In terumah it could be that the Torah requires agency, or partnership with consent, and in sacred offerings you could say that maybe consent alone is enough, or whatever—you can say what you want.

[Speaker C] Partnership without consent is basically not a partnership—that’s the point. Because if the partners don’t want…

[Rabbi Michael Abraham] No, it’s a financial partnership, but regarding the act you are not a partner, yes.

[Speaker C] Not a partner at all. It’s like…

[Rabbi Michael Abraham] like the bank account you mentioned—

[Speaker C] earlier…

[Rabbi Michael Abraham] like the bank account you mentioned earlier, where not everyone has permission to perform actions in the account.

[Speaker C] They’re not partners with respect to the act. Right, exactly.

[Rabbi Michael Abraham] They are partners in ownership of the thing, but they don’t have rights—they have not authorized one another regarding the rights.

[Speaker C] And that’s the wording of the Atzmot Yosef. In my humble opinion, the more precise wording is that it’s irrelevant that they are partners. They are partners with respect to a different matter.

[Rabbi Michael Abraham] Fine, you can read that into the Atzmot Yosef too, it doesn’t bother me.

[Speaker C] I think that’s what he meant. And that has practical implications.

[Rabbi Michael Abraham] But you can read that into the Atzmot Yosef too; I don’t see a reason not to.

[Speaker C] As if the problem is one of consent—that consent is lacking. It’s not that consent is lacking; they’re not really partners. He can make a different claim: if they didn’t agree that I should separate terumah, then we are not partners with respect to the separation.

[Rabbi Michael Abraham] Fine, okay, I think the Atzmot Yosef can claim that too. The Maharik, in root 52, discusses someone who takes an oath before an agent. After all, he is supposed to swear before the litigant. What happens if my litigant sends an agent? Can I swear before him? Okay? So he says that you can swear before him whether he is a partner or not. You can swear before him. “A person’s agent is like himself.” He says: “And even though in the second chapter of Kiddushin”—where is this—“and even though in the second chapter of Kiddushin they wanted to say that although we derive ‘a person’s agent is like himself,’ that is where he has partnership in the matter itself; nevertheless we do not derive it where he has no partnership in the matter itself, it is obvious that it is not similar to that reasoning there. For there one can certainly distinguish and say that although he becomes his agent where he has partnership in the matter itself, because since he can acquire for himself he can also acquire for his fellow, where it does not apply to him, where there is no such migo, he does not perform his agency so as to be like him.” What does he understand? He understands that when you have partnership in the matter itself, it works by the rule “since he can acquire for himself, he can also acquire for his fellow.” Okay? So here it is clear to him—the conception of partnership that you were talking about. And this is agency and partnership. No, no, wait, we’re not talking yet about swearing before the agent. I’m talking right now about our case. What he says about our Gemara—what he says about our Gemara, first of all, he learns like the Pnei Yehoshua, right, that we are dealing with an agent who is a partner, not a plain partner. And then he says: why is there a difference between an agent who is a partner and an agent who is not a partner? Because an agent who is a partner has “since he can acquire for himself, he can also acquire for his fellow,” and you cannot learn from here that an ordinary agent, who does not have this migo, can also function. But with an oath before a representative—yes, an oath before an agent—that has nothing to do with “since he can acquire for himself”; he is not acquiring anything for him. The only question is whether you swore before him. Maybe you could call that agency over an act and not agency over authority. Meaning, simply to be present. In other words, it is considered as though I myself am standing here and the act was done in my presence. This is agency of implementation. It is not agency of authority, where I do something and so on—after all, I am not doing anything; he is simply swearing before me. Okay, so that is like agency over an act. So there, he really says there is no reason to distinguish between an agent who is a partner and an agent who is not a partner. But in our context there was reason to differentiate because there is “since he can acquire for himself, he can also acquire for his fellow,” and therefore a verse is needed to say that this distinction does not exist. And even an agent who is not a partner can act in such a situation. Good. Let’s stop here.