Kiddushin, Chapter 2, 5783, Lesson 21
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Presenting the rule of acquisition on another’s behalf and distinguishing it from agency
- The Talmud on the verse “and they shall take for themselves, each man” and Rabbi Yitzchak’s statement
- The question of the verse versus the reasoning of lack of legal competence
- Maimonides’ view on the agency of minors
- The possibility that acquiring on behalf of a minor is effective: Rabbi Akiva Eiger in Ketubot
- The connection to the dispute of “extended hand” versus “granting authority”
- The Brisker Rav and the claim that being registered for the Passover offering is an acquisition
- Tosafot: why a verse is needed, and what is unique about Passover
- Tosafot in Pesachim and the link between acquisition and agency
- The source of “one prince, one prince” and the conclusion that this is acquisition, not agency
- Interim conclusions and preparation for what follows
Summary
General Overview
The text presents the rule of one may act to another person’s benefit in his absence as the ability to act for someone’s benefit even without formal appointment as an agent, and it examines the relationship between this rule and agency, along with its implications for minors. It opens with the interpretation of the verse regarding the Passover offering and Rabbi Yitzchak’s statement, “A man acquires, but a minor does not acquire,” and considers whether the exclusion of a minor is under the law of acquisition on another’s behalf or under the law of agency, and what “in his absence” means—without his permission or without his knowledge. Later it brings Maimonides, Rabbi Akiva Eiger, the Brisker Rav, and Tosafot in order to clarify whether the disqualification of a minor stems from lack of legal competence, from not being “within the legal category,” or from a formal requirement of agency. Finally it brings the Talmud’s proof from the section of the tribal princes, where that teaching serves specifically as a source for the rule of acquisition on another’s behalf because among the heirs there were minors, who cannot appoint agents.
Presenting the rule of acquisition on another’s behalf and distinguishing it from agency
The text defines one may act to another person’s benefit in his absence as an act that grants a benefit to someone even when no explicit authorization was given, in contrast to ordinary agency, which requires appointment. It explains “in his absence” as without his permission, and even without his knowledge, rather than as a physical requirement of presence. It notes a dispute among medieval authorities (Rishonim) whether acquisition on another’s behalf operates under the rubric of agency or is an independent law, and emphasizes that it is not clear what that precisely means: whether they share a source, whether they are the same mechanism without formal appointment, or something else.
The Talmud on the verse “and they shall take for themselves, each man” and Rabbi Yitzchak’s statement
The text brings the Talmud on 42a, which seeks a source for agency from the verse, “And they shall take for themselves, each man a lamb according to their fathers’ houses,” and discusses why the verses are all needed. It cites Rabbi Yitzchak, who derives, “A man acquires, but a minor does not acquire,” and explains that in the plain sense of the verse, “man” is the one acting on behalf of the fathers’ house, so the exclusion appears to disqualify a minor from performing the act of acquisition or the agent-like act. It stresses that at this stage there is no necessity to say that the verse prevents acquiring for a minor; rather, it primarily prevents the minor from being the one who grants the benefit or serves as the agent.
The question of the verse versus the reasoning of lack of legal competence
The text raises the difficulty that if a minor is disqualified because he lacks legal competence, like a deaf-mute or an incompetent person, then ordinarily no verse is needed to exclude him. Therefore, the appearance of a verse may indicate a special law rather than the general rule concerning those who lack legal competence. It notes that since the Talmud is dealing with the source of agency, and the verse is being read as a source for agency, the language “acquires” could be understood as describing the result of agency rather than entering the technical law of acquisition on another’s behalf.
Maimonides’ view on the agency of minors
The text cites Maimonides in the laws of agents and partners, where he rules that an agent can be appointed only if he has legal competence. Therefore a deaf-mute, an incompetent person, and a minor can neither become agents nor appoint agents, “whether a boy or a girl.” It brings Maimonides’ example of one who sends his young son to a shopkeeper, where the shopkeeper is liable to pay because he should have sent only through someone with legal competence. The text then raises the difficulty: if Maimonides grounds this in legal competence, why is a verse needed to exclude a minor, and what exactly does the verse add beyond the general reasoning.
The possibility that acquiring on behalf of a minor is effective: Rabbi Akiva Eiger in Ketubot
The text brings Rabbi Akiva Eiger in Ketubot 11, who says that an adult can acquire on behalf of a minor even though a minor cannot acquire on behalf of others. He explains that the problem with a minor in agency is the inability to appoint an agent, whereas in the rule of acquisition on another’s behalf there is no need for appointment, because the Torah allows an act to be performed for the benefit of the recipient, and therefore a minor can receive through others. It emphasizes that Rabbi Akiva Eiger’s approach treats acquisition on another’s behalf and agency as essentially the same mechanism, with the difference being technical: agency requires appointment, while acquisition on another’s behalf does not.
The connection to the dispute of “extended hand” versus “granting authority”
The text links the possibility that a minor can receive through an adult to the understanding of the nature of agency: if agency means an extended hand, then the minor “acts” through the adult, whereas if it means granting authority, the adult performs the act and the result is attributed to the minor. It says that Rabbi Akiva Eiger implies there is no mechanistic distinction between acquisition on another’s behalf and agency, only a distinction in appointment. Therefore he does not adopt a split in which acquisition on another’s behalf is granting authority while agency is extended hand.
The Brisker Rav and the claim that being registered for the Passover offering is an acquisition
The text brings the Brisker Rav in the laws of the Passover offering, who argues that being registered for the Passover offering is an acquisition and a form of ownership. He suggests that the proof comes from the passage that derives “A man acquires, but a minor does not acquire” from this registration. He adds support from the Mekhilta on the verse “Draw out and take for yourselves,” from which it is derived that small livestock are acquired by drawing, implying that taking the Passover offering is an act of acquisition. Still, the text qualifies this conclusion and argues that one could derive the exclusion of a minor from one area to another even without identifying registration with acquisition, if the principle is simply that a minor is not a full legal actor in the legal sphere.
Tosafot: why a verse is needed, and what is unique about Passover
The text quotes Tosafot, who asks why a verse is needed when “a minor has no legal hand,” and answers that with Passover there is an initial assumption that since a minor is relevant to the eating of Passover offerings and must be included in the registration, one might have thought he could also acquire on behalf of others; therefore a verse was needed to exclude him. It brings the context from Nedarim 36 and Pesachim 88 on “a lamb according to the fathers’ house,” which includes minors, and raises the possibility that this is a Torah-level law and not merely a textual support, since the Talmud makes a necessity argument between the verses. It further asks whether the conclusion teaches a general principle—that lack of legal competence itself disqualifies even where the minor is “included in the commandment”—or whether this is a unique law of Passover.
Tosafot in Pesachim and the link between acquisition and agency
The text compares this with Tosafot in Pesachim, which formulates the question differently: why is a verse needed to exclude a minor from acquisition on another’s behalf, when “there is no agency for a minor,” and adds proof that in Bava Metzia it is evident that acquisition on another’s behalf works through agency. It emphasizes that the questions are not identical: in one Tosafot the emphasis is on “a minor has no legal hand,” while in the other it is on “there is no agency for a minor.” From this the underlying assumptions shift regarding the source of the minor’s disqualification and whether the verse deals with agency or acquisition. It also brings the continuation of Tosafot, which deals with a minor’s acquisition in the case of a found object versus a gift, and rules that a gift is stronger because of another person’s intent to transfer ownership. From this emerges a view that being “within the legal category” may be interpreted as belonging to the result, and not necessarily as the practical ability to perform the act itself.
The source of “one prince, one prince” and the conclusion that this is acquisition, not agency
The text brings the Talmud later on the page, which asks why agency is not learned from the verse about the princes, “one prince, one prince from each tribe,” and rejects it: “Can you really think this is agency? Minors are not subject to agency.” It concludes that this is the source for one may act to another person’s benefit in his absence. It explains that the rejection rests on the assumption that in the division of the land there were also minors, and minors cannot appoint agents. Therefore the action of the princes was not agency but acquisition on another’s behalf. It notes that Rashi brings the verse “and send and send away… when a man takes” as the source that a minor cannot appoint an agent, and distinguishes between the invalidity of a minor as sender and the question whether a minor can serve as agent or can grant benefit to others.
Interim conclusions and preparation for what follows
The text concludes that two separate axes emerge in the passage: the minor as the one granting the benefit or as the agent, versus the minor as the one for whom another acquires. From the source of the princes it seems that acquisition on another’s behalf works even for a minor, despite the fact that a minor cannot appoint agents. It notes that this would seemingly prove that acquisition on another’s behalf does not operate under the rubric of agency, but suggests that according to Rabbi Akiva Eiger this is no proof, because the difference may be only in the requirement of appointment in agency. It ends by saying that the next topic is clarifying the dispute among the medieval authorities (Rishonim) over whether acquisition on another’s behalf works through agency or is an independent law, and what implications that has for minors.
Full Transcript
[Rabbi Michael Abraham] I want to start dealing with the topic of acquisition on another’s behalf, acquiring for a person, minor or adult. In the Talmud this also comes up in the context of minors, so we’ll talk a bit about the relationship between acquisition on another’s behalf and agency, and what that means for minors. That’s our next topic. I’ve mentioned more than once this rule of acquisition on another’s behalf: one may act to another person’s benefit in his absence. The idea is that whatever constitutes a benefit for some person, I can act in his name even though I was not appointed as his agent. Usually I can’t act for someone unless he appoints me as an agent, but where the action we’re talking about is an action of benefit—or I’ll even call it a full benefit for now, although later we’ll still discuss that—then it seems the Talmud assumes that this can be done, that one can act for the other person even without his having appointed me. That is what is called the rule of acquisition on another’s behalf: one may act to another person’s benefit in his absence. “In his absence” of course means not with his authorization. Meaning, an agent also acts not in the presence of the sender, right? He is appointed in the presence of the sender, but he doesn’t act in the presence of the sender. And even appointment can be done over the phone, meaning it doesn’t have to be in his presence. So here “in his absence” means without his permission, or even without his knowledge.
[Speaker B] Without his knowledge, without his permission, yes, right.
[Rabbi Michael Abraham] Now, I think I already mentioned that there is a dispute among medieval authorities (Rishonim) on the question whether acquisition on another’s behalf works by virtue of agency or whether it is an independent law. That’s basically the fundamental issue they deal with regarding acquisition on another’s behalf, and it already starts with the medieval authorities (Rishonim). We’ll see that today. But although the medieval authorities speak as though it’s self-evident what they mean—that is, whether acquisition on another’s behalf is or is not by virtue of agency—it’s clear where they apply it: they apply it to minors, they apply it to gentiles, yes, to a gentile who cannot be an agent, or a minor who cannot be an agent—can he nevertheless acquire under the law of acquisition on another’s behalf or not? But when you think about it, it’s not really clear what it means that acquisition on another’s behalf is by virtue of agency or not by virtue of agency. What does that mean? That both are learned from the same source? Or that both are the same mechanism even though they have different sources, but it’s the same mechanism just without formal appointment? Or what exactly does it mean that acquisition on another’s behalf is or is not by virtue of agency? So we’ll try to touch on that too.
[Speaker B] Maybe let’s start with the Talmud in the section just before the actual topic of acquisition on another’s behalf begins.
[Rabbi Michael Abraham] The Talmud on 42a—you see? We’ll try. All right? Okay. So the Talmud brings a statement of Rabbi Yitzchak. Yes, the discussion there is about the source for the law of agency; that’s exactly the previous topic we saw. “Rather from here: ‘And they shall take for themselves, each man a lamb according to their fathers’ houses, a lamb for a household’”—they bring a source from there for the law of agency in sacred matters. After we rejected the possibility of bringing a source from the slaughter of sacred offerings, from the slaughter of the Passover offering, we bring a source from registration for the Passover offering. So if it is possible to register people for the Passover offering, that means there is a law of agency. The Talmud says: maybe there too they have partnership in it. Yes, that’s exactly the previous topic we discussed. If so, why do I need two verses? If one is not needed for a case where it applies, apply it to a case where it does not apply. So the Talmud says—that’s what we saw last time. The Talmud says: this is needed for Rabbi Yitzchak’s teaching, as Rabbi Yitzchak said: “A man acquires, but a minor does not acquire.” Yes—“And they shall take for themselves, each man a lamb according to their fathers’ houses, a lamb for a household.” What does “man” mean? A man acquires, but a minor does not acquire. So really this verse is needed for something else, and once again the question returns: from where do we know the law of agency? The Talmud says: that is derived from “according to each man’s eating,” not from “And they shall take for themselves, each man a lamb according to their fathers’ houses.” Therefore “And they shall take for themselves, each man a lamb according to their fathers’ houses” can teach me the laws of agency. And still, it is needed for the rule about slaughtering the Passover offering for an individual, and so on—not important for our purposes right now. So first of all, what we see here is this: the Talmud learns—Rabbi Yitzchak learns from the word “man”—that a man acquires but a minor does not acquire. At first glance it seems that the minor cannot be the man who grants the benefit, not the man for whom the benefit is granted, right? Because look at the verse: “Rather from here: ‘And they shall take for themselves, each man a lamb according to their fathers’ houses, a lamb for a household.’” “They shall take for themselves, each man a lamb according to their fathers’ houses”—and the Talmud understands that the man takes it for the fathers’ house, right? Meaning, the man is the one taking it, and he does this for the entire fathers’ house, the whole group registered for the Passover offering. So the man spoken of here is the agent, the one granting the benefit, not the person for whom they are acquiring. And about that it says: a man, not a minor. So what does that mean? We are excluding the minor from doing the act of acquisition. That still doesn’t mean that one cannot acquire for a minor. I don’t know; for now that remains open, okay? The Talmud says that a minor cannot acquire. That’s also how the medieval authorities (Rishonim) understand it, and it’s also pretty clear from the verse that the case here is one where the minor is the one granting the benefit.
[Speaker B] Some say the verse means “and they shall take for themselves” as though they are one man. Again? Some say you have to do—no, “and they shall take for themselves,” someone does it, each man.
[Rabbi Michael Abraham] Who is the man?
[Speaker B] They are as one man. As one man with one heart.
[Rabbi Michael Abraham] Then how do you know there is a law of agency? How do you learn the law of agency from here? “And they shall take for themselves”—they take, fine, they take. Why, who said there is agency here?
[Speaker B] Why specifically—where do we
[Rabbi Michael Abraham] learn from here the law—The Talmud learns from here the law of agency. How does it learn it? “And they shall take for themselves”—so we took, okay. Who said this is done by an agent? I understand the Talmud as reading the verse to mean that the man is the agent who takes on their behalf. “And they shall take for themselves”—how do they take for themselves? “A man”—they send a man, a lamb according to their fathers’ houses; that man takes the lamb for the entire fathers’ house. That’s how they derive the law of agency. Now if that is how the Talmud reads the verse, then it means the man is the agent, the man who takes the things. And then afterward they say, no, no, this wasn’t said for agency; it was said to exclude a minor. So if that’s the case, “a man and not a minor” refers to the one doing the action. Yes, yes. Okay, so what we see from here is that a minor cannot acquire on another’s behalf. I don’t know whether a minor also cannot receive acquisition on his behalf. That’s another question. I assume that if we would ground this in the fact that a minor lacks legal competence, then presumably there would be no room to distinguish. Just as he cannot be an agent, so too he cannot be the sender. He is not a player on the legal playing field. But here in the Talmud it is not necessarily grounded in that; there is a verse. Because to exclude a deaf-mute, an incompetent person, and a minor from legal acts, usually verses are not brought. They lack legal competence, so it is obvious by reasoning alone that they cannot play on the legal field. If you bring a verse, that means this is probably a special law. It does not emerge from the general rule of those lacking legal competence—deaf-mute, incompetent person, and minor. There is also an aspect here of
[Speaker B] Passover, which is
[Rabbi Michael Abraham] Wait, we’ll get to that in a moment, we’ll get to that in a moment. In any case, what happens with the law of agency regarding a minor? It doesn’t say here, right? It doesn’t say. It says here a law of acquisition on another’s behalf: “A man acquires, but a minor does not acquire.” So that’s under the law of acquisition on another’s behalf. But what about agency? What—agency—what does “a man acquires” mean? “Acquires” is seemingly the law of acquisition on another’s behalf. We’ll also see later that this is indeed talking about that law. On the other hand, the verse itself speaks of agency. Right? We previously brought this verse as a source for the law of agency, not for the law of acquisition on another’s behalf. Right? So if it says, “And they shall take for themselves, each man a lamb according to their fathers’ houses,” that’s an agent. So when it says, “A man acquires, but a minor does not acquire,” it means the minor cannot be an agent. Not that a minor cannot operate under the law of acquisition on another’s behalf—maybe that too, but on the face of it, even though the language of the Talmud is “A man acquires, but a minor does not acquire,” from the context it seems we’re talking here about agency, not acquisition on another’s behalf. Or at least agency too, not only acquisition on another’s behalf. Right? So if that’s so, that means there is no law of agency, and maybe also no law of acquisition on another’s behalf, for minors. Fine. Now Maimonides indeed brings this law in the laws of agents and partners: a person may appoint as an agent a man or a woman, even a married woman, even a slave or maidservant, since they possess legal competence and are included in some commandments—that’s called being at least somewhat within the legal category—they may become agents for commercial dealings. “For commercial dealings” means because they belong to that area. But those who do not possess legal competence—namely a deaf-mute, an incompetent person, and a minor—do not become agents and do not appoint agents, whether a boy or a girl. He neither becomes an agent nor appoints an agent; he is neither sender nor agent. Here Maimonides does place this within the category of those lacking legal competence, like the deaf-mute and the incompetent person; he is not speaking here specifically about a minor, okay? Therefore, one who sends his young son to the shopkeeper and the shopkeeper measured out for him an issar’s worth of oil and gave him the issar, and he lost the oil and the issar, the shopkeeper must pay, because he was sent only to inform him, and he should have sent only through someone with legal competence, and so on. In short, the minor can be neither agent nor sender. So basically if Maimonides connects the minor to the deaf-mute and the incompetent person, that brings us back to the question: then why do we need the verse? What does the verse teach? That the agent must have legal competence? In that case the verse excludes not only the minor but also the deaf-mute and the incompetent person. Because usually we are used to thinking that the deaf-mute, the incompetent person, and the minor are excluded because they lack legal competence, and by reasoning alone—no verse is needed to remove them from the matter. A verse suggests there is some law here specifically about agency—that a minor cannot be one. If it’s an issue of legal competence, then just as he cannot acquire, cannot do anything, is not obligated in commandments, and is not part of the whole story, so obviously he also cannot be an agent or appoint an agent. Why would we need a source for that? I would even say maybe he is not within the legal category because he is not obligated in commandments; he is not included in acquisitions, so he cannot be an agent because he is not in the legal category of the matter at all. Okay? So somehow it seems from here that there is some specific statement here, not just the general statement that the deaf-mute, the incompetent person, and the minor lack legal competence. But in Maimonides that’s not what it says. In Maimonides it says that the minor’s exclusion is like that of the deaf-mute and the incompetent person—anyone who lacks legal competence.
[Speaker B] And is there such a thing in some specific action?
[Rabbi Michael Abraham] But I said earlier that this verse speaks not only about acquisition on another’s behalf—on the contrary, in its plain meaning it speaks about agency. If it also speaks about acquisition on another’s behalf, that’s simply because the language appears as “A man acquires, but a minor does not acquire,” but the verse itself is interpreted as a verse about agency, not about acquisition on another’s behalf. The whole passage wanted to bring from it a source for the law of agency. So the verse is basically read as a verse dealing with agency, not acquisition on another’s behalf—at least that’s how the Talmud reads it.
[Speaker B] Did it turn it into acquisition on another’s behalf?
[Rabbi Michael Abraham] No—where did it turn it into acquisition on another’s behalf? At this point, nowhere. What? Rabbi Yitzchak? Where? Rabbi Yitzchak says, “A man acquires, but a minor does not acquire,” but who said that means acquisition on another’s behalf? He acquires as an agent for those who receive the benefit. It’s true that the language “acquires” looks like the law of acquisition on another’s behalf, but I’m saying that from the context of the Talmud, the Talmud does not mention here at all the rule of acting to another person’s benefit in his absence—not anywhere. And more than that: the Talmud learned from this very verse the law of agency. If this verse were teaching the law of acquisition on another’s behalf, then I’d say fine, maybe we learn acquisition on another’s behalf from here—but who says we learn the law of agency from here? Okay? So therefore, from the Talmudic context it seems pretty clear that even though the Talmud uses the word “acquires,” it is really speaking about the law of agency.
[Speaker B] Meaning only a man who can acquire can be an agent, but a minor cannot be an agent? And it’s about acquisition? Acquisition is the result?
[Rabbi Michael Abraham] Not the law of acquisition on another’s behalf, but just the result. If I’m an agent, then you acquired what I did. Okay? The law of acquisition on another’s behalf means I can acquire something for you; it’s called that because of the result, really. I grant you something. But the same thing happens in agency. It’s just that in agency it already has the name of agent, because I appointed you as agent and so on. But in essence, even of an agent one could say that he grants the benefit to his sender, just as under the law of acquisition on another’s behalf I grant something to the beneficiary. Okay? So I’m saying that in the language of the Talmud, when it says “acquires,” usually it does indeed mean the law of acquisition on another’s behalf, but from the context here it seems to mean the law of agency.
[Speaker B] And the Talmud will come back to this, right?
[Rabbi Michael Abraham] It’ll come back to it, and meanwhile there’s still no hint of that issue. Okay? Maybe, maybe one could have said that since this appears here in a context that is not really the sugya of acquisition on another’s behalf, the Talmud doesn’t need to spell anything out. It says: maybe from this verse one learns “A man acquires, but a minor does not acquire,” really for the law of acquisition on another’s behalf. But since the verse is needed for that, in any case one cannot learn from it the law of agency. Later in the Talmud we’ll see that the law of acquisition on another’s behalf is indeed a different law. For now they’re not entering into that, so they didn’t define it, because that’s not our topic; right now we’re just making necessity arguments between verses, so since this verse teaches me something, it’s not available to teach me the law of agency. I’m just saying it isn’t entirely smooth, because at this point, if the Talmud really says that from this verse we learn that a man acquires but a minor does not acquire, and it really means acquisition on another’s behalf, then something here doesn’t line up. Because two lines earlier you wanted to derive from here the law of agency. So decide: is this verse dealing with the law of agency or with the law of acquisition on another’s behalf? I don’t care—explain it however you want, but be consistent. And if you say this verse deals with agency, how can you exclude the minor from it with respect to the law of acquisition on another’s behalf? Unless you are excluding him from both agency and acquisition on another’s behalf because they are the same thing. That would be fine. But from the Talmudic context it has to be dealing with agency. Okay. And what—acquisition on another’s behalf is stronger than agency?
[Speaker B] So what is it here, from an a fortiori argument?
[Rabbi Michael Abraham] By an a fortiori argument. Meaning the claim is that here we have a verse speaking about the law of acquisition on another’s behalf, and in any case it’s obvious that agency also works. We’ll see a bit later, but that’s not so simple. Because the law of acquisition on another’s behalf, for example, might allow me to acquire for a minor, but I cannot be the minor’s agent. So that means the law of acquisition on another’s behalf also has leniencies, not only stringencies. And if so, if I were to derive agency by an a fortiori argument from acquisition on another’s behalf, then seemingly agency should also work for a minor, just as acquisition on another’s behalf works for a minor. So acquisition on another’s behalf is not only stricter or stronger than agency; it also has a lenient side, a weaker side compared to agency. So it’s not so simple. Fine, let’s see more. So that’s Maimonides. Now, in principle, what comes out is this: a minor is excluded, apparently—at least from the Talmudic context—from the law of agency; maybe also from the law of acquisition on another’s behalf. Maimonides says the minor cannot be an agent and cannot appoint an agent, right? That’s regarding agency. What about acquisition on another’s behalf? So first of all, one question is whether a minor is excluded from acquisition on another’s behalf. From the language of the Talmud it seems yes—at least that it includes that too, not just agency. It’s not only acquisition on another’s behalf, but at least it is that too. But here the case is where the minor is the one granting the benefit. Can the minor receive through others? If some adult acquires on behalf of the minor, can that work? Because in agency, no—as Maimonides said, a minor can be neither sender nor agent. Is it the same with acquisition on another’s behalf? Seemingly, if we compare acquisition on another’s behalf to agency, then it would be the same—but it’s not so simple. Why? Because, as Rabbi Akiva Eiger says in Ketubot—and we’ll see him—Rabbi Akiva Eiger in Ketubot 11 says that a minor can indeed receive through an adult. Meaning, an adult can acquire on behalf of a minor, even though a minor cannot acquire on behalf of an adult, as in our passage. But an adult can acquire on behalf of a minor, and that is not the same as agency. Why? He argues that the reason a minor cannot appoint an agent is because he cannot appoint the agent. He has no legal personality; he cannot perform acts that have legal significance, like appointing an agent. But since under the law of acquisition on another’s behalf one does not need to appoint anyone, because the Torah appoints it, there is no appointment, then there is no obstacle to a minor being able to receive through someone else. In other words, Rabbi Akiva Eiger assumes that in principle there is no problem with being the agent of a minor. I just can’t create the agency because I can’t appoint him. But under the law of acquisition on another’s behalf I don’t need to appoint him. The law of acquisition on another’s behalf works without appointment. If it works without appointment, then what is the problem? So a minor too can receive through another. So a minor cannot acquire on behalf of others, but a minor can receive through another. How does that happen? After all, a minor has no acquisition. Fine—so in a case where another person intends to transfer ownership, maybe the minor can acquire by Torah law, or perhaps only by rabbinic law, but you still need the law of agency for the minor to acquire even rabbinically. A minor certainly has rabbinic acquisition, at least from a certain age.
[Speaker B] But maybe that’s not under the law of agency? What? According to that, isn’t acquisition on another’s behalf not agency according to Rabbi Akiva Eiger?
[Rabbi Michael Abraham] On the contrary, it looks like it is under the law of agency. Because he says it is the same thing as agency, only they spared me the appointment. Here he equates agency and acquisition on another’s behalf completely, and he says the difference between them is only technical: with agency you need appointment, and with acquisition on another’s behalf you don’t. That’s the whole difference, and therefore the minor belongs to one and not the other. Usually we understand that when we say acquisition on another’s behalf is or is not by virtue of agency, the practical difference is whether someone who cannot be an agent can nevertheless operate under the law of acquisition on another’s behalf. Here Rabbi Akiva Eiger says no. It may be that acquisition on another’s behalf is indeed by virtue of agency, but still, since appointment is not needed, the minor in principle also belongs in agency—if only he could appoint. In acquisition on another’s behalf he doesn’t need to appoint, so there is no problem at all. So in order to distinguish acquisition on another’s behalf from agency, you don’t need to say that acquisition on another’s behalf is not by virtue of agency, because here the difference is a technical result of the fact that no appointment is needed. All right? Now this whole story really assumes that in principle a minor can indeed play on the legal field. The whole problem is only that he cannot perform legal acts. For example, can a minor be an owner? Not acquire—acquiring he cannot do, because that’s a legal act, let’s say, unless another person intends to transfer ownership; that’s a dispute among medieval authorities (Rishonim). But that does work—it’s just disputed whether that is by Torah law or rabbinic law. But can a minor be the owner of something? By way of receiving, yes. First of all, factually yes—for example, when he inherits. Inheritance is being an owner without doing an act of acquisition, right? If I can be owner of something without having to perform an act of acquisition, and a minor can be an owner in that way, then that means that the whole problem with a minor is only performing legal acts. But that doesn’t mean the minor is completely neutralized or totally disconnected from the whole legal field. For example, he can be an owner. So similarly, Rabbi Akiva Eiger says the same here. If he can be an owner, then what’s the problem? Someone else can make him an owner, so it’s relevant for him to be a sender. Except that with agency you need appointment, and a minor is not capable of appointment—that is, he cannot appoint. Okay? But if there is a mechanism that bypasses appointment, where appointment is unnecessary, then there is no problem, and a minor too can receive. Why indeed can a minor receive? In this case, for example, if the other person grants the item to the minor—an agent of the minor, or one who acquires on behalf of the minor. An agent can’t, because he can’t appoint him. But in principle, if some adult acquires on behalf of the minor, then it can work because another person intends to transfer ownership. The one who performs the act is an adult, an agent. The result of the act is attributed to the sender, who is the minor, and I have no problem attributing the result to the minor. The minor can be an owner. The only thing a minor cannot do is legal acts, like acquiring things or appointing an agent. But where there is someone else who acquires for him, who performs the act of acquisition for him, and the act of appointment is unnecessary because the Torah did it, then there’s no problem—a minor too can. There isn’t some
[Speaker B] and is that also connected to the division between agency and acquisition on another’s behalf in terms of extended hand versus granting authority?
[Rabbi Michael Abraham] Right. At least it invites connection to the question whether agency is an extended hand or a granting of authority. Because if I understand it as an extended hand, then seemingly the minor is the one acting through the adult, but it is the minor who acts. If I understand it as granting authority, then that is exactly what the mechanism of granting authority means: the adult performs the act and the result is attributed to the minor. So there is no problem at all. The one who did the acts is an adult, and he can do the acts. And to attribute them to the minor—you can attribute legal results to the minor, there’s no issue there. So by way of acquisition on another’s behalf—
[Speaker B] so is it never extended hand?
[Rabbi Michael Abraham] No, no, right. One could in principle have said that there is a difference in mechanism between agency and acquisition on another’s behalf. For example, one possible interpretation of the statement that acquisition on another’s behalf is not by virtue of agency could be this: that acquisition on another’s behalf works, say, as granting authority, while agency works as extended hand. Then indeed agency could not work for a minor, because he is the one doing the act, whereas acquisition on another’s behalf could work for a minor, because acquisition on another’s behalf is granting authority and the one doing the act is an adult. But notice that Rabbi Akiva Eiger apparently does not assume that. Because Rabbi Akiva Eiger argues that the only reason a minor cannot operate through the law—cannot appoint an agent, meaning the agent cannot acquire on behalf of the minor—is because the minor cannot appoint him, not because of the act of acquisition itself. Meaning, if agency really were extended hand and not granting authority, then I would expect a minor not to be able to receive through an agent, since even when he does it through an agent, it is really he himself who is performing the act of acquisition. And a minor cannot perform legal acts. Rabbi Akiva Eiger doesn’t see that as a problem. Rabbi Akiva Eiger says there is no inherent problem with the agent acquiring on behalf of the minor; the only issue is that I won’t manage to turn him into an agent because I can’t appoint him. If I could manage to make him an agent, there would be no problem. So in Rabbi Akiva Eiger it seems that he does not accept the difference between acquisition on another’s behalf and agency at the level of mechanism. And that’s also what I said before: Rabbi Akiva Eiger’s distinction is a technical distinction. Therefore it is clear that he treats acquisition and agency as the same law. However you define it—granting authority, extended hand—it is the same law. He does not distinguish between them. He just says: fine, but here appointment is not needed and there appointment is needed, and therefore there will be a difference with regard to a minor. If there were a mechanistic difference, then it wouldn’t depend on appointment; the mechanism itself would say this a minor can do and this a minor cannot do. It seems he understands them as the same mechanism. He is speaking in a case where acquisition on another’s behalf is indeed by virtue of agency, apparently. Okay? Fine. Another comment. The Brisker Rav—the Griz—in the laws of the Passover offering proves from our passage here that registration for the Passover offering is an acquisition. What does it mean that the group is registered for the offering? They are registered. “Registered” means they are owners; it is a partnership in ownership—that is what it means that the group is registered, that’s his claim. Why? What is his proof? He proves it from our passage, where the passage learns from registration that “A man acquires, but a minor does not acquire.” If registration were not connected to ownership, to acquisition, then how can you learn from it that a minor cannot register others, that he cannot acquire? No—acquire, acquire in the sense that the minor is the agent; that’s how we explained our passage. Seemingly it appears that if one learns from registration the law regarding acquisition, then registration is acquisition. Meaning, registration is ownership—that’s his argument. Yes, I brought here a Mekhilta. There is a Mekhilta that says that it is written regarding the Passover offering, “Draw out and take for yourselves,” and the Talmud learns from here that small livestock are acquired by drawing, because the Passover offering is small livestock. So we see that drawing is effective; so we see that small livestock are acquired by drawing. What do we see? That registration—the taking of the offering—is essentially buying it. Right? Otherwise, how could you derive from here that small livestock are acquired by drawing? I registered for it, I didn’t buy it. So we see that registration means purchase. But I’m not sure about the Brisker Rav’s conclusion. The Talmud learns that just as a minor cannot be registered, so too he cannot transfer ownership. Especially if we understand, like Maimonides, that this whole thing stems from the fact that the minor lacks legal competence. If he lacks legal competence, then just as he is not included in commandments, he is not included in acquisitions, he is not included in anything—it is the same principle. Once the Talmud tells me that from the verse we learn that a minor cannot be an agent or cannot grant a benefit or whatever, then even if it was said regarding registration, I can easily derive it by reasoning regarding acquisition as well. Not because registration is itself acquisition, but because just as he cannot do registration, so too he cannot do acquisition. Why? Because he doesn’t play on the legal field. And again, the Brisker Rav, who does derive one from the other, apparently understands that the exclusion of the minor in the Talmud here is a specific exclusion, not merely a general one because he lacks legal competence. If he lacks legal competence, then he’s excluded from everything; there’s no need to identify registration with acquisition. Just tell me that he lacks legal competence, and then just as he cannot register, so too he cannot acquire. Why does the Brisker Rav think that if you learn from registration to acquisition, then registration itself must be acquisition? Because he understands that the Talmud’s exclusion of the minor here is not a general exclusion, but a specific exclusion regarding registration. And if I learn from here that he also cannot acquire, then apparently registration is acquisition. If this were some general law that the minor lacks legal competence, then even if registration were not acquisition, once the Talmud excludes a minor from registering others, what is it really saying? That he is not a player on the halakhic or legal field or whatever. In that case he also cannot acquire on another’s behalf. Registration doesn’t have to be acquisition literally. Okay?
[Speaker B] Could it be that this comes from some a fortiori argument, basically—that registration would have been easier for a minor to do, and if he can’t be registered, then he also… Why?
[Rabbi Michael Abraham] Why? What kind of a fortiori argument? These are two different things. One is a matter of prohibition-law, of being registered, and the other is an acquisitional matter in monetary law, of effecting ownership. Why is one more stringent or more lenient than the other? They’re just two different things.
[Speaker B] Maybe registration too is more…
[Rabbi Michael Abraham] Why? This is a halakhic act and that is a legal act, just two different categories. I don’t see why one of them would be stronger or weaker than the other.
[Speaker B] Fine, and according to this, just in general, is this like terumah—what is this registration?
[Rabbi Michael Abraham] The Brisker Rav says no, it is an acquisition. Entirely. But one could have said no—yes, it’s like designating terumah or whatever; you apply some status. Now I am registered for this offering. Terumah too is a kind of acquisition. Also—
[Speaker B] Terumah? I’m removing it from my domain.
[Rabbi Michael Abraham] I’m not removing it from my domain. I am applying to it the status of terumah. Afterward there is a separate commandment to give it to the priest. Giving it to the priest is something else; I’m talking about applying the status of terumah itself.
[Speaker B] Here, what are you applying?
[Rabbi Michael Abraham] You are applying the status of registration, yes. I am now registered for this offering. I am one of those registered. There is now a status of registered participant on me, or on the offering there is a status that I am registered to it, or however you define it. You are simply changing the halakhic status of the world—some sort of halakhic status. So basically you have done an act that has a halakhic consequence. All right? It does not have to be specifically an acquisitional consequence. The Brisker Rav assumes that it does. I’m not sure. If you tell me that a minor cannot perform legal or halakhic acts, then it is enough to tell me that in one case and I can derive it with respect to another. Yes. I’m warm—are you in favor of turning on the air conditioner? Okay? Let’s turn it on.
[Speaker B] But if we were saying—if it were only acquisition, then basically… Again? If it were only acquisition in name, not as registration, only as acquisition… Okay, and that also includes some kind of difficulty, because if he makes an acquisition…
[Rabbi Michael Abraham] No, it doesn’t include registration—it is registration! But the Rabbi claims: what is registration? Registration means that it is mine.
[Speaker B] But you could define it—again, you could define it—that it’s not exactly the same thing, that you can’t learn from registration to acquisition.
[Rabbi Michael Abraham] Tosafot in our passage raises the following difficulty: an adult can acquire on behalf of someone else, but a minor cannot acquire. And if you say that, then why do I need a verse? Why is a verse necessary? After all, we hold that a minor has no legal agency. Right? Exactly what I pointed out earlier. A minor is not legally competent; everywhere, a deaf-mute, an imbecile, and a minor are excluded. We don’t bring a verse in every place to exclude them. Someone who lacks legal competence simply isn’t in the game. Right? So why here do we need a verse to exclude him? He says: it can be answered that with regard to the Passover offering it was needed, because you might have thought that since he is relevant to eating Passover offerings and must be registered for it, as it is written, “a lamb for the fathers’ house, a lamb for each household,” even a minor, I might have said that he can also acquire on behalf of others; therefore it teaches us otherwise. This is a Talmudic discussion in Nedarim 36 and in Pesachim 88, I think, where the Gemara says that “a lamb for the fathers’ house, a lamb for each household” includes minors as well. Meaning: if a minor eats the Passover offering, then he also has to be registered for it just like an adult.
Now, there is a big dispute here whether “a lamb for the fathers’ house” is Torah-level law or not Torah-level law. The Gemara in Nedarim discusses that. The question is whether this is a rabbinic law, meaning that under the law of education a minor has to eat the Passover offering through registration—through education, sorry—and the law of education says: do it properly already, including registration. Just as with an adult. If you want to educate the minor to perform the commandment the way he will have to perform it when he grows up, then just as he has to eat the Passover offering, he also has to be registered for it, so that he won’t eat without registration. But there are views that say that “a lamb for the fathers’ house” is Torah-level. If that’s Torah-level, then the meaning is that minors must eat the Passover offering and must be registered for it by Torah law. Okay? Then it’s simpler in this context. In any event, for our purposes, yes—if there is a verse teaching this, then it should be a Torah-level law, not a rabbinic one. What? No, but if that were so, then the Gemara would not have said—if it were only an asmachta—then the Gemara would not have said: wait, this is needed for Rabbi Yitzchak, so how can you derive the law of agency from it? Because then it isn’t really needed for Rabbi Yitzchak; it’s only an asmachta. Right. When they make a necessity comparison, that’s usually an indication that this is not an asmachta but a real derivation.
So Tosafot is basically saying this: the minor is excluded from the general laws of agency, but not from here. He is excluded because he lacks legal competence, like a deaf-mute or an imbecile. The exclusion here is a special exclusion specifically for the Passover offering, because there one might have said: since he needs to be registered, and he is relevant to eating Passover offerings, one might have said that he could also register others; therefore it teaches us that he cannot. That even here the minor cannot do it. It may be that this says something about the general law too. Why? Because Tosafot is basically saying: I would have known that a deaf-mute, an imbecile, and a minor cannot be agents, cannot acquire on behalf of others, and so on. But I would have thought that with regard to eating the Passover offering, yes. Why would I have thought that? Tosafot says: since he is relevant to eating Passover offerings and must be registered for it. Therefore I would have thought that he can also acquire on behalf of others. Meaning, I would have thought that the exclusion of a deaf-mute, an imbecile, and a minor is because they are not within the legal category, right? And since with regard to registration for the Passover offering he is within the legal category, he belongs there, then there it would work—even though he is not
[Speaker B] legally competent. Yes.
[Rabbi Michael Abraham] Meaning, even with a minor—even with a deaf-mute, an imbecile, and a minor—the disqualification from being agents, that’s what I would have thought, is not because they lack legal competence, but because they are not within the legal category; because they lack legal competence, they are not obligated in commandments. But in the end, for agency itself you don’t need legal competence. What you do need is to be obligated in commandments, to be within the legal category, and in their case, because of their lack of competence they are not connected to commandments, and therefore they are not within the legal category, and therefore they also do not belong to agency. The practical difference is that in the case of Passover, where they are within the legal category, there they would belong to agency—that’s what I would have thought. Then this verse comes and says: even with Passover, no.
Now there is room to discuss whether this verse is teaching me that the exclusion of a deaf-mute, an imbecile, and a minor is not because they are not within the legal category, but rather their lack of legal competence itself excludes them—and the practical difference is that even in a place where they are within the legal category they still do not belong—or whether we remain with the initial assumption, that they were really excluded only because they are not within the legal category, and specifically in Passover he is additionally excluded. So this is not some sweeping statement. Right, this is a famous question I already discussed: does every verse teach the opposite of what is written in it? Right, that comes up here too, exactly the same thing. Is the conception found in the initial assumption—Tosafot is pretty clear that this is indeed the conception, right?
[Speaker B] That if a minor is within the legal category of something, he can be an agent for it. What do we see? That his lacking legal competence doesn’t bother me. Why?
[Rabbi Michael Abraham] Because his disqualification from being an agent is not due to lack of legal competence.
[Speaker B] Lack of legal competence means he doesn’t belong to commandments. Now, if he doesn’t belong to commandments, then—
[Rabbi Michael Abraham] he’s not within the legal category, and he cannot be an agent. The practical difference is in a case where indeed he lacks legal competence, but there is some commandment he does belong to, or some matter he does belong to—in such a case he would be within the legal category, and he could be an agent. What is the logic that a minor without legal competence would therefore be exempt from commandments? I mean, what is the logic linking lack of competence to that? The logic is simple. What do you mean? The Holy One commands someone who has legal competence; someone who has no legal competence—what is there to command him? He doesn’t understand what is wanted from him.
How can he be an agent if he has no legal competence? How can he have the judgment to do things? Well, because I am now appointing him. I, the sender, have legal competence. I send the minor; I tell him what to do; I make the decisions; everything is clear, everything is fine; let him do it. So long as the judgment is mine, why should I care what monkey does it on my behalf? That’s the initial assumption. And then the Gemara says no, he really cannot be an agent. Maybe—
[Speaker B] he doesn’t understand at all what it means to be an agent. There are other things too—he doesn’t exactly understand. No, you know, let’s say, he doesn’t exactly understand.
[Rabbi Michael Abraham] But here—he understood me, and he acted correctly. After all, if he didn’t do what I told him, then there is no question, right? The question is what happens if he did do what I told him: is he considered an agent so that it works for me, or not? We are talking about a case where he understood well and did what I told him. So if I told him, and I made the decision, the judgment was mine, and he understood correctly and carried out what I told him—what’s the problem? If he didn’t carry it out, then there is no issue at all. He just didn’t carry it out. Fine.
With commandments we are talking about a kind of responsibility: you receive punishment if you do not perform the commandment or if you commit the transgression. You don’t impose responsibility on someone who doesn’t understand. But here, if I take a risk when appointing a minor because he may not understand or may do something foolish—fine, I chose to take that risk. If in practice he understood and carried out what I told him, why shouldn’t it take effect? There’s no punishment here; it’s not that I’m imposing some responsibility on him, such that if he doesn’t do it I’m going to punish him. So why should I care if he lacks legal competence? That is only my own consideration. I won’t send someone who lacks legal competence because I don’t want him doing stupid things for me there. But if I nevertheless decided and took the risk—that should be allowed. Why not? Okay? On the conceptual level, if there is someone else here who is doing the judgment, then there would be room to say there is no problem, even though the minor lacks legal competence; he can still be an agent, because the sender does the judging.
By the way, the same could also be true in the opposite direction—that he could be the sender, because the agent would do the judgment for him. There is some adult here in the picture who can make the decisions, and perhaps that would suffice even if the sender or the agent is a minor. Again, that’s the initial assumption. So the Gemara says, according to Tosafot: no—an adult can acquire, but a minor cannot acquire. A minor cannot do this. Now the question is: what does that mean? Have we learned that the initial assumption was wrong—that the disqualification of a minor due to lacking legal competence is substantive, and not only because he is not within the legal category, and therefore even in matters in which he is within the legal category he still cannot be an agent, like registration for the Passover offering? Or does the original conception remain, and the Passover offering is for some reason a special law?
[Speaker B] According to the second option, maybe in monetary law he can have legal standing; if someone can acquire on his behalf, maybe that’s enough.
[Rabbi Michael Abraham] Right, right. Assuming indeed that he can own property. There is room to discuss whether in monetary law, even if he can own property, he still cannot acquire on his own, and therefore he also cannot appoint an agent to acquire on his behalf. Because whatever he himself cannot do, he cannot appoint an agent to do on his behalf. If I myself cannot perform an act, then I cannot delegate the power to an agent to do it in my stead. And a minor cannot perform an act of acquisition. Rabbi Akiva Eger explains—no, Rabbi Akiva Eger himself needs explanation. Why does Rabbi Akiva Eger assume that the minor… okay, so once judgment isn’t required, he can do it. And if judgment is required, then not. It depends. Again, I’m saying that regarding acquisition, even if you say that a minor can be an owner—and that probably has to be true, or else in inheritance; a minor can be an owner—still, it is obvious that he cannot perform an act of acquisition. He cannot acquire something. It could be that this alone is enough to make him not within the legal category. I don’t know.
[Speaker B] Fine, and in Passover, let’s say, from Tosafot—if he can be registered for Passover—
[Rabbi Michael Abraham] But maybe he cannot register himself. Even himself he cannot register. He has to be registered. He cannot register himself. An adult has to register him. And then he cannot be an agent, because he is not within the legal category, since he cannot perform the act of registration. The result—like with acquisition, what I said—the result, that he can be registered to a sacrifice, is true. But the act of registration he cannot do, even for himself, and therefore he also cannot do it for others. That is called not being within the legal category. He is not within the legal category because he cannot perform the act, even though the result applies to him. All right? So all these things will affect the question of how I understand the conclusion according to Tosafot. Is the conclusion that the minor is excluded because he lacks legal competence, period? Or no—even in the conclusion the minor is disqualified because he is not within the legal category? After all, even with registration he is not within the legal category. True, he can be registered, but he cannot perform the act of registration. Therefore he is not within the legal category. And if so, then we remain with the idea that the exclusion of a deaf-mute, an imbecile, and a minor from agency is only because they are not within the legal category, not because they lack legal competence. They lack legal competence, and therefore they are not connected to commandments, and since they are not connected to commandments they are not within the legal category, and therefore they cannot be agents. It starts from the fact that they lack legal competence, but “they lack legal competence” is only the reason they are not connected to commandments; what disqualifies them from agency is that they are not connected to the matter, not the lack of competence itself. That can remain true even in Tosafot’s conclusion. Okay?
In Tosafot on Pesachim there is a parallel Tosafot: an adult can acquire, but a minor cannot acquire. “This is difficult—why is a verse needed? After all, we hold that there is no agency for a minor.” Notice the wording there. Here he says: “And if you say, why do I need a verse? A minor has no legal capacity.” There he says: “There is no agency for a minor.” What’s the difference?
[Speaker B] It’s a sugya.
[Rabbi Michael Abraham] Tosafot in Pesachim is certainly speaking about acquisition on behalf of another, not agency. The whole discussion there is about acquisition, and then he says: why do I need a verse for acquisition? We already know that a minor does not belong to agency. How does he understand the derivation from the verse, “an adult can acquire but a minor cannot acquire”? He understands it as referring to acquisition. Right? Tosafot here may understand it as referring to agency, because truly, in the context of our passage, as I said before, it seems that the exclusion of the minor from this verse is from agency, not from acquisition. Maybe also from acquisition, but first and foremost from agency. After all, the verse is dealing with agency; we saw that above.
So when Tosafot asks here, he says: after all, a minor has no legal capacity, so he cannot be an agent, cannot acquire on behalf of others, cannot do anything. And he answers what he answers. Tosafot in Pesachim is not bothered by the fact that a minor has no legal capacity. Tosafot in Pesachim is bothered by the fact that a minor has no agency, and therefore he also cannot acquire on behalf of others under the rule of “one may acquire for another.” And why? Because in the first chapter of Bava Metzia it is proven that acquisition on behalf of another is based on agency. That is all a discussion in the laws of acquisition and agency. It is not connected to the minor’s legal competence. Meaning, Tosafot understands that the law stated here is really some specific law regarding acquisition and agency. Here we learned that the minor is excluded from acquisition; and that he is excluded from agency—we know that from another source; we can bring it from Bava Metzia, but never mind. He asks: why is a verse needed to exclude a minor from acquisition? Acquisition is based on agency, and a minor does not belong to agency. That is a different question from the question of Tosafot here.
Tosafot here can learn that the passage is about agency, not acquisition. And from here comes the source that a minor is not subject to agency. Why are you bringing me Bava Metzia? True, Bava Metzia—but the verse from which we learn it is this verse: that a minor is not subject to agency. That is what the verse comes to teach. Tosafot asks: fine, but why is a verse needed? Why is a verse needed for agency? After all, a minor has no legal capacity. Meaning, Tosafot understands that because a minor has no legal capacity, he is not within the legal category. If he is not within the legal category, then why do I need a verse to exclude him from agency? And the answer is: maybe the minor is excluded not only because he is not within the legal category, but because he lacks legal competence. Therefore even in registration. Or—as I said, the second possibility—it could be that this remains true even in the conclusion, and what is excluded is that even the Passover offering is not a category he belongs to. That is the move in Tosafot here.
In Tosafot there, this isn’t connected to whether he is within the legal category or not. Rather, a minor has no agency—we know that. It isn’t connected to the verse here. The verse comes to exclude the minor also from acquisition. Tosafot asks: why do I need to exclude the minor from acquisition, if we already know that he does not belong to agency and the assumption is that acquisition is based on agency? Meaning, if acquisition were not based on agency, Tosafot would not have asked anything. Would our Tosafot ask if acquisition were not based on agency? Certainly. After all, a minor has no legal capacity. What difference does it make whether acquisition is based on agency or some other legal act? A minor cannot perform legal acts. Why should I care whether acquisition is the same act as agency or a different act? A minor can after all—
[Speaker B] acquire. Yes, fine, so you’re just asking on
[Rabbi Michael Abraham] Tosafot why he says he has no legal capacity—he does have legal capacity. So I said: he has no legal capacity in the sense that he cannot perform the act of acquisition. He can be an owner, but he cannot acquire; and if he cannot acquire, then he also cannot transfer to others. It is not enough that he can be an owner; he must be able to bring about ownership, to perform the act of acquisition. Okay? So you see that these two Tosafot look similar, but they are actually asking entirely different questions.
Tosafot here assumes the verse deals with agency and not acquisition, and therefore what he asks derives from the fact that a minor has no legal capacity; and he assumes that a minor is not within the legal category, and that is why he is excluded. Maybe in the conclusion that changes and maybe it doesn’t. But that the minor is excluded from agency is learned from the verse here. Tosafot in Pesachim says no: the minor being excluded from agency is written somewhere else; it is not this verse. This verse excludes him from acquisition. But like Tosafot here—or maybe by logic, it doesn’t matter, whether there is another source or just logic—that this verse excludes him under the rule of acquisition on behalf of another. Tosafot is not bothered by the question that he has no legal competence. Tosafot says: but we already know that a minor does not belong to agency, and acquisition is based on agency, so why do I need a verse to exclude the minor from acquisition?
Now I’ll say more than that. Why, according to Tosafot in Pesachim, is the minor excluded from agency? Because he lacks legal competence? Or because he is not within the legal category? Or for some other reason? How does he understand it?
[Speaker B] He proves it from Bava—
[Rabbi Michael Abraham] Metzia, but how does he understand that exclusion? It’s pretty clear it’s not because he lacks legal competence. Because if it were because he lacks legal competence, then he would not make it depend on whether acquisition is based on agency or not. A minor is not in agency because he lacks legal competence; therefore he can do nothing, and he also could not acquire on behalf of another whether acquisition is based on agency or not.
[Speaker B] A minor cannot do
[Rabbi Michael Abraham] legal acts because he lacks legal competence. Or—
[Speaker B] maybe agency is something that requires legal competence for legal acts, while acquisition is not.
[Rabbi Michael Abraham] Why wouldn’t acquisition require it? What’s the difference?
[Speaker B] You need to acquire.
[Rabbi Michael Abraham] No, we are talking about the minor as the one acquiring on behalf of another.
[Speaker B] Here we’re talking about the minor as the one granting acquisition on behalf of another.
[Rabbi Michael Abraham] The minor as the recipient—we’ll still see; maybe a minor can receive, but cannot confer acquisition. So it seems from Tosafot in Pesachim that even the exclusion of a minor from agency is not because he is not legally competent; maybe because he is not within the legal category, I don’t know exactly what. And then he would say: in acquisition there is no requirement that he be within the legal category, because acquisition is not based on agency. For if acquisition is based on agency, then in acquisition too there is a requirement that he be within the legal category, and just as a minor is excluded from agency, so too he is excluded from acquisition.
Tosafot says: and if you would say, we know from here that he is not subject to agency—what, are you going to say that from this very verse we learn that he is not subject to agency? You bring me a sugya in Bava Metzia. Fine, Bava Metzia is Gemara. But from where does the Gemara know that a minor is excluded from agency? What verse? It could be that the verse is this very verse. From here the Gemara in Bava Metzia derived that a minor does not belong to agency. So maybe he is simply excluded from here, and if so then it is exactly like our Tosafot, right? So what he is basically suggesting is: let’s go like Tosafot in Kiddushin. Okay? But then he says that cannot be, because it would still be difficult: why is it necessary to exclude him from not acquiring, since even for himself he has no acquisition in his found object except for the sake of social peace, as we say in HaNizakin.
Maybe there was an initial assumption that he is within the legal category. Again, what is he asking? What was the answer he suggested? He suggested: maybe from this very verse we learn that the minor is excluded from agency. He says that cannot be, because it is still difficult why we need to exclude him from acquiring, since even for himself he has no acquisition in his found object. What does the word “acquire” mean here? Is he talking about acquisition or agency? Yes, but is his discussion about acquisition or agency? Agency.
[Speaker B] After all, he says—
[Rabbi Michael Abraham] The minor is excluded from agency, and since acquisition is based on agency, why do I need a special exclusion for a minor under the law of “one may acquire” for another? That is the question. The answer is: this verse itself did not exclude the minor from acquisition; this verse excludes the minor from agency. Meaning, when we say “an adult may acquire and a minor may not acquire,” the intention is agency, not acquisition—just as we saw in our Gemara and in our Tosafot, right? At this point Tosafot is simply suggesting that maybe we should go like Tosafot in Kiddushin, that the verse is really dealing with agency and not acquisition, and we saw that this is really the straightforward reading of our Gemara too.
And on that Tosafot asks: but why do we need the verse? Which verse? The verse that excludes a minor from agency, not from acquisition—or not only from acquisition, right? Because he assumes acquisition is based on agency, so acquisition and agency go together. When we speak of agency and acquisition, for Tosafot it is the same thing, as Tosafot’s working assumption. By the way, throughout the Talmud many Tosafot assume that “one may acquire for another” is based on agency. So Tosafot basically says that at this point he starts from the premise that the verse excludes the minor under the law of agency, and on that he asks: but why do I need a verse to exclude him from agency, when he has no acquisition, he is not within the legal category, he cannot himself acquire, so how can he acquire for others? He is talking about a minor agent, not only a minor grantor, right? Because the whole discussion is about excluding the minor from agency. So how does he understand it? That in fact, even to exclude a minor from agency, I do not need a verse, because he is not within the legal category. After all, he is not within the legal category of acquisition. “He has no acquisition in his found object”—that sounds like he is not within the legal category. Not within the legal category of what? Not within the legal category of acquisition—but maybe yes? No, he is not within the legal category of acquisition, and therefore he cannot be an agent for acquisition.
[Speaker B] That isn’t obvious.
[Rabbi Michael Abraham] “Not within the legal category” always concerns the object of the agency, not agency itself. Whether he is within the legal category of agency—that is our subject here, whether he can be an agent or not.
[Speaker B] He cannot receive.
[Rabbi Michael Abraham] All right? So what is Tosafot actually saying? At first Tosafot assumed that the exclusion of a minor from agency is an exclusion based on logic, or I don’t know, another source, perhaps because he is not within the legal category. Now he says: it cannot be that the exclusion of a minor is from the verse. He says, and this cannot be, because there is no need for a verse-based exclusion; after all, he is not within the legal category. All right? So Tosafot says: it can be answered that this is specifically true of a found object, but a gift, where another mind transfers ownership to him, is preferable, as concluded in “Two Holding.”
In the case of a found object, when I take the found object for myself—I, the minor, take the found object for myself—who performs the act of acquisition? I, the minor. A minor cannot perform an act of acquisition. But in the case of a gift, when the minor receives a gift from someone, that is what is called “another mind transferring ownership.” The adult who gives him the gift is basically the operative mind in this act, and therefore it works, because you don’t need the minor’s mind; the adult is really doing the act. That is a bit strange, because the judgment should be the minor’s judgment; the adult is the other side of the transaction. But apparently a gift transaction is for the benefit of the minor; it is not an acquisition or something that requires his judgment. It is like the law of acquiring a benefit for another, where it is entirely to your advantage, so you don’t need that here. You only need an adult to ensure that this is indeed the case.
So what is he saying, in effect? That only regarding a found object he cannot acquire for himself, but regarding a gift he can. Therefore what? A gift can be found for him. Right. And therefore? Then Tosafot is difficult. Who said Tosafot is difficult? Why should I care that in a gift he can receive from someone else? I’m discussing whether the minor can acquire for someone else as an agent, or under the law of “one may acquire” for another; for Tosafot it is the same thing. Now if the minor cannot himself acquire for himself, then how can he acquire for others? Tosafot says yes, but someone else can acquire for him. So what? He—
[Speaker B] went back again to his initial assumption in Tosafot in Kiddushin. There—what? He says he can be registered and can acquire. Exactly, exactly.
[Rabbi Michael Abraham] You can see here in Tosafot that for him, to be within the legal category does not mean that you are able to perform the act under discussion. To be within the legal category means that you are relevant to the implication, to the result of the act. If you can be an owner—and that is exactly the debate we had earlier—Tosafot assumes that if you can be an owner, then you are called someone who is within the legal category, even though the application of ownership, the act itself, you cannot perform.
Meaning, when Tosafot understands this definition that someone not within the legal category cannot be an agent, he does not understand it as: well, you cannot do the act, so that also cannot be transferred to someone else. That is how we usually understood “not within the legal category.” What does “not within the legal category” mean? You yourself cannot do such an act. If you cannot do such an act, how can you do it for someone else? Tosafot does not understand it that way. Here Tosafot suggests the possibility that I cannot perform this act for myself, but for him I can. Why? Because he understands that “not within the legal category” is a formal exclusion. It is a reservation built into the Torah’s definition. When the Torah introduced the law of agency—that I can appoint someone as my agent—I can appoint someone as my agent only if he is within the legal category of the matter. Then he is sufficiently similar to me that he can act on my behalf. But this is not built as a power of attorney, right? It is not that since you are doing the act and only the implication goes back to me, therefore you must be someone who can perform such an act. Tosafot does not understand it that way. What? Yes, because the result is relevant to him too, that’s enough; he is called within the legal category, and he can be an agent. Okay?
This is like the famous Tosafot on man and woman in Kiddushin. Right. There, a woman can receive—right—a woman can bring kiddushin for me, can betroth you on my behalf, and can betroth a woman on my behalf. Okay? Even though she cannot betroth men, still she is within the legal category of divorce and kiddushin because she can be betrothed. Meaning, this concept applies to her. And in fact there too we see that being within the legal category is not interpreted according to the plain, simple model of authorization. Usually we understand what this requirement of being within the legal category means. Agency is an authorization. So the one who performs the act is the agent. He has to be someone who can perform such an act. After that, if it takes effect, it will be attributed to me. But first of all he must be able to perform such an act. That is how we usually understand the principle of “not within the legal category.” Here we see otherwise. “Not within the legal category” is a sort of formal reservation. Meaning, someone who is not within the legal category of those implications—he is not in this field of divorce and kiddushin, or of acquisitions, or something like that—cannot play this game. He cannot represent me and be my agent, even if the conception of agency is “an extended hand” and not authorization. And in “extended hand,” I perform the act, not him. And I am within the legal category—so what is the problem? The problem is that if he is not within the legal category, he cannot become my extended hand. All right? That is how Tosafot understands it.
[Speaker B] It’s like the Tosafot in Kiddushin, to arrive at the same initial assumption.
[Rabbi Michael Abraham] Like the Tosafot in Kiddushin. Yes. Now Tosafot in Kiddushin asks an additional question. After all, he has no legal capacity. If he has no legal capacity, then how can he acquire for others, either as an agent or as one who acquires on behalf of another? Now according to Tosafot, what do you mean—why should I care that he has no legal capacity? He can acquire where another mind transfers ownership. So what if he has no legal capacity? Tosafot there does not accept that. No—here he advances, right? Here he advances? Here he says that he is within the legal category because another mind transfers ownership. Therefore the verse is needed, and now the verse comes and says that nevertheless he cannot be an agent. What does that mean? Either the verse teaches me that such a thing is called not within the legal category—because in order to be within the legal category, you have to be able to perform the act and not only to be an owner—and then it is exactly like the Tosafot there. All right? Or it is a special derivation.
[Speaker B] Meaning that “within the legal category” there means within the legal category.
[Rabbi Michael Abraham] Now according to the view that acquisition is not based on agency, it seems from Tosafot that the fact that a minor is not subject to agency has another source. For example, because he is not within the legal category. But still there would have been room to say that in acquisition he could acquire, and this verse excludes him from acquisition. Right? Are you with me? The Gemara in Pesachim asks, and it understands that this verse excludes him with respect to acquisition, not agency, right? At first, in Tosafot’s question. And therefore in the end he answers no: it excludes both acquisition and agency, because acquisition is based on agency, and agency itself is also excluded from here, and acquisition too is excluded from here. Okay?
But if we go in the direction that acquisition is not based on agency—and Tosafot doesn’t accept that, but let’s take Tosafot’s line according to the view that acquisition is not based on agency—then Tosafot’s question never arises. Right? Tosafot’s question does not arise because although a minor is not subject to agency, that has nothing to do with acquisition, because acquisition is not based on agency, and the verse teaches me that a minor is also not subject to acquisition. Okay? Why is the minor not subject to agency? That is not learned from this verse, as in Tosafot’s conclusion, because Tosafot’s conclusion only speaks according to the view that acquisition is based on agency. According to the view that acquisition is not based on agency, there is no need to arrive at the idea that this verse excludes agency; I remain with the understanding that the verse excludes acquisition. So from where is agency excluded in the case of a minor? By logic, or because he lacks legal competence, or yes, because he is not within the Torah’s legal category, I don’t know.
[Speaker B] If it’s logic that he lacks legal competence, then the same calculation—
[Rabbi Michael Abraham] Exactly, and that is the calculation I’m making. If acquisition is not based on agency, I now make the whole calculation in Tosafot on the assumption that acquisition is not based on agency. Let’s start reading Tosafot from the beginning. Tosafot asks: why do I need this verse to exclude the minor from acquisition, when I already know that a minor is not subject to agency? When I say to exclude a minor from acquisition, I mean a minor who acquires on behalf of another, not a minor who receives, yes? Why do I need the verse, if I know that the minor is not subject to agency, and therefore it is clear that he is also not included in acquisition?
But if acquisition is not based on agency, then there is no problem. There is no question. Because Tosafot makes the question depend on the assumption that acquisition is based on agency. And if acquisition is not based on agency, then it is not difficult. Why not? Because then I would say: the minor is not subject to agency for some reason that we’ll discuss in a moment, and this verse excludes him from acquisition. One moment, I’m getting there. Now: why is the minor not subject to agency? Not from this verse, right? That is a separate datum. This verse excludes him from acquisition. Why is he not subject to agency? Not within the legal category, not legally competent, whatever. Okay?
Now, if I understand that this is because he lacks legal competence, then plainly, even if acquisition is not based on agency, there should be no possibility that a minor could acquire. He lacks legal competence. So what difference does it make? Even in agency I learn by logic that he lacks legal competence. So by the same logic I would learn that in acquisition too he cannot do it because he lacks legal competence. Again: why do I need the verse? If Tosafot assumes that I still need the verse, then apparently the exclusion of a minor from agency is not because he lacks legal competence, but perhaps because he is not within the legal category. And on that Tosafot says: since “not within the legal category” is not a simple logic, it is not because he cannot perform the act, as we saw later in Tosafot, but because he is not relevant to the result. Therefore if he were relevant to the result, maybe it would be fine. So if that is true, then it is not automatically true also regarding acquisition, because maybe that was said only about agency and not about acquisition, and then I would think that in acquisition a minor actually could acquire, and therefore the verse is needed to say no.
He could—but that is no longer necessary. “Not legally competent” means forget it, he is not on the field. One who is not legally competent is not a player in the legal world; he is not in the game. Then obviously there is no room to distinguish between agency and acquisition. But “not within the legal category”—there there is room to discuss. So I say: we are speaking only according to the side that acquisition is not based on agency. Only on that side am I speaking. So on that side, where acquisition is not based on agency, now I ask myself: why is a minor excluded from agency? And then we will see why with acquisition the matter remains open.
If he is excluded from agency because he lacks legal competence, then it seems simple that he is also not included in acquisition. Again the question returns: why do I need a verse? Right? So apparently he is excluded from agency for a different reason, or from a different source—I don’t know exactly what—or from the logic of not being within the legal category. Now even in that logic of not being within the legal category, we saw two possibilities. “Not within the legal category” in the sense of authorization—what does that mean? Since you cannot perform such an act, therefore you also cannot perform such an act on my behalf.
[Speaker B] If that were true, then it would be the same with acquisition too. What’s the difference? In acquisition too, you have to perform that act—
[Rabbi Michael Abraham] that act. If you can’t—
[Speaker B] perform it, then that’s the point.
[Rabbi Michael Abraham] And in acquisition it is from some other source—I don’t know what difference that makes—but you are still performing that act, and it is not like authorization where you do something—
[Speaker B] let’s say for you.
[Rabbi Michael Abraham] I don’t know. Why? In agency, when I appoint you, I authorize your power. In acquisition, I did not appoint you. You act without my appointment. The Torah established that you can acquire for me. Now the question is what the Torah established: that you are my extended hand or my authorized representative—I don’t know.
[Speaker B] “Extended hand” sounds like it requires appointment.
[Rabbi Michael Abraham] Why? Just the opposite.
[Speaker B] Authorization means that I become your hand, another person.
[Rabbi Michael Abraham] And an authorized representative does not require appointment? On the contrary—listen to the term itself: authorized representative. I authorized your power; I gave you power.
[Speaker B] But maybe regarding acquisition? Maybe.
[Rabbi Michael Abraham] But you cannot ask questions from “maybe.” If one could make that distinction, then Tosafot would not be difficult.
[Speaker B] So we don’t ask from “maybe.”
[Rabbi Michael Abraham] Right. You don’t challenge from “perhaps.” If it’s just “perhaps,” fine—then why didn’t Tosafot say that? So therefore I think that if I understand the exclusion of a minor from agency as because he is not within the legal category—not because he lacks legal competence, but because he is not within the legal category—and that “not within the legal category” is because he is not within the legal category of the result, not because he is not within the legal category of the act, then in principle there is no reason he should not be an agent. After all, he can do the act; only the result is not relevant to him. So what? In agency there is a rule that only someone who is within the legal category of the matter can be my agent. Fine. It could be that this is only in agency and not in acquisition. Once we are talking about these kinds of formal definitions, it already depends on the mechanism. If the mechanism of “one may acquire” is different from agency, perhaps there the limitation of being within the legal category does not exist. It seems that in Tosafot we need to reach something like that in the accounting, according to the one who says that acquisition is not based on agency. Okay?
By the way, even in the conclusion, after the verse excluded the minor from the law of “one may acquire,” right? That is why we need a verse excluding the minor from the law of “one may acquire.” What did the verse add? Today we are doing a bit of accounting. What did the verse add? One could say: maybe it added this very point—that this really is considered not within the legal category. That “being within the legal category” is required even in “one may acquire,” because “one may acquire” is like agency. But then that is strange, because this whole position is being said on the assumption that “one may acquire” is not based on agency, even in the conclusion, even after the verse. After all, this is a view that says that “one may acquire” is not based on agency even as practical law. Even after there is a verse excluding the minor also from acquisition. Which means that according to that view, the verse excluding a minor from acquisition probably does not come to teach that acquisition is also agency. Because otherwise, in the conclusion, “one may acquire” would indeed be based on agency. It would be only the initial assumption. The requirement of being within the legal category would also work in “one may acquire,” but not because “one may acquire” is like agency. But perhaps “one may acquire”—
[Speaker B] he wants more, and then in this case it really is like we always assumed? What—in Pesachim?
[Rabbi Michael Abraham] In what case is that?
[Speaker B] Yes, maybe in the Passover offering.
[Rabbi Michael Abraham] Tosafot does not make a distinction in Pesachim between Passover and something else. He is speaking about the general definitions of agency and acquisition. He does not—our Tosafot says maybe Passover is something special. There was an initial assumption that because he is within the legal category, he would be able to. Tosafot there does not enter into such a distinction; he does not make distinctions like that. It seems to be a general statement: from where do we learn “one may acquire,” from where do we learn agency; but this verse teaches everything. Not only Passover. Okay?
Now, fine, this is a bit of bookkeeping, but I think it’s okay.
[Speaker B] But wait—what is Tosafot’s conclusion? Which Tosafot? Both Tosafot, or only the Tosafot here? I didn’t understand. That acquisition—that the Rabbi said the verse itself excludes “one may acquire,” not under the law of agency, “one may acquire” not under the law of being within the legal category for a minor. That basically means that a minor is not within the legal category under the law of “one may acquire.”
[Rabbi Michael Abraham] Even regarding “one may acquire,” it is a problem if the agent is not within the legal category.
[Speaker B] And that also affects agency?
[Rabbi Michael Abraham] No, agency we already know beforehand.
[Speaker B] So where does agency come from?
[Rabbi Michael Abraham] Either from logic or from another source; I do not know exactly. But Tosafot assumes there is some other source for agency. According to the one who says acquisition is based on agency, Tosafot says there is no choice: maybe this verse itself is also the source for excluding a minor from agency. But that whole move is only because you have a difficulty according to the one who says acquisition is based on agency. But according to the one who says acquisition is not based on agency, Tosafot never starts that move; he remains with how he understood it at first: that there is an exclusion of a minor from agency, I do not know for what reason, and this verse excludes him from the law of “one may acquire.” All right?
Now, later in the Gemara, later on the page, that really begins the sugya of “one may acquire.” Until here it is not at all clear that we were dealing with “one may acquire,” as I said before. The nuance points to dealing with agency in general—“an adult acquires and not a minor acquires”; the term sounds like “one may acquire.” But from the context of the sugya it seems to be agency and not “one may acquire.” Tosafot in Pesachim, however, is dealing here with “one may acquire.” What? Is that how the Gemara rejects Rabbi Yitzchak? What?
[Speaker B] Is that how the Gemara rejects Rabbi Yitzchak? It stops there on that verse.
[Rabbi Michael Abraham] On that verse, but it doesn’t matter. It brings another verse: “according to each man’s eating you shall make your count.” And from there he learns?
[Speaker B] Yes—here, look.
[Rabbi Michael Abraham] So, right? “That one is needed for Rabbi Yitzhak’s teaching,” because Rabbi Yitzhak said: an adult can acquire, but a minor cannot acquire. And what does the Gemara say? “That one is derived from ‘each man according to his eating.’” So here we’re returning to the issues of agency and all kinds of things like that. But excluding a minor is learned from “each man according to his eating.” Important. The question still is: what does “each man according to his eating” exclude? Does it exclude a minor from acquisition on behalf of someone else, or does it exclude a minor from agency? And then, regarding what Rav Giddel said in the name of Rav: from where do we know that a person’s agent is like the person himself? As it says, “one prince, one prince from each tribe.” Let agency be derived from here. Right, because there it’s talking about dividing the Land, so the princes essentially conducted a lottery among themselves over the land in Israel, and they acquired parcels for the members of their tribe, each prince for the members of his own tribe. Okay? Now if it says, “one prince, one prince from each tribe,” that means that the representative of each tribe is the prince, and he acquires on behalf of everyone. So what do we see? That the law of agency can be learned from here. So why were all the earlier sources needed? You can learn it from here.
[Speaker B] Just a second, I’m a little mixed up here. In the earlier sources there’s an opinion that the Passover offering can be slaughtered for an individual. Yes. Right, because then he uses “each man according to his eating,” and if someone says that both according to Rabbi Yonatan and according to the view that learns agency from “the whole congregation of Israel,” then that means everyone can take part in one Passover offering, and then you don’t need the verse.
[Rabbi Michael Abraham] Wait, but if the Passover offering can be slaughtered for an individual, then above too we tied it to two opinions. Now if you combine this opinion with that opinion, maybe. But who says they go together? Maybe he disagrees with Rabbi Yonatan there, and then he’ll still be left with that source.
[Speaker B] נכון, but theoretically you’re right. You’re saying there’s a certain opinion, there’s some configuration of opinions, that still needs a source for someone who agrees with Rabbi Yonatan and who agrees that the Passover offering…
[Rabbi Michael Abraham] The question is whether there is anyone like that. So apparently you could learn the law of agency from here. And what does the Gemara say? “Can you really think that this is agency? Can you really think that this is agency? But minors are not subject to agency.” What’s that? This isn’t talking about agency; it’s talking about acquisition on behalf of someone. That’s what we see later. That’s what the Gemara says later. Right, here it is: “Rather, like that statement of Rava bar Rav Huna, who said that Rava bar Rav Huna said that Rav Giddel said that Rav said: from where do we know that one may acquire on behalf of a person even in his absence? As it says, ‘one prince, one prince.’” And that reveals what they said above. Above they didn’t say it explicitly, but that’s the meaning. In other words, the Gemara says: you want to learn the law of agency from here? But the prince acquired, among others, also for minors, and for minors you cannot be their agent. So clearly this verse is not dealing with the law of agency, but with the law of acquisition on behalf of another.
[Speaker B] Does he have to be the agent of each and every one in the group?
[Rabbi Michael Abraham] Obviously. He grants land to each and every one of them. He’s not just receiving the tribe’s land; he’s also distributing every portion to each person. To the families. Right, if the father died and there’s a minor, then he has to receive the land. That’s the Gemara’s assumption. So apparently there were minors among them too, and if the prince could do all the work himself, then that means he can’t be acting under the law of agency, because for minors that doesn’t work. So under what law does it work? Under the law of acquisition on behalf of another. Well, Yosef, what about your question now? So what, are you saying that if this works by acquisition on behalf of another, then all the more so by agency?
[Speaker B] No, here he receives. No, here he maybe can’t be the principal, because he’s a minor.
[Rabbi Michael Abraham] No, no, he’s not appointing an agent.
[Speaker B] Here the one on whose behalf it was acquired is not the one granting it. Who? The minor received a share of the land. Okay. He can’t acquire through agency. He can’t be the principal, and he can’t be…
[Rabbi Michael Abraham] He can’t
[Speaker B] be the principal
[Rabbi Michael Abraham] and he also can’t
[Speaker B] be the one who acquires.
[Rabbi Michael Abraham] He does acquire, but not necessarily in the sense that he can appoint a principal. There’s no “all the more so” here. Why? Unlike what we had above, notice: “an adult can acquire, but a minor cannot acquire” is talking about a case where the minor is acquiring on behalf of someone else. Here we’re talking about a case where the minor is the beneficiary of the acquisition. Okay? Where the minor is the beneficiary—that is exactly what Rabbi Akiva Eiger told us. And why is Rabbi Akiva Eiger important here? Because apparently from this Gemara it comes out explicitly that acquisition on behalf of another is not based on agency. After all, when the Gemara learns the law of acquisition on behalf of another, it says: you can’t derive from here a source for the law of agency, because this is talking about acquisition on behalf of another. That seems to go against Tosafot, who say that acquisition on behalf of another works by virtue of agency. Rabbi Akiva Eiger says: not true. It could still be that acquisition on behalf of another is indeed based on agency, and nevertheless the fact that acquisition on behalf of another works for a minor cannot teach you that an agent works for a minor, because in agency you need appointment, and a minor cannot appoint. Not because agency and acquisition on behalf of another are two different laws. On the contrary: Rabbi Akiva Eiger’s whole point is precisely on the side that acquisition on behalf of another and agency are the same mechanism, except that here you need appointment and here you do not need appointment.
[Speaker B] So is there a dispute in Tosafot, let’s say,
[Rabbi Michael Abraham] whether
[Speaker B] if he could be the agent, then he could be the beneficiary of the acquisition?
[Rabbi Michael Abraham] Certainly, certainly. But because here we’re dealing with acquisition on behalf of another, it doesn’t work that way.
[Speaker B] But when he’s the beneficiary or the agent, then there seems to be a dispute, I think.
[Rabbi Michael Abraham] Say that again?
[Speaker B] Let’s say if he…
[Rabbi Michael Abraham] No, there it’s not relevant to appointment.
[Speaker B] Right, but there I can learn one from the other. Meaning, if the minor can receive through acquisition…
[Rabbi Michael Abraham] That’s what you asked, and I answered you that it’s not certain.
[Speaker B] Because of that side, because of that side… yes, right.
[Rabbi Michael Abraham] So in short, from the Gemara here it would apparently emerge that acquisition on behalf of another is not based on agency, against what we saw in Tosafot. And there are other Tosafot like this too; we’ll see it later. But if we adopt Rabbi Akiva Eiger, then there’s no proof from the Gemara here. It could be that acquisition on behalf of another is indeed based on agency, and the reason acquisition on behalf of another can work for a minor while agency cannot is not because these are two different mechanisms. It’s the same mechanism, only in agency you need appointment, and in acquisition you do not need appointment. Why? The Gemara doesn’t say why appointment is needed. Why do you need to appoint? What it says is that you need to appoint the agency.
[Speaker B] Fine, but in agency, why can’t a minor do it?
[Rabbi Michael Abraham] Because he cannot appoint. That it doesn’t explain; it just says that a minor cannot appoint an agent. Rabbi Akiva Eiger says that the point is the inability to perform the act of appointment. That’s the explanation of what the Gemara says. “And there were also minors,” Rashi says, “among those inheriting the Land.” Yes, among those inheriting the Land there were also minors. “And did those who acquired for them come as agents? But there is no agency for a minor. For regarding ‘and he sends’ and ‘she is sent,’ it is written ‘man,’ and ‘when a man takes [a woman].’ And from there we learn that a minor cannot appoint an agent.” Oops, now suddenly we have another verse, in Bava Metzia—what page? It says, “when a man takes a woman,” right, in the section about divorce there, or marriage—“when a man takes,” doesn’t matter—and “and he sends” and “she is sent.” So that whole discussion talks about a man. Rashi says: a man, and not a minor. So the exclusion that there is no agency for a minor is learned from there: that a minor cannot appoint an agent. And what is that talking about there? About appointing an agent? Right, exactly. That’s not like our case. Here we are talking about a case where the minor is the agent. In Tosafot in Pesachim and Tosafot here, who asked: after all, a minor cannot be an agent, so why do I need a verse excluding a minor, teaching that he cannot acquire on behalf of someone else? That isn’t connected to this. There you asked: so where is their source from? I don’t know—they have proof from the Gemara in Bava Metzia 12, but there is no verse. And therefore Tosafot say, fine, maybe the verse is really this very verse itself. Right? Why? After all, Rashi brings us an explicit verse. The answer is: not true. The verse Rashi brings is where the minor is the principal, not where the minor is the agent. If the minor goes to betroth a woman and wants to do it through an agent, he can’t. But that means a minor cannot be a principal, not that he cannot be an agent. For that there is a verse. But as for the fact that a minor cannot be an agent—that is either because he is not included in the relevant legal category, or it is learned from this verse, from the passage in our own topic. In Tosafot in Pesachim or Tosafot here. Okay?
And then the Gemara says, “Rather, like that statement of Rava bar Rav Huna,” as I said before. They really correct it, and the teaching of Rava bar Rav Huna, of Rav Giddel in the name of Rav, is that from here we learn that one may acquire on behalf of a person even in his absence, from the section about the princes. But in the subtext, what do we also understand? That the law of acquisition on behalf of another works for a minor. A minor himself probably cannot acquire, in the plain sense of the sugya above, but acquiring on behalf of a minor does work. Because that is exactly what the Gemara says. It can’t be agency, because in fact there are minors here as principals, and yet it cannot be that there is agency for a minor. Therefore it is obvious that we are dealing here with acquisition on behalf of another. So what if we are? It is still acquisition on behalf of a minor. No? Because acquisition on behalf of a minor is not a problem. Only agency for a minor is a problem, right? So from the Gemara here it comes out like this: first, apparently acquisition on behalf of another is not based on agency. According to Rabbi Akiva Eiger you can get out of that; it could be that acquisition on behalf of another is indeed based on agency. This whole Gemara deals with a case where the beneficiary and the principal are minors. The Gemara above dealt with a case where the grantor and the agent are minors. We know that a minor cannot grant and cannot be an agent. A minor also cannot be a principal, but from the Gemara here it plainly emerges that a minor can indeed be a beneficiary, in the sense that someone may acquire on his behalf. That he can be. That’s the bottom line that comes out of the sugya here, if we look at it from all angles. Now we’ll move on to the next class. We’ll begin with different understandings of the law of acquisition on behalf of another: whether it is based on agency, not based on agency, a dispute among the medieval authorities (Rishonim), and we’ll see the ramifications and so on. Okay?