Kiddushin, Chapter 2, 5783, Lesson 22
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- The Talmudic flow: a minor, acquisition on another’s behalf, and agency
- Two fundamental understandings of the rule of acquiring on another’s behalf
- Rabbi Akiva Eiger: acquiring on another’s behalf as a form of agency and the case of a minor
- Practical difference: terumah and a minor’s agency
- A benefit mixed with a liability: a guardian and acting to impose a liability in order to benefit
- Two readings of the conclusion of the passage: a source for acquiring on another’s behalf, or only a shift to guardianship
- An example of decision-making under constraint and the justification for “imposing a liability in order to benefit”
- A dispute among the medieval authorities (Rishonim): Ritva, Tosafot, Ran, Rashba
- Ketzot HaChoshen and Rashi versus Tosafot: seizing property for a creditor where it harms others
- Summary of the direction going forward: projecting the reading of the Talmud onto the dispute among the medieval authorities (Rishonim)
Summary
General overview
The lecture sets the rule of zakhin—acquiring on someone else’s behalf—against the rule of agency through the Talmudic discussion of dividing the Land by the tribal princes. It sharpens the point that the Talmud’s initial understanding is that acquiring on another’s behalf works for minors, and therefore is not learned from agency. But then a difficulty arises, because the division also contains an element of liability, and the Talmud therefore frames the case as one of a court-appointed guardian acting “to impose a liability in order to benefit.” From this, two ways of reading the conclusion of the passage are developed: either that this is a third category—guardianship—and ordinary acquiring on another’s behalf is therefore tied to agency; or that the verse still serves as the source for acquiring on another’s behalf, except that where benefit and liability are intertwined, only a guardian is authorized to act. The lecture then presents a dispute among the medieval authorities (Rishonim) over whether acquiring on another’s behalf is a form of agency or an independent mechanism, and discusses practical differences regarding minors, terumah, and seizing property for a creditor where others are harmed.
The Talmudic flow: a minor, acquisition on another’s behalf, and agency
The straightforward reading of the Talmud is that a minor cannot appoint an agent, but one can acquire on behalf of a minor under the rule of acquiring on another’s behalf. Therefore, no proof about agency can be brought from the division of the Land, because that case involves acquiring on another’s behalf. The Talmud adds that the division is not a simple benefit, because some people prefer mountain land and not valley land, and vice versa; so this is a benefit mixed with a liability. The Talmud therefore frames it as the rule that a court appoints a guardian for orphans to divide their father’s property, “to impose a liability in order to benefit,” and brings a source from the verse: “You shall take one prince, one prince from each tribe.”
Two fundamental understandings of the rule of acquiring on another’s behalf
The first possibility presents acquiring on another’s behalf as actual agency with an appointment, except that the appointment is made implicitly, by virtue of a clear presumption that in the case of an unambiguous benefit there is no need for discretion, and so it is obvious to us that the beneficiary would have wanted to appoint the agent. This explanation extends to acquiring on someone’s behalf in his absence even when he is entirely unaware, because had he known, he would have agreed and appointed the agent, and the lack of awareness does not prevent an implicit appointment. The second possibility presents acquiring on another’s behalf as an alternative mechanism that draws no power from the principal at all; rather, its power comes from the Torah, and therefore it does not require appointment.
Rabbi Akiva Eiger: acquiring on another’s behalf as a form of agency and the case of a minor
Rabbi Akiva Eiger (Ketubot 11) argues that even if acquiring on another’s behalf is a form of agency, one can still understand why it works for minors, because it operates without the need for explicit appointment. The distinction developed in the lecture creates a difficulty if acquiring on another’s behalf is agency with an implicit appointment, because if a minor is not capable of appointing, then an implicit appointment should not help either. Still, a path is opened to resolve this even within the first understanding: where the matter is an unambiguous benefit and no discretion is required, a minor can appoint, and then perhaps either an implicit or explicit appointment would be effective for him.
Practical difference: terumah and a minor’s agency
The lecture discusses the possibility that specifically in the case of terumah, the rule of acquiring on another’s behalf may not work, and a real agent may be required on the basis of “So shall you also separate,” which includes your agent. A practical difference is suggested regarding a minor’s terumah: if acquiring on another’s behalf does not work for terumah but agency does, then perhaps a minor could appoint an agent explicitly when the matter is an unambiguous benefit that does not require complicated discretion. The question is discussed whether mere consent is enough, or whether an active act of appointment and agency is required, depending on what is learned in the laws of agency regarding terumah.
A benefit mixed with a liability: a guardian and acting to impose a liability in order to benefit
The Talmud formulates that the division is not a simple “benefit,” because there are different preferences regarding inheritances, and therefore it cannot be understood as an ordinary case of acquiring on another’s behalf. The law cited from Rava bar Rav Huna in the name of Rav Gidel in the name of Rav states that a court appoints a guardian for orphans “to impose liability and to benefit,” and the Talmud corrects this to “to impose liability in order to benefit,” meaning an action that has an element of liability that is necessary in order to achieve the benefit. The explanation in the lecture emphasizes that the alternative—not acting—means leaving the property unused until the children grow up, and therefore, even if the decision is not optimal for every orphan, the very fact of dividing it now is a benefit in the given circumstances.
Two readings of the conclusion of the passage: a source for acquiring on another’s behalf, or only a shift to guardianship
The first reading sees the Talmud’s conclusion as establishing that the verse deals with a guardian, as a third category that is neither acquiring on another’s behalf nor agency. If so, one must then explain where the ordinary rule of acquiring on another’s behalf is learned from if not from this verse, and that pushes in the direction of saying that acquiring on another’s behalf is indeed based on agency and learned from the sources of agency, with its appointment being at most implicit. According to this approach, acquiring on another’s behalf has no advantage over agency with regard to a minor, and just as a minor cannot have agency, so too acquiring on another’s behalf would not work for a minor; what works for minors in the division of the Land is the power of the guardian. The second reading sees the verse as remaining the source for acquiring on another’s behalf even in the conclusion, except that where the case is one of “imposing liability in order to benefit,” its implementation was entrusted only to a guardian. That leaves room to say that acquiring on another’s behalf is not based on agency and is effective even for one who is not capable of agency.
An example of decision-making under constraint and the justification for “imposing a liability in order to benefit”
It is explained that comparing mountain land and valley land is not a decision between two ideal options, but a decision between receiving some portion and complete inaction leading to zero benefit over many years. Examples are brought of decisions that worsen one side in order to save or gain overall, including a discussion of separating Siamese twins as a case where the alternative is certain death for both, and so there is logic in taking an action that gives at least some chance; and also the example of a person on the roof of a burning house, where a dangerous jump is preferable to certain death. This is also compared to the role of a judge, who must reach a decision and not defer it to others, just as a guardian must act and not refrain from action in order to “save himself” from a hard decision.
A dispute among the medieval authorities (Rishonim): Ritva, Tosafot, Ran, Rashba
The Ritva explains that the stage in the Talmud where the division of the Land is understood as a case of acquiring on another’s behalf teaches that acquisition is not a form of agency at all, and therefore a person can acquire even for someone who is not capable of agency, such as a minor; and he understands that the Talmud’s conclusion does not uproot that principle. The Ritva explains that Tosafot rely on the conclusion, “there is an even stronger case,” and establish that in the conclusion there is no proof from here that acquiring on another’s behalf is not agency. The Ran explains that in the initial assumption it indeed sounds like acquiring on behalf of a minor is Torah-level and not based on agency, and therefore the question “and are minors not capable of acquisition?” is not asked. But after the Talmud establishes the verse as dealing with a guardian, there is no longer any proof from here that acquiring on behalf of a minor is Torah-level, and what remains is only rabbinic. The Rashba cites, in the name of the authors of Tosafot and in the name of Rashi, that acquisition is based on agency, and proves it from the passage in Nedarim about one who separates terumah from his own produce for that of another, where with terumah “agency is explicitly written.” Therefore, if acquiring on another’s behalf works there even without explicit intent when it is considered a benefit, this proves that acquiring on another’s behalf functions as agency.
Ketzot HaChoshen and Rashi versus Tosafot: seizing property for a creditor where it harms others
The Ketzot (section 105) cites Rashi in Bava Metzia, who explains that in the case of someone seizing property for a creditor where it harms others, the creditor does not acquire it because the creditor did not appoint him as an agent—implying that if he did appoint him, it would work. Tosafot disagree and argue that even if he appointed him as an agent, it does not work, because there is no difference between acquisition and agency, since acquisition is based on agency; and they bring proofs from the passages in Bava Metzia and Nedarim. The Ketzot suggests that Rashi is consistent with his view that acquiring on another’s behalf is not based on agency but is a power granted by the Torah, and therefore the Torah does not authorize such acquisition when it harms others; whereas with ordinary agency, “a person’s agent is like the person himself,” and if the principal appointed an agent, it is as though he himself seized it. A formulation is cited from Rashi in our passage that implies that the division of the Land teaches that even a liability that comes through a benefit may be done by the court for minors, and this shows that for him the verse remains connected to the rule of acquiring on another’s behalf, while being entrusted to a guardian when there is complexity.
Summary of the direction going forward: projecting the reading of the Talmud onto the dispute among the medieval authorities (Rishonim)
The passage remains dependent on the question whether the conclusion returns acquiring on another’s behalf to being based on agency, or leaves it as an independent mechanism learned from the verse; and the chosen reading determines whether acquiring on behalf of minors is Torah-level or not. The ground is prepared for the continuation, where the dispute among the medieval authorities (Rishonim) over “whether acquiring on another’s behalf is based on agency or not” will be discussed, and how each position reads the initial assumption and the conclusion in the passage about the division of the Land and the guardian.
Full Transcript
[Rabbi Michael Abraham] We’re dealing with the laws of acquiring on another’s behalf. In the previous lecture we saw a bit of the Talmud; we went through the part that deals with a minor as a principal, and after that we moved to a minor as an agent or as the beneficiary, okay? Both under the rule of acquiring on another’s behalf and under the rule of agency. The simple reading of the Talmud is that although a minor cannot appoint an agent, under the rule of acquiring on another’s behalf you can acquire even for a minor. And that’s what the Talmud says: don’t bring me proof from the princes’ acquisition in the division of the Land, because there we’re dealing with acquiring on another’s behalf. So what follows? First, that it is not based on agency, because if it were based on agency you couldn’t say that from a case of acquiring on another’s behalf you can’t bring proof to agency. And second, if it’s not based on agency, then we also see that it works for minors, which ordinary agency can’t do for minors. That’s the straightforward meaning of the Talmud. Then the Talmud says it’s a guardian, because it’s a benefit mixed with liability, and therefore this is really a case of guardianship. So from the plain reading of the Talmud it seems that acquiring on another’s behalf and agency are two different things. Acquiring on another’s behalf is not based on agency. And we also see that the practical difference is that it works for a minor, whereas agency does not work for a minor. I’m talking now again about a minor as principal and as beneficiary—not the minor himself as the agent or the one conferring benefit. I mentioned Rabbi Akiva Eiger in Ketubot 11, who says that even if acquiring on another’s behalf is based on agency, one can still understand why it works for minors. Meaning, he rejects the first novelty in the Talmud. The second novelty in the Talmud—that acquiring on another’s behalf works for minors—is in the Talmud; apparently it’s written explicitly, though in a moment we’ll see that it’s not certain, but apparently it is explicit. But the first novelty—that acquiring on another’s behalf is not based on agency, because after all you can’t derive agency from a case of acquiring on another’s behalf—Rabbi Akiva Eiger says that is not necessary. It could be that what appears in the Talmud, that acquiring on another’s behalf works for minors, is not because it’s a different mechanism from agency. Rather, it’s the same mechanism as agency, only in acquiring on another’s behalf you don’t need an appointment. And the whole problem with a minor not being able to appoint an agent is only because he can’t make an appointment. But if the problem of appointment is removed, then certainly an agent could work even on behalf of a minor. That is Rabbi Akiva Eiger’s claim. Therefore, in our Talmud, when it says that the rule of acquiring on another’s behalf works even for minors, that still doesn’t mean it is not based on agency; it could be that it is based on agency. Okay, that is basically the Talmud’s line of thought. Now, before we continue, I want to preface that the rule of acquiring on another’s behalf can be understood in a few different ways. For now I’ll distinguish between two different ways. One way is probably what Rabbi Akiva Eiger understood: that acquiring on another’s behalf is basically agency, and the novelty is that you don’t need an actual appointment—the appointment is made implicitly. Now pay attention: not only do you not need one, but there actually is an appointment here; it’s just made implicitly. What does that mean? The whole problem with a minor is that he’s not—sorry, not the whole problem; what I mean is that the appointment is made implicitly in the sense that where the matter is an obvious benefit—yes, and that’s why a benefit mixed with liability is already another issue—but where the matter is a complete benefit, there is no problem of discretion. A minor has a problem of discretion; you don’t want to leave decisions that require discretion in his hands because he isn’t capable of that. But if a decision is an unambiguous benefit, every person understands that it’s worthwhile, so there’s no reason to deny that to a minor. Why shouldn’t he receive benefits? The only thing I’m worried about is his welfare, that maybe he’s not exercising proper judgment. Right? So then it could be that what I’m saying is that the minor appoints the agent implicitly. He can’t appoint him with an explicit appointment, but I understand that there is a clear presumption that he would want to appoint this agent, and therefore it is as though he appointed him. That is what’s called an implicit appointment. If I had asked him as an adult, he certainly would have said, “I want him to be my agent,” so there is some kind of implicit appointment here. There are many situations like that; we’ll later see the connection to unconscious despair of ownership and things like that—where if it is clear that this is what the person would want, then even if he didn’t say it explicitly, as far as I’m concerned, what difference does it make? It’s as though he said it. If I had asked him, he would have said it—so what do I care whether he actually said it or not? It’s as though he did say it de facto. So basically the claim is that there is an appointment here; even under the rule of acquiring on another’s behalf there is an appointment, only it is made implicitly and not explicitly. Okay.
[Speaker B] We are witnesses to this, okay, we’ll see.
[Rabbi Michael Abraham] In a moment, yes—a kind of “we are witnesses,” it’s the same idea. There is another way to understand it: that acquiring on another’s behalf is an alternative mechanism. It does not function under agency with the appointment merely made implicitly; rather, no appointment is needed at all. Why is no appointment needed? Because you do not receive your power from the principal—you receive your power from the Torah. The Torah gives you this power. There is a rule of acquiring on another’s behalf, and therefore there is a verse that teaches this rule, and the Torah is what introduces the novelty that where something is an unambiguous benefit, I give you the power to act for him—you do not get it from him. Okay. I can’t hear. Wait, I’ll get back to Rabbi Akiva Eiger in a second, but first let’s just understand the two possibilities. The first possibility is that there really was an appointment here. Acquiring on another’s behalf is full-fledged agency. Including the appointment. It’s just that, as in many places in Jewish law, if something is self-evident, you don’t need to say it. It’s obvious. Therefore even if you didn’t say it, he is your agent. Okay. In the second possibility I’m saying that under the rule of acquiring on another’s behalf there was no appointment—not that there is an appointment and you just don’t need one; rather, there is no appointment. Why is no appointment needed? Because appointment means a delegation of power from principal to agent. Under the rule of acquiring on another’s behalf, you, the one conferring the benefit, act by the power of the Torah, not by the power of the beneficiary. Therefore you do not need the authorization you receive from the beneficiary; you don’t need an appointment. Okay. Good. Seemingly, Rabbi Akiva Eiger’s logic depends on these two understandings. According to one understanding it is hard to say what Rabbi Akiva Eiger says. Why? Because Rabbi Akiva Eiger says that in principle a minor cannot appoint, but in the case of acquiring on another’s behalf for a minor it can work because no appointment is needed. That’s not correct. In acquiring on another’s behalf there is an appointment; the minor also appoints. You just don’t need to verbalize the appointment because it’s self-evident. So it’s enough that it is in the minor’s mind for it to count as an appointment. Fine—and if a minor cannot appoint, then even an implicit appointment shouldn’t work. Okay. After all, he can’t—I’m basically saying that there was an appointment here, only it was made implicitly and not by speech. In this case, matters of the heart count as matters. Okay. Or I’ll say more than that: even if he doesn’t know, it’s not just inner intent. He may not know at all that someone is acquiring on his behalf. Say I pick up a found object for a minor. Okay. He has no idea that I found it. Now, if he knows and doesn’t tell me, “Pick it up for me,” then I can talk about inner intent, because he really wants me to do it; he just didn’t say so. But I’m saying that one can acquire for a person in his absence. “In his absence” means that he has no idea at all that I’m acting on his behalf, and that’s still fine. It doesn’t matter, because there is still an implicit appointment here: if he knew, it is clear that this is what he would want and he would appoint me. Therefore, you don’t need anything more. Everything is fine. So according to Rabbi Akiva Eiger, if this is the understanding, then seemingly it doesn’t fit with him. Because Rabbi Akiva Eiger claims that a minor cannot appoint, and yet a minor can benefit through acquiring on another’s behalf because no appointment is needed. Not true. In acquiring on another’s behalf, an appointment is needed too—it’s just made implicitly. Now if someone cannot appoint—if his speech wouldn’t help—then will a presumption that this is what he thinks, and therefore he doesn’t need to say it, suddenly help? After all, thought is only a substitute for speech. I’m saying: if it is clear this is what you think, then you don’t need to say it explicitly. So even if you didn’t say it, we assume that this is what you want. But even if the minor had said explicitly that this is what he wants, it wouldn’t help, because he cannot appoint. So how can an implicit appointment help? According to the second understanding, though, where acquiring on another’s behalf is an alternative mechanism—the Torah appoints, not me—then it’s fine. Right? Because if an appointment isn’t needed, then it could be that the Torah appointed someone to acquire even on behalf of a minor. A minor cannot appoint, but here you don’t need an appointment; there is no appointment and none is needed. So here the only question is whether the Torah appointed someone to acquire on behalf of a minor or not. The logic says yes—why not? Why should a minor lose his rights for no reason? After all, it’s an unambiguous benefit, so there’s no problem. Why shouldn’t the one conferring the benefit be able to do so even for a minor? Now in principle one could reject this and still maintain Rabbi Akiva Eiger’s logic even according to the first understanding. Even according to the first understanding. Why? Because what I really want to say is that the minor can in principle appoint as well. It’s not only that he can have an agent; he can also appoint one. Why is a minor’s appointment usually invalid? Because there is concern that his discretion is not complete. Right? Now, where it’s an unambiguous benefit, there a minor can appoint. So whether by implicit appointment or regular appointment—if it’s an unambiguous benefit not dependent on discretion—you say that if he wants it, everything is fine. It’s an unambiguous benefit, so you also don’t need him to say that he wants it, because we understand that on our own. But that’s not the main point; the point is that it’s an unambiguous benefit.
[Speaker C] If it’s an unambiguous benefit, then it’s agency.
[Rabbi Michael Abraham] Right? That’s the practical difference. Where there is an unambiguous benefit and the minor appointed an agent, then seemingly he can appoint an agent too—not only benefit through the rule of acquiring on another’s behalf. According to this, if I’m right about what I’m saying here. Where do we see a practical difference, for example? We saw that in the case of… terumah, there are views that with terumah the rule of acquiring on another’s behalf may not help, and you really need an actual agent. Okay? There were such views. Now what happens with terumah belonging to a minor? A minor has produce and wants to separate terumah. Now if I act under the rule of acquiring on another’s behalf, it won’t help. Not because acquiring on another’s behalf doesn’t work for a minor, but because acquiring on another’s behalf doesn’t work for separating terumah. So the minor will appoint me explicitly as an agent. Will that work? Why not? We saw views among the medieval authorities (Rishonim) based on the verse “So shall you also separate,” which includes your agent, that specifically an agent is needed. Meaning, the rule of acquiring on another’s behalf is not enough. We discussed whether mere consent suffices, or whether something active is required, or whether the owner’s consent is enough. Maybe that depends on this; we talked about it when we discussed agency in terumah. But for our purposes here, if we assume for the sake of discussion that with terumah specifically agency is required and acquiring on another’s behalf does not help, okay? If so, will it work for a minor? According to what I just said, maybe yes. If we define this as an unambiguous benefit for the sake of discussion—if we say it is an unambiguous benefit—then if the minor benefited through the rule of acquiring on another’s behalf, that wouldn’t work, but if he appoints an agent it will work under the rule of agency. Because under our current assumption, a minor can appoint as well—not only have an agent. As long as it is clear that there is no problem of discretion here, then everything is fine. If it’s an unambiguous benefit, I’m not worried that the minor will make a bad decision, harm his own interests, fail to weigh things fully, something like that. And if that’s so, then whatever an adult can do, a minor can do as well. Okay? That is, if I’m right about that assumption. Then it comes out that even according to the first understanding, we can say Rabbi Akiva Eiger’s distinction: that even if an appointment is needed, where it is an unambiguous benefit the minor can appoint. The practical difference will be that he can appoint an agent as well, not only benefit under the rule of acquiring on another’s behalf. Okay? We’ll see these two understandings later on; they’ll accompany us a bit. Now let’s look at the continuation of the Talmud. The Talmud talks about a benefit that includes a liability, and we haven’t yet seen that. “And can you really say it is a benefit?” Wait. What? Better if it’s higher up. “And can you really say it is a benefit?” Right, so we say that the division of the Land for the minors works under the rule of acquiring on another’s behalf. The princes divide the Land to the minors under the rule of acquiring on another’s behalf, and therefore you can’t bring a source from there for the law of agency. The Talmud asks: “And can you really say it is a benefit? There is liability there too! For there are some who prefer the mountain and not the valley, and some who prefer the valley and not the mountain.” Right? I want an inheritance in the valley, he wants one in the mountain. I have horses, the other one has camels, this one has grain to sow. Each person has a different kind of inheritance that suits him. One wants the seashore—Zebulun by the shore of the seas—everyone wants an inheritance that fits him. So the fact that the prince confers some parcel on me is not necessarily for my benefit; there is an issue of discretion here. Where there is discretion—and that’s exactly what we were just talking about—where there is discretion, it’s not at all obvious how one can act on behalf of a minor under the rule of acquiring on another’s behalf. After all, this isn’t really a simple benefit. Okay? So the Talmud says: “Rather, as Rava bar Rav Huna said, for Rava bar Rav Huna said in the name of Rav Gidel, who said in the name of Rav: From where do we know that with orphans who come to divide their father’s property, the court appoints a guardian for them to impose liability and to benefit?” Right? If there are minor orphans who come to divide their father’s estate, the court appoints a guardian to act for them, both to impose liability and to benefit. Now the Talmud asks: “Why?” Right? Why “to impose liability”? Do we make enactments in order to impose liability on orphans? To harm orphans? To damage their rights? There’s no logic in that. Therefore the Talmud says: “Rather, to impose liability in order to benefit.” The meaning is that there are places where you need to take an action that also has aspects of liability, but without it you won’t gain the benefit. So the court appoints a guardian for the orphans so that he can act on their behalf. He will choose for them—say they are dividing the inheritance of the father who died among the orphans. Now if we were to say that we don’t appoint them a guardian, then they won’t—it could be that this one wants, say, there’s a mountain and a valley. Suppose this orphan wants the mountain or the valley, but he’s still a minor, so I don’t rely on his discretion, and so we won’t appoint him a guardian; we’ll wait until they grow up. Then what we are really doing is waiting—I don’t know—ten years until they grow up, and the land will just lie there desolate and nobody will do anything with it. There’s no logic in that. Let them receive some parcel now. True, it won’t be optimal; maybe if you asked him he’d prefer the mountain and not the valley, or vice versa, but at least he gets something, and it doesn’t just sit there pointlessly for ten years. So there is a side of liability here, but obviously you can do this in order to benefit him, even at the price of it not being perfect, even though there is a side of liability. That’s what it means: “to impose liability in order to benefit.” You take a risk—impose liability in order to benefit. The basic interest is to benefit the minor, but you accept the possibility, the risk, that there is also liability here. What? What do you mean? No, this isn’t a guardian for the minors—yes, but here he isn’t acting as the minors’ guardian in that sense; this isn’t a liability on the minors, it’s a liability on the undivided estate, a liability on the inheritance. We are talking here about a guardian who is supposed to care for the orphans, not a guardian who is supposed to care for the borrowers—sorry, the Levites. They step into their father’s place not in the sense of being obligated to repay his debts; they have no obligation whatsoever to repay his debts, nor to bear his decrees or anything of that kind. “If their father left them a cow or a cloak,” it says there in the Talmud. Rather what is going on is simply that there is an obligation inherent in the father’s assets—you have to return it. It’s not an obligation on the minors. If lightning suddenly struck all of the father’s assets and destroyed them, the orphans would not have to pay their father’s debts out of their own property. Right? So the Talmud says: “Therefore Scripture says: ‘You shall take one prince, one prince from each tribe.’” Meaning, from this verse about the princes’ acquisition in the division of the Land, we learn that one may impose liability in order to benefit. Okay? So what do we actually see here? Where do we end up in the end? In the Talmud’s conclusion, we are left with the understanding that this verse is speaking about a guardian. The prince acted here as the guardian of the minors when he divided the Land. Okay? And then what? So what follows? Is this a case of acquiring on another’s behalf? Is it agency? Is acquiring on another’s behalf based on agency? No. Again, remember the Talmud’s progression. The progression is this: we wanted to bring proof for agency from the division of the Land. The Talmud says: this is not a case of agency, it’s a case of acquiring on another’s behalf. And the proof? Since there were minors among the beneficiaries, and if this were agency it would not work for minors. Therefore it is clear that this is a case of acquiring on another’s behalf. So then you cannot bring a source from here for agency, because it operates by a different rule—the rule of acquiring on another’s behalf. We said that seemingly this implies that acquiring on another’s behalf is not based on agency. The Talmud pushes back and says: what are you talking about? Under the rule of acquiring on another’s behalf it can’t work here. It must work under agency. Why? Because here benefit and liability are mixed together. So there is indeed a source here for agency. Why are you saying there’s no source because it works under the rule of acquiring on another’s behalf? Not true—it cannot work under that rule. Since benefit and liability are mixed together, it must be agency. The Talmud says: no, it isn’t agency. You still can’t bring a source for agency. It is a case of guardianship. And then what? A guardian can act for the minors even where liability is mixed with benefit. And that is the question. Now the question is: what is the law of guardianship? Is it a third category? Meaning, it is neither agency nor acquiring on another’s behalf, but guardianship. The court appoints a guardian for orphans and he can act for them. It is a different law, unrelated to acquiring on another’s behalf—not that acquiring on another’s behalf is related to agency, but a third category. If that is how you understand it, then it comes out that this verse deals with neither acquiring on another’s behalf nor agency. Then of course the question is: what is the source for the rule of acquiring on another’s behalf? There’s no problem regarding the source for agency—we already have sources, as we saw. The source from here was a challenge: after all, here is another source for agency, so why do we need the earlier sources? We answered: no, this is not a source for agency, it is a source for acquiring on another’s behalf. So the sources for agency we have from elsewhere. But do we also have a source here for acquiring on another’s behalf? If the conclusion is that this too is not dealing with acquiring on another’s behalf, but with guardianship, then where does the law of acquiring on another’s behalf come from? From logic alone? But before, you said the verse teaches the rule of acquiring on another’s behalf, which implies it would not have been derived from logic alone. Because in truth, since acquiring on another’s behalf is not based on agency, you say it cannot come from the sources of agency. There is no other source, because this verse is dealing with guardianship. So seemingly there would be no rule of acquiring on another’s behalf at all. Unless you now explain that in the Talmud’s conclusion it actually is based on agency, and then you derive it from the sources of agency. Especially if you say there is an implicit appointment here. Then you can say this really is agency; it’s just that here you don’t need an actual appointment because the appointment is made implicitly. Then obviously you don’t need another source; the source is the sources of agency. So that is one way to understand the Talmud’s conclusion: that in the conclusion it is not talking at all about acquiring on another’s behalf or about agency, but about guardianship as a special law. Then the result is as follows: first, that seemingly acquiring on another’s behalf is based on agency—or at least yes, agency with implicit appointment, what I said earlier, in the conclusion, even though in the initial assumption of the Talmud we thought… the Talmud… In the conclusion it is not talking at all about acquiring on another’s behalf or about agency, but about guardianship, which is a special law. And then the result is as follows: first, that seemingly acquiring on another’s behalf is based on agency, or at least agency with implicit appointment, what I said earlier. In the conclusion, even though at the beginning, in the Talmud’s initial assumption, we thought that acquiring on another’s behalf is not based on agency—right? Because the Talmud said that if this verse is dealing with acquiring on another’s behalf, then you can’t derive agency from it. Why? Because acquiring on another’s behalf and agency are two different mechanisms. So in the Talmud’s conclusion, it backs away from that very point. The Talmud concludes: no, acquiring on another’s behalf is based on agency, and therefore it is learned from the law of agency. Okay? Now does that mean acquiring on another’s behalf works for minors? No, because it is based on agency, and just as there is no agency for a minor, there is also no acquiring on another’s behalf for a minor. Okay? Unless you say like Rabbi Akiva Eiger, that there is agency here without an appointment—and that will depend. If you say that in acquiring on another’s behalf you don’t need agency because the Torah appointed the agent, that can’t work here, because you need a source and there is no source for the rule of acquiring on another’s behalf. So it must be the first understanding, not the second one from earlier—that there is an implicit appointment here. Is there really an implicit appointment? Simply speaking, that doesn’t fit with Rabbi Akiva Eiger. Unless it’s the distinction I made at the end—that perhaps a minor can also appoint where there is no problem of discretion, where it’s absolutely clear. Okay?
[Speaker C] Or then maybe you could say that he really is his agent without an appointment—not that there’s an implicit appointment, but at the basic level.
[Rabbi Michael Abraham] But where would that come from? You need a scriptural source. In ordinary agency you need an appointment; that’s the regular law of agency. When you tell me no, there’s another kind of agency that doesn’t require appointment, the Torah appoints—where does it appoint? How did you decide that it appoints? Where is there a verse?
[Speaker C] Or that it appoints because it has become clear that proper discretion says he would agree to this, so it treats that as an appointment.
[Rabbi Michael Abraham] No, that’s what we talked about earlier. So again, I’ll repeat. Suppose for the moment that the Talmud’s conclusion is that we are dealing here with guardianship, and that’s a different law—not acquiring on another’s behalf and not agency. Now, maybe it’s even a form of agency, only the Torah appoints the agent; that doesn’t matter right now, because this is a benefit mixed with liability, and therefore the ordinary rule of acquiring on another’s behalf seemingly doesn’t belong here. Now, if this is a third category, then we have no source for acquiring on another’s behalf, right? Because this verse is not about acquiring on another’s behalf; it’s about guardianship. And we have no other source for acquiring on another’s behalf, at least according to the understanding the Talmud had until now—that acquiring on another’s behalf and agency are two distinct mechanisms, and one does not teach the other. Right? That’s what the Talmud has assumed until now. So where would the law of acquiring on another’s behalf come from? So what will you say? Apparently the Talmud retracted from what it thought earlier and now says: no, acquiring on another’s behalf is in fact based on agency. You ask what the source is? From agency, because it’s the same thing. But don’t you need appointment here? No, you do need appointment, only it’s an implicit appointment. So you learn it from agency, and like in many areas of Torah law there are situations in which a rule applies implicitly—so what? You don’t need a special source for that. But if I understand it according to the second possibility I mentioned—not that there is an implicit appointment here, but that no appointment is needed at all and the Torah appoints—then that’s difficult. Because in order to say that the Torah appoints, you need a source showing where the Torah appoints; you need a verse that reveals that. That’s not something like implicit appointment, which is just logic. But there is no verse, because the verse is not talking about acquiring on another’s behalf. So where do you learn it from? What, you’ll say that the only reason appointment is needed in agency is because of discretion? Even for that itself I would expect there to be a verse. Because the very fact that “a person’s agent is like the person himself” requires a novelty. The very fact that he can act where my act is needed. Now if there is no source for that at all, where do you get it from? So to me it is difficult to say such a thing. The natural way this comes out according to that reading of the Talmud—if indeed in the Talmud’s conclusion this is a law of guardianship that is neither acquiring on another’s behalf nor agency, which is the first possibility—then the Talmud’s conclusion implies that acquiring on another’s behalf is based on agency. Because otherwise there is no such law. And you learn it from agency—maybe with implicit appointment, maybe without—but it is based on agency. Okay? That must be the case. And then, simply speaking, it means implicit appointment, because if it is based on agency, then appointment is required. Okay? What practical difference follows? What happens, for example, with minors? Seemingly, the rule of acquiring on another’s behalf should not work for minors, since it is the same thing as agency; just as there is no agency for a minor, there is no acquiring on another’s behalf for a minor either. Rabbi Akiva Eiger, as I said, is hard to maintain if you say that we are dealing here with implicit appointment according to the first understanding and not the second understanding—which is the one we said applies here. Unless we say that a minor can appoint as well where there is no problem of discretion. Okay? And therefore, exactly as the Talmud says here, where there is liability mixed with benefit—which means there really is a problem of discretion—here the rules of acquiring on another’s behalf and of agency cannot help; only a guardian can, because here there is a problem of discretion. Okay? That is what emerges from the first reading of the Talmud. The second possibility is that the Talmud really understands that this verse does indeed teach the rule of acquiring on another’s behalf, except that since we are dealing with a benefit mixed with liability—“to impose liability in order to benefit.” By the way, maybe “a benefit mixed with liability” is not the best phrasing, because that sounds like there is a benefit and there is a liability and the question is which outweighs which. The Talmud presents it differently: “to impose liability in order to benefit.” In the end, it is clearly a benefit. It’s just that in order to get to that benefit, you have to pay a little bit. Okay? But it is obvious that any reasonable person would pay a little to get the benefit. Meaning, the net result is still clearly worthwhile. Right. There is—this is not a case of a decision that truly depends on discretion. No. It is a decision, but there is also an aspect of liability at the side. And if that’s the case, then you can understand that this still is a case of acquiring on another’s behalf. Because in the end, for any person, something like this would count as a benefit. So this is a case of acquiring on another’s behalf. But this kind of case was entrusted only to a guardian. Meaning, not just anyone can decide to impose a liability on me so that I end up with a benefit, even though perhaps any reasonable person would prefer that. Since there is also an element of liability here, not everyone can do it; only a guardian can. But the guardian here acts under the rule of acquiring on another’s behalf, because in the end we are dealing with a benefit. If so, then the Talmud’s conclusion is that this verse really does deal with the rule of acquiring on another’s behalf. And we remain with the idea that perhaps there is no source here for agency, and that’s fine—because the verse is dealing with acquiring on another’s behalf. Okay? Within the rule of acquiring on another’s behalf itself, when benefit and liability are mixed, only a guardian can confer the benefit and not anyone else. That gives us, for example, a practical difference. Can I acquire something on behalf of someone else in a case of imposing liability in order to benefit—where in the end it’s clear he wants it, but it also involves an element of liability? If he appoints me, certainly yes. But under the rule of acquiring on another’s behalf alone? No. Only if I’m his guardian. Understood? But this is still part of the law of acquiring on another’s behalf. The guardian acts under that law even when the benefit is a complicated kind of benefit. But it is still the law of acquiring on another’s behalf. Therefore, the verse teaches me that law. If so, then it is definitely possible that even in the conclusion we remain with the idea that acquiring on another’s behalf is not based on agency. I do have a source for the law of acquiring on another’s behalf. Earlier I said that in the conclusion I have no source for that law, so where do I learn it from? I must learn it from agency, because I have no other source. So I would have to say that acquiring on another’s behalf is based on agency. According to this reading, however, I do have a source for the law of acquiring on another’s behalf. This verse is its source. So I don’t have to say that it is based on agency. And especially because at the beginning the Talmud did assume that acquiring on another’s behalf is not based on agency, right? Because the Talmud said that you can’t derive agency from acquiring on another’s behalf. So even in the conclusion, if there is no necessity otherwise, we will probably remain with the view that acquiring on another’s behalf is not based on agency. That is the practical difference that emerges between these two readings. I’m laying the groundwork here for the next stage, where we’ll see that there is a dispute among the medieval authorities (Rishonim) whether acquiring on another’s behalf is based on agency or not. And the question will be how that fits with our Talmud. Because in our Talmud it seems to say explicitly that acquiring on another’s behalf is not based on agency. The Talmud says that if the verse deals with acquiring on another’s behalf, you can’t derive agency from it. So how can the medieval authorities (Rishonim) come and say that acquiring on another’s behalf is based on agency? What I’m saying is that perhaps they read the Talmud in the first way. True, in the initial assumption we thought that acquiring on another’s behalf is not based on agency, but in the conclusion we say that it is based on agency. Sorry—the first way, not the second way. In the conclusion we hold that acquiring on another’s behalf is based on agency. And a practical difference would be, for example, that acquiring on another’s behalf might not work for a minor, contrary to what we thought at first—that it would not work for a minor. And the reason it works here for minors is because this is guardianship.
[Speaker C] The valley rather than the mountain—isn’t that exactly the opposite of what you’re saying? Again. What I have to do is accept the valley. Maybe I would prefer the valley to the mountain? I didn’t understand—that’s not the opposite; it’s just that what I can do right now is not, if I had…
[Rabbi Michael Abraham] No, but it’s still the preferable decision.
[Speaker C] No, but—
[Rabbi Michael Abraham] The decision is preferable relative to the alternative of making no decision at all, not preferable relative to getting the mountain. He got the valley. I’m not claiming that the valley is better than the mountain. I’m claiming that the valley is better than nothing. What do you want—not to give him anything? That is certainly worse. Right, I wanted—but surely you wouldn’t… If you claim, “I wanted the mountain,” then the conclusion should not be that we give you the mountain, but that we give you nothing; we wait until you turn thirteen and then we’ll talk. Do you want it to remain for ten years not yours—neither the mountain nor the valley? Is that better? Obviously, under the given circumstances, this is the best decision that can be made. You can’t give him what he wants. So what will you do? Either you give him what you decide, or by lot, or whatever it may be—or you give him nothing. It’s like… once I wrote an article about separating Siamese twins. When two children are born conjoined, and they have, say, a shared heart or sometimes a shared brain, right? They are literally connected. And under certain medical circumstances, the doctors know that within nine months both of them will die.
[Speaker C] If—
[Rabbi Michael Abraham] You can’t keep going like that over time. Okay, now the question is whether to do a separation surgery. And that basically means: give the heart to one of them, and the other will die because he has no heart, or no brain. Okay? Or leave them as they are, and then we’re not murdering anyone—after all, you’re not allowed to kill. So all the halakhic decisors say: don’t touch them, leave them both to die. There was some news item about this once on the radio that I heard; that’s what got me interested enough to get into this topic. I wrote an article in Techumin explaining why, in my opinion, they are obligated to do the separation surgery. Because it’s obvious that each of the two children would certainly want—even the one who would end up dying—would certainly want us to hold a lottery, because otherwise both of them are going to die anyway. And in any case he’s going to die. A lottery gives him a fifty percent chance to live. It may be that he won’t come up in the lottery and then he’ll die, but he would have died anyway. So if I asked them—if they were older, of sound mind—and I asked them, “Tell me, what do you want?” they would obviously say, “Let’s do a lottery,” right? At least you get a fifty percent chance to live. But they—
[Speaker C] Don’t want them at all?
[Rabbi Michael Abraham] But we said that every reasonable person wants to live.
[Speaker C] So in effect, a fifty percent chance that the lot will fall to him is worth more than zero.
[Rabbi Michael Abraham] At least more than nine months in which both of them… yes, let’s ignore temporary life for a moment. Let’s leave aside temporary life for now, because that’s a different consideration.
[Speaker C] It’s very rational, but he would know that the second option is certain death, even though he would have died anyway.
[Rabbi Michael Abraham] He would have died anyway, within a short time. So if he’s not rational, then fine—we’re even sparing him those pangs of conscience; we make the decision in his place. That’s the decision a rational person should make. A rational person makes that kind of decision, and therefore we, as his guardians… Now, here’s another question. Someone is standing on the roof, okay? The house is on fire. Various people argued with me about this article, so I gave them this example. Somebody is standing on the roof and the house is burning. Now he wants to jump down from the third floor. He might die from the jump, but he might not. Is he allowed to jump? What, to kill himself? Better passive non-action—let him wait till he burns? What do you mean? If he jumps, he has at least a fifty percent chance to live. If he doesn’t jump, he’ll definitely die. Is there any doubt that he’s allowed to make such a decision? That maybe he even ought to make such a decision? Of course he is allowed. So I’m saying: the whole idea of a guardian is that if there is someone who lacks capacity, then the guardian makes the decisions he would have made if he were an adult. That’s exactly the whole point. Because otherwise what happens? You say, fine, you can’t make decisions because you don’t know what he would do, and therefore what? You leave him to die. Are you sure that’s the decision he would have made when he grew up? Right.
[Speaker C] So—
[Rabbi Michael Abraham] The alternative is to leave him to die, and that too—you’re not sure that’s what he would have wanted. So true, there’s a concern that maybe he also wouldn’t be comfortable with the decision you made to do a lottery. But with the decision not to do a lottery, there is certainly reason to worry that he wouldn’t be comfortable. So what are you going to do? The situation—the alternative is not to leave both of them alive; I don’t have that alternative. The alternative is to leave both of them to die.
[Speaker C] In other words, not making a decision is also a kind of decision.
[Rabbi Michael Abraham] Exactly. That’s why I bring this example here. Understand? I’m saying: you have two children—this one wants the mountain, this one wants the valley. I say: I acquire the mountain on his behalf. “Ah, but I wanted the valley—why are you giving me the mountain?” I say: fine, the alternative is that I don’t rely on my estimate of what I think you would have wanted—and then what? I give you nothing. Is that better for you? Giving you nothing is like dying in any case. Is that better for you? Of course not. So the fact that you wouldn’t have… It reminds me of something else… They say in the name of Rav Kook—someone later told me it was the Vizhnitz Rebbe, and someone else told me no, in Edut Re’iyah he knows Rav Kook himself said it—that it is better to fail through baseless love than through baseless hatred. That’s how people always quote it in their name. Yes—if you’re in doubt, better to love someone, because if you hate him and that’s wrong, that’s worse than if you love him and that’s wrong. Okay? So better to fail through baseless love than through baseless hatred. And whenever I hear that, I always think the best thing would be not to fail in either one. And people usually say, “Ah, better to fail, therefore love everyone.” What do you mean? Maybe in a case of doubt it’s better to love than to hate. But if there is someone you ought to hate, then hate him. “Those who hate You, Lord, I shall hate.” Whenever we compare two alternatives, we forget that sometimes there is a third alternative that is worse than both of them. You ask yourself, yes, what’s the alternative—the mountain or the valley? Notice that there is a third alternative that will hurt you more than either of them. Do you prefer that? If you insist on the mountain even though I decided to give you the valley, you’ll get neither the mountain nor the valley. Is that better for you? A person has to know what the two options are that stand before him and decide which of the two he prefers. Okay?
[Speaker C] But in the end, if we go back to that separation case—in the end there is some consideration, maybe some cultural weight, to the fact that although I am making a decision, when I don’t make a decision, when I say yes, yes, they’ll die, but I didn’t kill. No, it doesn’t sound moral to me, but it still sounds understandable.
[Rabbi Michael Abraham] I’m asking: what is the optimal decision for the minor, assuming he can’t speak and can’t tell me what he wants? There are two possibilities; you can’t escape that. If you don’t make a decision, he can also come to you with complaints. “I would have wanted you to make a decision.” So what if you didn’t intervene? Then he’ll come to you with complaints for not intervening. Why didn’t you intervene? After all, you’re not intervening for your own sake. You’re making this decision for him. So now—is the decision not to intervene on his behalf better than the decision to intervene on his behalf? Of course not. Maybe you want to save yourself, so you don’t intervene. No—but your role is to care for them, not to save yourself. That’s the role of a guardian. So you can’t run away. “I resigned, I don’t know, I don’t want to touch this.” No. You have to care for them. Yes, exactly. The role of a guardian is to act on their behalf—that’s why the religious court appointed you. Because they can’t be here, so you have to make decisions, even difficult decisions, but you have to make them. You are obligated to make a decision. Again I’m reminded of stories. I sat on several panels that annulled marriages for women—not through the Rabbinate, of course. So I saw various rulings of the Rabbinate that drove me out of my mind. Some ruling by one panel that said: yes, in our opinion this woman really is permitted, her marriage is void, she can marry—but we need the great sages of the generation to agree with us. And you’re a judge sitting in judgment! What do you mean, the great sages of the generation? Go ask the great sages what they think, that’s fine. You’re allowed to consult. A judge is allowed to consult. But what do you mean—you sit as a judge, you reach a decision, and then you say, “provided that the great sages of the generation agree with me,” and you send the woman to the great sages of the generation? She came to you. You are the judge. You get paid to make decisions. That’s what they pay you for. Not because you are the greatest sage of the generation. Maybe you aren’t the greatest sage of the generation—that’s perfectly fine, you don’t have to be. You are who you need to be—Zusha, be who you are. Okay? But you have to make decisions. Can you imagine a judge saying, “Look, I think the law is such-and-such, but only if the philosophers in the United States agree with me, or I don’t know where, in Australia, who knows where”? You want to consult with them? Fine, you’re allowed to consult. Call them, set up a meeting, consult with them, reach a conclusion. But your job is to get to the bottom line. You have to make a decision. It’s a crooked and distorted outlook the likes of which you’ve never heard. It’s simply unbelievable what goes on there. We’ve come back to the beginning of the class. What goes on there in that glorious institution. She does not—
[Speaker C] She doesn’t receive it? She doesn’t receive it. Yes, that’s from another religious court.
[Rabbi Michael Abraham] The Rabbinate doesn’t accept the divorce document. Right. She can marry not through the Rabbinate. She can marry not through the Rabbinate. People also marry others off outside the Rabbinate. No problem, everything is fine. Legally there’s an issue here? Yes, no—legally there are legal issues here. So she’ll be considered a common-law partner; nowadays there are solutions, after all, people get around the Rabbinate in all sorts of ways. Fine, so let’s get back to our topic. So the two ways of reading the conclusion of our Talmudic passage can affect the question whether, according to the conclusion of the passage, acquisition on someone’s behalf is based on agency or not based on agency. In the initial assumption, it seems that it is not based on agency. The question is whether that changed in the conclusion. And that is probably a dispute among the medieval authorities (Rishonim), as we’ll now see. So we already saw in the previous class that Tosafot’s position in several places is that acquisition on someone’s behalf is based on agency. Tosafot in Ketubot and in other places. The Ritva here writes as follows: “And we ask, can you really think that Rav comes to this by way of the law of agency? But they were minors in the division of the Land, and minors are not subject to agency.” Here he is explaining the Gemara. “Rather, certainly this is what we are saying: one may acquire for a person in his absence,” and so on. “From this we hear that acquisition is not based on the law of agency at all.” Against Tosafot. And from this Gemara we see that acquisition is not based on agency. And here too he is talking about the initial assumption, right? The Gemara says, wait a second, this is the law of acquiring on someone’s behalf; you can’t derive from it the law of agency. You see that acquiring on someone’s behalf is not based on agency. And there’s also a conclusion. But after that we said no, this is a liability mixed with a benefit, and therefore it’s a guardian and not… For him, if in the initial assumption it says that acquisition is not based on agency, then that remains so. And he apparently read the conclusion of the Gemara as not changing that. Even in the Gemara’s conclusion, acquisition is not based on agency. Because otherwise, why are you bringing proof from the initial assumption when that very point changed in the conclusion? Okay? So it seems he read it that way; that’s his dispute with Tosafot.
[Speaker C] So why do they learn from the verse that acquisition applies only to a guardian? I didn’t understand. According to the… in the end, do we learn acquisition from the verse only for a guardian?
[Rabbi Michael Abraham] No, we learn from the verse that there is a law of acquisition on someone’s behalf. When it is a liability mixed with a benefit, then only a guardian. So we can learn from that same verse the law of acquisition. You might say, so then only a guardian should work even in the regular law of acquisition, because “it is enough for what is derived from the law to be like the source case.” So here you can say: derive from it and apply it in its own context. Or you can say by logic that elsewhere, why should you need a guardian? By logic. I understand why here you need a guardian, because there is discretion involved, but in principle I see that someone else can act for me. That is appropriate. Why does it need to be a guardian here? Because this is a mixed consideration. By the way, in fact it doesn’t really speak there about a guardian; it speaks about the prince. The prince is not a guardian of the orphans, only the Gemara decided that he acts under the law of a guardian. The Gemara decided that; it’s not written in the verse. All right? The Gemara says that since there it is a benefit mixed with liability, apparently the prince acted as a guardian. So the Gemara said it—not the verse. So you can definitely say that from this verse I learn, in principle, the law of acquisition on someone’s behalf. There are details: if it is liability mixed with benefit, then only a guardian; if it is a pure benefit, then anyone; and that is already the reasoning of the Sages. Fine, but the source is still this verse, and that is what he says—that acquisition is not based on agency even in the conclusion. And more than that: if acquisition is not based on agency, then apparently the conception is also like conception number two, not conception number one. Meaning, acquisition is not that there is an implicit appointment, but rather that no appointment is needed at all—the Torah appoints him. Okay? And that’s why it really works for minors. Because if it were an implicit appointment, it couldn’t work for minors, because minors are not capable of making an appointment. Even implicitly. So that is apparently how the Ritva understood it. And then he says: “From this we hear that acquisition is not based on the law of agency at all, and a person can acquire even for one who is not subject to agency,” namely minors. “For if you were to say—can you really think that acquisition comes under agency, while a minor is not subject to agency?” Then you should have rejected the Gemara’s suggestion that this is based on the law of acquisition. Now what are you telling me? That if acquisition is not based on agency, then acquisition is not based on agency and therefore it also works for minors. And that remains true in the conclusion, says the Ritva. Why? Because if you tell me that this does not remain true in the conclusion, then what are you really saying? That acquisition does not work for minors—just as agency does not work for minors, acquisition also does not work for minors. Then the Gemara should have rejected the suggestion on that basis. You’re telling me that what is written here is the law of acquisition? Nonsense. Acquisition also would not work for minors, since acquisition is based on agency. Necessarily, the Gemara understood that acquisition is not based on agency. Okay? Otherwise the Gemara should have rejected the suggestion that this verse speaks in terms of acquisition on someone’s behalf and said: impossible, because acquisition also doesn’t work for minors—what have you gained by telling me this is acquisition and not agency? The law of acquisition also doesn’t work for minors. But the Gemara doesn’t ask that. The Gemara asks that there is liability mixed with benefit; it does not ask how this can work for minors. So from the fact that the Gemara doesn’t ask that, we see that acquisition is not based on agency. Okay, and it works for minors. “Rather, certainly as we said.” “But in Tosafot they wrote that we rely on the conclusion, which is preferable.” What does that mean? He brings Tosafot. As I said, Tosafot in several places in the Talmud assumes that acquisition is indeed based on agency. And he senses that, on the face of it, Tosafot is difficult, right? Because from this Gemara itself he has now proved that acquisition is not based on agency, the proof being that it works even for minors; and Tosafot says that acquisition is based on agency, in which case apparently it shouldn’t work for minors—were it not for Rabbi Akiva Eiger—but it shouldn’t work for minors. So he says that apparently this is contradicted by our Gemara. So he says: “We rely on the conclusion, which is preferable.” Meaning what—what is there in the conclusion? Tosafot apparently understood that in the Gemara’s conclusion they retreated from the idea that acquisition is not based on agency. True, in the initial assumption that is what they thought, but that itself is what was newly clarified in the conclusion—that acquisition is indeed based on agency. Okay? And this answers the question I asked that you didn’t ask.
[Speaker D] So—
[Rabbi Michael Abraham] At that stage, it really didn’t think that. But after they answered that we are dealing with a guardian and that it is a liability mixed with a benefit, and so on, now we go back and say: fine, if so, then maybe acquisition really is based on agency. And then all that is written here in the verse is either acquisition or the law of a guardian, or the law of acquisition where liability and benefit are mixed. But the ordinary law of acquisition, which is based on agency, is learned from agency; it is not learned from this verse. Because acquisition is based on agency. So what does the Ritva himself say? You yourself just brought proof from the initial assumption—don’t you think the conclusion is preferable? I rely on the initial assumption, while Tosafot for some reason thinks the conclusion is preferable—not clear why. What do you mean, why? If this is the initial assumption and this is the conclusion, obviously the conclusion is preferable. What kind of argument is that from the Ritva? Clearly he read the conclusion differently. He understood that even in the conclusion, acquisition is not based on agency, as I said before. But he says: Tosafot too, in the initial assumption, agrees with me, because in the initial assumption it is clear that acquisition is not based on agency. But according to Tosafot, the conclusion changed, and the conclusion is preferable to the initial assumption. Therefore Tosafot, consistently with his own view, reads this correctly. So it is not that I prefer the initial assumption over the conclusion, says the Ritva. According to my view, the conclusion remains the same as the initial assumption. According to Tosafot, where there is a difference between the initial assumption and the conclusion, obviously he goes with the conclusion, since the conclusion is preferable to the initial assumption. Fine, this is not an argument against himself; it only explains Tosafot. Okay, so the Ritva basically understood that acquisition is not based on agency, against Tosafot, and that minors can acquire—that’s the practical difference, right? Acquisition is not based on agency, and therefore minors can acquire. On the face of it, he goes with understanding number two. “Acquisition is not based on agency” does not mean that this is implicit agency, that there is an implicit appointment. No—it is a different mechanism; there is full acquisition on someone’s behalf, a different mechanism in which the Torah appoints the agent—yes, the person who acquires on the other’s behalf. And where is that learned from? Apparently from this verse. This verse deals with liability and benefit and a guardian. Correct, so that is what I said earlier to Yosef: this verse teaches the law of acquisition on someone’s behalf; there are details—that liability mixed with benefit requires a guardian, whereas pure benefit allows anyone—but these are only details. Ultimately, this verse teaches the law of acquisition on someone’s behalf. That is apparently how the Ritva learns it. Okay. So according to Tosafot, let’s examine it. In the initial assumption, we said that acquisition is not based on agency, right? In the initial assumption.
[Speaker B] In the initial assumption everyone—
[Rabbi Michael Abraham] Agrees, because that’s apparently explicit in the Gemara.
[Speaker B] It’s clear to you that the Gemara brought a different verse—it brought the verse about inheriting the Land. How can that not teach the law of agency? I don’t understand.
[Rabbi Michael Abraham] The law of acquisition on someone’s behalf, not the law of agency.
[Speaker B] No—according to Tosafot, the law of acquisition is learned from agency. Right, good. So how can you say that acquisition is learned from agency if in the initial assumption we said it wasn’t? No, okay.
[Rabbi Michael Abraham] In the initial assumption we said that acquisition is not based on agency. Afterwards we say: no, that doesn’t have to be so; it may be that acquisition is based on agency. This verse deals with a guardian, and therefore acquisition is based on agency. Then I ask: where do we learn the law of acquisition from? From agency. The verse does not teach the law of acquisition; the verse teaches that even when there is liability mixed with benefit, this can be done—but only by a guardian; that is a special law. And the law of acquisition is learned from agency, because acquisition is based on agency. Fine, it’s not connected. So what remains in the end? The question was why this verse is not a source for the law of agency. And it is not a source for the law of agency because it teaches a different law—that of a guardian where there is liability mixed with benefit, and that’s all. The sources for the law of agency are divorce documents, divorce, and all the things we talked about earlier, contribution to the priest and the like. The source for the law of acquisition is learned from agency, because acquisition is based on agency, and that’s it. According to the Ritva, however, acquisition is not based on agency, so you need a verse—you can’t learn it from agency. Apparently the Ritva will understand that this very verse itself deals with the law of acquisition on someone’s behalf. Okay, and from it one learns the law of acquisition. There is liability and benefit here, and a guardian—that is a detail within the law of acquisition on someone’s behalf. Fine, but this verse deals with the law of acquisition. Now there is room to discuss whether acquisition works for a minor or not. According to Tosafot, who says that acquisition is based on agency, then in the Gemara’s conclusion acquisition does not work for a minor. One cannot acquire for minors according to Tosafot, just as one cannot have agency for minors, because acquisition is only learned from the law of agency. Whatever cannot be done through agency also cannot be done through acquisition on someone’s behalf. And in the verse about the division of the Land—how did it work there for minors? Because that is a guardian. A guardian can operate even where the benefit includes liability and can also operate on behalf of minors. He has two advantages over an ordinary person acquiring on another’s behalf. But an ordinary beneficiary-agent cannot acquire for minors and cannot acquire where the benefit is mixed with liability. That is Tosafot. One could have said that acquisition is based on agency and still works for minors, like Rabbi Akiva Eiger. If I understand that acquisition is based on agency, just without needing an appointment. But that is still a bit difficult, because even if I said that, I would still need a verse. Because if you say it is not an implicit appointment—if you say it is an implicit appointment, then there is no problem at all. If you say this is an implicit appointment, then it’s the same thing; there is simply an implicit appointment, so truly no verse is needed. And if you tell me—then apparently it should not work for minors. If you tell me that it does work for minors, then you are really saying that this is not an implicit appointment, because appointment by a minor is not relevant. So what is it? The Torah introduced this thing, that there is a different agency mechanism here. And therefore it can also work for minors, because here no appointment is needed. But then the question is: where did the Torah introduce that? According to Tosafot, the verse does not deal with the law of acquisition. So where did the Torah introduce it? We said that according to Tosafot, acquisition is based on agency, so acquisition is learned from agency. Right, there is no verse for it. But how do you learn acquisition based on agency if it is a different mechanism? If it is a mechanism that does not require appointment. If you tell me it is an implicit appointment, then I understand. There is a law of agency, and sometimes the appointment is made implicitly—no problem. But if you tell me no, it is not an implicit appointment, it is without appointment—it is agency without appointment. If it is agency without appointment, then fine, it’s another mechanism, all well and good—but you can’t learn it from agency. So if you can’t learn it from agency—sorry, it’s not another mechanism, it’s the same mechanism, just without appointment. But since it is without appointment, you can’t learn it from agency, even if acquisition is based on agency. How do you know you can dispense with appointment? In ordinary agency you can’t dispense with appointment. Fine, it sounds to me like—these are details within the ordinary law of agency.
[Speaker C] The appointment is simply something we don’t require within the law of agency. Okay, when the sender—when there is a situation of full benefit, you don’t need appointment.
[Rabbi Michael Abraham] No, but then—but then it would also work for a minor. Yes. But—
[Speaker C] If you say that acquisition, yes, then it would also work for a minor.
[Rabbi Michael Abraham] But if you say that acquisition is based on agency, then the claim is that it won’t work for a minor according to Tosafot. Acquisition won’t work for a minor. And that’s what the Ritva says. “But in Tosafot it is written that we rely on the conclusion, which is preferable,” meaning the Ritva says that according to Tosafot, acquisition won’t work for a minor in the conclusion. Now why won’t it work for a minor? After all, if there is no need for appointment, as Rabbi Akiva Eiger says, then I would say: since the appointment is implicit, it doesn’t work for a minor, because for a minor ordinary appointment does not work. And that is true even where the benefit is a pure benefit. Because otherwise the law of acquisition should have worked for a minor—not because no appointment is needed due to there being an implicit appointment, but because you don’t need appointment at all. And the Ran writes here as follows: “And if you should say that in any event our sugya is difficult, one can say that indeed according to what the Gemara initially thought, Rav proves from this verse that one may acquire for a person in his absence, and that one may acquire for a minor by Torah law and not by the law of agency. And for that reason we do not ask…” In other words, in the initial assumption the Gemara thought that acquisition is not based on agency, and therefore it also works for a minor, and they learn it from this verse of the princes. It is not based on agency, and it also works for a minor. “And for that reason we do not ask, ‘But a minor is not subject to acquisition,’” exactly what the Ritva said. Therefore the Gemara didn’t ask at that stage: but a minor is not subject to acquisition, so even by the law of acquisition this should not have worked for a minor. The Gemara doesn’t ask that—why? Because the law of acquisition does work for a minor. Okay? “And according to the plain meaning of Rav, certainly acquisition is by Torah law, and we have no proof with which to refute him by saying, ‘But a minor is not subject to acquisition.’” So you can’t challenge him by saying: but a minor is not subject to acquisition. How do you know that a minor is not subject to acquisition? A minor is not subject to agency, but acquisition is not based on agency. So how can you challenge it by saying that a minor is not subject to acquisition? All this is in the initial assumption. “But since we objected: can you really think so, seeing that this benefit is actually a liability, because there are some who would prefer this…” and after they objected to that initial assumption because here there is liability mixed with benefit, and we established it in accordance with Rav Hamnuna said in the name of Rav Giddel, I think, who said: from where do we know that for orphans who came to divide their father’s property… one should not derive from there that one may acquire in someone’s absence in something that is not his, and that one may acquire for a minor by Torah law. For there, it was already theirs, and the division was merely a clarification of the matter, and the religious court appoints a guardian for that purpose. But in general there is no acquisition for a minor by Torah law, and what one acquires for him is only by rabbinic law.” Here he explains exactly what I said in Tosafot, against the Ritva; he explains Tosafot’s position, which the Ritva only hinted at. Namely: in the initial assumption Tosafot agreed that acquisition is not based on agency, and therefore it works for a minor. But in the Gemara’s conclusion, once you tell me that the verse is talking about a guardian altogether, then acquisition in fact is based on agency. That is what Tosafot says. And if acquisition is based on agency, then just as agency does not work for a minor, acquisition also does not work for a minor—except rabbinically, such as where another mind conveys ownership or something like that, so it works only rabbinically, not by Torah law. In other words, he says explicitly what the Ritva only hinted at. Yes, Tosafot in Ketubot also says the same thing; not important, we won’t get into those details now. Rashba—look afterward in… or maybe I’ll read this one anyway. In the Rashba on our passage, he brought proof from contribution to the priest. “And I saw among our teachers, the authors of Tosafot, may their memory be blessed, who said in the name of Rashi, may his memory be blessed, that acquisition is by the law of agency.” We saw that Tosafot says this in several places. “And they brought proof from what is said in the first chapter of Bava Metzia: a courtyard is included under the law of one’s hand, and is no worse than agency. Regarding a gift, which is a benefit, one may acquire for a person in his absence.” And also from what is said in the chapter “There is no difference regarding one forbidden by vow”… Yes, you see? In Bava Metzia they say: “A courtyard is included under the law of one’s hand, and is no worse than agency.” And there this is not agency; it is really acquisition on someone’s behalf. The courtyard is not an agent. Yes, it is acquisition, so you see that acquisition is like agency; and that is how he understood it. “And also from what is said in the chapter ‘There is no difference regarding one forbidden by vow’: if one separates the priestly contribution from his own produce on behalf of his fellow’s produce, does he need consent or not?” Yes, I separate from my produce in order to fix my fellow’s heap. Do I need him to appoint me as an agent? We saw this when we spoke about agency in contribution to the priest. “Does he need consent or not? Is it because the commandment is his, and he wants to perform the commandment himself? Or perhaps the owner’s consent is unnecessary because it is a benefit to him, and one may acquire for a person in his absence.” “And regarding contribution to the priest, agency is explicitly written. And if it did not count as his agent, he could not separate the contribution, even though it is a benefit for him.” That is what I mentioned earlier. Says the Rashba: after all, in contribution to the priest you need an agent; the law of acquisition as some independent principle would not help. It would work only if you tell me that acquisition is based on agency. If you tell me acquisition is not based on agency—well, the Gemara says, “So shall you also set aside”—“also” includes your agents, right? So if acquisition is not based on agency, how could one separate the priestly contribution by the law of acquisition? Because it has to be an agent. Necessarily, acquisition is based on agency. Meaning, according to the Rashba, if someone holds that acquisition is not based on agency, then one cannot separate the priestly contribution by the law of acquisition. That is what I said earlier—that the practical difference is with a minor. After all, if appointment is possible with a minor, then a minor can appoint someone to separate the priestly contribution on his behalf. By the law of acquisition this won’t work, but by the law of agency it will work. Is agency in contribution to the priest classic agency? We saw—
[Speaker C] The Gemara in Nedarim.
[Rabbi Michael Abraham] I no longer even remember the conclusion, but here the Rashba explains Tosafot’s view. And I’m reading the passage where he explains Tosafot’s view. That is, Tosafot’s proof is apparently from that Gemara in Nedarim and from the Gemara in Bava Metzia.
[Speaker C] Okay? How can there be a case where there is agency but no acquisition on someone’s behalf?
[Rabbi Michael Abraham] I didn’t understand.
[Speaker C] In contribution to the priest, he says there is agency, and agency works, but acquisition doesn’t.
[Rabbi Michael Abraham] No. If acquisition were not based on agency, then it would be impossible to separate the priestly contribution by means of acquisition. That is Tosafot’s proof: acquisition must be based on agency, because in fact it is possible to separate the priestly contribution by the law of acquisition. The Gemara asks—what does it ask?
[Speaker C] Yes, the Gemara asks now in contribution to the priest, how does one who separates—
[Rabbi Michael Abraham] From his own produce on behalf of his fellow’s produce—does he need consent or not?
[Speaker C] Why wouldn’t he need it?
[Rabbi Michael Abraham] Exactly. They are examining that very question. Exactly. Fine? The question is whether it is a benefit or not. If it is on the side of benefit, then everything is fine. The Rashba asks: all right, let’s say it is even a benefit—so what? But if the law of acquisition is not based on agency, while in contribution to the priest you need agency, how would the law of acquisition help even if it is a benefit? So he says: Tosafot apparently proved from here that acquisition must be based on agency, because otherwise it would be impossible to separate the priestly contribution by means of acquisition. Yes, Tosafot there in Bava Metzia… in Nedarim also says the same thing: “Do we say that since it is a benefit, no consent is needed, because one may acquire for a person in his absence? And acquisition by way of agency indeed counts as agency.” “And when we say everywhere that acquisition is based on agency, from here we learned it.” Whenever I say that acquisition is based on agency, how do I know it, says Tosafot? From that Gemara in Nedarim 36, where we see that acquisition works for separating the priestly contribution. If acquisition were not based on agency, it would not work. Okay, so that is basically what he himself writes. Now look at the Ketzot, section 105. “And this is the language of Rashi in the first chapter of Bava Metzia: ‘This is one who seizes on behalf of a creditor in a place where others are disadvantaged, like a person who comes on his own and seizes his fellow’s money because of a debt that another owes him, trying to act first before another creditor seizes it. In that case, this person’s seizure disadvantages others and is not effective, as is said in Ketubot—that he has no power to jump in and disadvantage these people, since the creditor did not appoint him as an agent to seize,’ until here.” We already saw this dispute between Rashi and Tosafot: what happens when one seizes for a creditor in a way that disadvantages others—then it is not effective. Rashi says: all of this is only if he did not appoint him as an agent, but if I appointed him as an agent, then he can seize on my behalf even though it disadvantages others. Whenever a person seizing for a creditor cannot disadvantage others, that is only when he acts under the law of acquisition on someone’s behalf; but if he acts under the law of agency, then he can. Tosafot disagrees, but Tosafot already raised difficulties from the chapter “One who writes” in Ketubot regarding the case of Yemer bar Chashu—it doesn’t matter; there are difficulties with that. “And see Tosafot,” and this is its language: “One who seizes on behalf of a creditor—even if he made him an agent…” not like Rashi’s interpretation in the first chapter of Bava Metzia, where he explained that if he appointed him as an agent, everyone agrees the seizure is effective. “For there is no distinction, because even if he did not appoint him as an agent, he is his agent, since acquisition is based on agency, as is proved in the first chapter of Bava Metzia or in the chapter ‘There is no difference regarding one forbidden by vow.’” Those are the proofs we saw earlier. Fine? Tosafot says against Rashi: what difference is there between acquisition and agency? If seizing on behalf of a creditor through agency works, then acquisition should also work. What difference does it make whether he appointed him or not, since acquisition is based on agency? So says the Ketzot: apparently Rashi, who distinguishes and says that under acquisition it does not work, while under agency it does work—what would he answer to Tosafot’s question? He apparently understands that acquisition is not based on agency. The mechanism of acquisition was not said in a case where you disadvantage others; the mechanism of agency was. What is the reasoning behind this? Simple. We understand that if acquisition is not based on agency, then that means that acquisition is not agency by implicit appointment, because that would still be called acquisition based on agency, right? So what is it? If acquisition is not based on agency, that means that the Torah appointed him—or that appointment is unnecessary, it doesn’t matter—but the Torah authorizes you to act for someone else if this is a pure benefit for him. Now if it is a benefit to one person that imposes liability on another, does it make sense that the Torah would give you the authority to act for him against the other? Is the Torah playing favorites? No—from the Torah’s perspective everyone has equal rights. Why should the Torah appoint an agent that allows benefiting one person at the price of harming others? There is no logic to that. If you yourself appointed him, fine—you are looking out for your own interests, you appoint him as your agent and he acts for you. That would be the law of acquisition based on agency. Then Tosafot indeed says there is no difference between acquisition and agency: just as acquisition does not help, agency does not help either; there is no distinction. The Torah is not willing that there be an agent who benefits one person at the price of harming others. It did not create a law of agency here and consequently not a law of acquisition either. But Rashi, who distinguishes between acquisition and agency, says: the law of agency certainly works—“a person’s agent is like himself.” If I appointed him as my agent, it is as though I myself seized it. And I myself certainly can seize it, so my agent can also seize it. The law of acquisition is not based on agency according to Rashi; it is an appointment by the Torah—the Torah appoints. The Torah will not appoint someone to care for one person at the expense of others. What logic would there be in that? Why would it do that? The Torah wants to benefit them, so it says: okay, let him acquire on your behalf, why not? But if he acquires for you at the price of harming others, why would the Torah allow such a thing? If you appointed him, fine—then it is as though you yourself seized it. But that the Torah should act for you without your having done so—why? Why does the Torah love you more than the others? Okay.
[Speaker C] And if I say that acquisition is based on agency, then anywhere there is agency in the Torah, acquisition should also work?
[Rabbi Michael Abraham] Yes, apparently yes. And the reverse too: wherever agency doesn’t work, as with minors, acquisition also should not work. However, according to Tosafot’s own view, says the Ketzot in section 105—I’m reading here—“However, Tosafot follows its own position that acquisition is by the law of agency,” and thus they also wrote in the first chapter of Ketubot: “Acquisition is by the law of agency, and since it is a benefit, we are witnesses that he made him his agent.” And so too wrote the Rosh in the first chapter of Gittin. What is this “we are witnesses”? That’s implicit appointment. Right? “We are witnesses”—we know this is what he wants, so implicitly he appointed him. That is called acquisition based on agency. The fact that there can be an implicit appointment does not require a verse. Everywhere in Jewish law, if you perform an act and it is clearly implicit that you want it, then everything is fine—you want it. No problem so far. Okay? And Rashi apparently learns that acquisition is not based on agency, and therefore acquisition is not agency with an implicit appointment; rather, acquisition is an appointment by the Torah. And therefore, in acquisition the Torah does not appoint you to seize on behalf of one person at the expense of others. You yourself appoint him? Fine—then it is as though you yourself seized it. That is exactly the dispute. Rather, the Ketzot says—look at Rashi on our sugya—indeed it sounds as though Rashi learned the sugya this way. “Rather, in accordance with Rava,” meaning: “it is not merely a simple benefit in his absence that can be learned from here for adults, but it also teaches that for minors too, even a liability that comes as a result of a benefit, the religious court is permitted to do for them, in order to benefit them with an inheritance through it. And even though at times this division is to their disadvantage, since there are some who would not want the portion that fell to them, nevertheless they cannot retract.” What does that mean? It means that the law of acquisition—this is Rashi on the face of it—works in a place where there is also some mixture of liability with the benefit; for that you need a guardian. So it sounds as though it works under the law of acquisition, not some third law. Rashi understood that even in the Gemara’s conclusion, the verse deals with the law of acquisition. Why? Because according to Rashi you need a verse for the law of acquisition. You can’t learn acquisition from agency, because acquisition is not based on agency. We saw that Tosafot learns the sugya differently. According to Tosafot, in the end the verse is not talking about acquisition at all; acquisition is learned from agency, while the verse speaks about a guardian, a different law. The Ran explained it that way; the Ritva noted this at the end in explaining Tosafot’s view. Fine? But the Ketzot raises a difficulty on that there. All right, maybe we’ll stop here, because this will already require a bit more time from us. We’ll stop here and continue next time.