Kiddushin, Chapter 2, 5783, Lesson 23

Table of Contents

• Concluding the law of zakhin and the dispute among the medieval authorities (Rishonim)
• A guardian, an obligation mixed with a benefit, and the definition of a “benefit”
• Seizing on behalf of a creditor: the dispute between Rashi and Tosafot and the connection to Ketzot
• Implicit appointment, legal fiction, and the difficulty of creating an institution without an act
• Despair without awareness, separating terumah without awareness, and Ketzot’s question on Tosafot and the Rosh
• Maimonides on terumot and his omission of “he made him an agent”
• Answers to the question: zakhin from a person and zakhin for a person, and real-time indication of intent
• Ketzot: a verse as the source, acquisition by the rule of hand versus acquisition by the rule of agency, and a practical difference regarding a gentile
• Additional formulations: Birkat Shmuel and Rabbi Chaim on the “agency” of zakhin
• Conclusion and planning what comes next

Summary

General Overview

The lecture concludes the topic of zakhin and sets out the dispute among the medieval authorities (Rishonim) over whether zakhin works by the rule of agency or as an independent mechanism. Out of that grows a dispute over whether a special verse is needed as the source for this law, and how to read the Talmud’s conclusion regarding the verse about the division of the Land. Tosafot explains that zakhin is agency through an implicit appointment, so no verse is needed, and the verse about dividing the Land is ultimately talking not about zakhin but about a guardian. The Ritva, by contrast, explains that zakhin is not based on agency, and therefore a verse is required. In a case of an obligation mixed with a benefit, the law operates only through a guardian. Ketzot connects this topic to the dispute between Rashi and Tosafot in the law of one who seizes on behalf of a creditor in a case where others are disadvantaged, and raises a difficulty from the topic of despair without awareness and from separating terumah without awareness against the understanding that zakhin is created by anan sahadei as an implicit appointment. From there he suggests a further distinction: even according to the view that zakhin works “by the rule of agency,” that does not mean because of anan sahadei, but because of a scriptural decree. A major practical difference is discussed regarding whether acquisition can be done through a gentile or a minor, and at the end additional formulations are brought in a Brisker style distinguishing between different “sections” or categories of agency.

Concluding the Law of Zakhin and the Dispute Among the Medieval Authorities (Rishonim)

The law of zakhin is the subject of a dispute among the medieval authorities (Rishonim) over whether it is based on agency or not. The straightforward reading of the Talmudic passage indicates that these are two separate laws, because the Talmud distinguishes between them both in the derivation of agency and in the need for a verse for the law of zakhin. Tosafot explains that in the conclusion, the verse about the division of the Land is not dealing with zakhin but with a guardian, because zakhin is learned from agency, as agency through an implicit appointment, and therefore does not need a verse. The Ritva maintains that zakhin is not based on agency, and therefore the verse about the division of the Land remains the source for the law of zakhin. Accordingly, the question about “an obligation mixed with a benefit” is answered by saying that in such a case the law works there only through a guardian, because only a guardian is authorized to decide that an obligation which includes some benefit is, all things considered, entirely a benefit for the orphans.

A Guardian, an Obligation Mixed with a Benefit, and the Definition of a “Benefit”

When there is an obligation mixed with a benefit, permission to act under the rule of zakhin is given only to a guardian, because that kind of judgment is not trivial and is not entrusted to just anyone. A guardian receives a Torah mandate to act on behalf of the orphans, and therefore he can carry out even something that has an aspect of obligation if, in the final analysis, it is beneficial. But when we are talking about a straightforward benefit, there is no need for a guardian, and the law operates even without an explicit appointment. However, when the benefit is made up of both obligation and benefit together, an ordinary person cannot simply “decide for me,” even if he is right.

Seizing on Behalf of a Creditor: the Dispute Between Rashi and Tosafot and the Connection to Ketzot

Ketzot ties the dispute between Rashi and Tosafot in the law of one who seizes on behalf of a creditor in a case where others are disadvantaged to the question whether zakhin is based on agency or not. Rashi distinguishes between zakhin and agency: in acquisition without appointment, “one who seizes on behalf of a creditor where others are disadvantaged has not acquired,” but if the creditor appointed him as an agent, he can seize even where others are disadvantaged, because a person’s agent is like the person himself. Tosafot disagrees and holds that even in ordinary agency the seizure is ineffective where others are disadvantaged. From that, a line of reasoning is built that Tosafot sees the very institution of agency as a Torah novelty, and therefore where it harms others the Torah did not grant this privilege. According to Rashi, by contrast, agency is understood as a natural legal concept to which the Torah merely gives formal recognition, unlike zakhin, which is the real novelty.

Implicit Appointment, Legal Fiction, and the Difficulty of Creating an Institution Without an Act

It is suggested that Tosafot and the Rosh understand zakhin as zakhiyah midin shelichut, because anan sahadei that the person would have appointed an agent—that is, an implicit appointment. But it is argued that this is not at all obvious, because Jewish law can interpret implicitly the character of an act that was actually done explicitly, but it does not necessarily “create an act out of nothing” just because that would be desirable. An example is brought from Kiddushin 49 about a sale of property ada’ta lemisak le’Eretz Yisrael, to show how an implicit element can interpret intention within an existing act, as opposed to trying to create the very appointment itself when no appointment was made. In that context, “legal fiction” is described as turning the desired into the actual, with examples from Roman law and with an illustration from Jewish law in the rule of shelikhutayhu of judges in times when there are no ordained judges.

Despair Without Awareness, Separating Terumah Without Awareness, and Ketzot’s Question on Tosafot and the Rosh

The Talmudic passage about despair without awareness is presented as a test case for whether something implicit can create a legal status. Rava treats despair without awareness as despair because “since when he finds out he will despair,” while Abaye rejects that because “right now, at any rate, he does not know,” and the Jewish law follows Abaye. Ketzot raises a difficulty from the Talmudic passage that brings proof from separating terumah without awareness, where Rava answers according to Abaye that the case must be set up as one where “he made him an agent.” From there he concludes that agency without awareness is not agency, even if “when he finds out, he will be pleased with it.” Ketzot uses this to reject the explanation that zakhin is an implicit appointment generated by anan sahadei, and establishes that according to Abaye there is no creation of agency without explicit appointment. If so, one cannot say that zakhin is learned from agency without a special verse.

Maimonides on Terumot and His Omission of “He Made Him an Agent”

It is noted that Maimonides, in the Laws of Terumot chapter 4, law 3, brings the rule of “go to the better produce” without mentioning the condition “he made him an agent.” It is suggested that if his wording is precise, that would imply that in his view terumah separated without permission can take effect even without an explicit appointment as an agent. That raises the possibility that Maimonides understood the Talmudic passage in a way that weakens Ketzot’s difficulty, or that he held that Rava’s answer according to Abaye is not accepted as Jewish law, or that there is some resolution between the passages that justifies the possibility of implicit appointment in certain contexts.

Answers to the Question: Zakhin from a Person and Zakhin for a Person, and Real-Time Indication of Intent

One distinction suggested is that terumah is zakhin me’adam and not zakhin le’adam, because one separates from the homeowner’s property. Therefore it may be that without an explicit appointment there is no zakhin here, even if it is beneficial. It is also noted that Ketzot himself, in section 233, argues that there is no acquisition from a person, only acquisition for a person. Alongside that, another distinction is suggested: “go to the better produce” depends on a later revelation of intent, something that is subject to change or reversal, and therefore does not create a basis for an implicit appointment retroactively. But in a case of acquisition that is an absolute benefit for any person, there is no need for later revelation of intent, because the assumption is already clear in real time. It is said that these distinctions could preserve the possibility of defending Tosafot and the Rosh, even if Ketzot’s question is strong on the simple reading of the Talmud.

Ketzot: a Verse as the Source, Acquisition by the Rule of Hand versus Acquisition by the Rule of Agency, and a Practical Difference Regarding a Gentile

Ketzot concludes that there are medieval authorities (Rishonim) who say that acquisition is “by the rule of hand” and not “by the rule of agency.” And even according to the one who says that acquisition is by the rule of agency, that is not because of anan sahadei but because of a scriptural decree learned from the verse that a man can acquire. He defines the verse as introducing the very possibility that acquisition can be effective even without knowingly appointing an agent. From this a distinction is built: if it works by the rule of hand, then perhaps the act of acquisition can also be done by someone who is not capable of agency. The main practical difference for him is a gentile: in his view, a gentile cannot acquire on behalf of someone else if acquisition works by the rule of agency, but perhaps he can if acquisition works by the rule of hand, like a courtyard.

Additional Formulations: Birkat Shmuel and Rabbi Chaim on the “Agency” of Zakhin

A distinction is brought from Birkat Shmuel: in acquisition, the matter is considered as though done with the owner’s intent, but not “by the owner,” and therefore in betrothal, where an act of the husband himself is required, the rule of zakhin does not help—only actual agency does. It is also brought in the name of Rabbi Chaim that even according to the view that acquisition is not based on agency, it still involves a law of agency. The question is just whether the verse is merely a clarification that inserts acquisition into the regular section of agency of “you, just as you,” or whether the Torah introduced an additional, separate “law of agency” for acquisition that is not subject to the exclusions of the ordinary section. A practical difference under this formulation is a minor: if acquisition is included in the ordinary section of agency, then a minor, who is excluded from agency, will also be excluded from acquisition; but if acquisition is a special kind of agency, then perhaps a minor can have this special law of agency for acquisition.

Conclusion and Planning What Comes Next

The lecture stops after “putting the players on the board” and laying out the possible mechanisms for understanding zakhin and the basic practical differences that follow from them. It is said that the next meetings will be devoted at least twice to the topic of “agency for a transgression,” so as not to miss it in the course of studying the second chapter of Kiddushin.

[Rabbi Michael Abraham] Okay, today I want to finish the topic of acquisition on another’s behalf, and then we’ll still have at least two more sessions to touch on agency for a transgression; I don’t want us to lose that topic entirely. So let’s start with the law of acquisition on another’s behalf. We saw in the previous class a dispute among the medieval authorities (Rishonim) whether acquisition on another’s behalf operates by virtue of agency or not by virtue of agency. On the simple reading of our Talmudic passage, it looked like it is not a law of agency, because the Talmud wants to derive the law of agency from there, and then it says, no, no, no, that case is dealing with acquisition on another’s behalf. Which implies, first, that if it is dealing with acquisition on another’s behalf, then you can’t derive the law of agency from it. That’s one point. Second, it implies that if a verse is needed to teach the law of acquisition on another’s behalf, then apparently you also can’t derive acquisition on another’s behalf from agency. So it comes out that neither can be derived from the other, and therefore on the simple level it seems these are two different laws.

Now according to Tosafot, who says that acquisition on another’s behalf is in fact by virtue of agency, how does he explain the passage? So we saw that apparently he understands that in the Talmud’s conclusion, the Talmud backed away from that. Meaning: true, in the initial assumption that was the understanding, but in the conclusion the Talmud backed away from it, and then it turns out that in the conclusion the verse about dividing the Land is dealing with a guardian, not with the law of acquisition on another’s behalf at all. And why? Because no verse is needed for acquisition on another’s behalf, since acquisition on another’s behalf by virtue of agency can be learned from agency. The verse is about a guardian, and therefore there’s no question why agency wasn’t learned from there. But then why wasn’t acquisition on another’s behalf learned from there either? Acquisition on another’s behalf was learned from the law of agency, which is agency with an implicit appointment or something like that. In any case, that’s the view of Tosafot.

By contrast, the Ritva, who holds that acquisition on another’s behalf is not by virtue of agency — there are other medieval authorities (Rishonim) on both sides, but those are the headings for now — so according to the Ritva, who says that acquisition on another’s behalf is not by virtue of agency, it seems that it has to be learned from somewhere. If it’s not by virtue of agency, then the fact that I have sources for the law of agency doesn’t mean that I know the law of acquisition on another’s behalf. You need a source for the law of acquisition on another’s behalf. Where does that law come from? Apparently he understands that even in the conclusion of the passage, the verse about dividing the Land deals with the law of acquisition on another’s behalf. How can that be? After all, it involves an obligation mixed with a benefit, as the Talmud asks there. So what we said there is that when the obligation is mixed with a benefit, the law of acquisition on another’s behalf exists only for a guardian. And why? Because a guardian can decide that an obligation mixed with a benefit is, on balance, also a benefit. But since that is not a trivial decision, it is entrusted only to a guardian. Still, there’s no special law of guardianship here; this is the ordinary law of acquisition on another’s behalf. The question is what counts as a benefit. And that depends on who is acting. If it’s just some ordinary person, you can’t make decisions for me when the decisions are complicated, even if you’re right. Meaning, even if in the end, in the bottom line, I prefer the benefit that comes along with the obligation, still you can’t make that decision for me, because who says you can?

By contrast, if it’s a guardian, the Torah itself gave him the mandate to make decisions on behalf of the orphans. He didn’t just appoint himself; that’s why he was appointed as guardian. Therefore there we allow him to make even decisions that are obligations containing a benefit. And still, this functions under the law of acquisition on another’s behalf. Why? Because in the end the claim is that an obligation containing a benefit is, in the bottom line, a benefit. So it works under the law of acquisition on another’s behalf. When? When an obligation is mixed with a benefit, that is only for a guardian. If it’s simply a benefit, then fine, you don’t need a guardian. If it’s an obligation mixed with a benefit, then it has to be only for a guardian under the law of acquisition on another’s behalf. If you appoint someone, then there’s no problem — an agent can always exist.

So the dispute between Tosafot and the Ritva is over how to understand the conclusion of the Talmud. But on the conceptual level there’s a more fundamental dispute here, of which the conclusion of the passage is only the expression. The question is whether the law of acquisition on another’s behalf needs a source. That’s really the question. If acquisition on another’s behalf is by virtue of agency, then it doesn’t need a source; you can learn it from agency. Why? Because there’s an implicit appointment here or something of that kind. If acquisition on another’s behalf is not by virtue of agency, then how do we know it? The Torah appoints someone to be my agent or to act on my behalf without my appointing him. How do I know that? Does it just come out of thin air? There has to be some verse. It cannot be that in the conclusion of the passage the verse is not talking about acquisition on another’s behalf, because then there would be no law of acquisition on another’s behalf. So how one learns the conclusion of the passage actually follows from the question whether a verse is needed. The question whether a verse is needed follows from the question whether acquisition on another’s behalf is by virtue of agency or not by virtue of agency.

Now we saw that in Ketzot, section 105, he links this to the dispute between Rashi and Tosafot regarding seizing property for a creditor. I’ll just remind you: Rashi and Tosafot disagree about seizing property for a creditor. What happens if, say, Reuven owes money to Shimon, Levi, and Yehuda, okay? Now he has enough money to repay only one of them. Each one of them can go and seize his money from Reuven. Even though after he seizes his money nothing will remain for the others, still that’s his right and he can seize it, since the money is owed to him. If someone else comes to seize on their behalf — Yissachar, right? — comes to seize on behalf of one of them, he can’t. Why not? Because one who seizes property for a creditor in a way that harms others does not acquire it. If one of the creditors wants to seize for someone else, that does work: since he can acquire for himself, he can also acquire for his fellow. But that’s not so important for our purposes. We’re talking about someone else, when Yissachar comes now to seize the money from Reuven. He can’t, because one who seizes property for a creditor in a way that harms others does not acquire it.

Rashi says that all this is only if he wasn’t appointed as an agent. But if he was appointed as an agent, then he can seize also for others, even in a way that harms others. So if Shimon appoints Yissachar as his agent, Yissachar can seize for Shimon. Yissachar can seize for Shimon even though it comes at the expense of Levi and Yehuda. Only under the law of acquisition on another’s behalf do we say that one who seizes property for a creditor in a way that harms others does not acquire it. But if he appointed him as an agent, then yes. Tosafot, by contrast, disagrees with him — he brought proofs, not important here, but he disagrees with Rashi — and he holds that even agency doesn’t help. The concept of agency hasn’t changed there.

What is the idea behind this? I’m abbreviating the sugya here. What is the underlying idea? Rashi’s view sounds very clear. Meaning, if I appoint an agent, then the agent can do what I myself can do. If I could seize for myself, why shouldn’t my agent be able to seize for me? A person’s agent is like himself. So then why doesn’t it work in acquisition on another’s behalf? Because in acquisition on another’s behalf the whole idea is that I didn’t appoint him. Who appointed him? The Torah. So if the Torah appointed him, then why should the Torah appoint someone for the benefit of Shimon when it harms Levi and Yehuda? The Torah does not prefer Shimon over Levi and Yehuda. There’s no reason for the Torah to care specifically for one person at the expense of others. Someone who wants to look out for his own interests lawfully — fine. But the Torah, on its own initiative, does not go and look after one person’s interests at the expense of others. So Rashi’s reasoning is very clear. Therefore, under the law of acquisition on another’s behalf, one who seizes property for a creditor in a way that harms others does not acquire it.

What is Rashi assuming? That acquisition on another’s behalf is not by virtue of agency. Right? Because basically Rashi is saying: if acquisition on another’s behalf were by virtue of agency, then what would that mean? It would mean that acquisition on another’s behalf is really agency without formal appointment. Why? Because in any case I would want to appoint him — it’s a benefit for me. So since that’s the case, he is essentially appointed implicitly even if I didn’t appoint him. So if that were the situation, then why couldn’t someone else acquire on my behalf? That’s not an appointment by the Torah; that’s my appointment. It’s just that, true, I can also do things implicitly. If it’s clear that that’s what I want, it’s as if I actually did it. Okay? There’s nothing here beyond the law of agency. So if agency would help, then acquisition on another’s behalf would also help.

Therefore it’s clear that if Rashi distinguishes between acquisition on another’s behalf and agency, Rashi apparently holds that acquisition on another’s behalf is not agency with an implicit appointment, but rather acquisition on another’s behalf is a different mechanism — an appointment by the Torah. Now once the Torah appoints him, there’s room to discuss whether now he is a regular agent, whether now this is a regular mechanism of agency. But we haven’t talked about that yet. So for now we’re only talking about the question whether, when I’ve been saying up to now “whether acquisition on another’s behalf is by virtue of agency or not by virtue of agency,” I was speaking only about the question whether acquisition on another’s behalf is agency with an implicit appointment. That is what is called acquisition on another’s behalf by virtue of agency. It’s agency in every respect; the appointment simply can be implicit, like many other things. Or else acquisition on another’s behalf is an appointment by the Torah. Okay? That’s the question of whether acquisition on another’s behalf is by virtue of agency or not.

But after there has already been an appointment by the Torah, then the one conferring the acquisition is the agent of the beneficiary. The only novelty is that you can create an agent without the principal appointing him. That’s all. So when people talk about acquisition on another’s behalf by virtue of agency or not by virtue of agency, they’re not talking about the mechanism of how the one conferring the acquisition acts for the beneficiary. He acts as his agent in any case. The whole question is whether this mechanism was created in the ordinary way in which agency is created — through appointment, albeit implicit — or whether it was created in some other way: the Torah appoints him.

Because one could have said that acquisition on another’s behalf is not by virtue of agency not because the manner of appointment is different, but because the beneficiary — sorry, the one conferring the acquisition — is not the beneficiary’s agent at all, even after the Torah said so. This is not a mechanism of agency; it’s some other mechanism. I don’t know what. For example, I’ll maybe give a concrete illustration so this is more tangible: maybe he doesn’t operate by the power of the principal at all. An agent acts by the power of the principal — an extension of his body, we spoke a bit about that, an extended hand — that’s clear. But he acts by the principal’s power. By contrast, in acquisition, not only is the appointment an appointment by the Torah; since the Torah is the one who appoints, then even after the appointment, the reason his act helps me is not because it is as though I acted. It’s not that he acts through my power. No — he acts through a power the Torah gave him, only for some reason the Torah innovated that this helps me.

If you understand it that way, then that means acquisition on another’s behalf is not by virtue of agency. Not merely a difference in how the agent is created, but also a difference in the question of what is created. Is an agent created here, or is something else created? Okay? Because up to now I assumed that “by virtue of agency / not by virtue of agency” concerned only the question of how the appointment happened. In the end, he is an agent. The whole question is how the appointment happened. “Acquisition on another’s behalf by virtue of agency” means there was an implicit appointment. In effect I appointed him — or included him explicitly within the implicit. And “acquisition on another’s behalf not by virtue of agency” means the Torah appointed him. But after the Torah appointed him, he is basically my agent. Okay?

So right now, if I assume that, then seemingly the dispute between Rashi and Tosafot is exactly this question. Since if acquisition on another’s behalf is by virtue of agency — meaning the way I’m framing it right now, that means an agent with an implicit appointment — then if it helps in acquisition, it ought to help in agency too. Right? Therefore if Rashi distinguishes between acquisition on another’s behalf and agency, clearly Rashi understands that acquisition on another’s behalf is not by virtue of agency in terms of how the agency comes into being. I’m not speaking at the moment about the nature of the agency itself. By contrast, Tosafot, who says that one who seizes property for a creditor in a way that harms others is ineffective both in acquisition on another’s behalf and in agency, Tosafot isn’t willing to distinguish between the two. Why? Because Tosafot apparently understands that acquisition on another’s behalf is agency with an implicit appointment. So if it worked in acquisition, it would have to work in agency as well. Rather, we see that it doesn’t work in either one.

Now you might ask: why indeed doesn’t it? Rashi’s reasoning is good reasoning. After all, there are two issues, two disputes between Tosafot and Rashi. First, on the question whether acquisition on another’s behalf resembles agency. Rashi says no, and Tosafot says yes. Second, what is the law regarding agency itself? Tosafot says that with agency itself it doesn’t help, whereas Rashi says that with agency itself it does help. That’s another dispute. Now I explained their dispute over whether acquisition on another’s behalf is by virtue of agency or not by virtue of agency. That explains the question whether acquisition on another’s behalf resembles agency or not. But beyond that, Tosafot could have said: acquisition on another’s behalf resembles agency, and therefore just as agency helps to seize in a case that harms others, acquisition on another’s behalf should also help. Tosafot does not say that. Tosafot says: acquisition on another’s behalf resembles agency, and therefore neither works. Not that both work. That too requires explanation. There are two things distinguishing Rashi from Tosafot. Why is that so, conceptually?

The answer is that clearly an agent can do what I do, but all that is only by virtue of the fact that the Torah innovated the concept of agency. Right? We learn this from “and he shall send” and “he sent” and all the sources we’ve seen until now. The Torah is what made it possible for an agent to act on behalf of the principal. Now if indeed you are seizing in a way that harms others, that same reasoning Rashi gives regarding acquisition on another’s behalf, Tosafot will say also regarding agency. After all, the Torah does not want to give you preferential treatment at the expense of others. If the Torah is what gave you the privilege of acting through an agent, then in a case where it harms others, it did not give you that privilege. The same reasoning that Rashi says about acquisition on another’s behalf, Tosafot says about agency. It’s the same thing. Since Tosafot understands that the very concept of agency is also an innovation.

Why doesn’t Rashi accept that? Why does Rashi think that the Torah would not appoint an agent for me at the expense of others, but if I appoint one then the Torah is willing to recognize it? Possibly Rashi really understands that the concept of “a person’s agent is like himself” is a concept that has natural logic, beyond the scriptural sources. Therefore it is not a Torah innovation. It’s obvious, it’s logical: if you appoint an agent, just as you could act, so can he act. The Torah gives this its stamp of approval, but it is not only by force of the Torah. The fact that all legal systems in the world recognize the concept of agency means that this is not some strange novelty. Where you appoint an agent, just as you could act, so can he act. The Torah merely gives approval to something logical and natural. It’s not some innovation of the Torah, and then I say: no, it didn’t innovate this where it harms others, because it doesn’t want to favor one person over others. This is something simple. It would exist in any case. The Torah merely affirms it.

In the case of acquisition on another’s behalf, Rashi says: no, that is a Torah innovation. Other legal systems won’t say that someone can acquire on behalf of someone else when that other person never appointed him at all. Certainly not where it harms others. Okay? So that is apparently the dispute between Rashi and Tosafot, and that is what the Ketzot says, as we saw at the end of the previous session. And indeed Tosafot in Ketubot and elsewhere says: acquisition is by virtue of agency, because since it is a benefit for him, we are as witnesses that he made him an agent. And the Rosh says the same in Gittin. The Ketzot brings this. Okay? What does “we are as witnesses” mean? “We are as witnesses” means an implicit appointment. That is, we are like witnesses that in effect he wants to appoint him. If I were to ask him, clearly he would appoint him. So from my perspective it is as if he appointed him. Okay?

I also remarked on this in the previous class that it’s not quite as trivial as I’ve presented it until now. As if, if acquisition on another’s behalf were really implicit agency, then I’d say: yes, so obviously if agency works in a given setting, then acquisition on another’s behalf works too. What difference does it make whether I appointed him explicitly or implicitly? Jewish law recognizes acts done implicitly. But it’s not so simple. Why? Because there are places — we may see this in a moment — where if I need to act, you acted, and now I infer your intent, then indeed even if you didn’t say it explicitly I’m willing to accept your presumed intent. Like the Talmud in Kiddushin 49: someone who sells all his property with the intention of moving to the Land of Israel. He sells his property in Babylonia because he wants to go up to the Land. And at some stage something goes wrong — the ship sank, whatever happened — and he stayed behind. He didn’t say that he was selling only on condition of going to the Land of Israel, but it was clear to everyone; everyone understood that he was going to the Land of Israel. So Tosafot says that even though there was no doubled condition and the formal laws of conditions were not fulfilled, there is an implicit condition there — things in his heart and in the heart of every person. There, for example, we see how an act works when it is done implicitly and not explicitly.

But notice: there we are talking about a case where I sold the property. It’s just that we infer implicitly that I intended this sale in a certain way, only if I go up to the Land of Israel or if I don’t go up. But it’s not that I now say: if he implicitly intended to sell, then he presumably sold. The basic act you cannot do implicitly. Meaning, if you want to sell, then sell. The fact that you want to sell doesn’t make you a seller. I want to betroth a woman — does she become my wife now without my putting a ring on her hand? Acts that must be done cannot be done implicitly. If you did an act, then I can perhaps analyze implicitly that you intended to qualify it, that you intended to do it in this way or that way, even if you didn’t state it — things in his heart and in the heart of every person — probably that’s what you intended. But we do not create an act out of nothing just because the person would want it to happen. Okay? For example, we see this in unconscious despair, and we’ll get to that in a moment.

So therefore, even if I say that acquisition on another’s behalf is an implicit appointment, it’s not nearly as simple as I presented it up to now, that if agency works then acquisition on another’s behalf works too. It’s not so clear, because in the situation where I want to make you my agent or enable you to seize for me, that means I want to create an entire act implicitly. If I had appointed you as an agent and I were inferring implicitly that the appointment was only on that basis and not so that you would do this — “I sent you to fix, not to damage,” for example. An agent goes and does an act that in the end harms the principal. Is it valid? The Talmud says no. Why? Because I did not intend to appoint you as an agent so that you would cause me damage; I intended to appoint you as an agent to carry out the mission I asked of you. I didn’t say: I appointed him to do the act, whatever he did he did in my name. No — implicitly it’s obvious, anyone who appoints an agent does not intend to appoint the agent in order to harm him, right?

Now here notice what sort of case this is. I appointed the agent. The appointment was made explicitly, not implicitly. What I infer implicitly is that I appointed him conditionally — on condition that he not cause damage. To cause damage I did not appoint him. That’s an assumption or an implicit appointment — we’d need to discuss whether it’s a conditional appointment or an inferential appointment — but it doesn’t matter. I qualified the appointment, and that qualification need not be explicit. Why? Because I performed the basic act. The whole question is only what character I intended to give to that act, and that depends on the estimation of my intent. But to say that I appoint you as my agent when I never appointed you at all, because I would want to appoint you — how did the agency come into existence if I never performed the act that creates it? That is very far from trivial. The fact that it is obvious that I want it — very nice. But the fact that I really want it doesn’t mean it actually happened. There’s a difference between the desired and the actual.

I once thought there was such a thing as what’s called a legal fiction. Here’s an example: in Roman law, one of the earliest legal fictions. In Roman law it was accepted that someone who died outside the boundaries of Roman rule, his property did not pass by inheritance to his family. That was the law. Okay? Now there were soldiers who fell captive, and apparently they didn’t observe all the UN prisoner-of-war conventions there, and so the soldiers died in captivity. Since they died in enemy captivity, that wasn’t in the territory of Roman sovereignty. And then it came out that a soldier who gave his life for the empire would cause his family to lose out — they would not inherit his property. So what did they do there? I don’t know why they didn’t just amend the law and be done with it, but what they did was decide that his actual death occurred at the moment he fell captive. The moment he fell captive, he is considered dead. Again, if he returned from captivity, then no. If he returned from captivity, he comes back to his property and everything is fine. But if he did not return from captivity, then he did not die in captivity; he died at the moment of being captured. A fiction. Right? Why? Because otherwise a problem is created.

A fiction means basically that I turn the desired into the actual. I would want this to count as a fall — okay, in actuality he didn’t really fall in Roman territory. But since that’s what is desired, then as far as I’m concerned that’s also what actually happened. So that’s what happened. Okay? Many fictions are like that. “They act as the agents of…” There is such a thing in Jewish law. Right? When there are no ordained judges, then you can’t judge, because judges need ordination. So what do they do in Babylonia where there are no ordained judges? What do they do nowadays when there are no ordained judges? So the Talmud says that the judges act as the agents of the ordained judges in the Land of Israel. The Talmud is speaking about Babylonia at that time; extending it to our time is an additional extension layered on top of that, and of course it happened after the Talmud, by Tosafot and other medieval authorities (Rishonim). But the Talmud says there is some law of “they act as the agents of…”

Now, what, was there some session of the ordained judges in the Land of Israel where they decided to appoint the sages of Babylonia to act in their name? I’m not aware of such a session; it’s not documented anywhere in the Talmud. Rather, the Talmud says that this is so. Why is it so? Because we would want it to be so. Because that’s how it makes sense for it to be. You can’t leave a large Jewish community in Babylonia without governmental authority, without a judiciary, without someone who can judge there. And therefore the claim is that if I would want this to happen, then as far as I’m concerned it happened. That’s a fiction. There was no session that appointed the judges in Babylonia as agents, but as far as I’m concerned there was. Because if there needs to be one, if it is desirable that there be one, then there will be one. They turn the desired into the actual. Fictions are always like that.

So a fiction is something that didn’t happen, but legally I would want it to happen, and the desired becomes the actual. That’s called a fiction. In that sense, the law of acquisition on another’s behalf is basically a kind of fiction. Because I say: after all, I would really want to appoint him. In fact I didn’t appoint him. Fine, but since I would want to, since it is desirable for me, we take the desired and make it actual. It’s a kind of fiction, as though there were an implicit appointment. Everything done implicitly is basically a fiction. Okay?

There may be a way to explain that in matters done implicitly it is not a fiction — for example, in the case of someone who sold his property with the intention of moving to the Land of Israel. There maybe one could see it not as a fiction. Rather, once I sold the property, true, I didn’t make the condition explicit, but it was clear that this was really what I wanted, this was really what I intended. Now if all that a condition is needed for is only to reveal what I want, then if what I want is clear, no condition is needed. So maybe you don’t have to call it an implicit condition. “Implicit condition” sounds like a fiction — as if, if you wanted it, it is as though you expressly conditioned it. Here I’m saying no: it’s not as though you expressly conditioned it; rather, there’s simply no need. The whole concept of a condition is just to reveal that this is my intent. And if it’s clear that this is my intent, then no condition is needed. It’s not an implicit condition; rather, no whole concept of stipulation is needed. So there it’s something a bit different.

Now I think that here it will be hard to say such a thing. Because with a condition, I sold the property when I went to the Land of Israel. So I carried out the sale with my own hands. It’s not that it was desirable for me to sell and therefore it is sold. I performed the sale. All the “implicit” here, all the interpretation, is interpretation of why I acted, what the character of what I did was. But here, in agency, in the law of acquisition on another’s behalf, in agency I didn’t appoint him at all. I did nothing. We are trying to create a legal institution or a legal status without there ever having been the act that created it. To create an agent without appointment. There’s no such thing — even if it’s obvious that that’s what I want. So what if it’s obvious that that’s what I want? I want it, but it doesn’t happen, as they say. Meaning, so what? It’s somewhat similar to “the Merciful One exempts under compulsion”: if someone did something under compulsion, it is considered as though he didn’t do it. But if someone didn’t do something, and he desperately wanted to do it, only he was compelled — fine, but he didn’t do it. What can you do? In practice he didn’t do it.

Here you really would want him to be your agent. Did you appoint him? If you didn’t appoint him, he’s not your agent. So it’s hard to say such a thing; it’s highly non-trivial. Even if I understand that there is such a mechanism that can work implicitly, when the implicit creates the legal status rather than characterizing it or qualifying it after it was created in the ordinary explicit way — here the very formation of the legal status is done implicitly, without your having done anything at all. It is not at all trivial that such a thing can work.

And here we arrive at the Ketzot’s question from unconscious despair. Unconscious despair is probably the source for these ideas, that there are things where perhaps this is the dispute — whether things can work implicitly without actually occurring. So: unconscious despair. Unconscious despair is basically a case where a person does not know that he has lost an object. If he did know, he would despair of recovering it, because it has no identifying mark, or there are many gentiles there, all sorts of reasons. If he knew, he would despair, but he doesn’t know. In practice he has not despaired. Now I found the object. Am I allowed to take it? That is the dispute between Abaye and Rava. If unconscious despair counts as despair, that means it is enough for me that if he knew, he would despair, in order to regard it as despair. And if unconscious despair does not count as despair, then no, that’s not enough. In practice he didn’t despair, so no.

On the simple level, that itself is the dispute. There will be implicit despair — that is exactly the language of implicitness we’re talking about. Meaning, if he knew there was someone here willing to seize on his behalf, he would very much want him to be his agent, right? But he doesn’t know. Someone happened to pass by there and says, okay, let me seize for my friend, for Shimon’s benefit. If I knew, I’d appoint him — fine, but I didn’t know and I didn’t appoint him. Does an appointment made without awareness count as an appointment? That is exactly the same dispute as between Abaye and Rava. The Talmud itself there, by the way, connects the dispute about despair over a lost object to separating terumah, and to other things as well. Meaning, there is a whole series of cases there, and it really seems that the thread running through all those cases is a fundamental dispute over whether acts can work implicitly.

Now acts can work implicitly in certain places, as I said earlier, like in Kiddushin 49, where someone sells with the intention of going up to the Land of Israel. There the implicit reasoning characterizes an act that was done explicitly. I sold the property; the question is how I sold it, with what intention, under what circumstances. That can be interpreted implicitly as well. But a place where I’m trying to create the act itself and I didn’t do it at all — it is done implicitly — that is the dispute between Abaye and Rava: can such a thing work or not? Is there such a thing as acquisition on another’s behalf also in unconscious despair, in separating terumah? They are all basically cases of acquisition on another’s behalf if you look at them that way.

And then the Ketzot says as follows: “Indeed, I have already had difficulty with this.” After he brought the dispute between Rashi and Tosafot about seizing for a creditor, after he brought the dispute between Rashi and Tosafot whether acquisition on another’s behalf is by virtue of agency or not, he says this: “Indeed, I have already had difficulty with this,” after bringing that according to Tosafot it is “we are as witnesses,” meaning basically an implicit appointment: “How can we say that acquisition is by virtue of agency, seeing that in the chapter ‘These Found Objects,’ page 22, in the dispute between Abaye and Rava concerning unconscious despair, Rava holds that since when he knows, he will despair, therefore even now it is despair.” Yes, Rava holds that unconscious despair counts as despair. “Abaye holds: right now, at least, he does not know.” In practice he didn’t know, so there was no despair. Implicit despair, says Abaye, does not help. Okay? And unconscious despair is one of the mnemonic cases where the law follows Abaye. So unconscious despair does not count as despair.

“For the Talmud says there later: Come and hear: How did they say that one who separates terumah without the owner’s knowledge, his terumah is valid terumah?” It says: one who separates terumah without the owner’s knowledge, his terumah is valid. How? What? What kind of case is that? “It is where he went down into his fellow’s field and gathered produce and separated terumah without permission. If there is concern for theft, his terumah is not terumah” — theft from the owner of the produce. “And if not, his terumah is terumah.” Meaning, he separated, say, more than the required minimum. The question is whether the owner maybe wanted to separate only the minimum, in which case you essentially stole from the owner part of what he would otherwise have kept. So if there is theft, if there is concern for theft, then his terumah is not terumah. And if not — if we understand that this really is what the owner wants — then his terumah is terumah.

The Talmud asks: “And how does he know whether there is concern for theft or not?” How do you know whether the owner agrees or not? And notice: this is a case where the owner did not tell him how much to separate, how to separate, from superior produce, not from superior produce, one-fortieth, one-fiftieth — there are several ways to separate terumah. So the Talmud says: “It is where the owner came and found him and said to him: ‘Go to the better produce.’ If better produce than these is found, his terumah is terumah; and if not, his terumah is not terumah.” Yes, he separated from high-quality produce, but in fact there was also average or poor produce there, and maybe the owner would have wanted the terumah to be taken from the poor produce and not the good produce, and then there is concern for theft.

How do you know if the owner agrees or not? If after you did everything, the owner comes to you and says, “Why didn’t you take from even better produce? I have better produce — much better.” Now again, even here it’s not clear what he means. Is he being sarcastic or serious? Is he sincere, or is it sarcasm? Okay? Meaning, is he trying to reinforce what you did — very good, you did well to separate from good produce; on the contrary, you should have taken even better — in which case clearly he agrees? Or is he saying, what are you doing, you’re giving away good produce at my expense — why did you take my very best? — as a rebuke. And then really not. So if better produce than these is found, his terumah is terumah. What do we do? We go to the field and see. If there really is better produce than these, then he’s probably not joking, then he probably meant it seriously. If there isn’t better produce, then he probably meant to mock him. Meaning, the assumption is apparently that he probably means it seriously; you need evidence that he didn’t. Because otherwise you could say: even if better produce isn’t found, even if better produce is found, maybe he still means sarcastically, why didn’t you take the very best? The Talmud assumes that the default is that if he said “Go to the better produce,” he meant it seriously; if you have evidence to the contrary — if there isn’t better produce — then you have evidence that he didn’t mean it. Fine. So that’s clear.

Now the Talmud says: this is difficult for Abaye. Why?

[Speaker C] At the time he separated it, after all…

[Rabbi Michael Abraham] Yes… “And if better produce than these is found, why is his terumah terumah? At the time he separated it, after all, he did not know.” The fact that afterwards he receives approval from the owner of the produce is very nice, but at the stage when he separated it, he still didn’t know that the owner agreed. So again, there is implicit consent here, right? And notice, we’re talking about a case where he wasn’t appointed as an agent, right? Essentially the whole question is whether he is an agent at all. This is exactly our case, right? Is an implicit appointment of an agent effective? And what does the Talmud say? That according to Abaye, an implicit appointment of an agent is ineffective. And the law follows Abaye. That’s the Ketzot’s difficulty.

Now look how he continues. He says: “And necessarily” — yes, Rava interpreted it according to Abaye as talking about a case where “he had made him an agent.” Right? Without making him an agent, according to Abaye it won’t help. If he made him an agent, then yes, it helps. Why? Why if he didn’t make him an agent does it not help? Meaning, Abaye doesn’t agree to implicit occurrences. So why if he made him an agent does it help? Suppose he made him an agent — but still, after all, he didn’t tell him whether to separate from superior produce or inferior produce. The fact that he agrees to separating from the superior produce became clear only afterward; at the moment he separated it, he still didn’t know that. So why does that help even according to Abaye? On the appointment itself — no. But if the appointment already existed, then the question whether from superior produce or not from superior produce can also be determined implicitly. Exactly the distinction I told you before.

This is a major principle in the sugya of unconscious despair; many people get tangled up in it. In my opinion, this is the whole idea of unconscious despair. People always raise questions from all sorts of places about unconscious despair; the questions never begin and never end. This is exactly the point. Unconscious despair is when you try to create a legal status or legal institution implicitly. According to the law, following Abaye, you can’t do such a thing. No. If you created it with your own hands, but we don’t know what you intended, the interpretation can also be done implicitly — and to that even Abaye agrees. Because that’s exactly what we see here in the Talmud. Meaning, if he didn’t appoint him as an agent, then what am I trying to say? That he was implicitly his agent? Abaye does not say that. But if I explicitly appointed him as an agent, and the only question is what I intended, or what he is supposed to separate, there even Abaye agrees that it can be determined implicitly. Since I created the legal status explicitly, not implicitly. The implicit interpretation is only an interpretation of what I intended when I did it. Like with the condition we saw in Kiddushin, right? If I intended it only with a view to going up to the Land of Israel, then fine. But nobody would say that I sold it because I wanted to sell; if I didn’t sell it, it isn’t sold. You have to sell. What I intended when I sold can also be interpreted implicitly, if I didn’t condition it explicitly but only implicitly. And there’s…

[Speaker C] I remember another explanation of this law of acquisition on another’s behalf, and according to that explanation the Ketzot’s difficulty is a bit hard. Okay.

[Speaker D] According to that explanation everyone…

[Speaker C] …agrees that there’s no such thing as making an agent implicitly, or, as you’re saying, creating a legal status — that has to be explicit. And when Rava says that unconscious despair counts as despair, he means that a person’s ownership of his objects is defined in such a way that it requires him not to have despaired of them when they are not in his possession. Meaning, we’re not saying that he did something and it counts as though he despaired of them now; rather, the opposite is needed, so that the object remains mine…

[Rabbi Michael Abraham] That’s not plausible. I’ll tell you why: because the Talmud links this dispute to disputes that are not related to despair.

[Speaker C] For example, terumah.

[Rabbi Michael Abraham] Here terumah should then be difficult even for Rava. Why does Rava interpret it according to Abaye?

[Speaker C] No, so with terumah — regarding terumah I also understand it that way. I don’t remember right now exactly how it integrates with everything else, but with terumah I can understand it, because terumah too can be understood as though someone can separate terumah on behalf of another…

[Rabbi Michael Abraham] You’re assuming that in terumah specifically it’s like ownerless property. Fine, we’d have to see it in the sugya.

[Speaker C] But anyone can separate terumah; the issue is my ability as owner to prevent it, and once I don’t have the…

[Rabbi Michael Abraham] We discussed that when we discussed agency in terumah. Maybe. Again, we’d have to see it there in the sugya.

[Speaker C] And according to that, in fact there’s no difference between Abaye and Rava regarding…

[Rabbi Michael Abraham] But I don’t see why that resolves it. On the contrary, now it will be difficult even according to Rava, not only according to Abaye.

[Speaker C] Here too one could say the same thing.

[Rabbi Michael Abraham] What? Appointment of an agent? On the contrary — after all, that’s exactly what the Talmud says here about terumah. The Talmud says here in terumah that appointing agency doesn’t help implicitly. That’s exactly what the Talmud is saying; that’s why they establish it as a case where he appointed him as an agent.

[Speaker C] No, okay, but…

[Rabbi Michael Abraham] Because without appointing him as an agent, an implicit appointment won’t help. So in any event the Ketzot’s question remains difficult. In this, where acquisition on another’s behalf — Rava…

[Speaker C] And in this…

[Rabbi Michael Abraham] We’re not talking about appointing an agent. After all, the meaning of acquisition on another’s behalf is to appoint an agent through implication, because I want him to be my agent. Since it’s a benefit for me, I want him to be my agent, and that’s implicit. So now again — there are places, and in a moment I’ll explain why there may be room to distinguish between the situations — but the Ketzot seems to have a very strong difficulty here.

[Speaker D] So what exactly is the difficulty?