Kiddushin, Chapter 2, 5783, Lecture 24
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- One who sends a fire: deaf-mute / mentally incompetent person / minor versus a competent adult, indirect causation versus agency
- Incitement to sin versus agency for sin
- The Talmud’s question, “A person’s agent is like himself,” and the answer, “There is no agent for a sin”
- Ba’al HaHashlama and the definition of “liable by the laws of Heaven”
- Bava Metzia 10a: courtyard, agency for sin, and being subject to liability
- Rav Sama: capacity for choice, and the practical difference for a priest and an Israelite, and for a woman regarding shaving the head
- Maimonides on one who dresses another in sha’atnez and impurity of a priest: responsibility for a sin brought about in the world
- Can a deaf-mute / mentally incompetent person / minor be an agent for sin: Tosafot versus Ritva and Nimukei Yosef
- Netivot and Shakh: agency for sin as a separate legal category from ordinary agency
Summary
General Overview
The text places the topic of there is no agent for a sin within the discussion of the Mishnah in Bava Kamma about “one who sends a fire,” and shows how the liabilities and exemptions can be understood sometimes as laws of damages through indirect causation, and sometimes as laws of agency. It presents two directions for understanding there is no agent for a sin: the reasoning of “when the words of the master and the words of the student conflict, whose words should one obey?” versus a derivation from verses later in the passage, and it emphasizes that the reasoning can be seen as explaining what the Torah teaches through the verses, not necessarily as an alternative. Later it connects this to the passage in Bava Metzia 10a about a courtyard, proposes distinctions between one who is subject to liability and one who has capacity for choice, and brings a dispute among medieval authorities (Rishonim) and later authorities (Acharonim) about whether a deaf-mute, mentally incompetent person, or minor can enter the framework of agency for sin, including the explanation of the Netivot that this is a different category of agency not learned from “you, even you.”
One who sends a fire: deaf-mute / mentally incompetent person / minor versus a competent adult, indirect causation versus agency
The Mishnah in Bava Kamma states that one who sends a fire through a deaf-mute, mentally incompetent person, or minor is exempt under human law but liable by the laws of Heaven; but if he sent it through a competent adult, the competent adult is liable. The text explains that in the first clause, liability by the laws of Heaven fits the understanding that the sender is not liable through agency, but is considered one who caused damage indirectly, and therefore there is no coercion in human court, though there is heavenly liability. The text notes that in Bava Kamma 59 the Talmud counts “one who sends a fire through a deaf-mute, mentally incompetent person, or minor” among four cases that are exempt under human law but liable by the laws of Heaven, and frames this as liability for indirect causation. The text emphasizes that in the second clause, when a competent adult does the act and the competent adult is liable while the sender is exempt, there is neither agency-based liability on the sender nor liability for indirect causation, and so one must clarify what prevents liability in each of those mechanisms.
Incitement to sin versus agency for sin
The text distinguishes between incitement, where the sin is attributed to the one who did it and the claim against the inciter is for causing or enabling it, and agency, where the sin is attributed to the sender as though he himself did it. It explains that with a deaf-mute, mentally incompetent person, or minor there is no “incitement” in the ordinary sense, because they are not full legal subjects of sin, and therefore the discussion tends in the direction of indirect responsibility for damage or indirect causation. It notes that in Jewish law the prohibition of incitement, in the simple sense, is to idolatry, but in the passage the very possibility arises of discussing the sender’s responsibility even when the incited person is legally competent. It raises the question why, in the second clause, the sender should not at least be liable as indirect causation or as an inciter, parallel to the first clause.
The Talmud’s question, “A person’s agent is like himself,” and the answer, “There is no agent for a sin”
The Talmud asks, “But why? Let us say that a person’s agent is like himself,” and answers, “It is different there, for there is no agent for a sin, since we say: when the words of the master and the words of the student conflict, whose words should one obey?” The text suggests simply that the question is directed at the second clause: if he sent it through a competent adult, why not obligate the sender by the rule that a person’s agent is like himself? And the answer is that there is no agent for a sin. The text raises another possibility, in which “there is no agent for a sin” is learned from verses, while “when the words of the master and the words of the student conflict” comes to answer another implicit question: even if there is no agency, why not obligate the sender for indirect causation or for incitement in the case of a competent adult? The answer would then be that the competent adult should have listened to the master’s words and not to the sender’s. The text notes that the way one understands the relationship between the reasoning and the verses also depends on a dispute among medieval authorities (Rishonim) regarding the source of the law, and comments that the wording “since we say” fits better as an explanation of the rule, though one could force the reading that the reasoning answers a different layer of the question.
Ba’al HaHashlama and the definition of “liable by the laws of Heaven”
The Meiri on Bava Kamma 59 brings in the name of Ba’al HaHashlama that “liable by the laws of Heaven” means an actual obligation to pay that is not enforced by a court, and not just a threat of heavenly punishment for moral wrongdoing. According to Ba’al HaHashlama, one who does not pay such a liability is considered a robber and disqualified from testimony, because he is holding another person’s money unlawfully even though there is no coercion under human law. The text uses this to sharpen the point that the first clause is understood as liability for damage through indirect causation, and not as liability for “incitement” alone, because liability for incitement by itself would not generate a monetary obligation to the injured party.
Bava Metzia 10a: courtyard, agency for sin, and being subject to liability
In Bava Metzia 10a, Ravina objects: how can we say there is no agent for a sin if a courtyard “was included under the law because of agency”? He answers that the rule applies only when the agent is one who is subject to liability, but in the case of a courtyard, “which is not subject to liability,” the sender is liable. The text explains that the logic is that there is no room for the claim “when the words of the master and the words of the student conflict” with regard to a courtyard, which is not an obligated legal entity, and therefore it can function as an agent even for a sin. The Talmud goes on to challenge this from the case of a woman and a slave, and Ravina answers that a woman and a slave are indeed subject to liability, except that they cannot pay now; and the proof is that when the woman is divorced or the slave is freed, they become liable to pay. The text points out that the result is that a courtyard receives an “extension” beyond ordinary agency law, because the exemption of there being no agent for a sin is interpreted as a limitation that depends on whether the agent is one who is subject to liability.
Rav Sama: capacity for choice, and the practical difference for a priest and an Israelite, and for a woman regarding shaving the head
Rav Sama divides it differently and says that there is no agent for a sin only when the agent can choose — “if he wants, he does it, and if he wants, he does not do it” — but in the case of a courtyard, where the item is placed there against its will, the sender is liable. The Talmud states a practical difference between Ravina and Rav Sama in the case of “a priest who says to an Israelite, ‘Go betroth for me a divorced woman,’” and “a man who says to a woman, ‘Shave a minor’s head for me,’” where the agent is not subject to liability for that specific sin, but still has freedom of choice. The text explains that the dispute reflects a different focus: Ravina focuses on whether one can impose liability for the sin on the agent himself, whereas Rav Sama focuses on whether one can attribute the act to the sender when the agent has independent choice. The text also formulates this as a distinction between looking at the agent’s “action” and looking at the “result” in the world, and illustrates a more “global” conception in which the main point is that a sin should not come into the world, regardless of who performed it.
Maimonides on one who dresses another in sha’atnez and impurity of a priest: responsibility for a sin brought about in the world
The text cites Maimonides at the end of the laws of kilayim, that if “one dresses his fellow in sha’atnez” and the wearer is unwitting while the one dressing him acts intentionally, “the one dressing him receives lashes and the wearer is exempt,” and stresses that it is difficult to say the lashes are for “do not place a stumbling block,” because there are no lashes for that prohibition. It presents this as a conception in which the one dressing him receives lashes for bringing about the actual state of wearing sha’atnez in the world, and not merely for causing another to stumble, and parallels this to the law of one who renders a priest impure when the priest is unwitting and the one causing impurity acts intentionally. The text notes that the Rosh and the commentators on Maimonides wonder about Maimonides’ source, but uses this to strengthen a viewpoint according to which a person is judged also for the sins he brings about in reality, and not only for his own private act.
Can a deaf-mute / mentally incompetent person / minor be an agent for sin: Tosafot versus Ritva and Nimukei Yosef
Tosafot in Bava Metzia ask from the Mishnah “one who sends a fire through a deaf-mute, mentally incompetent person, or minor is exempt” against Ravina’s position, which obligates the sender when the agent is not subject to liability, and they answer that such people “are not fit for agency,” and therefore it is irrelevant to obligate on the basis of agency. The Ritva asks the same question, but answers that in the Mishnah the case is one where he did not tell them to damage; rather, he gave them the fire in a way that makes the sender only an indirect cause, implying that if he had explicitly appointed them to do damage there might have been room to obligate him. Nimukei Yosef writes that a minor who has no legal capacity at all, such as one who cannot distinguish between a pebble and a nut, “is like a courtyard to obligate the sender,” because “it does not apply to him to say, ‘if he wants he does it, and if he wants he does not do it,’” and the text emphasizes that here too the assumption is that there is some framework in which a minor may be considered an agent for sin. The text notes that this raises a basic difficulty against the rule that such people are not fit for agency, and presents the discussion as tied to the question whether they resemble a courtyard due to lacking choice or lacking liability.
Netivot and Shakh: agency for sin as a separate legal category from ordinary agency
The Shakh asks how Nimukei Yosef can speak of a minor as like a courtyard to obligate the sender if a minor cannot serve as an agent, and the Netivot answers that in the case of an agent for sin “there is a different rationale,” and that there are special places where the Torah included agency for sin, such as misuse of consecrated property, slaughter and sale, and unauthorized use. The Netivot states that when the Torah includes agency for sin, this is not learned from “you, even you,” and therefore the usual exclusions of a minor and a gentile do not apply there; accordingly, in such places liability may apply even if the act was done by a minor or a gentile. He adds that the agency learned from terumah deals with making the act legally valid and effective, whereas agency for sin is the attribution of the act and punishment to the sender “as though he himself committed an act that carries liability,” and therefore it is not learned from terumah but from unique verses. The text concludes that this yields a fundamental dispute: according to Tosafot, agency for sin is examined within the framework of ordinary agency, and therefore a deaf-mute, mentally incompetent person, or minor does not enter at all; whereas according to Ritva, Nimukei Yosef, and Netivot, there is another category of agency in which, in principle, such people may enter, subject to the definitions of being subject to liability, having capacity for choice, and explicit appointment for the sinful act.
Full Transcript
[Rabbi Michael Abraham] Okay, so we’re dealing with an agent for a sin. The Talmud moves on to deal with agency for sin — it starts from 42b, but it goes through 43a, about a page and a half. The first part talks about one who sends a fire through a deaf-mute, a mentally incompetent person, or a minor, or through a competent adult. After that they get into the source of the law that there is no agent for a sin. They discuss agency, there are two verses, three verses that do not teach, and that’s more or less it. So within the discussion itself, two directions come up regarding there being no agent for a sin. The first direction comes up right at the beginning, from the reasoning: when the words of the master and the words of the student conflict, whose words should one obey? Later we’ll see that it’s learned from verses. So here too there’s room to discuss whether this is based on reasoning or on verses, although I think I’ve already mentioned more than once that bringing a reasoning and bringing verses are not necessarily two mutually exclusive alternatives. It could be that the verses teach the law, and the reasoning tells us what the verses are teaching.
[Rabbi Michael Abraham] Okay, so I’m starting on 42b. There’s a Mishnah, the Mishnah in Bava Kamma. The Talmud brings the Mishnah in Bava Kamma, “one who sends a fire.” And we learned there — okay, you have it, so I hope the screen will come up at some point. And we learned there: one who sends a fire through a deaf-mute, a mentally incompetent person, or a minor is exempt under human law but liable by the laws of Heaven; if he sent it through a competent adult, the competent adult is liable. The Mishnah makes a distinction between someone who sends a fire through a deaf-mute, mentally incompetent person, or minor — where he is liable by the laws of Heaven but exempt under human law — and someone who sends it through a competent adult, a normal person, where the competent adult, meaning the agent, is liable.
[Rabbi Michael Abraham] Now, on the face of it, there was room to discuss both the first clause and the second clause here — what exactly is the issue under discussion? Is the issue the laws of one who causes damage indirectly? When I cause damage through someone else, am I indirect causation, direct-indirect causation, however exactly we’re supposed to classify me? Or maybe we can discuss it under the laws of agency. Meaning, even if we say there is no concept of agency here at all for one reason or another, maybe I could still be liable as one who causes damage indirectly — especially if we remember that when, for example, my animal causes damage, they do obligate me to pay. Now when my animal causes damage, it’s obvious that I’m not causing damage directly with my own hands; at most that’s indirect causation, maybe not even that. And still they obligate me. So if that’s the case, maybe a deaf-mute, mentally incompetent person, or minor enters that category as well. At least it would be liability for one’s damaging property, even if it’s not direct personal damage, and he would be liable as indirect causation — and maybe in the case of a competent adult too, really.
[Rabbi Michael Abraham] So what? But he sent them. No — the fact that he sent them only turns him into someone who caused damage indirectly, but that doesn’t mean they are acting under the law of agency. If I go to them and tell them, “Go cause damage,” it could be that they’re not my agents and nothing of the sort, but if I told them that, then I’m considered someone who caused damage indirectly. What? Maybe even someone with understanding, yes, even a competent adult — there too there was room to discuss whether I’m causing damage indirectly. Fine, we’ll have to see. I’m saying, the Talmud — we’ll talk about this. But in principle, say in ordinary legal systems, including in Israel, if someone incites someone else to commit a crime, he has committed an offense, even though he incited a person with full capacity. Meaning: you decided to do it; that’s your problem. Why should they impose responsibility on me just because I incited you? But incitement to commit a crime is itself an offense.
[Rabbi Michael Abraham] What? In our system, as we’ll still see, plainly speaking incitement in Jewish law is only with regard to idolatry — but we’ll get to that; it comes up in this passage. But I’m saying, at the conceptual level, there was room to discuss both someone who sends a deaf-mute, mentally incompetent person, or minor, and someone who sends a competent adult. First, from the perspective of agency — if a person’s agent is like himself, then we should have had to obligate him under agency. And second, to obligate him under the law of one who causes damage indirectly. So at every stage of the Talmud’s discussion, and in every part of this Mishnah, we have to discuss whether we’re talking about one who causes damage indirectly or about an agent.
[Rabbi Michael Abraham] So in the first clause, when it’s talking about someone who sends a fire through a deaf-mute, mentally incompetent person, or minor — exempt under human law but liable by the laws of Heaven — here we have liability by the laws of Heaven. Most likely, if he were really an agent, then I’d be liable under human law as well. So he’s not an agent. And if he’s not my agent, then why am I liable by the laws of Heaven? He’s not my agent. On the face of it, it seems that I’m liable by the laws of Heaven because I caused damage indirectly. And in fact, the Talmud there in Bava Kamma, on 59, on this Mishnah, brings a statement: there are four things such that one who does them is exempt under human law but liable by the laws of Heaven — which is basically liability for causing damage indirectly — and one of them is one who sends a fire through a deaf-mute, mentally incompetent person, or minor. Meaning, the discussion there is a discussion about liability for causing damage indirectly.
[Rabbi Michael Abraham] And regarding the competent adult, it says that the competent adult is liable. Now we can discuss why he is liable. If really, under the laws of damage, I count only as causing damage indirectly, then even in the case of a competent adult I couldn’t be liable under human law, at most by the laws of Heaven. So when it says that in the case of a competent adult there is human-law liability — but he is liable, sorry. Meaning, right, the competent adult is liable, not the sender — sorry. Meaning, if I send it through a competent adult, then the competent adult is liable and the sender is exempt. So from the standpoint of one who causes damage indirectly and is liable by the laws of Heaven, that’s not here, right? This is even worse, in a sense, than sending it through a deaf-mute, mentally incompetent person, or minor. From the standpoint of agency law, apparently that’s not here either — fact is, I’m not liable. If I’m not liable, that means both mechanisms do not exist. Now with each one we have to discuss why — why am I not considered one who causes damage indirectly, and why am I not considered one who sent someone to cause damage, okay?
[Rabbi Michael Abraham] So the second clause, which is really talking about incitement in the ordinary sense — because to incite a deaf-mute, mentally incompetent person, or minor isn’t exactly incitement. Inciting someone to a sin means that the incited person commits the sin, only I caused him to do it or helped him get there. But a deaf-mute, mentally incompetent person, or minor do not themselves commit a sin in that sense. At most, one can obligate me with indirect responsibility for the offense they committed. You need to understand: the prohibition of an inciter, plainly speaking, if I incited someone, say, to murder, then when they come to me with a claim it’s not under the law of murder. Otherwise it would be murder — whether indirect or not, it would be under the law of murder. They come to me under the law of an inciter, not under the law of murderer. “Inciter” means that I incited you to commit a sin. The discussion is not about the question to whom the eventual sin is attributed, right? The question is whether they can come to me with claims because I caused you, helped you, or incited you to commit the sin — and that’s a separate category in itself.
[Rabbi Michael Abraham] In contrast, the concept of agency says that the sin he committed is charged to me. He did it in my name. I am the murderer — not an inciter, okay? So here we really have to discuss: under what category do they obligate him, or under what category do they exempt him? When it says: if he sent it through a competent adult, the competent adult is liable — that means I’m not liable as an inciter, I’m not liable as one who causes damage, I’m not liable as one who causes damage via an agent, and I’m not liable as one who causes damage indirectly. None of those three exist in the competent-adult case.
[Rabbi Michael Abraham] With a deaf-mute, mentally incompetent person, or minor — one who sends a fire through a deaf-mute, mentally incompetent person, or minor is exempt under human law but liable by the laws of Heaven — that could be understood in several ways. It could be understood that I’m liable for incitement, unrelated to the damage — liable for incitement, okay? What I did was wrong. Or you could say that the damage itself is charged to me. Why? Because the intermediary, the one I sent to do it, was a deaf-mute, mentally incompetent person, or minor. In that situation, at least by the laws of Heaven, they do see me as responsible for what ultimately happened, and then I count as one who caused damage by the laws of Heaven — not as an inciter. And if this were actual agency, then they could really see me as the actual damager — but then it should have been under human law and not only by the laws of Heaven.
[Rabbi Michael Abraham] So that means we basically have three categories, and each time we have to check each one: what exactly are we talking about? Maybe I’ll add one more sentence. The Meiri there in Bava Kamma 59 brings in the name of Ba’al HaHashlama — “the compilers” means Maimonides, and there’s some code-name there for Ba’al HaHashlama. In any case, he brings in the name of Ba’al HaHashlama that when it says here “liable by the laws of Heaven,” it means liable to pay by the laws of Heaven — not that he deserves punishment because he’s a bad person. Yes, when people say “liable by the laws of Heaven,” they mean, “tsk tsk, what you did was wrong; Heaven will punish you.” He says no — you are obligated to pay the injured party, except that this obligation is not enforced under human law; the court does not compel it. Rather, it is liability by the laws of Heaven. For example, he says, therefore someone who did not pay is considered a robber and is disqualified from testimony as a robber, because he owes money to someone and did not pay it.
[Rabbi Michael Abraham] What? Maybe one could even, yes, maybe do justice for oneself. If I’m liable by the laws of Heaven, maybe yes. Why does he say this? Clearly, Ba’al HaHashlama wants to say that the case of one who sends a fire through a deaf-mute, mentally incompetent person, or minor, where it says he is liable by the laws of Heaven, is not about incitement. If it were about incitement, I wouldn’t have to pay money, because I’m not the one who caused the damage — he caused the damage. All that would happen is that the Holy One, blessed be He, would come to me with a complaint that I was a participant in this whole business, but the damage itself isn’t mine. But if we understand that my liability is liability for causing damage indirectly, then that’s why it is only by the laws of Heaven — because it is indirect causation — but the basic liability is for damage. So if that is so, then “liable by the laws of Heaven” does not mean merely punishment. It means liability to pay. You are a damager, just only by the laws of Heaven and not by human law — but you must pay. Okay?
[Rabbi Michael Abraham] So these words of Ba’al HaHashlama sharpen the difference between the two possibilities I mentioned here, and the question whether I see the person as an inciter or whether I see him as indirectly responsible for the damage. Okay? And if it is under the law of agency, then he is directly responsible for the damage, not indirectly responsible for the damage. Is he a priest who killed a person? Right? Right? Correct — unless, as in the Talmud we saw in Bava Metzia 96, where the Talmud says there, bringing two sides, “a person’s agent is like himself” or not, it seems that despite “a person’s agent is like himself,” there are certain things in which it still won’t count as though you did it. And we talked about Tosafot Rid, and we’ll probably get to him in this passage too if we have time, regarding agency for commandments — yes, to put on tefillin, to sit in a sukkah, or something like that. Exactly.
[Rabbi Michael Abraham] Now, regarding — so it could be that even if a person’s agent is like himself and there is agency here, that still doesn’t mean I’ll be considered a priest who killed a person, because for a priest who killed a person you need really to kill with your own hands, like putting on tefillin, like sitting in a sukkah.
[Rabbi Michael Abraham] Now the Talmud says: but why? So they bring this Mishnah about one who sends a fire, and ask: but why? Let us say that a person’s agent is like himself. About what are they asking this? It could have been asked about two things. It could have been asked: why is someone who sends it through a deaf-mute, mentally incompetent person, or minor liable only by the laws of Heaven? If a person’s agent is like himself, he should be liable under human law. Or it could be said about the second clause: if he sent it through a competent adult, why is the competent adult liable and not the sender?
[Rabbi Michael Abraham] Now if we’re really talking here about the laws of one who causes damage indirectly, or an inciter, or something like that, then of course this is irrelevant. When the Talmud talks about “a person’s agent is like himself,” it means that there is a law of agency here — okay? That I would be directly liable. So it could be that the Talmud understands that the Mishnah itself is really dealing either with an inciter or with one who causes damage indirectly, but not with an agent. Because if this were under the law of agency, then regarding a deaf-mute, mentally incompetent person, or minor — we’ll still see — but regarding a competent adult, the sender should have been liable. Regarding the deaf-mute, mentally incompetent person, or minor, the question is whether they themselves even belong to the category of agency at all. We’ll talk about that. And on that the Talmud asks: why are you taking me into the laws of inciter or causing damage indirectly or something like that? A person’s agent is like himself.
[Rabbi Michael Abraham] So the Talmud says: it is different there, because there is no agent for a sin. Yes, plainly the meaning is that the question is on the second clause: let us say that a person’s agent is like himself — meaning, let’s obligate the sender under the law that a person’s agent is like himself. And what about the first clause? The first clause deals with a deaf-mute, mentally incompetent person, or minor, and they cannot be agents. So “a person’s agent is like himself” won’t help there. We remain only with the categories of inciter, one who causes damage indirectly, and the like. But in the second clause, where it says he sent it through a competent adult — there the Talmud says: why? There is also a law of agency here, beyond all the other things. So even if the other things don’t apply, agency still does apply. The Talmud answers: it is different there, because there is no agent for a sin, since we say: when the words of the master and the words of the student conflict, whose words should one obey?
[Rabbi Michael Abraham] Meaning, the Talmud there is referring only to the competent adult? Plainly, it’s referring only to the competent adult. Yes. That’s how it seems. So the Talmud says: there is no agent for a sin because when the words of the master and the words of the student conflict, whose words should one obey? As for that reasoning, we’ll still discuss it, but first of all, what is it doing here? Plainly, people understand it as follows: there is a rule that there is no agent for a sin, and the explanation for that rule is the reasoning that when the words of the master and the words of the student conflict, whose words should one obey? Yes, I sent someone to commit a sin. The master is the Holy One, blessed be He, who told him this is a sin and forbidden to do. So he cannot say, “I did it because so-and-so told me.” When the words of the master and the words of the student conflict, whose words should one obey? You should have listened to the Holy One, blessed be He, and not to me. So we’ll still talk about that, but that’s the explanation for why there is no agent for a sin.
[Rabbi Michael Abraham] What? What? The Torah says? Whether that means the sender or not — we’ll still see; that’s a dispute among later authorities. Plainly, the Torah says it. The Sema and Rabbi Akiva Eiger. I’m saying, it’s the same question. Meaning, the one being sued is the one who says, “Wait — when the words of the master and the words of the student conflict, whose words should one obey?” So that’s the simple explanation.
[Rabbi Michael Abraham] The simple explanation is that there is no agent for a sin, and the explanation is: when the words of the master and the words of the student conflict, whose words should one obey? But one could have said — after all, we know, I mentioned earlier, that later in the Talmud it’s clear that the rule that there is no agent for a sin comes from verses. So why doesn’t the Talmud say: because we find it in misuse of consecrated property, or we find it in such-and-such? There are verses that teach that there is no agent for a sin. Instead the Talmud says it from pure reasoning: when the words of the master and the words of the student conflict, whose words should one obey? There is room perhaps to say: it is different there, because there is no agent for a sin. So therefore he is not an agent. But the question still arises: fine, then obligate him under the law of one who causes damage indirectly, or as an inciter, something like that, as in the case of the deaf-mute, mentally incompetent person, or minor. To that I say: when the words of the master and the words of the student conflict, whose words should one obey?
[Rabbi Michael Abraham] Meaning, “when the words of the master and the words of the student conflict, whose words should one obey?” does not necessarily come to explain why there is no agent for a sin. It could be that there is no agent for a sin because of the verses that appear later in the passage. So your question — why am I not liable as the sender, since a person’s agent is like himself — gets the answer: because there is no agent for a sin. But there is another hidden question here. It’s not written explicitly, but it’s really implied: so what’s the difference from the first clause? Fine, he’s not an agent. But at least let him be one who causes damage indirectly, or an inciter, the way we talk about the first clause, where he sent it through a deaf-mute, mentally incompetent person, or minor. So to that the Talmud says: no — when the words of the master and the words of the student conflict, whose words should one obey?
[Rabbi Michael Abraham] And according to this approach, “when the words of the master and the words of the student conflict” explains not why I’m not a sender — meaning why he is not my agent — but why they do not obligate me under the law of an inciter or under the law of one who causes damage indirectly. Right, according to that reading the wording is a bit difficult, because “since we say” sounds like an explanation. Maybe one could say “and we also say,” or emend the wording a bit, or “for we say,” or something like that. Because this depends on a question we’ll see later — there is a dispute among medieval authorities (Rishonim) over how we know that there is no agent for a sin: whether it comes from the reasoning of “when the words of the master and the words of the student conflict,” or whether it comes from verses. And according to the one who says it comes from verses and does not depend on the reasoning, then there is definitely room to say that the reasoning brought here is not coming at all to explain the rule of there being no agent for a sin — we have sources for that later. Rather, it is answering another question here: why is he not an inciter? Why is he not one who causes damage indirectly? What’s the difference between him and someone who sent it through a deaf-mute, mentally incompetent person, or minor?
[Rabbi Michael Abraham] And the answer is that in the case of someone who sent it through a deaf-mute, mentally incompetent person, or minor, there is no “when the words of the master and the words of the student conflict, whose words should one obey?” Therefore there you can come to him with claims — why did you incite him? — and you can even see him as one who caused damage indirectly, and therefore at least by the laws of Heaven he is liable. What does “liable by the laws of Heaven” mean? If you’re an inciter, then you deserve punishment because you are a bad person. If you caused damage indirectly, then “liable by the laws of Heaven” is as Ba’al HaHashlama says: you must pay, only by the laws of Heaven. But all that is in the case of a deaf-mute, mentally incompetent person, or minor. In the case of a competent adult, first of all there is no agent for a sin — he is not an agent. Still, let him be liable like in the case of the deaf-mute, mentally incompetent person, or minor, because there too he is not really an agent, and nevertheless I am liable either as an inciter or as one who caused damage indirectly. So here the Talmud says: when the words of the master and the words of the student conflict, whose words should one obey? You are not considered one who caused damage indirectly, and you are not considered an inciter. I incited him — so what? He’s a competent person with full understanding. I incited him — so what? What do you want from me? What prohibition of incitement is there here? He decided to commit the sin; that’s his problem. He knew that the Holy One, blessed be He, forbids it. So there is no incitement here, and there is no indirect causation here either. I am also not considered one who caused damage indirectly; the responsibility is entirely his.
[Rabbi Michael Abraham] So it could be that there are really two separate reasons here, and not one rule together with its explanation — namely, the rule that there is no agent, and the explanation that when the words of the master and the words of the student conflict, whose words should one obey? Now, if indeed the question is only a question on the second clause — that since there is no agent for a sin, it should have come out through agency — then the answer, that there is no agent for a sin, also speaks only about the second clause. Why in the first clause is he exempt under human law? Why is the sender exempt under human law? Why is he liable by the laws of Heaven — that I understand: inciter, one who causes damage indirectly, all sorts of things like that. But why is he exempt under human law? Apparently, in the first clause, with the deaf-mute, mentally incompetent person, or minor —
[Speaker D] Why is the sender exempt here too?
[Rabbi Michael Abraham] The Talmud asked that. It said there is no agent for a sin. If the Talmud asked it only about the competent adult, only about the second clause, why didn’t it ask it about the first clause? After all, in the end, after it gives the answer, it could be that this answer also applies to the first clause. If they knew this answer, then they shouldn’t have needed to ask on the second clause. After all, the very fact that they ask on the second clause means that the first clause is probably understood even without the reasoning of “when the words of the master and the words of the student conflict.” Why? Because a deaf-mute, mentally incompetent person, or minor are not fit for agency. Agency does not apply to them. Therefore, of course you can’t obligate me as someone who directly caused damage, because the deaf-mute, mentally incompetent person, or minor is not my agent. Inciter, one who causes damage indirectly — all good. But you cannot count as someone who sent an agent in a way that makes you directly liable under the law of damage.
[Rabbi Michael Abraham] In the second clause, where we’re talking about a competent adult, there they ask: wait — but there is agency here, and a person’s agent is like himself, so why don’t you obligate him under human law? Then they say: there is no agent for a sin. The truth is, that’s the plain meaning of our Talmud passage, but it’s not completely agreed upon. To understand this, let’s take a look for a moment at a passage in Bava Metzia 10a. The Talmud there discusses the idea that a courtyard was included under the law because of agency, and things like that. Ravina says: how can we say that there is no agent for a sin? That is only where the agent is one who is subject to liability. But in the case of a courtyard, which is not subject to liability, the sender is liable. Meaning, if my courtyard does something for me that is a sin — for example, it acquires stolen goods for me, the courtyard — if the courtyard acts as my agent, then there is no agent for a sin, so how is the theft acquired by me? It isn’t really an agent.
[Speaker C] “A courtyard was included under the law because of agency” — that’s what the Talmud says there.
[Rabbi Michael Abraham] So then it’s not because of agency? Make up your mind. If you learn it under the law of agency, then “it is enough for that which is derived by logic to be like its source.” In the case of an agent for a sin, there is no agency, so you can’t also derive the case of a courtyard for a sin. After all, if your entire source is the law of agency, and agency does not apply to a sin, then how can you learn that with a courtyard, for a sin, it does work?
[Speaker C] In what sense is my courtyard my agent? Things that happened in the courtyard are as if they happened to me.
[Rabbi Michael Abraham] But the Talmud says it was included because of agency. The Talmud there gives two sides: included because of possession, or included because of agency. If the Talmud says it was included because of agency, then it understands that we learn it under the law of an agent. Your question is a good one, but that is what the Talmud there says. So Ravina says: if we learn it under ordinary agency law, then with an agent there is no agent for a sin; and a courtyard is learned from the law of an agent, so in a courtyard too, if it were for a sin, it shouldn’t work. Ravina says: no, it does work. Why? Because all that we say — that there is no agent for a sin — is only when the agent is one who is subject to liability. But a courtyard, which is not subject to liability, makes the sender liable. The courtyard is not a liable legal entity that you can come to with complaints that it committed sins. You can’t say to a courtyard: when the words of the master and the words of the student conflict, whose words should one obey? The courtyard should have decided to listen to the voice of the Holy One, blessed be He, and not to me. Therefore, since that is so, a courtyard can serve as an agent even for a sin.
[Rabbi Michael Abraham] An interesting thing comes out of this. What? Right, we’ll see in a moment. What really comes out here? It comes out that even though a courtyard is learned from agency, we do not say here: it is enough for that which is derived by logic to be like its source. We expand the law in the case of a courtyard beyond the source — the law of an agent — from which we learned the law of a courtyard. Because with an agent, there is no agent for a sin. With a courtyard, even for a sin there is agency. Even though the reasoning is clear, still the question is: where does the source come from? It’s amazing. Like I mentioned at some point regarding Rabbi Akiva Eiger, who argues that there is a dispute between the Babylonian Talmud and the Jerusalem Talmud regarding a slave: is a slave an upgraded gentile or a reduced Jew? He says the practical difference would be this: a slave is obligated in commandments like a woman. The question is whether the novelty is that he is exempt from the commandments of a man, and really he is a Jew but there is a novelty that he is exempt from some commandments; or whether he is a gentile with respect to whom there is a novelty that he is obligated in the commandments of a woman.
[Rabbi Michael Abraham] Where is the practical difference? For example, what about a gentile with regard to shaving the head? A woman is not exempt from the prohibition of shaving the head; rather, it simply doesn’t apply to her, okay? So now, if I say that a slave is exempt from all commandments from which a woman is exempt, a woman is not exempt from shaving the head — it simply doesn’t apply to her, but there was no actual exemption stated regarding her from shaving the head. In that case, a slave too would be subject to the prohibition of shaving the head. But if I understand that a slave’s obligations are learned from a woman’s obligations, then a woman also is not obligated regarding shaving the head because — right, it doesn’t apply to her, but in any case it was not stated about her. So from where will we learn it for a slave? There’s nowhere to learn it from for a slave, even though in a slave it does apply. That’s what Rabbi Akiva Eiger argues.
[Rabbi Michael Abraham] Here we see something that somewhat contradicts that distinction. Because here we say: a courtyard is learned from agency, and despite the fact that the entire source is only agency, in a courtyard it works even for a sin, even though in ordinary agency it does not work for a sin. What’s the explanation? The explanation is exactly like the Babylonian Talmud versus Jerusalem Talmud point of Rabbi Akiva Eiger. What does that mean? Apparently we learn from an agent to a courtyard that agency exists in a courtyard too. But with an ordinary agent, we have an exemption: in the case of an agent for a sin, it does not apply. That exemption is not learned to a courtyard. The basic derivation is that agency applies in every matter, including a sinful matter, and that is what is learned to a courtyard. Afterwards there is an additional derivation that in a sinful matter there is an exemption — in a sinful matter there is no agency — but that is layered on top of the basic derivation that says agency applies to everything. And if so, this exemption will not exist in a courtyard. At least if I understand that “when the words of the master and the words of the student conflict, whose words should one obey?” is a reasoning. If it’s an exemption from a verse, then maybe actually yes.
[Speaker C] So what would you do then? What? Say if you said it’s Torah-law, and then with a courtyard there’s no exemption.
[Rabbi Michael Abraham] Meaning, with a courtyard there is no agency for a—
[Speaker C] —sin.
[Rabbi Michael Abraham] Then you wouldn’t acquire the stolen object.
[Speaker C] So that’s it? The courtyard — and if I’m also not liable?
[Rabbi Michael Abraham] Right, everything is fine. Whoever wants can take the stolen object from the courtyard; it’s there. If I didn’t take the stolen object into my own hand, then I would only acquire it myself by physical taking. When the stolen object is lying in the courtyard, then if there is acquisition by courtyard, I acquired it. If not, the stolen object is there and its owner can take it — the courtyard stole it for him. Okay?
[Rabbi Michael Abraham] The Talmud says: if so, one who says to a woman or a slave, “Go and steal for me” — since they are not subject to liability, should we also say that the sender is liable? If you say to a woman or a slave, “Go steal for me,” then there too they are not subject to liability — in a moment we’ll see why they’re called not subject to liability — and therefore there should be an agent for a sin here, because the agent is not one who is subject to liability. The Talmud says: did you say that a woman and a slave are not subject to liability? They are subject to liability; it is just that right now they do not have the means to pay. As we learned in a Mishnah: if the woman was divorced or the slave was freed, they are liable to pay.
[Rabbi Michael Abraham] And why do you say that a woman and a slave are not subject to liability? Why do you say that? Because a woman or a slave who stole do not have to pay. Meaning, they are not liable subjects. But that is not called not subject to liability. They are subject to liability; they just don’t have money to pay, because their money belongs to the master or the husband. And the proof is that after they are freed, or the woman is divorced, then they do have to pay. So they are indeed subject to liability, and therefore there is no practical difference for a woman and a slave.
[Rabbi Michael Abraham] Rav Sama said — that was Ravina. Rav Sama said: where do we say there is no agent for a sin? Where, if he wants, he does it, and if he wants, he does not do it. But a courtyard, into which the item is placed against its will, makes the sender liable. He offers a different explanation from Ravina. Ravina tied it to the question of whether the agent is one who is subject to liability. Rav Sama ties it to the question of whether the agent has choice. If the agent is not one with capacity for choice, then there is agency for a sin, and a courtyard is an agent for a sin not because it is not subject to liability, but because it has no capacity for choice. A different explanation. Okay?
[Rabbi Michael Abraham] What is the practical difference between them? The Talmud asks: what practical difference is there between the two explanations, Ravina and Rav Sama? The practical difference is in the case of a priest who says to an Israelite, “Go betroth a divorced woman for me,” or a man who says to a woman, “Shave a minor’s head for me.” What do we have there? A person sends someone else to commit a sin on his behalf; the agent is not subject to liability for that sin, but he is still a person who has choice. That is the practical difference. If you tie it to the question whether he is subject to liability or not, then he is not subject to liability. If you tie it to the question whether he has choice or not, then he does have choice. A woman has choice; an Israelite has choice. It’s not that a woman and an Israelite are not generally obligated in commandments. He is called not subject to liability with respect to this particular commandment, which does not apply to him — yes? An Israelite is not prohibited in betrothing a divorced woman, and a woman is not prohibited in shaving the head.
[Rabbi Michael Abraham] Okay, so basically the reasoning of “when the words of the master and the words of the student conflict” doesn’t apply — she is not under obligation here; she is not a liable subject. So if you make the rule that there is no agent for a sin depend on the fact that the agent is not one who is subject to liability, and you limit the rule of there being no agent for a sin only to an agent who is subject to liability, while when the agent is not subject to liability then not — here the agent is not subject to liability, so what follows? Then there is agency for a sin in such a case. But if you say that everything depends on whether they have choice or not, then a woman and an Israelite certainly do have choice, so here there will not be agency for a sin.
[Rabbi Michael Abraham] What philosophy lies behind this? Why divide it this way? What is the dispute between Rav Sama and Ravina? Why does Ravina tie it to whether the agent is under obligation, while Rav Sama ties it to whether the agent has capacity for choice? What? Capacity for choice, yes, sorry.
[Speaker C] Capacity for choice ties it to simple discretion, to the continuity of what the sender is doing, because he knows that it is happening. When the agent is not an entity that can stop it on its own. Okay, it’s not clear. The issue of obligation — I connect more to a level of significance.
[Rabbi Michael Abraham] Meaning, I think it can be formulated—I think that’s more or less what you’re saying. If I’m talking about the question of whether the agent is personally obligated or not personally obligated, then the focus is basically that the agent here is committing a transgression. If he isn’t personally obligated, then it’s not a transgression, so what’s the problem? Okay. If I say that the focus is on the question of whether the agent has free choice or doesn’t have free choice, then the focus is on the sender. Because if the agent has free choice, you can’t say that this is the sender’s act, because he has free choice—he decided to do it. In other words, Rav Sama and Ravina disagree about the question of what the focus is when I say that there is no agency for a transgression. Is the focus on the agent—this is the agent’s transgression, what do you want? That’s all only when the agent is personally obligated. Okay? But Ravina says—sorry, Rav Sama says—that the focus is on the sender. So if the agent has free choice, then it’s the agent’s act. Why do I care whether he is personally obligated or not personally obligated? If he isn’t personally obligated, good for him. But the act is his act, not mine. What do you want? Clear? In other words, the question is whom you put the focus on when it comes to there being no agency for a transgression. Or in another formulation I’d say it like this: when the agent commits the transgression, what is the claim against the agent? Is the claim against the agent, “You rounded the head, and it is forbidden to round the head”? Or is the claim against the agent, “You caused your sender to round the head, because a person’s agent is like himself, and in effect through your act your sender rounded a head”? Clear? If I make the focus depend on the fact that the agent is personally obligated, then obviously the focus is on the question: you rounded a head, the Torah told you not to round a head—“when the words of the Master conflict with the words of the student, whose words are to be obeyed?”—that basically comes in through the back door here. But if I look at the question of whether he does or doesn’t have free choice, then even if he isn’t personally obligated, if he does have free choice—like an Israelite who betroths a divorcée to a kohen—you can’t come to him with the claim that he violated the prohibition of a kohen’s marriage to a divorcée. An Israelite is not subject to that prohibition, and he’s also not the one getting married, so what do you want from him? Obviously the focus is not on his own prohibition. So how can you say there, “when the words of the Master conflict with the words of the student, whose words are to be obeyed?” Maybe you could say that you caused the stumbling block, or that you brought about the kohen’s marriage to a divorcée, and you weren’t supposed to do that, because when the words of the Master conflict with the words of the student, whose words are to be obeyed?
[Speaker C] So then his main claim is basically that he has no free choice.
[Rabbi Michael Abraham] Exactly. And then if he has no free choice, you can’t come to him with claims; if he has free choice, you can. But if he has free choice and yet is not personally obligated—meaning, if I look at someone who is personally obligated and has no free choice, there’s no such thing, right? Someone with no free choice is never personally obligated. Only the reverse can happen. There can be someone who has free choice but is not personally obligated, like an Israelite in the case of a kohen marrying a divorcée or… or a woman in the case of rounding the head. What happens in such a case? In such a case you can only come to the person with claims regarding the transgression he causes for the sender, because he himself did not commit a transgression—the transgression doesn’t apply to him. So therefore, if someone says that in such a situation—Ravina claims that in such a situation he is exempt. Ravina makes it depend on being personally obligated, meaning he doesn’t care; the question is not the question of free choice but of personal obligation. Meaning, even if he has free choice, if he is personally obligated then he will be liable, and if he is not personally obligated then the sender will be liable according to Ravina. The sender will be liable even though the agent has free choice. Why? Because there is no claim against the agent. Why is there no claim? Because the focus is on the transgression that the agent himself commits. There is no transgression here that the agent commits. What will Rav Sama say? Rav Sama also agrees, after all, that there is no transgression for an Israelite who betroths a divorcée. Rav Sama will say: yes, we come with claims against the agent—what are you doing causing such a thing to happen to the sender? After all, the Torah prohibited a kohen’s marriage to a divorcée. Now true, you are not the kohen, but you are the one who created the situation in which a kohen married a divorcée. And we come to you with claims about the transgression that happened to him, and in any event you are not an agent—sorry, yes, in any event you are not treated as an agent; rather, you are the one under judgment and not the sender. In any case, that’s what the Talmud says.
[Speaker E] And that’s basically asking whether you tie it to the result or whether you tie it to the person.
[Rabbi Michael Abraham] That’s the second formulation I gave, yes. Whether I tie it to the sender or to the agent—that’s the first formulation; the second formulation is related to it. The second formulation is the question whether I tie it to the result or tie it to the action. If you want the agent to be personally obligated, then clearly the focus is the action of the agent: is it a transgression or not? So if from his standpoint such a thing is not a transgression, what do you want? But if you say no—even though from his standpoint it’s not a transgression, still, at the end of the day a kohen came out of this married to a divorcée. This somewhat reminds me of a dispute among the medieval authorities (Rishonim); the Rosh brings it in Yoma, I think. The Rosh brings there: what happens if there is a sick person on the Sabbath who needs to eat meat. Now there is no meat. You have two options: either give him non-kosher meat, pork, or slaughter an animal for him on the Sabbath. Which is preferable? Various medieval authorities discuss this back and forth, for all kinds of reasons; it’s a very interesting topic. But one consideration hardly appears among the medieval authorities. After all, there is a certain difference: say I give him pork to eat—who committed the transgression? The patient. The patient who eats the pork. I did nothing, right? I only… If I slaughter for him, who committed the transgression? I did. I slaughtered. So if he’s the sick person, wouldn’t it be preferable for him to commit the transgression? Meaning, he is sick, he has permission to commit the transgression, everything is fine—why should I commit the transgression when he’s the sick one? That kind of consideration doesn’t come up. In the Tashbetz there is such an initial thought, and he also rejects it. Why? Because apparently—and I’m bringing it in this context—in the Torah’s perspective, what matters is that in the end a transgression not come out. Meaning, the Torah doesn’t care whether I commit the transgression, so long as a transgression needs to be committed here, what difference does it make who commits it? If it needs to be done—and after all, a transgression does need to be done here, because we need to take care of the sick person. Right? If a transgression already has to be committed, then the question is not whether you do it or I do it. We’re looking at this from the chair of the UN Secretary-General. I don’t care whether it’s you or me; at the end of the day, a transgression needs to be committed here, so let you do it. What difference does it make? The question is whether a transgression needs to be committed here or not. There’s no question here of me standing personally before the Holy One, blessed be He, and wanting to get off the hook: let him do it, I’m not in the business. No. The Holy One, blessed be He, looks at the whole world; He says, a transgression needs to be committed here, let whoever is most convenient do it. It doesn’t matter. This is not a personal discussion. Yes, here too it’s the same thing. The Holy One, blessed be He, does not want a kohen to marry a divorcée. So true, the kohen didn’t do it—I did it. So what? They come to me with claims over the fact that I did what? That I brought it about that the kohen married a divorcée. I didn’t marry her. But I am the one who caused a transgression to be committed in the world: a kohen married to a divorcée.
[Speaker C] And according to Ravina’s approach?
[Rabbi Michael Abraham] Yes, that’s what I’m saying—that’s the difference.
[Speaker C] According to Ravina’s approach he would be exempt. Like, if he performed betrothal with a divorcée for a kohen, the agent would be exempt even though a transgression resulted.
[Rabbi Michael Abraham] Correct. But the sender would be liable. The agent would be exempt, but the sender would be liable. Someone here would be liable.
[Speaker B] According to Ravina? Yes.
[Rabbi Michael Abraham] According to Ravina. The sender would be liable because he is acting through an agent. There is agency for a transgression in such a case, right? So in effect this is the same outlook. There is a kind of global outlook here that says the Holy One, blessed be He, does not want transgressions to exist here. He doesn’t care who does it; that’s irrelevant. The question is that we need to be concerned with what the Holy One, blessed be He, wants, not with ourselves, right? That’s always the… There’s the case of sending portions on Purim. There’s sending portions on Purim—say I send Purim food gifts, I’m from an unwalled city and I send them to someone in a walled city. When should I send them? On the fourteenth, which is my Purim, or on the fifteenth, which is his Purim? It depends. If the food gifts are intended for him, then you need to send them on the fifteenth. If the food gifts are intended for me, then send them on the fourteenth. Now what does it mean, intended for me? Obviously he is the one who needs to eat the food gifts, and I’m doing this in order to fulfill my obligation of sending portions. Yes, it’s like the jokes about the righteous kollel fellow who has no poor people on Purim, so he robs a few people so that he’ll have proper poor people to whom he can give gifts to the poor. Meaning, this is an outlook that says I’m not really acting for the sake of the world; I’m acting in order to fulfill my obligation, to check off a box. The Holy One, blessed be He, wants there to be sending portions—okay, I checked the box, I sent portions, everything is wonderful. In other words, I put myself at the center. I’m not looking at the question of what the commandment is meant to accomplish; I’m not concerned about the world. I’m not looking at it from the perspective of the Holy One, blessed be He; I’m looking at it from my own personal perspective. I need to come out okay, I need to fulfill my obligation. Yes, that’s basically what is being said here. What they’re saying here is basically: you are not supposed to look from your own point of view; you are supposed to look from the point of view of the Holy One, blessed be He. He does not want a kohen to marry a divorcée. If you caused a kohen to marry a divorcée, you did something wrong, even though that transgression does not apply to you. By the way, regarding this—I just remembered—there is Maimonides, who has a very innovative statement in three places, for example at the end of the Laws of Kilayim. He says: if someone clothes another person in kilayim, then if the wearer acted intentionally, the wearer is lashed, and the one who clothed him violates “do not place a stumbling block” before the blind. And if the wearer did not know that the garment was kilayim, and the one clothing him acted intentionally, then the one clothing him is lashed and the wearer is exempt. Okay? I dress you in kilayim. If you act intentionally—you know it’s kilayim and you do it deliberately—then you are lashed because you violated the prohibition of kilayim, and I violate “do not place a stumbling block.”
[Speaker E] Even though he knew?
[Rabbi Michael Abraham] “Do not place a stumbling block” also applies when you cause someone to stumble intentionally. If I hand a cup of wine to a nazirite on the far side of the river, and the nazirite drinking it knows that this is wine he is forbidden to drink, still, if this is a case of “the two sides of the river”—meaning that without me he could not have committed the transgression—I have violated “do not place a stumbling block.” That’s in the Talmud, in tractate Avodah Zarah. And if the one wearing the garment did not know that the garment was shaatnez, and the one dressing him did so intentionally, the one dressing him is flogged and the one wearing it is exempt. Now notice: what does it mean that the one dressing him is flogged? There is no flogging for “do not place a stumbling block,” right? Above it doesn’t say that he is flogged when the wearer acts intentionally. So what is he flogged for? For wearing shaatnez. How? He didn’t wear shaatnez—he wore shaatnez; I only dressed him in it. There is a prohibition against wearing shaatnez, so how am I flogged? Right? Clearly I am flogged for the fact that with my own hands I caused a person to be wearing shaatnez in the world. This is a completely different conception of the whole of Jewish law. In other words, all of Jewish law is not really measured by the question of what you do, and it’s not some kind of firing range where you stand against the world, right? There is such an outlook, and often a Lithuanian-style outlook is like that. You’re basically on what we used to call the Ringo track in the armored corps in the army, right? You drive, you run into something, you shoot at it, you run into something—meaning, the whole world around you is just extras. They are there to challenge you and see whether you’ll get through without transgressions and with all the commandments. And you somehow have to fulfill your obligations, get through the whole story safely, with maximum reward and minimum punishment. Right? Everyone else doesn’t interest you at all; as far as you’re concerned they can all burn. The only reason they’re here is so that you shouldn’t stumble—that is, so you won’t sin. Okay? Maimonides is basically saying here that this outlook is wrong. You have to look through God’s glasses, so to speak. You are God’s representative in the world. And if He does not want people in the world to be dressed in shaatnez, then the task placed on you is to see to it that people are not dressed in shaatnez. Okay? And therefore, even if you dressed someone else in shaatnez, you are actually flogged—you violated the prohibition of “do not wear shaatnez.” You didn’t wear it, and yet you are flogged because you… He too, the one who wore it, is not being flogged because he wore it. He is flogged because he caused a Jewish person to be wearing shaatnez. That’s what he is flogged for. So then I too can be flogged for that. If I caused a Jew to be wearing shaatnez—and if that Jew is not me—then I am flogged. Maimonides says the same thing about someone who defiles a priest. Same idea: if the priest acted unintentionally and I acted intentionally, I am flogged. Now there is no flogging for “do not place a stumbling block”; this is the same law. And a third place where he writes this is in the laws of naziriteship, but there he says that there is a verse teaching otherwise if I defile a nazirite. Fine—but in principle, if not for that verse, there too I would have transgressed. And the Rosh and all the commentators on Maimonides ask—they don’t know what his source is, and it’s very unclear where he got this from. What is Maimonides’ source? So that is a major question. But in principle, the outlook one sees in Maimonides is the same outlook I’m speaking about here: the view that I am really looking at the world from God’s point of view, and I am supposed to make sure that transgressions do not happen in the world. Now, not that I’m merely supposed to in some pious sense—this is Jewish law itself. Meaning, if I caused a transgression to happen in the world, I am flogged. I am flogged because I violated the prohibition of wearing shaatnez or defiling a priest. So something very interesting comes out of this: an ordinary Israelite can be flogged for the prohibition of priestly defilement. What does that mean? The prohibition of priestly defilement is not one that applies equally to everyone? It does apply equally to everyone. An Israelite can be flogged for the prohibition of priestly defilement if he defiles a priest while the priest is acting unintentionally and the one causing the defilement acts intentionally. According to Maimonides, the prohibition of priestly defilement applies to Israelites too, and they can transgress it. That’s a very big novelty, but it seems to me that this perspective can be seen, as I said, in many other places as well, including here.
Okay, so what do we actually see? That when the agent is not subject to obligation, or when the agent lacks free choice, then there is agency for a transgression. What about a deaf-mute? First of all, they are not subject to obligation; that’s clear. Do they have free choice? That’s not a simple philosophical question. Clearly they have free choice in the sense that they can do this and they can do that, but they do not have the cognitive awareness that accompanies choice. Is that considered someone with free choice? I don’t know. Interesting question. But there is something else here too: maybe the deaf-mute is like a person’s courtyard. The deaf-mute is a minor—if it’s his minor or his son then maybe… No, no, not his son; another deaf-mute, mentally incompetent person, or minor. So maybe there is no… Why? I appointed them. With any agent there is no special connection between me and the… No, I can. Wait—so apparently yes, because in a moment we’ll see. Apparently yes. If I say… no, not apparently yes—hold on, let’s put that aside for a moment; we’ll come back to it in a second, because it’s a dispute among the medieval authorities (Rishonim). We’ll return to it. I am saying in principle: when I appoint a deaf-mute, mentally incompetent person, or minor as an agent for a transgression, okay? Now let us ignore for the moment the question whether a deaf-mute, mentally incompetent person, or minor can or cannot serve as agents. Then there is another problem here, because in agency for a transgression they are not subject to obligation, and maybe they also have no free choice. If so, then specifically they ought to be able to serve as agents, right? Because “there is no agency for a transgression” is said only about someone who is subject to obligation and has free choice. If he has no free choice or is not subject to obligation, then there is agency for a transgression—meaning they do function as agents. So in fact, according to the Talmud there in Bava Metzia, one could have asked: why in our case is one who sends a fire through a deaf-mute, mentally incompetent person, or minor exempt in human law? After all, there is agency for a transgression when the agent is not subject to obligation. Understand: a deaf-mute, mentally incompetent person, or minor cannot be agents. Can a courtyard be an agent? So if a courtyard can, why can’t a deaf-mute, mentally incompetent person, or minor? After all, my… Ah—so here the question of whether it is mine or not mine may enter. We’ll see that in a moment.
So Tosafot there in Bava Metzia really asks this: “A woman and a slave are subject to obligation. And if you ask: but didn’t we learn in the chapter Ha-Kones, ‘One who sends fire in the hand of a deaf-mute, mentally incompetent person, or minor is exempt’? And why? Aren’t they not subject to obligation?” Right? Why should someone who… He is speaking about the first clause, yes? “One who sends fire in the hand of a deaf-mute, mentally incompetent person, or minor is exempt.” Since they are not subject to obligation, why shouldn’t he be liable under the rule that a person’s agent is like himself? There is agency for a transgression when the agent is not subject to obligation. “And one can say: because they are not capable of agency at all.” A deaf-mute, mentally incompetent person, or minor are simply not capable of being agents. Therefore it’s irrelevant. What about a courtyard? It too is not capable of agency. Yes, but it is mine. A courtyard that is mine is my extended hand. We discussed the advantage that a courtyard and a slave have over an ordinary agent; we discussed whether such a thing is called agency or not.
But the Ritva there in Bava Metzia—the standard Ritva there is probably actually the Ran, by the way. There is what is called the “new Ritva,” the Ritva on Bava Metzia. The Ritva in the old print, in Rashi script, in all the Ritva volumes—that Ritva on Bava Metzia is the Ran. It got mixed up. There are several such cases in the Talmud, by the way. The Rashba on Kiddushin also, I think, is not really the Rashba. There are several. Rabbi Elchanan Wasserman has a little work called Yedi’ot Mekhubadot, and there he lists all the places, all the medieval authorities in every chapter—who is and who is not who. I don’t remember now. It’s the Ritva, I think—yes, I think so. Why does it matter? For various places where one finds a contradiction, for example. That’s why Rabbi Elchanan says these are “important pieces of information,” because it can have consequences.
In any case, in the Ritva in the Mossad Harav Kook edition, on Bava Metzia, they bring both: the old Ritva and the second part of the volume is the new Ritva, which is the actual Ritva. “And if you ask,” says the Ritva, “how can one say that where the agent is not subject to obligation, the sender is liable? How can one say that where the agent is not subject to obligation, the sender is liable, when we learned: one who sends fire in the hand of a deaf-mute, mentally incompetent person, or minor is exempt?” The same question as Tosafot, right? “And one can say that there it is different, because he did not tell them to cause damage; rather he gave them the fire in their possession in such a way that they could not cause damage except together with the action of the deaf-mute, so the sender has done only indirect causation, as we explained in its proper place.”
He asks the very same question as Tosafot, but he does not give the expected answer that Tosafot gave. What does he ask? He asks: in our case it says that one who sends a fire through a deaf-mute, mentally incompetent person, or minor is exempt in human law and liable in heavenly law—why? They are agents. You want to say there is no agency for a transgression? Not true—they are not competent or are not subject to obligation, okay? So why in our case is he not liable in human law? What would I have expected him to answer? Like Tosafot: because a deaf-mute, mentally incompetent person, or minor are not capable of agency. They cannot be agents; it has nothing to do with agency for a transgression—they simply cannot be agents at all, and therefore agency does not work here. But the Ritva does not answer that. The Ritva says we are speaking about a case where he did not appoint them as agents to cause damage; he simply put the fire in their hands and they somehow went and caused damage, but not that he told them, “Go cause damage.” The implication is that if he had done that, he would be liable. More than that—the implication in the Ritva is that he would be liable under the laws of agency, not merely as a tortfeasor, like someone who sends his animal, or sends a dog, or Samson sending the foxes with the fire. No—the Ritva connects this to the laws of agency. Under the law of agency for a transgression he would be liable. So if I don’t empower him? You’re jumping ahead; we’ll get there in a moment. That’s probably the explanation. But at the moment, the Ritva is giving not the answer Tosafot gave, not the answer we would have expected. That means that according to the Ritva, if I had sent them and said to them to cause damage, then I really would be liable—even with a deaf-mute, mentally incompetent person, or minor.
Now in our Talmudic passage this is very hard, because when the distinction is made between a deaf-mute, mentally incompetent person, or minor and a competent person, they are saying that in the case of a deaf-mute, mentally incompetent person, or minor—what are we talking about? A case where he did not appoint him as an agent. What does the Talmud ask about the competent person? Why—if you say a person’s agent is like himself? It is speaking of a case where he did not appoint him as an agent. So what are you saying—that the first clause and the second clause are speaking about different cases? That the first clause about the deaf-mute, mentally incompetent person, or minor is speaking where he did not appoint him as an agent, while the second clause about a competent person is speaking where he did appoint him as an agent? Then answer simply: the second clause too is where he did not appoint him as an agent—what is the problem? Apparently in the second clause, if he did not appoint him as an agent, there is no novelty. If he did not appoint him as an agent and the person is also competent, then what do you want from me? Then there is nothing. So yes, it must be speaking where he appointed him as an agent. But if the second clause is speaking where he appointed him, then it is very forced to say that the first clause is not speaking that way. Plainly, when they make a distinction, they make it within the same case—between a deaf-mute, mentally incompetent person, or minor and a competent person. You don’t distinguish between a deaf-mute, mentally incompetent person, or minor in one case and a competent person in another case. So the Ritva is difficult in our passage, but that’s what he says.
And for our purposes, what does that mean? That according to the Ritva, a deaf-mute, mentally incompetent person, or minor can serve as an agent for a transgression. Whose view does this follow, by the way? Ravina’s. Ravina says that the reason is because they are not subject to obligation. What about Rav Sama? That depends on whether such a thing is considered free choice or not. I don’t know. Okay? It’s always a question. It’s an interesting philosophical question. Angels have no evil inclination. The question is whether that means they have no free choice. In principle they can choose to do what God tells them or not do it. They have no evil inclination, so obviously they will do what He tells them to do. Why not? But in principle they could also choose not to do it. Is that called having free choice? I don’t know. Not a simple question. You can adopt Libet’s view, but maybe they can choose between two good things. That’s not called choice; choice is between good and evil. I am saying that if there is a choice, if one of the two options is preferable, then they will always choose it. Preferable—doesn’t matter if the other is a transgression or just less good. Okay? If the two options are exactly equal, then that’s random selection, not choice. It’s picking, not choosing. To pick one of them means you make a lottery.
In neuroscience, when they test this—for example in Libet’s experiments in neuroscience—they test whether a person has free choice. One of the criticisms of Libet’s experiments is that he tested situations of picking and not choosing. Do you know this? Think of a person sitting at a table who has to press a button. When he presses the button, a clock here measures exactly when he pressed it. They tell him: press whenever you want. And in front of him there is a clock running. They tell him: look at the clock and try to notice not when you pressed the button, but when you decided to press it. When did you decide? Okay? You have to train him a bit, but once you do, he can do it. There is a hand moving quickly. Where was the hand when you decided to press? Okay? They put electrodes on his head, EEG, and they check the signal in the brain that determines the pressing. It’s called RP, readiness potential. You can check it. Then Libet says: here we have an experiment that can test whether a person has free choice. Why? Because if the signal, the readiness potential, appears before he decided—not before he pressed, before he decided to press—then that means he did not really decide. The brain already did it before he even made the decision. So you have the illusion that you decided, but you didn’t really decide. But if the readiness potential appears after you decided, then apparently you have free choice. You created the readiness potential by your decision. The question is whether the readiness potential created the decision or the decision created it. And to everyone’s amazement he found that the readiness potential appears first. And by the way, Libet himself was a libertarian—he believed in free will—but he was honest enough to say: the experiment shows that it doesn’t exist. The subconscious, as it were… Yes, the subconscious is choosing for me. The conscious process of choosing is an illusion. It was already fixed in advance what I would do.
And there is a whole series—hundreds of such experiments have been done since then. That was in the 1980s. Since then they have done hundreds of experiments with all kinds of different situations. One of the central criticisms of Libet is that pressing a button is not a dilemma. Who cares if you press a button? Press now, press later. In such a situation, of course there is no free choice. Whenever I get the brain signal, that’s when I press. Why not? There is no reason not to. In a place where there is a dilemma whether to do this or do that, and the brain signal precedes my decision, that really does mean there is no free choice. Because if the brain signal preceded my decision and I did have free choice, I would veto it. I would not do what my brain signal tells me to do, because there is a dilemma and I choose. Okay? When I wrote—I have a book on free will—there is a chapter there about Libet’s experiments. I tried there to show what experiments should be done going forward in order to solve this problem and see whether we really do or do not have free choice. My claim was that if we do future experiments on choosing rather than picking, we will discover that the signal does not appear before the decision. And indeed, in 2013 and 2015, results of an experiment were published by an Israeli scientist living in the United States together with Liad Mudrik—you know who she is? She used to be a radio broadcaster, and today she researches neuroscience at Tel Aviv University. She was on Army Radio, some broadcaster there, and she was part of it. She has a lecture on YouTube about this experiment. They did a very interesting experiment there, because it’s hard to do an experiment on choosing. What are you going to present people with—two options, to commit a transgression or not commit a transgression? To kill someone, to steal from someone? You can’t do that under Helsinki ethics approval; they won’t approve such an experiment. So they did something clever. They found that there it really doesn’t work. In an experiment of choosing, the readiness potential does not determine what I will do. What kind of choice was it? The question there was to which charities to donate money. There were racist charities and other charities, but they were all legal. So I tell a person: press a button if you want it to determine whether you will give the money to this charity or that charity, okay? And now the question is: if we saw a readiness potential pointing toward donating to the racist charity, did he then refrain from donating? And that happened. Yes. I’m describing it a bit crudely, but that was the principle. They had to find something legal, but where one option was morally bad and the other morally good. Okay? So that was a very interesting idea there.
Anyway, that’s why I mention this—because that’s the difference between picking and choosing. When you press a button, you have no dilemma, no decision. You press now, you press in three seconds—what difference does it make? So of course if you have a readiness potential to press now, you’ll press. Why not? Why would I veto my readiness potential if I have no reason to? What would make me press now and not later? I need some kind of lottery. I didn’t make a lottery. Who makes the lottery for me? My readiness potential makes the lottery for me. It tells me to press now and I press. What’s the problem? Why should I veto it? I have an inclination to press—should I veto it because I chose not to? I didn’t choose not to; I don’t care. When do I veto my readiness potential? When I have a reason not to do what it says. The evil inclination tells me to do something; I veto it—I won’t do it. Okay? So again, returning to the deaf-mute, mentally incompetent person, or minor: do they have free choice? Like angels, they presumably have the ability to do this or that, but they do not have the judgment that says whether it is worthwhile or not worthwhile to do it this way. Maybe a more rational judgment they do have—if he wants to do a good job and has to develop a strategy? No—a deaf-mute, mentally incompetent person, or minor is assumed not to have understanding. Strategy is not choice. Choice is choice between values. Choice is between values. This value and that value, a good value and a bad value. When you’re talking strategy, that’s calculation, not choice. You calculate which strategy best serves your goal. I am asking about the goal, not how you get there. Because how you get there is calculation, not choice. Maybe to choose the more correct path? The question is what counts as more correct. Is there a more correct answer? If there is a more correct answer, then why not do it? There is no conflicting value here; it’s not a value dilemma. The goal is given, and I have two ways of reaching it. Right? And if you don’t know, then you just don’t know, so make a lottery—what difference does it make? But if one is clearly preferable, then obviously you’ll choose it—why not? There is no value dilemma there, only a question of calculation. If you are smart enough and understand that this is the better path, then you’ll do it.
You should know, this is exactly the difference—people keep talking now about ChatGPT: why is it not a human being? It passes Turing tests and everything; why isn’t it a human being? The answer is probably that it knows how to calculate, not how to choose. It will choose the best option given a goal, okay? But that’s calculation, not choice. When it has a value dilemma, it can’t choose. It can make a lottery. It can try to guess what humans would choose. But it cannot choose; it does not have the mechanism we have—except that choice is not a mechanism. It only has mechanisms. Choice is not a mechanism. And therefore in that sense it can never be a human being, okay? But calculations it can do. What happens in our brain is completely parallel to ChatGPT, because what happens in our brain is calculation, not choice. Choice is made by the intellect, not by the brain. The intellect decides what it wants, and then the brain does the calculations of how to carry it out. Intellect or will—it doesn’t matter—but the mental part of us, okay?
All right, we drifted a bit into philosophy here. But the Ritva’s claim is basically that a deaf-mute, mentally incompetent person, or minor can be agents for a transgression—provided that you appointed them as agents. Why are you exempt here? Because you did not appoint them as agents. But if you had appointed them? Then yes, they would completely count as agents. I said that in our Talmudic passage this is a little difficult, but that is what he says.
And the Nimukei Yosef writes there in Bava Metzia as follows: “It appears that a minor who has no legal capacity at all, such as one who cannot distinguish between a pebble and a nut”—that is a minor who does not have legal capacity even rabbinically—”is like a courtyard, to render the sender liable, because one cannot say regarding him: if he wished he would do it, if he wished he would not do it.” What? That means he has no free choice. Correct. And the Nimukei Yosef is already more concrete than the Ritva, because he says that regarding a minor, even according to Rav Sama, he is an agent for a transgression, because the minor is considered someone with no free choice, even though technically he can do either thing, except that he lacks judgment—like angels. So he says he has no free choice. But notice: in the basic direction he is like the Ritva. Why does he need to get to this? A minor can’t be an agent at all. What difference does it make now whether, if he wished, he would do it or not, whether he is included in the category or not? He is not included in the category of agency at all. Even the Nimukei Yosef, like the Ritva, is not bothered by the fact that we’re talking about a deaf-mute, mentally incompetent person, or minor, because in their opinion such a person can, in principle, be an agent for a transgression. If he has understanding, or if you appointed him as an agent—in principle, yes, he can be an agent.
Now the Shakh really asks this question. The Shakh asks: one minute, what does the Nimukei Yosef want? A deaf-mute, mentally incompetent person, or minor cannot be an agent at all. What difference does it make whether he belongs to the category or not, whether if he wished he would do it or not? Then the Netivot says this: “He further challenged the Nimukei Yosef, who wrote that in the case of a minor with no legal capacity at all, the sender is liable—for there is no agency through a minor. And from the fact of the case of one who sends the fire, this is difficult, for he should have asked the same question also on Tosafot in tractate Shevuot.” In short, Tosafot in Shevuot also goes like the Nimukei Yosef and the Ritva. “And perforce one must say that in agency for a transgression there is another rationale, as we see in embezzlement of sacred property, slaughter and sale, and unlawful use”—all those places later in the passage where there is agency for a transgression—”for the Merciful One included agency for a transgression there, such that one is liable even if he did it through a minor, as explained in the case of embezzlement of sacred property.”
This is the proof for those early authorities. There are places where we see that there is agency for a transgression through a minor—for example, in embezzlement of sacred property. There are certain places where there is agency for a transgression; there are verses, for example in embezzlement of sacred property. And the Talmud says that there too a minor can serve. Now why? I understand that there is agency for a transgression, but a minor does not belong to agency at all. So why can a minor be an agent for embezzlement of sacred property? “And perforce one must say the reason is that since in those cases where agency for a transgression was included, it was not learned from ‘you, even you,’ but from another verse written there.” Agency for a transgression is not derived from “you, even you”—that is a different passage of agency. The debate whether there is or is not agency for a transgression is not really a debate within the ordinary laws of agency. Ordinary agency certainly does not apply to a transgression. The whole question is whether a separate novelty of agency for a transgression was introduced. And then we say: it was introduced only in those places where it was introduced; elsewhere not. Now once agency for a transgression was introduced as an independent category, one might say that it includes a deaf-mute, mentally incompetent person, or minor too. Unless there is the issue that they do not have the capacity of “if he wished he would do it,” or they lack free choice, or are not subject to obligation, and therefore it does not apply—like a courtyard, or whatever. Okay? That is how the Netivot explains it.
Then a major novelty emerges: the whole discussion of whether there is or is not agency for a transgression is not from the ordinary passage of agency at all. When we say, “The words of the master and the words of the student—which should one obey?” what does that mean? That the ordinary concept of agency simply does not apply to a transgression. Fine. Then there is another concept of agency for a transgression, learned from other places. And because those are two or three verses coming together, they do not teach beyond themselves, and therefore only there is there agency for a transgression and not elsewhere. But in those places where there is agency for a transgression, it would even apply to a minor. That is the big practical implication. Because this is not from the ordinary passage of agency, and there the minor was not excluded, because there is no “you, even you” here—just as you are adults, so too your agent must be an adult; just as you are members of the covenant, so too your agent must be a member of the covenant. A gentile too could work, a minor too could work—everything. All the exclusions from the ordinary passage of agency do not exist in agency for a transgression. Maybe also a gentile? Maybe also, yes. I don’t remember a clear source right now, but apparently the same thing. “You are members of the covenant, so too your agents are members of the covenant” is also learned from “so shall you set apart, you also,” to exclude a gentile. So according to Rav Sama there is a criterion here, but he is not obligated. Fine—regarding a minor there is no obligation. I mean on the level of principle: on the level of principle, it would apply also to a minor and to a gentile. Now we would have to discuss what happens if he does have obligation, if he does have understanding—fine, that’s a separate topic.
So the Rabbi is essentially saying that there are two different things here. Agency for a transgression is a different passage of agency. It is not the ordinary passage of agency, but another passage. Ordinary agency certainly does not apply to a transgression. And we’ve already discussed this: even where it disadvantages others, the Torah did not innovate the concept of agency. Rashi says one thing, but most medieval authorities say that not only acquisition but even agency does not work there. Why? Because the Torah does not want to favor you over others. Why should it give you the power to acquire on behalf of someone else at the expense of others? By the same token, the Torah also will not innovate the concept of agency in order for people to commit transgressions. Why should it create that? Okay? That is what “there is no agency for a transgression” means. In the places where it was introduced that there is agency for a transgression, there the Torah did create it. Ah—if so, then now we have a new passage of agency. And it could be that this applies to a deaf-mute, mentally incompetent person, or minor, and to a gentile, and anything else. Now we have to check whether he is in fact subject to obligation, whether if he wished he would do it and if he wished he would not do it, okay? Then all the rules of Ravina and Rav Sama come in, but only now do we begin the discussion. Like with a courtyard, like with anything else.
And accordingly, one can say also regarding what is derived in Bava Metzia 10 from a courtyard—that there is agency for a transgression, such as where the agent is not subject to obligation according to Ravina, and where one places it there against its will according to Rav Sama—that even if one did it through a deaf-mute, mentally incompetent person, or minor, or a gentile, who are not fit for ordinary agency, the sender is liable. He says explicitly: even a gentile. And in the Ritva in Kiddushin there, he cites the Ritva we saw, who wrote that the rule that there is no agency for a transgression is not based on “the words of the master and the words of the student—which should one obey?” This is not the same Ritva we saw; this is a Ritva who says that it is not based on that reasoning. Rather, it comes from the verses. He claims this is a separate law. There is no agency for a transgression in the ordinary concept of agency—it falls away because of “the words of the master and the words of the student.” But besides that there is another new passage of agency, and in that passage it exists even for a transgression in those places where it is stated, because two or three verses coming together do not teach beyond themselves. And in those places where it is stated, it could apply also to a gentile and a minor.
Then he explains further: “And perforce one must say the reason”—why indeed is this a different concept of agency? Why can’t we learn it from ordinary agency? What’s the difference? So he says: “Perforce one must say that the reason is that the fact that there is no agency for a transgression, in the sense that it cannot be learned from terumah, is only with regard to the act being effective. But with agency for a transgression, where the sender becomes liable to punishment as though he himself had committed it with an action—that we do not find to be learned from terumah.” Exactly what you said earlier. This is agency for legal effect and agency for action. What is he really saying? When you learn agency from terumah, what do you learn from terumah? That the separation of terumah takes effect. The question is not whether I separated the terumah or you separated the terumah; the question is whether the terumah took effect. Is the act effective? Because on my produce, you cannot separate terumah—only I can. The law of agency says: you can too. But what is the novelty there? The novelty is that your act is effective and counts as though I did it. It does not mean that I literally did it. We discussed this at length regarding terumah. We discussed there whether perhaps I prefer that the commandment be credited to me. And agency does not mean that the commandment is credited to me; it only means that the terumah takes effect. But the commandment, he did—if at all. We discussed that there, and I explained that there are different views among the medieval authorities in both directions. This is the same dispute here, he claims. Exactly.
There I said that there may be a separate category of agency for action. He learns terumah differently. He says: in terumah this is agency for legal effect. Therefore from terumah I can learn concepts of agency only in cases of agency for legal effect—only in places where I need agency in order for the act to take effect. Not… no. In agency for a transgression, in most cases that is not what is happening. For example, when I send someone to shave off the corners of the head, or to murder, or to steal, or whatever it may be—there I do not need agency for legal effect. He can perform the shaving, and the shaving is valid even if I did not do it. It is not my unique authority to shave him; anyone can do it. The whole question there is only whether, since I appointed him as my agent, it can count as though I shaved him and not the agent. That is what we called agency for action. So the Netivot says: agency for a transgression is agency for action, not agency for legal effect. You cannot learn it from terumah. So where do you learn it from? From those places where agency for a transgression is explicitly stated. And that is only in those places and not elsewhere. In those places, even a gentile and a deaf-mute, mentally incompetent person, or minor can do it, because in the end they are not performing an act of authorization—doing the act so that the result is attributed to me—and therefore they do not need to belong to the category. So a gentile and a minor and so on are possible. No—they are my extended hand. If my courtyard can do it, why shouldn’t a deaf-mute, mentally incompetent person, or minor be able to do it? A courtyard is inanimate; certainly it has no understanding. Therefore a deaf-mute, mentally incompetent person, or minor can also do it. Okay? And apparently, according to this view, there is no special advantage in the fact that the courtyard is mine. Well, a courtyard is inanimate, so it needs to be mine, because otherwise it can’t acquire for me, but that does not mean that being mine gives it some special advantage as my agent. Okay? That is what the Netivot claims.
He distinguishes here between agency that makes an act legally effective and agency that makes the sender liable to punishment. In our language, this is basically the distinction between agency for legal effect and agency for action. Agency for action means that it is as though I did it, and therefore I also deserve the punishment—or the reward, if it’s a commandment, or whatever. We discussed this regarding agency for commandments in Tosafot Ri”d, right? There too the discussion is: when he is my agent to sit in the sukkah, is that agency for legal effect or for action? Or to put on tefillin? That is agency for action. He has no power… what would “power to sit in the sukkah” even mean? There is no legal transformation there that only I can effect, as there is in betrothal or acquisition or something of that kind. The question is whether I sat in the sukkah or he sat in the sukkah—on whom the act is attributed. That is agency for action, not agency for legal effect. Okay? Therefore even agency for a commandment is really a discussion of agency for action, not agency for legal effect. And therefore such agency does not exist, because one does not learn agency for action from terumah. For a transgression, one does learn it—but only in those places where it is written. Okay? That is basically the Netivot.
So in the end we have a dispute between Tosafot and the Ritva. We have a dispute between Tosafot and the Ritva over whether agency for a transgression comes from the ordinary passage of agency—this is how Tosafot understands it—and therefore he says that a deaf-mute, mentally incompetent person, or minor, and a gentile, do not belong to agency for a transgression, because they do not belong to agency at all, so they do not belong to agency for a transgression either. According to the Ritva, the Nimukei Yosef, and Tosafot in Shevuot, a deaf-mute, mentally incompetent person, or minor do indeed not belong to ordinary agency, because they were excluded from “so shall you set apart, you also,” but in the passage of agency for a transgression, in principle they do belong—were it not for the considerations of Ravina and Rav Sama, yes, whether they are members of the covenant, whether they are subject to obligation, and all those considerations. But the discussion concerning them is definitely relevant for agency for a transgression.
So in our passage, in the first clause, when it says that if one sends through a deaf-mute, mentally incompetent person, or minor, he is exempt in human law and liable in heavenly law—why? According to Tosafot, because a deaf-mute, mentally incompetent person, or minor cannot be an agent. According to the Ritva, because he did not appoint them as agents. If he had appointed them as agents, that would have worked. There too this is agency for action. In the end, damage happened. Agency for action. The answer is a bit forced. What? The answer is a bit forced. What did I say? It’s forced because in the second clause, with the competent person—if he did not appoint him as an agent, then what does the Talmud want? Right. Okay, so that’s the situation here. But Maimonides says there that he distinguishes between the two, Maimonides. Where? “One who sends the fire in the hand of a deaf-mute, mentally incompetent person, or minor is exempt in human law and liable in heavenly law,” and then he says there as a qualification, “and with a competent person, exempt.” No, but there—yes—if he sent through a competent person, exempt from all these; first of all from heavenly law as well, exempt from everything. But there that is under the laws of damages, not the laws of agency. It’s in the laws of financial damages, not in the laws of agents and partners. Yes. That is the Talmud in Bava Kamma. “It was the contribution of the deaf-mute that caused it.” The Talmud itself makes these distinctions.