Kiddushin, Chapter 2, 5783, Lesson 25

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Dispute among the medieval authorities (Rishonim) and Netivot: ordinary agency versus a separate innovation in agency for a transgression
Agency for an act, a “monkey act,” and the role of the transgression in justifying agency
Netivot 348: instructing a gentile on the Sabbath and the definition of a “transgression” with respect to the agent
Critique of Netivot’s distinction and examples from forbidden mixtures and shaving the corners of the head
Rashi on instructing a gentile: agency, “and speaking of them,” Behag, and the Mekhilta
The Sabbath as “a matter of one’s own person”: Imrei Binah, Chatam Sofer, and the rest of one’s animal and vessels
The first clause and the last clause in the Mishnah: deaf-mute, incompetent person, and minor versus a competent person, and the link to indirect causation
Rashi: agency as a zero-sum game between sender and agent
Tosafot Ri”d: the agent is always liable, and the question is whether to obligate the sender as well
The Shakh, cases in which agency does apply to a transgression, and a distinction once the rule has already been established
Tosafot Ri”d: the question “sit in the sukkah for me” and the answer of commandments that must be performed by one’s own body
Applying the distinction between agency of power and agency for an act to transgressions that involve legal effect
The reason of “the words of the Master and the words of the disciple”: Rema, Sma, and Rabbi Akiva Eiger
The enticer and the primordial serpent: “the words of the Master” as a plea for exemption and the Yad Ramah

Summary

General overview

The text places the law of an agent for a transgression along the axis of a fundamental dispute: whether agency for a transgression is an extension of the regular law of agency or a separate innovation, and connects this to the distinction between agency of power and agency for an act. It presents Netivot’s question that if there is agency for an act in the case of a transgression, one might have thought that instructing a gentile on the Sabbath would be a Torah prohibition, and answers by distinguishing between a transgression done in relation to a Jew who is commanded in it and an act that is permitted to the gentile. Later, it ties the latter clause of the Mishnah—“if he sent it in the hand of a competent person, the competent person is liable”—to the laws of agency and the rule that “there is no agent for a transgression,” and highlights a sharp dispute between Rashi and Tosafot Ri”d: is this a zero-sum game between sender and agent, or can both be liable? It adds to this a clarification of the reason “the words of the Master and the words of the disciple,” through the dispute between the Sma and Rabbi Akiva Eiger by way of the sugya of the enticer and the primordial serpent.

Dispute among the medieval authorities (Rishonim) and Netivot: ordinary agency versus a separate innovation in agency for a transgression

The text states that we saw a dispute among the medieval authorities (Rishonim) as to whether agency for a transgression applies with a deaf-mute, an incompetent person, a minor, and a gentile, and that Netivot explains that the basis of the dispute is whether agency for a transgression derives from the ordinary law of agency or whether it is a separate innovation. He says that if it is part of ordinary agency, then the exclusions of “you” and “your agent is like you” apply as well, and therefore a deaf-mute, an incompetent person, a minor, and a gentile are excluded. But if this is a new, parallel category of agency for a transgression, those limitations may not have been stated there. He explains that agency for a transgression is generally agency for an act and not agency of power, because there is no need to “transfer power” in order to murder someone or shave the corners of the head; one only needs to attribute the act of the agent to the sender. Since ordinary agency is agency of power, as with setting aside terumah, one cannot derive agency for an act from it, and therefore a separate category is needed.

Agency for an act, a “monkey act,” and the role of the transgression in justifying agency

The text presents a conceptual difficulty: how does “agency” make sense at all in actions that have no legal significance or legal effect? It compares this to “sending me to stand on one foot,” an act for which the language of agency seems out of place. It raises the possibility that in agency for a transgression, the innovation is not agency for an act as such; rather, the fact that the act has a halakhic consequence as a transgression is what brings it into the conceptual sphere of agency. So specifically because it is a transgression, one can speak of agency; and on the other hand, because it is a transgression, the rule says there is no agency for a transgression—except in places where an exception was newly taught. The text concludes that the transgression here plays two opposite roles: it both enables use of the framework of agency and also activates the rule that removes agency in the case of a transgression.

Netivot 348: instructing a gentile on the Sabbath and the definition of a “transgression” with respect to the agent

The text cites Netivot in section 348, who asks, based on Tosafot in Shevuot and the Ritva, that if the agent is not personally obligated, the sender is liable even when the agent is a gentile; if so, instructing a gentile on the Sabbath should come out as a Torah prohibition. It explains that the question rests on the understanding that the innovation of agency for an act should have turned instructing a gentile into an application of agency in a transgression. It then brings Netivot’s answer: only a transgression that is done in relation to a Jew who is commanded in it makes the sender liable when the agent is not personally obligated—for example, a priest who says to an Israelite, “Betroth a divorced woman for me,” or “shave the side-locks of an adult for me.” But if one says to a gentile, “Cook for me on the Sabbath,” there is no transgression at all, because the gentile is permitted to cook on the Sabbath, and what is eaten by the Jew when cooked carries no Torah prohibition. Therefore the concept of agency does not apply there.

Critique of Netivot’s distinction and examples from forbidden mixtures and shaving the corners of the head

The text argues that Netivot’s distinction is somewhat problematic, because an Israelite who betroths a divorced woman for a priest is, with respect to his role in the prohibition, similar to a gentile; so why should the mere fact that he is Jewish matter if he does not bear the priest’s prohibition? It explains that on the Sabbath the prohibition depends on the identity of the one who acts—“the prohibition is not cooking on the Sabbath, but that a Jew cook on the Sabbath”—whereas with betrothing a divorced woman to a priest, the prohibition is result-oriented: that she become betrothed to a priest, not a prohibition on the act of betrothal on the part of the priest himself. It cites Maimonides at the end of the laws of forbidden mixtures regarding someone who dresses another person in shaatnez, where the wearer is inadvertent and the dresser intentional, and the dresser receives lashes. From this it concludes that this is not “do not place a stumbling block,” since that does not carry lashes; rather, the prohibition is defined as creating a situation in which a Jew wears shaatnez. It adds that in shaving the corners of the head this is even more explicit in the discussion of “the shaver and the one shaved” in Nazir, and it questions the Avnei Miluim-like discussion referred to as Avnei De’oraita, which asks whether one who shaves himself violates two prohibitions. In the count of commandments there are not two separate prohibitions here, and the whole “why should this one be different” discussion seems odd if there are not really two distinct transgressions.

Rashi on instructing a gentile: agency, “and speaking of them,” Behag, and the Mekhilta

The text notes a contradiction in Rashi regarding the reason for the prohibition of instructing a gentile. In one place—apparently in the chapter “Mi Shehechshikh”—Rashi says it is prohibited because “he is his agent.” Elsewhere Rashi says the prohibition is because of “and speaking of them,” meaning that speaking about doing labor on the Sabbath is itself forbidden. It gives a practical difference: if one tells a gentile on the Sabbath to do labor after the Sabbath, then according to the agency explanation there is no problem in the result because the labor is done on a weekday, whereas according to “and speaking of them” there is a prohibition because the forbidden speech took place on the Sabbath. It adds that there is a Rashi—somewhere in “Eizehu Neshekh”—saying that the rabbis prohibited “agency for a gentile stringently,” and stresses that certainly no one is speaking of actual Torah-level agency in instructing a gentile. It cites a Mekhilta brought by the Beit Yosef that derives instructing a gentile from “you shall not do any labor,” which sounds like a Torah law, and notes that Behag indeed understands it that way, whereas the Beit Yosef argues that even the Mekhilta does not mean it as Torah law. But even according to Behag, this is not because of the laws of agency; rather it is based on “you shall not do labor” in the passive formulation—“that the labor not be done.”

The Sabbath as “a matter of one’s own person”: Imrei Binah, Chatam Sofer, and the rest of one’s animal and vessels

The text brings later authorities (Acharonim) who wrote that agency does not belong to the Sabbath at all because it is “a matter of one’s own person.” In other words, the prohibition of the Sabbath is defined as the person’s duty of rest—“to rest from labor”—and therefore if the person himself rests, there is no room to ascribe the labor of an agent to him, just as one cannot send an agent to sit in the sukkah on one’s behalf. It says that Imrei Binah and Chatam Sofer challenge Rashi: what does it mean to speak of “agency for a gentile stringently” here, when the person himself rested, and that’s that? It suggests that the use of the language of agency on the rabbinic level may just be terminology intended to create a criterion for the prohibition, similar to “the rest of one’s animal” and “the rest of one’s vessels,” and that on the Torah level agency should not have worked here at all.

The first clause and the last clause in the Mishnah: deaf-mute, incompetent person, and minor versus a competent person, and the link to indirect causation

The text summarizes that until this point we were dealing with the first clause of the Mishnah, “one who sends a fire in the hand of a deaf-mute, an incompetent person, or a minor,” where the central question is whether agency applies at all with a minor and a gentile. It may even be that the first clause is not dealing with agency at all but with indirect causation in damages—“as if you sent the fire in the hand of a monkey”—and then the rule would be “exempt in human law but liable in the law of Heaven.” It says that in the latter clause, “if he sent it in the hand of a competent person, the competent person is liable,” the Gemara really enters the laws of agency and the rule that there is no agent for a transgression, because once there is a competent person the Gemara sees the case as belonging to the category of agency rather than indirect causation. It notes the possibility that the Gemara is presupposing the reasoning of “the words of the Master and the words of the disciple,” and therefore does not treat this as indirect causation or as agency that would obligate the sender.

Rashi: agency as a zero-sum game between sender and agent

The text draws a precise point from Rashi: when the Gemara asks, “Why not say that a person’s agent is like himself,” Rashi explains that this means “that the sender should be liable and not the agent.” So for Rashi, agency that creates liability also exempts the agent. It explains that in Rashi’s answer as well—“an agent is not considered an agent for a transgression such that his sender should be liable; rather he is like one acting on his own”—the meaning is that the agent is treated as acting on his own, and therefore he himself is liable and the sender exempt. The law is built as an exclusive alternative: either the sender is liable and the agent exempt, or vice versa. The text emphasizes that the Gemara’s initial assumption was to obligate the sender, while its conclusion is to obligate the agent, and in both it is clear that there is no possibility that both are liable.

Tosafot Ri”d: the agent is always liable, and the question is whether to obligate the sender as well

The text brings Tosafot Ri”d, who disagrees with Rashi and writes, “even though the agent cannot be exempted, since he is competent,” meaning that the agent is certainly liable because he knowingly performed the act, and the only question is whether the sender is also liable by force of agency. It adds that according to Tosafot Ri”d in damages there is a practical consequence: “if there is nothing to collect from him, collection is made from the sender,” so the sender becomes a kind of guarantor where there is no one from whom to collect, though the basic claim is against the one who actually burned. It suggests that according to Tosafot Ri”d, in the realm of transgressions one might have said that if there were agency for a transgression then “both would receive lashes,” because there is no issue of “double compensation,” and it compares this to the dispute over those places where the Torah newly taught that there is agency for a transgression.

The Shakh, cases in which agency does apply to a transgression, and a distinction once the rule has already been established

The text says that the Shakh in section 182 discusses those cases in which the Torah explicitly innovated that there is agency for a transgression, and asks whether this means that the agent is exempt and only the sender is liable, or whether both are liable. It suggests that once the rule “there is no agent for a transgression” is already known, then even according to Rashi, when the Torah teaches exceptions, the innovation may be only that “the sender too is liable,” without exempting the agent, because the earlier innovation already established that when an agent performs a transgression “it is impossible to exempt” him. It explains that the dispute between Rashi and Tosafot Ri”d in our sugya concerns the Gemara’s initial assumption about agency in a transgression, whereas the Shakh is dealing with a stage after it has already been established that the agent is liable, and now liability is being added to the sender in special cases.

Tosafot Ri”d: the question “sit in the sukkah for me” and the answer of commandments that must be performed by one’s own body

The text quotes Tosafot Ri”d asking that if there is agency for an act, then “an agent should work for every commandment,” and a person should be able to say to his fellow, “Sit in the sukkah for me; put on tefillin for me,” showing that the question assumes the possibility of agency over an act. It connects this to the dispute with Netivot: if agency for a transgression is a new category of agency for an act only in certain transgressions, then there is no reason to ask from commandments; but if agency for an act is derived from the ordinary category of agency, then the question is indeed natural—why should it not work for commandments as well? It brings Tosafot Ri”d’s answer that a commandment “which the Omnipresent obligated him to do with his own body” cannot be discharged through an agent. By contrast, in betrothal and divorce it does work, because “he is the one divorcing, not the agent,” and in the wording of the get it says, “I, so-and-so, have released so-and-so,” and likewise the woman is “betrothed to him”; similarly with terumah, it is “from his produce,” and with the Passover offering, “he eats it,” even though an agent may slaughter and sprinkle the blood. But for sukkah, “he can indeed say to his agent: build a sukkah for me, and then he himself will sit in it,” whereas another person’s sitting in a sukkah accomplishes nothing for him.

Applying the distinction between agency of power and agency for an act to transgressions that involve legal effect

The text explains that even if most transgressions involve agency for an act, there are transgressions that involve agency of power because they create legal effect, such as “to betroth or divorce a woman,” which another person cannot do without delegated authority. It connects this to the Chazon Ish’s discussion of selling land during the Sabbatical year, where this is agency of power and not agency for an act; therefore it depends on whether “there is no agent for a transgression” removes the very agency itself, in which case “the land is not sold either,” or whether it only blocks attribution of the transgression. It suggests that betrothing a divorced woman to a priest is also agency of power, and therefore even according to Netivot’s approach there would still be room for the standard exclusions of minor and gentile from ordinary agency. It also discusses misuse of consecrated property, asking whether it is defined as theft from sacred property or as transferring sacred property into the non-sacred domain, which then leads to theft, and notes that this affects whether misuse of consecrated property is an example of agency of power or of agency for an act, despite being one of the places where the Torah says there is agency for a transgression.

The reason of “the words of the Master and the words of the disciple”: Rema, Sma, and Rabbi Akiva Eiger

The text quotes the Rema in Choshen Mishpat 182: “There is no agent for a transgression,” and “this is specifically when the agent is personally obligated, but if he is not personally obligated, he is an agent even for a transgression.” It cites the Sma, who explains the reason “the words of the Master and the words of the disciple” as the sender’s plea: “I thought he would not listen to me and do it; therefore the sender is not liable,” and concludes that if the agent is not personally obligated, this reason does not apply. It then quotes Rabbi Akiva Eiger, who understands the opposite: that the reason is normative with respect to the agent—“he should listen more to the words of the Master.” It notes a practical difference in the case of an apostate Jew who sins out of defiance: according to Rabbi Akiva Eiger, “the words of the Master” still applies, and so there is no agency for a transgression; whereas according to the Sma, one cannot say “I thought he wouldn’t listen to me” regarding such a person.

The enticer and the primordial serpent: “the words of the Master” as a plea for exemption and the Yad Ramah

The text cites the Gemara in Sanhedrin 29 that we do not argue on behalf of an enticer, and the exposition about the primordial serpent, who should have argued, “the words of the Master and the words of the disciple—to whose words should one listen?” but did not argue this. From here it infers that this is a plea of exemption for the enticer, not an argument to obligate the one enticed. It adds that the Yad Ramah infers that this implies that had he made the argument, it would have been a valid argument, and it asks from the case of an enticer to idolatry, who is liable even if the one enticed did not obey, so the argument of “the words of the Master” should be irrelevant. It cites the Yad Ramah’s answer: an enticer to idolatry is more severe because of “you shall not spare and you shall not conceal,” and therefore we do not argue on his behalf. The Yad Ramah further innovates that there is a concept of a general “enticer” throughout the Torah, and the text concludes that the Yad Ramah links this to the law that there is no agent for a transgression and states that according to this approach, “specifically where the sender argued ‘the words of the Master’… but where he did not argue, he is liable,” which fits the line of the Sma and depends on the dispute with Rabbi Akiva Eiger.

Full Transcript

[Rabbi Michael Abraham] Okay, so we’re in the topic of an agent for a transgression. We saw, we saw a dispute among the medieval authorities (Rishonim) regarding agency for a transgression in the case of a deaf-mute, an incompetent person, a minor, and a gentile, and Netivot explained that the basis of the dispute is whether agency for a transgression comes from the regular section of agency, or whether agency for a transgression is a separate innovation. And according to that, it could be that those limitations weren’t said there—that a minor and a gentile, and a deaf-mute, incompetent person, minor, and gentile, can’t function. Right, right, raise that too—it’s in the regular section of agency, and from there anyone who is not “like you” is excluded, from “you,” to include “your agents are like you.” But if there’s a parallel innovation of agency for a transgression learned from those same verses—which do or don’t teach it, but are the source—then there a deaf-mute, incompetent person, minor, and gentile might not be excluded. And he spoke there, in Netivot, about what the difference is—why do you need another source for agency for a transgression? So he says: because agency for a transgression, in the overwhelming majority of cases, is agency for an act, not agency of power. Because basically, say you send someone to murder, or whatever, or to shave the corners of the head—then in the end you don’t need to transfer power to him, what? Right, there’s no legal effect here, no legal effect; you don’t need to transfer power to him, you don’t need to delegate authority to him so he’ll be able to do it. So what do you need? You need the act that he does with his own hands and conduct to count as your act. In other words, you only need to attribute the act he does to you, but he can do that act even without receiving power from you. That’s why this is what we called agency for an act. And simply speaking, from regular agency, which is agency of power—for example, setting aside terumah—you can’t derive agency for an act. Therefore, if we do derive agency for an act, then apparently this is a new category of agency.

To the point that I’ve seen people raise the question: how does agency even apply to such a thing? I mean, just in general—what does agency even mean here? It’s like sending me to stand on one foot. Someone appoints me as an agent to stand on one foot. I stood on one foot—okay, so what? In what sense do you want me to count as someone’s agent for this? If the action isn’t an action that has legal significance—which is usually agency of power—then where does the whole concept of agency even belong? What makes it relevant at all? And it could be that with agency for a transgression, the whole idea, the entire innovation there, is not that there is agency for an act. Rather, what was innovated there is that since this act has a halakhic consequence as a transgression, that’s why there is agency. Meaning, precisely because it’s a transgression, it can belong to the category of agency. Because if it weren’t a transgression, it would be like agency to stand on one foot—a monkey act. There’s nothing to talk about in terms of agency. So the fact that we’re dealing with agency for a transgression plays two opposite roles here. On the one hand, the fact that there is a transgression here lets me talk at all in terms of agency, because otherwise this simply wouldn’t belong to the legal-halakhic sphere, there’d be nothing to discuss in terms of agency. On the other hand, since it’s a transgression, therefore there is no agent for a transgression—except in those places where it was newly taught that there is.

Now Netivot, elsewhere in section 348, asks on this basis—this is just a supplement to last time—and Netivot there says as follows: “And behold, in Tosafot Shevuot” — we saw that Tosafot in Shevuot also goes in this direction — “it implies that according to the one who holds that when the agent is not personally obligated, the sender is liable, even with a gentile agent he is liable,” see there, “and similarly in the commentary in Bava Metzia,” and so on. “At first glance this is difficult,” yes, see what I wrote in section 182 to resolve the difficulty that there is no agency for a gentile—that’s exactly the Netivot we saw. Now he says: “At first glance, according to this, telling a gentile to do work on the Sabbath should be a Torah prohibition.” Basically, when you tell a gentile to do labor on the Sabbath, for all of us it’s clear that this doesn’t belong to the regular category of agency at all. It’s instructing a gentile; the question is how to understand it, but it doesn’t belong to the regular category of agency. Why? Exactly because it’s like agency to stand on one foot. What do you mean? You send a gentile to sort something—this sorting has no legal significance, it doesn’t create any legal effect, it doesn’t do anything, so what does it mean to send a gentile? You can say there’s a prohibition on instructing a gentile for one reason or another, a rabbinic prohibition in the simple sense, but you can discuss it on that plane. It just doesn’t belong to the category of agency. But in light of what he innovated here—at least according to Tosafot in Shevuot and the Ritva elsewhere—that there is agency even for this type of thing, agency for an act, then if so, instructing a gentile should have been a Torah prohibition. What? A transgression. What the gentile does, from his standpoint—right, that’s what he’s saying. So he says: according to that, there should have been agency here.

So from his question itself you can see the point that was innovated here. Meaning, the point is: why can’t you derive this from ordinary agency? You can’t derive it from ordinary agency because this is agency for an act, and agency for an act is a monkey act—that is, it’s like agency to stand on one foot. So the fact that it’s a transgression is exactly what lets you speak here too in terms of agency in this context. But still, according to Tosafot in Shevuot and the Ritva, this is another category of agency; it doesn’t take me back into the regular category of agency.

And then he says: “Therefore it appears that specifically a transgression that is done in relation to a Jew who is commanded concerning it—the sender is liable when the agent is not personally obligated. For example, a priest who said to an Israelite, ‘Betroth a divorced woman for me,’ where through the agent the divorced woman becomes betrothed to the priest. And similarly with ‘shave the side-locks of an adult for me,’ where an Israelite becomes shaved through him. But if one says to a gentile, ‘Cook for me on the Sabbath,’ where the gentile is permitted to cook on the Sabbath and no transgression was done at all, and what was cooked and then eaten by the Jew has no Torah prohibition at all”—therefore there it doesn’t make sense to talk about the concept of agency.

This distinction is a bit problematic, because he’s not talking about an ordinary case where I send an agent to murder, where the agent also violates a prohibition and I also violate a prohibition. But a priest who sends an Israelite to betroth a divorced woman to him—the Israelite, with respect to betrothal to a divorced woman, is exactly like a gentile. What does it have to do with him? So where’s the distinction? What difference does it make whether he’s an Israelite or a gentile?

[Speaker B] The question is what his role is within the prohibition. On the Sabbath it’s a law where it matters who does the work. Meaning, the prohibition is not “to cook on the Sabbath,” but “that a Jew cook on the Sabbath.” And with betrothing a divorced woman there’s no special prohibition on a priest betrothing a divorced woman; there’s a prohibition that she become betrothed to a priest. But an interesting consequence of what he’s saying is that telling a Jew on the Sabbath would indeed already be a Torah prohibition.

[Rabbi Michael Abraham] No, because the Jew himself also violates a prohibition, so no—then it’s “the words of the Master and the words of the disciple.”

[Speaker B] Fine, so then the issue is “the words of the Master.”

[Rabbi Michael Abraham] In principle, yes—if not for “the words of the Master and the words of the disciple,” yes. So what you’re basically trying to say, I think—I mentioned that Maimonides at the end of the laws of forbidden mixtures and the parallels, I think, right? About someone who dressed another person in shaatnez. Right, didn’t I mention that? Someone who dressed someone else in forbidden mixtures. Right, it appears—

[Speaker C] At the end of the Gemara in Nazir.

[Rabbi Michael Abraham] Yes, so I did mention it, right? Yes. So what do we see there? That if someone dresses someone else in shaatnez, where the wearer is inadvertent and the dresser intentional, then the dresser receives lashes. And we saw there that the fact that he gets lashes means this is not “do not place a stumbling block,” because for “do not place a stumbling block” there are no lashes. So for what does he get lashes? He gets lashes for the prohibition of shaatnez. Now why? He didn’t wear shaatnez—the prohibition is to wear shaatnez, and he didn’t wear it. The claim is that if he is the one responsible for the fact that the agent—not the agent—the other person wore shaatnez, then essentially he violated the prohibition. Because from the Holy One’s perspective, basically according to the definition you gave before, a Jew wore shaatnez here—that’s the prohibition. And the one who caused that situation—not the one who wore the shaatnez, but the one who caused the situation that a Jew wear shaatnez—is the one who violated the prohibition. The prohibition is not “to wear shaatnez”; the prohibition is to create a situation in which a Jew is wearing shaatnez. That’s the prohibition.

[Speaker B] With shaving the head it’s stated even more explicitly. What? That the prohibition is not specifically to shave a head—necessarily your own—but it says in the Gemara in Nazir—

[Rabbi Michael Abraham] Yes, there the whole discussion is about the shaver and the one shaved, and the Avnei De’oraita asks whether if someone shaves himself he violates two prohibitions.

[Speaker B] So there the distinction is clear.

[Rabbi Michael Abraham] And even in Avnei De’oraita it’s very strange in light of what I’m explaining here. Avnei De’oraita discusses shaving the corners of the head—say I shave someone else. So the claim is that there is the shaver and there is a prohibition on the shaver and a prohibition on the one shaved, okay? Now Avnei De’oraita asks: what happens if I shaved myself? Did I violate two prohibitions, one as the shaver and one as the one shaved? Now when you look in the count of the commandments, there aren’t two prohibitions for the shaver and the one shaved. It wasn’t defined as a prohibition to shave. That’s it. You can say that if you understand like Maimonides, that when I shave someone else’s head and he is inadvertent and I am intentional, then I get lashes—there’s nothing special about shaving the head. It’s simply that principle of Maimonides. Then what sense does it make to say that if I shaved myself I violate two? If the other person isn’t guilty because he was inadvertent, then the one who created this thing is me, and therefore I violate. But if I am both the shaver and the one shaved, then of course I’m the guilty one. But what sense does it make to obligate me twice? There aren’t two transgressions here. What would you say? Maybe for some reason with shaving there really are two transgressions—I don’t know where that would come from. And why don’t they count it that way? But if there are two transgressions, then what’s the question? Obviously you violate two. Obviously—you are both the shaver and the one shaved. What’s the problem? If I did two transgressions together, does that make them not two transgressions? What? Either way, this whole discussion of “why should this one be different” is a very strange discussion. I once gave a whole lecture on it. It’s very hard to define. A lot of people quote the “why should this one be different” line and so on, but it’s very difficult to understand how he understands this whole issue of the prohibition of shaving the corners of the head—the prohibition on the shaver versus the prohibition on the one shaved. It’s odd.

Anyway, back to our subject. So yes—the claim is that with Sabbath prohibitions, basically, there should have been a prohibition. By the way, according to—there’s a contradiction in Rashi regarding instructing a gentile. In one place, I think in “Mi Shehechshikh,” Rashi says there that instructing a gentile is forbidden because he is his agent. And elsewhere Rashi says the prohibition is because of “and speaking of them,” that when you say something about doing labor on the Sabbath, you violate the prohibition of “and speaking of them” regardless of the fact that you spoke to a gentile and as a result he also did something. Rather, the very saying of those words is itself the prohibition. And the practical difference people often bring is: what happens if you tell a gentile on the Sabbath to do the labor after the Sabbath? If you’re speaking of him as your agent, and he acts after the Sabbath, then nothing happened. But if you’re speaking in terms of “and speaking of them,” that he spoke forbidden speech on the Sabbath, then he spoke forbidden speech on the Sabbath—that is, he spoke about doing labor on the Sabbath. But the Rashi there speaks about agency with a gentile stringently; it’s a rabbinic prohibition. There is a Rashi in “Mi Shehechshikh”—or, no, not “Mi Shehechshikh,” in “Eizehu Neshekh”—that rabbinically they also prohibited agency with a gentile stringently, yes? Where it comes out more stringently, they say that rabbinically there is agency for a gentile. Certainly no one is speaking of actual agency with instructing a gentile.

There is a Mekhilta brought in the Beit Yosef that says, “You shall not do any labor,” and from here he derives instructing a gentile, and it sounds like that’s a Torah law. Behag at least understands it that way; the Beit Yosef thinks it’s not Torah law, and that even the Mekhilta itself doesn’t mean it as Torah law—that’s his claim. But Behag says it is Torah law. And even Behag, who says it is Torah law, doesn’t derive it from the laws of agency; rather it’s from “you shall not do labor”—the labor was done, not because you operated through an agent…

[Speaker B] And according to that, the ideal state would be that gentiles too should cease on the Sabbath, which is something about which it says one is liable…

[Rabbi Michael Abraham] No, no—one should not do a Jew’s labor on the Sabbath. Yes, of course in the end it has to belong to the Jew. But “you shall not do”—after all, he is doing my labor. If you tell him not to do labor in his own house, that’s not called instructing a gentile. So there too you see that the source is that the labor was done, not because he is my agent. If you understand “a person’s agent is like himself,” then if he did it and he is my agent, it’s as if I did it, so it’s ordinary desecration of the Sabbath. He derives it from the passive formulation, from the wording of the verse—the passive wording, that the labor not be done, not that you not do labor. So even according to Behag it doesn’t look like he’s speaking of a concept of Torah-level agency in Sabbath labor.

Okay, in any event, the claim is that there are several later authorities (Acharonim) who wrote that with regard to the Sabbath, agency is totally inapplicable because this is “a matter of one’s own person.” And for something that is a matter of one’s own person, agency doesn’t apply. What does that mean? Simply speaking, the Sabbath prohibition says that you need to rest. “Rest” doesn’t mean not expending energy, but rather resting from labors. Okay? Now if you didn’t rest, then you desecrated the Sabbath. Now if you sent an agent not to rest on your behalf, that’s like sending an agent to sit in the sukkah for you. But in the end, you rested physically. After all, the whole question is what you did. And therefore this doesn’t belong to the categories of agency at all. Imrei Binah and Chatam Sofer challenge Rashi—what does it mean, agency to a gentile stringently? It doesn’t belong here at all to speak in terms of agency. Okay? In the end, you rested, and that’s it.

So this has interesting implications for how we understand the prohibitions of the Sabbath. And if Rashi understands that there are concepts of agency here, then Rashi apparently understands that Sabbath prohibitions are not really just physical rest of the body, but something a bit different. Even though this is rabbinic agency, not Torah-level agency, the point is that the concept of agency is the ordinary concept of agency. It’s just that in principle it shouldn’t exist here, and only the rabbis instituted concern for it. But the assumption of those later authorities—and it really is the more reasonable assumption—is that this still has to conform to the ordinary rules of agency. That is, the ordinary concept of agency. And on the Torah level, agency should not have helped in such a situation.

[Speaker B] The fact that agency is used here serves other purposes, and that makes more sense. It seems like a sort of intuitive reasoning, an extension of ideas like the rest of one’s animal and the rest of one’s vessels. Meaning, not agency…

[Rabbi Michael Abraham] On the Sabbath. That’s exactly what they’re arguing.

[Speaker B] Not the recruitment of agency—so I actually can understand Rashi that way.

[Rabbi Michael Abraham] So what does “recruitment of agency” mean? Then make it—after all, in any case it’s rabbinic. So make it rabbinic—what’s the problem? Simple: instructing a gentile is rabbinic. Any labor the animal does—no, no, the Gemara discusses that. We needed the verse, for example, when the animal eats. Fine, that’s a special permission. In principle, whatever labor the animal does—

[Speaker B] Yes, but okay, that only means there has to be some sensible form for the prohibition. You can’t just say that no labor should happen on the Sabbath and I’m responsible for it. So with a gentile too, they took the rules of agency. That’s how I understand it.

[Rabbi Michael Abraham] So that means the concepts of agency really don’t belong here. So they’re right. It’s just terminology. The concepts of agency don’t really exist here. It’s called agency for the sake of—

[Speaker B] some criterion, because—

[Rabbi Michael Abraham] because you can’t just say it vaguely.

[Speaker B] But the question, again—

[Rabbi Michael Abraham] whether it meets the ordinary standards of agency. But that’s exactly what they’re asking. They’re claiming: in the ordinary category of agency, it can’t stand.

[Speaker B] I’m trying to answer them.

[Rabbi Michael Abraham] Yes, but the question is whether you’re answering—

[Speaker B] that it has nothing to do with agency, but they took the—

[Rabbi Michael Abraham] all the criteria. Then that doesn’t answer. Then you’re accepting what they say. You’re saying Rashi didn’t mean what you think he meant. Rashi is saying what they themselves are saying, basically. He calls it agency, but it doesn’t meet the ordinary criteria of agency. What you’re really saying is that you accept their claim, you’re not answering them. Fine. That means he doesn’t mean the category of agency. But the way they understood Rashi was that he means the ordinary category of agency, even though it’s rabbinic. Because the rabbinic law is not an expansion of the concept of agency. The concept of agency exists; it’s just that on the Torah level it shouldn’t have been relevant to Sabbath prohibitions, because these are obligations of one’s own person. And where it’s a matter of one’s own person, agency doesn’t apply. Rabbinically, yes—like sitting in the sukkah, for example. There the rabbis had no interest in saying that rabbinically you sat in the sukkah, so of course they didn’t do that. So that remains under the Torah rule, that on the Torah level agency doesn’t apply to such a thing. In transgressions, in order to be stringent, they had some interest in prohibiting it rabbinically anyway, but it doesn’t enter the ordinary category of agency.

Okay, so until this point we were basically dealing with the first clause of the Mishnah: one who sends the fire in the hand of a deaf-mute, incompetent person, or minor. And there the whole discussion was, okay, so what—agency for a transgression was in the background, but ultimately the question is whether agency applies at all with a deaf-mute, incompetent person, minor, or a gentile. The latter clause—“if he sent it in the hand of a competent person, the competent person is liable.” There the Gemara’s discussion begins: how can it be that if he sent it in the hand of a competent person, the competent person is liable? Why shouldn’t the sender be liable? And now we really enter the laws of agency and the rule that there is no agent for a transgression, and so on. Because in the first clause of the Mishnah—I spoke about this—that it’s not even entirely clear whether we’re talking about the laws of agency at all. It could be that we’re talking about indirect causation in damages. When you send the fire in the hand of a deaf-mute, incompetent person, or minor, it’s not because of the laws of agency. It’s simply like indirect causation, like when you send the fire in the hand of a monkey, or you send the fire in some indirect way or other. If you have only indirect fault, then it’s indirect causation—exempt in human law and liable in the law of Heaven. Okay? In that case, you’re not even—maybe the first clause isn’t dealing with the category of agency at all. I think we spoke about that a bit in the medieval authorities (Rishonim) too. But in the latter clause, there the Gemara itself connects it to the laws of agency. “If he sent it in the hand of a competent person, the competent person is liable.” Why? Because once the competent person is there, it was clear to the Gemara that in terms of damage by indirect causation, that’s irrelevant, by the way. That was clear to the Gemara from the outset. Therefore it was clear to the Gemara that here it has to work through the category of agency and not through the category of indirect damage.

And why not? Maybe because of the reasoning of “the words of the Master and the words of the disciple,” which according to this the Gemara knew already from the outset, even though seemingly it only appears in the answer. Because it only appears in the answer to tell you that for the same reason you can’t treat him as someone who caused damage indirectly, you also can’t treat the agent as his agent. Because “the words of the Master and the words of the disciple—which words should one listen to?” Therefore, even in the category of agency you can’t obligate the sender.

In any case, the latter clause of the Mishnah deals with the category of agency. Rashi, when he brings the Gemara’s question—“Why not say that a person’s agent is like himself?”—says: “then his sender should be liable and not the agent.” Yes? “If he sent it in the hand of a competent person, the competent person is liable.” What does Rashi say? “His sender should be liable and not the agent.” What’s the novelty in Rashi? That when the Gemara says we should say “a person’s agent is like himself,” that has two implications. One implication is that the sender should be liable, because a person’s agent is like himself. The second implication is that the agent should be exempt. Because one could have said only the first implication: the agent is liable because he caused the damage, and the sender is also liable because a person’s agent is like himself. In a moment we’ll see what it means for both to be liable. But in Rashi there is a clear assumption: you can’t obligate two people. You have to decide—it’s either the agent or the sender. And if there is a law of agency here, then that means two things: the agent is exempt—so it isn’t true that the competent person is liable—and the sender is liable.

Okay, this is also in Rashi’s answer. He says: “An agent is not considered an agent for a transgression such that his sender should be liable; rather he is like one acting on his own.” Right? So “he is like one acting on his own,” and therefore what? Therefore he too is liable, and therefore the sender is exempt. Right? “An agent is not considered an agent for a transgression such that his sender should be liable.” That’s it. Rather, “he is like one acting on his own” comes to say that therefore he himself committed the transgression, because he acted on his own. So again you see in Rashi this dependency—that one depends on the other. Meaning, if he acts on his own, then he is liable and the sender is exempt. If he acts on the sender’s instruction, then the sender is liable and he is exempt. But this is a zero-sum game. It means either he is liable or you are liable. That’s it. You can’t obligate both. It doesn’t arise in the Gemara in any way. The initial assumption was to obligate the sender; the conclusion is to obligate the agent. That’s all. But one thing is clear both in the initial assumption and in the conclusion: there is no such thing as obligating both. It just doesn’t exist.

Now, one could have said here, since we’re dealing here with “he sent the fire in the hand of a deaf-mute, incompetent person, or minor,” and this leads to an obligation of payment, what would it mean to obligate both? Maybe each one half, like partners who caused damage, some kind of joint liability. One could have said that here that’s not relevant, but maybe with transgressions yes.

[Speaker B] Because here, if two people caused damage together, I can understand there being a division of responsibility.

[Rabbi Michael Abraham] No, with two people who committed a transgression there can also be division.

[Speaker B] Usually there isn’t—if two people did it.

[Rabbi Michael Abraham] It depends. It can be “this one could and this one could,” or “this one could not and this one could not,” depending on the case.

[Speaker B] But yes, here too seemingly—

[Rabbi Michael Abraham] But here, regarding payment, on the one hand one could indeed say: since you need to compensate the injured party only once, well then if one is liable the other should be exempt—you can’t obligate two. On the other hand, you could say the opposite: specifically in damage, first, you can divide the money like two people who damaged at the same moment; and second, there is a rule of lien, that if you can’t collect—“if there is nothing to collect from this one, you collect from the other.” If you can’t collect from the first damager, fine, then you have the second one as what’s called the deep pocket. Right? You can go to the second, because in terms of responsibility both are responsible. So specifically in damages there might have been more room to say that both are liable. Tosafot Ri”d—

[Speaker B] Then just a question: if the sender forced the agent to do it, according to the reasoning of “the words of the Master and the words of the disciple,” seemingly the sender should be liable.

[Rabbi Michael Abraham] I think that here again he would be liable only in the sense you mean. Meaning, say independently of agency he would still be exempt because it’s indirect causation, even though he forced the—

[Speaker B] The first one—it’s indirect causation.

[Rabbi Michael Abraham] But if he is his agent, and the whole problem with an agent is “the words of the Master and the words of the disciple,” then under coercion that problem doesn’t exist. So then I would indeed be liable under the laws of agency.

[Speaker B] Maybe one could say that a coerced person can’t be an agent? As if his act is some kind of—

[Rabbi Michael Abraham] No. In agency for an act, we even saw that even a courtyard can count as his agent. Yes, right. Or alternatively. No, it’s a question.

[Speaker B] No, no, it really could be. It’s within the bounds of something reasonable.

[Rabbi Michael Abraham] Okay. No, that will of course depend on the question whether the reasoning really is the basis for the rule that there is no agency for a transgression. It’s based on a dispute among the medieval authorities (Rishonim); I mentioned this last time as well. Usually people say it’s a dispute between Tosafot and the Ritva, or that it’s really some kind of reasoning, but the source is a verse. And then we say that the source from the verse basically means that the concept of agency was not introduced in a case where what you’re doing through the agent is a transgression. Not to attribute a transgression to someone else—the Torah doesn’t want to give you more tools in your toolbox in order to commit transgressions. What we discussed about seizing on behalf of a creditor in a way that harms others—we saw there that Rashi makes a distinction between acquisition on behalf of another and agency: with agency it’s possible, with acquisition on behalf of another it isn’t. And the claim is that acquisition on behalf of another is an appointment made by the Torah. The Torah does not appoint someone at someone else’s expense. I said there, by the way, that maybe you could explain in the same way the rule that there is no agent for a transgression. The Torah introduced the concept of agency, but it has no interest in broadening your arsenal of tools so that you’ll succeed better at committing transgressions. So in that case the very concept of agency was never introduced at all. Now if that’s so, then apparently in a case of coercion it also won’t be relevant.

[Speaker B] But in Rashi it seems the issue is blame. That’s the question: a transgression was committed, and we investigate who is to blame—that’s the whole law. And the reasoning of “the words of the master and the words of the student” simply transfers responsibility from one person to another. And the whole story of agency is personal.

[Rabbi Michael Abraham] So for example, let me maybe anticipate what comes later: there are two opinions in Tosafot in Bava Metzia about what it means when we say there is no agent for a transgression. Does it mean there is no agency here at all, or that the transgression does not pass on to the sender, though agency did exist? Yes? A practical difference would be, for example, what the Chazon Ish says about the sale of land during the Sabbatical year. His claim is that there is a prohibition here: selling the land during the Sabbatical year is prohibited. Since it’s prohibited, when you sell the land during the Sabbatical year—say, when the rabbinate sells the land during the Sabbatical year—then since there is no agent for a transgression, the land is not sold either. It’s not just that you committed a transgression; the land isn’t sold, because there is no agent for a transgression. Now of course that assumes that when you say there is no agent for a transgression, you mean the very concept of agency itself does not apply, or does not exist. But there are two opinions in Tosafot. Meaning, the Noda B’Yehuda disagrees with these things. For example, someone who sends a Jew to betroth a divorced woman on his behalf.

[Speaker B] Can I just ask something? And what would it help if I did it myself? An act done in violation doesn’t take effect.

[Rabbi Michael Abraham] No, the question of whether an act done in violation doesn’t take effect is a different question. And probably that principle won’t work here. No, this is the law of agency—there is no agent for a transgression. That’s a different question.

[Speaker B] No, but if it does help here after all?

[Rabbi Michael Abraham] What’s the connection? That principle has its own parameters—does it work, does it not work—but what does that have to do with there being no agent for a transgression as far as “the words of the master” are concerned? The principle that an act done in violation doesn’t take effect is not because of “the words of the master and the words of the student.”

[Speaker B] No, if it does help here anyway, even though an act done in violation doesn’t take effect, then you see that the sale itself is somehow something legitimate; the transgression sort of happens afterward.

[Rabbi Michael Abraham] No, no. I don’t think you can infer from one to the other. These are two different things.

[Speaker B] Why? I have a feeling the answer isn’t simple here either. Maybe I’m mistaken.

[Rabbi Michael Abraham] You have to think about it. I don’t know. It’s a different question. There are lots of things where you see that an act done in violation does take effect, and they aren’t even raised in the Talmud in Temurah. Lots of things. Sometimes the medieval authorities (Rishonim) already point it out. But there are many distinctions about which kinds of transgressions the rule applies to and which kinds it does not. Here, in the context of the Sabbatical year, I don’t know—we’d have to think about it. But I don’t think it’s necessarily connected to the question of agency.

[Speaker B] The sale isn’t a prohibition in itself—that’s the point. It’s more the result, the thing sold. I was thinking in that direction, but…

[Rabbi Michael Abraham] Say, for example, Rabbi Akiva Eiger on the rule that an act done in violation doesn’t take effect—he says that this applies only where, if you say it doesn’t take effect, that would undo the transgression involved.

[Speaker B] Okay, here it would undo it.

[Rabbi Michael Abraham] Exactly. So that’s why I’m saying that according to Rabbi Akiva Eiger it’s even more compelling that here an act done in violation should not take effect. Anyway, the claim is that according to Rashi the game is zero-sum: either the agent is liable or the sender is liable. Now on the face of it that really seems strange—why not hold the agent liable? In the end, the agent went and did an act that the Torah forbids him to do, fully aware, willingly, no one coerced him, nothing—why shouldn’t he be considered a transgressor? Or you can discuss whether this transgression can also be attributed to the sender. But why shouldn’t the agent be considered a transgressor? So there was definitely room to say that the whole discussion in the Talmud is a discussion of whether the transgression is also attributed to the sender, but that the agent is a transgressor is obvious. Okay. And I was in the middle of this claim. After all, I brought those two opinions in Tosafot in Bava Metzia—does the agency exist or does the agency not exist? So if you take the earlier explanation I gave, that the Torah didn’t introduce the concept of agency where it only helps you commit transgressions, then simply put the view is that there is really no agency here at all—not just that the transgression doesn’t pass on to the sender, because the concept of agency wasn’t introduced in such situations. Right? But if you understand it the way Rashi says, that it’s only a question of on whom to place the transgression, then it’s definitely possible that the concept of agency does exist, but I assign the transgression to the one who actually did it. So that can depend on these explanations, and we’ll see that later too.

In any case, Tosafot Ri”d actually writes—he disagrees with Rashi—and he says as follows: If the agent is competent, the competent one is liable. And why? Let us say that a person’s agent is like himself, and hold the sender liable. Explanation: even though the agent cannot exempt himself, since he is competent—a competent person, not a deaf-mute, mentally incompetent person, or minor as in the first clause. Right? He’s competent, and he committed a transgression, and he knows it’s a transgression, and he committed it. There is no reason in the world to exempt the agent. The agent is certainly a transgressor. So therefore the whole question is only about the sender. The agent is certainly liable, and even when we say there is no agent for a transgression, the agent is liable; and even when we say there is an agent for a transgression, the agent is liable. It’s just that when we say there is an agent for a transgression, then it’s not only the agent but also the sender. And the practical difference, he says, is that if there is nothing to collect from him, one collects from the sender. If you can’t get the damages from the agent—after all, you sent the fire through him—then you go to the sender. But it’s clear that the agent…

More than that, it seems here that the agent is the primary liable party, and if you can’t collect from him you go to the sender. The sender is a kind of guarantor. But basically the primary claim is against the agent. Because I saw you burning down my haystack—you’ll pay, that’s all. What do I care whether someone sent you or didn’t send you? Settle that with him. It may be that you can settle with him depending on whether there is or isn’t agency for a transgression. You pay me. In the end I see standing before me the one who committed the act. That’s the approach of Tosafot Ri”d. So it’s not like Rashi, where this is a zero-sum game and the question is on whom to place the transgression. As for the agent, clearly there is a transgression. The whole question… Admittedly, he’s talking about torts—someone who sends fire through a deaf-mute, mentally incompetent person, or minor. What would happen not in torts but in murder—a murder agent? What would there be according to Shammai the Elder, who says there is agency for murder?

[Speaker B] On the face of it, Rashi there is even more extreme.

[Rabbi Michael Abraham] What? In murder?

[Speaker B] Yes, it’s a zero-sum game. Why? Here too he’s right as a matter of reasoning, but as I understand it, guilt is not something you can divide, because in the end you have to ask: who is the person who bears the guilt? Splitting guilt equally between two people, or saying one is more guilty than the other, seems strange. If he is guilty, that means I had nothing to do with it.

[Rabbi Michael Abraham] What you’re saying itself—what you’re saying is this: I mentioned earlier Maimonides, the laws of forbidden mixtures in clothing. What does Maimonides actually say? If you are inadvertent and I am deliberate, I get lashes. If you are deliberate, then you get lashes. What happens when both of us are deliberate? Maimonides writes only that the one wearing it gets lashes; the one who dressed him in it does not.

[Speaker B] Why? After all, if I am deliberate and you are inadvertent, then I really violated the prohibition of forbidden mixtures.

[Rabbi Michael Abraham] So what difference does it make if you are deliberate? If you are deliberate, then there is guilt on you—that’s true—but what does that have to do with me? Meaning, you see there some assumption that once there is a transgression in the world, it is attributed to only one factor. It is not attributed to two factors. And that is really Rashi’s assumption. It’s Rashi’s assumption, but it isn’t just a plain logical necessity, right? What? I didn’t formulate the reasoning well, but what you’re saying is evidence. No, no—I mean, what is the evidence from, where does it come from? It comes on the basis of reasoning. A reasoning that says that in the end, once there is a transgression, there will be one person responsible for it. It’s like what we see in a case where two people do it, say: why is a case where each one could have done it alone different from a case where neither could have done it alone? Because when neither could have done it alone, that’s basically one causal factor for the transgression. The two of them together—the act is one causal factor for the transgression. But when each one could have done it alone, you’re trying to attribute the full transgression to each one separately. You can’t attribute a transgression to two people. Responsibility for a transgression belongs to one person. That’s the assumption, okay? Now how exactly to formulate the reasoning at the base of this—whether it really follows from ordinary concepts of guilt or whether this is some kind of treatment by the Torah, a decree of the text, that the Torah blames one person—we don’t have to look for what we’d call moral-value explanations here. But maybe you can understand it in that sense too. Because really, if you’re responsible, then you’re responsible, and he is irrelevant to this matter.

[Speaker B] Which of them is responsible—that’s a reason to exempt the other one, that’s the point. Because he’s saying: if the other is guilty of it, then practically speaking it’s on him.

[Rabbi Michael Abraham] But there really are situations where this question arises in other contexts, not in agency for a transgression. For example, say I coerce someone to do something that he was going to do anyway. Such a thing…

[Speaker B] I’ve already heard you discuss this.

[Rabbi Michael Abraham] I point a gun at him, okay? And I tell him, I don’t know, have relations with this forbidden woman. And anyway he was going to go have relations with that forbidden woman.

[Speaker B] So he’s not doing it because of my gun, I mean.

[Rabbi Michael Abraham] But he would have done it even if he didn’t want to, right? You agree to that.

[Speaker B] Right, and therefore he’s not doing it because of the gun.

[Rabbi Michael Abraham] No, I’m saying he would have done it even if he didn’t want to because of my gun.

[Speaker B] That’s true, but we’re not interested in what would have happened otherwise; those are possible worlds.

[Rabbi Michael Abraham] No, it’s not “otherwise”—it does, yes, it does say something. Because the “what would have happened otherwise” is an indication that even when he did do it… Why? I would call that causal. Why? You wouldn’t. On the contrary.

[Speaker B] Nothing in reality pushed him.

[Rabbi Michael Abraham] On the contrary, it seems completely symmetrical to me. I claim that if your logic is right, then he too is not a causal factor—namely, the fact that he did it willingly. Because after all, he would have done it even without the will, so the will also isn’t a causal factor. This hypothetical indicator that asks what would happen without it—that’s usually how we measure it. How do I measure whether someone is a cause? Like the “two sides of the river” case in “do not place a stumbling block.” What does “two sides of the river” mean? It means: without you, would the transgression have been carried out? Right? That’s basically what it means. Because if you’re on one side of the river, then even without me he could have carried out the transgression. “Two sides of the river” means that without me it wouldn’t have happened. And therefore I’m seen as causing the transgression. Very often the criterion is the negative question. Right? How do I measure whether my influence is causal? Let’s remove it for a moment and see whether it still would have happened. If it wouldn’t have happened, that’s a sign that the influence is causal. Now when you measure it that way, then both the threat with the gun and his own desire—if you remove either one, it still would have happened. Their status is symmetrical. And therefore in such situations it’s not a simple question whether I can still insist that there is only one guilty party. Meaning, if one is guilty then the other isn’t guilty—and if so, which one?

[Speaker B] I don’t think it’s symmetrical, because the gun threat doesn’t move his hands. In the end it goes through his will in any case.

[Rabbi Michael Abraham] And if it didn’t go through his will?

[Speaker B] If it didn’t go through, then I’d listen.

[Rabbi Michael Abraham] But the gun threat also doesn’t move his hands; his decision moves his hands. Even if he doesn’t want to.

[Speaker B] Fine—it is possible to move a person’s hands even without his wanting it, but that’s not what happened here. With the gun, you forced him to want to move his hands, so now when he also wants to…

[Rabbi Michael Abraham] In the end it wasn’t the gun that moved his hands, his desire moved the…

[Speaker B] …hands, that’s what I’m saying. That’s why it’s not symmetrical.

[Rabbi Michael Abraham] Even when he doesn’t want to—when he doesn’t want to and I threaten him with a gun, the gun didn’t move the hands.

[Speaker B] Of course. I’m just explaining why it’s not symmetrical. I’m saying, if you changed his desire, and without changing his desire he wouldn’t have done it, then changing the desire is the thing for which I assign you responsibility. But here, changing his desire from someone who does it because he wants to—that is not what caused him to commit the transgression. You changed his psychological state from one state in which he moves his hands to another state in which he moves his hands. You did do something, but…

[Rabbi Michael Abraham] The other state in which he moves his hands is that I moved the hands, not he. Yes—the other state is with the gun.

[Speaker B] In any case it was he who moved the hands, no?

[Rabbi Michael Abraham] But if he doesn’t want to, you treat the gun threat as though that’s what moved the hands, right? In the case where he doesn’t want to.

[Speaker B] Even in the case where he doesn’t want to, I agree he did it. Why are you guilty? You’re not guilty? We don’t attribute the act to you—that’s not the story. If you physically moved his hand, then the act is attributed to you, no? That’s something else.

[Rabbi Michael Abraham] Then he’s a hammer.

[Speaker B] If you threatened him with a gun, then we don’t attribute the act to you. He did the act, and you’re guilty. You’re guilty because without your threat—okay…

[Rabbi Michael Abraham] So that’s called attributing the act. What difference does it make? It’s your guilt, therefore…

[Speaker B] As someone who merely moves another person’s hands, you don’t need to get to the point that you’re guilty because…

[Rabbi Michael Abraham] That’s obvious, obvious. But in halakhic terms it’s considered that you moved his hands. If you physically move his hands, then he’s not a person, he’s a hammer—you use a hammer. But I’m saying the law of coercion says, “but to the young woman do nothing.” The law says it’s considered as though you moved his hands. Now if that’s the determination, then even when he wants to, after all you moved him into a state where you are moving his hands. That’s the meaning of guilt. Otherwise why am I guilty? What am I guilty of?

[Speaker B] You’re guilty also…

[Rabbi Michael Abraham] Without him—am I forbidden to change someone’s desire? Where is that written? I’m forbidden to have relations with a forbidden woman. But where is it forbidden for me to change someone’s desire? What prohibition is there against changing desire? You see that I’m viewed as someone who caused the prohibited relations—that’s the point. Not changing the desire. Changing the desire is the way I did it, but that’s not the transgression. The transgression is the prohibited relations.

[Speaker B] I don’t think so. I don’t know what is proved from the fact that a person is liable in such a case that this means he did the act—no.

[Rabbi Michael Abraham] I think you see that he is viewed as bearing the responsibility, so that means as if…

[Speaker B] I understand that he’s viewed as bearing the responsibility, but the question is whether he’s viewed as the one who did…

[Rabbi Michael Abraham] …the act. If I put a gun to you and you have relations with a forbidden woman, they won’t execute me as one who had relations with a forbidden woman—though according to Maimonides maybe yes.

[Speaker B] Yes, according to Maimonides maybe yes.

[Rabbi Michael Abraham] Even though we haven’t found a case of “this one benefits and that one is liable,” I don’t know exactly. But according to that Maimonides in the laws of forbidden mixtures in clothing, maybe they really would execute you as well. After all, even if you are deliberate and he is inadvertent—here not only are you deliberate, you are coercing him to do it.

[Speaker B] No, according to that Maimonides, then on the contrary, it works out well, no?

[Rabbi Michael Abraham] But the question is why you aren’t responsible. You aren’t responsible because it’s attributed to him. That’s what the later authorities (Acharonim) explain regarding the exemption of coercion—you aren’t responsible because it’s attributed to me.

[Speaker B] No, even without that he wouldn’t be responsible. If a machine coerced him, he still wouldn’t be…

[Rabbi Michael Abraham] …responsible. That’s…

[Speaker B] …the reason it’s attributed to someone else.

[Rabbi Michael Abraham] Yes. The assumption in this passage, after all, is the assumption you mentioned earlier: that whenever there is a transgression, there is one person responsible for it—either you or him. Now if I’m not guilty, then who is?

[Speaker B] There you don’t have to get to that. There are things no one is guilty of. No one is guilty in the case of a borrower—what?

[Rabbi Michael Abraham] The reason I’m not guilty is because there is someone else who is guilty. No, not always—in coercion I’m talking about.

[Speaker B] In coercion it’s not like that. A person gets up late because his alarm didn’t ring; it broke in the middle of the night.

[Rabbi Michael Abraham] Fine, because that’s really coercion. No one is guilty.

[Speaker B] Exactly.

[Rabbi Michael Abraham] But if someone else caused this thing to happen to me, then he is guilty and not I.

[Speaker B] Exactly. You can exempt because he is the one responsible, and you can exempt because I’m not, and the two don’t always depend on each other.

[Rabbi Michael Abraham] If that’s so, then I return to our case—it’s the same thing there. Also in our case it’s the same. So why is there dependence according to Rashi? Why is there dependence according to Rashi? You could say both are exempt. You could say it’s exempt…

[Speaker B] …and this one is liable—that both are exempt. You could say both are liable. That’s what Rashi says. But Rashi says: if so-and-so agreed, that means I’m not responsible and someone…

[Rabbi Michael Abraham] …had to take care…

[Speaker B] …but…

[Rabbi Michael Abraham] So I’m saying, the claim that he is responsible is unrelated to the question, to the conclusion, that I’m not responsible. I’m not responsible, period. As for him, that should be discussed separately. Rashi ties these two things together.

[Speaker B] That’s because you’re not guilty if the other one is. Because from the outset the responsibility is on him; I don’t need to worry that you…

[Rabbi Michael Abraham] …won’t do it. But that’s not relevant to the discussion about the sender. It’s not relevant whether the responsibility is on him. The question is whether there is responsibility on the sender. You say that these questions are independent: the discussion whether I am responsible is one discussion; the discussion whether there is someone else responsible is another. In Rashi it looks like they are two sides of the same coin.

[Speaker B] Because they are half-dependent. You can’t make both of them liable.

[Rabbi Michael Abraham] Then why not in coercion too? In coercion as well, the reason they don’t hold you liable is that someone else is guilty, no?

[Speaker B] In coercion I see a different exemption.

[Rabbi Michael Abraham] But it looks the same. Fine, okay. So according to Rashi, the discussion is which of the two is liable. According to Tosafot Ri”d, the discussion is about the sender, but the agent is certainly liable. What would it be according to Tosafot Ri”d in actual transgressions? It’s not clear. But simply it seems that Tosafot Ri”d is speaking about agency for a transgression in general. He doesn’t think he’s speaking specifically about something that—on the contrary, in torts he holds that there is less room to say that both sender and agent are liable. He says yes, but it’s possible, because if there is nothing to collect from one, one collects from the other. If you can’t collect from the agent, go to the sender. In transgressions there is no problem at all—give both of them lashes, what’s the problem? To compensate the injured party twice? Why compensate him twice? He gets his compensation and that’s all; there is no reason to make two people pay. There he has his answers—that if you can’t collect from this one, you go to the other. But in transgressions, if there is agency for a transgression, that means both get lashes. But in the case where the one who actually did the transgression is the agent? He says: even though the agent cannot exempt himself, since he is competent. He’ll say that about transgressions too. Exactly the same argument applies to transgressions. I sent an agent to murder, okay? You can’t exempt him, because he’s competent and he murdered. There is room to discuss what about me—whether there is or isn’t agency for a transgression. But as for the agent, it’s obvious that this is so.

[Speaker C] From the standpoint of his awareness. Yes.

[Rabbi Michael Abraham] This reasoning that he brings here regarding sending the fire applies to every transgression. On the contrary, the conclusion that perhaps you could even hold both of them liable—it would make sense to say that in torts this isn’t relevant. In murder, execute both of them. Both are murderers—execute both. What’s the contradiction between executing this one and executing that one? If both are murderers, execute both. In monetary compensation, though—there’s no punishment there. Payment is compensation, and compensation means compensating the injured party once. Why in the world should both compensate him? He says even there it makes sense to penalize both in the form that if you can’t collect from this one, you collect from that one. I think this should be read as “even” there, not specifically in torts. That’s what I said at the beginning: the question is whether torts are the more lenient case or the more stringent case. I think that according to Tosafot Ri”d it’s clear to him that in ordinary agency for a transgression both become liable; they would have become liable if there were agency for a transgression. And in torts there would have been room to say not so, because there is only one compensation, and then he explains no—even in torts it’s like that, according to the principle that if you can’t collect from this one, you collect from that one.

The Shakh, as the Shakh writes in section 182, discusses this in those places where the Torah introduced that there is agency for a transgression. Right? Here we’re discussing the Talmud’s initial assumption that there is agency for a transgression in general. But in the conclusion there is no agency for a transgression. And there are certain places where the Torah introduced that there is agency for a transgression. What happens there? Does agency for a transgression there mean that the agent is exempt and only the sender is liable? Or no—both the sender and the agent are liable? On the face of it that’s the same dispute. Now that I think about it, that’s not correct. Because the dispute here speaks about the stage before it was established that there is no agency for a transgression, and then the question is what the discussion is about—whether to hold both liable or only the agent liable, as Tosafot Ri”d says. But in the case of the Shakh, the Shakh is speaking after we already know there are the words of the master, and we know that there is no agency for a transgression. Everything is already known, we’re done. So what does that mean? That basically only the agent is liable. Right? That’s the rule. Now the Torah comes and says: yes, but there are certain places where there is agency for a transgression. The Shakh says: in those places it isn’t that the agent is exempt, because after all, from the rule that there is no agency for a transgression we learned that the agent is always liable. What was introduced in those places is that the sender is also liable. But that doesn’t mean he agrees with Tosafot Ri”d. There Rashi can agree too. Do you understand why? Because after the Torah introduced that there is no agency for a transgression, then according to Rashi what did it introduce? That you, as one sent to commit a transgression—you, as the agent, will be liable. Because “the words of the master and the words of the student”—it doesn’t matter, you will be liable. Now after that was introduced, the Torah says yes, but in misuse of consecrated property or in certain places there is agency for a transgression, despite the general rule that ordinarily there is no agency for a transgression. In those places there is. What was introduced there according to Rashi? It could be that even according to Rashi, what was introduced there is the principle of Tosafot Ri”d. After all, what was introduced generally by there being no agency for a transgression means that the agent cannot be exempted. Right? The agent cannot be exempted—”the words of the master and the words of the student, whose words should one obey?” If you committed a transgression… No, that comes out—not as a reasoning. For Tosafot Ri”d it’s a reasoning. But I’m speaking now within Rashi’s view. For Rashi he doesn’t have that reasoning. I claim it’s the verse. It’s not a reasoning. The Torah introduced to us that there is no agency for a transgression—or by reasoning, it doesn’t matter, but from a verse. The Torah introduced that there is no agency for a transgression.

[Speaker B] Okay, what does that mean? The reasoning was introduced in a verse?

[Rabbi Michael Abraham] No—either in a verse, doesn’t matter. Or it was introduced in the Talmud. For me that isn’t important.

[Speaker B] No, but if it was introduced in the Talmud, then I understand that just as you introduced it in that case, you should also introduce it in… also in places where the Torah says there is agency, the reasoning of “the words of the master” still remains.

[Rabbi Michael Abraham] No, the reasoning of “the words of the master” is exactly what the Torah says does not apply there, because there the sender is liable. But that doesn’t mean the agent is exempt.

[Speaker B] Exactly. It’s not that the reasoning of “the words of the master” is absent, but that nevertheless there is agency for a transgression. Then there is agency for a transgression and there is also the reasoning of “the words of the master,”

[Rabbi Michael Abraham] and how do you reconcile them both?

[Speaker B] Therefore both are liable. And that’s what comes out. So…

[Rabbi Michael Abraham] I don’t understand. So bottom line you’re telling me that even according to Rashi both would be liable? Right. So what… so where’s the disagreement?

[Speaker B] Go back to it again, okay? Not because it was introduced in the Torah. Rather because that same reasoning that existed in the case where there is no agency for a transgression, which always tells us there isn’t, remains even after the Torah introduces that there is.

[Rabbi Michael Abraham] Right, that’s what I said. I said: why is the agent liable? Because after the Torah introduced that there is no agency for a transgression, according to Rashi it introduced two things. It introduced that there is no agent… no, the Torah or the Talmud by reasoning, I don’t care. After the introduction that there is no agency for a transgression, what is written in that introduction according to Rashi? What is written there is not only that the sender is exempt, but that the agent is liable. And the initial assumption or reasoning of Tosafot Ri”d—according to Rashi it is not a plain independent reasoning; it was introduced by that. From “the words of the master” or from the verse or whatever it may be. After that was introduced, what does it mean? That if you, the agent, committed a transgression, you cannot be exempted. Ah, now suddenly the Torah comes and says: yes, in certain places there is agency for a transgression. What is it saying? Exactly what it is saying—that the agent is liable, and the earlier innovation remains; you cannot exempt an agent who committed the transgression himself. What is added is that the sender also cannot be exempted, and both will be liable. And Rashi too can agree to that. So it doesn’t have to go together with… with Tosafot Ri”d.

[Speaker C] According to Tosafot Ri”d, if there is agency for a transgression, then according to Tosafot Ri”d both the agent and the sender are liable.

[Rabbi Michael Abraham] If there is no agency for a transgression, then…

[Speaker C] …only the agent is liable. Yes. And if there is agency for a transgression, then the sender is also liable. And according to Rashi…

[Rabbi Michael Abraham] And according to Rashi it’s either the sender or the agent. What do you mean, either?

[Speaker C] Is there also a possibility that the sender would be liable?

[Rabbi Michael Abraham] No. If there is agency for a transgression, then only the sender; if there is no agency for a transgression, then only the agent. So it’s either only this one or only that one; there is no situation where both are liable. I’m saying that even according to Rashi, after the Torah introduced that there is no agency for a transgression—whether by reasoning or by Torah, doesn’t matter—what did it say by that? It said that you cannot exempt the agent. What Tosafot Ri”d says, Rashi also agrees with. Rashi just claims that this is the innovation of the reasoning of “the words of the master.” Tosafot Ri”d takes that for granted even before the reasoning of “the words of the master.” Rashi says no—that is exactly what was introduced by “the words of the master.” How can you exempt him? “The words of the master and the words of the student, whose words should one obey?” How can you exempt him? He committed a transgression. He didn’t listen to the master. Why shouldn’t he be punished? What do you mean? He committed a transgression. That is the innovation of “the words of the master and the words of the student,” or of there being no agency for a transgression. Now the Torah comes in certain places, for example in misuse of consecrated property, and says there is agency for a transgression there. That doesn’t uproot the basic innovation. It means that here something additional was added: that the sender is also held liable. And then it comes out that what the Shakh says there in section 392 can fit with Rashi as well, not only with Tosafot Ri”d. Because Rashi here is speaking about the very innovation that there is no agency for a transgression—what the initial assumption was and what was introduced. The Shakh is speaking after there already was an innovation. There is this innovation. In those places where there is agency for a transgression, what do we do?

Tosafot Ri”d immediately afterward raises the famous challenge: “For there, there is no agency for a transgression.” Some ask: if so, then for every commandment agency should work, and a person could say to his fellow: sit in the sukkah for me, put on tefillin for me. Now why does that appear here?

[Speaker B] Here it hints that there is agency for an act.

[Rabbi Michael Abraham] Right, it has to be. After all, what do you want from… from… You can ask that question after we’ve learned that a person’s agent is like the person himself: okay, so why can’t he sit in the sukkah on my behalf? Why does he bring it in here? Because he feels that here, with agency for a transgression, the discussion has been renewed. In the end there is no agency for a transgression, but the discussion about agency for a transgression—or even in those places where the Torah innovated that even according to the conclusion there is agency for a transgression—the discussion itself is a discussion in a different passage of agency. It’s agency over an act. Ah, there is agency over an act? So then why doesn’t that help for a commandment? Now notice what he is really assuming in the dispute we saw. If he learned like the Netivot, there is no room for this question. The Netivot, in the Ritva and in Tosafot in Shevuot. Why? Because what did the Netivot say? The Netivot said there is no agency for an act, because the law in the ordinary passage of agency is only agency for legal authority. In agency for a transgression, it was newly introduced that there are certain transgressions in which there is also agency for an act. And that is only in those places. Like misuse of consecrated property and so on, slaughtering and selling, or a few specific places and not everywhere—but in those places it was introduced that there is also agency over an act. And therefore the gentile and the minor and the deaf-mute, mentally incompetent person, and minor and so on are also relevant to this. Now, according to this Netivot, is it possible to ask about commandments? Of course not. Where would you get that from? After all, it does not emerge from the ordinary passage of agency. Right? Because the ordinary passage of agency is agency over legal authority. What does that have to do with it? Agency for a transgression does not come from there either, nor does agency for a commandment. What was introduced here? Here it was introduced that there is also agency over an act in certain places when it comes to three specific transgressions that the Torah spoke about. Okay, even the other transgressions are not like that, so where would you derive this regarding commandments? Clearly, in this context the Tosafot Rid goes like Tosafot, not like the Ritva. He understands that agency for a transgression is learned from the ordinary passage of agency. And from the ordinary passage of agency I derive both agency for legal authority and agency for an act, and not only agency for legal authority. And when we learned “so shall you also separate” regarding agency in terumah, I showed there that it could be that from agency in terumah itself these two kinds of agency really emerge. And I suggested another possibility, that it comes from “and he sends” and “and she sends,” let us say an agent for receiving. An agent for receiving is really agency for an act. He does not do anything; he is simply the hand that receives the bill of divorce on behalf of the woman. Okay? So what do you need there? After all, he does not need the authority of the recipient of the bill of divorce, because even the woman herself has no authority. She is not a legal functionary in this process of receiving the bill of divorce. So what is it? The act of receiving the bill of divorce that he performs is considered the woman’s act. That is completely agency over an act. And therefore it absolutely could be that this is the source for agency over an act. Either way, the ordinary passage of agency really can be used to learn agency over an act and not only agency over legal authority. Which is exactly the view of Tosafot here. In contrast to the view of the Ritva and Tosafot in Shevuot, who say no—according to the Netivot’s explanation—they say no, this is a different passage of agency, and it was introduced only specifically regarding a few transgressions about which the Torah said that there is an agent for a transgression. So according to those views, Tosafot Rid’s question cannot even be asked. There is no source obligating us to view someone who sits in a sukkah on my behalf as though I sat in the sukkah. According to the other views, the view of our Tosafot and others—and Tosafot Rid apparently goes in that approach—there is room to ask. If you tell me that from agency for legal authority, which is learned from “so shall you also separate,” we also learn agency for an act, except that with transgressions we exclude it because of the logic of the words of the master versus the words of the student—because of that logic, there specifically there is no agency, not because essentially agency cannot exist for a transgression. It can exist, because there is agency over an act. It is only that this act is a transgression, so simply because of the logic of the words of the master and the words of the student, there there will be no agency. Then Tosafot Rid’s question becomes compelling: okay, what about a commandment? In agency over an act, and there there is no problem of the words of the master and the words of the student—it is not a transgression. Why shouldn’t that work? So I think the Tosafot Rid, in the link he makes between agency for a commandment and agency for a transgression, places himself very clearly on the side of Tosafot, against the Netivot and the medieval authorities (Rishonim) as explained by the Netivot. One practical difference, for example, that could come out of this is whether in agency for a transgression the agency really takes effect and only the transgression is not attributed to the sender, or whether there is no agency at all. What we discussed with the Chazon Ish, say, regarding the sale of land. Right? Why? Because if you say I have no source at all for the concept of agency in commandments or in transgressions, then that basically means there is no agency, and of course the sender also did not commit a transgression. The agency simply does not exist here. But if you say that the concept of agency does exist here, only in transgressions it was excluded because there is no agent for a transgression—fine. Then here there is room to discuss at least, it does not have to be so, but there is room to discuss whether what was excluded is only attributing the transgression to the sender. But that does not mean the concept of agency does not exist in transgressions. Because it does exist. We learn it just as we generally learn agency for an act from agency for legal authority, so maybe agency for an act of transgression too? Only to attribute transgressions to someone else—that the Torah did not innovate, the concept of agency in that context—and that opens the possibility, not forces it but opens the possibility, to say that the concept of agency exists, and only attribution of the transgression does not exist. But all this is not in the Chazon Ish’s case of the sale of land. Because the Chazon Ish’s case of selling land is talking about a situation where the agency is agency for legal authority, not for an act. You receive authority to sell my land. You cannot sell my land on your own. It is not like murder. It is not a transgression of an act; it is a transgression of an action that imposes legal effect, a legal act. So here I really am delegating authority to you. So the concept of agency there, even though it is a transgression—if it exists, we… He is talking about a situation where the agency is agency for legal authority, not for an act. You receive authority to sell my land. You cannot sell my land on your own. It is not like murder. It is not a transgression of an act; it is a transgression of a legal act that imposes legal effect. So here I really am delegating authority to you. So the concept of agency there, even though it is a transgression, if it exists, we learn it from the ordinary passage of agency. It is not the agency from the parallel passage of the Netivot. Most transgressions are not like that, but there are transgressions that are. For example, when I go to betroth a woman to a priest—a divorced woman to a priest—it is like that there too, right? Because there too the transgression is the creation of the legal effect of betrothal with the divorcee. It is not murder, where I murdered him and so he is murdered. I do not need to receive authority from you in order to murder. I murder, and so I murdered. But in betrothing or divorcing a woman, I cannot betroth or divorce your woman. Okay? So if a priest sends me to betroth a divorcee for him, okay, then there it is agency for legal authority, not agency for an act. Right? So even if you say like the Netivot that in ordinary transgressions this is agency for an act, in transgressions of this type even the Netivot knows that these transgressions involve agency of the type of agency for legal authority, not agency for an act. A practical difference, for example, is that if there is a situation where there is an agent for a transgression, this will not include a gentile or a minor, because there they were excluded; that is the ordinary passage of agency. It is not the same as agency to murder. Okay? There is no such thing because I do not think that… maybe with misuse of consecrated property. Misuse of consecrated property might be something like that. Because with misuse of consecrated property you are basically taking something out of the ownership of the Temple treasury; you are indeed performing an act that has legal significance. You take the object into ordinary status, you acquire it through the words of misuse. And if misuse is theft from the Temple treasury, or whether the theft is the result of the misuse—yes, that is an inquiry of the later authorities (Acharonim). Is misuse theft from the Temple treasury—just that when you steal from the Temple treasury that is called misuse? It is basically theft, only since it is directed toward the Temple treasury it is called misuse. Or no, misuse is taking the object out to ordinary status, and once you took it out to ordinary status you also stole it because suddenly it became yours. So that is a result of the prohibition of misuse; it is not the definition of the prohibition of misuse. Okay? What is the practical difference? If that is the definition of the prohibition of misuse, then that means that even misuse belongs to the class of agencies that are agency for legal authority, not for an act, because I need to acquire the item. Okay? Fine, you say: I use it. I used it, that is like murder. I used the object and it went out to ordinary status, that is like murder. It does not need—this is not agency for legal authority, this is agency for an act. Okay? And the practical difference is large, because misuse is one of the things for which it is newly introduced that there is an agent for a transgression. All of the Netivot’s discussions regarding these cases turn on the question whether they are really all agency for an act, as the Netivot says, or not. It could be that he understands misuse that way, but in fact that is apparently a dispute; the later authorities discuss this issue. Okay, so Tosafot Rid answers: “And it is not correct, for a commandment that the Omnipresent obligated one to perform with his own body—how can he discharge his obligation through his agent while he himself does nothing? Certainly in divorce and betrothal it works, because he is the one divorcing and not the agent, for in the bill of divorce it is written, ‘I, so-and-so, have released so-and-so.’” Right? What is written in the bill of divorce? I am the one divorcing; the agent is not divorcing. “And likewise with betrothal, to whom is she betrothed? To him, and she is his wife. And likewise with terumah, he gives the terumah from his produce. And likewise with the Passover offering, he eats it, even though it was slaughtered and the blood was sprinkled. But with a sukkah he too can say to his agent, ‘Make a sukkah for me,’ and he sits in it. But if his fellow sat in it, he fulfilled nothing. And similarly with the lulav and tzitzit and all the commandments.” This is very reminiscent of the Avnei Nezer and the Chatam Sofer regarding agency of a gentile in instructing a non-Jew on the Sabbath. Because there too, in the end what is required of me is to rest on the Sabbath, not to do labor on the Sabbath. And let’s say there is an agent for a transgression and I sent an agent and he kindled a fire on the Sabbath. Still, my body rested on the Sabbath. That is not relevant to the concept of agency. Fine? So basically what Tosafot Rid is answering here is that the concept of agency for a commandment is agency over an act. And the act has to be done by the one who is commanded, by the one who performs it. In short, there is no such thing as agency over an act. That is what Tosafot Rid says: there is no such thing as agency over an act. That is his answer.

[Speaker B] But there is such a thing as agency over an act; it’s just that the act wasn’t done. If the agent puts tefillin on my arm, then fine.

[Rabbi Michael Abraham] No, that’s not agency. Then I put on the tefillin.

[Speaker B] The hand put on the…

[Rabbi Michael Abraham] No, that’s not the concept of agency at all.

[Speaker B] Fine, so it would help not from the side of…

[Rabbi Michael Abraham] So what does it mean to say there is agency over an act, only here the act is missing? That is exactly what it means to say there is no agency over an act: when you do it through an agent, you did not do the act.

[Speaker B] The act is in so-and-so’s body; that is part of the definition.

[Rabbi Michael Abraham] Then that is not agency at all; an act simply happened, that’s all.

[Speaker B] And there is someone who caused it to happen. Anyone who causes so-and-so’s body to put on tefillin, that is fine for me. If I send someone to put them on me, you’re saying I fulfill it even without agency, because the point is that the tefillin are wrapped on me, right? Part of the point was to wrap the straps on my arm. And that happened, so it would have been fit for agency. Why? Why not? Because the idea is not that so-and-so should wrap them on himself, but that there should be tefillin on your arm.

[Rabbi Michael Abraham] No, look: “and you shall bind them”—that’s the… You started from the idea that the result has to be that the tefillin are there, and then you said, wait, but let’s discuss the placement. Maybe there is a law requiring wrapping. If there is a law requiring wrapping, then there is a law on the act itself and not only that it should be on the…

[Speaker B] No, I used the concepts of agency to explain why you do not fulfill the obligation—on the contrary, why you do not fulfill the obligation when someone puts them on himself on your behalf.

[Rabbi Michael Abraham] On himself on my behalf? Because they are not on me; it has nothing to do with agency.

[Speaker B] No.

[Rabbi Michael Abraham] Because of agency? Look, they are not on me. That is what Tosafot Rid says. Exactly that is what he says. He says I need to have tefillin on me. There were no tefillin on me—what do you want? I need to sit in a sukkah. It didn’t happen. That is the concept that there is no agency over an act.

[Speaker B] You don’t have to get to “there is no agency,” fine. There is no agency over an act only because simply… that’s what it means.

[Rabbi Michael Abraham] “No agency over an act” means: if you were required to do an act, you did not do it. Agency is relevant only to creating legal effects, agency over legal authority, and there no act is required; only a result is needed. If the result happened, it can be attributed to me. The Torah introduced that it is attributed to me even if an agent brings about the result. But agency in an act does not exist precisely because of that requirement, because you have to do the act, and you did not do it.

[Speaker B] I wouldn’t define it as “I need to do the act”; rather, the act that needed to be done was not done. As part of the definition of the act, in the end the result has to be that the tefillin are placed on my arm.

[Rabbi Michael Abraham] No—on my arm, that happened. They are on my arm. What do you mean, no?

[Speaker B] No, when he puts them on for me—that’s what Tosafot Rid says, that’s how he explains it. What he means to say is: if the result in the end, then…

[Rabbi Michael Abraham] “There is no agent for a transgression” is irrelevant here, obviously. It’s simply defective in terms of the commandment.

[Speaker B] Right, that’s what Tosafot Rid says.

[Rabbi Michael Abraham] Okay, so what?

[Speaker B] But because you ask why we need to get to the law of agency, “there is no agent for a transgression”—no, no, this is “there is no agent for a commandment.” There is no… agency does not help here. That is what he writes. It makes sense: it does not help not because there is a problem in the laws of agency.

[Rabbi Michael Abraham] It does not help because in the end it was not done, and I claim that this is what is called “there is no agency over an act.” That very principle itself is what is called “there is no agency over an act.”

[Speaker B] Yes, there is a practical difference because…

[Rabbi Michael Abraham] According to what I’m saying, there is agency over an act. If the definition of the act of the commandment had not been to place tefillin on so-and-so’s arm, but generally to place tefillin, I could have sent someone even though it is agency over an act. True, the agency would have been to do an act, to wrap tefillin on someone’s arm—that would have worked. The problem here is simply that the act that needed to be done did not occur. That is what I call “there is no agency over an act.” I do not make it depend on the question whether the commandment is result-based or act-based; rather, what needed to happen simply did not happen, what the Torah required was not carried out. Okay, now you really cannot finish the discussion of “there is no agent for a transgression” without this dispute. “The words of the master and the words of the student—which should one obey?” Actually, I’ll start with that. Yes, the Rema writes in Choshen Mishpat 182: “In every matter, a person’s agent is like the person himself, except regarding a transgression, for we hold that there is no agent for a transgression. And specifically when the agent is himself obligated, but if he is not obligated, he is an agent even for a transgression.” So the Sma writes there as follows: “Except regarding a transgression, because ‘the words of the master and the words of the student—which should one obey?’ And the sender can say: I assumed he would not obey me to do it, therefore the sender is not liable. But if the agent is not himself obligated, this reasoning does not apply.” So the Sma explains that “the words of the master and the words of the student—which should one obey?” is basically a claim of the sender. The sender says: when I told him to go murder, I never imagined he would obey me, and therefore if he did it, clearly it has nothing to do with me; it was not done as my agency. Meaning, this is an argument that comes not… We usually understand that “the words of the master and the words of the student” is an argument that comes to obligate the agent, and the Sma argues no: “the words of the master and the words of the student” is an argument that comes to exempt the sender. Very reminiscent of Tosafot Rid, because Tosafot Rid basically says: look, the fact that he murdered is clear, and therefore he will be liable—that is also clear. “The words of the master” is relevant only to the discussion of whether I hold the sender liable. And if the sender says, “the words of the master and the words of the student—which should one obey?” that is a psychological claim. A psychological claim saying: I never imagined he would obey me; I did not seriously intend that he act in my name; it was clear to me he would not obey me at all. The fact that he decided to do it—what does that have to do with me? It was not through my agency. And according to this claim, by the way, it is very clear that… he is also not an agent—not only is the transgression not transferred to me, because I am basically claiming that I never intended him to be my agent at all. There is a practical difference for the Chazon Ish there with acquisition of the land. According to this approach, he is not acting as my agent at all. The argument “the words of the master and the words of the student—which should one obey?” if I understand it simply as talking about obligating the agent and not exempting the sender, then it can say the agency certainly exists. The question is who committed the transgression. The one who committed the transgression is the agent, because he did not listen to the master. But the agency exists. According to the Sma, it is pretty clear that the agency itself does not exist at all. How can you say that? According to the Sma it does exist? But if I did not think he would obey me, then I did not intend to send him. But in fact you did send him. The point is that you did not intend it. No, you did not seriously intend for him to do it; you just said it to him. No, I did not think he would obey me to do it, and therefore when you did not think so, this is a result you were compelled into; you did not think that would be the result, and on that basis he is exempt. So why did you tell him? Did you intend him to be your agent or not? No—it matters that you intend it. Of course you need to intend it. If you did not intend to appoint him as your agent, he is not your agent, what do you mean? Even if you did all the actions needed? Yes—what do you mean? Obviously. What, unexpressed thoughts? No, if a person did everything needed for agency and he did not intend it—if there is a claim of compulsion because he did not foresee the implication, then he did not foresee that he would get up and go. No, if I did not foresee it, that means I did not intend it at all—make up your mind. Do you believe me that I did not foresee it? If you believe me that I did not foresee it, then it is not unexpressed thoughts, and so he is not my agent either. If you do not believe me, then why shouldn’t I be liable? Simply speaking, the Sma says there is no agency here at all. No, you’re saying it is not unexpressed thoughts if anyone can see that he did not expect it. Yes, the fact is that we accept the claim; otherwise I would not accept his claim there either—it would be unexpressed thoughts. You are telling me you did not foresee it—those are unexpressed thoughts. Yet I do accept his claim; the fact is that on its basis I exempt him. Why do I accept it? Because I believe him that he did not intend it. Fine, if I believe him that he did not intend it, then what? Then he did not intend it, so there is no agent here at all. Maybe one could say that the law of unexpressed thoughts operates on the legal plane. So on the legal plane you say: you appointed him as an agent, so he is an agent; unexpressed thoughts do not uproot an act that was done. But perhaps on the plane of blameworthiness, on the plane of what everyone knows about it being… no, on the plane of blameworthiness you can say—on the plane of blameworthiness I might be willing to accept that claim. It is not a matter of three hundred years whether I accept the claim or not. The law of unexpressed thoughts might be such that even if I accept the claim, if it was in the heart it cannot uproot the act that was done. It could be there is indeed here… you already convinced me, you’ve become the lecturer here. No, I agree that that is the simple reading; I’m only saying you can understand that once this was his intention, it no longer becomes… no, if it is “in his heart and in every person’s heart,” yes, but that is not clear. No, not clear. It could be that it is enough to exempt him from punishment. It is not “in his heart and in every person’s heart.” Because he says: you are coming to punish me? Are you sure I imagined he would do it? So that is enough to create reasonable doubt. Exactly. So maybe—I’m saying again—the simple reading is as I said before, but one can distinguish. Here Rabbi Akiva Eiger has a comment in his novellae to Bava Metzia: “How can we say there is no agent for a transgression where the agent is obligated, because we say ‘the words of the master…’? At first glance it appears that this reasoning means that he should have listened to the words of the master, and thus this is agency in a prohibition and there is no agency for that, as we say in Kiddushin at the beginning of chapter 2: there is no agent for a transgression, meaning that one cannot make an agent for this, because one must listen more to the words of the master. From this it appears that with an apostate who sins out of spite, in any case, even though he has sinned, he is still a Jew and this concept of ‘the words of the master’ applies to him. Afterward I saw in the Sma, regarding the reasoning of there being no agent for a transgression, that he says he assumes ‘he would not obey me,’ and according to this, with an apostate for the entire Torah this does not apply.” He argues with the Sma. The first part, what he says, is not like the Sma. Why? What is his approach? His approach is that “the words of the master and the words of the student” is not an argument of the sender but an argument against the agent: you should have obeyed the Holy One, blessed be He. What is the practical difference? He is an apostate. The apostate is still obligated in the commandments; if he committed a transgression, there is still an argument against him—you should have obeyed the Holy One, blessed be He. So in Rabbi Akiva Eiger’s approach, the apostate will still be liable; there is no agent for a transgression even with an apostate. According to the Sma, you cannot say that you did not think he would obey you—he is an apostate, he ignores all the transgressions, so obviously you know he can do it without any problem. What about one who sins for appetite? Meaning, he is still in the framework of saying he would not tell him to do it? A bit strange. Ah, it could be, I really don’t know. It could be that because one who sins for appetite does so for his own appetite, not on behalf of someone else. No, “for appetite” with respect to yourself—you do it for yourself. Here you are doing the transgression for someone else’s benefit, so that is not called an apostate for appetite. For some benefit—he is doing it for someone because it helps him. Yes, but it could be that he was speaking in the usual case—usually “for appetite” means for myself, and that is why he says apostate out of spite. I don’t think there is a substantive distinction here. Another thing: maybe he is considered like a gentile and then he does not belong to agency at all. I don’t know. I don’t think that is what he means; I don’t think there is some precise statement there. In any event, here you see the dispute between Rabbi Akiva Eiger and the Sma. Rabbi Akiva Eiger takes it in the plain sense: “the words of the master and the words of the student—which should one obey?”—that is the reasoning to obligate the agent. The Sma understands that “the words of the master and the words of the student” is reasoning to exempt the sender. And in a certain sense that is fairly parallel to what we saw in Tosafot Rid versus Rashi, that both of them talk about “the words of the master and the words of the student,” one understood that it is to exempt the agent, and the other understands that it is to obligate the agent or exempt the sender. Okay? And the practical difference is in the apostate. Just briefly, let’s go back to the passage about the enticer—by the way, it’s a fascinating passage. In Sanhedrin 29: “And we do not argue in favor of an enticer. What is different about an enticer? Rav Chama bar Chanina said: I heard it from the lecture of Rabbi Chiyya bar Abba, an enticer is different because the Merciful One said, ‘Do not spare him and do not cover for him.’” Right, we do not make arguments in favor of the enticer. An enticer is put to death—even if there are arguments in his favor. Rabbi Shmuel bar Nachman said in the name of Rabbi Yonatan: From where do we know that we do not argue in favor of an enticer? From the primordial serpent. For Rabbi Simlai said: the serpent had many arguments to make and did not make them. Why did the Holy One, blessed be He, not make them for him? Because he did not make them himself. What should he have said? “The words of the master and the words of the student—which should one obey?” The serpent who enticed Eve to sin—therefore when they came to punish him, he could have argued, “the words of the master and the words of the student—which should one obey? I enticed her, but she decided not to listen to You—why are You punishing me?” Here you really see that this is an argument of exemption for the sender. An exemption argument for the sender exactly. Right, that is similar to the Sma. Here you see that this is an argument to exempt the sender. More than that, apparently it also emerges from here—and the Yad Ramah infers this—that apparently you need to make this claim. We do not say it automatically, that there is no agent for a transgression. If you claim that I did not think he would obey me, we will accept that. This is a special law for an enticer, not for everything. No, but the reasoning of “the words of the master and the words of the student”… Again, I am not learning from the enticer; I am understanding how he understood the reasoning of “the words of the master and the words of the student.” The reasoning of “the words of the master and the words of the student” is not something we assume as obvious; rather, if you claim that you did not think he would obey you, we will accept it—or at least it will create reasonable doubt, as I said earlier. But not that we automatically invalidate every agency for a transgression because “the words of the master and the words of the student—which should one obey?” According to Rabbi Akiva Eiger, of course, it is not like that. According to Rabbi Akiva Eiger, “the words of the master and the words of the student—which should one obey?” means there is no agent for a transgression, regardless of what you claim or do not claim. The straightforward approach in the legal decisors is like Rabbi Akiva Eiger—that you really do not need to claim it in practice. So how do they understand the Gemara in Sanhedrin? That is an interesting question. But just in one sentence, and with this I’ll finish. But there it is not the laws of agency at all; there it is just… it is the same wording, but it is not about the laws of agency. No, certainly not, unrelated, unrelated to agency. I did not mean that it is a law of agency. But the logic of exemption is clearly there—the logic of exemption is “the words of the master and the words of the student”—and I’m asking what that logic is doing, how to understand that logic. It could be that it is not doing the same work here and there—that is what I’m saying. There it is not the laws of agency. What, the words are interpreted here one way and there—in the enticer—there it really is a logic that clearly comes to exempt the enticer and has no other purpose. But if it succeeds in doing that, how does it exempt the enticer? No, it exempts the enticer because the enticer says: I did not think they would listen. And that is a logic that really exempts him. But with “there is no agent for a transgression,” maybe the story really is different. If the logic is accepted, it does not exempt you because you did not think it would happen, but for another reason—because that other person is the agent. But why? Why does it not exempt? If such a logic can exempt you from that claim, why would it not exempt you here? It can exempt, but when they say it, they do not mean that logic. Why not? It could be relevant here too. Only if you say—that takes us back to the beginning of the first lecture—and I do not think that is the situation. No, again, not in the context of the Gemara; I am asking substantively: why not, really? Why not, really? You can ask about the serpent: why really was he not exempt? Say he did not argue it—if he did not intend it, this is not a matter of pleading; the Holy One, blessed be He, knows what the serpent intended. The Holy One, blessed be He, and the serpent—that never was and never existed; this is a story they bring us here, leave me alone with what happened with the serpent. This story is brought here as a story that teaches me something about the logic of “the words of the master,” or about a flesh-and-blood enticer. I don’t think they came to teach something about the logic of “the words of the master.” I think the opposite. Or about an enticer, it doesn’t matter—about a flesh-and-blood enticer. Not about a serpent; the serpent is a myth. What do I know what happened there with the serpent? But a flesh-and-blood person has to argue “the words of the master and the words of the student—which should one obey?” otherwise we do not exempt him. We are a court, not the Holy One, blessed be He. Right, but “the words of the master and the words of the student” works—I’m only saying it is not connected to agency; “the words of the master and the words of the student” does not mean it is the same logic as in the case of agency. If the logic exists, I agree—but if the logic exists, there is no reason not to apply it there too. It exists. If a person can say, “I thought he would not obey me,” then the sender can say it too. The only thing you could perhaps argue is that he cannot say it, and that is what I said at the beginning. Why not? Because of circumstances? Because sometimes you see that you sent him—indeed, you sent him a thousand times and every time he went. So then the Sma’s logic does not apply generally. Right, right, unrelated, but I’m not talking about that. I’m talking about situations where the Sma makes his claim and Rabbi Akiva Eiger disagrees with him. So in those places it is possible to say this logic, “I did not think he would obey me.” In those places, what do we do with the Gemara in Sanhedrin? What do you see in the Gemara? In the Gemara in Sanhedrin you see that if there really is such a claim, then we say it. So why does Rabbi Akiva Eiger say that we do not say it? The Yad Ramah there—just one sentence. At the beginning of the previous lecture I started with this, that the question is what is called an agent. When I come to the sender with claims, do I come to him as one who caused damage indirectly, or as one who did the damage by virtue of “a person’s agent is like the person himself”? It parallels—I spoke about how it parallels enticement. Enticement is not that because you enticed, therefore the idolatry that was finally done is charged to your account; rather, the enticement itself is the transgression. And then it may be that what you are saying is correct. When they come to me with a claim about the enticement itself, “the words of the master and the words of the student—which should one obey?”—that is not enticement; I did not think he would obey me. But if the claim is “a person’s agent is like the person himself,” whether you thought it or did not think it—what does it matter? You appointed him as an agent; a person’s agent is like the person himself; you committed the transgression. You are not being prosecuted as an enticer; you are being prosecuted as one who committed the transgression itself. So maybe there is a difference. Again, I am not going into all that; we do not have time. Just one last sentence. “And we further say: from where do we know that we do not argue in favor of an enticer? From the serpent, who enticed the woman to rebel against the Omnipresent and violate His words, and the Holy One, blessed be He, held him liable for this. And even though he could have said, ‘The words of the master and the words of the student—which should one obey?’ Meaning, because of my words should they have abandoned the words of the Omnipresent? And since he did not argue for himself, the Holy One, blessed be He, did not argue for him.” And if you ask—now the Yad Ramah asks—“the reason is that he did not argue it; but had he argued it, would his argument have been a valid argument?” It turns out that we do not argue it for him—that is the law. But if he had argued it, it would have been accepted; we simply do not argue it in his place. So he says: “But the enticer of Scripture,” an enticer to idolatry, an ordinary person who enticed to idolatry, “even though the enticed one did not listen to him and no transgression was committed based on his words, he is liable, as we learned later: if he said it to two and they are witnesses and they bring him to court and they stone him.” And nothing happened there—I planted witnesses for him, I set him up, he enticed me, I took him to court and they kill him. Now I did not commit the transgression. He did not succeed in enticing me, okay? So here he says: then you see that he is prosecuted for the enticement, not for the transgression that you were supposed to cause through the enticement. “And all the more so where the other person did listen to him, that he cannot claim ‘the words of the master and the words of the student—which should one obey?’” So then how, really, why does this claim help at all? Why are you telling me we do not argue it for him, and if he had argued it that would have helped? Even if he had argued it, it should not have helped. He says: good question. Why? Because what difference does it make? Right, there are outbursts—I do not want to interrupt further—but what difference does it really make if… He says that “the words of the master and the words of the student” does not depend on whether you make the claim or not. Behind this is probably Rabbi Akiva Eiger versus the Sma—whether an actual argument is needed or not. Yes, yes. You need to argue it, because otherwise how—why not? In the Gemara there it comes out that we do not argue it for him. That implies that his own argument works; if he himself argues it, that is fine, we simply do not argue it in his place. Right? Now what does that mean? It basically means that if I now go, say, to a case of an agent for a transgression, and he says “the words of the master and the words of the student—which should one obey?” do I exempt the sender only if he himself says “the words of the master and the words of the student—which should one obey? I did not think he would obey me,” like the Sma? Or even without his saying it, do I assume that he did not think the other would obey him, and therefore I exempt him? So he argues that, from the laws of enticement, the exemption exists in any case; he proves that the exemption exists in any case. What, still if he did not say it? No, if he did not say it, then he really did intend to entice. The question is the component of intention. The act itself is clear—it was an act of enticement; he told him, go do it. Now we ask about the component of intention. Right. And “the words of the master and the words of the student” simply means: I did not intend it because… And does he have to claim that explicitly? Does he need to claim it? Is it a special law in an enticer that he has to claim it? So I am saying: the Yad Ramah argues—the proof itself needs discussion—but he proves that with an enticer it does not help even if he claims it. No—I mean, sorry, not that he does not need to claim it, but that even if he claims it, it does not help. Fine, I understand you. Fine. The proof there is really not so simple; one could discuss it, but that is his claim. Okay? So what does he say? He says, and now he answers, that an enticer to idolatry is more severe, because the Merciful One said, “Do not spare him and do not cover for him,” and therefore there, if he did not argue it, we do not argue it for him. In other places we do, because we say here with an ordinary enticer analogous to the serpent, which is what we are discussing, and we learn from it that an enticer… The huge novelty is that there is any law of enticer at all outside idolatry. He argues that there is a law of enticer throughout the whole Torah—one who entices to a transgression throughout the whole Torah. But an enticer to idolatry is especially severe, because with an enticer to idolatry, if he does not claim it, we do not claim it for him. Fine? But with an ordinary enticer, if he claims it, then we claim it for him. But still, the concept of enticer exists regarding transgressions of the whole Torah, which nowhere have we seen—enticer is only enticer to idolatry. In the end he also says: “And from here learn that what we generally hold, that there is no agent for a transgression”—look, he connects enticer to agency—“is specifically where the sender claims: ‘the words of the master and the words of the student—which should one obey?’ But where he does not claim it, he is liable.” That is exactly the Sma. Meaning, again, the Sma can work even without this, but it certainly rests on the Sma. It’s just that in half the cases this is a ridiculous claim—“the words of the master and the words of the student”—in practice it is a ridiculous claim. Meaning? Look at the world. “I didn’t think he would obey me”? Yes, you can find many cases where you do not… No problem; then in those places, those are the places under discussion. But it’s a bit strange—if in half or most cases it is an irrelevant claim… No, I don’t know if it is most. You gave a heading—you are talking about people today, where there are people who do not observe Torah and commandments, and it is obvious that if you send them they will do it. If I look at various people I know. So what, if you send them to commit a transgression, they automatically do the transgression? Automatically—certainly not. But in those cases I wouldn’t send them; there is some issue of seriousness here. So I claim that the reality simply did not apply here. The claim is that the reality did not apply here; with such unserious people, no. And that is enough to create reasonable doubt. And I don’t think that is not a claim. In any event, the Yad Ramah really comes back here and connects “the words of the master and the words of the student” in the enticer to “the words of the master and the words of the student” in the agent. And he makes a big innovation: only if I claim “the words of the master and the words of the student” do we accept it. According to Rabbi Akiva Eiger, there is no way to say that. You can say that only according to the Sma. The Sma does not have to say this, but if you say it, it has to go with the Sma. Okay, we’ll stop here. That’s it.

Kiddushin, Chapter 2, 5783, Lesson 25

Table of Contents

Summary

General overview

Dispute among the medieval authorities (Rishonim) and Netivot: ordinary agency versus a separate innovation in agency for a transgression

Agency for an act, a “monkey act,” and the role of the transgression in justifying agency

Netivot 348: instructing a gentile on the Sabbath and the definition of a “transgression” with respect to the agent

Critique of Netivot’s distinction and examples from forbidden mixtures and shaving the corners of the head

Rashi on instructing a gentile: agency, “and speaking of them,” Behag, and the Mekhilta

The Sabbath as “a matter of one’s own person”: Imrei Binah, Chatam Sofer, and the rest of one’s animal and vessels

The first clause and the last clause in the Mishnah: deaf-mute, incompetent person, and minor versus a competent person, and the link to indirect causation

Rashi: agency as a zero-sum game between sender and agent

Tosafot Ri”d: the agent is always liable, and the question is whether to obligate the sender as well

The Shakh, cases in which agency does apply to a transgression, and a distinction once the rule has already been established

Tosafot Ri”d: the question “sit in the sukkah for me” and the answer of commandments that must be performed by one’s own body

Applying the distinction between agency of power and agency for an act to transgressions that involve legal effect

The reason of “the words of the Master and the words of the disciple”: Rema, Sma, and Rabbi Akiva Eiger

The enticer and the primordial serpent: “the words of the Master” as a plea for exemption and the Yad Ramah

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Table of Contents

Summary

General overview

Dispute among the medieval authorities (Rishonim) and Netivot: ordinary agency versus a separate innovation in agency for a transgression

Agency for an act, a “monkey act,” and the role of the transgression in justifying agency

Netivot 348: instructing a gentile on the Sabbath and the definition of a “transgression” with respect to the agent

Critique of Netivot’s distinction and examples from forbidden mixtures and shaving the corners of the head

Rashi on instructing a gentile: agency, “and speaking of them,” Behag, and the Mekhilta

The Sabbath as “a matter of one’s own person”: Imrei Binah, Chatam Sofer, and the rest of one’s animal and vessels

The first clause and the last clause in the Mishnah: deaf-mute, incompetent person, and minor versus a competent person, and the link to indirect causation

Rashi: agency as a zero-sum game between sender and agent

Tosafot Ri”d: the agent is always liable, and the question is whether to obligate the sender as well

The Shakh, cases in which agency does apply to a transgression, and a distinction once the rule has already been established

Tosafot Ri”d: the question “sit in the sukkah for me” and the answer of commandments that must be performed by one’s own body

Applying the distinction between agency of power and agency for an act to transgressions that involve legal effect

The reason of “the words of the Master and the words of the disciple”: Rema, Sma, and Rabbi Akiva Eiger

The enticer and the primordial serpent: “the words of the Master” as a plea for exemption and the Yad Ramah

Full Transcript

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