Q&A: Agency for Commandments That Consist of an Action
Agency for Commandments That Consist of an Action
Question
Hello Rabbi,
There is a Talmudic passage in Kiddushin 43a that says:
Rava said: if you should say that Shammai holds that two verses that come as one do teach, and that one does not expound that principle, he nevertheless agrees that if one says to his agent, “Go have illicit relations with the forbidden woman and eat the forbidden fat,” he is liable and the one who sent him is exempt, for nowhere in the entire Torah do we find that one person benefits while another becomes liable.
Seemingly this is difficult, because even apart from the benefit, we are dealing here with a transgression that consists of an action, where agency should not apply, just as agency does not apply to commandments like eating maror or taking the lulav. Can one prove from here that in fact there is agency for commandments and transgressions that consist of an action?
With blessings,
Answer
I had the same difficulty with every case of an agent for a transgression, such as an agent for murder according to Elder Shammai. It seems one must say that דווקא because this is a transgression, there was an initial assumption that agency would be effective, because the transgression involved in the act turns it into an act with halakhic significance, and not a mere monkey-like act.
However, according to this, it still requires clarification why there should not be agency for commandments like maror or tefillin for the same reason. There are several formulations of this difficulty (the Ri of Trani, Ketzot HaChoshen, and others). The simple explanation is that the rule is that the person himself, in his own body, must perform the act for it to count as a commandment. In murder, the act is supposed to be his, but not performed by his own body. A similar distinction appears in Bava Metzia 96a, in the question whether “a person’s agent is like himself” with respect to annulment of vows and borrowing in the presence of the owner, even though as a matter of Jewish law no one disputes the general rule of agency. One has to say that there the Talmud entertains the possibility that these are laws that require the person himself, bodily and personally, and therefore there was an initial assumption that perhaps the agent would not count as him.
Discussion on Answer
Notice that there are two different principles here: for agency to work, the act must not be a mere monkey-like act (rather, it must effect a halakhic legal change), and there must be no requirement that the act be done by his own body.
Now you can see that there is no difference between agency for a transgression and agency for a commandment. The difference is between certain commandments and certain transgressions. The verbal analogy says that in any act that effects a legal change (that is, not a mere monkey-like act), and also does not have to be done by his own body, agency works. In this respect, commandments are like transgressions. But in commandments like eating and waving the lulav, we require that he do it with his own body, whereas in transgressions we do not. The implication for agency is only a consequence. Derive from it and from itself, and leave it in its own place.
According to what you wrote, there is a distinction between agency for a transgression and agency for a commandment. But according to Elder Shammai, he derives agency for a transgression through a verbal analogy from agency for a commandment (“he derives ‘sin’ ‘sin’ from terumah”), and it is well known that there is no such thing as a partial verbal analogy. Even though Rashi explains there, under the heading “sin, sin from terumah”: for most matters it is learned from terumah; in tractate Me'ilah (18b) it is written here, “and he sins unintentionally against the sacred things of the Lord,” and it is written regarding terumah, “when he eats it unintentionally, they shall not bear sin because of it.”
According to Rashi, the verbal analogy links most things but not all of them for some reason. How does that fit with the rule that a verbal analogy cannot be only partial?