Q&A: Regarding Acquisition on Another’s Behalf as a Law of Agency
Regarding Acquisition on Another’s Behalf as a Law of Agency
Question
Greetings and blessings without end to the honorable Rabbi:
Regarding the rule of acquisition on another’s behalf: is it a law of agency or not?
I, the undersigned, came up with a novel reading in Rashi’s view, unlike the way all the later authorities explained it (see the lectures of Rabbi Shmuel, Rabbi David, Rabbi Noachum, Rabbi Eliyahu Baruch, and many others): according to them, Rashi learned like Tosafot in Ketubot 11a that acquisition works because of agency. I do not want to say that; rather, I think Rashi actually held like Nachmanides and others that acquisition is not based on agency.
I would be very, very happy if the honorable gaon, the Rabbi, may he live long, would go over the argument and examine whether it is correct, and perhaps also share it further…
Namely, that Rashi holds that the law of acquisition does not derive from agency, and therefore our Talmudic passage learns the law of acquisition on another’s behalf from the verse “and one prince…” and not the law of agency. I would explain that Rashi holds that the novelty of acquisition is that I act for someone else and it takes effect, as opposed to an agent, where I act in his name and it takes effect.
According to Rashi, an agent can seize property on behalf of a creditor even though that disadvantages others as well, whereas one who acquires on behalf of another, who wants to seize from a debtor, cannot do so, because he is not acting by that person’s power but on his behalf.
Therefore minors can benefit from acquisition on another’s behalf not as a special novelty, but because in acquisition the beneficiary is passive and the transferor is active, as opposed to agency, where the beneficiary is active through the sender.
However, throughout the Talmud we find that Rashi treats “acquisition on another’s behalf” as part of the laws of agency. In the passages before you I brought the three Rashis in the Talmud from which it apparently emerges the opposite of what we said, since Rashi links acquisition with the laws of agency… and of course there were not two different Rashis—so a sacred task falls upon us to reconcile the words of holy Rashi!
It seems to me that Rashi understood there to be halakhic agency and practical agency; both are derived from verses, but there is a great gulf between them.
Whereas in halakhic agency I view the agent as the sender, his act is my act! And why? Because he acts by my power.
But in practical agency there is no appointment, yet I attribute the results of the agent’s acts to the sender—not because he acts in my name, but because he acts for me.
Why should we attribute the act of the agent to the sender if there was no appointment? Because there is a kind of expert judgment that determines that the act was done for the person for whom I claim to have acted, since I think he wants the result [not the act].
Linguistically, I would call this kind of acquisition: “we are witnesses that this is agreeable to him”—meaning, he agrees that the result of the act I performed should be credited to his benefit.
By contrast, in halakhic agency, which is described as “a person’s agent is like himself,” the meaning is that the act of the agent is my act! He and I are equivalent.
By contrast, according to Tosafot, acquisition is actually part of the laws of agency—meaning, I keep the general authorization in view and say to the one conferring the benefit that he is literally the sender’s agent! The “we are witnesses” of Tosafot is not the “we are witnesses” of Rashi!
A practical difference would be in seizing property for a creditor when there are other claimants: according to Rashi, the one conferring the benefit is a sub-agent, whereas Tosafot holds there is no difference between one who acquires for another and an agent.
Quite simply, an agent has explicit appointment, while acquisition on another’s behalf has general appointment.
According to Rashi, in acquisition on another’s behalf I cannot act with the beneficiary’s property, because I only want to credit the result to his benefit, not the act. Therefore there is no concept of “one who acquires for a person is like that person,” but there is the concept of “a person’s agent is like himself.”
The nice formulation of this idea is very understandable in the Talmud in Bava Metzia 11b: a courtyard becomes a means of acquisition on behalf of its owner. It is obvious to any sensible person that agency in the halakhic sense of the word is impossible here, because it is not a real entity… The courtyard obtains results for its owner and therefore functions as acquisition on another’s behalf, because in such acquisition I am looking for a result, where the beneficiary is passive, whereas in agency I seek that the action of the agent be my action—both are a type of agency!
So too with a Canaanite slave in Kiddushin, and even more so in Gittin—the thing that frees the slave is the state in which the bill of emancipation is outside the owner’s domain; the result of freedom is credited to the slave’s benefit. And similarly regarding one who buys a cow in Hullin—he does not need to be the legal buyer of the cow; he only needs the result: a piece of meat for the festival!
The basic idea that there are two kinds of agency—halakhic agency, which is truly agency in the full sense of the word, and halakhic agency that is really acquisition on another’s behalf—appears in the words of Birkat Shmuel in the name of his great teacher Rabbi Chaim Soloveitchik (Birkat Shmuel, Kiddushin, section 11).
Answer
It seems to me like merely switching terminology. Instead of saying that acquisition on another’s behalf is a separate law, you call it a different kind of agency. What is the difference—the word? It is true that many later authorities say that “acquisition is not based on agency” means that it is a different kind of agency. That is basically what you too are saying in Rashi’s view.
By the way, proof that halakhic agency is not literal identity with the sender (“a person’s agent is like himself,” but not identical with him) is the rule in Bava Metzia 96a, where we find that in borrowing with the owner present and in annulment of vows there is no rule of “his agent is like himself.” We see that the agent is not literally like the sender; rather, this is a legal rule (halakhic agency). In reality there is no identity between them, and therefore there are halakhic contexts in which his agent is not like him.
Discussion on Answer
Whatever you say, I say too. If we are talking about a mechanism that cannot be derived from the regular laws of agency, then even if it is called agency (of another kind), you still do not learn it from there. And if it can be derived from agency, then even if it is called acquisition and not agency, you can still derive it from there. In any case, your move does not really touch the issue.
Now I’m reminded of the example in the first chapter of Hullin regarding the source of the rule of majority. The Talmud brings a source from the verse “follow the majority,” and rejects it because that applies only to a majority that is before us. In the end it does not find a source for a majority that is not before us, and Rashi at the end of the passage gives two possibilities: either they learned it from a law given to Moses at Sinai, or after all they learned it from “follow the majority.” But the Talmud itself says that it cannot be learned from there? Yes—but the verse gives inspiration for the law of a majority not before us, whose basis is logical reasoning. So too here: it cannot be learned from agency because of the differences, but in the end reasoning gives us a law of acquisition, and therefore they nevertheless derive it from agency (as a source of inspiration, an asmachta). And so too they “derive” nullification by majority and “its majority is like its entirety” from the verse “follow the majority,” despite the great difference. And that is also how they “derive” there in the first chapter of Hullin the law of an original presumption from the case of the afflicted house, despite the major differences, and so on. Ah—and we have not even discussed the case where a courtyard was included under the heading of agency, which is also learned from the law of agency. Does that seem any closer to ordinary agency to you?
Greetings and blessings, and forgive me for the late hour:
But according to the Rabbi, what is Rashi’s opinion—did he derive this from the law of agency or not, and why?