Q&A: Regarding "Causing Loss to Others"
Regarding "Causing Loss to Others"
Question
Hello, the Talmud in Bava Metzia (10a) says that one who seizes property on behalf of a creditor in a case where this causes loss to others does not acquire it, because he has no power to confer a benefit on this person in a way that harms others. (And according to most medieval authorities, this is discussing even a case where he appointed him as an agent.) If so, why does the Talmud on that page (10b) say that there is no agency for a transgression, but in a case where the agent is not personally obligated, it would work — such as a courtyard, or a woman, or a slave whom I sent to steal? How can that be effective? Seemingly there is no greater case of causing loss to others than this. And according to the Ran's view, that you need the agent to be acting as the property owner's agent in order for the agency to work, why doesn't the Talmud say that sending an agent to steal would not work by virtue of the rule of the owner's agent, and there would be no need to get to the issue of there being no agency for a transgression? I would be happy if the Rabbi would clarify the matter. Thank you.
Answer
If the person seizing on behalf of the creditor intends to acquire it for the beneficiary through a prohibited act, it seems that this would work under the laws of theft, but not under the laws of seizure. After all, if you robbed it, the item is stolen. That is a fact, and therefore it does not depend on the question of whether it "works" or not. The question whether something works exists only where you are trying to act within Jewish law, not when you are trying to rob. Even if I sent a monkey to rob from you for me, it "works." The same applies to the owner's agent.
Discussion on Answer
And another question: in Netivot HaMishpat (section 182) he brings the Noda B'Yehuda, who says that you cannot appoint an agent to divorce a woman against her will because this causes loss to others, and his words seem contradicted by explicit Talmudic passages. But in terms of the logic, what is the difference between sending a woman to divorce a woman against her will, which is fine, and seizing on behalf of a creditor, which is not fine?
The discussion is whether he acquires it or not. Do you want to assume that he did not acquire it and then invalidate it because of agency for a transgression? The question is whether this is defined as a transgression.
To divorce a woman against her will is fine (strictly speaking; I am ignoring for the moment the Rabbeinu Gershom ban, which turned this into a prohibition), because all the power lies in the husband's hands. The woman is not a party with rights in this regard. Therefore this is not considered causing loss to another. I can appoint an agent to forbid my property to others even though this causes loss to others, because all the rights in the matter are mine. By contrast, in seizing on behalf of a creditor, others also have rights in the debt, and therefore it is causing loss to others.
Thank you very much, Rabbi. One last question on this Talmudic topic: Rabbi Yohanan holds that if one lifts up a found object for his fellow, the fellow acquires it. The medieval authorities ask: that same Rabbi Yohanan holds that one who seizes on behalf of a creditor in a case where this causes loss to others does not acquire it, and seemingly the two should depend on each other. And the Rosh answered in the name of Rabbenu Tam that since regarding a found object the one who seizes has a "since" argument — since he could acquire it for himself — therefore it works even though it causes loss to others. But the Rosh in Gittin wrote that the reason one who seizes on behalf of a creditor where it causes loss to others does not acquire it is that the sender has no power to appoint an agent when this causes loss to others. If so, what is his answer worth? If the problem is with the sender, why should I care that the agent has a "since" argument? The deficiency is in the sender. Thank you, and sorry for the trouble.
If the agent has a "since" argument, then his ability to act is not based on the sender, and therefore no appointment is needed. It works like "acquiring on someone else's behalf."
But the Rosh's view is that acquisition on someone else's behalf is by the law of agency; that is what emerges from the conclusion in Kiddushin.
There has indeed been a lot of confusion around this conceptual inquiry about whether "acquiring on someone else's behalf" operates on the basis of agency. For our purposes, it has no connection at all to the question whether "acquiring on someone else's behalf" is based on agency. No one disagrees that someone who acts under the rule of "acquiring on someone else's behalf" does not need an appointment. True, if this is because there is an implicit appointment, then here it really should not work. But I was speaking according to the view that no appointment is needed at all.
I learned that this is actually the very view of Tosafot (and consequently also of the Rosh): that one should not distinguish between a case where he appointed him as an agent and a case where he did not appoint him as an agent, because even without appointing him as an agent it is considered that there is an appointment here, and there is no difference at all between the two laws. And Rashi also holds that acquisition on someone else's behalf is based on agency (as stated explicitly in Gittin 9a, s.v. "he should return"), except that Rashi distinguishes between agency with an appointment and agency without an appointment.
So there you have proof that that is not correct.
Yes, but one who seizes for a creditor is not acting according to Jewish law according to the view that he does not acquire it, so why doesn't the Talmud explain that the seizure is ineffective because this is agency for a transgression?