BAVA METZIA 43 (15 Sivan 5769) - Dedicated by Rabbi and Mrs. Mordecai Kornfeld in honor of the Bar Mitzvah of their son, Yehoshua Heshel Kornfeld. May he continue to grow in Torah and Yiras Shamayim and bring Nachas to his Creator.


SHALI'ACH L'DEVAR AVEIRAH FOR SHELICHUS YAD [Shali'ach l'Devar Aveirah: Shelichus Yad]




10b (Ravina): Ein Shali'ach l'Devar Aveirah only when the Shali'ach is Bar Chiyuva (liable for transgressing).


Question: If so, if Reuven told a (married) woman or a slave to steal, is Reuven liable because they are exempt?!


Answer: Women and slaves are liable, just they cannot pay now. If the slave was freed or the woman became divorced, he or she must pay.


(Rav Sama): Ein Shali'ach l'Devar Aveirah only when the Shali'ach can choose whether or not to comply.


They argue about a Kohen who told a Yisrael 'be Mekadesh a divorcee to me', or a man who told a woman 'cut a boy's sideburns for me.' Rav Sama exempts the Meshale'ach, and Ravina obligates him.


43b (Mishnah - Beis Shamai): If one intended to be Shole'ach Yad in (make unauthorized use of) a deposit, he is liable (for any future Ones);


Beis Hillel say, he is liable only if he actually took it - "Im Lo Sholach Yado".


44a (Beraisa): Beis Shamai learn from "Al Kol Devar Pesha." Beis Hillel say, this teaches that he is liable even if his slave or Shali'ach used it on his command.


Kidushin 42b (Mishnah): If Levi sent a fire with a deaf-mute, lunatic or minor, and they damaged, Levi is exempt b'Yedei Adam (Beis does not make him pay), but he is liable b'Yedei Shamayim. If he sent a proper adult, the adult is liable.


Question: Why don't we attribute the Shali'ach's action to Levi?


Answer: We do not say so about a Shali'ach to transgress. The Shali'ach should have obeyed Hash-m, not the one who sent him! (His authorization was invalid.)


(Beraisa): If Reuven sent Shimon to buy something, and he gave to him Hekdesh money, if Shimon fulfilled his mission, Reuven transgressed Me'ilah.


Normally, Ein Shali'ach l'Devar Aveirah. A Gezeirah Shavah "Chet-Chet" teaches that just like one can make a Shali'ach for Terumah, also for Me'ilah.


Question: Why don't we learn from Me'ilah to other Aveiros?


Answer: Me'ilah and Shlichus Yad are Shenei Kesuvim, therefore, we do not learn to other cases.




The Rif and Rosh (3:28) bring the Gemara on 44a


Rif and Rosh (Bava Kama 29a and 7:9): In the entire Torah, Ein Shali'ach l'Devar Aveirah, except for a thief who made a Shali'ach to sell or slaughter.


Rambam (Hilchos Gezeilah 3:11): If one was Shole'ach Yad in a deposit, himself or through his son, slave or Shali'ach, he is a thief and is liable for Onsim.


Rambam (Hilchos Me'ilah 7:2): In the entire Torah, Ein Shali'ach (l'Devar Aveirah), except for Me'ilah with no other Isur involved.


Maharit (Kidushin 42b DH ul'Devar): Yesh Shali'ach l'Devar Aveirah also for Shlichus Yad! If a Shomer (Levi) told Ploni to be Shole'ach Yad, Levi is liable for negligence, not due to Shelichus. This is considered Shenei Kesuvim, for if we could learn from Me'ilah, we would not need a verse for Shlichus Yad.


Or Some'ach (Hilchos Geneivah 3:6 DH uv'Zeh): The Ritva (Bava Metzia 35b DH ha'Socher) says that if a Shomer (Levi) gave to another Shomer (David), Levi is not liable for David's Shelichus Yad, for Ein Shali'ach. Many ask that Yesh Shali'ach for Shelichus Yad! This is when the Shali'ach is Shole'ach Yad for the Shomer. The Rambam means that the Meshale'ach is liable for an Aveirah that the Shali'ach does for himself only regarding Me'ilah.


Tosfos Rid (Kidushin 42b DH Shilach): Obviously, if an adult was sent to damage, he is liable. The Gemara asked why the Meshale'ach is exempt when the Shali'ach cannot pay.




Shulchan Aruch (CM 292:5): If one was Shole'ach Yad in a deposit, himself or through a Shali'ach, he is a thief and is liable for Onsim.


SMA (10) and Prishah (6 DH v'Nor'eh): This is only if the Shali'ach did not know that it is another's deposit, or he is not Bar Chiyuva, or he lacks money to pay. If not, Ein Shali'ach l'Devar Aveirah. It is difficult to say that "Al Kol Devar Pesha" teaches that Yesh Shali'ach here, for we can learn the smaller Chidush that we make the Shomer pay when his Shali'ach did not know.


Rebuttal #1 (Bach 6 and Tosfos Yom Tov Bava Metzia 3:12 DH Ad): The Gemara asked why we don't learn from Me'ilah that Yesh Shali'ach. It answered that Me'ilah and Shelichus Yad are Shenei Kesuvim. The verse teaches that here Yesh Shali'ach, even if the Shali'ach is aware!


Rebuttal #2 (Tosfos Yom Tov. Ibid.): The Gemara said that even though a woman cannot pay now, since she can pay after she is divorced, she is a Bar Chiyuva, and the Meshale'ach is exempt!


Defense (Shach 4): The Tosfos Yom Tov could have added that even if we would know that the Shali'ach will never be able to pay, Ein Shali'ach, for the Gemara did not say that Ravina and Rav Sama argue about this. The Bach and Tosfos Yom Tov misunderstood the SMA. My Rebbi showed his genius and explained him. The SMA himself brought the verse "Al Kol Devar Pesha." Surely, it teaches that this is unlike regular Shelichus. The SMA does not consider one who cannot pay as if he is not a Bar Chiyuva. Rather, he found it difficult why the Shomer must pay. The Shali'ach should pay if he has money! He cannot say 'I was sent to do this', for Ein Shali'ach! Why does the verse obligate the Meshale'ach? Poskim argue about whether we say Yesh Shali'ach when the Shali'ach was Shogeg, or when he is not Bar Chiyuva. All agree that Ein Shali'ach when the Shali'ach cannot pay. We need the verse to obligate the Meshale'ach at least in this case. Some (those who say Ein Shali'ach when the Shali'ach is Shogeg or not Bar Chiyuva) need the verse even for those cases. If the Shali'ach knew, has money and is Bar Chiyuva, all agree that he is liable, for Ein Shali'ach. The verse obligates the Meshale'ach. It does not exempt the Shali'ach. If the Meshale'ach has no money, surely the owner may collect from the Shali'ach! The Tosfos Rid says so. There is no reason for the verse to obligate the Meshale'ach, other than these three cases in which the owner cannot collect from the Shali'ach. It is difficult to say that the SMA meant this, but it is a proper defense. In any case, the law is true.


Rebuttal #1 (Gra 11): The SMA is astounding. This defense is difficult.


Rebuttal #2 (Ketzos ha'Choshen 1): Regarding Shelichus Yad, everyone is Bar Chiyuva, for he would be liable if he were a Shomer. One who cannot be liable, e.g. a minor or Nochri, cannot be a Shali'ach at all. Why can't the verse exempt the Shali'ach? Regarding Me'ilah, a verse exempts him! The Maharit says that the Chiyuv for Shlichus Yad is not due to Shelichus. The SMA teaches that the Shomer is liable even when the Shali'ach is not Bar Chiyuva. However, Shlichus Yad applies only to Shomrim. The Shali'ach can only be a thief, which is different. Perhaps the SMA uses 'not Bar Chiyuva' to refer to Shlichus Yad that does not make the Shali'ach a thief.


Nesivos ha'Mishpat (5): Shlichus Yad requires a Kinyan. The Shomer acquires through his Shali'ach. If the object changes, the Shomer acquires (and owes its value). How can we obligate the Shali'ach, who did not acquire? If a Shali'ach took Hekdesh, the Meshale'ach transgressed Me'ilah; if the Shali'ach benefited afterwards, he benefits from the Meshale'ach, not from Hekdesh! The same applies here! It seems that the SMA discusses a Shali'ach to eat the deposit. The Shomer acquired it when the Shali'ach lifted it, and the Shali'ach is like one who ate what a thief stole. The owner can collect from either of them, even if the Shali'ach can pay.


R. Akiva Eiger (DH Al): If one told a Nochri to be Shole'ach Yad, he is liable. Commanding or allowing another to be Shole'ach Yad is itself Shelichus Yad! It does not depend on Shelichus.

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