1) APPOINTING A "SHALI'ACH" TO BE "TOFES L'BA'AL CHOV"
QUESTION: Rav Nachman rules that when a person finds a Metzi'ah and lifts it up with intention to acquire it on behalf of someone else, the other person does not acquire it. The person who lifts it up is comparable to one who is "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim" -- one who seizes money from a debtor on behalf of a creditor, when doing so causes a loss to others (such as other creditors of this debtor). RASHI here (DH Tofes and DH Lo Kanah) and in Gitin (11b, DH ha'Tofes) explains that "Tofes l'Ba'al Chov" refers to a person who was not appointed as a Shali'ach to collect the debt. Since he is not a Shali'ach, he has no right to cause other people to incur a loss in order to help his friend get his money. Rashi implies that if the Ba'al Chov did appoint someone to seize the money for him, everyone agrees that the Shali'ach is able to be "Tofes l'Ba'al Chov."
This implication of Rashi (that when a person is appointed as a Shali'ach there is no problem of "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim") is problematic. Rav Nachman originally attempted to prove from the Mishnah -- which discusses a case of a person riding an animal who tells his friend to give him a Metzi'ah on the ground -- that one who lifts up a Metzi'ah for his friend is not Koneh. Rav Nachman assumes that saying "give it to me" is the same as saying "be Zocheh it for me," and thus the person riding the horse effectively appoints the person near the Metzi'ah to be his Shali'ach, and nevertheless Rav Nachman assumes that he is not Koneh for the person riding the animal! Similarly, in the end of the Sugya, Rebbi Yochanan rules that a person who picks up a Metzi'ah for his friend is Koneh for his friend, and he addresses the problem to his ruling posed by the Mishnah -- why can the person who picked up the Metzi'ah for his friend change his mind? Rebbi Yochanan answers that saying "give it to me" is not like saying "be Zocheh it for me." This implies that according to those who argue with Rebbi Yochanan (such as Rav Nachman), even if saying "give" is like saying "be Zocheh," and the rider of the animal did appoint the other person as his Shali'ach, nevertheless the Shali'ach will not be Koneh it on behalf of the rider. How, then, can Rashi write that the problem of "Tofes l'Ba'al Chov" applies only when a person is not a Shali'ach? (RAMBAN, RASHBA, ROSH 1:27, TOSFOS RABEINU PERETZ, and others)
(a) Rashi differentiates between the case of a person who collects a loan on behalf of a Ba'al Chov and the case of a person who picks up a Metzi'ah on behalf of a friend. Rashi states that appointment as a Shali'ach allows one only to collect for a Ba'al Chov, but it does not enable one to be Koneh a Metzi'ah on behalf of someone else.
The logic for this distinction is that the principle of "Shali'ach Shel Adam Kemoso" ("a person's Shali'ach is considered like him") does not "transform" one person into another person. Rather, it merely allows one person's act to take effect for another person, or an one person's authority to be transferred to another person. The Ba'al Chov owns a Shibud in the property of the borrower. When he appoints a Shali'ach to collect the debt, he gives the authority over the Shibud to the Shali'ach. The moment the person who will collect the loan receives this authority he is considered the Shali'ach of the Ba'al Chov, even though he has not yet collected the money. The principle of "Shali'ach Shel Adam Kemoso" teaches that he may collect the debt just as the Ba'al Chov may collect it. In contrast, in the case of a Metzi'ah a person has no rights to a Metzi'ah before he picks it up, and thus when he appoints someone to pick it up for him the Shelichus takes effect only at the moment that the appointee picks up the object on behalf of the one who appointed him. However, at the moment he picks up the Metzi'ah to perform the Shelichus for which he was appointed, he has no right to make himself a Shali'ach of that person and thereby cause a loss to others. Since he could be a Shali'ach for any other person, why should he make himself a Shali'ach for this person? Accordingly, the appointment of a Shali'ach to acquire a Metzi'ah on one's behalf is not effective. This might be the intention of the GILYON cited by the Shitah Mekubetzes in his explanation of Rashi. (See also "MOREINU HA'RAV" cited by the Shitah Mekubetzes, PNEI YEHOSHUA, and BEIS HA'LEVI (3:44) who suggest other approaches to understanding the words of Rashi.)
What is Rashi's source for differentiating between one who picks up a Metzi'ah on behalf of someone else and one who is "Tofes l'Ba'al Chov"? Perhaps Rashi derives this from the word "Tofes," which implies that the person seizes the item without authority, in contrast to "ha'Magbi'ah" ("one who lifts") or "ha'Zocheh l'Ba'al Chov" ("one who acquires for a Ba'al Chov").
TOSFOS (DH Tofes) challenges Rashi's explanation from the Gemara in Kesuvos in which a person who was appointed as a Shali'ach to collect a debt was told by two Amora'im that he may not collect the debt because of "Tofes l'Ba'al Chov b'Makom she'Chav l'Acherim." In fact, Rashi himself there (Kesuvos 84b, DH ha'Tofes) writes that "Tofes l'Ba'al Chov" applies even to a Shali'ach who is "Tofes l'Ba'al Chov." How is the Gemara there to be reconciled with the words of Rashi here?
The Gemara in Kesuvos concludes that Rava reprimanded the Amora'im who sent away the Shali'ach. Although Tosfos seems to understand that he reprimanded them for what they did afterwards (they tried to collect the loan for themselves even though it was the property (Metaltelin) of Yesomim), Rashi may understand that he also reprimanded them for misinterpreting Rav Nachman's statement and applying it to a situation in which a Shali'ach was appointed to collect a loan.
2) MAY A JEW SIGN A CONTRACT OF EMPLOYMENT?
OPINIONS: Rav rules that a hired laborer may quit his job even in the middle of the day. The Gemara explains that Rav's source is the verse, "For the Jewish people are My servants" (Vayikra 25:55). The Jewish people are servants only to Hash-m and not to other servants, and thus a Jew who is working for another Jew may stop at any time.
This verse is also the source for the prohibition against selling oneself as a slave. Although the Torah allows a person to sell himself as a slave (Eved Ivri) under certain circumstances (see SHACH CM 333:16), one who does so transgresses this verse, as Rebbi Yochanan teaches in Kidushin (22b).
To what extent does this prohibition apply? Does the Gemara mean that a Jew is not allowed to hire himself out as a worker at all?
(a) TOSFOS (DH Ki Li) writes that one may hire himself out as a worker. Only one who sells himself as an Eved Ivri -- who is bound to servitude and cannot leave voluntarily before the time is up -- is in violation of the verse. Since an ordinary laborer may cancel his employment at any time he is not in violation of the verse.
(b) The HAGAHOS MORDECHAI (Bava Metzia, ch. 6) proposes that a person may not hire himself out as a worker for more than three years at a time. The Gemara in Kidushin (15a) infers from the verse, "[It shall not be difficult in your eyes when you send him free,] because double that of a hired worker did he work for you for six years" (Devarim 15:18), that the Eved Ivri's normal term of servitude is defined as double the maximum term of an ordinary laborer, which is three years. It follows that a person who hires himself out for more than three years is not called a laborer. Although he is not an Eved who works for six years, he also is not classified as the type of worker the Torah permits, which is one who hires himself out for up to three years at a time. Therefore, a teacher, Sofer, or other type of worker who hires himself out in a permanent manner for more than three years to be "dependent on the table" of the employer transgresses the verse of "Avadai Hem" -- "for the Jewish people are My servants." The REMA (CM 333:3) rules in accordance with the Hagahos Mordechai. (The commentaries on the Rema point out that there is a printing mistake in the text of the Rema. The words "three years" should read instead "more than three years," as the Mordechai writes.)
The CHASAM SOFER (Teshuvos CM 172) discusses why a community is permitted to hire a Rav for more than three years at a time. In those days (and in some places today), the Rav was supplied with all of his basic needs and a salary in exchange for serving as the spiritual leader of the community. The Chasam Sofer concludes that in order to avoid violating the verse of "Avadai Hem," the Rav's contract should include an explicit stipulation that the Rav may stop serving as the Rov whenever he wants, as long as he does not leave this community for a different community (in which case he must pay the community a certain amount of money. Since the Rav may leave his job whenever he wants, he is not in violation of "Avadai Hem."
The PISCHEI CHOSHEN (Hilchos Sechirus 7:1) points out that this Halachah applies only to one who hires himself out for more than three years in a permanent manner, where he is dependent on the table of the employer (as the Hagahos Mordechai writes). This means that he not only works for the employer during the day, but he also resides and eats under the auspices of his employer. Although the Hagahos Mordechai specifically mentions a teacher and Sofer, professionals who do not seem to work for more than a few hours during the day, apparently in the times of the Mordechai a teacher and Sofer stayed in the home of the employer and ate at his table. Accordingly, today a teacher or Sofer certainly may sign a contract of employment for more than three years, even according to the Mordechai. (See notes on Pischei Choshen there at length.) (Y. MONTROSE)
3) WHEN DOES "EIN SHALI'ACH L'DEVAR AVEIRAH" APPLY?
QUESTION: The Gemara discusses the concept of "Ein Shali'ach l'Devar Aveirah." Ravina says that this concept applies only when the Shali'ach himself is obligated to obey the act in question. Rav Sama says that this concept applies only where the Shali'ach may choose whether or not to do the sin. The Gemara explains that the practical difference between the two opinions is a case in which a Yisrael is appointed by a Kohen to betroth a divorcee on his behalf. According to Ravina, the Shelichus should take effect since the Shali'ach himself is not prohibited from marrying a divorcee. According to Rav Sama, the Shelichus should not take effect since a person may not act as an agent for a sin.
TOSFOS (DH d'Amar) explains that this difference does not seem practical. Even if Ravina maintains that the Shelichus works in such a case, the Halachah follows the view of Rava in Kidushin (78a) who says that when a Kohen is Mekadesh a divorcee he is not punished with Makos. He receives Makos only if he has relations with the divorcee. Accordingly, what practical relevance is there between Ravina and Rav Sama with regard to whether or not the Kidushin takes effect?
(a) TOSFOS answers that according to Ravina, the Kohen will receive two sets of Makos when he has relations with the divorcee -- one for the act of Kidushin, and another for the act of relations. According to Rav Sama, he will receive only one set of Makos (for the act of relations).
(b) Alternatively, Tosfos answers that even according to Rava there is a practical difference. If the Shelichus works, then the Kidushin takes effect, and if the Shelichus does not work, then the Kidushin does not take effect. What exactly does Tosfos mean? The SHA'AR HA'MELECH (Me'ilah, ch. 7) explains that if the Shelichus works, the Kidushin takes effect and the divorcee becomes the legal wife of the Kohen, but if the Shelichus does not work, the Kidushin does not take effect and she is not the wife of the Kohen.
If there is no Makos due to the Kidushin, why should the Kidushin not be valid? What sin did the Kohen (or his Shali'ach) do through the act of Kidushin such that it should be invalid?
1. The NODA B'YEHUDAH (EH 1:75) explains that the second answer of Tosfos agrees that the Kohen is liable for Makos when he has relations with the divorcee, because he also performed an act of Kidushin. How does this answer differ from the first answer of Tosfos? According to Tosfos' second answer, the fact that the act of Kidushin may lead to an obligation of Makos (in the event that the Kohen has relations with the divorcee) gives the Kidushin the status of a sin now, even before the obligation of Makos actually takes effect.
2. The MINCHAS CHINUCH (#266) writes that Tosfos understands that there is a Torah prohibition against a Kohen betrothing a divorcee, whether or not he ends up having relations with her. Only his culpability for Makos depends on whether or not he has relations with her. Therefore, according to Ravina, who says that the Shelichus works, the Kohen transgresses a Torah prohibition. (Y. MONTROSE)
4) THE SOURCE THAT "KINYAN CHATZER" IS "MISHUM YAD"
QUESTION: The Amora'im argue about whether the Chatzer of a Ketanah acquires for her or not. Reish Lakish rules that a Ketanah has no Kinyan Chatzer. Rebbi Yochanan rules that she does. The Gemara explains that according to Reish Lakish, a Chatzer functions as an effective form of Kinyan through Shelichus, and a Ketanah has no Shelichus. According to Rebbi Yochanan, Kinyan Chatzer functions through Yad, and a Ketanah does have a Yad.
RASHI (DH Mishum Yadah) explains that according to Rebbi Yochanan, the source that Kinyan Chatzer works through Yad is the fact that the Torah says that the Get should be placed "b'Yadah" (Devarim 24:1); "Yadah" refers to any property of a person and not specifically to a person's hand.
According to Rashi, it seems that Rebbi Yochanan and Reish Lakish disagree about whether "Yadah" means specifically "hand" or whether it means one's property in general.
Why does Rashi explain that Chatzer works through Yad because "Yadah" means her property? Rashi himself (end of DH Talmud Lomar, and in Gitin 77a, DH Talmud Lomar) gives a different source that Chatzer works through Yad. Rashi writes that if the verse had intended to limit the giving of the Get into the woman's hands, it should have said "uv'Yadah Yitnenah." In fact, the wording of the Gemara implies that the word "Yadah" does not "property," as the TORAS CHAIM points out, since it says that "Chatzer is to be included (Israba'i) in the category of Yad," rather than "Chatzer is derived from the word 'Yadah' (mi'Yadah Yalfinan)." This implies that a Ribuy teaches that Chatzer is a type of Yad, and not that it is learned from the actual meaning of the words. (MAHARSHA in MAHADURA BASRA)
ANSWER: Rashi understands that at this point in the Gemara, Rebbi Yochanan and Reish Lakish disagree even with regard to a Get and not only with regard to other Kinyanim. This is implied by the fact that they discuss a Ketanah (who is the one who makes the Kinyan on a Get) and not a Katan. From where does Rebbi Yochanan know that a Chatzer works through Yad? He must have known the Derashah of the Beraisa (of "v'Nasan b'Yadah"). However, the Gemara introduces that Derashah only later, when it uses it to refute the opinion of Reish Lakish. If the Gemara knows already that this Derashah is Rebbi Yochanan's source and yet it still accepts the view of Reish Lakish, in what way does the Beraisa refute the view of Reish Lakish? It must be that the Gemara assumes that Rebbi Yochanan has a different source to teach that Chatzer works through Yad, and that source is that "Yad" means "Reshus" ("property").
In what way, though, does the Derashah of the Beraisa refute the view of Reish Lakish any more than the Derashah that "Yad" means "Reshus" refutes his view?
The answer is that the Beraisa makes it clear that the verse includes an extra word in order to teach that a Chatzer acquires a Get. As Rashi explains, one would know that a Chatzer is considered a Shali'ach based on logic alone without any Ribuy (Rashi, DH Mishum Shelichus, and DH Talmud Lomar; see Rashi to 11b, DH Ela Amar Rav Ashi, and Insights there). Why, then, does the verse need an extra word to teach that Chatzer acquires? It must be adding that Chatzer works not only as a Shali'ach but even as a Yad. However, until the Gemara cites the Beraisa, the Gemara assumes that no extra words are written in the verse to teach that Chatzer acquires; rather, Rebbi Yochanan maintains that the simple translation of the word "Yadah" includes property and not just her hand. According to Reish Lakish, since "Yadah" translates simply into "hand," there is no extra verse to teach that Chatzer will acquire.
Why, then, does the Gemara not cite the same proof from the first Beraisa which discusses the Kinyan Chatzer for Geneivah? According to Reish Lakish, it should not be necessary for the Torah to include an extra word ("Timatzei") in order to teach that Chatzer acquires. In fact, according to Rebbi Yochanan as well, it should not be necessary to add the word "Timatzei" since "Yado" inherently means "his Reshus"!
The answer is that with regard to Geneivah, one might have thought that the Chatzer cannot acquire through Shelichus because "Ein Shali'ach l'Devar Aveirah," and that is why the Torah must teach that Chatzer is Koneh through Shelichus for Geneivah. (See Rashi to 11a, DH u'Mar Savar.) According to Rebbi Yochanan as well, perhaps the Gemara assumes that since an Aveirah is involved even Rebbi Yochanan would not have translated "Yado" as "his Reshus" had the Torah not written the extra word ("Timatzei"). The Gemara eventually concludes that with regard to Get as well Rebbi Yochanan would not have translated "Yado" to mean "his Reshus" had the Torah not said "v'Nasan" (see MAHADURA BASRA).
5) STEALING AN ITEM THROUGH "KINYAN CHATZER"
QUESTION: RASHI (DH Gago v'Chatzeiro) explains the manner in which a thief is able to steal an object (an animal) with his Chatzer without doing any action to the object itself. The act of theft occurs when the animal wanders into the thief's Chatzer, and the thief locks the gate in order to prevent it from leaving. Rashi offers a similar explanation in Gitin (77a) and later in Bava Metzia (56b).
Why does Rashi write that the thief locks the gate? Why can he not steal the animal merely by deciding in his mind to acquire it with a Kinyan Chatzer it, without having to lock the gate?
ANSWER: The KETZOS HA'CHOSHEN (189:1) explains that according to Rashi, Geneivah requires an action. Thought alone cannot effect a Geneivah. Support for this view may be found in the Mishnah later (43b) which teaches that according to Beis Hillel, when a Shomer merely decides to steal a Pikadon that was entrusted to him to watch, he is not considered "Shole'ach Yad" until he performs an act of stealing it. This is Rashi's source that the owner of the Chatzer must lock the gate in order to be considered a thief. (See MAHARIT, CM #88.)
Accordingly, the verse teaches that a Chatzer acquires an object for a person even when the person does no action. In contrast, in the case of a Ganav, an act is required in order that his act be considered one of thievery. No act is required in order to effect the Kinyan.