12TH CYCLE DEDICATION
NEDARIM 36 - Dedicated by Chaim and Caroline Turkel of London. May the Zechus of learning and disseminating the Torah bring them and their children good health, the fulfillment all of their material needs, and unlimited Berachah in this world and the next!

1) A KOHEN WHO DISQUALIFIES A KORBAN THROUGH "PIGUL"

QUESTION: The Gemara assumes that a Kohen is able to disqualify a Korban through Pigul only when he offers the Korban as the Shali'ach of the owner and has the owner's consent in making it Pigul. However, the Gemara (see Chulin 40a) teaches that one can cause someone else's object to become prohibited even without the owner's knowledge. Why, then, does the Gemara assume that only when the Kohen is the Shali'ach of the owner can he disqualify the Korban?

ANSWERS:

(a) The RASHBA writes that once the Kohen sacrifices the animal with the intent of Pigul, he is no longer acting in the capacity of the Shali'ach of the owner, since he has done something which the owner does not want. Consequently, the Korban has been improperly slaughtered, and since Pigul takes effect only when the Korban is properly slaughtered (aside from the thought of Pigul), it does not take effect.

(b) The RAN explains that the Kohen can intentionally make it Pigul against the will of the owner, since, as mentioned above, one does have the power to do an act that will prohibit his friend's object. Therefore, there is no proof from the fact that the Kohen can invalidate someone's Korban through Pigul that he acts as the Shali'ach of that person. Rather, the Gemara's proof is only from a case in which the Kohen unintentionally disqualifies the Korban through Pigul. In such a case, it is assumed that the Kohen's intent was to fulfill his Shelichus, and if he is not a Shali'ach his thoughts do not affect the Korban.

The Ran and Rashba disagree about whether the fact that the owner does not want the Kohen to slaughter his animal with improper thoughts provides grounds to say that the Shechitah is invalid or only that the thoughts of the Kohen do not take effect.

The MINCHAS BARUCH (#20) explains that everyone agrees that when the Kohen does not carry out his Shelichus properly, the Shelichus is annulled. The Rashba maintains that the Shechitah is invalid because the Kohen must be the Shali'ach of the owner in order for the Shechitah to be valid; if the Kohen is not the Shali'ach (because the Shelichus has been annulled) the Korban is not valid. In contrast, the Ran maintains that although there is a Mitzvah for the Kohen to be the Shali'ach of the owner, the Korban is valid even if the Kohen is not the owner's Shali'ach (but the Pigul that he does as a Shali'ach will not take effect, as mentioned above).

An alternate explanation for the view of the Ran is that the owner does not want the Kohen to be a Shali'ach who has thoughts of Pigul (and therefore those thoughts do not take effect), but at the same time he does not want to annul the entire Shelichus. Therefore, the Kohen remains a Shali'ach with regard to sacrificing the Korban.

(The ROSH writes that a Kohen cannot disqualify a Korban through Pigul if he is not the Shali'ach of the owner, since one does not have the power to prohibit someone else's object. The Rosh's view is not clear, however, as the Gemara in Chulin says that one can prohibit someone else's animal by slaughtering it for Avodah Zarah.)

36b----------------------------------------36b

2) SEPARATING TERUMAH ON BEHALF OF SOMEONE ELSE

QUESTION: The Gemara discusses whether one may separate Terumos and Ma'aseros from his own produce on behalf of his friend's produce, so that his friend is not required to separate Terumos and Ma'aseros from his own produce. The Gemara explains that the reason why such an act should be effective is the principle of "Zachin l'Adam she'Lo b'Fanav" -- one may make a transaction for his friend's benefit without his friend's knowledge.

TOSFOS and the RASHBA ask that the Gemara in Bava Metzia (22a) says that Terumah may be separated by a Shali'ach only when he is appointed with the knowledge of the owner of the produce. Why, then, does the Gemara here suggest that one may separate Terumah for his friend based on the principle of "Zachin l'Adam" in the absence of the owner's consent?

ANSWER: TOSFOS and the RASHBA answer that the owner's knowledge is necessary only when he separates the Terumah for his friend from his friend's produce. Since he takes fruit from his friend's produce, it is necessary that his friend know about it and consent. The Gemara here refers to a case in which he separates the Terumah from his own produce on behalf of his friend's produce. In such a case, his friend's knowledge is not required since the act benefits him.

HALACHAH: May a Jewish worker separate Chalah from the dough of his employer without his employer's knowledge?

The REMA (YD 328:3) cites the TERUMAS HA'DESHEN who rules that if the dough will spoil if not baked, one is permitted to separate Chalah from the dough without explicit permission from the owner. He explains that since it is beneficial for the owner, the worker may act as his Shali'ach even without being appointed as such based on the principle of "Zachin l'Adam she'Lo b'Fanav."

The KETZOS HA'CHOSHEN (243:8) disagrees with this ruling. He cites Tosfos and the Rashba who write that whenever one separates Terumah for his friend from his friend's produce, he is required to be appointed as a Shali'ach by the owner. Only when he separates it from his own produce does the law of "Zochin" apply. The Ketzos ha'Choshen explains that the law of "Zochin" applies only when one actually gives something to his friend, but not when he merely performs a service for his friend. Therefore, even when it is clear that his friend would be pleased with the transaction, the law of "Zochin" does not apply.

How, though, does the Terumas ha'Deshen understand the words of Tosfos and the Rashba? The Terumas ha'Deshen apparently understands that Tosfos and the Rashba are not describing the laws of "Zochin." Rather, they merely are explaining that the act of separating Terumah on behalf of one's friend is not considered an absolutely beneficial act and therefore Shelichus is necessary. Only when one separates the Terumah from his own produce is his act considered an absolute benefit (Zechus) and the laws of "Zochin" apply. According to this logic, there exist situations in which one makes a transaction for his friend without giving him anything tangible, and nevertheless it is a real Zechus and the principle of "Zochin" applies. The case of separating Chalah from dough is an example of such a situation, since Chalah must be separated at this point and the owner has nothing to lose (because there is a standard amount that everyone separates as Chalah nowadays).

TOSFOS here (36b, DH Mi Amrinan) supports this approach. Tosfos writes that the Gemara here is the source for the concept that "Zechiyah mi'Ta'am Shelichus" -- Zechiyah, conducting a beneficial transaction on behalf of someone else without his knowledge, works because of Shelichus. The Ketzos ha'Choshen, on the other hand, understands that the other Tosfos maintains that although there is a rule that Terumah and Shelichus require the knowledge of the owner, when it works through Zechiyah there is no need for Shelichus or the owner's knowledge. Accordingly, if Zechiyah in the case of Terumah is not governed by the rules of Shelichus, why does Tosfos say that this Gemara is the source for "Zechiyah mi'Ta'am Shelichus"?

The Terumas ha'Deshen understands that the other Tosfos means only that separating Terumah for one's friend is not a real Zechus and therefore he needs to be appointed by his friend to do so. When there is a real Zechus, the requirement for knowledge is fulfilled in that it is clear that the owner wants this transaction even if he does not actually know about it. Based on this logic, Tosfos here proves that Zechiyah must work because it is a form of Shelichus, since it satisfies the requirement that the owner "know" (i.e. want) that someone else is separating Terumah for him.

(See also Tosfos in Kesuvos 11a, who writes that Zechiyah works because "we can testify that the owner wants it." This further supports the notion that the concept of Zechiyah is based on the Shelichus being valid since there is implicit knowledge of the owner and there is no need for him to actually be aware of the transaction being done for his benefit.)

OTHER D.A.F. RESOURCES ON THIS DAF