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The Israel Koschitzky Virtual Beit
Midrash
Halakha: A Weekly Shiur In Halakhic Topics
Shiur #09: SHELICHUT (AGENCY) REGARDING MILA By HaRav Yaakov Medan One of the issues arising in connection to the mitzva of mila is whether or not the mitzva can be fulfilled through a shaliach (an agent). Despite the considerable practical ramifications for our times, there is little halakhic discussion of the topic. In this lecture, we shall try to clarify, among other things, whether or not the practice of performing mila through a shaliach is justified. The Rema in Darkhei Moshe 264:1 cites the Or Zaru'a: The Or Zaru'a writes that if the [baby's] father is a mohel, he may not give away [the mitzva] to a different mohel. It goes without saying that if the father does not know how to perform mila, there is no other choice but to call in a mohel to perform the mitzva in his place. It is preferable, however, that the father should perform the circumcision himself. The Darkhei Moshe raises a question which he leaves unanswered: It must be clarified why [circumcision] is different from other mitzvot, regarding which a person may appoint a shaliach in his place? The Gemara in Chullin 87a discusses the monetary penalty that is imposed upon one who "steals" a mitzva. There are situations in which a person is bound by a certain obligation, and someone else comes and fulfills that obligation in his place, effectively "stealing" the mitzva. The Gemara states that the thief must pay his victim ten gold coins. The Gemara discusses the question with respect to the mitzvot of kissui ha-dam (covering of the blood following ritual slaughter) and birkat ha-mazon (grace after meals). The Rosh (Chullin, chap. 6, no. 8) discusses this Gemara and its application to the case of mila: It once happened that someone instructed a mohel to circumcise his son, and someone else went ahead and circumcised him, and the first [mohel] who had been instructed by the father to perform the mila sued the second [mohel] for ten gold coins. Rabbenu Tam exempted [the second mohel], because it says in chapter Ha-Chovel that in a case where there is no out-of-pocket financial loss, we do not act as shelichim [of the court in Eretz Israel to impose fines.] Even if [the first mohel] seized the money, we remove it from him. Since he was present at the circumcision and answered "Amen," [we invoke the rule that] greater is he who answers "Amen" than he who recites the blessing. Rabbenu Tam maintains that in a case where someone steals the mitzva of mila from another person, he is not liable to pay a fine. Later in the passage, the Rosh argues that even if we disregard Rabbenu Tam's arguments, there is an additional reason to exempt the "thief": Even without the arguments put forward by Rabbenu Tam, it seems to me that the [second] mohel should be exempt. Even though the father instructed a particular mohel to circumcise his son, the latter did not acquire the mitzva so that another [mohel] should be liable if he went ahead and performed [the mila]... If a father, who is obligated to circumcise his son, wished to do so, and someone else went ahead [and performed the mila], the latter is liable. But if the father does not want to circumcise his son himself, the obligation falls upon all of Israel to perform the mila. And with the father's words of instruction to the [first] mohel, [that mohel] did not acquire the mitzva so that another [mohel] should be liable if he went ahead [and performed the mila]. The Rosh distinguishes between two cases. If the father intends to circumcise his son, and someone else comes and steals the mitzva from him, the "thief" is liable to pay the penalty. But if he intended to give the mitzva to another person, and a third party went ahead and did it, the "thief" is not liable to pay the fine, because the father cannot transfer the mitzva to another person by way of his verbal instructions. The Shakh in Choshen Mishpat 382 discusses the issue at length. There, the Rema rules: If a person had a son to circumcise, and someone else came and performed the mila, the latter is liable to pay the former ten gold coins. But if he instructed someone else to circumcise his son, and a third party came and circumcised him, he is exempt. The Shakh in note 4 argues: It is evident from the aforementioned words of the Rosh that a [qualified] mohel is not permitted to hand his son over to someone else for circumcision. Rather, he himself must circumcise him, similar to the law of kissui ha-dam, that he who spilled the blood (i.e., slaughtered the animal) must cover the blood. This is also implied by the Rambam who writes in the beginning of Hilkhot Mila, that this positive precept falls initially upon the father. This follows from the plain sense of the Gemara in the first chapter of Kiddushin, where it is stated: "A father is obligated to circumcise his son. From where do we know this? As it is stated: 'And Avraham circumcised his son, Yitzchak.' And when the father does not circumcise his son, the court is obligated to circumcise him." I write this because I have seen a number of people honoring others, asking them to circumcise their sons, even though they themselves are capable of performing mila. It seems to me that they are canceling a positive precept, the great mitzva of mila, and that the court should put an end to this practice. Today, it is very easy to satisfy the requirements of the Shakh. The professional aspect of mila is the proper placement of the clamp; this can be performed by the mohel. The father can then cut the foreskin without any particular problem. The cutting of the foreskin constitutes the essence of the mitzva; the other aspects of the mitzva can be performed by the mohel in a professional manner, without exposing the baby to any risk of injury. However, when the mila is performed on Shabbat, it is customary that the father does not perform the circumcision, so as not to divide the procedure between two people. The Ketzot ha-Choshen (ad loc.) deals extensively with the issue, inclining toward the position of the Shakh. As we stated above, the Rema in the Darkhei Moshe implies that there is no reason that a person cannot appoint a shaliach to circumcise his son. In order to clarify this matter, we must consider two different issues:
In effect, we must deal with three fundamental questions: First, what is the definition of the mitzva of mila? This question parallels questions rising with respect to other mitzvot. For example, regarding the mitzva of burning chametz, it may be asked whether there is an obligation to engage in active burning of chametz, or whether it suffices that a person have no chametz in his house. A similar question may be asked regarding mila. Is the father obligated to actively engage in the cutting of the foreskin, or is he obligated to ensure that his son be circumcised? A second question arises regarding the nature of the father's obligation. There are only a few mitzvot that fall upon a father, apart from those mitzvot which fall upon him as his son's guardian, e.g., the mitzva of chinukh, teaching him about and training him to observe the mitzvot. The question, therefore, arises here whether the father's obligation regarding circumcision stems from his custodial responsibility for his child, or whether there is an obligation falling upon the father's person to circumcise his son. The third question relates to shelichut. Assuming that the father's obligation is one that falls on his person, the question arises all the more strongly whether or not the mitzva may be fulfilled by way of a shaliach. The Ketzot in Choshen Mishpat 182 cites the famous words of the Tosafot Rid that one cannot appoint a shaliach to don tefillin, because tefillin is a mitzva that relates to one's person, i.e., a mitzva that must be fulfilled with one's own body. The question, therefore, arises whether or not shelichut is effective regarding the mitzva of mila. Before we begin to address these questions, it should be noted that in order to arrive at the Shakh's conclusion, we must accept three assumptions. Should we reject even one of them, the Shakh's stringency falls by the wayside. 1. The mitzva of mila consists of the act of cutting. 2. The mitzva of mila is an obligation falling upon the father's person. 3. Just as a person is unable to appoint a shaliach to don tefillin, so is he unable to appoint a shaliach to circumcise his son. I. DEFINITION OF THE MITZVA The Rambam writes at the beginning of Hilkhot Mila (1:2): A male infant is not circumcised without the father's knowledge, unless the latter has neglected his duty and refrained from circumcising it. In this case, the court has it circumcised even against the father's will. Should the child have escaped the notice of the court, so that it did not have the child circumcised, then that person is under an obligation, when he grows up, to have himself circumcised. Every day that passes, after he is grown up, that he remains uncircumcised, he is neglecting the fulfillment of a positive precept. He does not, however, incur the penalty of karet (excision) until he has died, having willfully remained uncircumcised. The Ra'avad disagrees with the Rambam, and says: This has no taste. Should we say that because of an uncertain warning, he is exempt from Divine punishment? Surely every day he stands in violation of a prohibition punishable by karet. This is a very famous controversy, one which the Rishonim struggled with at length. For example, Tosafot in Makkot 14 bring these two positions, one as the initial assumption and one as the conclusion: There is, however, the difficulty, why is a verse necessary, being as there is no karet, for it can never be established that he is liable for karet until he dies, for he can always have himself circumcised and exempt himself from karet. It may be suggested that in fact as long as he fails to have himself circumcised, the punishment of karet is upon him. It would seem, and this is the understanding of many of the Acharonim, that the dispute between the Rambam and the Ra'avad depends upon the whether the mitzva consists of the act of cutting the foreskin, in which case a person has time until he dies, or whether the mitzva consists of being circumcised, in which case from the moment a person reaches the age of obligation in mitzvot, he violates this commandment each and every minute, and is liable for karet each and every minute that he remains uncircumcised. The Rishonim discuss this point in various contexts. For example, the Gemara in Shabbat 24b discusses why circumcision performed not on the eighth day does not supersede the prohibitions of Shabbat and Yom Tov. Rava said: The verse says: "[No manner of work shall be done on them, save that which every man must eat,] that only may be done of you" – "that," but not its preliminaries; "only," but not circumcision out of its proper time, which might [otherwise] be inferred by way of an a fortiori argument. Rabbi Ashi said: "On the first day shall be a solemn rest" is a positive precept: thus there is a positive and a negative precept in respect of the festivals, and a positive precept does not supersede a negative and a positive precept. Tosafot ask (s.v., hava lei yom tov): You might say: Those Amoraim cited earlier, who maintain that in respect of the festivals there is only a negative commandment, let them learn from here that a positive commandment does not set aside a negative commandment... Perhaps we cannot learn from here, because he can perform the mila after Yom Tov. Were we to understand that an uncircumcised person violates a prohibition that is punishable by karet every minute that he remains uncircumcised, it would be very difficult to accept what Tosafot say, that a person can circumcise himself following Yom Tov, for surely he violates a prohibition every minute that he remains uncircumcised. Another example may be found in the laws of Pesach, regarding which there is a discussion about a person who went off to slaughter his paschal lamb or to circumcise his son, and then remembered that he had chametz in his house. The Mishna in Pesachim 49 states: If a person went off to slaughter his paschal lamb or to circumcise his son or to eat at a betrothal feast in his father-in-law's house, and he remembered that he had chametz at home, if he can go home, destroy the chametz, and return to his mitzva – he should go home and destroy the chametz. If not, he should nullify the chametz in his heart. This is brought as normative law in Shulchan Arukh, Orach Chayyim 444:7: If one goes off on the fourteenth [of Nissan] to perform a mitzva, for example, to circumcise his son or to eat at a betrothal feast at his father-in-law's house, and he remembers that he has chametz in his house – if he can return to his house, destroy the chametz, and return to his mitzva, he should go back home and destroy the chametz. If not, he should nullify it in his heart. Commenting on this halakha, the Mishnah Berura writes as follows (no. 29): Even though this will cause him to nullify the mitzva of mila – the positive precept of destroying chametz is more severe, for he violates it every minute, which is not the case regarding mila. This is also the implication of his words in Sha'ar Tziyon, no. 24. The Mishna Berura, then, explicitly rejects the position of the Ra'avad that an uncircumcised person violates a prohibition punishable by karet every minute that he remains uncircumcised, for on the day before Pesach, the mitzva of destroying chametz is merely a positive precept, there being no parallel negative commandment, and so the mitzva of mila, were we to accept the position of Ra'avad, would certainly be more severe. II. THE FATHER'S RELATIONSHIP TO THE MITZVA OF MILA The Rishonim disagree on a number of points connected to this issue. The Mishna in Kiddushin (29a) states: Regarding all the mitzvot concerning the son that fall upon the father – men are obligated and women are exempt. And regarding all the mitzvot concerning the father that fall upon the son, both men and women are obligated. The Gemara there discusses the source of the law regarding the mitzva of mila: From where do we know that she is not obligated? For it says: "As God had said to him" (Bereishit 17:23) - to him, and not to her. The Tosafot Rid ask why was it necessary to derive this law from the words "to him." Surely the mitzva of mila is a time-determined positive precept, for circumcision may not be performed at night, and women are exempt from all time-determined positive precepts! The Tosafot Rid explains that the exemption of time-determined positive precepts only applies to mitzvot that relate to a person's body. The mitzva of mila, however, is to ensure that circumcision will take place; it, therefore, includes all the preparations that can be performed at night as well. The act of cutting must be performed by day, but the rest of the preparations, which are an inseparable part of the mitzva, may be performed at night. Therefore, the law that women are exempt from this mitzva had to be derived from "to him, and not to her." The implication is that the mitzva consists of the father's involvement in the mitzva that stems from his custodial role over his son, and not an obligation falling upon the father's person. Several other Rishonim maintain this position as well. According to this view, it is clearly permissible to allow a mohel to perform a circumcision; moreover, it is not even necessary to appoint him as a shaliach. For the father's obligation is to ensure that the mila is performed, and not the act of the mila itself. On the other hand, a number of Rishonim imply otherwise. First and foremost is the Rambam. But before we see what the Rambam says, let us examine Tosafot's discussion of the issue. The Gemara in Avoda Zara 27a discusses the question whether or not a woman may perform circumcision: Rather, there is a difference between them regarding a woman. According to the one who relies upon "And you shall observe My covenant" (Bereishit 17:9), she is disqualified, because a woman is not subject to circumcision. And according to the one who relies upon "And you shall surely circumcise" (ibid., v. 13) she is qualified, because a woman should be classed as circumcised. This question depends on a number of factors, including the question what is the essence of the mitzva. It would seem self-evident that a woman should not be able to perform circumcision, for she has no connection to the mitzva, just as she cannot spin the threads to be used as tzitzit, because she has no connection to the mitzva. If, however, we understand that the mitzva is the removal of the foreskin, it could perhaps be argued that a woman is connected to the mitzva, but that there is a technical problem in that they are born without a foreskin, just like a man who is born lacking a foreskin. But if we say that the mitzva is the actual cutting, we must say that a woman has no connection to the mitzva. Tosafot say as follows: The law should be decided in accordance with Rav that a woman is unfit to perform circumcision. Even though the rule is that in a dispute between Rav and Rabbi Yochanan, the law is in accordance with Rabbi Yochanan, here the law is in accordance with Rav, for the baraita of Rabbi Yehuda Nesi'a agrees with him. The author of Halakhot Gedolot, however, rules that a woman is fit to perform circumcision. According to Rav who says that a woman is unfit to circumcise, we must understand the Gemara in the first chapter of Kiddushin (29), which requires the derivation "to him, and not to her" to teach that a woman is not obligated to circumcise her son, to mean that she is not obligated to see to it that he is circumcised. Tosafot's conclusion implies that the father's obligation stems from his custodial responsibilities to his son. The Rambam rules in Hilkhot Mila (1:1): There is a mitzva that falls upon the father to circumcise his son, and upon the master to circumcise his male slaves, whether born in the house or purchased with money. If the father or master failed to perform the circumcision, he has failed to perform a positive precept. The Rambam implies that the mitzva that is incumbent upon the father is to perform the act of circumcision, and that if he fails to do so, he cancels a positive precept. This understanding follows also from another passage in the Rambam (ibid. 3:1): Before performing circumcision, one must recite the blessing, "Blessed are You, O Lord, our God, King of the Universe, who has sanctified us with His commandments and given us command concerning circumcision." He says this blessing when he circumcises the son of another person. If he was circumcising his own son, the formula he recites is "...and commanded us to circumcise the son." In either case, the father of the child recites also another blessing: "Blessed are You, O Lord, our God, who has sanctified us with His commandments, and commanded us to make him enter into the covenant of Avraham Avinu." The mitzva falling upon the father to circumcise his son is in addition to the mitzva falling upon all of Israel to circumcise any male among them. If, therefore, the father is not present at the circumcision, the second blessing is not recited after it. One authority has ruled that in such a case, the court or one of those present should say the blessing. It is, however, not right to do so. The difference in the formulation of the blessings stems from the fact that when the father circumcises his son, he is bound by an obligation upon his person, as the Rambam explains in Hilkhot Berakhot (11:11-13): Whenever a person performs a mitzva, whether or not it is a personal obligation, if he does it for himself, he says "...and commanded us to do (the particular duty}." If he does it on behalf of others, he says "...and commanded us concerning the duty." How so? When he dons tefillin, he says "...and commanded us to lay tefillin"; when he puts on a talit, he says "...and commanded us to wrap oneself in a fringed garment"; when he sits in a sukka, he says "...and commanded us to sit in a sukka." And so other blessings end: "to kindle the Shabbat light"; "to complete the reading of Hallel." And similarly when he affixes a mezuza in his own home, he says "...who commanded us to affix a mezuza"; when he builds a parapet for his own roof, he says "...who has sanctified us with His commandments, and commanded us to build a parapet"; when he sets aside teruma for himself, he says "...and commanded us to set aside [teruma]"; when he circumcises his own son, he says "...and commanded us to circumcise the son"; when he slaughters the paschal lamb or festival offering, he says "...and commanded us to slaughter..." But when he affixes a mezuza for others, he says "...and commanded us concerning the affixing of a mezuza"; when he builds a parapet for them, he says "...and commanded us concerning the building of a parapet"; when he sets aside teruma for them, he says "...and commanded us concerning the setting aside of teruma"; when he circumcises the son of another person, he says "...and commanded us concerning circumcision"; and so in all similar cases. If we accept the Rambam's assumption, an interesting question arises: Is the father obligated to circumcise his son, even after he has grown up? The posekim disagree about this issue. If we understand that the father's obligation stems from his custodial responsibilities over his son, clearly the obligation is nullified when the son reaches adulthood. This is the position of some of the posekim. Many authorities, however, disagree, insisting that the father's obligation continues even after the son has reached adulthood. They argue that the matter depends upon the question we have been discussing. III. SHELICHUT REGARDING THE CIRCUMCISION The Ketzot ha-Choshen (in section 182) cites the words of the Tosafot Rid regarding shelichut in mitzvot: There are those who have raised an objection: If so, a shaliach should be effective regarding every mitzva. A person should be able to say to another person, "Sit in a sukka on my behalf" or "don tefillin on my behalf"! But this is not correct, for a mitzva which must be performed with one's body – how can a person discharge his responsibility by way of a shaliach, without him doing anything? Surely in marriage and divorce, shelichut is effective, because [the principal] is the one granting the divorce, and not the shaliach, for he writes in the bill of divorce: "I, So-and-so, am divorcing So-and-so..." But regarding sukka, here too he can say to another person, "Build me a sukka," and then he will sit in it. But if the other person sits in it, he has not fulfilled anything. The same thing applies to tzitzit and all the mitzvot. According to Tosafot Rid, shelichut is effective with respect to marriage and divorce, because it is the husband who grants the divorce, and the shaliach merely performs a technical act, for the act of divorce consists of the writing of the get. The situation is similar with respect to the paschal lamb and the setting aside of terumot and ma'asrot. The principle, according to the Tosafot Rid, is that in matters connected to a person's body, shelichut is ineffective; but in matters where it is merely technical assistance that is required, a shaliach may be employed provided that it is the principal who effects the change in halakhic status (i.e., betrothal, divorce, and tithing). Whenever it is possible to distinguish between the act itself and the halakhic consequences of that act – it is possible to speak about shelichut. The Ketzot raises an objection: There is a difficulty. For regarding shelichut for the commission of a transgression, were it not for the fact that the verse teaches us that there is no shelichut for the commission of a transgression, we would have thought that shelichut is effective, even though the principal does nothing. And according to the elder Shammai, a person can appoint a shaliach to commit murder, for a person's shaliach is regarded as himself... and the principal does nothing. It seems to me that we only say that a person's shaliach is like himself in things where he does something, in which case the shaliach's act is considered like his own... And therefore regarding the paschal offering, marriage and divorce, the act of the shaliach is like his own, as if he himself slaughtered the paschal lamb, gave the betrothal money or the get... But regarding tefillin, when the shaliach dons the tefillin, this donning which is the act is considered as if performed by the principal, but still he has not put the tefillin on his head, but rather on the head of the shaliach, for the shaliach's body is not considered like the body of the principal. For in things that happen by themselves there is no appointment of a shaliach. Therefore regarding tzitzit, tefillin, and sukka, even if the shaliach's act is like the principal's act, since the shaliach's body is not like the principal's body, he has not performed an act with the principal's body, but with the shaliach's body. But regarding the paschal lamb, betrothal, and divorce, the slaughter of the paschal lamb, and the act of betrothal or divorce, which are viewed as if he had done them, indeed the act was completed. The Ketzot asserts that when the person himself is the cheftza of the mitzva, a shaliach cannot be appointed. The person's body must be in the sukka, his body must be wearing tefillin and enwrapped in a talit. In contrast, when the person is only the gavra of the mitzva, then shelichut is effective. What are the practical differences between the Ketzot and the Tosafot Rid? The mitzva of circumcision. There is no law that the knife must be in the hand of the father, but rather the mitzva is that the father must circumcise his son. Therefore, according to the Ketzot, fundamentally speaking, shelichut should be possible. According to Tosafot Rid, on the other hand, it is impossible to speak of shelichut in such a case. In conclusion, let us point out two contradictions that we have come across, contradictions for which we have found no resolution in the words of the Acharonim. The first contradiction is found in the Ketzot. In section 182, the Ketzot understands that there is shelichut in certain mitzvot pertaining to a person's body. But in section 382, he implies that there is nothing to speak of regarding shelichut in such mitzvot. The second contradiction is found in the words of the Rema who expressed his astonishment in his Darkhei Moshe regarding the ruling of the Or Zaru'a that a shaliach cannot be appointed for circumcision. On the other hand, in the Shulchan Arukh, he cites the position of Rabbenu Yerucham that if someone stole the mitzva of mila from the father, he is liable to pay a financial penalty, whereas if he stole the mitzva from a mohel, he is exempt. This ruling implies that the mohel appointed by the father enjoys no special status, or in other words, that there is no shelichut in the mitzva of circumcision. (Translated by David Strauss) |