GEMARA KIDDUSHIN
Yeshivat Har Etzion

Shiur #20: Zakhin

by Rav Yair Kahn

After deriving shelichut from a combination of sources, the Gemara suggests that this concept could have been derived from the verse, "nasi echad" (Bemidbar 34:18), which assigned each tribal leader the task of allocating portions in Eretz Yisrael to the members of his respective tribe. The Gemara initially assumed that each leader functioned as a shaliach, acquiring the appropriate portions on behalf of his tribe. But this suggestion is then rejected, as these leaders also acquired portions in Eretz Yisrael destined for minors, who are excluded from shelichut.

The Gemara then proposes that the ability of the leaders to acquire on behalf of the general population, including minors, is the source for the halakha of zekhiya. This halakha, which states, "zakhin le-adam she-lo be-fanav," means that one can make an acquisition for another in his absence, in cases where the acquisition is beneficial for the intended recipient. In this shiur we will examine the nature of this halakha and its relationship to shelichut, an issue which was debated among the Rishonim.

1. Assumed Shelichut

The simplest way to understand zekhiya is to view it as an application of an accepted halakha, i.e. shelichut. In other words, in cases of a transaction that is clearly to the advantage of a certain party, we can assume that had he been present, the beneficiary would have appointed a shaliach to achieve that benefit. This presumed appointment merely replaces the actual appointment normally required in cases of shelichut (see Tosafot Ketubot 11a s.v. matbilin). The result, however, is the same, insofar as one person acts on the behalf of another.

Many Rishonim adopted this approach and accordingly concluded that zekhiya is effective only in cases allowing for actual shelichut. Thus, minors, who are excluded from shelichut, are excluded from zekhiya, as well. This position is supported by a Gemara in Bava Metzia (71b) which claims: "A minor - is it not true that although he is not included in shelichut, he is included in zekhiya mi-derabbanan!" Thus, zekhiya applies to minors only by force of rabbinic enactment; on the level of Torah law, however, ketanim are excluded from zekhiya.

However, the simple reading of our Gemara would seem to contradict this conclusion. The Gemara concedes that shelichut cannot be derived from the verse, "nasi echad," since the tribal leaders also acquired portions of land on behalf of minors, who are excluded from shelichut. Nevertheless, the Gemara suggests that the leaders were able to employ the halakha of zekhiya to acquire on behalf of the minors. Apparently, zekhiya can be applied to minors although they are excluded from shelichut.

2. An Independent Institution

            Based on this question, the Rashba concluded that zekhiya, which is applied in our sugya to minors, cannot be viewed as presumed shelichut. It is unclear, however, how the Rashba explains the correspondence between zekhiya and shelichut documented in the sugya in Bava Metzia. (In his commentary on Bava Metzia, the Rashba prefers a variant reading which alleviates this problem).

The Ba'alei ha-Tosafot, who understood zekhiya as presumed shelichut, did not explicitly address the problem arising from our sugya. Perhaps we can defend their view based on their position regarding a related sugya. Tosafot in Gittin (64b s.v. shani) understood that a minor can be zokheh on behalf of others. This conclusion seems to counter their position viewing zekhiya as presumed shelichut. After all, minors are not only incapable of appointing a shaliach, they cannot serve as a shaliach, either (see Gittin 23a). In order to resolve this problem, Tosafot claim that the exclusion of minors, which is derived from teruma, applies only to the shelichut of trumah. Since minors are unable to be mafrish teruma, they are likewise incapable of serving as a shaliach for that purpose. They are, however, capable of acquiring possessions (in cases of "da'at acheret makneh"), and they are hence eligible to serve as a shaliach to acquire for another. According to Tosafot, our sugya disqualifies minors from appointing a shaliach even to make acquisitions because the act of appointing demands da'at; as such, a minor cannot assign a shaliach. Zekhiya, on the other hand, can be applied to minors, since it is based on presumed appointment and thus sidesteps the need for an actual act of appointment which entails da'at.

            However, the simple reading of our sugya indicates that minors are excluded from shelichut in absolute terms. Furthermore, the Ba'alei ha-Tosafot themselves were divided as to whether minors are excluded from shelichut (see Tosafot B.M. 10b s.v. isha). Therefore, if we are to understand that zekhiya is presumed shelichut, it is more reasonable to interpret our sugya like the Ran, who suggested a ingenious approach to resolve our problem. Like the Rashba, he maintained that minors are entirely excluded from shelichut. Nonetheless, he managed to explain our sugya according to the understanding that zekhiya is based upon shelichut. He did this by weaving the very question of the nature of zekhiya into the fabric of the Gemara itself. If zekhiya has an independent Biblical source, we are free to treat it as an independent halakha, rather than just an application of the standard halakha of shelichut. Consequently, when the Gemara suggests that zekhiya is derived from "nasi echad," it may also entertain the possibility that minors are included. As zekhiya has its own source in the Torah, it need not depend on the guidelines of shelichut.  However, the conclusion of our sugya, that "nasi echad" does not teach us zekhiya, compels us to view zekhiya in terms of shelichut. Thus the Gemara in Bava Metzia, which excludes minors and gentiles from zekhiya since they are not included in shelichut, is consistent with our sugya, which concludes that zekhiya has no independent source.

In summary, the Rishonim divided into two camps regarding the understanding of zekhiya. While some viewed it as an application of shelichut, others rejected this approach and viewed it as an independent institution.

However, the Rishonim who refuse to view zekhiya as an application of shelichut fail to explain how zekhiya works. The Ketzot (105,1) explained that these Rishonim viewed the me-zakeh as a "yad" (literally, "hand," an extension of the beneficiary) who can acquire on behalf of the beneficiary. One who functions as a yad for another retains his self-identity. It is the me-zakeh himself who performs the act of acquisition, only he chooses to do so in order to benefit his friend. A shaliach, on the other hand, is appointed and hence represents the beneficiary. Through the shaliach, it is the me-shalei'ach, not the shaliach, who performs the act of acquisition. 

3. The Category of Shelichut

            We may suggest a third approach to this issue of the relationship between zekhiya and shelichut. Though conceptually distinct from shelichut, zekhiya may nevertheless be viewed as a variation of the concept of shelichut. In fact, the Ramban agrees that zekhiya is not based on shelichut, but nonetheless limits zekhiya to those included in shelichut. Based on the sugya in Bava Metzia, he claims that according to Torah law, minors and gentiles - who are excluded from shelichut - are not included in zekhiya, either. (Zekhiya is applied to minors only according to rabbinic law.) Although the Ramban rejected the understanding of zekhiya as implied shelichut, he nevertheless considered it an application of the general concept of shelichut by which one can act on behalf of another. Even if we don't assume that the zocheh would have appointed a shaliach, one can nevertheless acquire an object for another. Zekhiya is still within the parameters of the broader concept of shelichut and thus inapplicable to those who are excluded from it, though it is not shelichut in the narrow sense.

            We are left with three ways of interpreting zekhiya. The first views zekhiya as presumed shelichut. At the other extreme we find those who consider zekhiya totally unrelated to shelichut. The Ketzot goes so far as to suggest that even gentiles are included in the category of zekhiya, although they are undoubtedly excluded from the entire concept of shelichut. Based on the Ramban, we offered a more moderate suggestion, whereby zekhiya is not based on the assumption that the beneficiary would have appointed a shaliach, but nonetheless falls under the general category of shelichut. This category includes all cases in which one acts on behalf of another. As a member of this group, zekhiya is limited to the general laws governing shelichut.

4. Apotropis

            The Gemara concluded that zekhiya cannot be derived from the verse "nasi echad" and claimed that this verse is the source of "apotropis" (a guardian appointed to care for orphans). In order to appreciate this halachic institution, let us consider a discussion in Masekhet Gittin that raises the issue of the legal status of the apotropis. The Mishna (52a) requires the guardian to take teruma and ma'aser from the fruits belonging to the orphans under his charge. The Gemara questions the guardian's ability to designate teruma, as only the owner of the produce or his shaliach is eligible for this task. As the Gemara cites, the word "atem" (you) used by the Torah in the context of teruma (Bemidbar 18) indicates that only the owner or an agent acting on his behalf can separate teruma (This assumption was discussed in detail in Shiur #18). The Gemara suggested that the guardian can be mafrish so as to provide food for the orphans under his charge. (Separating teruma and ma'aser renders the fruit permissible for consumption, until this is done, the orphans may not partake of their fruit.) This answer perplexed the Rishonim, as it leaves the problem of ownership unresolved. Even if we acknowledge the necessity to allow the guardian to be mafrish, his authority to do so remains questionable.

            Tosafot (Gittin 40b s.v. ve'katav) propose that the sages awarded the guardian ownership in order to allow him to be mafrish. This is accomplished by invoking the principle of "hefker beit din hefker," empowering the Bet Din to grant or revoke legal ownership. Once awarded ownership, the authority of the guardian to be mafrish is unequivocal.

            The Ramban (in Gittin 52a) offers an alternate suggestion. He claims that the halakha of zekhiya authorizes the apotropis to be mafrish on behalf of the orphans. According to the Ramban, when the Gemara concluded that we derive the institution of apotropis from "nasi echad," this verse then becomes the source for the halakha of zekhiya, as well. This is also the implication of Rashi in his comments on our sugya (s.v. ela).

The Ramban's position assumes that the guardian can be zokheh on behalf of the orphans, who are minors. Thus, the Ramban's understanding of apotropis is dependent on his position that zekhiya is not presumed shelichut. (This position of the Ramban in Gittin is not totally consistent with his opinion voiced in Bava Metzia 71b, where he excluded minors from zekhiya despite the fact that we should not view zekhiya as presumed shelichut. An attempt at resolving this contradiction goes well beyond the scope of this shiur; any suggestions, however, would be greatly appreciated.) Tosafot, therefore, who understood zekhiya as presumed shelichut, which seemingly cannot be applied to minors, could never have accepted such an approach.

            The Ramban's approach also assumes that one can be mafrish teruma with the consent of the owner, even without the formal appointment of shelichut. In an earlier shiur (#18), we noted that this is, in fact, the position of the Ramban. However, the Rashba, who (as we have seen) agreed with the Ramban that zekhiya is not an application of normal shelichut, could not adopt this interpretation of apotropis. After all, the Rashba maintained (as mentioned in shiur #18) that only the owner or his shaliach has the authority to be mafrish; a guardian whose authority evolves solely from zekhiya would lack this authority.

            Sure enough, we find that the Rashba (Gittin 52a) offered an alternate explanation for the apotropis' ability to take teruma: "Yad apotropis ke-yad ha-yetomin" - the hand of the guardian is considered the hand of the orphans. This seems to indicate that although the guardian lacks actual ownership over the orphans' property, his position empowers him to act on their behalf. His status grants him the authority of ownership, though he lacks actual possession. In this regard, he is similar to the gizbar (treasurer), who has the authority to buy and sell on behalf of the temple treasury, although it is clear that the ownership is divine. 

            In summary, we encountered three approaches in understanding apotropis. According to the Ramban, an apotropis operates by virtue of the halakha of zekhiya. Thus, our Gemara actually concludes that the verse "nasi echad" serves as the source for zekhiya. Tosafot maintain that an apotropis is awarded ownership in order to properly care for the children under his charge. According to the Rashba, the guardian's status affords him the authority of ownership, but not actual possession over the estate.

Sources and Questions for Shiur:

1.         Kiddushin 42b "veha dtnan ... le-rabot et ha-shaliach."

2.         Tosafot s.v. amai.

3.         B.M. 10b "Mi ika ... michayev sholchan"

            Tosafot B.M. 10b s.v. d-amar.

4.         Rambam Hilkhot Meilah 7:1-2

            Hilkhot Geneiva 3:6

Questions:

1.         What is the basis of the principle that shelichut does not apply in cases where there is a violation of halakha?

2.         Does shelichut apply in a case where the shaliach was unaware of the transgression involved?

3.         Does the principle "ein shaliach le-dvar aveira" refer to nullification of the entire shelichut, or is it limited to the question of culpability?

4.         There are several exceptions where "shaliach le-dvar aveira" is effective.  What is the halakha where a shaliach was commissioned to perform an act which combines a regular transgression with one of the exceptions?