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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN Shiur
#22: Appointing a Shaliach to Perform an Aveira By
Rav Moshe Taragin Appointing
a Shaliach to Perform an Aveira
The gemara in Kiddushin (41-43) elaborates upon the various halakhot of
shelichut. One such principle is
that shelichut is invalid in the execution of an aveira. For example, if Reuven appoints Shimon
to murder or physically damage someone, it is Shimon who is held legally
responsible. Of course, Reuven's
conduct is reprehensible and he is certainly taken to task - biydei shamayim; he
will ultimately be punished by the Heavenly courts for this behavior. However, from a strictly legal
standpoint, Shimon is held accountable.
As the gemara in Bava Metzia (10b) remarks "Divrei ha-rav ve-divrei
ha-talmid divrei mi shom'in!! - one should pay greater attention to God's wishes
and less to the subordinate wishes of a human being."
Though, in general, this rule - ein shaliach li-devar aveira (there can
be no shelichut representation in the execution of an aveira) applies across the
board, there exists a category of exceptions. The gemara in Kiddushin (43) isolates
three cases of aveira in which shelichut is effective. The first case is tevicha u-mekhira -
the issur of slaughtering or selling a stolen animal. If the shaliach executes this crime at
the behest of his meshaleach (the dispatcher), he, and not the meshaleach is
obligated to pay the fine (4 times or 5 times the worth of the animal). Similarly, if one steals an item of
hekdesh in compliance with another's request, it is he who must reimburse
hekdesh, and not the meshaleach.
The third case relates to the prohibition of shelichut yad - illegally
deriving benefit from a pikadon - an object which was deposited to be
watched. The actual shaliach who
derives the benefit and not the meshaleach is responsible (the gemara suggests
that many opinions only accept two of these three cases). How are we to understand these
exceptions? Why in these cases does
the general rule of "ein shaliach li-devar aveira" fail?
The simplest route would be to understand these cases exactly as such -
as exceptions. In each instance a
pasuk is cited as the source for the effectiveness of shelichut. One might propose that the rule
pertaining to the failure of shelichut in cases of aveira simply carries three
built-in exceptions.
Alternatively, one might claim that the rule of ein shaliach li-devar
aveira has absolutely no exceptions.
The failure of shelichut in cases of aveira applies across the
board. In these few instances the
reason the meshaleach and not the shaliach is responsible is because the
mechanism of shelichut is unnecessary.
It doesn't concern us that shelichut per se fails. Responsibility is ascribed to the
meshaleach for different reasons.
What has changed is not the map of shelichut but rather the definition of
these aveirot. This suggestion
necessitates a broader look at the nature of shelichut.
Shelichut itself is one of the most intriguing and useful halakhic
implements. It allows an action to
be physically delegated to a shaliach even if it is considered halakhically, as
having being performed by the meshaleach.
For example, if Shimon is mekadesh a woman at Reuven's request, the woman
is legally betrothed to Reuven and not Shimon even though he was the one who
actually gave her a ring and pronounced "harei at." It goes well beyond the modern
conception of "agents." If I sign a
proxy for my vote I have, in effect, transferred my vote or right to vote to
another. That other is not acting
on MY BEHALF but AS MY BENEFICIARY who has obtained my authority. If children of a deceased elect an
executor, his division of property is not in their place. He divides the estate and they acquire
possession based upon his division.
Shelichut goes much further.
It allows agency even in actions which require personal involvement. Theoretically a woman is only married to
one who is actually mekadesh her.
In this case Reuven did not actually execute the marriage ceremony, but
the results are ascribed to him.
This is the magic of shelichut.
Understanding shelichut as such we must admit that though it is very
impressive, it is only necessary in cases in which intimate, and personal
involvement are needed. In these
cases shelichut substitutes for this involvement. However, in cases in which one doesn't
have to be directly involved, shelichut becomes irrelevant. For example, if I ignore my pet lion who
proceeds to escape and trounce a person, in no way have I performed the act of
damage. The animal is not my
shaliach. However, my negligence
CAUSED the damage and this obligates me to pay. In order to be liable I don't have to
actually perform damage; CAUSING it is sufficient. In cases similar to this shelichut is
unnecessary.
Possibly, in these three exceptional cases, the reason that the
meshaleach and not the shaliach is responsible is that these aveirot do not
revolve around personal action. One
who causes hekdesh items to be profaned has committed the sin of me'ila. Similarly, one who steals an item and
then causes it to be further damaged has committed this intensification of the
original theft and is liable to a heavy fine. In truth, one can NEVER appoint a
halakhic shaliach to perform an aveira.
The shelichut breaks down and no formal relationship remains between the
meshaleach and the shaliach.
However, the shaliach only executed the crime because the meshaleach
requested. Being that the
meshaleach is the 'first cause' of this crime, he is held accountable. Shelichut as a formal category plays no
role. Even in the wake of the
failure of shelichut the meshaleach is responsible because he EFFECTED this
crime. SUMMARY: -------------
We have examined two patterns of understanding the culpability of the
meshaleach. Normally in cases of
aveira as the shelichut fails he is not responsible. In several exceptional cases he does
pay. Is that because in these
instances shelichut operates? Or
does it simply mean that his chiyuv in these instances is independent of
shelichut. He pays because he
engendered this damage.
The first method of testing this question is by scrutinizing the manner
in which "shelichut' operates in these cases. If it operates within the normal
patterns of shelichut we might assume that a full-blown halakhic shelichut is
active even though an aveira is being commissioned. If, however, in these cases we witness
this 'arrangement' operating beyond the parameters of standard shelichut, we
might infer that shelichut is not active at all. We are merely assigning guilt to the
meshaleach based upon his effectuating the crime.
The gemara in Me'ila (21a) discusses the form of 'shelichut' when
stealing from hekdesh. In one case
the meshaleach asks a katan (a minor) to pilfer an item from hekdesh. The mishna maintains that the meshaleach
is chayav. In general, a katan may
not be appointed as a shaliach. If
the meshaleach is culpable in this scenario, this might indicate his guilt is
not based upon shelichut. Instead,
he is responsible simply because he caused this crime. His role is not affected by the fact
that his messenger was a katan. He
still generated this crime.
A similar situation concerns a nochri (gentile) who executes the wishes
of his meshaleach. The Netivot in
Siman 182;1 addresses this concept and defends the fact that a gentile or katan
can be this 'shaliach'. A gentile,
cannot legally be considered a shaliach.
If indeed we obligate the meshaleach for the deeds of his gentile
messenger, we might have evidence that this is not based upon conventional
shelichut but rather is a chiyuv which stems from the meshaleach's role in
causing the aveira.
A second form of nafka mina might surround the culpability of the
shaliach. Again on a moral level he
is certainly guilty. Even though
these three aveirot are exceptions and in these cases the 'shelichut'
arrangement in one way or another is effective, we still cannot exonerate the
shaliach. Just because the
meshaleach ordered a hit does not mean the shaliach should fulfill his
wishes. However, a legal question
still remains in terms of who must make financial remuneration to the
victim. Obviously, as these cases
are exceptions to the general failure of shelichut, the primary compensation is
taken from the meshaleach. What
about secondary compensation? If
the meshaleach is indigent or has fled can we turn to the shaliach and request
payment? A machloket surrounding
this point emerges from a debate between the Sema and the Ketzot in Choshen
Mishpat 292 (se'if katan 10 in the Sema).
If indeed, in these instances shelichut has operated effectively, we
transfer the entire 'action' to the meshaleach and do not consider the shaliach
as having perpetrated this aveira (again on a legal compensatory level, not a
moral one). If so, we would not
except him to be the source for secondary payment. If, however, shelichut has failed EVEN
in these exceptional cases and the meshaleach is guilty because he has caused
the damage, we might still obligate the shaliach. After all, he also participated in the
affair. Given the breakdown of
shelichut he is held accountable for his actions. He has no halakhic mechanism for
projecting his action unto others or ascribing them to the
meshaleach.
A final question would concern the case where shelichut is commissioned
for something which contains multiple aveirot. What if a shaliach is sent to slaughter
a stolen animal on Shabbat. This
action entails two issurim: chillul Shabbat and tevicha u-mekhira. If the exception of shelichut in the
case of tevicha u-mekhira entails the successful launching of shelichut it would
certainly fail in this scenario.
Indeed, tevicha u-mekhira per se do not subvert shelichut but the aveira
of Shabbat, which is also integral to this action should!!! The meshaleach should not be accountable
because the shelichut has been invalidated by the issur Shabbat!! On the other hand if the chiyuv of the
meshaleach were not based upon the effectiveness of shelichut but upon his role
as a cause of the aveira (and the damage), he would be culpable even though the
shelichut is void. Adding an extra
issur to nullify the shelichut does not in any way change the fact that he
caused the aveira and should be guilty.
The Rambam in Hilkhot Meila 7:1-2 contends that in a parallel case the
meshaleach is not culpable.
Evidently, he viewed the standard case of meila as an exception - a case
of aveira in which shelichut is operative.
Mixing an additional issur invalidates the shelichut and exonerates the
meshaleach from payment. See the
Rambam in Peirush ha-mishnayot (Bava Kama perek 7) where he seems to imply the
opposite. (See shiur #21). Sources
for the next shiur: Kiddushin
43a - "itmar rav…delo havei kiddushin" Ritva
s.v. "itmar rav" Makot
5b - Mishna and Gemara until "she-harag et ha-nefesh" (end of
6a) Rosh
Makot § 1:11 Avnei
Miluim § 42:6 s.v. u-lefi zeh, 7 s.v. amnam Shulchan
Arukh (with Rama), Even Ha-ezer § 42:3/4 |