Dear Kollel,
Below is a copy from Daf Notes
>>Rami bar Chama asked whether temurah - exchange can be done
by the one who consecrated the sacrifice, or the one for whom it
will atone.
Rava answered that it cannot be the one who consecrated it, as
that would make it possible for the community or partners to do
temurah, i.e., if they jointly consecrated a sacrifice (through a Sheliach). Since we know that they cannot do temurah, it must be that only the one being atoned for has the power of temurah.<<
My question is that we have a rule that if the Meshaleach cannot do it, then a Sheliach also cannot do it.
So perhaps the one that is Makdish the animal is the one who could do the Temurah, ... however when he was Makdish it for a Tzibur he cannot do Temurah because of the above rule (that if the Meshaleach cannot do it, then neither can the Sheliach).
Thank You
Natan Tzvi
1) I think that I have found this question in Teshuvos Machaneh Chayim (by Rabbi Chaim Sofer zt'l, a descendant of the Chasam Sofer zt'l), section Orach Chayim and Yoreh De'ah, part 2, chapter 39:1, DH v'Heveisi. He points out that Rashi (DH Im Ken) writes that the public or the partners made this person a Shali'ach to be Makdish a Korban for them. Since the Makdish is an individual, it follows that one can do Temurah on the Korban of an individual.
The Machaneh Chayim writes that if one looks carefully at Rashi, one notices that the Makdish is the owner of the animal (since Rashi writes that he is Makdish "on them," which suggests that it is his animal and he is doing it for them, and also because Rashi calls him a Yachid, which suggests that he owns it). He is Makdish his own animal -- for the good of, and with the Shelichus of, the public or the partners.
It seems that once the Shali'ach was Makdish his own animal, it follows that he can do Temurah, because it is his animal. He does not require the Shelichus of the public to do Temurah on his own animal. However, since it is an animal which has been made holy for the good of the public, this would mean that the Tzibur did Temurah.
2) I have found that there is a considerable discussion in the Acharonim about this Gemara. I have not yet found anyone who asks your question explicitly, Natan Tzvi, but we can find an answer to it from what some of the Acharonim write.
a) There is a statement in one of the major Poskim, the Teshuvos Maharit 1:127 (DH v'Su d'Davka), which sparked off a lot of discussion. He writes that Shelichus is not effective for Hekdesh, so if someone says to his friend, "Go and be Makdish one of my oxen," this is not considered as Shelichus and the Shali'ach cannot perform the Hekdesh. The reason is that the Gemara in Gitin (29a) declares a rule that "Mili Lo Mimseran la'Shali'ach" -- words cannot be handed over to a Shali'ach. One may tell a Shali'ach to do an action, but just giving him words to say is not considered Shelichus. Making an item Hekdesh is considered as mere words, so it is not possible to make a Shali'ach for this.
b) Chidushei Rebbi Akiva Eiger (Gitin 32a, page 70 of the Sefer, DH uv'Yoser sheh'Guf) questions the Maharit from our Gemara where Rava says that they made a Shali'ach to be Makdish. We see explicitly that one is able to effect Hekdesh through a Shali'ach! On the basis of our Gemara, Rebbi Akiva Eiger disagrees with the Maharit and maintains that one can do Hekdesh through a Shali'ach.
c) The Dvar Avraham (1:14:2, DH v'Hen Ra'inu) answers this question (he cites the question of Rebbi Akiva Eiger in the name of the Machaneh Efrayim, Hilchos Sheluchin #7) by stating that in fact the animal belongs to the Shali'ach (this is similar to what the Machaneh Chayim answered, as I wrote abive). When the Gemara uses the word "Shali'ach" it does not really mean Shelichus, but it merely means that the public wish to receive a Kaparah from this animal. It is not full-scale Shelichus. The Dvar Avraham writes that when the Gemara states that they made him a Shali'ach, "Lishna b'Alma Nakat" -- the Gemara is borrowing the term "Shali'ach" but it does not really mean literally that he is a Shali'ach.
d) If we say that the Gemara is not referring to real Shelichus, then there is no problem from the rule thst if the Meshale'ach cannot do it, then a Shali'ach also cannot do it.
3) I think I should cite, bs'd, other major Mefarshim who wrote that when our Gemara uses the word "Shali'ach," this is not to be taken literally.
a) The earliest I found so far is the Batei Kehunah, written by Rabbi Yitzchak ha'Kohen Rappaport (1685-1755) of Izmir, Turkey, who later became the Rishon l'Tziyon and the Head of the Beis Din in Jerusalem.
In vol. 2, Leshonos ha'Poskim chapter 24, the Batei Kehunah discusses the opinion of the Maharit that we saw above, that a Shali'ach is not effective for Hekdesh. The Batei Kehunah questions the Maharit from our Gemara which states that there is a Shali'ach for Hekdesh. To answer this question, the Batei Kehunah (end of chapter 24) writes that possibly the term "Shali'ach" used in our Gemara is "Lav Davka." In fact, the Makdish was an individual who owned this animal. The Batei Kehunah writes that it would seem logical to explain the Gemara this way, because otherwise why would the Makdish be referred to in the Sugya as a Yachid? What really happened is that the public asked an individual to be Makdish an animal for them. The Batei Kehunah writes that this Peshat is Dachuk, forced, but he seems to remain with it.
We notice that this explanation is very similar to what I wrote above in the name of the Dvar Avraham (who was the Chief Rabbi of Lithuania, 1870-1943).
b) The Brisker Rav (Griz, Stencil edition) on our Sugya also says that the word "Shali'ach" is Lav Davka, because if he would have been a proper Shali'ach then the Tzibur would be considered the Makdish, not the individual.
c) Rav Yosef Shalom Elyashiv, zt'l, in his Notes on Temurah here, also writes that the word "Shali'ach" used by the Gemara here is Lav Davka.
According to these Mefarshim, the question that if the Meshale'ach cannot do it the Shali'ach also cannot do it, clearly does not start, since he is not really a Shali'ach in our Gemara.
However, the Machaneh Efrayim and Rebbi Akiva Eiger (that I cited above) do not learn like this, since they questioned the Maharit (who wrote that one cannot do Hekdesh through a Shali'ach) from our Gemara, so they seem to take our Gemara literally.
Therefore, I think this issue is not yet closed.
Kol Tuv,
Dovid Bloom