QUESTION: The Gemara (41a-42a) discusses at length the source for the concept of Shelichus. The Gemara derives from verses that the Mitzvos of Korban Pesach, Terumah, and Kidushin may be fulfilled through the agency of a Shali'ach. Does the Gemara mean that a Shali'ach may be appointed for all Mitzvos, or are there specific guidelines which dictate which Mitzvos may be fulfilled through the agency of a Shali'ach? For example, may a person appoint a Shali'ach to don Tefilin or to sit in a Sukah on his behalf?

ANSWER: The TOSFOS RID explains that when the person is the "object" of the Mitzvah, the person must fulfill the Mitzvah himself and he cannot appoint a Shali'ach to fulfill the Mitzvah. For example, the Mitzvah of Tefilin requires that this person wear Tefilin. Even if the act of putting on the Tefilin can be performed by someone else through the agency of Shelichus, the Mitzvah has not been fulfilled when the Tefilin are on anyone other than the person who is obligated to do the Mitzvah, because the object on which the Mitzvah must be performed is the person's own body. The Mitzvah requires that he wear Tefilin on his body, and not that he merely cause an act of wearing Tefilin to be done. This is also the nature of the Mitzvos of Sukah and Tzitzis: the Mitzvah of Sukah requires that the person seat his body in a Sukah, and the Mitzvah of Tzitzis requires that he wear Tzitzis on his body. The Mitzvah is not only an act of sitting or an act of placing a garment on a body.

The Mitzvos which the Gemara here mentions -- Terumah, marriage, divorce, and Korbanos -- are exceptions to this rule. Although the object of each of these Mitzvos is the person (the landowner who separates Terumah from his produce, the man who marries or divorces his wife, and the owner of the animal who offers his Korban), they are unique in that even when they are done via a Shali'ach, they are considered to be done upon the person who is obligated. A Get specifies the name of the man and woman who are getting divorced, and, therefore, even though someone else delivers or accepts the Get, the actual divorce takes effect on the individuals whose names are written in the Get. Similarly, since a Shali'ach who brings a Korban must have specific intent that the Korban is being offered on behalf of its owner, the offering of the Korban inherently involves the owner in the Mitzvah.

When a Shali'ach separates Terumah on behalf of the owner of the produce, he separates fruit from the owner's property and not from his own property. Therefore, when a Shali'ach performs the act of separating Terumah, the Mitzvah is attributed to the one who appointed the Shali'ach since the Terumah comes from his property.

In summary, a Mitzvah requires the personal involvement of the person who is commanded to fulfill it. The instrument of Shelichus achieves an effect only with an action (the person who appointed the Shali'ach is considered to have caused the action to occur); it cannot achieve (or be a substitute for) personal involvement in the action. There are Mitzvos, however, for which personal involvement exists even when the act itself is performed by a Shali'ach. (A. Kronengold)

QUESTION: Rav Gidal in the name of Rav says that the concept of Shelichus is derived from the verse, "v'Nasi Echad Nasi Echad mi'Mateh" (Bamidbar 34:18). The verse describes the Jewish people's process of taking possession of Eretz Yisrael. The leaders of each tribe took possession of the land on behalf of the members of the tribe. The Gemara asks that the verse cannot refer to Shelichus, because the leaders were taking possession of the land on behalf of minors as well, and a minor (Katan) cannot appoint a Shali'ach (Bava Metzia 71b).

The Gemara implies that if not for the rule that a Katan cannot appoint a Shali'ach, this verse would be a valid source for the concept of Shelichus. This inference contradicts the rule that the Gemara mentions earlier (23b) that a person cannot appoint a Shali'ach to do an act for him which he cannot do himself. Since a Katan has no power to effect Zechiyah (to acquire something on behalf of someone else) as the Gemara earlier says, how can a Katan appoint the Nasi to acquire the land on his behalf? The Katan himself cannot acquire land on behalf of someone else.

ANSWER: The RAN points out that the process of Chalukas ha'Aretz, the division and taking possession of the land, was a "Giluy Milsa" and not a new Kinyan. That is, the land already belonged to the Jewish people as a whole; the only thing that remained to do was to divide it. Dividing something that is already jointly owned is not considered an act of Kinyan, and therefore even a Katan is able to do it. (A. Kronengold)

QUESTION: The Gemara quotes the Mishnah in Bava Kama (59b) which teaches that one who causes damage to another person's property by sending a flame with an adult of sound mind is exempt from damages, and the adult who carried the flame is obligated. The Gemara asks that the sender (Meshale'ach) should be obligated because of the rule of "Shali'ach Shel Adam Kemoso." The Gemara answers that Shelichus does not apply in such a situation. Although the concept of Shelichus enables one to appoint a Shali'ach to perform an act for him, and the act is considered to have been done by the sender, the concept of Shelichus does not apply when the Shelichus involves an act of Aveirah. Rather, when a Shali'ach commits an Aveirah for the sender, the Aveirah is attributed to the Shali'ach who acts by his own free will.

The Gemara explains that the Aveirah is attributed to the Shali'ach and not to the sender because "Divrei ha'Rav v'Divrei ha'Talmid, Divrei Mi Shom'im." (Literally, "[When one is commanded by] the words of the master, and the words of the disciple, to whose words does one listen?" Certainly, one listens to the words of the master. Thus, if a Shali'ach is appointed to commit an Aveirah, the Shali'ach is held responsible since he should not have listened to the "disciple" (the one who appointed him) but rather to the "Master," Hash-m.)

The SEFER ME'IRAS EINAYIM (CM 182) explains that the reasoning of "Divrei ha'Rav..." refers to the intent of the Meshale'ach when he appoints a Shali'ach to commit an act of Aveirah. Normally, when one appoints a Shali'ach he may assume that the Shali'ach will fulfill his mission as agreed. However, when one appoints a Shali'ach to commit an Aveirah, he has doubts whether or not the Shali'ach will comply with his directive. Since the Meshale'ach does not take the appointment of the Shali'ach seriously, the Shelichus is considered null and void. Consequently, when the Shali'ach performs the act, he does so on his own behalf and not on behalf of the Meshale'ach.

The Gemara questions this principle from the Mishnah in Me'ilah (20a) which states that a Meshale'ach is liable for the sin of Me'ilah done through the act of his Shali'ach.

What is the Gemara's question? In order for a person to be liable for Me'ilah, the act must be done b'Shogeg, inadvertently. Why does the Gemara compare the Aveirah of Me'ilah to the Aveirah of damaging someone else's property? When a Shali'ach does an act b'Shogeg, he is unaware that he is doing something wrong and there is no reason for the Meshale'ach to think that the Shali'ach will not fulfill his Shelichus. Based on the Gemara's logic of "Divrei ha'Rav...," there is an obvious difference between a Shali'ach who performs an act of Aveirah b'Shogeg and a Shali'ach who performs such an act b'Mezid. Only when a Shali'ach performs an Aveirah intentionally should that Aveirah be attributed to him and not to the Meshale'ach, but when a Shali'ach performs an Aveirah unintentionally the Aveirah should be attributed to the one who sent him.

(a) TOSFOS answers by introducing an interesting case. In the case of Me'ilah, the sin of Me'ilah was done with the knowledge of the Shali'ach; he committed Me'ilah intentionally, but without the knowledge of the Meshale'ach. From the Meshale'ach's perspective, the act was done b'Shogeg. Since the Meshale'ach's appointment of the Shali'ach to commit an act of Me'ilah was unintentional, it fulfills the criterion that one is liable for Me'ilah only when the act is done b'Shogeg. However, since the Shali'ach did the act b'Mezid, the logic of "Divrei ha'Rav..." applies, and thus the Shali'ach is liable. (Although the Meshale'ach is still unaware of the Aveirah, it is assumed that the intent of the Meshale'ach is to maintain the appointment of the Shali'ach as long as the Shali'ach is not involved in an Aveirah; he had no intent to retain the appointment if the Shali'ach becomes involved in an Aveirah.)

(b) The RITVA proves from here that the rule of "Ein Shali'ach l'Devar Aveirah" applies even when the logic of "Divrei ha'Rav v'Divrei ha'Talmid..." does not apply. The only reason why the Gemara mentions the logic of "Divrei ha'Rav..." is that it applies to the majority of cases of Shelichus. However, even when it does not apply, a Shali'ach still cannot be appointed to do an act of Aveirah. (See the Ritva for other examples throughout Shas for such situations.)

QUESTION: The Gemara teaches that "Ein Shali'ach l'Devar Aveirah" -- a person cannot appoint a Shali'ach to commit an Aveirah for him (see previous Insight).

What is the law in a case in which a person appoints a Shali'ach to do an act of Aveirah for him? Does the act take effect? For example, when a Kohen appoints a Shali'ach to be Mekadesh a divorcee for him, does the Kidushin take effect? Does the principle of "Ein Shali'ach l'Devar Aveirah" nullify the Shelichus absolutely such that no Kidushin takes effect at all, or does "Ein Shali'ach l'Devar Aveirah" mean only that the Aveirah is attributed to the Shali'ach, but the act itself still takes effect and is valid for the Meshale'ach?

In more general terms, is the principle of "Ein Shali'ach l'Devar Aveirah" a rule in the laws of appointing a Shali'ach (such that the appointment of a Shali'ach does not take effect when it is for the sake of doing an Aveirah), or does this principle merely teach to whom the Aveirah is attributed, but not that the Shelichus is invalid?

ANSWER: TOSFOS in Bava Metzia (10b, DH d'Amar) cites two opposing opinions. According to one opinion, the Shali'ach's act does take effect, and according to the other opinion, the Shali'ach's act does not take effect.

The NESIVOS HA'MISHPAT (beginning of CM 182) explains that this question depends on whether the rule of "Ein Shali'ach l'Devar Aveirah" is based on the logic of "Divrei ha'Rav v'Divrei ha'Talmid..." as Tosfos writes, or whether it is unrelated to the logic of "Divrei ha'Rav..." as the RITVA maintains (see previous Insight).

If it is based on the logic of "Divrei ha'Rav...," clearly the entire Shelichus becomes annulled since the Meshale'ach has no intent for the Shelichus to take effect. If, however, the rule of "Ein Shali'ach l'Devar Aveirah" is not based on the logic of "Divrei ha'Rav...," it may be based on a new line of reasoning: How can one person do an Aveirah and another person be liable for it? Indeed, in the unique cases in which the Torah teaches that "Yesh Shali'ach l'Devar Aveirah," Me'ilah and Shelichus Yad, the Torah does not teach that the act of the Shali'ach takes effect in any way for the Meshale'ach, but that liability for the Aveirah is transferred from the Shali'ach to the Meshale'ach. Accordingly, even though the Aveirah is not attributed to the Meshale'ach since the Halachah is "Ein Shali'ach l'Devar Aveirah," the act of the Shali'ach still may take effect for the Meshale'ach.

(See also the lengthy discussion on this point in NODA B'YEHUDAH EH 1:75 and EH 2:111-112.)