1) SENDING A "SHALI'ACH" TO COMMIT "ME'ILAH"
QUESTION: The Mishnah teaches that when a person inadvertently sends money of Hekdesh with a Shali'ach to buy something with it, and he remembers that the money is Hekdesh before the Shali'ach spends it, he is not liable for Me'ilah. If the Shali'ach fulfills his Shelichus and buys what he was sent to buy, he too is not liable for Me'ilah. The Beraisa adds that if the Shali'ach does not fulfill his Shelichus and buys something else with the money, then he is liable for Me'ilah.
RASHI (DH ha'Chenvani and DH u'Reminhu, and in Kidushin 50a, DH u'Reminhu) explains that the reason why the original owner of the money of Hekdesh is not liable for Me'ilah is that a person is liable for Me'ilah only when he spends the Hekdesh money accidentally. If he knows that the money is Hekdesh when he spends it, he is not liable for Me'ilah (although he certainly has transgressed a Torah prohibition). When the Ba'al ha'Bayis remembers that the money he sent with the Shali'ach is Hekdesh, he cannot be liable for Me'ilah since his use of the money is now considered willful and not accidental.
However, Rashi in Chagigah (10b, Shali'ach Anya) gives a different reason for why the Ba'al ha'Bayis is not Mo'el when he remembers that the money that he sent with the Shali'ach is money of Hekdesh. Since the owner remembers that the money is Hekdesh, we assume beyond a doubt ("Anan Sehadei") that he certainly does not want the Shelichus to be valid anymore, and he annuls the Shelichus in his heart. Since the person is no longer his Shali'ach, the sender cannot be liable.
Why does Rashi explain the reason here one way, and in Kidushin and Me'ilah he explains it another way?
ANSWER: The Acharonim explain why Rashi explains the case differently in Chagigah, as follows.
REBBI AKIVA EIGER in Pesachim (29a) and the KETZOS HA'CHOSHEN (348:4) point out that TOSFOS in Kidushin (42b, DH Amai) proposes that although the general rule is "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be appointed to commit an Aveirah (such that when the Shali'ach does the Aveirah, it is attributed to the sender and not to the Shali'ach), this rule applies only when the Shali'ach is aware that he is doing an Aveirah. If he does not know that he is doing an Aveirah, then "Yesh Shali'ach l'Devar Aveirah" -- the Aveirah is attributed to the person who sent the Shali'ach.
Tosfos questions this view. If the sender is attributed with the Aveirah that the Shali'ach does when the Shali'ach does not know that he is doing an Aveirah, then why is a special verse needed to teach "Yesh Shali'ach l'Devar Aveirah" for the Isur of Me'ilah? The very nature of the Aveirah of Me'ilah is that it is done unknowingly, b'Shogeg; in the case of a Shali'ach who commits Me'ilah, the Shali'ach does not know that he is spending Hekdesh money. If, in every case of sending a Shali'ach to do an Aveirah (not just the Aveirah of Me'ilah), the sender is liable when the Shali'ach does the Aveirah unknowingly, then why is a special verse needed to teach this specifically in the case of Me'ilah?
Tosfos answers that, indeed, the verse is not needed for a case in which the Shali'ach does not know that the money is Hekdesh. Rather, the verse is needed for a case in which the Shali'ach knows that the money is Hekdesh, but the sender does not know. In such a case, the verse teaches that the sender is liable for Me'ilah.
Rebbi Akiva Eiger and the Ketzos ha'Choshen write that according to the opinion of Tosfos, it is impossible to apply the reasoning of Rashi here in Me'ilah (and in Kidushin) to the case of the Gemara in Chagigah. Rashi here writes that if the Ba'al ha'Bayis remembers that the money is Hekdesh and the Shali'ach does not, the Ba'al ha'Bayis cannot be liable for Me'ilah because his act of Me'ilah is intentional, b'Mezid, since he is aware that the money is Hekdesh (and the Chiyuv of Me'ilah is only when it is done b'Shogeg). This explains why the Ba'al ha'Bayis is exempt, but it does not explain why the Shali'ach is liable. If the rule of "Yesh Shali'ach l'Devar Aveirah" applies to the Aveirah of Me'ilah so that the transgression is attributed to the Ba'al ha'Bayis (who is not liable because his act was b'Mezid), then the Shali'ach also should not be liable (because the Aveirah is being done on behalf of somebody else and is attributed to the Ba'al ha'Bayis)!
Rashi in Kidushin (DH Shali'ach Ma'al) explains that since the Ba'al ha'Bayis is not liable for Me'ilah, the verse that teaches "Yesh Shali'ach l'Devar Aveirah" for Me'ilah does not apply. That principle applies only when the Ba'al ha'Bayis would be liable to bring a Korban Me'ilah as a result of his Aveirah. In this case, the Ba'al ha'Bayis is not liable for Me'ilah, even if the Shelichus is valid and the Aveirah is attributed to the Ba'al ha'Bayis (since he did it b'Mezid). Therefore, since the rule of "Yesh Shali'ach l'Devar Aveirah" will not obligate the Ba'al ha'Bayis, the law reverts to the general rule of "Ein Shali'ach l'Devar Aveirah" -- and the Shali'ach bears the sole responsibility for the Aveirah.
This is true, however, only if the law in an ordinary case of a Shali'ach who unknowingly does an Aveirah is "Ein Shali'ach l'Devar Aveirah," and the verse is needed to teach that "Yesh Shali'ach l'Devar Aveirah" for Me'ilah. According to Tosfos, however, no special verse is needed to teach that "Yesh Shali'ach l'Devar Aveirah" in this case, because in every case of Shelichus the rule of "Yesh Shali'ach l'Devar Aveirah" applies when the Shali'ach was unaware of the Aveirah! Hence, according to Tosfos, the Shali'ach in this case also should be exempt, because "Yesh Shali'ach l'Devar Aveirah" (and the Ba'al ha'Bayis is considered to have done the Aveirah, but since he remembered that the money was Hekdesh his transgression was b'Mezid, and thus he is exempt from bringing a Korban Me'ilah)! It must be that the Shali'ach is liable because of a different reason. It is not because the Ba'al ha'Bayis acted b'Mezid, but because the Ba'al ha'Bayis annulled the Shelichus altogether, as Rashi in Chagigah says, and the Shali'ach was no longer acting on behalf of the Ba'al ha'Bayis.
In summary, Rebbi Akiva Eiger and the Ketzos ha'Choshen propose that the advantage of Rashi's explanation in Chagigah is that it explains the Gemara even according to the opinion that says that "Yesh Shali'ach l'Devar Aveirah" whenever the Shali'ach was unaware of the Aveirah he was committing. Here, even that opinion agrees that the Shali'ach is liable for Me'ilah -- because the Ba'al ha'Bayis annulled the Shelichus.
Here in Me'ilah (and in Kidushin), Rashi presumably sides with the dissenting opinion that does not rule that "Yesh Shali'ach l'Devar Aveirah" in cases (other than Me'ilah) where the Shali'ach was not aware of the Aveirah. That is why Rashi does not find it necessary to explain here as he does in Chagigah.
This explanation is problematic, however, because it is not implied by the words of Rashi in Chagigah. According to this explanation, the purpose of saying that the Ba'al ha'Bayis annulled the Shelichus is to explain why the Shali'ach is liable. The Ba'al ha'Bayis would be exempt regardless of whether or not he annulled the Shelichus, since he acted b'Mezid. However, Rashi there clearly writes that the "Ba'al ha'Bayis is exempt" (and not that the Shali'ach is Chayav) because he annulled the Shelichus!
(For an additional explanation for the words of Rashi in Chagigah, see Insights to Chagigah 10:3.)
2) HOW CAN ONE BE PUNISHED FOR THE FORBIDDEN PLEASURE THAN ANOTHER PERSON ENJOYED?
QUESTION: The Mishnah teaches that when a person inadvertently sends money of Hekdesh with a Shali'ach to buy something with it, and he remembers that the money is Hekdesh before the Shali'ach spends it, he is not liable for Me'ilah. If the Shali'ach fulfills his Shelichus and buys what he was sent to buy, he too is not liable for Me'ilah. The Beraisa adds that if the Shali'ach does not fulfill his Shelichus and buys something else with the money, then he is liable for Me'ilah). Even though there is a rule that "Ein Shali'ach l'Devar Aveirah" -- a Shali'ach cannot be appointed to commit an Aveirah (such that when the Shali'ach does the Aveirah, it is attributed to the sender and not to the Shali'ach), the Aveirah of Me'ilah is an exception. The Gemara earlier (18b) derives through a Gezeirah Shavah ("Chet-Chet") from Terumah that the Aveirah of Me'ilah can be committed through a Shali'ach.
The Gemara in Kidushin (43a) states that even according to Beis Shamai, who rules that one may appoint a Shali'ach to commit an Aveirah, the Shali'ach's act cannot obligate the sender in a case of a transgression that involves deriving physical pleasure, such as a sin of Arayos or of eating forbidden foods. This is because "Lo Matzanu Zeh Neheneh v'Zeh Mischayev" -- one person cannot be liable for another man's forbidden pleasure. How, then, can one be liable for Me'ilah through the act of a Shali'ach? One is obligated for Me'ilah only when he derives pleasure from the object (18a). Since it is the Shali'ach who derives pleasure from the object of Hekdesh, how can the sender be liable for Me'ilah? As the Gemara in Kidushin says, "we do not find a situation in which one person derives benefit from a forbidden object and another person is liable" for that sin! (TOSFOS DH Nasno)
(a) TOSFOS explains that Shelichus works for Me'ilah because at the moment that the Shali'ach picks up the object to use it, he takes the object for himself and thereby removes it from the domain of Hekdesh. The Shali'ach's benefit from the object -- which obligates the sender for Me'ilah -- is this pleasure of monetary gain, not the physical pleasure of using the object itself. A Shali'ach certainly obligates his sender when he derives a non-physical, monetary gain, which is not a physical form of pleasure. It is for only physical pleasure, such as eating, that a Shali'ach cannot obligate his sender.
Tosfos concludes that it indeed is not possible for a Shali'ach to obligate his sender for Me'ilah where the only benefit the Shali'ach derives from the object of Hekdesh is physical pleasure (for example, instead of lifting up a jar of oil of Hekdesh and then smearing the oil on his arm, he stretches his arm into the jar without picking it up).
(b) However, TOSFOS in Kidushin (43a, DH she'Lo) quotes the RI who questions the notion that the sender is obligated for Me'ilah when he tells his Shali'ach to dip a hand into a barrel of oil of Hekdesh or to sit on a hide of Hekdesh. Perhaps even in such a case the sender can be obligated for Me'ilah through the act of his Shali'ach. What is the basis for the Ri's doubt? It is clear from the Gemara in Kidushin that a Shali'ach cannot obligate his sender when the Shali'ach sins through deriving physical pleasure!
The BIRKAS SHMUEL (Kidushin #20) explains that the prohibition of Me'ilah is not intended merely to prevent people from benefiting from the sanctity of Hekdesh. Rather, the prohibition is intended to prevent people from stealing from Hekdesh. He proves this from the fact that the Shi'ur of Me'ilah is a Perutah's worth of benefit, similar to the Shi'ur for theft, and not a k'Zayis, which is the Shi'ur for other violations that involve deriving pleasure, such as eating forbidden foods.
RAV CHAIM SOLOVEITCHIK (Hilchos Me'ilah 8:1; see also Insights to Me'ilah 13:3 and 18:3) cites this Gemara as one of his proofs that the nature of the prohibition of Me'ilah is an Isur of stealing.
(It is interesting to note that REBBI AKIVA EIGER (Teshuvos, #190) suggests that the Shi'ur for all Isurei Hana'ah, including eating forbidden foods, is a Perutah's worth. Accordingly, the fact that the Shi'ur of Me'ilah is a Perutah's worth is no proof at all that the prohibition of Me'ilah involves stealing from Hekdesh. The Birkas Shmuel, in contrast, clearly follows the view of the MINCHAS CHINUCH who writes that the Shi'ur for all Isurei Hana'ah is a k'Zayis, and not a Perutah's worth.)
Theft does not necessarily involve deriving pleasure from the stolen object. Whenever a person causes a loss of money to another person, this is theft. However, one is not obligated for Me'ilah unless he derives pleasure from what he has stolen from Hekdesh, for that is what the Torah prohibits as the Isur of Me'ilah.
Accordingly, the Ri's doubt may be understood as follows. Although the Shali'ach derives pleasure when he is Mo'el, it is not this pleasure that constitutes the transgression of Me'ilah. Deriving pleasure is merely one of the conditions set by the Torah to obligate a person for the Isur of Me'ilah; deriving pleasure is an external condition and is not an intrinsic part of the Isur of Me'ilah. This is why Shelichus for Me'ilah cannot be compared to Shelichus for eating a forbidden food.
On the other hand, since one is liable for this form of stealing only through deriving physical pleasure, perhaps Shelichus would not obligate the sender for such an act of Me'ilah. (M. KORNFELD)
3) "BITUL" OF A COIN OF "HEKDESH" IN A WALLET OF ORDINARY COINS
QUESTION: In the Mishnah, Rebbi Akiva rules that when a coin of Hekdesh falls into a wallet containing ordinary coins, one is liable for Me'ilah for the first coin that he takes from the wallet and uses for his personal benefit. Why is the coin of Hekdesh not Batel in the majority of non-Hekdesh coins? (See Insights to Me'ilah 11:1 and 18:3.)
(a) TOSFOS (DH Perutah) suggests that the Mishnah is referring to a case in which there is only one other coin in the purse. Since there is no majority of non-Hekdesh coins, Bitul obviously does not apply.
This answer, however, is not consistent with the wording of the Mishnah, which implies that there are many coins in the wallet, as it says with regard to the opinion of the Chachamim, "[One is not liable for Me'ilah] until he spends all of the [coins in the] wallet."
(b) Tosfos suggests further that, mid'Oraisa, the coin of Hekdesh becomes Batel, and there indeed is no Me'ilah mid'Oraisa even according to Rebbi Akiva. However, there is Me'ilah mid'Rabanan because of the enactment of the Rabanan that a "Davar she'Yesh Lo Matirin" (such as a coin of Hekdesh that can be redeemed) or a "Davar Chashuv" (an important item, such as a gold coin) does not become Batel in a mixture. (This is the intention of Tosfos according to the emendation of the TZON KODASHIM, and according to the CHOK NASAN.)
(d) The SHEV SHMAITSA (6:4) writes that when one person's money falls into someone else's wallet, it is obvious that it does not become Batel (see Beitzah 38a-b); the owner of the wallet obviously may not say, "All of the money in the wallet is mine, because your coin became Batel to mine." Similarly, Hekdesh does not lose its ownership of a coin of Hekdesh when it falls into someone else's wallet.
This principle, however, should apply only to the monetary rights of Hekdesh. The Isur element of Me'ilah should become Batel b'Rov!
The Shev Shemaitsa suggests that since the prohibition of Me'ilah stems from the prohibition against stealing from Hekdesh, just as Bitul does not remove the ownership of Hekdesh from the coin it also does not remove the Isur of Me'ilah from the coin. (See also KUNTRESEI SHI'URIM, Bava Kama 17:4.)
The KEREN ORAH explains that since the person has a monetary obligation to pay to Hekdesh the value of the coin that became lost in the other coins, just as one has an obligation to give back his friend's money when it falls into his own, he must take a coin from the wallet and give it to Hekdesh, and -- in case this coin is not the one of Hekdesh -- he must declare that he is redeeming the coin of Hekdesh and transferring its Kedushah onto this coin that he is giving to Hekdesh. Therefore, when he removes the first coin from the wallet and spends it for himself, he is liable for Me'ilah since he was obligated to give that coin to Hekdesh and he failed to do so. (See also YOSEF DA'AS.)