Shliach l’dvar Aveirah – Bava Metzia 10

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By: Rabbi Avrohom Adler

 

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Shliach l’dvar Aveirah

 

 

 

The Mishna had stated: If someone says: “Give this Get to my wife” or “Give this document freeing my slave to my slave,” if he wants to retract the document (before it gets to his wife/slave) he may. These are the words of Rabbi Meir. The Chachamim say: He can retract by the Get of his wife, but not by the document freeing his slave. This is because a person can have someone else acquire something beneficial for him when he is not present, but not something that is a liability for him when he is not present.

 

The Acharonim ask: One who frees his Canaanite slave has violated a Biblical commandment! If so, the agent who is being sent to deliver the emancipation document is an agent for an aveirah! There is a well established principle that one cannot be an agent for an aveirah!?

 

There are those who prove from here that although one is not permitted to serve as an agent to commit an aveirah, the agency, nevertheless, is not negated because of it. Tosfos in Bava Metzia (13b), however, states clearly regarding one who was sent to serve as an agent for an aveirah, the agency is negated and his actions are null and void.

 

The Noda BeYehudah answers that since the agent is acquiring the document for the slave, he is serving as an agent of the slave and not as an agent of the master. He is therefore not regarded as being an agent for an aveirah, because the aveirah is for the master to set him free; not for the slave to gain his freedom.

 

One can also answer that we are discussing a case where it was a mitzvah to free the slave (a tenth man was needed for a minyan), and therefore, there was no aveirah.

 

Shliach l’dvar Aveirah

 

By: Rabbi Avi Lebowitz

 

The Gemora explains that the parameters of when we say that one can be an agent for an act of transgression to make the sender liable for the action, is either that the agent is not subject to this particular prohibition, or that the agent has no ability of choosing to execute his assignment or not. Both approaches rely on the fact that the principle that there is no agent for an act of transgression is predicated on the premise that Rashi points out: If you hear the words of your Master (Hashem; telling you not to commit this transgression) and the words of the student (the sender), who should you listen to? This means that when the agent is subject to this prohibition and has the choice to do it or not to do it, the argument can be made that he shouldn’t have done it and therefore he takes responsibility for his actions. But in a case where the agent is not subject to this prohibition, there is no reason for him to abstain from doing it, so the sender cannot make the argument that the agent should not have done it. Certainly, if the agent is forced to do it and does not make his own choice, he is merely an extension of the arm of the sender, so that the sender will be liable.

 

Tosfos is bothered by why we consider a Yisroel who is acting as a agent of a Kohen to betroth a divorcee, as one who is not subject to this prohibition. Although the Yisroel is not included in the prohibition of betrothing a divorcee, he is certainly in violation of lifnei iver by assisting the Kohen in performing the kiddushin and should be regarded as one who is subject to a prohibition (which would result in the fact that the Yisroel is in violation rather than the Kohen).

 

Tosfos rejects this concern that we don’t determine if the agent is subject to the prohibition by whether he is committing a transgression; rather, we determine it by whether the transgression that he is doing for the Kohen is applicable to him (and there isn’t any transgression on him to marry a divorcee).

 

The Nodeh B’yehuda (quoted by Maharitz Chayus) points out that Tosfos could have simply rejected the transgression of lifnei iver causing the agent to be considered subject to the prohibition, because it is not “two sides of a river” (meaning that the Kohen could have done the transgression without the Yisroel), so it is only a Rabbinical transgression  of assisting one in doing a prohibited act, and the Mishneh L’melech (Hilchos Rotzeiach) holds that on a Rabbinical transgression, we hold that one can be an agent for an act of transgression.

 

From the fact that Tosfos doesn’t say this implies that Tosfos holds that even on a Rabbinical transgression, we hold that one cannot be an agent for an act of transgression.

 

QUESTIONS AND ANSWERS FROM YESTERDAYS DAF

to refresh your memory

 

Q: Is a kinyan performed on Shabbos effective?

 

A: Yes (although it is not preferable).

 

Q: Why doesn’t one acquire an animal if he was riding in the city?

 

A: This is because a person does not normally ride within the city.

 

Q: If a person was sailing in a boat and fish jumped into the boat, why would we not say that the boat is a moving courtyard and therefore he would not acquire the fish?

 

A: A boat is considered a stationary object, and is just being moved by the water.

1 COMMENT

  1. re: Sheliach Lidvar Aveira

    a further diyuk can be made between a sheliach that is directed to undertake an action that is assur to both the sheliach and the meshaleach as oposed to a sheliach that is directed to undertake in an action that is assur only to the meshaleach and not the sheliach
    as such the sheliach is engaged in a perfectly mutar action (vis-a-vis himself)
    Weird case:
    sheliach that is directed to undertake in an action that is inherently assur to himself – the sheliach – and not the meshaleach

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