In this week's Parshah the Torah commands every Jew to sacrifice the Korban Pesach each year on the eve of the holiday of Pesach. The Gemora (Kiddushin, 41b) interprets the verse as informing us that as a matter of Halacha it is technically possible for the entire Jewish nation to fulfill this obligation by slaughtering - one single lamb. This presents an obvious difficulty: how is it possible for every single Jew to actually slaughter the one Pascal lamb? In answer, the Gemora derives from this instruction the concept of Shlichus - agency. In many circumstances, one may carry out a mitzvah even without actually performing it oneself, but by instructing someone else to act as an agent on one's behalf. Thus, if all of Israel instruct one man to slaughter the sacrifice, they have all fulfilled their obligation as if they themselves had performed the mitzvah. The Gemora further explains that this Featured Audio: Agents & Fiduciariesverse serves as the source for the concept of agency in other areas of the Torah as well.
In this week's Journal we will consider some of the Halachos of Shlichus - agency.
Click here for this week's Featured Audio Shiur by Rav Yosef Greenwald:
Shlichus
By: Rabbi Yehonoson Dovid Hool
As a general rule, the Torah considers the actions of one's agent ("shaliach") to be as if one had performed them oneself, a concept known as "shlichus". There are countless applications of this concept in Halacha. In this article we will examine some of the more common ones.
A Shaliach for Financial Matters
A common application of the principle of Shlichus is that one may make use of a shaliach to perform one's financial business. For example, if one wishes to purchase a piece of real estate, but for whatever reason one is unable to be present for the signing of the agreement, one can appoint someone else to sign on one's behalf. When one's shaliach signs the deed and other related documents on one's behalf, the Torah considers it as if one had done so oneself.
A Shaliach for Mitzvos
One is often permitted to appoint a shaliach to perform a mitzva on one's behalf and it will be considered as if one had personally performed the mitzva oneself. A common example of this is with regards to the mitzva of bris milah. Although every father is personally commanded to circumcise his son, most people are simply unqualified to do so. Therefore, the father appoints a professional mohel to be his shaliach to perform the mitzva of bris milah upon his son on his behalf.
It is worth noting that even though one is permitted to appoint a shaliach to do most mitzvos on one's behalf, it is still preferable for one to perform such mitzvos oneself wherever possible.[1] A famous example of this is with regards to preparing for Shabbos. Even though one is permitted to hire others to clean one's house and cook one's Shabbos meals, it is preferable to do so oneself. Even the great sages of the Talmud would personally tend to their Shabbat preparations themselves rather than have someone else do it for them.
How to Appoint a Shaliach
One may appoint a shaliach by simply instructing him orally and it is unnecessary for witnesses to be present.[2] In fact, the shaliach himself does not need to be present when he is appointed as one can appoint a shaliach over the telephone or in writing.[3]Who is Eligible to be a Shaliach?
In order to be eligible to serve as a shaliach for a mitzva on behalf of someone else, one must be personally subject to that same mitzva oneself. For this reason, an Eved Canaani - a slave - may not serve as a shaliach to deliver a get. This is because although a slave is indeed obligated to perform many mitzvos, he is not bound to the requirements of marriage or divorce like regular Jews. As such, a slave may not serve as a shaliach in such matters. Similarly, since a non-Jew is not subject to any of the mitzvos of the Torah he may not serve as a shaliach to perform any of them, either.
A Shoteh
A Shoteh (a person who is mentally challenged to the extent that according to Halachah he is not responsible for his actions) cannot appoint a shaliach to act on his behalf, much as he cannot effect any kinyanim according to Halacha.
An interesting question arises in the case of a sane person who appoints a shaliach to act on his behalf, and then goes insane before the shaliach actually carries out his appointed task. Ketzos Hachoshen[4]quotes the Tur[5]as ruling that the appointment is automatically invalidated the moment that the delegator becomes Halachically irresponsible for his actions. According to the Rambam[6], however, since the authority to act has been passed over to the shaliach, this will be unaffected by the delegator going insane.[7]
An Employee
The Talmud teaches that "yad po'el k'yad ba'al habayis - the hand of an employee is considered to be like the hand of the employer."[8] As such, if one hires an employee to collect ownerless items from the street, the items become the property of the employer as soon as the employee picks them up.
Some authorities extend this concept and rule that a paid employee is more than the shaliach of the employer, he is his "actual hand".[9]
According to this approach, even a non-Jew who is ordinarily ineligible to serve as a shaliach for a Jew is able to act on behalf of a Jew if he is a paid employee. Other authorities disagree and rule that anyone ineligible from serving as a shaliach will remain ineligible even if he is a paid employee.[10]
A Shli'ach who deviates from his instructions
A shaliach who is authorized to act on someone's behalf may not deviate from the instructions given to him, and if he does so his actions are invalid and do not oblige the one who appointed him. This is so even with regard to unstated stipulations, if it is clear to all that they were the intent of the delegator. So for example, it was common practice when buying real estate to require the seller to provide a written guarantee that the money will be returned to the buyer in the event that the land is repossessed by a creditor of the seller who has a lien on the land. If one appointed a shaliach to buy some real estate, and he signed on the delegator's behalf for the purchase of land, but included a clause that released the seller from any such guarantee, the buyer can invalidate the sale by stating, "Letikunei shedartich veloh le'avussy," - that his shaliach has exceeded his authority and as such his actions do not obligate the buyer.[11]
Appointing a Shaliach to Sin
One notable exception to the concept of shlichus is that one may not appoint a shaliach to violate a prohibition of the Torah, a principle known as "ein shaliach l'dvar aveira". Any such appointment is invalid, in that the shaliach himself is responsible for any transgressions he performs in the course of his mission and he may not claim that he was simply acting on behalf of the one who appointed him. The Talmud labels such an illegitimate arrangement as "divrei harav v'divrei hatalmid, divrei mi shom'im? - If the master says one thing and the student says something to the contrary, to whom should one listen?"[12] In other words, one may not violate the word of Hashem on behalf of or in the service of anyone.
As to the validity of the act carried out, there is a difference of opinion among halachic authorities regarding, for example, one who appointed a shaliach to marry a woman on his behalf whom he is forbidden to marry.[13] According to some authorities, since one cannot appoint a shaliach for something which the Torah forbids, it follows therefore, that the shaliach's mission is invalid and void. Others, however, argue that such an act is legally binding and the marriage is valid. Either way, based on the principle of "ein shaliach l'dvar aveira" it is the shaliach, not the dispatcher, who bears responsibility for any transgressions that might have been committed.
Cancelling a Shaliach
If one wishes to cancel a shaliach before he had a chance to perform his task, one can do so by simply declaring, orally or in writing, that one is cancelling and retracting the authorization.[14] So too, if one who appointed a shaliach dies before the shaliach carried out his appointed task, the shlichus is automatically annulled.
[1]Kiddushin 41a.
[2]The only exception to this rule is when appointing a shaliach for matters relating to marriage and divorce. According to most opinions such matters require witnesses to be present when the shaliach or shluchim are appointed. EH 141:11,13
[3] A shaliach who is appointed to write a get, however, must be appointed orally, face to face.
[4] 188:2
[5] Even Ha'ezer, 121
[6] Hilchos Gerushin, 2:15
[7] Uniquely, in the case of a shaliachto give over a Get, the Rambam actually concurs that the shlichus will be invalidated if the husband, who appointed the shaliach, becomes insane, but this is only a rabbinic injunction that is unique to this case. For all other circumstances, the Rambam implies that the shlichus would remain valid.
[8]Bava Metzia 10a.
[9]Nesivos Hamishpat 188:1; Maharit Algazi, Hilchos Bechoros 4:50.
[10]Maharit Algazi ibid.
[11] Shulchan Aruch, Choshen Mishpat, 182:6
[12]Kiddushin 42b. See Shach, CM 348:6 regarding a shaliach who was unaware that his mission was a transgression of the Torah.
[13]See Tosfos, Bava Metzia, 10a.
[14]A shaliach who was appointed for matters relating to divorce can only be cancelled in the presence of witnesses
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