The lengthy sugya examined here is that of Kiddushin 41a-43b.The main theme of the sugya is the consideration of the Biblical warrant for the legal principle of agency i.e. that an act the laws require to be performed by A is valid when performed by B if A had appointed B to be his agent to perform that act. The whole discussion is appended to the Mishnah (Kiddushin 2: 1) in which it is stated that a man can appoint an agent to betroth a woman on his behalf i.e. if A gives B the betrothal money and appoints B to deliver this money to a woman in order to effect her betrothal to A, the betrothal is valid and from the moment the woman receives the money from B she is married to A. Similarly, the Mishnah states a woman can appoint an agent to receive the betrothal money on her behalf i.e. if she appoints B to receive the money from A, the betrothal is valid from the moment that B receives the money from A. The abstract term for ‘agency’ is shelihut (from the root shalah, ‘to send’). The principal is known as the meshaleah, ‘sender’, and the agent as the shaliah, ‘the one who is sent’.
The sugya opens with the question: ‘How do we know the principle of shelihut?’ i.e. from which Scriptural verse is it derived that an act required to be performed by A is valid if that act is performed by B who has been appointed by A to be his agent for the performance of the act, as in the Mishnah with regard to betrothal. In reply a Baraita is quoted which derives, from a Scriptural verse, that the principle of agency operates in the case of a divorce i.e. if A appoints B as his agent to deliver the get, the bill of divorce, to A’s wife or if the wife appoints B as her agent to receive the get, the divorce is valid. The verse is: ‘When a man taketh a wife, and marrieth her, then it cometh to pass, if she find no favour in his eyes, because he hath found some unseemly thing in her, that he writeth her a bill of divorce, and giveth it in her hand, and sendeth her out of his house’ (Deuteronomy 24: 1). The Baraita relies on the expression ‘sendeth her’. This way of putting it is said to imply that the husband can send the get i.e. there is no need for him to deliver the get in person but he can have it delivered to her by his appointed agent. Furthermore, the Baraita states, the word for ‘sendeth her’, ve-shilehah, can be read without the mappik in the hey, which would then denote that the wife, too, can ‘send’ someone to receive the get on her behalf. Finally, the Baraita notes, the expression ‘sendeth her’ is repeated in verse 3 and this is to denote a further instance of ‘agency’, that is, where the agent appoints another agent to act on behalf of the principal i.e. where A appoints B as his agent to deliver the get, B can then appoint C as his agent to act on behalf of the principal. We have thus derived from the verse that it is valid if the get is delivered by the agent of the husband or to the agent of the wife or by the agent of the agent (and, for that matter, ad infinitum, since once the principle has been established that an agent can appoint an agent there is no logical reason for distinguishing between agent 1 appointing agent 2 and agent 2 appointing agent 3).
The Talmud now asks: We have derived that the agency principle operates in the case of divorce—gerushin—but how do we know that it operates in the case of betrothal—kiddushin—as stated in the Mishnah. And it cannot be that we derive one from the other by simple analogy, arguing that just as the principle operates with regard to gerushin so, too, it operates with regard to kiddushin, for the whole idea of derivation by simple analogy can only apply where there is no reason for differentiating between the two cases that are being compared, whereas there is good reason to differentiate between gerushin and kiddushin. No woman can be married without her consent but a husband can divorce his wife without her consent. Since a divorce can be effected without the wife’s consent this shows that gerushin can more easily be effected than kiddushin, for which the woman’s consent is required and it follows that one cannot derive from gerushin that the agency principle applies also to kiddushin. The Talmud replies that, indeed, there can be no derivation by simple analogy since the two cases are not, in fact, analogous. But we rely rather on the hermeneutical principle of hekesh, ‘comparison’, according to which, where two cases are compared to one another explicitly by Scripture, it is in order to apply rules mentioned in the one case to the other. The logic of this is that since Scripture compares the two cases explicitly, then the fact that any simple analogy does not hold is beside the point. The verse quoted is the second verse of Deuteronomy 24, the verse following immediately after the verse already quoted from which the principle of agency is derived. Here Scripture says: ‘And she shall be another man’s wife’. Thus kiddushin (becoming another man’s wife) is compared to gerushin and from this we conclude that just as the principle of agency applies with regard to gerushin it applies to kiddushin.
Thus far we have established, by derivation from Scripture, that the agency principle operates with regard to both gerushin and kiddushin. A Mishnah (Terumot 4: 4) is now quoted. This deals with the law of terumah, the ‘heave offering’, the tithe given to the priest. According to Rabbinic law, the amount given as terumah should be a sixtieth, a fiftieth or a fortieth of the total yield depending on the farmer’s generosity. It is the separation of the terumah which makes it such i.e. from the moment it has been set apart as such it becomes sacred and may not be eaten by one who is not a priest. The discussion in the Mishnah concerns the validity of the act of separation. The Mishnah rules that if the farmer, instead of separating the terumah himself appointed an agent to do it for him, without specifying whether the amount should be a sixtieth, a fiftieth or a fortieth, the agent should separate the amount he knows that the farmer usually separates. If the agent does not know the amount the farmer usually gives, he should separate the average amount, that is, one fiftieth. If, however, the agent separated a sixtieth or a fortieth the act of separation is still valid since it can be assumed that the farmer, in the absence of any explicit stipulation, does not object if the agent separated more or less than the amount the farmer himself would usually separate. So far the Mishnah. Now it follows from this Mishnah that the agency principle operates in the case of terumah. Whence is it derived? It cannot be derived from gerushin by simple analogy since the two cases are not, in fact, analogous. Divorce is a secular matter whereas terumah is sacred. It may well be that the agency principle only operates with regard to secular matters where a weak effect is required but with regard to sacred matters it may be that the much stronger effect required cannot be brought about by means of an agent and requires the act of the principal himself. The reply is that there is an explicit verse to show that the agency principle applies to terumah. The verse in question is: ‘ye, ye also shall offer the heave offering’ (Numbers 8: 28); ‘ye, ye also’ (gam atem) denotes that not only the farmer himself (‘ye’, atem) can separate the terumah but it is effective when done by the farmer’s agent (‘ye also’, gam atem).
The Talmud now asks, since we have an explicit verse to demonstrate that the agency principle operates with regard to terumah, why are special verses required, as above, to show that the principle operates with regard to gerushin and kiddushin? Both of these, being secular, could be derived by an a fortiori argument from terumah which is sacred. Since the principle operates even with regard to the sacred it obviously must operate with regard to the secular so why are special verses required for that which we would know of our own accord by the normal processes of human reasoning. The reply is that while terumah is sacred and hence, from one point of view, more difficult to effect, from another point of view it is easier to effect than gerushin and kiddushin. This is because terumah can take effect even by mere thinking i.e. even if the farmer did not actually separate the terumah but simply made up his mind to give a portion of his yield as terumah, his .mental specification suffices to endow that portion with sanctity. A divorce and a betrothal, on the other hand, require the act to be done if they are to be effective; the delivery of the get and the betrothal money respectively, and, were it not for the special verses, we could not have derived the agency principle by simple analogy.
Thus far we have established that the agency principle operates with regard to gerushin, kiddushin and terumah, for each of which there is a special verse. Another Mishnah (Pesahim 9: 9) is now quoted. This deals with the Paschal lamb which is required to have a company the members of which had been ‘counted’ as participants beforehand. The Mishnah states that if such a company lost its Paschal lamb and they instructed one of their number to look for it and, if he finds it, slaughter it on behalf of the whole company, and they then purchased another lamb and slaughtered it, then if the man found the lamb and slaughtered it before theirs had been slaughtered, it is the lamb that he had found that becomes sanctified and they eat together with him (the other lamb being disqualified). From this it clearly emerges that the agency principle operates in the case of sacrifices since the man’s act of slaughtering the lamb on behalf of the company who authorised him to do so is effective. This shows that if A appointed B as his agent to slaughter A’s sacrifice it is valid so that the agency principle applies to sacrifices. How do we derive this further extension of the agency principle? It cannot be, the Talmud continues, that we derive it from the other three—gersushin, kiddushin and terumah—by simple analogy since these three are ‘secular’ in comparison with sacrifices i.e. even terumah, though possessing a degree of sanctity is far less sacred than sacrifices and it may be that sacrifices, requiring a ‘sacred’ and hence stronger effect, cannot be carried out through an agent. To this the reply is given that, indeed, it cannot be derived by simple analogy but there is a special verse which teaches that the agency principle operates in the case of sacrifices. The verse is quoted by R. Joshua b. Korhah (second century): ‘and the whole assembly of the congregation shall slaughter it at even’ (Exodus 12: 6). R. Joshua notes that the verse refers to the whole company as slaughtering the lamb even though it was only carried out by one of their number (since it is physically impossible for a whole company to slaughter a single lamb). ‘From here we learn’, declares R. Joshua b. Korhah, ‘that a man’s agent is like the man himself’, demonstrating that the agency principle applies to sacrifices. In that case, the Talmud asks, why are special verses required to teach the agency principle in the other three cases—those of gerushin, kiddushin and terumah; why could we not have derived it from sacrifices by an a fortiori argument? If the agency principle operates even with regard to the most sacred, sacrifices, how much more should it operate with regard to the less sacred. To this the reply is given that the analogy would not hold since it might have been argued that the reason why the agency principle operates in the case of sacrifices is because most of the sacrificial system operates in any event by means of the agency principle i.e. since most of the rituals, apart from the slaughtering, are carried out by the priests on behalf of the people. Thus it does not follow from the fact that the slaughtering can be done by an agent that a general principle operates. It may be that it only operates in the case of sacrifices since here, in any event, the principle of delegation is required for the other rituals. Hence special verses are required to show that the agency principle does operate in the case of gerushin, kiddushin and terumah since none of the three can be derived from the case of sacrifices.
We have now established that the agency principle operates with regard to sacrifices, gerushin, kiddushin and terumah and, moreover, that special verses are required to teach this since none of the four can be derived by simple analogy from any one of the others. Thus sacrifices and terumah cannot be derived from gerushin and kiddushin (treated as one since both are derived from the same verse) since the sacred cannot be derived from the secular. The other three cannot be derived from sacrifices since the majority of the sacrificial rituals are, in any event, carried out through delegation to the priests. Terumah cannot serve as the basis of derivation for the other three since it is less sacred than sacrifices and, unlike gerushin and kiddushin, can be effected by mere intention. But, the Talmud now asks, granted that any one of these cannot be derived by simple analogy from any other one on its own, why cannot any one be derived from any two of the others in combination. The idea here is that the determinative factor cannot be the one that obtains in each individual case since it does not obtain in the other so that when two are taken in combination it is possible to disregard the particular feature of each as determinative. This method of argumentation is known as binyan av, ‘construction from a father’ i.e. two instances form a ‘construction’, a premise, from which the ‘offspring’, the conclusion, can be derived. Setting out this principle in diagrammatic form we obtain the following: If A has factor x and y and B has factor x and z and C has factor x alone, then let a represent the new law to be derived and we have:
Axy – a
Bxz – a
therefore Cx – a.
The method of refuting a binyan av argument is to show that the two instances which form the premise have a common factor other than the one they share with the proposed instance of the conclusion. This common factor may well be the determinative one so that the conclusion is unwarranted. Thus: if b represents the new common factor then:
Axyb – a
Bxzb – a
therefore it does not follow that Cx – a since the determinative factor may be b which C does not have.
In reply to the question why cannot any one be derived from any of the others taken in combination i.e. by means of a binyan av, the Talmud points out that whichever of the two instances we take there is a common factor absent from the third. Thus if we had terumah and gerushin , we could not have derived the agency principle with regard to sacrifices. The whole argument would proceed as follows:
We begin by attempting to derive the agency principle with regard to sacrifices from the case of terumah where it is effective. But this cannot hold since sacrifices are more sacred than terumah. And if we add the case of gerushin we still are unable to derive sacrifices from the two since both these have the factor of non-sanctity in relation to sacrifices. Again if we had only sacrifices and terumah we could begin with the a fortiori argument, if the principle operates even where there is a degree of sanctity, at least, how much more should it operate where there is no sanctity whatsoever, as in the case of gerushin. But sacrifices and terumah have a factor in common absent from gerushin. This common factor is that sacrifices, like terumah can be set aside by mere intention i.e. if a man has in mind that a particular animal be designated as a sacrifice it becomes sacred through the mere intention.
So far so good. But why cannot terumah be derived from sacrifices and gerushin? True it cannot be derived from sacrifices alone since in the case of sacrifices there is the factor of delegation to the priests which does not obtain in the case of terumah. But neither does it obtain in the case of gerushin, which shows that this cannot be the determinative factor. But gerushin is secular whereas terumah has a degree of sanctity. Now from the case of sacrifices we can see that non-sanctity is not the determinative factor and from gerushin we see that ‘delegation’ to the priests is not the determinative factor. Since neither of these can be the determinative factor we must look for this in whatever it is that sacrifices and gerushin have in common. This is that both are cases of acts required to carried out by a man and are still valid when carried out through his agent. It must follow that terumah can be derived from the other two so the question remains, why is a special verse required to show that the agency principle operates in the case of terumah since this can be derived by the binyan av argument? The Talmud replies that, indeed, no special verse is required (and the Talmud now goes back on what had previously been stated, that a special verse is required). The verse ‘ye, ye also’, stating the principle of agency with regard to terumah , is not required for the principle itself but to teach R. Jannai’s dictum. For R. Jannai commented that the ‘ye’ of the verse and the ‘also’ of the verse i.e. the teaching that the farmer separates terumah and the separation can be effected through his agent, are compared one with the other, to teach that just as ‘ye’ refers to a ‘son of the covenant’ (a Jew) so, too, the agent must be a ‘son of the covenant’. The principle of agency does operate but only when a Jew is appointed to be the agent.
At this stage of the argument it has been postulated that no special verse is required to show that terumah is effective when separated through an agent since this can be derived by the method of binyan av. The verse is required for a different purpose, to show that the agent be a Jew and not a Gentile. But, it is now objected, no special verse is required for this either. We would know, even without the verse, that a Gentile cannot function as an agent on the basis of a saying of R. Johanan i.e. it is a matter of commonsense reasoning, as in R. Johanan’s saying, and no verse is required to tell us that which we commonsense teaches. R. Johanan’s dictum is quoted in his name by R. Hiyya bar Abba ‘A slave cannot serve as the agent of a wife to receive a get on her behalf from her husband because the laws of divorce and betrothal do not apply to him’ i.e. a slave cannot contract a valid marriage. Although the slave has the status of a Jew for most purposes, R. Johanan holds that he cannot act as an agent for divorce. How does R. Johanan know this? It can only be because R. Johanan considers it to be axiomatic that a man cannot act as the agent of another where the act to be carried out can never apply to the agent himself. It follows that no special verse is required to teach that a Gentile cannot act as an agent to separate terumah since the obligation to give terumah only applies to Jews. The reply is that while R. Johanan’s rule is, indeed, self-evident, it does not follow from it that a Gentile cannot act as an agent to separate terumah. In the case of the slave there are no conceivable circumstances in which he can divorce his wife since, in law, he can never have a wife. With regard to terumah, on the other hand, while a Gentile has no obligation to do so yet if he does separate terumah voluntarily from his produce it has the status and sanctity of terumah. Hence we might have supposed that a Gentile can act as an agent to separate terumah and the special verse is required to teach that he cannot so act. That it is terumah when separated voluntarily by a Gentile farmer is stated in the Mishnah (Terumot 3: 9). But, the Talmud objects, in that very Mishnah R. Simeon holds that if a Gentile separates terumah this has no significance. Consequently, according to R. Simeon, the case would be analogous with the case of the slave and R. Johanan’s dictum would hold good. We are, therefore, left with the question, why is a special verse required? In the reply the Talmud reverts to the suggestion that the special verse is required to teach that the agency principle operates with regard to terumah. The reason is that while there is the sound argument of binyan av to suggest that it does operate we might have argued that the principle should not operate here. A Baraita is quoted in which the word ‘ye’ (atem) in the verse is understood as stressing that only the farmer himself can separate terumah but not his tenant farmer, not his partner, not guardians of orphans on behalf of the orphans, and not by one farmer from his produce on behalf of another farmer. Since ‘ye’ is so strongly stressed so as to exclude these categories, we might have supposed that ‘ye’ is also stressed so as to exclude an agent. Hence the word ‘also’ (gam) is required to teach that while these categories are excluded the agent is not excluded.
The Talmud now reverts to the derivation from Scripture that the agency principle operates in the case of sacrifices. This was derived by R. Joshua b. Korhah from the verse: ‘and the whole assembly of the congregation of Israel shall slaughter it at even’. This is well according to R. Joshua b. Korhah. But R. Jonathan (others say, R. Nathan) relies on the verse for a different derivation, namely, to teach that the whole community of Israel (not just the particular company, as in the derivation of R. Joshua b. Korhah) can be counted in the same Paschal lamb. This means that even though each person will have less than an olive’s bulk of the meat of the lamb and to eat less than this amount does not constitute ‘eating’, they can all be counted since, on this view, it is not mandatory actually to eat the Paschal lamb, only to offer it up. Since the verse is now required to teach this rule, there is no superfluous verse to teach the agency principle. But why, the Talmud protests, cannot we still derive the agency principle from the verse since, after all, only one man performs the slaughtering? No, the Talmud replies, the reason why the man can act as the agent for all the community is because he, too, has a share in the Paschal lamb. There the man is himself a principal as well as an agent and we have no proof that a man who has no share himself in a sacrifice can act as an agent for one who does have a share.
The Talmud replies that according to R. Jonathan (or, in the other version, R. Nathan) the agency principle with regard to sacrifices is derived from another verse dealing with the Paschal lamb. This is the verse: ‘they shall take to them every man a lamb, according to their fathers’ houses, a lamb for a household’ (Exodus 12: 3). This shows that one man ‘takes’ the lamb on behalf of the whole household and he can only do this i.e. slaughter the lamb on their behalf, because he acts as their agent. But, objects the Talmud, what proof is there from this verse since there, too, it is because he has a share in the lamb. To this the reply is given: ‘If so, why the need for two verses? If the verse is not required where it is relevant, apply it where it is not relevant’ i.e. since the verse is not required where the man has a share in the lamb (since this can be derived from the other verse) the second verse must have been recorded to teach that which is not found in the first verse, namely, that the agency principle applies even where the agent has no share in the sacrifice.
It has now been maintained that the agency principle with regard to sacrifices is derived from the verse: ‘they shall take every man a lamb, according to their fathers’ houses, a lamb for a household’. But, the Talmud now objects, this verse is not superfluous that it can serve, as above, for our derivation. The verse is required to teach a law stated by R. Isaac. R. Isaac, commenting on this verse, stated that since the word ‘man’ is used it is to teach that only an adult, a ‘man’, can acquire the Paschal lamb on behalf of the household and not a minor. The reply is that R. Isaac does not derive this rule from our verse but from the verse: ‘according to every man’s eating’ (Exodus 12: 4). But the Talmud is still not satisfied. The verse originally quoted is to teach us that there is no need for a whole company and an individual, a ‘man’, can have a whole Paschal lamb for himself. To this the reply is given that our argument here is according to R. Jonathan (or, R. Nathan) since R. Joshua b. Korhah has the other verse for the derivation. R. Jonathan (or R. Nathan) will agree with the opinion of R. Judah (Pesahim 91b) that, in fact, an individual cannot have a Paschal lamb for himself alone. Consequently, our verse cannot be laid under tribute to teach this and would be superfluous were it not to teach us that the agency principle applies to sacrifices even where the agent has no share in the sacrifice.
The Talmud now quotes a saying of R. Giddel in the name of the early third century Babylonian Amora, Rav. Rav is reported as saying: ‘How do we know that the agent of a man is like the man himself? Because it is written: “and ye shall take one prince of every tribe” (Numbers 34: 18)’ i.e. the princes were the agents of their tribe to receive the lands allotted to that tribe. But, the Talmud asks, we have established the agency principle from the verses quoted in the previous discussion so why does Rav require a further verse for the purpose? To this the Talmud replies that while Rav refers to agency, he cannot really mean this literally since among the members of the tribe there were many minors and a minor has no power in law to appoint an agent. What Rav really means to derive from the verse is that one can acquire something for another, if it is to the latter’s advantage, even where the recipient is not present at the time and knows nothing of it. This is known as zakhin le-adam she-lo be-fanav, ‘one can acquire that which is of advantage to a man on the man’s behalf even if he not present’. The prince acquired on behalf of the minors as well as the adults and the minors were not ‘present’ in law since a minor has no power to authorise someone to act on his behalf. The prince did, in fact, acquire on behalf of the minors but that was in obedience to the principle that where it is advantageous to a person one can acquire on his behalf even if he is not present. In support of this Rava son of R. Huna is quoted, who said in the name of R. Giddel in the name of Rav (i.e. this was what Rav really said): ‘How do we know that one can acquire something for a man in his absence when it is advantageous to him? Because Scripture says “and one prince of every tribe”’. But, objects the Talmud, was it necessarily for the advantage of the minor? The prince may have acquired a valley for the minor whereas when the minor grows up he might prefer a hill, or a hill when he might have preferred a valley. Hence this, too, cannot have been Rav’s formulation. Rav must have formulated his rule differently and Rava son of R. Huna must have said that R. Giddel said in the name of Rav that from the verse regarding the princes the rule can be derived that when orphans (who are minors) come before the Court for the purpose of dividing up their father’s estate, the Court appoints a guardian who is then authorised to act on their behalf ‘whether or not it is to their advantage’. But, objects the Talmud, why should the guardian be authorise to act where it is to their disadvantage? To this the reply is given that ‘whether or not it is to their advantage’ means, provided it is now to their advantage, as understood by the guardian, the division hold good even if, when the orphans grow up, it turns out that it was disadvantageous i.e. because they might have preferred a different division of the estate. This is what Rav really derived from the verse, that the princes acted on behalf of their tribe, because the prince was like the guardian of orphans who is obliged to take the decision according to his sense of fairness even if, later, it turns out that the people on whose behalf he had acted were displeased.
The pattern up to this stage is:
- How do we know the agency principle?
- Verse for gerushin.
- How do we know kiddushin? Not by simple analogy because here consent required.
- The verse compares kiddushin to gerushin.
- How do we know terumah? Not by simple analogy because sacred.
- Verse: ‘ye, ye also’.
- Why verse for gerushin? Why not derive it from terumah?
- terumah merely by intention.
- How do we know sacrifices? Not by simple analogy since terumah and gerushin less sacred.
- Verse quoted by R. Joshua b. Korhah.
- Why not derive the others from sacrifices?
- Sacrifices offered by priests.
- Sacrifices cannot be derived from the others because sacred and gerushin from the others because of mere intention.
- But why not derive terumah from the other two in combination?
- Indeed and ‘ye, ye also’ required for R. Jannai.
- But this can be derived from R. Johanan?
- No because a Gentile can give terumah.
- But R. Simeon holds he cannot?
- Since other instances excluded agency might have been excluded.
- But what of R. Jonathan?
- Verse quoted: but there agent has a share?
- Derived from verse: ‘every man a lamb’.
- Perhaps there, too, because agent has a share?
- Then why are two verses needed?
- But R. Isaac: a ‘man’ and not a minor.
- That derived from: ‘according to every man’s eating’.
- But this required that individual can have his own lamb?
- He holds that individual cannot have his own lamb.
- R. Giddel: why is this verse required?
- Rav could not have said this since minors involved.
- Rav really said one can acquire for a man in his absence.
- But not advantageous?
- The Court decides and this is what Rav really said.
The main feature to be noted in all this is the skilful arrangement of the items as the argument proceeds back and forth from derivation by analogy to derivation from Scripture. To be noted in particular is how at first, in 5), terumah is treated as sacred so as to lead up to 9) i.e. since terumah is sacred why not derive sacrifices from terumah? At this stage the new feature is introduced that, while terumah is sacred in relation to gerushin it is not sacred in relation to sacrifices. To be noted, too, is how the whole discussion is made to lead gradually to the question in 14). In the whole passage there is to be observed a weaving of the various strands to and fro so that, complicated though it all is, the argument follows a neat and logical sequence.
We now proceed to the second part of the sugya, omitting the section interpolated here in which there is a digression on themes other than that of the agency principle.
The sugya (Kiddushin 42b-43a) now takes up a further matter with regard to the agency principle. In the previous passage it had been established that the agency principle has the widest application but the Talmud now proceeds to examine instances where the principle does not operate.
A Mishnah (Bava Kama 6: 4) is quoted. Here it is stated that if a man sends a conflagration by the hand of a deaf-mute, an idiot or a minor, he is not liable by the laws of man to pay for any damage caused but he is liable by the laws of Heaven i.e. the Court cannot enforce payment but God does hold him responsible. If, however, he sends it by the hand of a sane person, this sane person (and not the sender) is liable by the laws of man. But since it has now been established that the agency principle operates in all circumstances, it ought to operate here and the sane person, as the agent of the sender, ought to be exempt from payment. The sender ought to be liable, the act of the agent being transferred to the sender. The Talmud replies: ‘There it is different, for the agency principle does not operate in the case of a criminal act, where we say: “The words of the teacher and the words of a disciple, to whose words should one listen”’. That is to say, where A sends B to commit a crime, the agency principle does not come into operation and B’s act is his own and cannot be transferred to A. The meaning of: ‘The words of the teacher’ etc. seems to be that since God commands B not to commit the crime and A commands him to commit it, B would not normally listen to A rather than listen to God. Since B does, nevertheless, commit the crime, he does it because he wishes to do so of his own volition, not as the agent of the sender. It is he, therefore, who is liable and not the man who sent him.
Another Mishnah (Me’ilah 6: 1) is now quoted. If A sent B to buy something for him, giving him for the purpose money that belongs to the Temple, if B did as he was instructed and bought the object he was sent to buy, the liability for a trespass offering (for unintentional use of Temple property) devolves on A, not on B, since B has acted under the instructions of A. This seems to show that the agency principle does apply even where an offence has been committed and this contradicts what has previously been stated. To this the reply is given that the case of trespass offering is an exception to the rule and here the agency principle does come into operation even though an offence has been committed. This is because the hermeneutical principle known as gezerah shavah (‘similar expression’) comes into operation. This principle means that if the same word occurs in two different Scriptural contexts, then the law stated in one of the two can be applied to the other. Now the word ‘sin’ occurs both in the passage dealing with the trespass offering and in the passage dealing with terumah. In connection with the trespass offering Scripture says: ‘If anyone commit a trespass, and sin unwittingly in the holy things of the Lord’ (Leviticus 5: 15). In connection with terumah Scripture says: ‘They shall therefore keep my charge, lest they bear sin for it’ (Leviticus 22: 9). This teaches us that just as the agency principle operates in the case of terumah, as above, so, too, it operates in the case of trespass. Well, then, the Talmud asks, why not derive from the case of trespass that the agency principle operates even where an offence has been committed. To this the reply is given that if, indeed, there were only the case of trespass, we would use it as a basis of derivation for the rule that the agency principle operates even where an offence has been committed. There happens to be, however, another verse in which the agency principle operates even where an offence has been committed. The principle now comes into operation that two verses teaching the same thing cannot serve as a basis of derivation. The logic of this seems to be that if Scripture wished us to derive a principle, one verse would have sufficed and the other could have been derived from it. Since Scripture does record both verses, the implication is, here and not anywhere else. The other instance is that of shelihut yad, lit. ‘sending forth the hand’. The case is where a bailee uses that which has been deposited with him (‘sending forth his hand’) without the owner’s permission. The rule is that once he made such use he becomes liable to compensate the owner if the object he used is lost, even through circumstances beyond his control. Here, too, as the Talmud proceeds to show, the agency principle operates i.e. the bailee is liable even if he himself did not actually make use of the object but instructed his agent to make use of it on his behalf. We thus have two verses, those of trespass and shelihut yad, where it is stated that the agency principle does operate in the case of an offence being committed. And this shows that everywhere else the agency principle does not apply where an offence has been committed.
In order to demonstrate that the second case is that of shelihut yad, the Talmud quotes a Baraita: ‘“For every act of trespass” (Exodus 22: 8): The School of Shammai say: This is to teach that there is liability for intention as well as for the actual deed (i.e. even the intention of shelihut yad, expressed merely in a ‘word’—davar—renders the bailee liable). But the School of Hillel say: He is not liable until he actually sends forth his hand, as it is said: “whether he have put forth his hand” (Exodus 22: 7). Said the School of Shammai to the School of Hillel: But it says: “For every word of trespass”? Said the School of Hillel to the School of Shammai: But it says: “whether he have put his hand”? Said the School of Shammai to the School of Hillel: In that case why does it say: “every word”? (The School of Hillel replied:) Because I might have said that he is only liable where he did it himself. How do know that he is liable even when he instructed his slave or his agent to do it? Therefore it says: “For every word” (i.e. he is liable even if he only gave his ‘word’, the instruction to the agent).’ Thus we see that, according to the School of Hillel, there is a special verse to teach that the agency principle operates even where an offence has been committed and there are now two verses—that of trespass (not to be confused with the word trespass used in this verse) and shelihut yad. So we have two verses teaching the same thing and, as above, these cannot serve as a basis of derivation.
All this is correct according to the School of Hillel. But the School of Shammai holds that the verse comes to teach that there is liability for mere intention so there is no superfluous verse to teach that there is liability when the act has been done through an agent. Consequently, there is only one verse—that of tresspass, me’ilah—and one verse can serve as a basis of derivation. To this the reply is given that there is another verse in which it is stated that the agency principle operates even where an offence has been committed. This is the case of a thief who slaughters and sells an animal he has stolen. As will be shown the thief is liable to pay the penalty of ‘four or five’ (Exodus 21: 37) even if he instructed his agent to slaughter or sell the animal. Thus, even according to the School of Shammai, there are two verses—those of me’ilah and slaughtering and selling. The Talmud now proceeds to show that there is liability even where the slaughtering or selling was done through an agent.
Three derivations are given. The verse states: ‘If a man steals an ox or a sheep, and kill it, or sell it, he shall pay five oxen for an ox, and four sheep for a sheep’ (Exodus 21: 37). The first derivation (stated anonymously) is that since Scripture compares slaughtering to selling this implies that just as selling involves another person, the buyer, so, too, there is liability for slaughtering even when this is not done by the thief himself but by another person, namely, his agent. In the School of R. Ishmael it was taught, since Scripture says ‘or sell it’ (using the whole word o with alef, vav instead of simply using the vav) this serves as a basis for the derivation that the thief is liable even if he did it through his agent. The School of Hezekiah derives it from the superfluous word ‘for an ox’ (tahat rather than the simple prefix be) which includes where the act was done through an agent.
Thus far we have two verses—me’ilah and shelihut yad, according to the School of Hillel, me’ilah slaughtering and selling according to the School of Shammai—and since we have two verses the principle comes into operation that two verses cannot save serve as a basis of derivation. But, the Talmud now asks, what of those authorities who do not accept the principle and hold that two verses can serve as basis of derivation? To this the Talmud replies that in the case of a man who slaughters a sacred animal outside the Temple, shehutey hutz, the verse states that he is only liable if he does it himself, not through his agent. The verse states: ‘blood shall be imputed unto that man: he hath shed blood’ (Leviticus 17: 4).Since the verse says: ‘that man’ it implies and not through his agent. All the other instances of an offence committed through an agent are derived from this case to show that the agency principle does not obtain.
We now have two sets of verses. On the one hand we have me’ilah and shelihut yad or slaughtering or selling, teaching (on the view that two verses can serve as a basis derivation) that the agency principle does obtain even where an offence is involved. But, on the other hand, we have a verse, that of shehutey hutz, to teach that it does not obtain. So why do we rely on the latter verse rather than on the other two? The Talmud replies that the verse repeats: ‘that man shall be cut off’. Only one that is required to teach that the agency principle does not obtain the case of shehutey hutz. The repetition of that is to show that the principle of agency does not obtain in all other cases of offence. Thus this becomes the operative verse rather than the other two.
The Talmud now asks, but according to those authorities who do accept the two verse principle, we know that the agency principle does not obtain from the other two verses. Why, then, do we need a special verse to teach this in the case of shehutey hutz? Why, then, does the verse have to state ‘that man’? And, in fact, as we have seen, ‘that’ is repeated so that we have two superfluous verses that have to be accounted for. The reply is that, according to this view, is that one of these teaches that there is no liability when the act is done by two men and the other to teach that there is no liability where it is done in error or in ignorance or under compulsion. But, the, according to the authorities who reject the two verse principle and therefore require the two thats to teach that the agency principle does not obtain and thus have no superfluous verses, how do they know these rules regarding two who do it or where it is done in error? The reply is that these authorities note that the verse states: ha-hu for ‘that’, where simply hu would have sufficed. We thus have four superfluous words and all four rules can be deduced. But, asks the Talmud, according to the other authorities, only two superfluous words are required so why do we require four? The reply is that these authorities attach no significance to ha-hu as two words but treat it as only one.
A Baraita is now quoted, which reads: ‘If a man says to his agent: Go out and kill someone, the agent is liable and not the man who sent him (to commit the murder). Shammai the Elder (the founder of the School of Shammai) said in the name of the prophet Haggai: The man who sent him is liable, for it is said: “thou hast slain him with the sword of the children of Ammon” ( 2 Samuel 12: 9)’ i.e. David, the ‘sender’, who brought about the death of Uriah through the Ammonites, is treated as if he himself had killed Uriah, which shows that the agency principle obtains even where a crime is committed.
Thus Shammai holds that the agency principle does obtain even where a crime is committed. This is in contradiction to all that has been said above and the Talmud suggests that it is because Shammai holds that we can derive the rule from two verses and he does not expound ha-hu as two verses. Consequently, he derives from me’ilah and slaughtering or selling (assuming that Shammai agrees with his School, shelihut yad is not counted since this teaches mere intention, as above) that the agency principle does obtain even where a crime is committed, since he rejects the two verse principle.
The Talmud now suggests (‘If you want I can say’) a different explanation. Shammai the Elder does not dispute the general rule that the agency principle does not obtain where a crime is committed and he will expound the verses in the same manner as the other authorities. Shammai agrees that where A instructs B to be his agent to kill C it is B, not A, who is liable. In that case, why does he says that A is liable? He means that A is liable according to the laws of Heaven although the Court on earth will not execute him but B who actually committed the murder. But, the Talmud objects, if this is so it would follow that the other opinion in the Baraita, which disagrees with Shammai’s opinion, will hold that that A would not even be liable by the laws of Heaven. Surely, everyone must agree that according to the laws of Heaven, at least, A is liable? The Talmud replies that the difference between the first opinion and that of Shammai is whether A is liable according to the ‘greater’ or ‘lesser’ law. That is to say, both agree that A is not liable to the death penalty by the Court on earth since the agency principle does not obtain here. And both agree that A incurs some penalty by the laws of Heaven. Their debate is whether by the laws of Heaven A is treated as a murderer (because the agency principle does obtain so far as the laws of Heaven are concerned) or whether he is treated by the laws of Heaven not as a murderer but as one who indirectly caused a murder to be committed.
Finally, another alternative is offered (‘and if you want I can say’). Shammai will hold that while the general rule is that the agency principle does not obtain where a crime is committed, A is liable, according to Shammai, even according to the laws of the Court on earth, because murder is an exception to the rule. This is because the verse quoted shows that David was liable for having Uriah killed, showing that murder is an exception. And how will the other opinion explain this verse? The reply is that the verse really states that David was not liable, implying, by comparing the killing of Uriah to the Ammonites, that just as David was certainly not held accountable for killing the Amonites he was not held accountable for killing Uriah. The reason is, continues the Talmud, is because Uriah deserved to die as a rebel against his king. The verse is quoted: ‘and my lord Joab, and the servants of my lord, are encamped in the open field: shall I then go into mine house, to eat and to drink, and to lie with my wife?’ (2 Samuel 11: 11). This shows that Uriah was a rebel either because he called Joab his ‘lord’ (Rashi) or because he refused to obey David’s command that he return to him home (Tosafists).
This section of the sugya concludes with an observation by the fourth century Babylonian Amora, Rava. Rava said that if, as in the first possibility above, Shammai holds that we can use two verses as a basis of derivation and he does not expound ha-hu as two words i.e. and therefore holds that the agency principle obtains even where an offence is committed, he would nonetheless agree that where A instructs B to have intercourse with a forbidden relative or with a married woman or where A instructs B to eat forbidden fat, it is B who is liable, not A. The reason is: Because we do not find anywhere in the whole of the Torah that this one derives pleasure and that one is liable. The meaning of this seems to be, even if in cases of murder and theft the act of the agent is transferred to the principal , because the agency principle obtains even here, it cannot obtain the instances mentioned by Rava, since there is only liability for the act when it is attended by pleasure in it. While an act itself can be transferred, if the agency principle obtains, it does not make sense for the pleasure to be transferred since nowhere in the Torah do we find that a man is punished for a forbidden pleasure enjoyed by someone else. A further meaning might be that B’s pleasure in the act is his and he does not enjoy on behalf of A, his principal. Hence it is as if the act were transferred without the pleasure and for this there is no liability.
Here ends the second section of this lengthy sugya, the section dealing with the rejection of the agency principle in cases where an offence is committed.
To be noted, especially, is the weaving of the argument back and forth in a complicated but nonetheless clear and logical sequence. At the end of the whole section Rava makes his remark in such a way as to suggest that he was commenting on the whole of the previous discussion. But this is extremely unlikely. If Rava actually made the statement attributed to him, he probably did not refer to the discussion at all but the elaboration is editorial, the whole discussion leading up to this climax.
There follows a discussion on whether an agent can act as a witness to the case in which he is involved as an agent. But the main sugya in the section we have examined. This is divided into two interconnected sections, the one dealing with the agency principle, the other with the question of whether the principle obtains where an offence has been committed.
 A special derivation is required that the principle of agency operates where the wife appoints the agent to receive the get since here it might have been supposed that she herself has to receive it because it is the delivery of the get that effects the divorce, unlike where the husband appoints an agent, where this is only for the delivery of the get and the divorce is not effected until the wife actually receives it. Similarly, a special derivation is required for the principle to apply where the agent appoints an agent since it might have been supposed that only one of the two principal’s, husband or wife, can appoint an agent to act on his or her behalf. Cf. Shi’urey ha-Gaon R. Itzel mi-Ponivezh, Jerusalem, 1979, p. 11.
 In Talmudic times the consent of the wife was not required but the get had to be delivered to her.
 Actually, the verse ‘ye also’ means that the Levites, too, as well as the Israelites, must separate terumah from the tithe given to them (see the whole context) but we have here the usual type of Rabbinic exegesis based on superfluous words. The word gam is said to a ribbuy, an ‘addition’ or ‘inclusion’ i.e. to include some further rule on the grounds that Scripture exercises severe economy of expression and has no superfluous words so that what appears to be superfluous is there for the purpose of derivation. See my article ‘Hermeneutics’ in EJ, vol.8, pp. 366-372.
 A priest is only required for the other rituals; the slaughtering can be carried out by a non-priest.
 On this principle see my: Studies in Talmudic Logic and Methodology, pp. 9-15 and see Rashi to our passage here.
 See Rashi. This idea that a matter obvious to commonsense is a sevara, ‘theory’, ‘commonsense’, ‘obvious’ and requires no special verse to teach it, enjoying on its own full Scriptural status, is expressed in the Talmud as: ‘Why is a verse required, it is a sevara?’ see: Pesahim 25b; Bava Kama 46b. See my: Studies in Talmudic Logic and Methodology, pp. 16-17.
 It is easy to see how Jonathan can be confused with Nathan by the omission of ‘Jo’.
 This is a common hermeneutical principle based on the idea of economy of Scripture. It is assumed that Scripture is too economical in its use of words to state the same law twice. Consequently, where there seems to be such a repetition it is to teach us to go beyond the implications of the first verse. Although here the second verse also refers to where the agent has a share in the sacrifice, the implication of the repetition is to teach that agency applies even where the agent has no share in the sacrifice. For the details of this hermeneutical principle see Yad Malakhi by Malachi ha-Kohen, No. 2, pp. 1b-2a, and ET, Vol. 2, pp. 25-27.
 This section affords an interesting example of a phenomenon to be observed frequently in the Talmud. Rav is first quoted as ‘saying’ that the verse teaches the agency principle. Then it is said that Rav did not, in fact, use the verse for this purpose and Rava son of Rav Huna is quoted as ‘saying’ what R. Giddel really said that Rav said. In the event, this ‘saying’ is also said to have been in error and there is finally given the actual ‘saying’ of Rava son of Rav Huna in the name of R. Giddel in the name of Rav. Rashi here understands all this to mean not that in the final reply Rava of R. Huna did not say what he was originally quoted as saying but that when he ‘said’ it he meant what he is finally quoted as ‘saying’. Cf. my: Structure and Form in the Babylonian Talmud, pp. 6-17, on pseudepigraphic statements in the Talmud.
 David Halivni: Sources and Traditions, pp. 663-666, suggests that the dictum: ‘The words of the teacher’ etc. did not originally belong in the sugyah at all since, among other things, our sugya derives the principle that agency does not come into operation where a crime has been commited from Scripture and not by human reasoning. But this remains conjectural and the dictum can be fitted into the present discussion without doing much violence to the text.