Meilah by way of a Shaliach

Meilah (6:1) | Yisrael Bankier | 4 years ago

The sixth perek opens by teaching that if one sends a shaliach (agent) on a task that violates the prohibition of meilah, and the shaliach performs that task, then it is the sender (meshaleach) that violates the prohibition. The law is novel, since ordinarily we apply the principle of ein shaliach le'davar aveirah -- there is not agency for sin -- and it is the shalaich that violates the prohibition. Why is the case of Meilah different?

The Gemara (18b) explains that this law is learnt from the laws of terumah by way of a gezeirah shava. Just as with terumah we find that if a shaliach separates terumah as instructed it works, so too we find that the prohibition of meilah can be violated through the actions of a shaliach.

The Tosfot (Kidushin 42b) however questions the need for a source for this law. The logic behind ein shaliach le'davar aveirah is "divrei ha'rav ve'divrei ha'talmid, divrei mi shomim" -- "[considering] the words of the master and the words of the student, to whom shall one listen". In other words, one cannot not act as an agent for another with regards to a sin since the shaliach should have been following the instructions of Hashem instead, and therefore cannot act as an agent to violate it. The Tosfot reasons that since in our case we are dealing with the liability of bringing a korban, it must be a case of shogeg, where one inadvertently violated the prohibition. Consequently, in cases of shogeg we can say there is a shaliach le'davar aveirah since the logic of divrei ha'rav ve'divrei ha'talmid, divrei mi shomim would not apply. Why then do we need this derivation from terumah?

The Tosfot answer that the derivation is necessary for the case where the shaliach was aware of the prohibition and acted deliberately (be'meizid). This scenario is not covered by the general principle of ein shaliach le'davar aveira. The pesukim therefore teach that as long as the meshaleach (the sender) acted be'shogeg (inadvertently), the meshalach is the one that would be liable to bring the korban.

The Ritva (Kidushin 42b, s.v. shani) however disagrees and explains that ein shaliach le'davar aveira applies in all cases, whether the shaliach acted be'shogeg or be'meizid. While it is true that the Gemara does present the logic cited above, the law is biblical and derived from pesukim. Consequently, the derivation is necessary to teach that meilah is an exception to that rule.

The Sefat Emet cites the Turei Even that questions the position of the Tosfot. Recall that our law in meilah is derived from terumah. With respect to terumah however, there is also no shlichut for a prohibited manner of hafrasha. Accordingly, if we maintain that ein shaliach le'davar aveira is only in the case of meizid, then the derivation would only be effective if the shaliach acted be'shogeg and not as the Tosfot explained. The Turei Even therefore explains, like the Ritva, that ein shaliach le'davar aveira applies in all cases and the derivation from terumah is simply to teach that shlichut applies in the prohibition of meilah.

The Sefat Emet defends the Tosfot as follows. He questions the Turei Even and asks that if ein shaliach le'davar aveira applies to terumah in all cases, then how can it teach that there is shelichut for the prohibition of meilah. The Sefat Emet continues, that in truth, it is not good question. It would only be a strong question if separating itself was a prohibition like meilah. Consequently, the derivation is for the concept of shelichat and applies as follows. Just like with terumah, that the shelichut works irrespective of how the shaliach acted, so too in the case of meilah, the shelichut works whether the shaliach acts be'shogeg or be'meizid. The fact that with terumah there are edge cases that might involve a transgression (where the shlichut would not work) does not impact the concept of that shelichut works for terumah in both cases of shogeg and meizid and consequently for meilah as the Tosfot explained.

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