Thursday, May 01, 2008

why a katan / ketana is excluded from shlichus

While on the topic of shlichus – why is it that a katan cannot be a shaliach? I count two or possibly three reasons, depending on how finely you want to split hairs. Rashi in Bava Metziya (71b) points to the derivation of shlichus from the parsha of hafrashas terumah. Since a katan cannot be mafrish terumah or make nidrei hekdesh, he is excluded from shlichus. Rashi in Kiddushin (42a) points to the derivation of shlichus from the parsha of gittin where the Torah uses the term “ish” (“ki yikach ish”), which excludes a katan. Now we get to the hairsplitting part. The way I read Rashi is that the exclusion is based on the gezeiras hakasuv that specifies “ish”. The last Ketzos in Hil. Shlichus, however, explains that a katan is excluded because a katan cannot marry or divorce. What difference does it make if you read it as an explicit gezeiras hakasuv or an implicit sevara? If it is a gezeiras hakasuv I’m not sure you need to be bothered by the Ketzos’ problem of how to exclude a ktana who is capable of getting married provided her father accepts kiddushin on her behalf.

The Ketzos explains that the two reasons offered by Rashi may depend on the issue of whether the halacha of “mufla hasamuch l’ish” is a din d’oraysa or not (as discussed in a recent daf yomi). If “mufla hasamuch l’ish” is a din d’oraysa, it means a child of 12, who is technically a katan, is still capable of being mafrish terumah or making nidrei hekdesh. Therefore, we cannot derive the exclusion of a katan from shlichus from the parsha of terumah. Instead, we have a source from the parsha of gittin.

This same issue may explain a difficult Rambam. Whatever the reason a katan/ktana cannot be a shliach, the same logic would also disqualify him/her from being a meshaleyach as well. The Rambam (Gittin 6:9) writes that a ketana cannot appoint a shliach kabbalah to receive her get because witnesses must testify that the shliach was properly appointed, and witnesses cannot testify as to the competence of a ketana who lacks da’as to make such an appointment. The Ra’avad offers a far simpler reason – the parsha of terumah teaches us that a katan/ketana is excluded from shlichus. Why does the Rambam need to re-invent the halachic wheel and suggest a new sevara?

The Ketzos explains that the Ra’avad must hold that that a mufla samuch l'ish cannot be mafrish terumah and therefore the parsha of terumah serves as a perfect source for the exclusion of a katan (like Rashi in Bava Metziya). Rambam disagrees and holds that a katan (who is mufla samuch l’ish) can be mafrish terumah and therefore suggests a sevara as a source.

I would be happy if I could find or work out another approach to the Rambam which still accepts the the parsha of terumah as the source for the exclusion of a katan but requires the additional sevara to explain some unique aspect of shlichus kabbalah. Don’t have this worked out yet, so consider it food for thought.

4 comments:

  1. anon11:24 PM

    Rashi in a number of places implies that the miut of "ish" velo katan is not one of being memaet mayseh katan per se but rather ish implies that you need daas -- see Rashi Gittin 23a right after the mishnah where he explains that the miut for cheresh shoteh and katan all come from ish. There are other indications of this shitah of Rashi elsewhere. See, e.g., Rashi and Tosfos Yevamos 72b again implying that ish is a miut in daas. By the way the Rashi in gitin also implies that the miut of ish -- whatver it is doing -- is not from terumah but from the korban pesach. That would get into a more complicated discussion because as you know the gemara in the beginning of the second perek has multiple mekoros for shlichus - terumah and the korban pesach being 2 of them. Rak le-orer basi.

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  2. Welcome back anon1.
    By coincidence I was thinking of touching on this yesterday because it was the Divrei Chaim's yahrzeit, but did not have time to digest everything he writes in Shu"t chelek I O.C. #26 where he mentiones 2 dinim in the exclusion of katan from kinyanim: 1) lack of da'as 2) lack of mechanism to make the kinyan. The same to aspects may apply equally to shlichus.
    (If you hold zechya=shlichus, the fact that a da'as acheres makneh works seems to indicate the chisaron is da'as).

    Anyway, the problem with a topic like shlichus is that every nibble at the topic leaves so much more unsaid and undigested. If I continue doing posts on it then hopefully eventually all the nibbles will come together and begint o make more sense as a coherent whole (thought I don't have high hopes of that at this point.)

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  3. That is interesting -- if I get a chance I will check it out (I actually am an einikel of the divrei chaim). Your comment about how to take a small nibble of the shlichus sugya here leaves so much more unsaid rings very true. Look forward to further development of the sugya.

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  4. R' Chaim addresses this Rambam in his sefer.

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