Tosfos (B.M. 10 acc. to one answer) writes that if someone appoints a shliach to do an aveira on his behalf, since ain shliach l'dvar aveira, the shlichus is nullified. The Noda b'Yehudah paskens on this basis that if a husband appoints a shliach to deliver a get and divorce his wife and the shliach violates the chareim d'Rabeinu Gershom by forcing the wife to accept the get against her will, the shlichus is nullified and the get is invalid.
The Ketzos (siman 182) disagrees. The Ketzos argues that the nullification of shlichus based on ain shliach l'dvar aveira applies only where the meshaleyach tells the shliach to perform an aveira on his behalf. However, if the meshaleyach appoints the shliach to act as his agent and the shliach of his own volition performs some aveira along the way, that does not cause the shlichus to be nullified.
The Ketzos proves his point by comparing the Noda b'Yehudah's scenario to a case discussed by the Mishne l'Melech (Hil. Geneiva ch 3). One of the exceptions to the rule of ain shliach l'dvar aveira is the case of slaughtering a stolen animal, e.g. if a thief asks a shochet to slaughter an animal he stole, the thief, not the shochet, is liable to pay the extra fine for tevicha/slaughtering the animal. What happens if the shochet slaughters the animal on Shabbos? Interestingly, so long as the meshaleyach did not explicitely tell the shochet to work on Shabbos, the meshaleyach (the thief) is chayav to pay the added penalty for the slaughtering of the animal and the shochet is chayav for breaking Shabbos. The fact that the shochet happened to do an aveira of chilul Shabbos while fulfilling the task the meshaleyach assigned to him does not constitute a shlichus l'dvar aveira and nullify his appointment.
So too, writes the Ketzos, the fact that the husband's agent happened to violate cheirem d'Rabeinu Gershom while fulfilling the task of delivering the get assigned to him does not constitute shlichus l'dvar aveira and nullify his appointment. So long as the husband did not order the shliach to act improperly, the shlichus is valid and the wrongdoing of the shliach is his own business.
What do you make of the Ketzos' proof? Can you draw a distinction between the case discussed by the Noda b'Yehudah and the scenario of the Mishne l'Melech?
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shliach lget has a din shlichut. asking a shochet to do tvicha is not validating or invalidating anything. kiyum shlichos has no bearing on chiuvei mamon.
ReplyDeleteThere seems to be a very simple chiluk.
ReplyDeleteIn the case of the get, the sheliach can only give a get mikoach the meshaleach. Therefore if the sheliach performs the get in an ofen of averiah then it is the shelichus which causes the aveiro and the shelichus is nullified becuase ein sheliach lidvar aveira.
The shochet can shecht the animal on shabbos without shelichus. If he was not a sheliach he could do the same aveira. Therefore his decision to shecht the animal on shabbos and do an aveira is incidental to the shelichus.
pc :-)
The funny thing about this particular Teshuvah in the Nodah Byehuda it is from his child's In Laws and he says the answers are only for AHAVAS HANITZACHON
ReplyDeleteSince you are doing Lomdus can you address this commentator is it true?
ReplyDeletehttp://www.torahimderecheretz.org/2009/11/09/introduction/
The reason why this would be most correct is becuase ein odom roeh chov leatzmo so if a person is not intent on following the halacha he will always be moreh heter.
ReplyDeleteReb Yisrael Salanter z"l had the observation that people tend to think that orach chaim and yoreh deah are halacha lemaaseh and ignore choshen mishpat. He wanted to introduce Choshen Mishpat as a standard limud for baalei batim.
Ve'lo am haaretz chasid
On the subject of sevara in choshen mishpat - sevara is a funny thing - we think that para aduma is a chok - but the gemara will always ask that something is not logical against any derasha or any sevara in any sugya in shas.
The torah is innately logical - internally it is a logical system and you can ask within the torah and say sevara within the torah. You just can't say a non-Torah sevara.
pc :-)
is the first answer in comments the same as r amiels?
ReplyDeleteI don't know what a "din shlichus" as opposed to "shlichus" means, but I suspect a similar chiluk was intended.
ReplyDelete