Monday, May 04, 2009

Baba Metzia 10b - Shliach L'dvar Aveira

The gemara explains that the parameters of when we say that one can be a shliach for an aveira to make the sender liable for the action, is either that the shliach is not a bar chiyuva in this prohibition, or that the shliach has no ability to choose not to do it. Both approaches rely on the fact that אין שליח לדבר עבירה is predicated in the premise that rashi points out - דאמרינן ליה דברי הרב ודברי התלמיד דברי מי שומעין ולא היה לו לעשות. Meaning, when the shliach is a bar chiyuva and has the choice to do it or not to do it, the argument can be made that he shouldn't have done it and therefore takes responsibility (the sm"a that i mentioned in the previous post seems to look at it from the perspective of the sender who has an excuse to say that he never expected the shliach to follow through with it). But in a case where the shliach is no a bar chiyuva, there is no reason for him to abstain from doing it, so the sender cannot make the argument that the shliach should not have done it. Certainly, if the shliach is forced to do it and does not make his own choice, he is merely an extension of the arm of the sender so that the sender will be chayev.
Tosafos is bothered by why we consider a yisroel who is acting as a shliach of a kohen to be mekadesh a divorcee, as one who is not a bar chiyuva. Although the yisroel is not included in the prohibition of being mekadesh a gerusha, he is certainly in violation of lifnei iver by assisting the kohen in performing the kiddushin and should be regarded as a bar chiyuva (which would result in  ein shliach l'dvar aveira making it that the yisroel is in violation rather than the kohen). Tosafos rejects this concern that we don't determine if the shliach is a bar chiyuva by whether he is doing an issur, rather we determine it by whether the issur that he is doing for the kohen is applicable to him (and there isn't any issur on him to marry a divorcee). The Nodeh B'yehuda (quoted by maharatz chiyus) points out that Tosafos could have simply rejected the issur of lifnei iver causing the shliach to be considered a bar chiyuva, because it is not "two sides of a river" (meaning that the kohen could have done the issur without the yisroel), so it is only an issur d'rabonon of assisting one in doing an aveira, and the mishneh l'melech (hilchos rotzeiach) holds that on an issur d'rabonon we hold יש שליח לדבר עבירה. From the fact that Tosafos doesn't say this implies that Tosafos holds that even on an issur d'rabonon we hold ein shliach l'dvar aveira.
I discussed this issue previously The mishneh l'melech proves that we say ein shliach l'dvar aveira even on an issur d'rabonon from rashi in baba kama who says that we say ein shliach l'dvar aveira on the digging a pit in the public domain even though it is only a rabbinic prohibition of destroying public property. However, the meshech chochma (kedoshim) says that the issur of digging a bor in reshus harabim is the prohibition of lifnei iver, which is d'oraysa, thereby disproving the proof of the mishneh l'melech.


Michael said...

In the case where the Yisroel marries the gerusha on behalf of the Cohen, if we say Ein Shaliach so the Cohen has not violated an issur, is the kiddushin valid? If so, is not the cohen married to a gerusha and still in violation of a prohibition?

Avi Lebowitz said...

excellent point.
the concept of ein shliach l'dvar aveira really only addresses the actual aveira, whether it is attributed to the sender or the shliach. But, in regard to whether the shlichus that was done is binding (which only applies to some cases of shliach l'dvar aveira, but doesn't apply to hiring someone to kill and the like where there isn't any chalos), is up for discussion. Tosafos actually holds in one answer that by saying ein shliach l'dvar aveira we would actually nullify the act of kiddushin. Tosafos seems to hold that yeish shliach would mean that the kiddushin is effective and the aveira is done by the sender, and ein shliach would mean that the kiddushin is null and void so that no one did any aveira. Apparently Tosafos holds that if by removing the chalos of the kiddushin we can make it that no one will have done the aveira, ein shliach will remove the chalos, whereas in cases that there isn't any chalos the concept of ein shliach would make the shliach responsible for his actions.
Regarding a kohen marrying a gerusha, if we say ein shliach tosafos will hold that the kiddushin is not binding. The first answer of Tosafos that would seem to hold that the kiddushin is binding will say that the shliach did an aveira, but the kohen didn't commit an aveira through the act of kiddushin (but may have an obligation to divorce the gerusha as he would be obligated to do in a case where he himself married her).

Avromi said...

The Acharonim ask: One who frees his Canaanite slave has violated a Biblical commandment! If so, the agent who is being sent to deliver the emancipation document is an agent for an aveirah! There is a well established principle that one cannot be an agent for an aveirah!?

There are those who prove from here that although one is not permitted to serve as an agent to commit an aveirah, the agency, nevertheless, is not negated because of it. Tosfos in Bava Metzia (13b), however, states clearly regarding one who was sent to serve as an agent for an aveirah, the agency is negated and his actions are null and void.

The Noda BeYehudah answers that since the agent is acquiring the document for the slave, he is serving as an agent of the slave and not as an agent of the master. He is therefore not regarded as being an agent for an aveirah, because the aveirah is for the master to set him free; not for the slave to gain his freedom.

One can also answer that we are discussing a case where it was a mitzvah to free the slave (a tenth man was needed for a minyan), and therefore, there was no aveirah.

Avi Lebowitz said...

here is a mention of the same nodeh b'yehuda.