Tuesday, May 10, 2011

Menachos 63b - Kohein Serving as Agent for Waving

The D'var Avrohom (2:1:4) introduces an interesting sevara. He is discussing the machlokes between the shach (ohr zarua) and darkei moshe whether a father is able to appoint someone as his agent to do mila. The Ohr Zarua and Shach hold that there is no concept of shlichus, rather if the father can't do it himself he has no choice but to forfeit the mitzvah and allow someone else to do it. The D'var Avrohom explains that the concept of shlichus only applies when the mitzvah is only on the sender but not on the agent. The action of the agent can only be attributed back to the sender when the action is not needed by the agent himself for his own mitzvah. However, anytime the agent also has a mitzvah, he cannot be considered to be doing the shlichus of the mi'shalei'ach. A theoretical example would be that even if we would allow shlichus by mitzvas that are incumbent on the individual i.e. tefillin, we wouldn't be able to consider shimon's putting on tefllin as a shaliach of reuven to be as if reuven himself put on tefillin because shimon has his own mitzvah to put on tefillin so the action is grabbed by his own mitzvah and isn't associated with reuven. Therefore, the Shach holds that when the father forfeits his mitzvah of mila either because he can't do it or because he chooses not to, the mitzvah is incumbent upon everyone (the chiyuv on beis din in this context means any Jew who is able to do it). Since the mohel is going to be doing it for his own mitzvah, the action cannot be attributed to being done as a shaliach of the father.
It seems to me that our gemara clearly rejects the sevara of the d'var avrohom. The gemara says that when a korban is sent from overseas the kohein does the waving for the person. The gemara isn't clear whether it means that the kohein does it instead of the person, or actually does it as a shaliach of the person to assist the sender in their obligation of waving. However, Rashi on 61b clearly writes that when a woman or goy send a korban the kohein serves as their "shaliach" to wave it for them (even for semicha we would have made the kohein their agent if not for a special passuk excluding the ability to appoint a shaliach for semicha). This seems to be the gemara's intent also when the korban is sent from overseas - the kohein does tenufa as the shaliach of the sender. Now, the gemara on the top of 61b quoted a contradiction in pesukim whether the kohein does tenufa or the owner does tenufa, and concludes that they do it together since there is a mitzvah on both of them. We see here that even though the mitzvah of tenufa is an obligation on the kohein himself, he cans still serve as an agent of the owner to do semicha for them. This seems to be a strong proof against the sevara of the d'var avrohom who says that when the agent (kohein in this case) has his own obligation, he cannot be an agent of someone else because the action is used for his own obligation and cannot be used for the mi'shaleiach.


Mike said...

What does it mean that the Cohen is a shaliach of the woman. he gemara said earlier that a woman does not have the mitzvah of waving and the Kohein does it because the korban must be waived. If the women is not obligated in waving what does it mean that the Kohein is her shaliach?

Avi Lebowitz said...

exactly. the braisa explained that the difference between semicha and tenufa on a woman's korban is that the korban is exempt from semicha but not from tenufa. Simply understood this would mean that the mitzvah of waving is only on the kohanim, not on the woman. However, rashi seems to understand that since the korban isn't inherently exempt from waving (as it is from semicha), the requirement of waving is still here as always - owner and kohein, just that the woman can't do it. Rashi explains that the kohein does it as her agent. Although this does undermine standard rules of shelichus - 1. can't appoint agent to do what you can't do yourself. 2. no shlichus for a goy. Rashi seems to hold that the pesukim indicate a chiddush that the kohein can serve as her agent. Perhaps this would undermine my point since it is a gezeiras hakasuv that breaks the normal rules of shelichus (and could be breaking the d'var avraham's rule as well). Nonetheless, the simple reading of the gemara on 62b that one who sends a korban, the kohein waves על ידו implies for him as his shaliach (since that is the same language used by the woman - כהן מניף על ידה which rashi understands to be shlichus. also, when one partner does it for the rest it would seem to be as a shaliach). For the case of one who sends his korban there is no gezeiras hakasuv to over ride standard rules of shlichus, yet the kohein would serve as a shaliach for the owner AND fulfill his mitzvah of tenufa.