If there was no error in the case of the guardians, then what are the orphans protesting against, such that their protest is not accepted. The answer is they received the right amount of property but just do not like the location.
Thus R. Nahman says that when the court makes a real error in assessment, their decision can be undone. But if there is no error, and the person simply does not like their decision, the decision cannot be undone.
The Talmud continues to deal with sayings by R. Nahman concerning division of property
R. Nahman says that the rules concerning over and undercharging that apply to purchasers also apply to brothers dividing up their father’s property.
Rava now places several limitations of R. Nahman’s ruling. If the error was less than one-sixth, but was made by an agent appointed by one of the brothers, the brother can nullify the sale because the agent has not done his job.
If the brother’s explicitly stipulate that they will divide the property according to the court’s evaluation, then the rule follows Rabban Shimon b. Gamaliel who said that the court’s evaluation stands even if it errs by more than a sixth.
The law of overcharging does not apply to real estate, only to movable property.
If the error with land was not an error of evaluation but of measure, the division of the land can be returned. When we said that there is no rule of “overcharging” with land, that was when the issue was over or undervalued land, not land that was improperly measured.
The Talmud now returns to discussing the issue of agency.
If a person sends out a fire with another person and the fire causes damage, the sender is not liable. If he sends it with a person not considered legally responsible, then no one is liable in a human court, although since the sender acted carelessly, he is liable in the heavenly court. But if he sends it with a person considered legally responsible, then the one who carries the fire is liable. But why should this be—don’t we hold that a person’s agent is as himself. Thus the sender should be liable.
There is no agency when one commits a wrongdoing. It may be wrong or careless for me to send someone else out with a dangerous substance which might cause damage, but I am not legally liable if he does so. He should have listened to the words of the master, i.e. God, who would prohibit engaging in damaging activities.
Today’s section continues to discuss the principle of “there is no agent for wrongdoing.”
The issue here is “trespass”—illicit use of Temple funds. If one sends out an agent to perform an act of trespass, as long as the agent actually does what he is sent to do, the sender has committed trespass and is liable for it, not the agent. But why, since trespass is a sin, shouldn’t we invoke the principle “there is no agent for wrongdoing” and hold the agent liable.
The laws of trespass are derived from the laws of terumah due to the use of the word “sin” in both contexts. Therefore, just as one can appoint an agent when it comes to terumah, so too one can appoint an agent when it comes to trespass, despite the rule of “there is no agent for wrongdoing.”
Why not use trespass as a paradigm to derive the principle that there is an agent for wrongdoing?
The answer is that there are two cases in which one can appoint an agent for wrongdoing, trespass and misappropriation. And as we learned earlier, if the Torah teaches a principle twice, the principle is not a paradigm. It is restricted to those three cases.
We will now learn what “misappropriation” refers to.
“Trespass” referred to in Exodus 22:8 is a case where a person who was guarding someone else’s goods claims that the goods were stolen. He takes an oath that he did not misappropriate the goods for himself. According to Bet Shammai, he is liable even if he thought about taking the goods. Bet Hillel says he is liable only if actually takes the goods. But Bet Hillel hold that he is liable if he sends his agent to misappropriate the goods. Thus, to Bet Hillel, there are two cases where one is liable for sending an agent to do an act of wrongdoing—trespass of Temple property and misappropriation of guarded goods. Two cases cannot serve as a paradigm. In all other cases, one is not liable for sending an agent to commit a wrong act.
This week’s section continues where we left off—why isn’t the case of “trespass” used as a paradigm to prove that there is agency for wrongdoing. According to Bet Hillel, there is also agency for misappropriation, and thus trespass and misappropriation are two words/concepts that teach the same thing, which do not serve as paradigms. But Bet Shammai did not say that there is agency for misappropriation, so our question returns. Why not use “trespass” as a paradigm?
According to Bet Shammai we do not have two verses, and thus we should be able to use trespass as a paradigm to prove that there is agency in wrongdoing. If one sends an agent to commit a crime, the sender should be liable.