The Talmud now locates yet another case where there is agency for wrongdoing, thereby restoring the case that there are two verses that teach the same thing and hence cannot serve as paradigms. “Slaughtering and selling” will be explained now.
“Slaughtering and selling” refers to a thief who steals an animal and then either sells it or slaughters it. In such a case he is liable to make four or five fold restitution (had he simply sold it, he would be liable for twofold restitution). The baraita teaches that even if an agent slaughters it, the thief is liable for the restitution. Thus we now again have two cases where there is an agent for wrongdoing, and these cases cannot serve as a paradigm.
The Talmud continues to discuss why we do not have a paradigm for the law that there can be agency for wrongdoing. In other words, how are we so sure that if one appoints an agent to do something wrong, the agent is liable not the sender.
There is an opinion that holds that one can learn from two verses that come as one. This means that we should have a paradigm that there can be agency for wrongdoing.
The Talmud now cites a source from which we can actually derive the rule that there is no agency for wrongdoing. The issue is slaughtering a sacrifice outside the Temple. The Torah emphasizes “unto that man”—he is liable if he slaughters, but if he appoints an agent to slaughter the animal, he is not liable. The agent is. There is no agency for wrongdoing.
The Talmud suggests that sacrifices slaughtered outside the Temple should be a paradigm for all other cases. In all other cases (except for the exceptions we’ve discussed so far) there is no agency for wrongdoing.
The case of sacrifices slaughtered outside can be used as a paradigm and not the other cases where there is agency for wrongdoing (such as trespass or misappropriation) because there is yet another extraneous verse that states that the slaughterer is liable only if he slaughters the animal himself. If he sends an agent, the agent is liable.
If one holds that two verses do not teach, then there is no reason we need the midrash on “that man” to teach that there is no agency for wrongdoing because we now have no paradigms to indicate that there should be. So then what does this position do with “that man.”
The word appears twice so it can be interpreted twice. The first is to exempt a case where there are two men holding the knife. While they should not slaughter a sacrifice outside the Temple, neither is liable.
The second appearance limits liability to those who did so knowingly and willingly. One who is forced, or one who does so without knowing what he is doing or that it is prohibited is not liable.
We now enter the typical midrashic chain. How does the position that holds that two verses that come as one do not teach (and thus uses the word “hahu” to teach that there generally is no agency in wrongdoing) derive the law exempting those who slaughter without full knowledge or will? He derives it from the extra “ha.” The Torah could have written “hu” instead of “hahu.” [Actually the prefix is necessary, but midrashic logic is willing to expand the notion of proper syntax].
The other position does not need to make any midrash on the extra “heh” because he simply thinks that doing so is ridiculous. Those are my words, not Rashi’s.
If you had a little trouble following this last section, I would not worry about it too much. It’s pretty complex.
We continue discussing whether there is such a thing as agency for wrongdoing.
The first opinion holds that if a person sends another to commit murder, the murderer (the agent) is liable, not the sender. But Shammai holds that the sender is liable. His paradigm is David, who was held responsible by the prophet Natan for sending Uriah out to be killed in battle. So if we have a principle “there is no agency for wrongdoing” where does Shammai get the idea that the sender is liable?
The Talmud finds some technical/exegetical means of rescuing Shammai. Shammai holds that two verses that come as one do teach, so we do have a paradigm from “trespass” and “slaughtering or selling” that there is agency for wrongdoing. And they don’t use the word “hahu” to teach that there is not. So they are left with the conclusion that there is agency for wrongdoing.
The Talmud now suggests that Shammai holds him liable, but only to the laws of Heaven. In other words, he did something heinously wrong, but he cannot be held accountable by a human court. The problem with this is that it implies that according to the first tanna, he would be exempt even in the heavenly court. That seems absurd—why shouldn’t God hold him accountable?
The next suggestion is that they differ as to the level of punishment. The first opinion would hold that the sender is responsible but to a lesser degree. The second opinion would hold that he is fully responsible.
Alternatively, Shammai makes a special exception because the Torah (actually Natan) lays responsibility directly on David’s shoulders.
The first tanna (creatively) reads the verse as exculpating David, not implicating him.
Why is David not liable for having Uriah killed? Because Uriah rebelled against the king by disobeying his direct order to go home, eat, drink and lie with his wife. [Yes, these are clearly David apologetics. Sometimes the rabbis are willing to condemn him, but sometimes they do end up defending him. Complicated character that David].
Even if Shammai holds that there is agency in wrongdoing, and that the sender is liable, this is only in a case where the agent does not enjoy himself while doing the wrongdoing. If the wrongdoing involves sex or food, where he does enjoy himself, then the sender is exempt and the agent is liable. There are no cases, according to Rava, where one person enjoys something forbidden and another is liable.
Today’s sugya is about whether an agent can become a witness concerning the issue which he was an agent for, such as betrothing a woman.
Whether an agent can become a witness is an amoraic dispute.
The Talmud first offers a reason that does not explain why R. Shila holds that an agent cannot be a witness. The betrother did not say to him, “be a witness for me.”
The problem with this explanation is that the man betrothing a woman does not have to say to his witnesses, “you are my witnesses.”
Rav holds that the agent can be a witness. If we trust him as an agent all the more since he is the one carrying out the matter. In other words, since we trust him to be the agent and betroth the woman to the man, we must also trust him to testify that she agreed.
R. Shila’s school holds that since we consider the agent to be like the sender himself, he cannot testify about matters related to himself.
In this dispute both Bet Shammai and Bet Hillel disagree only about a case where one tells three to be his agent for betrothal. But they would both agree that if the betrother tells two to be his agents, neither can serve as a witness. The difficulty is that Rav seems to agree with neither house.
Rav can find support in the following baraita. According to Bet Shammai, when an agent betroths a woman he may also serve as a witness. Bet Hillel says two separate witnesses are required. The agent cannot be a witness.
The problem with this is that it means that Rav rules like Bet Shammai. As we know, you’re not supposed to rule like Bet Shammai. You’re supposed to rule like Bet Hillel. The solution is to reverse the opinions in the baraita. Yes, the Talmud does do this from time to time.
R. Aha son of Rava reversed the amoraic opinions and not the tannaitic opinions. Now Rav would hold like Bet Hillel, who says that an agent cannot be a witness.
In the end, the halakhic rule is that an agent can be a witness.
Today’s section continues to discuss whether agents can also serve as witnesses.
Just as agents can be witnesses for marriage, so too they can for divorce or monetary cases.