Kiddushin 43

נילף מיניה משום דהוה מעילה טביחה ומכירה שני כתובים הבאים כאחד וכל שני כתובים הבאים כאחד אין מלמדין מעילה הא דאמרן טביחה ומכירה מאי היא אמר קרא וטבחו או מכרו מה מכירה על ידי אחר אף טביחה על ידי אחר

let us derive a principle from misuse of consecrated property, that an agent can be appointed to perform a transgression. The Gemara answers: This is not done, because misuse of consecrated property and the slaughter or sale of a stolen cow or sheep are two verses that come as one, and any two verses that come as one do not teach their common aspect to apply to other cases. The Gemara clarifies: The verse pertaining to misuse of consecrated property is that which we said, but what is the verse with regard to slaughter or sale? The verse states: “And he slaughters it or sells it” (Exodus 21:37), juxtaposing selling to slaughtering: Just as a sale is necessarily performed by means of another, since every transaction involves two parties, so too slaughter can likewise be performed by means of another, and the thief is liable even if the act of slaughtering is performed by his agent.

דבי רבי ישמעאל תנא או לרבות את השליח דבי חזקיה תנא תחת לרבות את השליח

The Gemara quotes two other explanations. The school of Rabbi Yishmael taught that the word “or” in the verse “and he slaughters it or sells it,” serves to include an agent. The school of Ḥizkiyya taught: When the verse states with regard to sale or slaughter: “He shall pay five oxen for an ox, and four sheep for a sheep” (Exodus 21:37), repetition of the word “for” is superfluous and serves to include an agent. It teaches that the one who appointed the agent is liable for the action of the agent.

הניחא למאן דאמר שני כתובים הבאים כאחד אין מלמדין אלא למאן דאמר מלמדין מאי איכא למימר גלי רחמנא בשחוטי חוץ דם יחשב לאיש ההוא דם שפך הוא ולא שלוחו

The Gemara asks: This works out well according to the one who said that two verses that come as one do not teach a precedent that applies to other cases, but according to the one who said that two verses do teach a precedent, what can be said? Why not derive from the case of misuse of consecrated property and that of slaughter or sale that an agent can be appointed to perform a transgression? The Gemara answers: The Merciful One reveals in the Torah that an agent cannot be appointed to perform a transgression in the case of an offering slaughtered outside the Temple, as it states: “It shall be considered blood for that [hahu] man; he has spilled blood” (Leviticus 17:4). The emphasis of “that man” teaches that he is liable for his actions, but he is not liable for the actions of his agent.

אשכחן גבי שחוטי חוץ בכל התורה מנלן דיליף משחוטי חוץ

The Gemara asks: We found a source for the halakha that an agent cannot be appointed to perform a transgression with regard to the prohibition of offerings slaughtered outside. From where do we derive that this halakha applies to the entire Torah? The Gemara answers: It is derived as a principle from the case of offerings slaughtered outside, by means of analogy.

אדיליף משחוטי חוץ ניליף מהנך הדר כתב רחמנא ונכרת האיש ההוא אם אינו ענין לגופו תנהו ענין לכל התורה כולה

The Gemara asks: But before deriving that an agent cannot be appointed to perform a transgression from the case of offerings slaughtered outside, let us derive the halakha from these other cases, i.e., misuse of consecrated property and slaughter or sale, where the halakha is that an agent can be appointed to perform a transgression. The Gemara answers: The Merciful One again writes in that same verse in connection to the prohibition of slaughtering offerings outside the Temple: “And that [hahu] man shall be cut off from among his people” (Leviticus 17:4). If the halakha derived from the emphasis of the word hahu written in this part of the verse is not needed for this matter itself, since the verse already taught that he is liable only for his own act and not for that of his agent, apply it to the matter of the entire Torah, so that one is held liable only for one’s own actions and not for those of an agent.

ולמאן דאמר שני כתובים הבאים כאחד אין מלמדים הני ההוא ההוא מאי דריש בהו חד למעוטי שנים שאוחזים בסכין ושוחטים וחד הוא ולא אנוס הוא ולא שוגג הוא ולא מוטעה

The Gemara asks: And according to the one who says that two verses that come as one do not teach a precedent, and there is no reason to learn from the misuse of consecrated property and slaughter or sale that one can appoint an agent to perform a transgression, what does he interpret those terms: “That man” and: “That man” to be teaching? Since he does not need to counter a derivation from the two verses, he should not require them to teach that one cannot appoint an agent to perform a transgression. The Gemara answers: One of them serves to exclude from liability the case of two who hold a knife and slaughter an offering outside together. And the other one emphasizes: “That man” is liable, but not one who is compelled to slaughter the animal; “that man” is liable, but not one who does so unwittingly; and “that man” is liable, and not one who was mistaken, e.g., one who did not know that the animal was an offering. In order to be liable one must have acted with full awareness and completely willingly.

ואידך מהוא ההוא ואידך הוא ההוא לא דריש

The Gemara asks: And how does the other opinion, i.e., the one who holds that two verses that come as one do teach a precedent, which derives from the word “that [hahu]” that an agent cannot be appointed to perform a transgression, derive these halakhot? The Gemara answers: He derives them from the fact that the pronoun “hahu” is composed of two parts, the article ha, meaning: The, and the pronoun hu, meaning: He. He derives halakhot both from “hu” and from the additional article in “hahu.” Therefore, he is able to derive both the principle that an agent cannot be appointed to perform a transgression and the halakhot of two that slaughter and one who acts without full awareness. And the other opinion, i.e., the one who holds that two verses that come as one do not teach a precedent, which derives these halakhot from the entire word “hahu,” does not interpret the variation from “hu” to “hahu.” He holds that one cannot derive separate halakhot from each part of this word.

והא דתני האומר לשלוחו צא הרוג את הנפש הוא חייב ושולחיו פטור שמאי הזקן אומר משום חגי הנביא שולחיו חייב שנאמר אתו הרגת בחרב בני עמון

The Gemara questions the statement that there is no agency for transgressions: But there is that which is taught in a baraita: One who says to his agent: Go kill a person, he, the killer, is liable if he kills, and the one who appointed him is exempt. Shammai the Elder says in the name of Haggai the prophet: The one who appointed him is liable, as it stated with regard to David, who directed Joab to kill Uriah: “Him you have slain with the sword of the children of Ammon” (II Samuel 12:9). David was held responsible for the death of Uriah.

מאי טעמיה דשמאי הזקן קסבר שני כתובים הבאים כאחד מלמדין והוא ההוא לא דריש ואיבעית אימא לעולם דריש ומאי חייב חייב בדיני שמים

The Gemara asks: What is the reason of Shammai the Elder? How can he say that there is agency for transgression? The Gemara answers: He holds that two verses that come as one do teach a precedent, and therefore he learns from the two cases of misuse of consecrated property and slaughter or sale that there is agency for transgression. And as for the derivation from one who slaughters an offering outside the Temple, which teaches that there is no agent for transgression, Shammai does not interpret the variation from “hu” to “hahu.” And if you wish, say instead: Actually it is possible that he does interpret the variation, and he agrees that there is no agent for transgression. And what is the meaning of Shammai’s statement that the one who appoints him is liable? It means he is liable according to the laws of Heaven, although he cannot be punished by a human court.

מכלל דתנא קמא סבר אפילו מדיני שמים נמי פטור אלא דינא רבה ודינא זוטא איכא בינייהו

The Gemara asks: By inference, does this mean that the first tanna holds that he is exempt even according to the laws of Heaven? The one who appointed him must bear some responsibility. Rather, the first tanna also agrees that the one who appointed the killer is liable according to the laws of Heaven, and the difference between them pertains to a great judgment and a small judgment. According to Shammai, his liability is great, to the extent that Heaven considers him fully responsible, whereas the first tanna holds that his liability is of a lesser degree.

ואיבעית אימא שאני התם דגלי רחמנא אתו הרגת בחרב בני עמון

And if you wish, say instead: Everyone agrees that there is no agent for transgression. Nevertheless, Shammai holds that there, with regard to killing, it is different, since the Merciful One reveals: “Him you have slain with the sword of the children of Ammon,” explicitly rendering David accountable for this transgression and indicating that killing is different from all other transgressions.

ואידך הרי לך כחרב בני עמון מה חרב בני עמון אין אתה נענש עליו אף אוריה החתי אי אתה נענש עליו מאי טעמא מורד במלכות הוה דקאמר ליה ואדני יואב ועבדי אדני על פני השדה חנים

And the other opinion, i.e., the first tanna, who holds that the one who appoints the killer is exempt, explains the verse as follows: Behold this killing is for you like the sword of Ammon. Just as you are not punished for those killed by the sword of Ammon in the course of the war, so too you are not punished for the death of Uriah the Hittite, not even according to the laws of Heaven. What is the reason for this? Uriah was a rebel against the monarchy and was consequently liable to the death penalty, as he said to King David: “And my lord Joab, and the servants of my lord, are encamped in the open field” (II Samuel 11:11). By referring to Joab as his lord in front of the king, he indicated that he answered to Joab rather than to the king, which is tantamount to rebellion.

אמר רבא אם תמצי לומר סבר שמאי שני כתובים הבאים כאחד מלמדין והוא ההוא לא דריש מודה באומר לשלוחו צא בעול את הערוה ואכול את החלב שהוא חייב ושולחיו פטור שלא מצינו בכל התורה כולה זה נהנה וזה מתחייב

Rava said: If you say that Shammai holds that two verses that come as one do teach a precedent, and he does not interpret the variation from “hu” to “hahu,” the combination of which would result in him holding that there is agency for transgression in all cases, even he concedes with regard to one who says to his agent: Go and engage in sexual intercourse with a forbidden relative, or: Go and eat forbidden fat, that the agent is liable and the one who appointed him is exempt, as we have not found in the entire Torah a case where this person physically benefits from the transgression but that one becomes liable.

איתמר רב אמר שליח נעשה עד דבי רבי שילא אמרי אין שליח נעשה עד מאי טעמא דבי רבי שילא אילימא משום דלא אמר ליה הוי לי עד אלא מעתה קידש אשה בפני שנים ולא אמר להם אתם עדיי הכי נמי דלא הוו קידושי

§ It was stated that amora’im engaged in a dispute concerning the following issue: Rav says: An agent can become a witness. If one was appointed as an agent to perform a certain task, he can then serve as a witness that the action was performed. In the school of Rabbi Sheila they say: An agent cannot become a witness. The Gemara asks: What is the reason of the school of Rabbi Sheila? If we say it is because the one who appointed him did not say to the agent: Be a witness for me, and appointed him only as an agent; if that is so, if one betrothed a woman in the presence of two people and did not say to them: You are my witnesses, so too would they hold that it is not a betrothal? It is not necessary to explicitly appoint witnesses.

אלא רב אמר שליח נעשה עד אלומי קא מאלימנא למילתיה דבי רבי שילא אמרי אין שליח נעשה עד כיון דאמר מר שלוחו של אדם כמותו הוה ליה כגופיה

Rather, the dispute is as follows. Rav says: An agent can become a witness, since we strengthen his words of testimony because he attests to a matter of which he is certain, as he is the one that performed the action. In the school of Rabbi Sheila they say: An agent cannot become a witness. Since the Master said that the legal status of a person’s agent is like that of himself, the agent is considered like the one who appointed him himself. Just as one cannot testify with regard to a matter that concerns himself, the same applies to one’s agent.

מיתיבי אמר לשלשה צאו וקדשו לי האשה אחד שליח ושנים עדים דברי בית שמאי ובית הלל אומרים כולם שלוחין הן ואין שליח נעשה עד עד כאן לא פליגי אלא בשלשה אבל בשנים דברי הכל לא

The Gemara raises an objection from a baraita to the statement of Rav: If one said to three people: Go out and betroth the woman for me, then one of them is the agent for the betrothal and two of them serve as witnesses; this is the statement of Beit Shammai. And Beit Hillel say: They are all potential agents, and as an agent cannot become a witness none of them can be witnesses. Beit Shammai and Beit Hillel disagree only with regard to a case where one said this to three people. But with regard to two people, all agree that agents are not able to serve as witnesses.

הוא דאמר כי האי תנא דתניא רבי נתן אומר בית שמאי אומרים שליח ועד אחד ובית הלל אומרים שליח ושני עדים ורב כבית שמאי איפוך ורב אחא בריה דרבא מתני איפכא רב אמר אין שליח נעשה עד דבי רבי שילא אמרי שליח נעשה עד והילכתא שליח נעשה עד

The Gemara answers: It was he, Rav, who said his ruling in accordance with the opinion of that tanna, i.e., the version of Beit Shammai as presented by Rabbi Natan. As it is taught in a baraita: Rabbi Natan says: Beit Shammai say that the agent and one witness are sufficient to carry out the agency and testify, and Beit Hillel say: The agent and two witnesses are needed. The Gemara questions this explanation: And would Rav rule in accordance with the opinion of Beit Shammai? The Gemara answers: Reverse the opinions, so that it is Beit Hillel who said that the agent and one witness suffice. And Rav Aḥa, son of Rava, taught the dispute of the amora’im in the opposite manner. Rav says: An agent cannot become a witness, and in the school of Rabbi Sheila they say: An agent can become a witness. The Gemara concludes: And the halakha is that an agent can become a witness.

אמר רבא אמר רב נחמן אמר לשנים צאו וקדשו לי את האשה הן הן שלוחיו הן הן עדיו וכן בגירושין

Rava says that Rav Naḥman says: It follows that if one said to two people: Go and betroth the woman for me, the very same people who are his agents for the betrothal are his witnesses. And a similar halakha is true with regard to divorce: If a man sent a bill of divorce to his wife with two people, they serve both as agents of delivery and as witnesses to the divorce.

וכן בדיני ממונות

And a similar halakha applies with regard to cases of monetary law. If one appoints agents to perform a transaction for him, e.g., paying a debt to his creditor, they can testify that he has paid.

וצריכא דאי אשמעינן בקידושין משום דלמיסרה קאתי אבל גירושין ניחוש שמא עיניו נתן בה

The Gemara comments: And it is necessary for Rav Naḥman to teach this halakha in each of these legal domains, as had he taught us this halakha only in the case of betrothal one could say that the agents can serve as witnesses because they are coming to render her forbidden to everyone else, and therefore there is no reason to suspect them of lying, as their testimony renders her forbidden to them as well. But with regard to divorce, we should be concerned that perhaps the agent cast his eyes upon her and is testifying falsely so that he can marry her.

ואי אשמעינן גירושין משום דאיתתא לבי תרי לא חזיא אבל ממונא אימא הני מיפלג פלגי צריכי

And had Rav Naḥman taught us this halakha only in the case of divorce, it could have been said that the agents are not suspected of lying because a woman is not fit for marrying two people, and since they testify as a pair there is no concern that they both might have designs upon her. But with regard to money, one might say that these two can divide it between them, and perhaps they never paid the debt but kept the money themselves. Therefore, all the examples are necessary.

מאי קסבר אי קסבר המלוה חבירו בעדים צריך לפורעו בעדים הני נוגעים בעדות נינהו דאי אמרי לא פרעניה אמר להו פרעוני

The Gemara asks: What does Rav Naḥman hold? If he holds that in the case of one who lends money to another in the presence of witnesses, the debtor must repay him in the presence of witnesses, then these agents are affected by their testimony. As, if they say: We did not repay him but returned the money to the one who appointed us, then the one who appointed them will say to them: Pay me back the money I gave you to repay the debt. The agents are considered as the debtors of the one who appointed them, as they took money from him. They would not be deemed credible to state that they returned the money to the one who appointed them, as they do not have witnesses that they did so. Consequently, they have a financial incentive to testify falsely that they fulfilled their agency and repaid the debt.

אלא לעולם קסבר המלוה את חבירו בעדים אין צריך לפורעו בעדים ומגו דיכלי למימר אהדרינהו ללוה יכולין למימר פרעניה למלוה

Rather, Rav Naḥman actually holds that in the case of one who lends money to another in the presence of witnesses, the debtor does not need to repay him in the presence of witnesses. And since the agents are able to say: We returned the money to the debtor, even without there being witnesses to substantiate their claim, they can also be deemed credible to say: We repaid the creditor, as they have no financial incentive to lie.

והשתא דתקון רבנן שבועת היסת משתבעי הני עדים דיהיבנא ליה ומשתבע מלוה דלא שקיל ליה ופרע ליה לוה למלוה

The Gemara comments: And now, since the time of Rav Naḥman, when the Sages instituted an oath of inducement, an oath instituted by the Sages in a case where a defendant completely denies a claim, these witnesses are affected by their testimony. If they were to claim that they returned the money to the one who appointed them, they would be required to take an oath of inducement to that effect. Consequently, they have an incentive to lie and claim that they fulfilled their agency and repaid the loan. Therefore, their testimony that they fulfilled their agency is not deemed credible. Instead, these witnesses take an oath in court that they gave the money to him, i.e., the lender, and the lender in turn takes an oath that he did not take the money owed to him, and then the debtor pays the lender his debt a second time, as the Sages ruled in similar cases.

האיש מקדש את בתו תנן התם נערה המאורסה היא ואביה מקבלין את גיטה אמר רבי יהודה אין שתי ידים זוכות כאחד אלא אביה מקבל את גיטה וכל שאין יכולה לשמור את גיטה אין יכולה להתגרש

§ The mishna teaches that a man can betroth his daughter to a man when she is a young woman. We learned in a mishna there (Gittin 64b): With regard to a betrothed young woman, she and her father are each eligible to receive her bill of divorce. Rabbi Yehuda said: Two hands do not have the right to acquire an item on behalf of one person as one. If the young woman is able to acquire an item on her own, her father cannot receive her bill of divorce. Conversely, if she is not able to acquire an item on her own, only her father can receive the bill of divorce. Rather, her father alone receives her bill of divorce on her behalf. The mishna states another principle: And any female who is unable to safeguard her bill of divorce, either due to her young age or mental incompetence, is unable to be divorced, since a bill of divorce is effective only for one who understands the severing of ties that a divorce engenders.

אמר ריש לקיש כמחלוקת לגירושין כך מחלוקת לקידושין ורבי יוחנן אמר מחלוקת לגירושין אבל לקידושין דברי הכל אביה ולא היא

Reish Lakish says: Just as there is a dispute with regard to divorce, as to whether both a young woman and her father can accept her bill of divorce or only the father can do so, so too there is a dispute with regard to betrothal. And Rabbi Yoḥanan says: The dispute is with regard to divorce, but with regard to betrothal everyone agrees that her father has the right to accept it but not her.

ואמר רבי יוסי ברבי חנינא מאי טעמיה דרבי יוחנן אליבא דרבנן גירושין דמכנסת עצמה לרשות אביה בין היא ובין אביה קידושין דמפקעת עצמה מרשות אביה אביה ולא היא

And Rabbi Yosei, son of Rabbi Ḥanina, said: What is the reason of Rabbi Yoḥanan, in accordance with the opinion of the Rabbis, that there is a distinction between divorce and betrothal? In the case of divorce, when she brings herself back into her father’s authority by means of the bill of divorce, it is considered as though the father has obtained the bill of divorce via his daughter, and therefore either she or her father can receive it. In the case of betrothal, where she removes herself from her father’s authority, she cannot do this by herself. Consequently, only her father can accept the betrothal, but not her.

והרי מאמר דמפקעת עצמה מרשות אביה ותנן

The Gemara asks: But isn’t there the case of levirate betrothal, where the yevama removes herself from her father’s authority, and yet we learned in a baraita: