Sheluchin veShuttafin - Chapter 1

As our Sages comment (Kiddushin 41a): “A man’s agent is equivalent to him himself.”
Note Rav Yosef Engel (Lekach Tov and Likkutei Sichot, Vol. XII), which offer three different interpretations of this statement:
i) that the agent is considered a separate entity, but his deeds are considered as if they were performed by the principal;
ii) that the agent is considered to have carried out his activities with the power vested in him by the principal;
iii) that the agent is considered an extension of the principal’s person; he is his “extended arm.” As Likkutei Sichot, loc. cit., explains there are situations in Torah law in which each of these definitions is applied.

See the conclusion of Chapter 5 of Hilchot Mechirah, which explains that there are certain times when a kinyan is unnecessary, but is performed to show the seriousness of the people involved, and other times when it is entirely unnecessary.

As our Sages comment (Kiddushin 65b): “Witnesses were brought into being only because of liars.”
This applies with regard to an agency that involves financial matters. When, by contrast, an agent is appointed to accept a bill of divorce or act on the part of a woman in her consecration, witnesses must observe the appointment (Hilchot Ishut 3:15).

Note the statements of the Ramah (Choshen Mishpat 182:1) who comments on this law: “Therefore, when a person tells a colleague: ‘Purchase this merchandise, and I will be your partner,’ if the colleague purchased it, [the person who made the suggestion] may not retract, for his colleague has already become his agent.”

For he is not carrying out the agency with which he is charged. See Halachot 4-5, and Chapter 2, Halachah 4.

And accidentally cause the principal a loss.

I.e., when appointing the agent, the principal did not intend that the agent would not act to his benefit. Hence, he can claim that the agent was never given authority to perform the actions that harmed his position.

See Hilchot Mechirah, Chapter 12.

Ibid. 13:8.

For the agent has erred and has not acted in the best interests of the principal.

See Hilchot Mechirah 19:3, which explain this concept. As stated in that source, a property is sold without financial responsibility only when the deed of sale explicitly states that. If the subject is not mentioned at all. we assume that the seller did accept financial responsibility (Kessef Mishneh).

For if the property is expropriated, the seller will be left without anything.

Sefer Me’irat Einayim 182:10 states that a new transaction is not necessary, despite the ruling of some authorities that requires a new transaction to be carried out.

In his Kessef Mishneh [and this interpretation is reflected in his Shulchan Aruch (Choshen Mishpat 182:6)], Rav Yosef Karo explains that the understanding of this halachah is dependent on the ruling of the Rambam in Chapter 2, Halachah 4 where the Rambam states that when an agent entered into a transaction and told the other party that he was merely an agent, the transaction is nullified if the agent violates the instructions of the principal. If, however, the agent does not inform the other party to the transaction that he is merely an agent, the agent must bear the responsibility for the transaction himself and then complete his dealings with the principal.
The sale mentioned in our halachah involves an instance where the agent did not inform the seller that he was merely an agent. Hence, he must bear the responsibility for the transaction. The Kessef Mishneh notes that Rabbenu Nissim does not require the principal to accept the property from the agent. Instead, the principal can require the agent to return his funds to him. This law applies only when the principal desires for the transaction to stand. (Rabbenu Nissim’s interpretation is quoted by the Ramah.)
The Kessef Mishneh, by contrast, maintains that since the agent accepts responsibility for the property, the principal is required to accept it. As he explains: What difference does it make to the principal whether the seller or the agent is responsible for the property?

If, however, the agent purchased the property with his own funds, he would not be forced to sell it to the principal (Sefer Me’irat Einayim 182:11; see also Hilchot Mechirah 7:10). The Tur and the Ramah (Choshen Mishpat 182:6) quote the view of Rabbenu Asher who maintains that even if the agent purchased the property with the seller’s money, he has the option of returning the money to the seller and keeping the property for himself.
It must, however, be noted that Rabbenu Asher interprets Bava Batra 169b, the source for this halachah, differently from the explanation above, stating that it refers to a situation in which the agent explicitly said that he was purchasing the property on behalf of the principal.
The Ra’avad introduces another perspective and maintains that everything depends on the principal. It is he who has the option of deciding whether to accept the agent’s action or not.

Shulchan Aruch (Choshen Mishpat 182:3) quotes this clause after quoting the conclusion of Halachah 2. See also Sefer Me’irat Einayim 182:7, which states that this clause applies only when the principal did not give the agent specific instructions. If he did give specific instructions, and the agent willfully violated them, the principal is not required to accept his actions.

Since acting as an agent may require a person to accept a large degree of financial responsibility, there may be many who refrain from doing so. To eliminate the agent’s risk and thus encourage someone to accept this position, the principal may make a stipulation of this nature.

For any conditional agreement involving financial matters that a person willingly undertakes is binding, even if it diminishes the privileges the Torah would grant him.

I.e., if the agent was working for a fee, he must be paid that fee even though he caused the principal a loss.
Note the Shulchan Aruch (Choshen Mishpat 182:4), which cite the opinion of the Ramah, who maintains that unless it is proven to the contrary, if the seller claims that the agent was appointed with the stipulation that his deeds are binding, the seller’s claim is accepted. Sefer Me’irat Einayim 182:8 explains that this applies only when the agent does not receive a fee.

I.e., 2500 square cubits.

But not to have violated them.

The purchaser may not acquire more property than the seller wishes to sell. Nevertheless, the transaction is not nullified entirely, for the seller desired to sell a portion large enough to sow a se’ah, and the purchaser was willing to buy such a property. If, however, the seller states: “I do not desire to purchase a field smaller than the area necessary to sow two se’ah,” he may nullify the transaction [Shulchan Aruch (Choshen Mishpat 182:8)].

It can be assumed that if the seller directed the agent to sell the area necessary to sow two se’ah, the reason was that he needed the amount of funds that could be garnered from that sale. Hence, if only half the amount of land was sold, he will have to sell the other portion to another person. He will certainly view this as undesirable, for it will increase the amount of legal activity in which he will be forced to be involved. Hence, this is considered a violation of his instructions (Sefer Me’irat Einayim 182:16).

For if the seller desires. the transaction is nullified, as stated in Halachah 2.
Ketubot 99a leaves this matter as an unresolved question. The Rambam, nevertheless, rules in favor of the owner of the property, for the property was in his possession previously. Therefore, he is given the benefit of the doubt (Kessef Mishneh).

Even though the agent could still sell the remainder of the property, doing so would require (he seller to enter into more than one transaction. As evident from his instructions, he did not desire to do that.
The Tur and the Ramah (Choshen Mishpat 182:10) maintain that this ruling applies only when it is necessary to compose two deed of sale. If both purchases are included in the same deed of sale, they are binding. It is clear that Rabbenu Yitzchak Alfasi, the Rambam’s teacher, would not accept this interpretation for there are other considerations involved in entering into two ales aside from the bother of composing another bill of sale.

Although a person generally does not desire the trouble of entering into many business transactions, since the principal did not make an explicit stipulation to the contrary, the agent’s activity is binding.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 182:11) also mentions the opinion of Rabbenu Tam, who maintains that this applies only when the seller himself is not required to prepare the deeds of sale for the purchasers, and all the purchases are included in the same deed of sale, or the agent composes and signs the deeds of sale. If the seller must sign the deeds of sale himself, he has the right to nullify the transactions.

Even if the fact that the purchase was not made caused the principal a substantial loss, the agent is not liable. The commentaries differentiate between damaging a person’s property - where one person causes a colleague a loss and is therefore liable – and preventing him from earning a profit, when he is not.

This law would certainly apply when the principal’s intent was to use the wheat for food, for the agent obviously deviated from his instructions. The Rambam is teaching us that even when the principal intended that the wheat be purchased as merchandise, in which instance he might be content with the barley – because ultimately he is concerned merely that a profit be made – since the agent deviated from his instructions, the responsibility is the agent’s.

As mentioned in Chapter 2, Halachah 4, when an agent deviates from the principal’s instructions and does not say that he was an agent, he must bear the loss himself.

Because it was with his money that the profit was made.

The Tur (Choshen Mishpat 183) quotes the opinion of Rabbenu Tam, who explains that this ruling applies when the seller intentionally gives the additional measure as a gift. If, however, a gentile seller errs and adds more, the additional measure should be given to the principal. The Shulchan Aruch (Choshen Mishpat 183:6) quotes other views, which state that the additional measure should be given the agent.

Rashi, in his commentary on Bava Kama 102b, the source for this halachah, explains that we do not know whether the sellers gave the agent the additional amount because of their consideration for him, or because of their consideration for the principal. Hence, because of the doubt, the additional measure is divided between them.
From the Rambam’s wording, however, it appears that even if it is obvious that the measure was added because of the agent, the principal is also given a share. For had the principal not given the agent the funds with which to do business, he would never have been granted the extra measure (Kessef Mishneh).

For as above, the profit was made with his resources.

The Hebrew term sechirut applies both to a wage paid for work and also a fee for the hire of an article.

By not taking this precaution, the agent caused the principal to have to pay a second time.

If, by contrast, the payment was made in the presence of witnesses, even if the agent did not retrieve the promissory note, he could always prove that the debt had been paid.

The agent’s act is clearly negligent, for as long as the creditor has the promissory note in hand, he is entitled to demand payment. By mentioning the importance of taking the promissory note, the debtor informed the agent that he feared the possibility that he would demand payment a second time. It was thus the agent’s responsibility to secure the return of the promissory note (Kessef Mishneh).

In his Kessef Mishneh, Rav Yosef Karo states that if the debtor does not mention the promissory note, the agent is not held liable if he does not secure its return. And in his Shulchan Aruch (Choshen Mishpat 58:1), he goes further and states that even if the debtor told the agent that there was a promissory note, as long as he did not instruct him to bring it, the agent is not liable.

The debtor, the creditor and the agent.

I.e., the claim against the agent is that he did not pay the debt, but instead took the money for himself. The agent denies this claim entirely. Hence, like anyone who denies a claim entirely, he is required to take a sh’vuat hesset, a Rabbinic oath, to support his claim.

There are questions with regard to the correct version of the Rambam’s words. The standard printed text of the Mishneh Torah states “a Scriptural oath” in brackets. The Kessef Mishneh maintains that this was the correct version of the text. In many authoritative manuscripts and early printings of the Mishneh Torah, the text states “should take a sh’vuat hesset.”
From a halachic perspective, neither of these versions is entirely correct. Instead, the creditor is required to take sh’vuat hamishnah, an oath resembling a Scriptural oath in all of its particulars, and it must be taken while holding a sacred article, but it was instituted by the Rabbis and not required by Scriptural Law. See Hilchot Malveh V’Loveh 16:5.

The principal is caught in a double bind. For he has no proof of his claim in either of these cases. Therefore, he can do no more than require an oath from each of the parties. The oath taken by the agent is of no consequence with regard to the creditor’s claim against the principal, because the creditor can say: “I never entered into any business dealings with the agent. I did not agree to accept his word.”

And thus, we might assume that they would be considered to be two witnesses and their testimony accepted.

I.e., they have a vested interest in the case, and therefore their testimony is not accepted (Hilchot Edut, Chapter 15).
What is their vested interest? That, as the Rambam explains, if their testimony were accepted, they would not be required to take a sh’vuat hesset. Once they have taken the required oath, their testimony is still not accepted. For testimony that would not be accepted without an oath is never accepted once an oath has been taken.

In the case above, the principal did not have a definite claim against the agent. Nevertheless, an oath is required because his claim is supported by the statements of the creditor, who claims that he did not receive payment.

With the exception of oath taken by watchmen or partners, an oath cannot be required unless the plaintiff has a definite claim against the defendant – i.e., he is certain that the defendant owes him something. In this instance, the creditor is not certain that the agent did not perform his mission. Quite the contrary, in general, we assume that the agent did perform his mission. See Hilchot To’en V’Nit’an 1:7.

I.e., the court issues a statement that anyone who demands payment a second time for money he has been paid is fit to be placed under a ban of ostracism. This statement is not directed against the creditor personally, and yet it is intended to serve as a warning to him.

For he has no proof that the agent paid him. Thus, this resembles a situation where he knows that he is liable for the debt and is uncertain if he paid the creditor. He is liable in such an instance as stated in Hilchot To’en V’Nit’an 1:9.

See the Kessef Mishneh, which discusses the law that applies when the creditor does not identity a specific agent.

As the Rambam states in Chapter 3, Halachah 5, even if the debtor knows that the agent was appointed by the creditor, he may not be compelled to give him the money he owes.

Since “a person’s agent is considered as the person himself,” giving the money to the agent is equivalent to giving it to the creditor himself. Even if the money never reaches the creditor, the debtor has discharged his obligation by paying the agent.

Unless the debtor is certain that his creditor gave the instructions to him, he cannot claim to have fulfilled his obligation by giving the money to the agent. The Siftei Cohen 121:14 states that the same laws apply if the letter was written by a scribe, but signed by the creditor.

For the debtor is denying entirely that he is under any further obligation.

As reflected in the treatment of this subject by the Tur, the most desirable course of behavior is for the debtor to produce the note and have witnesses identify it as having been written in the creditor’s handwriting. Even if that is impossible, he may clear himself by taking a sh’vuat hesset.

Sefer Me’irat Einayim 121:10 states that this ruling applies only when the debtor has the option of denying the debt entirely. For then, he is supported by the principle of migo – i.e., if he desired to lie, he would have denied the debt entirely.

Since he does not have proof that he was authorized by the creditor to pay the agent, he knows that he was liable for the debt and is uncertain if he paid the creditor. In such an instance he is liable, as stated in Hilchot To’en V’Nit’an 1:9.

According to that opinion, Reuven would have to take a sh’vuat hamishnah, as mentioned in the notes on the previous halachah.

I.e., an oath required by Scriptural Law, for he admits a portion of the claim against him.

The Tur and the Kessef Mishneh note that the laws applying to an oath taken by a person who admits a portion of the claim generally involve a situation where an allegation is lodged against a person and he must take an oath to defend his claim. In this instance, by contrast, it appears that the person who admits a portion of the claim is seeking to expropriate money from his creditor.
Accordingly, the Kessef Mishneh explains that the Rambam is speaking about an instance where Reuven is seeking to borrow money from Shimon, and sends Levi to bring him the money that he was loaned. Thus, when he admits to receiving only 20 zuz, he is admitting only a portion of the claim and must take the oath required by Scriptural Law.

For Shimon claims that Levi took the remaining 30 zuz for himself.

As the Kessef Mishneh explains, this clause is based on Halachah 7, which states that before the debtor is required to pay, the creditor and the agent must take oaths. The creditor must take an oath that he sent the agent to take only 20, and that is the amount he received. The agent must take an oath that he paid all the 50 zuz to Shimon.