Sheluchin veShuttafin - Chapter 2

I.e., when a gentile performs a task on behalf of a Jew, it is not considered as if the Jew performed that task himself.
Note the Mishneh Lamelech, who quotes sources that explain that not only may a gentile not serve as an agent for a Jew, he may not serve as an agent for a gentile. This entire concept applies with regard to the Jewish people.

This verse – translated in a manner that points to the exegesis offered by our Sages (Kiddushin 4lb) – refers to the separation of the Terumah offering from the crops. The word “also,” gam in Hebrew is interpreted as the reference to the concept of agency. Since the Torah has taught us the concept of agency in other sources, this verse is necessary to exclude a gentile from serving in that capacity (Sefer Me’irat Einayim 188:1).

The fact that with regard to certain matters the woman’s husband has control over her financial capacity does not prevent her from acting as an agent on behalf of another man or woman.

As reflected by the explanation given by the Rambam, this refers even to Canaanite servants and maidservants who are not full-fledged members of the Jewish people.

For Canaanite servants and maid-servants are obligated to observe all the negative commandments and all the positive commandments whose observance is not associated with a specific time.

But not with regard to matters involving marriage and divorce, as stated in Hilchot Ishut 3:17 and Hilchot Gerushin 6:6.

A person who is both deaf and mute. A person who has only one of these disabilities is, by contrast, considered intellectually competent.

Although a female minor has an advantage over a male minor and can acquire property by virtue of its presence in her courtyard (Hilchot Zechiyah Umatanah 4:9), she does not have the right to appoint an agent.

And gives him a pundeyon, a coin worth two isarim, which the child gives to the storekeeper. This interpretation is based on the Rashbam’s interpretation of Bava Batra 87b, the source for this halachah. We have chosen to use the Rashbam’s interpretation rather than that offered by the Rambam in his Commentary on the Mishnah (Bava Batra 5:9), for the wording in this halachah indicates that the Rambam changed his perception of the situation described. Note, however, the comments of the Bayit Chadash (Choshen Mishpat 188), which favors the interpretation of the Rambam in his Commentary on the Mishnah.

I.e., he must reimburse the father for the oil and for the change. Had the child been able to serve as an agent, the storekeeper would have fulfilled his obligation by giving him the oil and the change. Since he is not considered an agent, however, the oil and the money are considered to have remained in the storekeeper’s domain. He must suffer the loss and make restitution to the father.

For the father explicitly stated that he is accepting the risks involved with sending the oil and the money with the child.

Or writes [Chapter 1, Halachah 8, Shulchan Aruch (Choshen Mishpat 121:1)].

He is not, however, obligated to send it with that person.

This applies even when he does not specify that the person charged with transferring the article is a minor. This is the new concept taught in this halachah, expanding the concepts taught in Halachah 2 (Sefer Me’irat Einayim 188:9).
Note the Shulchan Aruch (loc. cit.), which states that the same laws apply if the person sends the object with a gentile, a deaf-mute or anyone else unfit to serve as an agent.

This qualification is necessary because one might argue that since an entrusted article is always considered to be in the possession of its owner, it could be understood why the sender is no longer liable. A loan, by contrast, becomes the property of the debtor. Hence, the Rambam must emphasize that giving it to the person designated by the creditor is considered repayment.

If, however, the agent chosen is not fit to transfer the article - e.g., he is known to deny having received articles given to him or to take unnecessary risks - the person who sent it acted negligently and is responsible for the destruction of the article. See Shulchan Aruch (loc. cit).

Note the statements of the Siftei Cohen 185:7 (based on the gloss of the Kessef Mishneh on Halachah 6), which interpret this to mean that it is not sufficient for the agent to notify the purchaser or the seller that he is acting as an agent. He must inform the other party of the identity of the principal.

Although meshichah is a kinyan formally effecting the transfer of an article, since the principal’s wishes were violated, the kinyan is considered to have been carried out under false premises and is not binding. Since the other party to the transaction knew that the agent was not purchasing or selling the article himself, but rather acting on behalf of others, he knows that the transaction is dependent on the wishes of the principal, and he cannot claim to have been misled.

See Chapter 1, Halachah 3. See also Halachah 6.

Bava Kama 102b explains that Levi is a person of stature, and people who feel that they have a claim to the field will hesitate to bring the matter to court because of his prestige.

Instead, he must ask Levi to draw up a deed of sale for him.

For this was implied by the stipulation made at the outset.
Bava Kama (op. cit.) adds another particular: Even if Reuven did not make these statements to Shimon himself, but instead told the witnesses in Shimon’s presence, Shimon is obligated to compose a second deed of sale. This situation is also mentioned by the Shulchan Aruch (Choshen Mishpat 184:2). The commentaries question why the Rambam does not speak of this and surmise that he had a different version of Bava Kama, which did not mention this circumstance.

The Bayit Chadash (Choshen Mishpat 185) emphasizes that in Hilchot Mechirah 16:11, the Rambam uses the Hebrew term sarsur, translated here as “broker,” in a different manner, applying to a person who buys from one and sells to another, but owns the merchandise himself and is not merely an agent.
See also Sefer Me’irat Einayim 185:1, which explain that one might think that the broker would be considered a partner. If this were so, he would not be liable for selling the article at a lower price if his business intuition told him that this was the best price he could get for it.

As stated in Chapter 1, Halachah 5, since the profit was made because of the principal’s resources, it rightfully belongs to him.

The Ra’avad takes issue with the Rambam and maintains that the agent can be required only to take a sh’vuat hesset. His logic is that the owner is asking for the money for his article, and his knowledge of the price comes only from the agent. Hence, there is no claim of which the agent admits only a portion. The Kessef Mishneh explains that the principal attached a certain monetary value to that sale. Since the agent desires to give him only a portion of that, this can be considered a case of admitting a portion of a claim. (Note the Siftei Cohen 185:6, which justifies the Ra’avad’s position, and the Netivot HaMishpat, Be’urim 185:4, which clarifies the Rambam’s position.)

Since the agent already gave him - or is prepared to give him immediately (Kessef Mishneh) - the 50 and denies the entire claim made against him at present, he is not considered to be one who admits a portion of the claim. Hence, according to Scriptural Law, he is not obligated to take an oath. Instead, he is required to take only a less severe oath that is Rabbinic in origin. This situation depends on the concept of heilech described in Hilchot To’en V’Nit’an 1:3.

For, as stated in Halachah 4, if the other party to a transaction was not informed that he was dealing with an agent, the transaction is binding, and the agent is responsible for satisfying the demands of the principal.

Note the Kessef Mishneh, which offers two interpretations – one that states that the Rambam’s wording is precise, and the purchaser must know the identity of the principal – and the other, that it is sufficient for the purchaser to know that the broker was only an agent.

As mentioned above, the Siftei Cohen 185:7 states that both particulars are necessary. The purchaser must know that the broker is an agent, and he must know the identity of the principal.

With this statement, the Rambam reiterates the point made in Halachah 4 - that if it is known that the agent is carrying out the transaction on behalf of a principal, the transaction may be nullified. In this halachah, however, he introduces a further point: that even if the agent claims to have carried out the principal’s requests, if the principal denies this, the transaction is nullified.
The agent’s statements are not considered of consequence, for since he is an involved party, his testimony is disqualified (Sefer Me’irat Einayim 185:9).
The Ra’avad differs with the Rambam on this point as well, claiming that the article should not be returned. On the contrary, he explains that even if the agent agrees with the principal, it would appear that this is an act of deception contrived by the agent and the principal to nullify the sale. The Rambam’s position is quoted by the Shulchan Aruch (Choshen Mishpat 185:5), while the Ra’avad’s is cited by the Tur and the Ramah.

He may not, however, require the principal to take an oath- even a sh’vuat hesset – because he cannot issue a definite claim (see Hilchot To’en V’Nit’an 1:7) that the principal agreed to the price of 50 zuz.

The Ra’avad differs with the Rambam on this point, stating that since the seller did not mention a price, and instead told the agent to sell the article at whatever price he could, it is unfair that he should be able to nullify the transaction because of the price he received.
In his Kessef Mishneh, Rav Yosef Karo discusses the Ra’avad’s ruling, explaining that the Ra’avad is not giving the agent blanket authority to sell the object at whatever price he desires. Instead, his intent is that he may deviate slightly from the market value. If, however, the deviation is extreme, even the Ra’avad agrees that the sale may be nullified.
The Kessef Mishneh continues explaining the Rambam’s position. In an instance where the seller gave the agent an article to sell without specifying the price, the purchaser could assume that the owner desired that the article be sold, but that the owner has a right to veto the transaction if he is unsatisfied with the price. The purchaser does not, however, have the right to retract his commitment. In his Shulchan Aruch (Choshen Mishpat 185:6). Rav Yosef Karo quotes the Rambam’s view, while the Tur and the Ramah cite that of the Ra’avad.

The commentaries question the Rambam’s addition of this term, because the Rambam writes in Hilchot Sechirut 2:1 that a paid watchman must reimburse the owner if the article is lost or stolen. If, however, a loss beyond his control occurs – e.g., an article is broken – the watchman may free himself from liability by taking an oath.
In his Kessef Mishneh, Rav Yosef Karo resolves this difficulty by explaining that this refers to an instance where the article was broken because the broker did not show the proper care for the article. Significantly, when he quotes this law in his Shulchan Aruch (Choshen Mishpat 185:7), he does not use the term “broken.”

The broker is placed in this category because he receives a fee for his services.

And fixes a price for them (Kessef Mishneh, based on Hilchot Mechirah 4:14).

For even if the present is not accepted, he derived benefit from the fact that he appears generous and willing to give presents to his intended (Rashi, Bava Metzia 81a).

And certainly if they were lost or stolen.

The Rambam compares such a person to an agent, for the man is not interested in purchasing the articles for himself, but rather in sending them to his intended. As such, he is considered a borrower, and as a borrower he is liable to pay if the article is destroyed by force beyond his control.
The commentaries refer to Hilchot Mechirah, loc. cit., where the Rambam states that a person who takes utensils from a craftsman in order to inspect them to see whether he will purchase them is liable if they are destroyed by forces beyond his control while in his possession. The rationale is that the articles are considered to have entered his domain at the time he lifted them up, and thus he is considered a purchaser. In the instance described in our halachah, by contrast, the person’s intent is not to acquire them, but to use them to show off his generosity. Thus, he is considered an agent, and his responsibilities are comparable to those of a borrower.

As is the law that applies to a borrower after the term for which he borrowed the article has concluded (Hilchot She’ilah U’Fikadon 3:2). The young man is liable, however, if the article is lost or stolen, for he is considered a paid watchman, since he benefited from sending the article.

The rationale is that since he is still looking for customers on the way home and would sell them the merchandise if possible, the term for which he borrowed the article is not considered to have been concluded (Bava Metzia 91a).
The Tur and the Ramah (Choshen Mishpat 186:2) explain that this decision applies only when the article has many potential buyers, and it could easily be sold for the price fixed, but instead the agent tries to sell it at a higher price. For only in such a situation is the agent comparable to a borrower who receives all the benefit himself. If, however, it would be difficult for the agent to sell it, the owner is also hoping to benefit from its presence in the agent’s possession. Hence, the agent is liable only when the object is lost or stolen, but not when it is destroyed by forces beyond his control, as stated in the previous halachah.

Sefer Me’irat Einayim 187:1 states that the agent must take the three oaths demanded of a watchman: that the article was destroyed by forces beyond his control, that he did not make use of it for his own purposes and that he was not negligent in its care, as stated in Hilchot She’ilah UFikadon 4:1.

The situation occurred in a public thoroughfare, where many people are present.

This ruling is based on the statements of Issi ben Yehudah (Bava Metzia 83a) who explains: Exodus 22:9-10 states: “If there is no witness, the oath of God will be between them.” Implied is that when the matter could be observed by a witness, such testimony is necessary and we cannot rely on an oath.

The fact that there are no witnesses who know about the matter leads to the conclusion that the claim is false.

The Kessef Mishneh states that from the Rambam’s wording- although it is somewhat difficult to justify such a decision – it appears that if the purchaser had not given the agent funds, but instead told him to purchase the article with his own funds and he would repay him later, the purchaser could refuse to accept the wine.

The purchaser claims that the agent is responsible, for he probably bought wine that was already turning to vinegar. The agent, by contrast, claims not to be responsible, stating that the wine turned to vinegar while in the purchaser’s possession and it is his misfortune.

The commentaries debate whether or not this statement also includes the repayment of money and the return of entrusted articles. The Shulchan Aruch (Choshen Mishpat 187:3) quotes the Rambam’s words verbatim. The Tur and the Ramah maintain that these instances are not included for there are people who seek to repay debts privately.

See Chapter 9, Halachah 1.

E. g., sharecroppers and guardians.

See Hilchot Sechirut 3:1.