Sheluchin veShuttafin - Chapter 3

Note Halachah 6 – which mentions certain restrictions on exercising power of attorney with regard to movable property, and Halachah 7 – which speaks about situations involving loans of money.

The laws that follow are the source for the contemporary Torah laws governing relationships between lawyers and their clients. For the lawyer is an agent charged with expropriating money from a defendant.

Employing a kinyan sudar (Kessef Mishneh, gloss on Halachah 7). The Siftei Cohen 122:13 differs and requires a kinyan agav when transferring money.

I.e., wording that implies that the agent acquires the property.

I.e., a deed with such wording (Kessef Mishneh).

For he is an agent, riot a partner.

The Ra’avad states that if the principal mentions that he is granting the agent a fraction of the entire amount, he may enter into litigation concerning the entire amount. If, however, the principal mentions a specific sum, the agent may enter into litigation with regard to that sum alone. The Shulchan Aruch (Choshen Mishpat 122:5) quotes the Rambam’s wording, but also cites the Ra’avad’s view.

In one of his responsa, the Rambam writes that this applies only when the partners are plaintiffs. If they are defendants, they must defend their interests together, or every partner must enter into litigation regarding his own share. There is no concept of a defendant granting another person power of attorney. See also Sefer Me’irat Einayim 122:18.

This refers to nichsei m’log – property that belongs to the woman and is returned as is, in the event of the husband’s death or divorce. Though the husband has the right to use the property, he is not the owner. As long as the suit concerns the property itself, the woman must be the one who brings it.
Different laws apply to property that is nichsei tzon barzel – property that the wife brought to the household, but for which the husband agreed that he (or his estate) would pay a specific sum in the event of divorce or death. In such an instance, the husband is considered to be the owner of the property (Beit Shmuel 85:8).

According to the Rambam, the husband is given the right to protest the sale only when there is actually produce in the field. According to Rabbenu Asher (Gittin 48b), since ultimately the field will bring forth produce, and that will belong to the husband, even though there is no produce growing on the field at the time, the husband may sue concerning the produce. And since he is suing concerning the produce, he may also sue concerning the field itself.
This difference of opinion has been perpetuated in later generations. Sefer Me’irat Einayim 122:16 quotes Rabbenu Asher’s view, while the Siftei Cohen 122:33 follows that of the Rambam.

As explained in Halachah 7, the laws that apply to money are different from those that apply to other forms of property, with regard to its collection by a person who is granted power of attorney. No such distinction applies with regard to a person appointed as an agent.

The witnesses are not necessary if the principal tells the defendant to send the object or the money with the agent (Siftei Cohen 122:2). This law applies even if the principal did not tell the debtor directly. See Shulchan Aruch (Choshen Mishpat 121:2).

The Shulchan Aruch (Choshen Mishpat 122:1) explains that the rationale is that if the principal dies before the agent is given the funds or the article, and then the funds or the article is taken from the agent by forces beyond his control, the debtor is responsible. For the heirs did not appoint the agent in that capacity.

Whether it was lost or stolen, or destroyed by factors beyond the person’s control.

For the agent is considered in place of the principal.

This does not apply with regard to money, as stated in Halachah 7.

Rashi, in his commentary on Sh’vuot 31a, explains that the Talmud applies such a pejorative because the person becomes involved with a dispute to which he has no connection. Had the agent not pursued the claim, perhaps the defendant would have been able to come to an understanding with the principal, and the anguish of legal proceeding could have been avoided. (See also Hilchot De’ot 5:13.)
The Ra’avad qualifies the Rambam’s statement, explaining that it applies only when the principal and the defendant both live in the same city. For in this instance, the principal should really prosecute his claim himself. If, however, the principal and the defendant live in different cities, the agent is doing the principal a service, and he is considered to be one who saves his colleague’s money.
In his Kessef Mishneh, Rav Yosef Karo extends this concept, stating that it also applies when the defendant is a difficult person to deal with, and the principal is incapable of securing his property himself. In his Shulchan Aruch (Choshen Mishpat 123:15), he quotes only the Ra’avad’s view.
The Ramah (basing himself on the statements of Rav Yosef Karo in his Beit Yosef, but extending them further) states that the intentions and the character of the person securing power of attorney is the determining factor. If he is a generous person, whose intent is to help the principal, he is considered to have performed a mitzvah. If, however, he is a strong-willed person, who is seeking to enter a dispute in which he is not involved, the words of censure cited by the Rambam apply.
See also the Be’er Heitev (Choshen Mishpat 123:24) who states that when a person exercises power of attorney for a set fee, the negative statements made above do not apply.

Different rules apply with regard to landed property. Even if the defendant has denied that the property belongs to the principal, power of attorney can be granted, for landed property can never be stolen. Instead, from a legal perspective, the land always remains in the possession of its owner. Ownership of it can be transferred when power of attorney is granted, and thus the denial is not of substance [Shulchan Aruch (Choshen Mishpat 123:1); Sefer Me’irat Einayim 123:1].

I.e., the person denied the obligation before the power of attorney was granted. The laws that apply if he denies the obligation after the power of attorney was granted are discussed in Halachah 11 (Ra’avad, gloss on Halachah 11).

Rabbenu Tam differs with this approach and states that we are not concerned with the fact that the person appears to be making false statements and allows power of attorney to be granted in such a situation. (See also the notes at the conclusion of the following halachah.)

The Siftei Cohen 123:12 explains that according to the opinion of Rabbenu Tam (see the notes at the conclusion of the following halachah), which is accepted by the Ashkenazic authorities, power of attorney can be granted to have an oath administered.

I.e., the responsibility to take an oath.

See Hilchot Mechirah, the conclusion of Chapter 5, where the Rambam explains that a kinyan must be associated with an object of substance. Since a kinyan is necessary to grant power of attorney – otherwise the defendant can tell the agent, “You have no connection to the case” (Halachah 1) – there must be an article of substance involved.

Which is the ordinary manner of formalizing business arrangements.

See Hilchot Mechirah 6:1; see also Chapter 4, Halachah 1.

For a kinyan agav is effective regardless of the size of the parcel of land involved.

See Hilchot Mechirah 6:7.

Note, however, the conclusion of the halachah, which mentions the ruling introduced by the Geonim that allows such a practice.

In contrast to an entrusted object that is given for safekeeping.

All that exists is a debt. This applies even if the money was not actually spent. See Hilchot Ishut 5:13.

For a kinyan must involve an article of substance.

See Hilchot Mechirah 6:8.

See Ibid.: 11.

Even according to these authorities, a kinyan chalifin is not effective, and a kinyan agav must be employed, enabling the agent to acquire the debt by virtue of his acquisition of the land. Since the principal does not have land in his possession, he may rely on his portion of land in Eretz Yisrael.

For according to our Sages, every Jew owns at least four cubits of land in Eretz Yisrael.

The Kessef Mishneh explains that this refers to the concept stated immediately beforehand: that even if a person does not possess land, he may rely on his portion of land in Eretz Yisrael. It does not apply to the first statement, that power of attorney can be given to collect a loan.

The Kessef Mishneh explains that the Rambam’s intent is that perhaps the person is descended from converts, who do not have an ancestral heritage in Eretz Yisrael.

And therefore, he cannot transfer ownership of it to others.

See Halachah 5.

This applies to a situation where the principal cannot – e.g., the note is not in his possession – or does not desire to transfer ownership of the promissory note by writing a deed transferring ownership of it, and giving it to the agent. See Ra’avad.

Since these two halachic institutions create a lien on the debtor’s landed property, the denial of such a debt is considered equivalent to a denial of a claim against landed property, against which power of attorney is effective.

The Tur and the Shulchan Aruch (Choshen Mishpat 123:1)] state that power of attorney can be granted in such an instance even according to Talmudic Law (i.e., doing so is not merely an ordinance of the Geonim).
The Siftei Cohen 123:7, however, states that there is not a difference of opinion between the Rambam and the Tur on this matter. When the principal is willing to give the agent the actual promissory note, it is possible to compose a deed granting him power of attorney according to Talmudic Law. And when he is not willing to – or cannot – give him the note, he can grant him power of attorney according to the ordinance of the Geonim.

The rationale is that in most instances a person will seek to protect the money he lends and have the loan supported by the testimony of witnesses or by a promissory note. Indeed, Jewish law requires that such precautions be taken. (see Hilchot Malveh ULoveh 2:7). Our Rabbis did not institute ordinances for abnormal circumstances. Thus, the law remains that power of attorney cannot be granted, as stated in Halachah 6 (Sefer Einayim 123:5).
The Tur differs and quotes the opinion of Rabbenu Tam, who maintains that power of attorney can be granted concerning all obligations. Rabbenu Tam differs with regard to the very foundation of the Rambam’s logic – that power of attorney can be granted only when one transfers ownership of the article. According to Rabbenu Tam, granting power of attorney is like conveying any other agency. Therefore, all the restrictions mentioned by the Rambam do not apply.
The Shulchan Aruch (Choshen Mishpat 123:1) quotes this view and the Rambam’s view, and the Ramah states that it is customary to follow the Tur’s ruling.

Even according to the Rambam, who requires that ownership of the article be transferred, a person who is granted power of attorney is primarily an agent. And the agency granted to an agent can be retracted. (See also Halachah 10, which also mentions the nullification of power of attorney.)

See Hilchot Sechirut 1:4, where this argument is employed in a different context.

I.e., the principal gave the agent power of attorney to expropriate an article, and the agent sold it to the person holding it (Radbaz).

Since the person granted power of attorney is an agent, this principle, stated in Chapter 1, Halachah 2, applies.

See Chapter 1, Halachah 3.

If, however, the defendant knows that the agency was nullified, he does not have to give him the article (Siftei Cohen 123:14).

As stated in Halachah 5.

He denies the claim after the power of attorney was issued. The laws governing a denial beforehand are mentioned in Halachah 6, as noted by the Ra’avad and the Kessef Mishneh.

There are two possible explanations to Levi’s demand:
i) The debt was supported only by a verbal commitment. Thus, the defendant is required to take a sh’vuat hesset, and then he is freed of his obligation. He may, however, reverse the obligation and give the plaintiff the option of taking an oath and collecting his claim (Hilchot To’en V’Nit’an 1:6).
ii) The debt was supported by a promissory note. For the defendant can require a person collecting a promissory note to take an oath before collecting (Hilchot Malveh V’Loveh 14:2).

We fear that Levi is requiring the oath merely to postpone the settlement of the claim and keep the money in his possession. We hope that by requiring him to relinquish possession of the article, we will motivate him to deal with the agent and negotiate a satisfactory arrangement (Kessef Mishneh).

The Shulchan Aruch (Choshen Mishpat 123:8) states that we should establish a time limit in which the plaintiff must appear in court. If he does not appear before the end of the time set, the money is returned to the defendant.

As explained in Hilchot To’en V’Nit’an 1:11, as a safeguard for the defendant, the Geonim ordained that whenever a person is required to take an oath, he may have a ban of ostracism issued, warning the plaintiff against requiring him to take an unnecessary oath.

The situation mentioned in the first clause revolves around a requirement mentioned by the Talmud itself. Therefore, the money is held in court until Shimon satisfies Levi’s demands. The situation involved in this clause, by contrast, involves an ordinance of the Geonim, which is of far less legal power.