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Nedarim, 36

NEDARIM 36 - dedicated anonymously in honor of Kollel Iyun Hadaf, and in honor of those who study the Dafyomi around the world.


QUESTION: The Gemara assumes that a Kohen is able to create a Pesul of Pigul only if he is serving as the Shali'ach of the owner of the Korban. However, there is a rule that one can create an Isur on someone else's object even without his friend's knowledge. If so, why is it assumed that only if the Kohen is the Shali'ach of the owner can he make it Pasul?


(a) The RASHBA writes that once the Kohen sacrifices the animal with the intent of Pigul, he is no longer acting in the capacity of the Shali'ach of the owner, since he is doing something that the owner does not want. Therefore, the Korban is improperly slaughtered, and since Pigul can take effect only if the Korban was properly slaughtered (aside from the thought of Pigul), it does not take effect.

(b) The RAN says that the Kohen *can* intentionally make it Pigul against the will of the owner, since, as we mentioned, one does have the power to do an act that will make his friend's object Asur. Therefore, there is no proof from the fact that the Kohen can invalidate someone's Korban through Pigul that he is acting as Shali'ach of that person. Rather, the proof of the Gemara is only from a case where the Kohen *unintentionally* makes it Pasul through Pigul. In such a case, we assume that the Kohen's intent is only to carry out his Shelichus, and in as much as he is not a Shali'ach, his thoughts do not affect the Korban.

The Ran and Rashba disagree whether the fact that the owner does not want the Kohen to slaughter his animal with improper thoughts is a reason to say that the Shechitah is Pasul, or is only a reason to say that the thoughts of the Kohen do not take effect.

The MINCHAS BARUCH (#20) explains that everyone agrees that when the Kohen does not carry out his Shelichus properly, the Shelichus is annulled. The reasoning of the Rashba is that the Shechitah is Pasul because there is a need for the Kohen to be a Shali'ach of the owner of the Korban in order for it to be valid; if the Kohen is not the Shali'ach (because the Shelichus has been annulled), the Korban is not valid. The Ran, on the other hand, learns that although there is a Mitzvah for the Kohen to be the Shali'ach of the owner, the Korban is valid even if the Kohen is not the owner's Shali'ach (but the Pigul that he does as a Shali'ach will not take effect, as we mentioned above).

An alternate explanation of the Ran is that the owner does not want the Kohen to be a Shali'ach to have thoughts of Pigul (and therefore those thoughts do not take effect), but at the same time he does not want to annul the entire Shelichus, and thus the Kohen remains a Shali'ach in respect to sacrificing the Korban.

(The ROSH writes that a Kohen cannot invalidate a Korban with Pigul without being a Shali'ach of the owner, since one does not have the power to prohibit someone else's object. Since the Gemara in Chulin says that one *can* prohibit someone else's animal by slaughtering it for Avodah Zarah, it is not clear why, according to the Rosh, the Kohen cannot make it Pigul.)


QUESTION: The Gemara discusses whether one may separate Terumos and Ma'aseros from his own produce on behalf of his friend's produce, so that through his act of separating Terumah, his friend will not be required to separate it from his own produce. The Gemara explains that there is reason to say that this would work, based on the principle of "Zochin l'Adam she'Lo b'Fanav" -- one may make a transaction that is for his friend's benefit without his friend's knowledge.

TOSFOS and the RASHBA ask that the Gemara in Bava Metzia says that Terumah can be separated via a Shali'ach only if he is appointed with the knowledge of the owner of the produce. If so, how can our Gemara suggest that one may separate Terumah for his friend based on the principle of "Zochin l'Adam," if the owner's knowledge is lacking?

ANSWER: TOSFOS and the RASHBA answer that the owner's knowledge is necessary only when he separates the Terumah for his friend from his *friend's* produce. Since he is taking fruits from his friend's produce, it is necessary that his friend know about it and consent. Our Gemara is discussing a case where he is separating the Terumah from his *own* produce on behalf of his friend's, and therefore his friend's knowledge is not required, since the act is beneficial to him. HALACHAH: May a Jewish worker separate Chalah from the dough of his employer without his employer's knowledge?

The REMA (YD 328:3) cites the TERUMAS HA'DESHEN who says that if the dough will spoil if not baked, then it is permitted to separate Chalah from the dough without explicit permission from the owner. He explains that since it is beneficial for the owner, the worker may act as his Shali'ach even without being appointed, based of the principle of "Zochin l'Adam she'Lo b'Fanav."

The KETZOS HA'CHOSHEN (243:8) disagrees with this ruling. He cites the Tosfos and Rashba that we quoted, who write that as long as one is taking Terumah for his friend from his friend's produce, he is required to be appointed by the owner. Only when he is taking it from his own produce does the law of "Zochin" apply. The Ketzos explains that the law of "Zochin" only applies when he is actually giving something to his friend. If he is only performing a beneficial service for his friend, then he must be appointed by his friend as a Shali'ach. Therefore, even in a case where it is clear that his friend is interested in the transaction taking place, the law of "Zochin" does not apply.

How, though, did the Terumas ha'Deshen understand the Tosfos and Rashba? The Terumas ha'Deshen seems to have understood that these Rishonim are not defining the laws of "Zochin." Rather, they are just explaining that the act of taking Terumah for one's friend is not considered a clearly beneficial act and therefore Shelichus is necessary. Only when he takes the Terumah from his own produce do we say that it is a real Zechus and therefore the laws of "Zochin" apply. According to this logic, there exist situations where one is just making a transaction for his friend without giving him anything tangible, and yet it is a real Zechus and the principle of "Zochin" applies. The case of taking Chalah is an example of such a situation, since Chalah must be separated at this point and the owner has nothing to lose because there is a standard amount that everyone separates as Chalah nowadays.

TOSFOS here (36b, DH Mi Amrinan) supports this approach. Tosfos write that our Gemara is the source for the concept that "Zechiyah mi'Ta'am Shelichus" -- Zechiyah, conducting a transaction on behalf of someone else without his knowledge, works because of Shelichus. The Ketzos ha'Choshen, on the other hand, understood that the other Tosfos maintains that although there is a rule that Terumah and Shelichus require the knowledge of the owner, when it works through Zechiyah there is no need for Shelichus or the owner's knowledge. If Zechiyah in the case of Terumah is not governed by the rules of Shelichus, then how can Tosfos say that this is the source for "Zechiyah mi'Ta'am Shelichus?"

The Terumas ha'Deshen understood that the other Tosfos is only saying that separating Terumah for one's friend is not a real Zechus and therefore he needs to be appointed by his friend to do so. When there is a real Zechus, the requirement for knowledge is fulfilled in that it is clear that the owner *wants* this transaction, even if he does not actually know about it. Based on this, Tosfos here proves that Zechiyah must be working because it is a form of Shelichus, since it satisfies the requirement that the owner "know" (i.e. want) that someone else is separating Terumah for him.

(See also Tosfos in Kesuvos 11a, who writes that Zechiyah works because "we can testify that the owner wants it." This further supports the idea that the concept of Zechiyah is based on the Shelichus being valid since there is implicit knowledge of the owner and there is no need for him to actually be aware of the transaction being done for his benefit.)

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