Kiddushin - Daf 42
- The זכייה of the נשיאים on behalf of the members of their שבט
Having provided sources for the principle of shelichus, the Gemara questions Rav, who offered a different source: The passuk says: ונשיא אחד נשיא אחד ממטה – “one prince from each tribe to apportion the land.” Each nasi acted on behalf of his shevet to apportion its land. Why did Rav not derive shelichus from the sources brought earlier (divorce and korbanos)? The Gemara counters that the division could not have been made through shelichus, since some recipients were minors, who cannot appoint sheluchim. Rather, Rav had quoted this passuk as a source שזכין לאדם שלא בפניו – that one may benefit a person even in his absence (without appointment as a shaliach), which explains how they apportioned land even to minors. This explanation is also challenged, since the division may be detrimental to some recipients, since one may prefer a different type of land than he received!? The Gemara concludes that Rav derived that when orphans come to divide their father’s assets, Beis Din appoints administrators for each one, לחוב ולזכות – to disadvantage and advantage them, which the Gemara clarifies to be: לחוב על מנת לזכות – he is authorized even to possibly disadvantage them, provided that the purpose is to advantage them. Rashi indicates that the zechiyah principle may also be derived from this passuk.
- Brothers dividing assets are like purchasers regarding a discrepancy in the division
Rav Nachman said: האחין שחלקו הרי הן כלקוחות – Brothers dividing assets are like purchasers, and therefore follow their laws where shares are unevenly divided: פחות משתות נקנה מקח – If the discrepancy is less than a sixth of his share, the transaction of division is effective. יתר על שתות בטל מקח – If it is more than a sixth of his share, the transaction is void and the assets are re-divided. שתות קנה ומחזיר אונאה – If it is exactly a sixth, the transaction is effective, but the discrepancy must be returned. Rava adds that if the disadvantaged brother appointed a shaliach to represent him, the transaction is void even for a smaller discrepancy, because he can say: לתקוני שדרתיך ולא לעוותי – I sent you for my benefit, not for my harm, and the shelichus is voided. On the other hand, if they originally said: "ניפלוג בשומא דבי דינא" – Let us divide by Beis Din’ appraisal, then even a greater discrepancy does not void the division. If the divided assets were land, the laws of אונאה do not apply, and finally, if the division was made by measurement (rather than value), then even a minimal error voids the transaction.
- אין שליח לדבר עבירה
Having established that a shaliach’s action are attributed to his appointer, the Gemara wonders about a Mishnah which teaches that if one sends a fire with a mentally competent person, that second person is liable for any damages, and the first is exempt. Why do we not apply the principle of shelichus, and hold the first person responsible? The Gemara answers: דאין שליח לדבר עבירה – because there is no shaliach for a transgression, because we say: דברי הרב ודברי תלמיד – in choosing between the words of the Master (Hashem) and the words of the disciple (the sender), דברי מי שומעים – whose words do we obey? Certainly, the Master’s! Since he should not have listened to the sender, the shelichus is invalid. This is challenged from a Mishnah which teaches that one who sent a shaliach to spend money which was discovered to be hekdesh, the sender is liable to me’ilah and not the shaliach!? The Gemara answers that me’ilah is unique because we drive with a gezeirah shavah from terumah (חטא חטא) that shelichus is effective. The Gemara proceeds to explain why we do not apply this law to other עבירות.
