Yeshivat Kerem B'Yavneh

Migo D'zachi L'nafshei

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By: Rav Dovid Kav

(Written by Hillel Rapp based on a shiur klali)

The first Mishna in Bava Batra rules that if two people are holding on to a cloak, they divide it between them. The Gemara (8a) attempts to derive a new ruling from this case. It says, "One who lifts a found object intending to acquire it for his friend, his friend would acquire it." This must be so, for otherwise our Mishna could not be understood, since a kinyan hagbaha (acquisition by way of lifting) is valid only if the entire object was lifted off the ground for the perspective owner. However, if only half were lifted and the other half remained on the ground, no acquisition can take place. Thus, in our Mishna, where two people lift a cloak, if each person had no ability to acquire the portion that he was holding also on behalf of his friend, then that portion would be as if it were still on the ground regarding the other person. Neither would then be lifting the entire cloak as necessary for a kinyan hagbah, and neither would acquire the cloak, so how can they divide that which they do not own? Therefore, we must conclude that it is possible to acquire a found object for another, so that when they each lifted their portion they had in mind not only to acquire it for themselves, but also for the other person. Thus, the object was completely lifted on behalf of both of them, and so they acquire it jointly and may divide it.

Why does the Gemara feel it necessary to tell us this that one may acquire a found object for his friend (as if we would not know so otherwise)? Rashi explains (based on the Gemara 10a) that one may only acquire an object for his friend if this poses no loss to others. You might logically assume that a person who acquires a found cloak on behalf of his friend is causing others to lose, in that now others may no longer acquire it. Thus, our Mishna tells us otherwise, that one may acquire an object for his friend despite the potential loss of others. Tosfot explains this using the following logical idiom: "migo d'i ba'i zachi l'nafshei, zachi nami l'chavrei" - "since one has the ability to acquire [the object] for himself, he may also acquire it for his friend." Presumably, the idea is that since he can take it for himself anyway, it is not really considered a loss for others.

Rava (8a) then questions this deduction. Perhaps one may not acquire an object for his friend (and the logic of Tosfot would not be correct), and the reason that the two people in our Mishna are able to acquire the cloak together is based on a stronger logical basis: "migo d'zachi l'nafshei, zachi nami l'chavrei." This means that when I actually acquire something for myself, I may also acquire it for my friend (such as the case in our Mishna of the two acquiring the cloak together). However, one may not acquire an object completely for another.

The Gemara then goes on to prove that this is a valid legal principle. When someone sends an agent to steal for him, only the agent is liable and not the sender, because "ain shaliach l'dvar aveira" (the Torah does not recognize agency when it comes to sinning). But if partners conspire together to steal -- both are liable. Rashi explains that one of the partners stole for both himself and the other, similar to the case (Bava Kama 78b) of partners who stole an animal and one proceeded to slaughter it, where they are required to pay four or five times the animal's value. Apparently, even the one who did not physically take the object acquires it through his partner, who served as his agent. Thus, we see that when one acquires an object for himself, he may acquire it also for his friend, even in circumstances of violation. Indeed, Rashi (in Bava Kama) questions why they are both liable for slaughtering. How come we do not apply the principal of "ain shaliach l'dvar aveira" here when one slaughters for his friend as well? He answers that there is a specific exception in the case of slaughtering that the Torah recognizes agency in order to make the partnership liable.

Tosfot, however, challenges Rashi's understanding that our case is based on the case of a partner who steals and slaughters. How can our Gemara use the liability of partners in the specific case of slaughter as proof to the concept of "migo d'zachi l'nafshei zachi nami l'chavrei?" Isn't that because of the specific exception allowing agency for slaughter (and not because of the concept of "migo d'zachi")? He explains, therefore, that our Gemara's case of partners who steal is not rooted in the case in Bava Kama of partners who steal and slaughter. Rather, our case refers to partners who actually steal an object together, i.e., they both physically picked up and stole the object together (each stealing part of it for himself and his friend), unrelated to stealing for the purpose of slaughtering. The Maharam explains that Tosfot understands that both partners would be liable in this case based on simple logic. Presumably he means that if two people who steal would not be liable, then people would be able to steal with a partner and completely avoid liability! Thus, we must employ the concept of "migo d'zachi l'nafshei zachi nami l'chavrei" to make both partners liable.

The question can now be asked, what would be the halacha according to Tosfot if someone sends an agent to steal an object for him, and the agent does so with the intent of acquiring the object for both himself and his sender? Although it might be thought to employ the concept of "migo d'zachi" and make the sender liable based on the agent's acquisition, this doesn't seem to fit with the Maharam's understanding of Tosfot. As we explained, the concept of "migo d'zachi" is only employed as a solution to the problem of completely exempting partners who steal, and therefore there would be no reason to apply it here, since the agent, at least, would be held liable! However, the logic remains difficult. Since the principle of "migo d'zachi" is valid to make two partners who steal together liable, why shouldn't this principle also make the sender liable when the agent intends for both himself and the sender?

To answer this, let us first introduce a question of the Ketzot Hachoshen (348:3) on Rashi in Bava Kama: Why must Rashi explain that the reason that partners who steal and then slaughter are liable is because of an exception that allows agency, and not simply because of the concept of "migo d'zachi?"

The Ketzot posits that the concept of "migo d'zachi l'nafshei zachi nami l'chavrei" can be applied only to gaining acquisition or rights in an object, and not for doing an action on the object. When partners slaughter an animal, thereby becoming liable the four or five payment, there is no form of acquisition done. There is only an action being carried out on the animal (slaughtering it), and an action is not subject to the concept of "migo d'zachi l'nafshei zachi nami l'chavrei." Therefore, Rashi must explain that the reason why both partners are liable when one of them slaughters is due to an exception in the general rule, allowing an agent to make his sender liable here despite the violation.

We must introduce a second principle. The Gemara (10b) learns that a person would be liable for stealing an object by acquiring it through his roof, courtyard, or enclosure (kinyan chatzer). Rashi explains that this would only happen if the animal entered his courtyard and he proceeded to lock the gate with the animal inside. The Ketzot (ibid.) asks on this Rashi: Since a person's courtyard can acquire something for him provided he wants it, all he should have to do here is to desire to acquire and steal it when the animal comes into his courtyard. Why does Rashi say that he must physically lock the gate to steal it? He answers that there are two components necessary to make a person liable for stealing. He must acquire the object he is stealing, and he must also perform some sort of action in the stealing process. So here, while theoretically it would have been enough just to express his will to acquire the animal in his courtyard, he cannot be made liable for stealing it until he performs an action as well. Thus, Rashi explains that he must physically lock the gate after the animal enters.

Based on these two points, we can answer our question of why Tosfot would not make a person liable when an agent steals something also on his behalf. Although the agent can theoretically acquire the object for himself and the sender by way of "migo d'zachi l'nafshei zachi nami l'chavrei," he still cannot perform any action on behalf of the sender (as we explained earlier that "migo d'zachi" only applies to rights or acquisition, but not to actions). Since the sender is now lacking an action in stealing the object, he is not liable. It is now also clear why Tosfot understands in our Gemara that when two partners steal, they each need to do the actual stealing together, since they both need an action to be liable, and the concept of "migo d'zachi" just gives each of them rights of acquisition in the entire object (when they each take it for themselves and the other). When they steal together, however, they each do an action (in the processes of stealing) as well as acquire the object, and thus are liable for stealing.

However, this leaves us with a question on Rashi who understands our Gemara's case of partners who steal as being an instance where only one of them does the actual stealing for himself and his friend, and yet both are liable. How, according to the Ketzot's understanding (that an action is required to make someone liable for stealing, and there is no "migo d'zachi" regarding action), can both partners be liable when only one did the action of taking the object?

Perhaps we could answer that, indeed, stealing does need both an action and acquisition. However, the action itself just has to have been carried out in order to initiate liability, and is not dependent on who does it. Since they both acquire the object (by way of "migo d'zachi," as we explained), the action required to complete the stealing process has to be done by only one of them. I.e., the action is not related to the partners themselves (in that they each must take an active role), but rather to the object being stolen, and therefore it is sufficient to have been accomplished by even one of them to make both liable. [The case of slaughtering, however, would be different. The penalty to pay four or five times the stolen animal's value is not dependent on any acquisition being done, just on the action of slaughtering. Since the action itself is all that is necessary, we would not say that it is enough for only one to have slaughtered were it not for the specific exception.]

In conclusion, we can summarize the basic disagreement between Rashi and Tosfot in our Gemara's case of partners who steal as follows: Who needs to do the action of stealing to make both partners liable? Rashi claims that it only has to be done by one of them, while Tosfot says they must each take part in the action. This disagreement can be further illustrated in a case where an animal enters the courtyard owned by two partners. Although they may both acquire it with their intent by way of kinyan chatzer, there still needs to be an action (such as to lock the gate) to make them liable as thieves. According to Rashi, only one partner has to go and lock the gate. According to Tosfot, however, both must go, and should only one go, only he would be liable.

What remains to be explained is the logic behind the Ketzot's principle that "migo d'zachi" applies only to acquisitions and not to actions. What exactly is the difference between them? We can perhaps explain this by understanding a basic difference between agency for an action and agency for an acquisition. If, for example, someone would send an agent to kill, the action is accomplished irreversibly, and the only question is whom to hold accountable for the action. Since we do not recognize agency for sinning, the halacha is that the sender cannot be held liable and only the agent is accountable. Regarding acquisition, however, the significance of agency not merely to whom to credit the acquisition. If the agency is disallowed, as when an agent attempts to acquire an object where it causes others a loss, the entire acquisition is annulled as if it were never done (were it not for the concept of "migo d'zachi," i.e., when he does not intend also for himself). Similarly, if a Kohen sends a Yisrael to betroth a divorced woman for him (B.M. 10b), the issue is whether the act of kiddushin is valid at all.

Thus, when the action remains done regardless of whether we recognize the agency or not, the only issue is to whom to attribute the action. According to the opinion that there is agency even for prohibitions, the sender is responsible, and according to the halacha that there is no agency, the agent is held responsible. However, regarding agency of acquisitions, the status of the entire act will be invalidated if agency is denied (since the mere action of lifting an object is meaningless without the accompanying acquisition). Here, the idea of agency is not that we consider it as if the sender himself did the action. Rather, acquisition through agency means that the act of acquisition that the agent does, instead of acquiring for him, acquires on behalf of the sender. In other words, the agent passes on the rights of acquisition to the sender. [To illustrate, what would be the halacha if the agent would attempt to acquire an object for someone through kinyan chatzer in the courtyard of the agent? If we were to assume that we relate the very act of the agent to the sender, the sender would not acquire the object, since now the object is in someone else's (the agent's) courtyard. However, based on what we explained, that the act itself is done by the agent, just that the resulting rights are transferred to the sender -- then he would acquire the object.

Thus, when an agent attempts to acquire only on behalf of his sender, if he is unable to, such as when it causes others a loss or if he is sent to betroth a divorced woman for a Kohen, the problem is not in associating the action to the sender, but rather that there is no act of acquisition and no act of kiddushin at all. Therefore, if he acquires both for himself and for others, then even if the acquisition is disallowed for the other, e.g., it causes others a loss or involves an aveira, still, the act of the agent remains a valid act insofar as himself! Since the act now remains with halachic status, it can be transferred to the sender based on the rules of zachin. [In other words, the principle of "migo d'zachi" works only to give significance to the action of the agent as an act of halachic status, and then the acquisition can relate to the sender, as well, on its own.]

Shiur ID: 4017

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