Qui facit Per Alium Facit Per Se

My weekly halachah column for parashas Korah:

In parashas Korach, we are commanded to support the Cohanim (priests) and Leviim (Levites) by the donations of terumah and ma’aser respectively, and the Leviim in turn are commanded to give a tithe of their ma’aser to the Cohanim. This latter injunction is expressed by the words (Bemidbar 18:28): “So shall you, too, raise up the gift of Hashem from all your tithes that you accept from the children of Israel”. While the simple sense of the phrase “you, too” apparently refers to the parallelism between the initial ma’aser (tithe) of the Israelites and the “tithe from the tithe” of the Leviim, the Talmud (Kidushin 41b) understands it hermeneutically as an allusion to the possibility of agency: a Levi may either separate his “tithe from the tithe” himself, or he may appoint an agent to do so on his behalf. This is one of several sources for the halachic doctrine of agency.

One exception to this doctrine is where the task being delegated to the agent is sinful. A principal is not liable for the criminal consequences of his agent’s action: “There is no agent for a sinful matter”, since “the words of the master [i.e., Hashem] and the words of the disciple [i.e., the human principal], to whose words does one listen?” This seems to imply that halachah has no notion of criminal conspiracy, and indeed, the Rema (Shulchan Aruch CM 348:8 and 388:15) rules that one who merely commissions a theft or other tort but does not participate in its actual perpetration has no liability. He does, however, allow for certain exceptions, such as where the agent has an established history of engaging in the sort of tortious conduct in question, since in this case “it is widely known that he does not listen to the words of the master”. The Shach (CM siman 182 s.k. 1, siman 348 s.k. 6, siman 388 s.k. 67), however, disagrees, repeatedly insisting that as a matter of normative halachah, the inapplicability of agency to sinful conduct is absolute and without exception.

My weekly parashah lectures (with accompanying handouts), on the general topic of agency in halachah, are available at the Internet Archive.

This entry was posted in audio, B&L, HTVHM, Live, Parashah (K), Parashah (Y), publications, אבן העזר, חושן משפט and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *