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
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
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
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.)