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Thought for the Day: אין שליח לדבר עבירה -- Why not?

And now for another in the "obviously because it's bad! oh yeah, sez who?!" series.  (The rest of the series -- all one of them -- is אין לבטל איסור לכתחילה -- Why Not?)

Clearly it just seem wrong to designate a  שליח לדבר עבירה/agent to sin for you.  None the less, Chazal (TB Bava Metzia 10b) were interested enough to explore the issue.  To understand the discussion, we need to be more precise about what Chazal intended when the told us not to do that.  Moreover, just being a bad idea is no reason to enact a rabbinic decree.  It must be something that people would otherwise want to do and would also rationalize it is "ok, even though it smells bad".

In fact, is is a mistranslation of אין שליח לדבר עבירה to render: one is not allowed to assign an agent to transgress a sin.  An accurate translation is just what it says, "there is no such thing as an agent to commit a sin".  In the vernacular, "I was only following orders" is not a valid defence.  If B. Bunny asks D. Duck to rob a bank for him, for example; payment for damages and return of any stolen objects would rest solely on Mr. Duck.  Why?

The gemara gives two explanations.  First: since both the שולח/sender and the שליח/delegate are both under the same set of rules.  As Chazal say pointedly: דברי הרב ודברי התלמיד מי שומעים/when the rav says one thing and the student says another; to whom do you listen?  Second: both the שולח/sender and the שליח/delegate have free will, so each is culpable for his own actions.

I was really tickled by this gemara because as soon as I read the first (which the usually quoted reason), I said to myself, "Ah.... of course, since they both have free will."  Then I saw the second explanation and realized that I had missed an important point, since I had always thought of them as saying the same thing.

So what's the difference?  The gemara gives two examples: (1) a kohein assigns a non-kohein to act as his agent for a marriage to a divorced lady.  (2) a man assigns a woman to cut the פאות/sidelocks off a minor boy.  In both cases the sendee is not transgressing a sin; hence, if the reason is דברי הרב ודברי התלמיד מי שומעים, then the agent hasn't done anything wrong and it is the sender who will have to do תשובה/repent.  However, if the reason is that both the sender and sendee have free will, then the sendee will have to do תשובה/repent.  Also note, that according to both opinions that if the agent is forced, the the sender is always culpable.

I tell my grandchildren that I am not ticklish, which is actually true regarding their attempts to tickle me.  They, however, are all quite ticklish and young enough to still like that game.  But I really am tickled when a gemara smashes another one of my preconceived -- and often wrong -- notions.  Which explains why you'll often see me chuckling while learning.  I don't expect to ever get old enough to not enjoy that game.


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