6

There's a Talmudic concept known as "זכין לאדם שלא בפניו," that one can acquire something on behalf of another, even if that other person does not know that this is happening, so long as it's a זכות, a beneficial thing, that people would want. If it's a חוב (something detrimental), or if the other person protests, then we say "אין חבין לאדם אלא בפניו," we only create debt for a person (or do something detrimental) in front of him -- in other words, only with his knowledge/consent. (We also don't let someone use זכין where it's a מקום שהוא חב לאחרים, where others will lose out from this זכין arrangement.)

If some קנין (acquisition) is done through זכין לאדם שלא בפניו, does the מזכה (the guy doing the acquisition) need to be aware of the fact that he is doing something through זכין לאדם שלא בפניו, or is it possible to do something through זכין even without the מזכה being aware that he is doing this?

One possible instance where this would be the case is found on Gitin 11b, where the principle of זכין is used for freeing a slave -- we say that since freeing a slave is a זכות, if a slave-owner gives a גט שחרור ("divorce" document for slaves) to a messenger to deliver to a slave, the slave is free once the document is in the hands of the messenger, because "זכין לאדם שלא בפניו."
However, a friend pointed out that unless we're dealing with an especially astute messenger, he doesn't have in mind to acquire the document on behalf of the slave; he's just thinking to do whatever he's told -- all he knows is that he's bringing a document to somebody.

So can we use the principle of זכין, in a case where the מזכה is not aware that he is using זכין?

  • Just want you to know that i put a nice amount of time into this question as I like it alot. As of yet I haven't found anyone addressing this point head on. Although I might have some good implications. If nothing comes through, i'll at least put the maareh mikomos in a comment so you can sift through them just in case theres something you haven't seen yet. – user6591 Dec 1 '14 at 1:32
  • @user6591 Two things: [1] I forgot to put this in the question, but it's really my chavrusa's question [2] what "good implications" did you find? – Shokhet Dec 1 '14 at 2:32
  • The implications are that unless the shliach knows he is being zocheh then it will not work. But this is my reading into the empty spaces so far. – user6591 Dec 1 '14 at 2:51
  • The single biggest reason I would say for now leads me to say this is in siman 105 in choshen mishpat we find that when the shliach is mizakeh, he is also mikabel achrayos. I would think that to be unimaginable unless he is conscious of the transaction. My other push is the fact that the gemara says tnu get li'avdi. Is it for nothing that he mentions its a get? There are times where the fact that the gemara incessantly repeats a certain phrase, it is assumed that the phrase carries weight and is very specific. – user6591 Dec 1 '14 at 3:15
  • 1
    Gittin 11b is a bad example - see Rashi there, who seems to imply that while it's a Zechus to go free, he's only freed once the messenger delivers the document; the benefit of Zechi'ah is that the master can't retract once it's been sent. – DonielF Jan 19 '18 at 0:16
1

I'm not sure if this answers the question, but while the messenger may not realize that he's being מזכה לחבירו שלא בפניו, he is certainly aware that he's a messenger. Tosfos there (Gitin 11 ד"ה התופס לבעל חוב, and see also Tosfos to Kesuvos 11a) actually write that זכין works in a manner exactly like שליחות - so one could easily imagine that דעת שליחות is enough to work for זכין לאדם שלא בפניו.

Additionally, it isn't obvious that the person acquiring the object for his friend needs to have דעת to do so at all. The Gemara often refers to 'דעת מקנה', the requirement of the one relinquishing his ownership to do so knowingly/willingly, but the Gemara never refers to דעת קונה - the knowing/willingness of the person acquiring the object. One might say that the reason why there's no requirement of דעת קונה is precisely because of the concept of זכין לאדם שלא בפניו, but there still needs to be someone who's knowingly accepting the transaction on behalf of the one receiving the object (just as where there's a דעת אחרת מקנה). However, that doesn't seem to be the case, at least according to the Yad Ramah (Bava Basra 41a):

אע"ג דקיימא לן העודר בנכסי הגר וכסבור של ישראל הן לא קני, דעת אחרת מקנה אותן שאני דקיימא לן זכין לו לאדם שלא בפניו. וכי תימא מי דמי התם ההוא דמזכי ליה על ידיה קא מיכוין למזכי ליה, הכא ליכא מאן דמיכוין למיזכי ליה. חצרו תוכיח דלית ליה דעתא למזכי וזכיא ליה במתנה אפילו שלא בפניו. כדאסיקנא בפרק שנים אוחזין (ב"מ דף י"ב ע"א) האי חצר אתרבאי משום יד ולא גרע משליחות, גבי גט דחוב לה אין חבין לו לאדם שלא בפניו, גבי מתנה דזכות הוא לה זכין לו לאדם שלא בפניו

I think that the Ramah has a pretty powerful proof: property lack the ability to intend to make any acquisition (being inanimate objects), but the Gemara in Bava Metzia (12a) writes that fields acquire through a means similar to שליחות. See also the Ketzos 235:3 and Chiddushei Chosam Sofer to Avodah Zara 71

  • Thanks for your answer. .....I hear what you're saying, but while the שליח does realize that he's a שליח, he's still only a שליח of the אדון, not of the עבד. .....I'll have to think about this, and check your sources. – Shokhet Nov 30 '14 at 5:09
  • 1
    Also, what about if זכייה לאו מטעם שליחות? – Shokhet Nov 30 '14 at 5:10
  • Then you have the second answer. Also, I thought that the master had made it clear that the שליח was acting on behalf of the slave, and hence is the slave's messenger, but I see your point – הנער הזה Nov 30 '14 at 5:11
  • I'll have to think about it at some point tomorrow. I'll readily admit that I'm not entirely awake right now ;-) – Shokhet Nov 30 '14 at 5:13
  • and I'll readily admit that I just came on to this as a tangent from a different sugya, and when that happens I misread things a lot more often. Good night! – הנער הזה Nov 30 '14 at 5:16

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .