Kiddushin, Daf Mem Gimmel, Part 3

 

Introduction

We continue discussing whether there is such a thing as agency for wrongdoing.

 

והא דתני האומר לשלוחו צא הרוג את הנפש הוא חייב ושולחיו פטור שמאי הזקן אומר משום חגי הנביא שולחיו חייב שנא’ (שמואל ב יב, ט) אותו הרגת בחרב בני עמון מאי טעמיה דשמאי הזקן

 

Now, that which was taught: If one says to his agent, Go out and kill someone, he is liable, and his sender is exempt. Shammai the Elder said in the name of Haggai the prophet: His sender is liable, for it is said, You have killed him with the sword of the children of Ammon (II Samuel 12:9). What is the reasoning of Shammai the Elder?

 

The first opinion holds that if a person sends another to commit murder, the murderer (the agent) is liable, not the sender. But Shammai holds that the sender is liable. His paradigm is David, who was held responsible by the prophet Natan for sending Uriah out to be killed in battle. So if we have a principle there is no agency for wrongdoing where does Shammai get the idea that the sender is liable?

 

קסבר שני כתובים הבאים כאחד מלמדין והוא ההוא לא דריש

 

He holds that two verses that come as one [do teach], and he does not use hu hahu as the basis for exegesis.

 

The Talmud finds some technical/exegetical means of rescuing Shammai. Shammai holds that two verses that come as one do teach, so we do have a paradigm from trespass and slaughtering or selling that there is agency for wrongdoing. And they don t use the word hahu to teach that there is not. So they are left with the conclusion that there is agency for wrongdoing.

 

ואיבעית אימא לעולם דריש ומאי חייב חייב בדיני שמים

מכלל דת"ק סבר אפילו מדיני שמים נמי פטור

אלא דינא רבה ודינא זוטא איכא בינייהו

 

Alternatively, he does derive [from hu hahu ]; and what is meant by liable? He is liable by the laws of Heaven.

From here it follows that the first tanna holds that he is exempt even by the law of Heaven!

Rather they differ in respect to a greater or a lesser penalty.

 

The Talmud now suggests that Shammai holds him liable, but only to the laws of Heaven. In other words, he did something heinously wrong, but he cannot be held accountable by a human court. The problem with this is that it implies that according to the first tanna, he would be exempt even in the heavenly court. That seems absurd why shouldn t God hold him accountable?

The next suggestion is that they differ as to the level of punishment. The first opinion would hold that the sender is responsible but to a lesser degree. The second opinion would hold that he is fully responsible.

 

ואיבעית אימא שאני התם דגלי רחמנא אותו הרגת בחרב בני עמון

ואידך הרי לך כחרב בני עמון מה חרב בני עמון אין אתה נענש עליו אף אוריה החתי אי אתה נענש עליו

 

And if you want you can say: there it is different, because the Torah revealed it: You have killed him with the sword of the children of Ammon.

And the other? It counts to you as the sword of the children of Ammon: just as you cannot be punished for the sword of the children of Ammon, so will you not be punished for [the death of] Uriah the Hittite.

 

Alternatively, Shammai makes a special exception because the Torah (actually Natan) lays responsibility directly on David s shoulders.

The first tanna (creatively) reads the verse as exculpating David, not implicating him.

 

מאי טעמא מורד במלכות הוה דקאמר ליה (שמואל ב יא, יא) ואדוני יואב וכל עבדי אדוני על פני השדה חונים

What is the reason? He was a rebel against the kingship, for he said to him [David], And my lord Yoav, and the servants of my lord, are encamped in the open field, [shall I then go into my house, to eat and to drink, and to lie with my wife?] (II Samuel 11:11).

 

Why is David not liable for having Uriah killed? Because Uriah rebelled against the king by disobeying his direct order to go home, eat, drink and lie with his wife. [Yes, these are clearly David apologetics. Sometimes the rabbis are willing to condemn him, but sometimes they do end up defending him. Complicated character that David].

 

אמר רבא את"ל סבר שמאי שני כתובים הבאים כאחד מלמדין והוא ההוא לא דריש מודה באומר לשלוחו צא בעול את הערוה ואכול את החלב שהוא חייב ושולחיו פטור שלא מצינו בכל התורה כולה זה נהנה וזה מתחייב

 

Rava said: Should you say that Shammai holds that two verses that come as one do teach about [other cases], and that he does not derive anything from hu hahu : [yet] he agrees that if one says to his agent, Go out and have incestuous intercourse, [or] eat forbidden fat, the latter is liable and his sender exempt, because we never find in the whole Torah that one derives pleasure [from wrongdoing] and the other is liable.

 

Even if Shammai holds that there is agency in wrongdoing, and that the sender is liable, this is only in a case where the agent does not enjoy himself while doing the wrongdoing. If the wrongdoing involves sex or food, where he does enjoy himself, then the sender is exempt and the agent is liable. There are no cases, according to Rava, where one person enjoys something forbidden and another is liable.