(2015/5775)

Last week we began to present the first prong of the Halachic basis for the Tzefat Beit Din in their highly controversial ruling in 5774 permitting a woman whose husband is in a permanent vegetative state to remarry without her husband handing her a Get.  We continue this week with presenting the second prong of the Tzefat Beit Din’s ruling. 

The Second Prong—Zachin LeAdam Shelo Befanav

The second prong of the Tzefat Beit Din is based on the idea of Zachin LeAdam Shelo Befanav, that one may confer a benefit to someone even without their consent and awareness.  Chazal apply this principle even to one who is not mentally competent.  For example, the Gemara (Ketubot 11a) presents the rule that a minor can be converted by a Beit Din even though the child does not consent to the conversion.  Even if a child expresses his or her consent, the consent is not meaningful due to the child’s immaturity; see, for example, Mishnah Machshirin 6:1.

Tosafot (ad. loc. s.v. Matbilin) pose a very basic question on the entire concept of converting a minor. Assuming that the principle of Zachin operates based on viewing the one conferring the benefit as the presumptive Sheli’ach (agent) of the beneficiary,[1]  how can Beit Din confer a Zechut on a child if the institution of Shelichut (agency) does not apply to a minor (Bava Metzia 71b)? 

Tosafot’s final answer (also see Tosafot Sanhedrin 68b s.v. Katan for further discussion) is that the exclusion of a minor from Shelichut applies only where it is somewhat questionable as to whether one is truly conferring a benefit. However, bestowing Jewish identity is a pure and unadulterated benefit (Zechut Gamur).

Similarly, the Shulchan Aruch (Choshen Mishpat 243:16 and Sema ad. loc. number 30) rules, following Rambam Hilchot Zechuyah UMatanah 4:7, that the rule of Zachin LeAdam Shelo Befanav applies to a Shoteh (mentally incompetent individual).  The Ketzot HaChoshen (ad. loc. number 6), though, raises the possibility to limit this ruling to a Shoteh who at times is mentally competent (Itim Chalim) similar to a Katan who will eventually become a Gadol (mentally competent adult).  However, none of the other major commentaries such as the Shach, Sema and Vilna Gaon set forth this limitation. Moreover, the Aruch HaShulchan (C.M. 243:18) rejects the Ketzot’s suggestion and rules that the rule of Zachin LeAdam Shelo Befanav applies to every Shoteh—even if he is expected to recover. 

This expansion of the Zachin rule is most compelling since the source for the concept of Zachin LeAdam Shelo Befanav is the head of each tribe acting on behalf of tribe members in the distribution of their respective shares in Eretz Yisrael (Kiddushin 42a citing Bemidbar 34:18).  The tribal leaders acquired land on behalf of all members of the Sheivet including those who were mentally incompetent including Ketanim and Shotim(and even permanently incompetent individuals). 

The Tzefat Beit Din, in a monumental assertion, argues that since it is a Zechut for a husband in a permanent vegetative state to divorce his wife, the Beit Din may act on the husband’s behalf and write a Get for him using the principle of Zachin LeAdam Shelo Befanav. The Beit Din bases this ruling on the Shach (Nekudot HaKesef Yoreh Dei’ah 305:10) that a Beit Din may act on behalf of a Bechor (first born son) and perform a Pidyon HaBen on the baby’s behalf if the father is not available to redeem his son.[2]

 Zachin LeAdam vs. Zachin MeiAdam

One may object, however, that in the cases of Zachin we have cited – benefitting an incompetent individual by conferring with conversion, Pidyon HaBen or a share in Eretz Yisrael – one acquires something on behalf of the beneficiary.  However, in the Tzefat case the Beit Din is benefitting the husband by taking away his wife.  Does the rule of Zachin apply even when conferring the benefit involves taking away something from the beneficiary?    

There is a well-known dispute among the Acharonim about this matter.  The basis of the dispute relates to the nature of Zachin. The aforementioned Tosafot (Ketubot 11a) explains that Zachin is rooted in the law of Shelichut, agency. Since this action is for the other person's clear benefit, you are considered a “self-appointed” agent. Therefore, the same way you can be an agent to acquire for someone's benefit (Shulchan Aruch C.M. 243:1), you can also serve as a “self-appointed” agent to sell for the owner's benefit. The Rama rules, on this basis, that a Jewish maid can separate Challah from the dough if the lady of the house is not available. (Yoreh Deiah 328:3).

 Ketzot HaChoshen (243:7-8), however, maintains that a person cannot be considered an agent unless appointed by the owner. He understands Zachin as a separate law that relates only to acquiring on behalf of someone, but not to other legal transactions. This distinction is referred to by Torah scholars as Zachin LeAdam, acquiring for a person; not Zachin MeiAdam, acquiring from a person (this phrase was coined by the Mirkevet HaMishneh, Hilchot Gerushin 6:3 who agrees with the Ketzot). 

 Most authorities rule, though, that whenever there is an unequivocal benefit for the owner, it is possible to act on his behalf when he not accessible, even if in the process one takes something from him without his consent (Teshuvot Chatam Sofer 1:11 and 2:43, Teshuvot Berit Avraham 101, Rav Yitzchak Elchanan in Teshuvot Ein Yitzchak E.H. 51:3 and Teshuvot Be’eir Yitzchak 1:1, Teshuvot Maharsham 2:103 and Teshuvot Achiezer E.H. 28).

Applications of Zachin MeiAdam

Rabbanim apply the expanded principle of Zachin MeiAdam in many contexts.  For example, most Poskim permit a Rav to sell Chametz on behalf of someone who has authorized the Rav to sell his Chametz if it is not possible to contact him (Piskei Teshuvot O.C. 448:21).  For example, a Ba’al Teshuvah who lives in Eretz Yisrael once contacted me before Pesach with the following problem.  His non-observant parents had just told him that they had purchased a large quantity of dried oatmeal for them to bring to his children when they would visit soon after Pesach.  This poses an enormous problem since it is forbidden to eat or even derive benefit from Chametz SheAvar Alav Et HaPesach (Chametz owned by a Jew during Pesach; Mishnah, Pesachim 2:2). The parents, however, do not sell the Chametz and it would be very uncomfortable to ask his parents to sell their Chametz.  My response was to include the oatmeal in my Mechirat Chametz without informing the parents.[3] 

 Pitchei Teshuva Y.D. 320:6 presents a situation of a Jew’s animal about to give birth for the first time which is customarily sold in part to a non-Jew to avoid the offspring having the status of Bechor with the attendant Halachot.[4]  In this specific case the mother of the animal owner sold the animal to a non-Jew without consulting her son.  He cites the Teshuvot Panim Me’irot (2:52) who confirms the validity of the sale due to the principle of Zachin LeAdam Shelo Befanav, even though this involves selling the beneficiary’s property without his consent. 

Similarly, Teshuvot Mishpat Kohein (150) presents the text of the document of sale of Israeli farmland to avoid the restrictions of the Shemittah year conducted by Eretz Yisrael’s Chief Rabbinate in 1930 which was signed by Rav Kook and Rav Zvi Pesach Frank.   The document specifically states that the sale includes the land of non-observant Israeli Jews who did not authorize the Rabbinate to sell their land, utilizing the principle of Zachin LeAdam Shelo Befanav, to spare them from violating the prohibitions of Shemittah.  The document concludes “as long as these field owners do not protest[5] their inclusion in the sale,[6] the sale conducted on their behalf is fully effective.”  

Finally, Teshuvot Sheivet HaLeivi (7:218) permits a Ba’al Teshuvah to write a Pruzbul on behalf of his non-observant parent who loaned money to various individuals.  The Pruzbul is a document composed by Hillel in which a lender transfers the right to collect the loan debts to a Beit Din in order to be able to receive payment of the loan even after the end of the Shemittah year (Mishnah, Shevi’it 10:3-4).  Writing a Pruzbul on behalf of the lender spares him from violating the prohibition to demand payment of the loans after the end of the Shemittah year.  Shemitat Kesafim KeHilchata page 77 records that the Chazon Ish concurred with this ruling, that one may write a Pruzbul without the consent of the lender, even though the process of conferring the benefit is involves taking away from the lender (transferring the right to the collect the loans to Beit Din) in order to benefit him.[7]

Thus, there is sufficient evidence that we do not distinguish between Zachin LeAdam and Zachin MeiAdam.  Moreover, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:117) argues that even the Ketzot and Mirkevet Hamishneh would agree that Zachin applies to writing a Get for the husband since the concept of Zachin MeiAdam is not relevant to marriage.  Rav Moshe explains

“Marriage is not an actual acquisition of the wife by the husband (and therefore divorce is not transferring property away), and the proof of this is that the only reason that an attempt to marry an already-married woman is not effective is the principle that marriage cannot take effect when there is a Biblical prohibition involving a punishment of Kareit or worse prohibiting intimacy between the parties, as is explicit at the end of Kiddushin 67, and not because she already belongs to another. Rather, certainly marriage is not comparable to a financial benefit, rather the marriage and divorce are a mere matter of prohibition and permission, and therefore we can apply here the mechanism of Zechiyah as agency.”[8]

However, applying the principle of Zachin LeAdam Shelo Befanav to writing a Get without the consent of the husband seems to contradict the Mishnah (Gittin 7:2) that states that a Get is invalid unless the husband orders the scribe to write the Get and witnesses to sign the Get.  Nonetheless, various leading authorities in recent centuries have sanctioned utilizing the concept of Zachin to deliver a Get as we shall outline iy”H and b”n in our next issue.

[1] There is considerable discussion as to whether Zachin operates through the principle of Shelichut or constitutes a principle separate from Shelichut which follows its own particular set of regulations.  See Tosafot Nedarim 36b s.v. Mi, Tosafot Gittin 64b s.v. Shani, Ran (Kiddushin 16b in the Rif’s pages) and Ketzot HaChoshen 105:1. 

[2] Although the Taz (Y.D. 305:11) disagrees, the Aruch HaShulchan (Y.D. 305:14) rules in accordance with the Shach and believes that common practice is in accordance with the Shach. 

[3] The parents would be pleased with the sale conducted without their consent since it enables their grandchildren to enjoy the oatmeal.

[4] Shulchan Aruch Y.D. 320:6

[5] Most authorities believe that Zachin does not apply if the intended beneficiary objects to the conferral of the benefit (Pitchei Teshuvah E.H. 140:7; see though Avnei Milu’im 1:10:5, Teshuvot Ein Yitzchak E.H. 1:1 and Teshuvot Igrot Moshe E.H. 1:2 and 4:4).

[6] This presumably refers to those observant Jews who do not accept the controversial Heteir Mechirah, sale of Israeli land prior to Shemittah. 

[7] The Chazon Ish (E.H. 49:10) presents a number of proofs that Halacha does not distinguish between Zachin LAdam and Zachin MeiAdam. 

[8] A similar idea is expressed in Teshuvot Avnei Neizer E.H. 123:9 and Teshuvot Chelkat Yoav 1 E.H. 4.