QUESTION: The Gemara says that an Urchesa (Harsha'ah) in which the sender does not write for his agent, "Go deal [with him] in court and take [the item or money] for yourself," is not a valid Urchesa, because the person from whom the item or money is being claimed may say to the agent, "You are not my litigant" -- "Lav Ba'al Devarim Didi At."

Why may the defendant make that claim? The agent is the Shali'ach of the claimant, and the law is that "Shali'ach Shel Adam k'Moso" -- the Shali'ach of a person is like the person himself. Why may the defendant say to him that he is not his litigant?

(a) The MORDECHAI (#70) writes that RABEINU YOEL asked this question to his father-in-law, the RA'AVAN, who answered that as long as the sender is alive, the defendant certainly may not claim "Lav Ba'al Devarim Didi At." Only if the sender has died may the defendant claim that the agent is not his litigant, because the item or money being claimed now belongs to the heirs of the original claimant, and the heirs did not make this agent their Shali'ach.

(b) The OR ZARU'A (Piskei Bava Kama #300) gives a similar answer. He writes that the Chachamim were concerned that perhaps the sender would die before the agent collects the item, and the item would then fall to the heirs, and the heirs would say that they did not appoint this agent as their Shali'ach. Therefore, the defendant may say, "You are not my litigant," out of doubt that perhaps the property already fell to the heirs, even if it is not known for certain that the sender died.

Apparently, the Mordechai maintains that the defendant cannot say, "You are not my litigant," when it is not known for certain that the sender died. The PNEI YEHOSHUA, however, asserts that the Mordechai agrees with the Or Zaru'a and maintains that the defendant may make this claim even when there is a doubt about whether the sender is alive.

Another difference between the Mordechai's answer and that of the Or Zaru'a is that according to the Mordechai, the right to say, "You are not my litigant," is an enactment made for the sake of the defendant, to protect his rights. According to the Or Zaru'a, it is an enactment made for the sake of the heirs, to protect their rights.

(c) The ROSH later (9:21) answers that the Chachamim were concerned that perhaps the sender would annul the Shelichus in front of witnesses. Therefore, the Chachamim enacted that he write in the document, "Go deal [with him] in court and take [the item or money] for yourself," which makes it as if he has given to the agent the item or money as an unconditional gift which he may not retract or annul.

(d) The YAM SHEL SHLOMO (#12) writes that the Gemara refers to a case in which the defendant does not want to give the claimant his item or his money because the defendant himself has other claims against the claimant for obligations that he is owed. Therefore, he may say to the Shali'ach that the Shali'ach is not his litigant, because there are more claims involved, other than the claim which the Shali'ach was sent to collect. (By writing, "Go deal [with him] in court and take [the item or money] for yourself," the Shali'ach is able to collect for the claimant because the Chachamim instituted that the item thereby is considered the Shali'ach's for the purpose of collecting it.)

It seems, according to the Yam Shel Shlomo, that if the defendant has no claims against the one who sent the Shali'ach but he merely refuses to send the item with the Shali'ach, he cannot say, "You are not my litigant," because "Shali'ach Shel Adam k'Moso."

(e) The PNEI YEHOSHUA answers that in this case, the principle of "Shali'ach Shel Adam k'Moso" does not apply. The defendant may say, "Who knows whether your sender would have made any claim against me? Perhaps he would not have been so brazen to make a claim against me at all!" That is, the defendant claims that the one who sent the Shali'ach is lying and that he does not have the sender's item at all, and that is why the sender himself is not coming to make a claim against him -- because he is not so brazen as to lie to his face. The Shali'ach, though, is brazen, and thus the principle of "Shali'ach Shel Adam k'Moso" does not apply here.

QUESTION: The Gemara explains that there is a case in which it is possible for "Kam Lei bid'Rabah Minei" to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though normally no Melachah is involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, "Throw the item into my Chatzer and thereby transfer possession of the item to me." By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav performs a Melachah d'Oraisa (of Hotza'ah) for which he is Chayav Misah, and therefore the Ganav is exempt from Arba'ah v'Chamishah because of "Kam Lei bid'Rabah Minei."

Why, though, is the sale considered a valid Mechirah in this case? There is a principle that "Kol Milsa d'Amur Rachmana Lo Ta'avid, Iy Avid Lo Mehani" -- when one performs any act which the Torah prohibits, that act does not take effect. In this case, since the act of transferring the item from Reshus ha'Rabim to Reshus ha'Yachid is prohibited by the Torah, that transfer should not be effective in changing the ownership of the item, and the Ganav should not be liable for the Mechirah.

(a) REBBI AKIVA EIGER writes that the principle of "Iy Avid Lo Mehani" applies only to Isurim d'Oraisa and not to Isurim d'Rabanan. If a person performs an act which is prohibited mid'Rabanan, the act still takes effect. This is implied by the wording of the principle itself, "Kol Milsa d'Amur Rachmana Lo Ta'avid, Iy Avid Lo Mehani," which implies that when the act is prohibited only by the Rabanan and not by the Torah ("Rachmana"), the act still takes effect. Here, the Isur of conducting a sale on Shabbos is an Isur d'Rabanan (lest one come to write on Shabbos), and therefore "Iy Avid Lo Mehani" does not apply. (This approach does not answer the question fully, however, because there are still Isurim d'Oraisa being done, as in Rami bar Chama's case of a Ganav who picks fruit on Shabbos in exchange for the item.)

(b) The SHACH (CM 208:2) writes that this principle -- that when one does an act prohibited by the Torah that act does not take effect -- applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through an Isur. The only way one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to a sale that takes place on Shabbos, since it is possible to perform the sale in a permissible manner (i.e. by doing it on a weekday), this rule (that when one does an act prohibited by the Torah that act does not take effect) does not apply.

The KETZOS HA'CHOSHEN there challenges this answer. The Gemara in Temurah which discusses the rule of "Iy Avid Lo Mehani" questions Rava's opinion there that the act does not take effect from the Halachah that when one separates Terumah from his produce before he sets aside the Bikurim, the Terumah takes effect. Why should the Terumah take effect if the Torah prohibits (with a Lo Ta'aseh) one from separating Terumah before he sets aside Bikurim? This is the Gemara's question there. The Ketzos ha'Choshen asks that according to the Shach, the Gemara's question should be no question at all. In the case of separating Terumah before Bikurim, the act of separating Terumah may be done in a permissible manner (i.e. after one has set aside Bikurim), and that is why it takes effect even when it is done before Bikurim.

(c) REBBI AKIVA EIGER (Teshuvos #129) and the NESIVOS HA'MISHPAT (CM 208:2) answer that the principle of "Iy Avid Lo Mehani" applies only when the Isur that was done will be rectified in some way by not taking effect. For example, in the case of Temurah, if his act takes effect, he transgresses the Isur against making an exchange for a sanctified animal. If his act does not take effect, he does not transgress the Isur of Temurah. In contrast, in the case of a person who sells an item on Shabbos, even if his act does not take effect and the sale is not valid, he still will have committed an Isur. (For example, in the case of one who picks figs in exchange for the item that he is selling, even though the sale does not take effect the Isur of picking fruit on Shabbos has still been transgressed. Similarly, in the case of one who throws the item into the buyer's Chatzer on Shabbos, even though the sale does not take effect the Isur of Hotza'ah has still been transgressed. Even when no Melachah is done on Shabbos, there is an Isur d'Rabanan against conducting any sale on Shabbos (as a preventative measure against writing on Shabbos), and even when the sale does not take effect one still transgresses the Isur which the Rabanan enacted against doing an act of a Mechirah on Shabbos.) (See Insights to Chulin 8:2.)

QUESTION: The Gemara explains that there is a case in which it is possible for "Kam Lei bid'Rabah Minei" to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though normally no Melachah is involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, "Throw the item into my Chatzer and thereby transfer possession of the item to me." By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav performs a Melachah d'Oraisa (of Hotza'ah) for which he is Chayav Misah, and therefore the Ganav is exempt from Arba'ah v'Chamishah because of "Kam Lei bid'Rabah Minei."

The Gemara says that this is true only according to Rebbi Akiva. Rebbi Akiva rules that "Kelutah k'Mi she'Hunchah Dami"; a person who throws an object from one Reshus ha'Yachid to another Reshus ha'Yachid through an intervening Reshus ha'Rabim transgresses the Melachah of Hotza'ah even before the object lands. Consequently, he desecrates Shabbos at the same time that he effects the sale. According to the Rabanan, however, the buyer acquires the item when it enters the airspace of his Chatzer, while the Ganav is liable for Hotza'ah only when the item lands on the ground.

The Gemara here seems problematic in light of the Gemara earlier in Bava Kama. The Gemara earlier (22a) teaches that according to Rebbi Yochanan, who maintains that "Isho Mishum Chitzav," all of the effects which occur as a result of one's throwing the arrow or lighting the fire are considered to have occurred at the moment that the arrow was thrown or the fire was lit. From that moment, it is considered as if the person did all of the actions that eventually come about because of that one act (see Insights there).

The NIMUKEI YOSEF (10a of the pages of the Rif) explains this in greater detail. He asks a general question on Rebbi Yochanan's opinion: If "Isho Mishum Chitzav" means that a person who lights a fire is considered to have done everything that the fire subsequently accomplishes until it burns out, then when a person lights candles before Shabbos and the candles continue to burn during Shabbos, the person should be liable for making a fire on Shabbos since at every moment that the fire burns it is considered as though the person has lit it. The Nimukei Yosef answers that according to Rebbi Yochanan, everything which the fire eventually does is considered to have been caused at the moment at which the fire was initially lit. Therefore, the act of causing the fire to burn on Shabbos was completed before Shabbos, even though the actual burning takes place later, on Shabbos.

According to this explanation of "Isho Mishum Chitzav," the Gemara here is difficult to understand. Why does the Gemara say that only according to Rebbi Akiva does the Ganav become Chayav Misah at the same moment that he sells the item? Even according to the Rabanan, all of the effects of his act of throwing the item should be considered as though they happen simultaneously, since the Chiyuv Shabbos also occurs at the moment the item leaves his hands and not just when it lands on the ground.

ANSWER: The KEHILOS YAKOV (#21) answers that although the person is considered as though he performs all of the subsequent acts at the time that the item leaves his hands, the Chiyuv does not take effect until the Aveirah has been done in actuality. Only at that moment -- when the item lands in a different Reshus -- does he become liable for the act which he did originally. When one lit a flame before Shabbos which continued to burn during Shabbos, his Chiyuv would be for the act of lighting that he did, but since the act was done before Shabbos he is not Chayav. In the case of the Gemara here, the Chiyuv occurs at the time that the item lands, which is after the item has been transferred to the buyer's possession. (I. Alsheich)