In the sixth perek of Bava Kama we learn that if one sent a fire in the hands of a mentally competent person and he caused fire damage, the agent is chayav (liable). The person who told him to do it however, is not chayav at all.
We have learnt previously that a shaliach (messenger) takes the place of the person who sent him (shlucho shel adam kamoto). Consequently it would seem that one who sends a person to light a fire should be chayav. Why in this case is the person being sent chayav, and yet the sender is completely patur? This is because there is another general rule by shlichut – there is no agency for a matter of transgression (ein shaliach ledavar aveirah).
The Gemara in Kiddushin 42b explains the logic behind this principle. The Gemara there refers to our case (of transferring a fire) when questioning whether a shaliach really takes the place of the sender. The Gemara answers that our case is different citing the qualifying rule stated above - ein shaliach le’davar aveirah. We say to the agent, “If you must choose between the words of the Master (i.e. G-d, who commands you not to sin) and the words of the disciple (the sender) whose words shall you obey?” (Divrei ha’rav ve’divrei ha’talmid – divrei mi shomim?)
The Meiri explains the logic as follows. One who instructs another to sin does not expect the person being sent to defy G-d’s instructions and obey his. He is merely instructing him for no real purpose. It never enters his mind that the person would disobey G-d and do an aveirah just because someone told him to. Therefore, if the agent did the deed, only he would be liable for it, not the sender.
Rashi states that the fact that the agent had done the aveirah on behalf of someone else is meaningless – as he should be listening to his Master (G-d). Therefore there is a deficiency in the act of appointing the shaliach – which makes the whole shlichut invalid.
The Sma (182:2) however explains the logic of the Master-student analogy as follows. He states that a person can send someone to do an aveirah on his behalf. However, when the agent stands for punishment, he will blame the sender for telling him to do the act. At this point the sender is able to argue that he thought the agent would not fulfil his words because he has to listen to his Master and not to the disciple. Therefore, the agent is viewed as if he acted on his own, and the sender bears no legal responsibility for the transgression.
There is an interesting practical difference between the opinions of Rashi and Sma. The Rama rules that if the agent was a Yisrael mumar (a Jew who denies belief in G-d) then there is such a thing as a shaliach leDavar Aveirah, and the person who sent this mumar to the aveirah would be chayav. This rule fares well according to the opinion of the Sma – as the sender can no longer say that he thought the agent would not listen to his orders – because the agent is a mumar and therefore has denied belief in his Master! This mumar will only act according to the words of the “disciple” (the sender); by his own erroneous beliefs he feels that these are the only orders he has to follow. Therefore the fact the sender thought he would not act is not a viable defense and he would be liable.
However, according to the opinion of Rashi – this ruling is problematic. Rashi states that the agent should be listening to the Master. This is the case whether the agent is a believing Jew or a mumar – as he considers what should be, as opposed to what is. Therefore, in the case that a mumar does an aveirah under instruction, Rashi would say that there is no shaliach for an aveirah and therefore the agent would be liable.
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