Ein Shlichus l’Koton

Gittin (2:5) | Adam Korbl | 17 years ago

The Mishnah (2:5) makes a novel statement that has significant legal ramifications: “Anybody can write a get - even a cheresh (deaf-mute), shoiteh (mental deficient) or koton (minor).”

The Gemara immediately questions this, asking how these individuals are capable of the necessary lishmoh intent in writing a get (at least according to R’ Eliezer).  The Gemara suggests several solutions. One of the possibilities the Gemara offers is that indeed the katan may write a get if a gadol is “oimed al gabav” – literally, standing above him. 

Tosfos explain that the role of the gadol is to serve as an instructor and director.  Without any instruction, the koton is incapable of having the lishmoh intent; if the godol, however, directs his actions and informs him about the necessary intent, the koton would indeed be able to create the get appropriately.

An alternative understanding is presented by the Rashba in Chulin (12b). There he cites his Rebbi, Rabbeinu Yona, who establishes that since writing a get can be assigned to a shliach, the gadol oimed al gabov can therefore function through a similar mechanism.

The obvious problem is that a koton cannot serve as shliach, based on the principle of ain shlichus l’koton. How then does the Rabbeinu Yona claim that oimed al gabov operates through a system of shlichus? The Imrei Moshe explains that Rabbeinu Yona works with a complete split between the intent and the writing: the koton performs the act of writing, while the gadol supplies the lishma. This answer seems difficult however, since it does not really explain how any notion of shlichus is employed in this operation.

The Gedolei Rosh Yeshiva offer other explanations to this difficult Rabbeinu Yona. One of their suggestions is based on an explanation by Reb Akiva Eiger in the first perek of Kesuvos. There he claims that the chisoron, or failing, in a minor’s ability to have a shliach is not insofar as a shliach performing a shlichus for a minor, nor even in the child himself functioning as a shliach, but rather in the initial appointment of the shliach by a koton, or of the koton by a shliach. A koton is not in the parsha of shlichus only because he can not appoint, or be appointed.

Reb Akiva Eiger points out that since the real flaw is a minor’s involvement in the initiation of a shlichus, in certain cases where no minui, appointment, is required, even a minor can function in the world of shlichus. For example, a ger koton can be immersed for conversion through a shlichus of Beit Din for the child, since zechia establishes a shlichut with no minui.

According to this understanding of Reb Akiva Eiger, the Rabbeinu Yona seems clearer. The case of oimed al gabov is essentially a situation where the koton is functioning as a shliach, without ever being formally appointed. A minui is not needed here since the koton is not representing or serving as the agent of the gadol, as would be the case in classical shlichus, but rather performing a raw act that is endowed with legal meaning by the gadol working with him.

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