With the beginning of the seventh perek we learn that interrupting with an unnecessary activity (melacha) between filling the water for mei chatat (milui) and sprinkling the ashes of the para aduma into the water (kiddush) would invalidate the water for mei chatat. One case discussed in the first Mishnah, for example, is that if one had five containers of water valid and ready for mei chatat70 and then performed kiddush on each one, only the first would be valid as the first kiddush would constitute melacha with respect to those that follow it.
The Mishnah then continues by explaining that if one asked another to perform kiddush for him depending on how he asked, all five could be valid. If he said “perform kiddush for you” then it is no different to the owner performing the kiddush himself. The statement “for you” effectively makes it as if the original person filled the water himself (Bartenura). If however he said “perform kiddush for me” then all are valid. The Bartenura explains that the one that filled water did not perform melacha and the water did not belong to the one that performed kiddush. This ruling is based on the principle that one cannot make assur that which does not belong to him.71
Not doubting the above principle that one cannot make assur another person’s mei chatat, this case appears to be different. In this case the owner of the water expressly asked the other person to perform kiddush – he is his shaliach. Applying the principle that a shaliach of a person takes his place, why does the second person not invalidate the remaining water after performing kiddush on the first container of water?
The Tifferet Yisrael poses this question and provides an answer that sheds light on the principle that a shaliach takes the place of the sender – shlucho shel adam k’moto. Firstly he explains that we apply this principle when the sender himself must perform the task to which the shaliach is being sent to perform. This is not the case for kiddush. Even if it was performed without the knowledge of the owner it is valid. Furthermore, the Tifferet Yisrael explains that shlucho shel adam k’moto only applies to that specific activity. For anything else, it is not as if the sender is performing it. Consequently the principle that one cannot make assur that which does not belong to him come into play and all the water is valid.
Another difficulty raised is that in Gemara Gittin (53a) we learn that if someone performs melacha with another’s mei chatat he is not liable in the earthly court, but is liable in the heavenly court. Consequently it appears that one can invalidate another’s mei chatat. The Tosfot there answers that in that case, the owner was happy with the melacha that was performed. Based on this Tosfot, the Mishnah Achrona explains that perhaps the second case is valid since the owner stated perform kiddush “for me”, thereby defining the second person’s actions as being dependant on the da’at of the owner who would not wish to invalidate the remaining water in the manner that it was performed.
The Mishnah Achrona however prefers a different explanation of our Mishnah. He explains that at the core of what invalidates the water in this Mishnah is hesech ha’daat – the diversion of attention – and not melacha per se. In the first case where he states “perform kiddush for you” there is complete hesech ha’daat on the part of the owner. He has handed the water over and the second person neglects shmirah of the remaining water when perform kiddush on the first. If however the owner states “perform kiddush for me” the owner has not divested himself from guarding the water at any point and all water is consequently valid.
70 Such a case would arise if all the water was originally collected for one kiddush and then the person changed their mind wanting to use the water for five separate kidushin. Were this not the case, each subsequent filling of water would constitute a break for the preceding one, thereby leaving only the last one valid.
71 The Tifferet Yisrael (Yachin 18) explains that this rule only applies when the issur is dependent on the will of the owner. If the result would be prohibited when the action occurred on its own, for example, if forbidden fats (chelev) fell into food, then it would become prohibited even if another person performed that action.
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