Siman 123

Since it has been explained that with a power of attorney one must transfer ownership to the authorized agent of the actual object for which he is authorizing him, therefore, according to the law of the Gemara, we only write a power of attorney to claim a deposit that is in the possession of another and he did not deny it in beit din. For if the bailee denied it, how is a transfer of ownership relevant? For it appears like a lie to transfer ownership of that which is not clearly established that he possesses. And if the deposit is money, then even if he did not deny it, a standard kinyan is not effective, as they are not acquired through chalifin, and he must transfer ownership to him through agav karka. Similarly, he can authorize to claim land even if he denied it, for regarding land it does not appear like a lie since it is before us. Similarly, he can authorize regarding a debt documented in a shetar even if he denied it, because in every shetar there is a lien on lands and it is like land; for just as he can transfer ownership of the shetar and its lien through writing and delivery, so too can he authorize him over it and deliver the shetar into his hand so that he may collect it. And he must write for him, "acquire it and all the liens within it," as was written in siman 66. Similarly, if he transfers ownership of the shetar to him through agav karka, it is effective even without writing and delivery, and therefore we do not write in powers of attorney for shetarot "acquire for yourself etc." because we write in all powers of attorney a kinyan of agav karka, as was written in the previous siman, section 14. However, we do not write a power of attorney according to the law regarding a deposit in the possession of another if the bailee denied it. Similarly, we do not write regarding an oral loan, for it was given to be spent and is not in existence, and even when the borrower did not deny it, there is nothing for his authorization to take effect upon, and also a kinyan does not take effect upon this since it is not in existence, and also agav karka is not effective, as was written in siman 203. And this is according to the law of the Gemara.

In order that one should not take the money of his fellow and go to a distant land, while the owner of the funds himself might not be able to go there, the Geonim enacted that an harshaah is written for any matter—it makes no difference whether it is a deposit or a theft, and it makes no difference whether it is a loan with a deed or an oral loan, and even if he denied it. We are not concerned with it appearing as a falsehood in such a case, for the witnesses do not testify that he has [assets] in the possession of so-and-so, but rather they testify to his statement, that he says he has [assets] in the possession of so-and-so. And without witnesses, we are not concerned with it appearing as a falsehood, as I wrote in siman 48, section 1. Some say that for an oral loan without a kinyan where the borrower denied it, the Geonim did not enact to write an harshaah because it is not common to lend orally; however, the custom follows the first opinion. Furthermore, even a deed in the borrower's own handwriting is like an oral loan, as I wrote in siman 69, and this is very common. And even according to the "some say," if he wrote him an harshaah for an oral loan that he denied, and the borrower handed over the money to the authorized agent and it was lost by accident or disappeared from the hand of the authorized agent, the borrower is exempt, for it is no worse than a messenger appointed in the presence of witnesses, as was explained in the previous siman, that the borrower is exempt.

Our teachers, the authors of the Shulchan Aruch, wrote that one who had an oath against his fellow cannot authorize another over him to administer the oath, for it is not something that is acquired through a kinyan, as it is merely words. And the same applies to one who had a claim against his fellow and wrote him an authorization for the claim—the authorization is nothing, for a claim is not something that he can transfer; rather, he must write the authorization for the money over which the claim exists. Thus far their words. But the great Acharonim disagree with this, for certainly to transfer it absolutely through sale or gift is nothing, but regarding authorization, since it is from the enactment of the Geonim to write it even for something where a kinyan is not effective, nevertheless they enacted that the authorization and the kinyan should be effective through the law of "strong agency," so that the defendant should not be able to say to the agent, "You are not my litigant." If so, they write for everything, and such is the custom to write authorizations even for oaths, and likewise they write authorizations for shame, blemish, and damages [Shach], because after the enactment of the Geonim, there is nothing for which they do not write an authorization.

One who grants a power of attorney to one person and afterwards grants a power of attorney to another, and both come before us with their power of attorney, the defendant is only required to respond to the second one, for presumably he cancelled the first. However, if he did not know of its cancellation and gave to the first, what he did is done, and the second cannot sue him. And if it was lost by an accident from the first, the defendant is not liable. But when he knew of its cancellation and handed it over to him, he is obligated to take it from him and hand it over to the second, and if it was lost by an accident from the first, he is liable for the responsibility. And if the first litigated with the defendant and the agent was found liable in the judgment, the second may return and overturn the judgment even if the defendant did not know of the cancellation of the first. But when the defendant was found liable in the judgment, he cannot overturn it with his claim, saying, "Since he cancelled you, you are not my legal adversary," for since it is a benefit to the grantor, one may acquire a benefit for a person in his absence, and we are witnesses that the plaintiff agrees to what the first has done [Shach]. And if it is known that he did not cancel either of them, the defendant may, even at the outset, litigate with whichever one he wishes.

An authorized agent has no permission to write a power of attorney to another, for the claimant can say, "It is not my will that my deposit be in the hand of another." If he transgressed and wrote it, and the defendant gave to the other, the defendant is liable for responsibility, as he should not have given based on the power of attorney of the authorized agent. The authorized agent is exempt, for he can say, "The defendant should not have given" [Shach]. Therefore, if the authorized agent said to the defendant that the principal authorized him to appoint an authorized agent from him, the defendant is exempt even if it was not explicitly written so in the power of attorney, and the authorized agent is liable for responsibility. And if he truly stipulated with the principal that it should be within his power to authorize another, and another to another, everything is according to his stipulation, and it is proper to write so in the power of attorney as was written in the previous siman, section 14. But as long as he did not give him permission, it is forbidden for him to appoint an authorized agent in his place. And even if he wishes to authorize another only to stand with the defendant in judgment, and when the defendant is found liable he will not hand over the money to him—for in this it is not relevant to say "It is not my will that my deposit be in the hand of another"—nevertheless, he should not do so, and the defendant does not need to answer him at all, for he is not the agent of the plaintiff [Shach]. However, if it is in a matter where the plaintiff cannot say "It is not my will that my deposit be in the hand of another," such as where the plaintiff always trusts this other person, as was written in siman 291, and the defendant handed it to him, he is exempt from responsibility [ibid.].

If he authorized two people and wrote that the two of them shall engage in this, and one of them engaged in it, it is nothing. The defendant who handed over [the property] to one is liable for responsibility since he saw that it was written thus in the harsha'ah. And even if he did not explicitly clarify "Reuven and Shimon together," but rather wrote plainly that he gave a harsha'ah to Reuven and Shimon, his intention is for both of them together, for such is the common language of people, even though in the language of the Scriptures the "vav" is sometimes divisive. And if he wrote in the harsha'ah that if an accident should occur to one of them, the second shall engage alone, and one of them did not want to engage even though he was not under duress, the second may engage alone; for regarding the second, this too is like an accident when the one does not want to. And even though there is one who wavers on this, nevertheless, such is the primary ruling in law. For while it is true that a lack of will is not an accident, nevertheless, it is an assessment of the intent that the will of the authorizer was for this; for since he gave permission for one to engage, what does it matter to me if the second is under duress or does not want to. But if it is not written thus in the harsha'ah, it is forbidden for the one to engage even if a complete accident occurred to one of them.

An authorized representative who comes with a power of attorney and forgave the defendant, or sold him the object or the land, or forgave him regarding the oath, or made a compromise with him, has done nothing. For even though he transferred ownership to him by means of agav karka and wrote to him, "litigate, win, and take for yourself," nevertheless, he is not like the owner himself and is nothing more than an agent. The grantor can say, "I sent you to improve my situation and not to damage it," as was written in the previous siman. Therefore, if he transferred a portion to him, and we explained there in section 7 that this portion is entirely his, he may do with his portion as he wishes [it appears to me]. So too, if he stipulated with him "whether for improvement or for damage," even if he forgave him for everything, his forgiveness is valid. Certainly this is so if he specified in the power of attorney, "your forgiveness is as my forgiveness." If he wrote in the power of attorney "whether for judgment or for compromise," nevertheless, he should not make a compromise on his own but rather by the authority of a beit din, for certainly such was the intention of the grantor. If he made the compromise on his own, the grantor has the ability to challenge this [Tzemach Tzedek], unless the representative knows that such was his intention, and the representative is believed in this, for his status is like a trustee against the grantor as was written there. However, regarding what was not explained in the power of attorney, he is not believed to innovate anything [it appears to me]. One of the great authorities wrote that specifically if he wrote "whether for improvement or for damage" before he wrote "and all that is done, etc.," but afterward it is not effective; but this is not clear to me, for even if he said so to him orally after the writing of the power of attorney and there are witnesses to this, it is also effective [it appears to me]. If the grantor gave him power to compromise with the defendant and he made a compromise, and afterward the grantor appealed that his intention was not for such a compromise, he is not believed, for the representative has the status of a trustee, unlike one who expressed doubt regarding this [it appears to me].

Reuven had a debt owed by a gentile and said to Shimon, who also had a debt owed by the gentile: "Just as you do with yours, so shall you do with mine." Shimon went and forgave his own debt and the debt of Reuven; he is liable to pay Reuven according to the laws of garmi the amount that the debt was worth for sale in cash, for it is an assessment of intent that Reuven's intention was not to forgive him. And if Shimon says that he forgave it with Reuven's permission, he takes a shevuat hesset that Reuven authorized him to forgive and is exempt [Sma]. There are those who disagree on this, and it will be explained in siman 176, section 63, and even according to this opinion, it is specifically when he has a migo, see there. And similarly, if the debt was not worth anything at all for sale, he does not need to pay him anything [Shach], for behold, he did not cause him a loss through this, and Reuven cannot say, "I would have collected from him," for he is not believed to say so. And even if it were so, this is not garmi but rather grama, since it is not worth anything to the whole world, and grama in damages is exempt [it appears to me].

Reuven, who came with the power of attorney of Shimon and sued Levi, and [Levi] said "the things never occurred" (lo hayu devarim me'olam), where by law he must swear a shevuat hesset and be exempt, and Levi said, "I am reversing the oath upon Shimon, that he should swear and take [the money]"; and likewise when the authorized agent comes to sue with a deed from Levi, and Levi claims "I paid," [and says] "Shimon must swear to me that I did not pay him"—even though Levi is stating the law, nevertheless the sages were concerned that perhaps he is acting craftily to extend the time until Shimon swears. Therefore, the beit din removes the money from the hand of Levi and it shall be placed in the hand of the beit din until Shimon comes and swears and takes [it]. And likewise in the case of one who impairs his deed, and in all that has been explained in [the laws of] Plaintiff and Defendant where the beit din obligates the plaintiff to swear, they remove the money from the defendant and it shall be placed in the hand of the beit din until the plaintiff swears. And likewise all matters that the defendant makes dependent upon the principal shall be adjudicated with the authorized agent, and the money shall be placed with the beit din until the principal comes and clarifies the matter. And the authorized agent has the authority to impose a kabbalah upon anyone who claims a false claim in order to delay the money and postpone the payment. And the beit din sets a time for the principal [regarding] when he shall come and swear or clarify; and if he does not come within that time, the beit din shall return his money to the defendant, for if not so, the principal will also act craftily when he knows that he cannot swear or clarify, and a long time will be extended until the defendant is forced to compromise with him. And the principal cannot say, "I will swear in my place before the beit din that is here," for it has already been explained in siman 87 that an oath must be in the presence of the opposing party. And the principal cannot say, "Let the defendant come to my place," for the law is that the plaintiff follows the defendant. However, ex post facto, if the principal swore in his place an oath according to the law of the Torah, his oath is an oath, as is written there, and he receives his money. Furthermore, it appears that even initially, if according to the eyes of the beit din it is difficult for the principal to come here and increase expenses, they may initially permit him to swear in his place; for behold, there is one who says that the money should not be delayed at all because of this enactment that the sages enacted that the plaintiff must swear, and although we do not rule accordingly in law, nevertheless regarding swearing in his place, if the matter is heavy upon the plaintiff, they may rely upon this.

Specifically regarding money, Levi may withhold it until Shimon swears. However, if Levi was obligated in an oath—and before every oath there is a kabbalah upon the opponent who administers the oath, as written there—Levi cannot withhold and say, "I will not swear until I impose a kabbalah in the presence of Shimon upon whoever claims falsely against me," or according to our custom, "Shimon must accept upon himself an explicit kabbalah." This is because this kabbalah is only a minor enactment that the later Geonim enacted so that the litigants would direct their claims truthfully, and one does not withhold the oath of this party—whether it is a Torah oath or a hesset oath—on account of this minor enactment. And some say that the beit din here should send their letter to the beit din in the place there, and he shall accept the kabbalah there, and the beit din there shall inform the beit din here, and then Levi shall swear [Tur]. And if Shimon does not wish to accept, Levi is exempt from his oath. And even if the agent has a complete share in the claim, the defendant may also withhold the share of the agent due to the refusal of the kabbalah by the principal, for the power of the agent is no better than the power of the principal. And even if the principal completely forgave the debt to the defendant, the agent cannot claim his share from the principal; he must only return his expenses to him, for it is no worse than one who sells a promissory note and then goes back and forgives it, and certainly in this matter. Only if the claim was for land or a deposit, where his share was acquired by the agent in the body of the land or the money in the hand of the bailee, the principal cannot forgive the share of the agent. Nevertheless, we accept the admission of the principal even regarding the share of the agent, and only the agent can impose a kabbalah upon him if he did not act in collusion with the defendant [Shach and Taz].

If the authorized representative has a portion in the claim, his relatives are disqualified as witnesses and as judges. However, if he has no portion and was authorized for a fixed fee even if he does not extract the money from the defendant, and certainly when he acts for free, his relatives are fit both as witnesses and as judges, since he has no portion in either the loss or the gain. If the authorizer said to him, "Your fee shall be dependent on me according to my will," he is an interested party, for it is likely to say that if he wins, he will compensate the authorized representative, and his relatives are disqualified [Beit Yosef]. In a case where the authorized representative is not an interested party, he himself is also fit to testify. Therefore, it is good advice for every plaintiff, when he has witnesses for his claim, not to make one of the witnesses or their relatives an authorized representative, unless he fixes for him a known fee whether he extracts from the defendant or whether he does not extract, so that he will not be an interested party. Nevertheless, the Acharonim wrote that it is an ugly matter for the authorized representative to be a witness, and this requires investigation by the beit din to bring out the law to its truth, as perhaps there is deception and artifice in the matter. So too, the defendant must be careful: when he has witnesses that he paid his debt and the plaintiff appointed an authorized representative who is a relative of the witnesses and gave him a portion, the defendant should not come to litigate with this authorized representative, for his witnesses will be disqualified. But if the authorized representative has no portion in the body of the claim, even when he did not fix a fee for him and more benefit will reach the authorized representative when the plaintiff wins, the witnesses are not disqualified from testifying to the detriment of the plaintiff; for the authorized representative is not a litigant such that his relatives would be disqualified whether for merit or for liability, but rather he is an interested party, and the relatives of an interested party are disqualified only for his merit and not for his liability, as I wrote in siman 37 [Shach]. The defendant has the power to prevent the plaintiff from appointing an authorized representative through whom his witnesses would be disqualified, and if he did so, he does not need to litigate with him. Some say that even when he litigated with the authorized representative and afterwards the defendant found witnesses and they are disqualified because of the authorized representative, the defendant can nullify the judgment and the plaintiff must appoint another authorized representative so that his witnesses will be rendered fit [Taz]. There are those who disagree on this [as is implied from Shach, subsection 25, see there].

The lender can make the borrower an authorized representative to litigate with his guarantor-kablan, and similarly with an ordinary guarantor when the borrower has nothing; but when he has [means], how can he be an authorized representative for the guarantor to pay, for is it not upon him to pay? However, regarding a guarantor-kablan, the lender has the right to claim from whomever he wishes, as was written in siman 129. And similarly, he can testify in this matter when he has nothing with which to pay, and one should not disqualify him due to the concern that he is an interested party because of his desire that the guarantor pay so that he will not be a "wicked borrower who does not pay" toward the lender; for what is the difference? Even if the guarantor pays, will he not be a "wicked borrower who does not pay" toward him? Therefore, if it is in a manner that will be explained in siman 130 where he does not need to pay the guarantor, his testimony is not accepted. But when he has with what to pay, there is one who says that even against a guarantor-kablan his testimony is not accepted when he did not say to him, "Enter as a kablan in my stead" [Shach]. The general rule of the matter: according to the details of the laws of guarantee, if the dayan understands that he has some interest, he shall not accept his testimony. However, it appears that when the borrower has with what to pay, the beit din must say to him: "Why should we accept your testimony? Go out and pay the lender" [see Sma and Shach].

Regarding the ability to appoint women and Canaanite slaves as authorized representatives, some say that one's own slave cannot be appointed as an authorized representative, for how can he write to him "litigate and acquire for yourself," since a slave has no acquisition without his master? And even though we establish that he makes him an agent, nevertheless, he must be fit to acquire for himself. Since a slave has no acquisition without his master, for his body is acquired to him and his hand is like his master's hand, it turns out that he is nothing more than his agent, and the defendant can say, "You are not my litigant." Nevertheless, if he gave him a release from liability, it is no worse than an agent appointed before witnesses. And for his wife, he can grant authorization. Even though a woman has no acquisition without her husband and her hand is like his hand, nevertheless, since it was explained in Even HaEzer siman 85 that one who gives a gift to his wife, she acquires it and he does not consume the usufruct, it turns out that when he writes to her "litigate and acquire for yourself," he has no connection to this [see Sma and Shach].

They may send an authorization via a non-Jew, for even though there is no agency for a non-Jew, he does possess the acquisition of chalipin. Therefore, when the non-Jew gives his kerchief to the mandator and [the mandator] grasps it, his chalipin effects the acquisition for him of the deposit that he has in the hand of the bailee. And if they are coins, he shall acquire them for him via agav karka, for the acquisition of agav karka also applies to a non-Jew [Ktzot HaChoshen]. And even though we hold that he makes him an agent, this is regarding the fact that the authorized representative cannot withhold [the property] for himself; but in truth, does he not write in the authorization, "acquire and bring forth for yourself"? However, in this one must be careful: for in the acquisition of an Israelite, some have the custom that the buyer himself does not give his kerchief to the transferor, but rather the witnesses give their kerchief to the transferor and they acquire through the law of agency on behalf of the buyer, as will be explained in siman 195. But with a non-Jew, one should not do so, and the non-Jew himself must give his kerchief to the mandator. Therefore, they should not write in the authorization, "and we have acquired from him," the explanation of which is that the witnesses acquired from the mandator, but rather they should write, "and the non-Jew acquired." And some say that the witnesses may also give their kerchief, for this is not through the law of agency, only that the phrasing "and we have acquired" indicates agency and should not be written [Taz]. And specifically regarding lands and deposits does an authorization avail for a non-Jew, but a loan, which is not acquired through chalipin, or other things that are not acquired through chalipin and the authorization is only due to the reason of agency—there is no agency for a non-Jew [Rashal]. And some say it avails for everything, and so it is implied from the wording of our teachers, the authors of the Shulchan Aruch [and so wrote the Shach]. And the reason is that since the Geonim enacted that authorization should avail for everything, perforce it is not due to the reason of agency alone, for if so, the authorization is superfluous, and why could the defendant not say, "you are not my litigant"? Rather, one must say that their enactment was that the acquisition in the authorization should avail for everything, and if so, he certainly has the ability to make him an authorized representative. And some say not to write in his authorization "all that you deal with, etc.," for this is the language of agency. And just as an Israelite can make a non-Jew an authorized representative, so too by law a non-Jew can make an Israelite an authorized representative, and the Israelite shall give his kerchief to the non-Jew. And some disagree with this primary ruling and hold that a non-Jew has no acquisition of chalipin at all, and one may not authorize either a non-Jew for an Israelite or an Israelite for a non-Jew [Shach]. However, many of the great authorities decided in accordance with the first opinion, and more will be explained regarding this in siman 194 with the help of Heaven. And such is the custom, to transfer to a non-Jew via kinyan sudar and via agav karka, and so have all halachic authorities practiced in the sale of chametz.

The authorized representative who took upon himself a kinyan sudar that the principal will fulfill what he accepted upon himself, the principal is obligated to fulfill it, for it is as if he accepted it himself, as he wrote to him: "and your action is as my action" [Darkhei Moshe, letter 5]. And likewise, everything that the authorized representative accepted upon himself, the principal is obligated to fulfill.

Our sages, of blessed memory, said [Shevuot 31a]: "And he who did that which is not good among his people"—this refers to one who comes with a power of attorney. In what case are these matters stated? When the plaintiff and the defendant are in the same city, but the defendant is a man of arguments and the plaintiff does not wish to litigate with him and appoints the authorized representative; it turns out that this authorized representative passes by and involves himself in a quarrel not his own, and who sought this from his hand? The spirit of the sages is not pleased with him. However, if the defendant is in another city and the plaintiff sends an authorized representative to his city in his place, behold, this person performs a mitzvah, for if not so, everyone would take the money of his fellow and go away, knowing that the plaintiff would not be able to come to his location. And likewise, if the defendant is a violent man and they know that he will confuse the plaintiff with his arguments and it is not within his power to stand with him together in beit din, it is also a mitzvah for the authorized representative to stand for him and to rescue the oppressed from the hand of his oppressor, and everything is according to the matter. And it is forbidden for the authorized representative to plead falsely, for even the litigant himself is forbidden to lie.

Some say that a person cannot appoint a representative not in his presence unless he transfers ownership to him in the presence of witnesses through a kinyan sudar and says, "I hereby transfer ownership and authorize so-and-so regarding my debt to extract it from the hand of so-and-so," for one may not disadvantage a person without his knowledge, and it is written, "and that which is not good he did," as I wrote in section 16. Therefore, even if he later consents to the matter, it is nothing, since the kinyan did not take effect from the outset. And according to this, in a case where it is a mitzvah to be a representative according to what I wrote there, he may appoint him even not in his presence [Shach and Taz]. And some say that even in such a case he should not appoint him not in his presence, because most often a person does not consent to be a representative and to become involved in a dispute that is not his, and the kinyan does not take effect even when he later consents [Sma]. Therefore, it is good to ask the representative beforehand via a letter if he consents to this, and then he should write the harsha'ah for him.