Siman 182

We hold that a person's agent is like himself according to the Torah. It appears that there are four principles in this matter: Regarding a voluntary matter, such as buying and selling and the like, a person can appoint an agent for anything. Regarding a matter of a mitzvah, anything that is a preparation for a mitzvah, one can appoint an agent, such as to build a sukkah for him, or to buy him an etrog, shofar, tefillin, mezuzah, and tzitzit, and to attach them to the tallit, and to fix the mezuzah to the door. Similarly, to betroth a woman for him, for this too is like a preparation for a mitzvah, as the essence of the mitzvah is procreation [the Rosh, first chapter of Ketubot, siman 12, and the Ran ibid.]. Therefore, only regarding betrothal with money or a document can one appoint an agent, but not regarding betrothal through cohabitation, as that is the mitzvah itself. Even a matter of a mitzvah itself, if it is not an obligation but rather the mitzvah comes to him by his will, it too is like a voluntary matter, such as to separate on his behalf terumot, ma'asrot, and challah, and to bring bikkurim [see Rashi, Gittin 47b], for the Torah did not obligate one to buy a field and sow it or to bake bread, but rather when he voluntarily buys, sows, and bakes bread, he is obligated in them. Similarly, the redemption of a firstborn donkey, the sending away of the mother bird, and the making of a parapet—one can appoint an agent for these reasons, because he voluntarily brought himself into the obligation. And there are two matters regarding the mitzvah itself where it is an obligation upon him to perform the mitzvah and yet he can appoint an agent, and they are circumcision and the redemption of the son; for even though the obligation is cast upon him to take a wife, bear sons, circumcise them, and redeem the firstborn, nevertheless, since the mitzvah is not upon his own body but upon the body of his son, he can appoint an agent in his place. But a mitzvah that is upon his own body and is the completion of the mitzvah, such as to don tefillin, to sit in a sukkah, to take a lulav, and to eat matzah, or a mitzvah of speech, such as to pray, to recite the grace after meals, and to study Torah, or a mitzvah of hearing, such as to hear the reading of the Torah and to hear the shofar and the like—since the Torah obligated this specific body, he cannot appoint an agent in his place; and furthermore, the other person is occupied with his own mitzvot. And to divorce his wife, he can appoint an agent, for this is voluntary, as the Torah did not obligate him to divorce her; and even when she is promiscuous and it is a mitzvah to divorce her, nevertheless, the essence of divorce is voluntary. And there are matters that the Torah excluded from agency [Tosafot, beginning of Arachin].

And from where did we learn to establish these principles? From the essence of agency, for our sages, of blessed memory, learned agency from divorce and betrothal, since it is equated to divorce, and from terumah and from the Pesach offering [at the beginning of the second chapter of Kiddushin]. And we learned from betrothal regarding a matter that is a preparation for a mitzvah, and from terumah we learned regarding a matter of a mitzvah where by his own will he brought himself to the point of obligation, and from divorce we learned regarding a matter that is optional, and from the Pesach offering we learned regarding a matter that has no substance in his body. For regarding the Pesach offering there are two mitzvot: its slaughter and its eating; and the eating is literally in his body, while the slaughter is not literally in his body, and the Torah permitted appointing an agent for the slaughter but not for the eating. And perhaps you will say that according to the principles we have established, a person should be able to appoint an agent to recite Birkat HaMazon on his behalf, for by his own will he brought himself to the point of obligation, since if he wished he would not have eaten? This is no precision at all, for a person is compelled to eat insofar as he is a human being, and it is like an obligation; this is not the case with terumah and challah, for can he not buy grain and bread from the market? And in matters of money, even in a matter of a mitzvah, a person's agent is like himself.

A Kutite does not become an agent, as it is written regarding terumah, "so shall you also lift up," and we derive: just as "you" are members of the covenant, so too your agents must be members of the covenant. And we have learned that even regarding terumah, which a Kutite is relevant to—for when he separates terumah from his own grain, his terumah is terumah [ibid. and see the Rambam, chapter 4 of Hilkhot Terumot, and it requires great study]—he does not become an agent; all the more so regarding matters that he is not relevant to. From this we have learned that even in optional matters such as buying and selling, which they are relevant to, he does not become an agent, just as in terumah. And in siman 188 it will be further explained in this matter with the help of Heaven. A deaf-mute, an insane person, and a minor do not become agents, as they are not possessed of legal competence. A woman becomes an agent even in a matter of a mitzvah that she has no relevance to, such as to circumcise or to redeem a son, because she has entered into the covenant of the Torah and the mitzvot and is called a member of the covenant [see Yoreh Deah siman 264]. Therefore, a man can also be an agent to receive a get, and a woman to deliver a get, because they are relevant to gittin, and likewise in kiddushin, and likewise in other mitzvot, even though the woman is not obligated in them, such as tzitzit, sukkah, and lulav [Tosafot Gittin 45b]; nevertheless, a man can make her an agent to prepare all these for him. However, regarding the writing of a Sefer Torah, tefillin, and mezuzah, the Torah decreed that she may not write, even though she is obligated in mezuzah [ibid.]. A slave, since he is obligated in mitzvot like a woman, can be an agent, as he is called a member of the covenant [Rashi ibid. 23b], except in gittin and kiddushin because he is not within the legal framework of gittin and kiddushin [ibid.]. Nevertheless, regarding delivery, there are those who qualify him, as is written in Even HaEzer siman 141, and there the reason is explained, but we do not rule accordingly; see there.

Our Sages, of blessed memory, said [Nazir 12b]: A person does not appoint a messenger except for a matter that he is able to do now; for a matter that he is not able to do now, he does not appoint a messenger. From this, our teachers the authors of the Tosafot learned that a person cannot appoint a messenger for himself to perform a matter for him after a period of time which he himself does not have the ability to perform now. Even though at the time the messenger will perform it on his behalf he will have the ability to perform it, nevertheless, since at the time of appointing him as a messenger he was unable to perform it, he does not have the ability to appoint him as a messenger. For example, Reuven who appointed a messenger to betroth a certain woman for him after her husband divorces her, or appoints him a messenger to betroth his wife's sister for him after his wife dies. And similarly regarding a matter that is lacking an action, even though it is within his power to perform, such as one who appoints him a messenger to write a get for his yevama after he performs yibbum with her; even though it is within his power to perform yibbum with her, nevertheless, since it is still lacking the action of yibbum, he does not have the ability to appoint a messenger. And it appears that they have the version in the Gemara: "for a matter that he is not able to do now, he is not able to appoint a messenger," whereas before us the version is "he does not appoint a messenger." And there is one of the great authorities who holds that the intention of our Sages, of blessed memory, is that it is not in a person's mind to appoint a messenger for a matter that he is not able to do now, but if he explicitly stated that he is appointing him as a messenger for this matter, it is a valid shlichut [Maharit, siman 23]. And so it is implied from the language of the Rambam, chapter 9 of Ishut, who wrote: "And a person does not appoint a messenger to betroth a woman for him except for a woman whom he is able to betroth at the time of the shlichut." Thus far his words. And he did not write that he "cannot" appoint a messenger. And so wrote Rabbeinu Yerucham, and this is his wording: "For when he appointed him a messenger, he only appointed him over women whom he himself was able to betroth at that time." Thus far his words. Regarding the halacha, since in the Tosafot it is explicit that he cannot appoint, and similarly the Ramban, the Rosh, and the Ritva brought this Gemara in the tenth chapter of Nedarim and have the version "he is not able to appoint a messenger," and in the Rambam it is not so proven, we hold like them. [And according to the Maharit, this is the explanation of the sugya: that it answers that shlichut is not comparable to nezirut, and because the messenger cannot act unless the sender can act, and in a matter that he cannot do now, he does not resolve to do it. And it asks from one who says to an apitropos, where it is explained that he can do even what the sender cannot do, for the Gemara holds that the husband did not hear, as in the first thought in Nedarim 72b, and so it is implied from the Beit Yosef there, and the difficulty of the Mishneh LaMelech there is answered; and delve into this.]

And according to this, if Reuven appointed an agent to sell Shimon's house after he purchases it from Shimon, or to sell his own house after he builds it, or to sell his garment after he sews it—even if the wood and the fabric are prepared before him—his agency is nothing, since it is lacking an action. And so too regarding Shimon's house, he cannot sell it now; even though it will be within his power to sell it after he purchases it, nevertheless, he cannot appoint an agent. And when the agent sells it after he purchased it from Shimon, or after he built, or after he sewed, his sale is nothing. However, we see deeds every day where a woman says to her friend, "Knead flour for me and separate challah for me on my behalf," and yet she herself does not have the power to separate challah from flour [Tosafot ibid.]. And it must be said that since it is within her power to say that when it becomes dough the name of challah shall take effect upon it, as we hold in Yoreh Deah siman 327, therefore she can also appoint an agent for this. And so agreed the great Rishonim, as our teacher, the Beit Yosef, wrote in his great book there. And this is not like a thing that has not yet come into the world, since it is in her hand to knead, it is called "come into the world" [ibid.]. And it is not similar to one who appoints an agent to divorce his yevamah after he performs yibbum with her, which was explained that he cannot do so; even though it is in his hand to perform yibbum with her against her will, nevertheless, this is not truly in his hand, for it is in her hand to slip away from him [so it must be said according to this opinion, and the difficulty of Tosafot ibid. is settled]. And according to this, also regarding a building and a garment, he can appoint an agent to sell after he builds it or sews it, since it is in his hand to do. And if after he built it and sewed it the agent sold it, his sale is valid [so it appears to me].

The sender can cancel the agency of the agent before he has performed his mission with a mere statement, when he says "I cancel the agency of so-and-so." He can cancel it even not in his presence. In matters of gittin and kiddushin, he must ab initio cancel it in his presence so that the matter does not lead to a mishap if the agent does not know of this, as is written in Even HaEzer siman 35 and siman 141. He can cancel it even privately if the matter does not affect others, but when it affects others, he is not believed to say that he cancelled it and must cancel it before witnesses [as is evident from the beginning of the fourth chapter of Gittin, and that which is said there "before two" is so that we believe him]. If he has a migo, he is believed to say that he cancelled it [Beit Shmuel ibid. subsection 91]. He cancels it in the future tense and not in the past tense [as is evident in the Gemara ibid.]. The agent can also retract from his agency, and if he takes a wage, his law is like a laborer or a contractor who retracted, which was explained in siman 333 [it appears to me].

If one sent a messenger and the messenger died, or went to a distant land and it is not known if he performed his mission or not, or perhaps he deviated from the details of the mission: if it is known that he performed the mission in general, even if the details are not known, we say there is a presumption that he did not deviate [Magen Avraham, siman 409]. And if it is not known at all if he performed it, in a monetary matter we do not say the presumption that a messenger performs his mission [according to Rav Nachman, Eruvin 32a, for the halakha follows him in civil law, and so wrote the Teshuvot Maimoniyot, Kinyan, siman 23]. In a matter of prohibition regarding a rabbinic matter, we say this presumption, and the sender may rely on this as if it were known that he performed it; but in a Torah matter, we do not rely on this except to be stringent [Rabbeinu Tam in Tosafot ibid.]. This is also implied by the Rambam in chapter 4 of Terumot, and such appears to be the opinion of the Rif and the Rashba [Mishneh LaMelekh, chapter 4 of Bekhorot]. However, according to many of our teachers, even in a Torah matter we rely on this presumption in a case where if he does not perform his mission the sender will come to commit a transgression, such as if he made him a messenger to sell his animal that is a firstborn [Tosafot and the Rosh ibid., and Teshuvot Maimoniyot ibid., and the Mordekhai, chapter 6 of Gittin]. And for stringency, according to all opinions we are concerned even in a matter that is not in the power of the messenger alone to perform, such as if he sent him to betroth a woman, which depends also on her consent, and similar cases [ibid.]. And it appears to me that if he hired him for a wage and the messenger already received his wage, we rely on him in any matter that is in his power to perform, whether for leniency or for stringency, for he certainly would not violate the prohibition of theft, and had he not performed his mission, he would have returned his wage to him [and in the book Imrei Lephi, siman 106, we have elaborated on this with the help of Heaven].

We hold that a messenger may appoint a messenger, and the second may appoint a third, and so on forever, for a person's messenger is like himself and possesses the power of the sender. The concept of agency applies not only to a matter involving an action, but even for speech one may be made a messenger. However, in an agency of speech, the messenger cannot appoint a second messenger on his own, and thus our Sages, of blessed memory, said: "Words cannot be handed over to a messenger" [Gittin 29a], and the messenger has no power to hand over the agency to another [Rashi]. Furthermore, even in a matter of action where a messenger may appoint a messenger, this is in a matter where there is no objection from the sender if he hands over his agency to another; but in a matter where there is an objection, he shall not hand it over to another [Tosafot ibid.]. And he shall not hand over a matter where he objects unless an unavoidable accident occurred such that he is unable to complete the agency himself, such as if he fell ill or the like. And if reliability is required for the matter of the agency, such as if he sent money or objects with him, or sent him to receive money or objects, he shall not send it with another even if an accident occurred, unless he knows clearly that this second person is reliable in the eyes of the sender, and he shall not change anything from his agency [as above from the sugya there; and what the Beit Shmuel wrote there in subsection 54 that we require a revelation of intent that he does not object, the Ran in his second answer wrote so, but in Tosafot there and the Ran in his first answer it is explained that only if he understands that he will not object may he appoint a messenger in a matter that does not involve reliability, see there]. And in a case where a messenger may appoint a messenger, and the first messenger appointed a second messenger, and the second a third, and the third a fourth, up to one hundred messengers—if the first sender died, the agency of all of them is void. But if the first messengers died and the sender is alive, the last one performs his agency, for all of them came by the power of the sender and not by the power of the messengers [Gemara ibid.]. And regarding one who says "tell so-and-so to do such and such," whether it is like an action that can be handed over to a second or whether they are like words that are not handed over to a messenger, there is a dispute regarding this: for according to the Rambam in chapter 4 of Zekhiyah it is like words, and according to the Tur in siman 244 it is like an action. Regarding Gittin, even according to the Rambam he is in doubt due to the severity of the prohibition, and there it will be explained with the help of Heaven [and in the book Eliyahu Rabbah siman 62]. So too regarding Kiddushin, some say it is like words, and it was explained in Even HaEzer siman 35.

We hold that there is no agent for a matter of transgression. There are two reasons for this: one is based on logical reasoning, that regarding the words of the Master and the words of the student, whose words should one listen to? How could he listen to the words of the sender and violate the command of the Holy One, Blessed be He? Furthermore, our Sages, of blessed memory, learned this from slaughtered offerings outside the Temple, where the Merciful One excluded an agent, and we learn from this for the entire Torah. Some say that this is specifically when the agent is subject to the obligation; however, if he is not subject to the obligation regarding this matter for which he was made an agent, there is an agency even for a matter of transgression and his sender is liable. According to this, a kohen who told an Israelite, "Betroth a divorced woman for me," the kohen is liable. But if the agent was a kohen, who himself is forbidden to a divorced woman, his sender is exempt. And some say that it does not depend on this, but rather that if the agent acts of his own will, there is no agent for a matter of transgression even when the agent is not subject to the obligation; only if the agent acts against his will, such as if he did not know of the transgression at all—for example, if he sent an agent to sell a stolen object and the agent did not know it was stolen—there is agency and his sender is liable. And it appears to me that it depends on the two reasons we wrote: for if the reason is because of "whose words should one listen to," then even when the agent is not subject to the obligation, since the sender has a transgression in this, "whose words should one listen to" applies here as well, for the agent should not have done a matter of transgression for his sender. But if he did not know of the transgression, "whose words should one listen to" does not apply. And according to the second reason, which we learn from slaughtered offerings outside the Temple, we require it to be similar to there, that the agent also has a transgression. [And this is the opinion of the Ritva there, and as mentioned, this is the opinion of the Tosafot, Bava Metzia 10b, starting with the words "Ein sheliach," see there. However, from the fact that it asks there, "And according to the one who says, etc., these instances of 'that one,' 'that one,' what does he derive from them?"—and what is the difficulty? Let him say that it comes so that one should not learn from logical reasoning alone; rather, certainly the Talmud holds that the reason of logical reasoning is primary, and study this well].

And some say further that even if the agent did not know that it was stolen, in this case as well there is no agent for a matter of transgression, since if he wished he could do it and if he wished he could not do it. And you do not find an agent for a matter of transgression according to the second "some say" except regarding a courtyard, which is by way of agency because he places it therein against its will; but regarding a person, even if he is unintentional, nevertheless since he acts of his own will, there is no agent for a matter of transgression [Shach siman 348]. And many disagree with this and hold that when the agent was unintentional, there is an agent for a matter of transgression even according to the second "some say." And our teacher the Maharshal, chapter 7 of Bava Kamma siman 33, and the Maharit siman 114 agreed to this. And it appears to me that the opinion of our teacher, the Rema, is also thus. And that which he wrote: "And specifically when the agent is subject to obligation, but if he is not subject to obligation, he is an agent even for a matter of transgression," thus far his words, his intention is not like the first "some say" that we wrote according to the wording of the Shas. For behold, in siman 348 he also wrote this wording, and there it is explained from the source of the law that the intention is when the agent did not know it was stolen. Furthermore, in monetary laws one cannot find a matter that would be forbidden to this one and permitted to that one. And also here in his book Darkei Moshe it is explicitly thus, and so too in the Hagahot Maimoni, chapter 4 of Shluchin, and he ruled like the second "some say" and employed the wording of the Shas even though the intention is different [and in the Darkei Moshe this wording is well-settled, and such is the wording of the Mordechai in the first chapter of Bava Metzia and the wording of Rabbeinu Yerucham, netiv 28; and that which the Sma wrote is well-settled, that if he is not subject to obligation the logic of "whose words does one listen to" is not relevant, and the Shach pressed himself in vain regarding the wording of the Rishonim and took issue with the Rema; and delve into this].

Some say that one who sends a minor to perform a matter of transgression, since he is not of sound mind and the logic of "if he wants he does it, if he wants he does not" does not apply, it is like a courtyard where according to everyone there is agency for a matter of transgression and the sender is liable [Nimukei Yosef ibid.]. And some disagree regarding this, for granted that he is not of sound mind, yet there is no agency for a minor, and it is not similar to a courtyard which is his domain and is his agent, which is not the case with a minor [Shach]. And there is one who decides in this matter that specifically for the fulfillment of the act there is no agency for a minor, and therefore when it is possible to reverse the act, such as in theft and in acquisitions, his actions are nothing for he has no agency; but regarding the punishment for the transgression when the act cannot be reversed, such as if he sent him to burn the grain of his fellow and he burned it, certainly the sender is liable. And that which will be explained in siman 418, that one who sends a fire in the hand of a deaf-mute, an imbecile, or a minor is exempt by the laws of man, this is when he did not send him to cause damage, but if he sent him to cause damage he is liable [Netivot HaMishpat]. And so appears to be the primary view. And so too when he sent via a Cuthean [Shevut Yaakov], and so too when he sent via a deaf-mute or an imbecile; and see what I wrote in siman 410, section 8.

Just as there is no agent for a matter of transgression, so too one cannot appoint an agent to disadvantage others, even though he himself is able to do so, as written in siman 105. And there it was explained that some say if he hired him for a wage, he is like a laborer and can disadvantage others. However, regarding an agent for a matter of transgression, it is not effective according to all opinions even for a wage, for what benefit is hiring regarding a transgression? It is only there, where it is not a transgression—for the dispatcher is permitted to seize, only that the agent cannot disadvantage others—that some say regarding one who takes a wage, his hand is like his hand. But regarding a transgression, it is not relevant to say so [Sha'ar HaMishpat].

Some say that in any place where there is no agent for a sinful act, the action performed by the agent is void and is as if he did nothing at all, provided it is possible to reverse the action. Therefore, if one sent a get via an agent to divorce his wife against her will, it is not a get, since there is a prohibition in this, and there is no agent for a sinful act [Noda BiYehudah siman 75 and Ketzot HaChoshen]. Many disagree with this and hold that the action stands, for in the Gemara they only spoke regarding the liability and not to void the action. In practice, it is a legal doubt, and one follows the stringency and not the leniency. Several of the great authorities were uncertain about this [Maharit and Machaneh Ephraim]. In a place where it is impossible to reverse the action, the liability is upon the agent, except for slaughtering and selling regarding the fourfold and fivefold payments and for misappropriation of sacred property, where there is an agent for a sinful act because the verses included them, as has been explained in their respective laws. Also regarding a rabbinic prohibition, it appears that there is no agent for a sinful act, since the primary reason is because of "Whose words does one listen to?" and just as with a Torah prohibition the sender can say, "I thought he would not listen to my words," so too with a rabbinic prohibition [and so wrote the Noda BiYehudah there; and according to the reason that we derive it from slaughtered offerings outside the Temple, it is possible that one cannot derive a rabbinic law from a Torah law, but according to the first reason there is no difference].

One who says to his agent, "Go and sell land or movable property for me," or "Buy for me," behold, this person sells and buys and performs his agency, and all his actions are valid. Neither the one who appoints an agent nor the one who hires a worker requires a kinyan or witnesses, but rather mere speech between him and his fellow. Witnesses are only for the purpose of revealing the matter if one of them should deny it. There is a great principle in monetary laws: witnesses were only created for falsehood; however, when both of them admit, the matter is established without witnesses. But when one sends via one who is not fit for agency, such as a cheresh, shoteh, or katan, or a Cuthean—whether he sent him to buy or whether he sent him to sell or other matters—the action is nothing, even if there were a kinyan and witnesses, since they are not subject to agency. Nevertheless, if the seller delivered the object through them and wrote to the buyer, "Pull and acquire," the buyer acquires when he pulls. Similarly, if the buyer sent money through them to buy, the sender acquires when the seller receives the money [Netivot HaMishpat], for the action is not completed through them, and they are doing nothing more than the mere action of a monkey. It will be further explained in siman 188 with the help of Heaven.

Since there is no agency, a kinyan is required; therefore, one who says to his fellow, "Purchase this merchandise and I will partner with you," and he went and purchased it, even if the agent purchased it with his own money, the sender cannot retract, for he is like his agent. And even if he said, "Purchase merchandise" in general and did not specify a particular merchandise for him, since he said, "I will partner with you," he is like his agent, and what he purchased belongs to the partnership. The sender is obligated to return to him half of the money for the merchandise, unless he purchased so much that we are witnesses that it did not enter his mind to purchase so much. Also, the agent cannot retract after he has purchased, as has been written in siman 183. Before he has purchased, he may retract even not in his presence, as has been written there. However, the sender cannot retract not in the presence of the agent, even if he cancelled his agency in the presence of witnesses, for the agent relies upon him and purchased the merchandise, and his law is like a guarantor at the time of the giving of money who becomes obligated [ibid.]. And if he wishes to retract, he must inform the agent so that he does not purchase on his behalf.

If the agent violated the intent of his sender, he has done nothing. This is specifically when he informed them that he is the agent of so-and-so. Therefore, even if he was the agent of the buyer and performed a meshikhah, or if he was the agent of the seller and the buyer performed a meshikhah from him, if it becomes known that he violated the intent of his sender, the transaction is void and he returns it. However, if he did not inform them that he is the agent of so-and-so, the transaction is acquired and the law shall pierce the mountain between him and his sender. Even if it was clarified that he is an agent and violated the intent of the sender, nevertheless the transaction stands, for we assess the intent of the agent: since he did not mention to the seller or to the buyer that he is the agent of so-and-so, his intention was that the transaction should stand, and it is upon him to rectify if he caused a loss so that he should not be like a robber. And even if he has nothing with which to rectify the loss, nevertheless the transaction stands [ibid.].

And so too, if the agent erred in the transaction, such as if he bought at a high price or sold at a low price, even if he erred by any amount, the transaction is void, whether in land or in movable property. And even though when one buys or sells for himself the transaction remains valid up to a sixth, nevertheless, regarding an agent the transaction is void, for he says to him: "I sent you to benefit me and not to cause me loss." Therefore, if he stipulated with him that he makes him an agent whether for benefit or for loss, even if he sold for him that which is worth a maneh for a dinar, or bought for him that which is worth a dinar for a maneh, he cannot retract, and the sender is obligated to give according to the condition that was between the agent and the second party, if the purchase is of items that are not subject to ona'ah or if it is after the time that he can no longer claim his ona'ah, as written in siman 227 [Shach]; for if not so, is it because he said to him "whether for benefit or for loss" that he should be worse off than himself? And why should the law of ona'ah be nullified for them? And this which we said, that by any amount the transaction is void, this is specifically when he informed him that he is an agent; but if he did not inform him, the transaction remains valid when there is no measure of ona'ah in this or it is after the time that he can no longer claim his ona'ah, which is long enough to show to a merchant or to his relative. And the agent cannot say "I was under duress in that I did not show it to a merchant immediately because I delivered the object to the sender," for since he did not inform that he is an agent, he is considered like the owner [Netivot HaMishpat], and the law of the sender with the agent is that he must make up the difference from his own pocket, but the transaction remains valid as with a person buying for himself. And this which has been explained, that when he stipulated with the agent "whether for benefit or for loss" the transaction remains valid, this is specifically in a matter that they did not speak of explicitly; but in that which he spoke with him explicitly to do such and such and the agent deviated, or if he said "at such and such a price you shall buy or sell" and he deviated in this, the transaction is void, for certainly what he said to him "whether for benefit or for loss," his intention was regarding other matters, as it is not the way of people to say "such and such you shall do" and that regarding this itself he should say "whether for benefit or for loss" [and this is the intention of the Taz, and that which the Sha'ar HaMishpat wrote from siman 123 is well-settled, and such appears to be the opinion of the Sma, subsection 7].

There is one who says that as long as the sender does not clarify that he made him an agent to buy or to sell without specification, the second party can say: perhaps you stipulated with him whether for improvement or for disadvantage, and the burden of proof rests on the claimant. And even though the sender claims with certainty and the second party claims with uncertainty, nevertheless, when he is in possession we say the burden of proof rests on the claimant, as written in siman 223 [Sma]. And if the agent does not receive payment for his agency, he certainly stipulated thus with him so that he would not be liable when he disadvantages. And even if the agent also says like the sender, he is not believed, for he is an interested party. And only if he says that he told the second party that the one who sent him sent him without specification, he can obligate him a shevuat hesset that he did not say so to him [it appears to me; and see Shach subsection 4, and it requires further study as written in Netivot HaMishpat].

One who commanded another to involve himself in a certain matter, and he incurred expenses according to his command: if he spent more than is customary to spend on such a matter according to the estimation of those who know, he is not required to give him all that he spent beyond what is customary. But if he did not spend more than is customary, he is obligated to pay him. And regarding more than is customary, even if the agent seized [the funds], it is of no avail, for we are witnesses that it was not in his heart to do so [Hatam Sofer]. And if the agent says that he commanded him to spend as he desired, he can obligate the employer to an oath of hesset that he did not command him so [it appears to me].

All of this applies when he deviated against the sender, but if he misled the second party, his law is like that of any other person, where up to a sixth the transaction stands regarding movable property, and regarding land even more than a sixth, and the sender acquires the surplus even when he told the second party that he is an agent. For what does the second party have to do with this one's agency, such that through this he would lose or gain? Behold, he did not appoint him as an agent. And it is not similar to a beit din that sold, where even if the buyer was defrauded by any amount the transaction is void, as I wrote in siman 109, for the second party also relies upon the beit din, which is not the case regarding an agent, as I wrote there [Sma].

If one gave money to his agent to buy land for him and he bought it without a guarantee of title, this is a deviation, and the principal does not need to clarify that he did not say to him "whether for improvement or for deviation," for a person does not buy land without a guarantee [Taz], unlike the one who disagrees on this [and so it appears from the Rosh at the end of Bava Batra, see there]. Therefore, if the agent informed the seller that he was buying on behalf of his principal, the transaction is completely void, and the principal cannot compel the agent to provide him with a guarantee and uphold the transaction; likewise, the agent cannot compel the principal to accept his guarantee. And if the money is no longer in the seller's possession and the agent also has nothing with which to pay, the choice is in the hands of the principal: either the agent shall accept the guarantee and uphold the transaction, or he shall void the transaction and wait for the money from the seller or from the agent, as he has the power to collect from whomever he wishes, for since the agent deviated, he can claim from him as well. Such is the law in any place where the agent deviated and it is impossible to extract from the seller, he extracts from the agent. And if the agent did not inform the seller that he was buying on behalf of his principal, the seller has no legal dealings with the principal, and the transaction stands between him and the agent. The choice is in the hands of the principal: either to take his money from the agent or to compel him to accept the guarantee. And if the agent does not have money and the principal does not consent to his guarantee, it is not in our power to assist him. Some say that even when he did not inform the seller, the principal can void the transaction and receive his money from the seller, and so in every case of deviation the law is such, for it stands to reason not to cause a loss to the principal because of the deviation of the agent who did not inform him; for in any case, he bought it with the principal's money, and how can we force him to uphold a matter that will cause him a loss [Ra'avad, chapter 1 of Shluchin]. And some say the opposite, that there is no difference between whether he informed him or did not inform him, and the principal's legal standing is always with the agent, and between the agent and the seller the transaction stands [Rashba]. The main view is like the first opinion [Shach and Taz]. All this applies when he bought with the principal's money, but when he bought with his own money and deviated, he does not need to rectify his deviation for the principal, and his agency is voided, and what he did, he did for himself [Sma]. And there is room for doubt when he bought with his own money and said to the seller that he was buying on behalf of his principal, and since he deviated and his agency was voided, whether the agent can void the sale by saying, "I thought that the principal would not be particular about this, and since he is particular and I do not wish to keep it for myself, the sale is automatically voided"; or whether the seller can say to him, "Since you deviated from the mind of the principal, you certainly intended and accepted that if the principal would not consent, you would keep it for yourself." And reason tends toward the view that according to the first opinion, he can void the sale.

One who gives money to his agent to buy grain for him and stipulates with him that he should provide it to him throughout the year at the current price, for which we maintain in Yoreh Deah siman 175 that he must stipulate with the seller that if the price becomes cheaper than the current rate he shall provide them to him at the cheaper rate; and if he did not stipulate, he must receive them at the current rate, and if he retracts, he must accept the "Mi She-Para" according to the law of acquisition through money; and the agent erred and did not stipulate that he should provide them to him at the cheaper rate and they became cheaper, this is a distortion and the sender may retract. He is also exempt from "Mi She-Para" for he says to him, "I sent you to benefit me and not to cause me a loss." The agent is also exempt from "Mi She-Para" even when he did not inform the seller that he is an agent, for it has been explained that the transaction is valid between the agent and the seller; nevertheless, regarding money, which is not a complete acquisition except for the acceptance of "Mi She-Para," the agent is also exempt, for in such a case the sages did not institute it [ibid.]. And it appears to me that this is specifically when the buyer has not yet received produce during that time, but if he received it and knew that the agent did not stipulate that when they become cheaper he should provide them to him at the cheaper rate, and afterwards he wishes to retract, he is obligated to accept "Mi She-Para," for he surely reasoned and accepted it [and so it appears from Shulchan Aruch section 7: "to give them to him on such-and-such a day"].

One who says to his agent, "Sell a beit seah from my field," and he went and sold a beit satayim, this is not an error such that he would have the power to void the agency entirely, for he added to his words. Therefore, if the buyer agrees to take a beit seah, the transaction is valid, and he shall give him half the sum of the money. However, if the buyer does not want a seah, the agency is automatically voided, even if he did not inform the buyer that he is an agent; for regarding land, it is not relevant to say that the agent shall fulfill his words, since the land is not his and the sender does not want to fulfill the addition that the agent added. And even if the agent has other land and the buyer or the sender agree to take his land in place of the seah he added, nevertheless, we cannot compel the agent in this, even though he erred, for ultimately he did not sell his own land. And the same applies to all objects, even with movables [it appears to me]. And if he diminished from the words of the sender, such as if he said to him, "Sell a beit satayim," and he sold him a beit seah, this is an error, for he transgressed his words, and the sender can retract if the buyer does not agree to buy satayim. For the sender can say, "I am in need of money to the value of satayim, and that I should sell a seah to this one and a seah to another—it is not my will that the sale documents should multiply against me and a rumor go out that I am selling my fields because of my financial pressure, whereas when I sell to one person, it is not such a publicity."

That which has been explained, that when he commanded him to sell a se'ah and he sold two se'ahs, the buyer may retract if he does not desire the se'ah, this is specifically if, in such a case, were he buying from the seller himself, he would have acquired the two se'ahs. However, in a situation where, if he were buying from the seller, it would also not be acquired by him in its entirety—for example, where the kinyan was only completed on the beit se'ah, such as if he sold him two fields and he only gave money for one, as written in siman 192; or like the matter that will be explained in siman 203 regarding one who exchanged a cow and a lamb for a kor of wheat, and he pulled the cow but did not pull the lamb, where he acquired wheat only corresponding to the cow; or if he sold two separate items and there was a set price for each one individually, but one of them was not in the possession of the seller and the kinyan did not take effect, yet nevertheless for the second item the kinyan took effect since they are separate items and there is a set price for each individually—for it is a great principle in sales that when the buyer knows that the kinyan only takes effect on half of the purchase, such as in that of siman 192 or in siman 203, even though he acquired them with one set price and they are like one thing, nevertheless the buyer perforce acquires half and cannot say "I desire a complete purchase," since he knew that the kinyan does not take effect on all of it. Therefore, if it were also thus with the agent, the buyer cannot retract. And similarly, even if the buyer did not know that the kinyan was not completed in its entirety—such as if he sold him two items and one was not in the possession of the seller—if the two items had one set price, it is like one thing, and since it was not fulfilled in its entirety, the buyer may retract. But if they are separate, such that there was a set price for each one individually, he cannot retract from the one item for which the kinyan was fulfilled, and therefore also with an agent he cannot retract [Netivot HaMishpat]; only in a place where there is a disclosure of intent that he does not want to buy or sell except for the whole of it, as written in siman 200, the purchase is not acquired if it was not in its entirety, and so too regarding an agent the law is thus.

If he said to the agent, "Sell my field to one person," and the agent went and sold it to two, his sale is void, for he transgressed his words; and even if he sold them with one deed, for he explicitly stated that it is not his will to have dealings with two. And some say that this is specifically when he sold to them with two deeds, for regarding a multiplicity of deeds there is a grievance, but with one deed there is no grievance, as the agent can say, "I thought your grievance was only regarding two deeds." Therefore, if he said to him explicitly that it is not his will even with one deed, his agency is void when he sold to two even with one deed [Tur]. And if he said to him without specification, "Sell my field," and did not specify that he should sell only to one, even if he sold to one hundred people, his sale stands. In what case does this apply? When he sold them with one deed, or even when he sold them with two deeds or more, provided that the agent signed the deeds and the sender will not need to sign himself. But if he sold to two with two deeds and the sender will need to sign the two deeds, his sale is void, for certainly in such a case there is a grievance even though he did not specify, as he should have understood this on his own. And some say that whenever he sold with two deeds the sale is void even with the signature of the agent, for regarding a multiplicity of deeds there is a grievance even though he did not specify [Sma and see Netivot HaMishpat].

One who appointed an agent to buy him a field, and the seller said to the agent, "I am selling on this condition: that when I have money and wish to receive it back, your sender shall return it to me," and the agent replied to him, "Why should I speak of this? You and my sender are friends and companions, and you will certainly reach a compromise in a good manner"—it is only sold upon this condition, and the buyer must return it to him when the seller wishes. And we do not say, "Behold, the seller knew that the agent has no authority over this condition," for since the agent did not reply to him that he does not wish to buy with this condition, but rather replied to him that you will presumably reach a compromise, he only sold upon this condition. And this is certain: if the sender wishes, he may immediately nullify this condition, and if the seller does not agree to its nullification, he may nullify the sale. But nevertheless, if the sender did not know of the condition, or if he knew and remained silent, the seller may nullify the sale when he has money and wishes to take it back. And the law of the produce that he consumed was explained in Yoreh Deah siman 174 [see there in the Shach who disagrees with the Sma subsection 20]. And regarding any condition that the agent made of his own accord, the sender may nullify it, and if he did not nullify it, the condition remains in its full force, since the other party agreed with the agent upon this condition [it appears to me].