Siman 188

It has already been explained in siman 182 that it is a scriptural decree that there is no agency for a Cuthite, and likewise an Israelite does not become an agent for him. And if a Cuthite becomes an agent for a Cuthite, some say that he becomes an agent, for the Torah only excluded him for an Israelite and an Israelite for him, but not a Cuthite for a Cuthite [Shach siman 243 and Ketzot HaChoshen]. And some say that the law of agency does not apply to him at all [Magen Avraham siman 448 and Mishneh LaMelech chapter 2 of Sheluachin], and so it is explicitly stated in the Yerushalmi, chapter 6 of Demai and chapter 1 of Terumot, and such is the primary view. And the reasoning is so, for if we did not derive the matter of agency from the Torah, that "a person's agent is like himself," we would not say so based on logic, as the Gemara asks: From where do we derive the matter of agency? And since we only find it regarding members of the covenant, it follows that those who are not members of the covenant are not included in the matter of agency at all. And in the Yerushalmi there, it implies that regarding all those who do not have agency, nevertheless, if he performed his agency and he is pleased with his action, what he did is done [and it is possible that this is only regarding terumah where thought is effective]. And there are some of our teachers who hold that as a stringency there is agency for a Cuthite [Rashi and Tosafot Bava Metzia 71b], and some disagree [Rabbeinu Tam ibid.]. And even according to those who are stringent, this is only regarding prohibitions such as interest and the like, and not in monetary laws alone. And some say that if the Cuthite made an Israelite an agent to purchase land or to rent, and gave him money to give to the seller or to the lessor, and he did so, the land is acquired for the principal; for even though the Israelite is not his agent, nevertheless the money of the Cuthite acquires for him, for the seller and the lessor transfer ownership to the owner of the money, and the agent is merely performing the "act of a monkey." But in the purchase of movable property, since there are poskim who hold that money does not effect acquisition for a Cuthite in movable property, only meshikhah, and the meshikhah of the Israelite is not effective for him since he has no agency, the Cuthite does not acquire [Magen Avraham siman 15]. And likewise, a Cuthite becomes a laborer for an Israelite and an Israelite for a Cuthite, for since a laborer is acquired to the employer, everything the laborer does, the employer acquires [ibid. siman 11]. And according to this, in agency for a wage, he becomes like a laborer, for his hand is like the hand of the employer [Netivot HaMishpat, and so it is implied from Shach siman 105, subsection 1]. And in an acquisition of meshikhah, he must pull it into the domain of the employer [ibid.]. And all these matters appear to be the primary view in the law.

A person may appoint an agent, whether a man or a woman, and even if she is a married woman whose husband's authority is over her, nevertheless she may become an agent. Also, a male slave and a female slave, when they are of sound mind, may become agents for business transactions, since they are obligated in mitzvot like a woman. However, a deaf-mute, an insane person, and a minor, since they are not of sound mind, they cannot become agents nor can they appoint agents. And specifically as an agent may one appoint his slave, but to acquire on behalf of others through him he cannot, for since his hand is like his master's hand, it has not left the owner's domain. Similarly, through his wife he cannot acquire on behalf of others, for her hand is like his hand; and in siman 243 this will be further explained with the help of Heaven. And if an apostate appoints or becomes an agent, there is a dispute regarding this, and many of our teachers say that he is not included in agency because he has left the covenant of the Torah, except for bills of divorce and betrothals he may become an agent, because his betrothal is a betrothal and his bill of divorce is a bill of divorce, for even though he has sinned, he is an Israelite [Beit Yosef in a responsa, and see Ba'er Heitiv siman 141, subsection 47]. And regarding an insane person, if he was healthy at the time of the appointment of the agency and before he completed his agency he became insane, there is a dispute among the poskim. And a minor, even in his thirteenth year, where he is "one of discernment approaching manhood" whose terumah is terumah and whose vow is a vow, nevertheless regarding agency he is not an agent until he becomes thirteen years and one day old, and a female minor twelve years and one day old [Ketzot HaChoshen].

One who sends his minor son to a shopkeeper and placed a pundion in his hand, which is two issars, and the minor gave it to the shopkeeper, and he measured out an issar's worth of oil for him and gave the minor an issar and the oil, and he lost the issar and the oil—the shopkeeper is liable to pay. For we say that he did not send the minor so that he should send [the goods] with him, but rather to inform him that he needs oil and that he should send it with a person of understanding. And even though his father indeed handed the pundion to the minor, and it is like a deliberate loss, and why should the shopkeeper be liable to pay? Nevertheless, since the pundion remained in the hand of the shopkeeper, and he did not hand him this pundion but rather an issar and oil, he is liable for their damage. Therefore, if the father sent a flask in the hand of the minor and the shopkeeper measured into it, if the minor broke it, the shopkeeper is exempt, even if the shopkeeper took it in his hand and afterwards handed it to the minor; for since he handed the minor that very same vessel, its safeguarding is not upon him, unless he took it from his hand and measured with it for others as well and returned it to the hand of the minor—he is liable if it broke in the hand of the minor because he misappropriated the property of his fellow and must return it with a complete return. And if the sender specified and said, "Send it to me with the minor," he is exempt, since he acted according to his command. And it appears that if the minor also said to the shopkeeper that his father commanded him to send it with him, even though a minor has no credibility, nevertheless, since it appears so according to the matter that such is the truth, he is exempt. And despite this, if he measured with it for others, he is liable, for misappropriation is like a robber and he must make a complete return [Netivot HaMishpat]. And similarly, one who says to his fellow, "The maneh of mine that is in your hand as a loan or a deposit, send it to me by the hand of so-and-so," even if he was a minor, if he desired to send it by his hand, he is absolved and is not liable for its responsibility. And even if it is possible that the sender did not know that he was a minor, nevertheless, since he acted according to his command, he is exempt [ibid.].

One who sends to his fellow to send him, by means of a messenger, money that he had as a loan or a deposit, it has been explained in siman 121.

Anywhere that the agent deviates from the intent of the sender, the agency is completely nullified, and in siman 182 the specific laws regarding this were explained. And even if the agent wishes to compensate him for the loss, his agency is nullified [Shach], because from the moment he deviated, the agency was nullified.

One who incurred damage to his property due to the sender who sent him on a certain mission, or if they brought a false accusation against him due to the mission and he lost money through this, the sender is not obligated to pay him for his damage. This is true even if he was a volunteer agent, for we do not find payment for damage except in cases of damage caused by oneself or one's property. But regarding damage that reached his agent, what is the sender's transgression in this that he should be obligated to pay? [Beit Yosef in the name of the Ramban]. And even according to that opinion in siman 176 that if he was seized in his person and he is a volunteer agent the sender is obligated to ransom him, this applies to damage to the person of the agent because his person is like one borrowed to the sender, but not regarding damage to the property of the agent [Sma].

In the Gemara [at the beginning of the seventh chapter of Ketubot] there is an interpretation that for more than thirty days we do not say the presumption that an agent performs his agency, and we have not found that the poskim mentioned this, for it is possible that according to the conclusion there it does not stand thus [so wrote the Ran there]. Furthermore, there it does not deal with a complete agent, but rather with one who says "whoever feeds does not lose" [as is proven in the conclusion of the sugya, see there]. With the help of Heaven, the laws of agents are concluded.