Parshas Vayishlach opens by describing how Yaakov Avinu sent agents to his brother Esav. Opinions differ as to whether these were human envoys, or whether the agents he sent were angels. One way or the other, the mention of agency brings us to discuss the halachic concept of agency (shlichut), and in particular agency for mitzvah performance.
We have discussed in the past the halachic principle that there is a preference for a person to fulfill his mitzvah by his own actions, rather than appointing a shaliach (agent) to act on his behalf. Even if one does fulfill the mitzvah by means of an agent, we should seek personal mitzvah performance.
In the present article we will turn to the question of which mitzvos can we in fact perform by means of agency, and which must we perform on our own because they cannot be performed via an agent. This especially pertinent for the month of Kislev, concerning appointing an agent to light one’s Chanukah candles, but it is relevant also to many year round circumstances.
For which mitzvos does agency help, and for which does it not? Are there mitzvos for which there is no need for agency? Does agency help for Bris Milah? And what about lighting Chanukah candles via an agent? These questions, among others, are discussed below.
Result-Based Mitzvos
Before we reach the question of which mitzvos can be performed via agency and which can’t, it appears that there are some mitzvos that (according to some opinions) don’t require agency in order to fulfill them.
Shlichut is a special Torah doctrine, by which one Jewish person can serve as an agent for another in performing a mitzvah. However, there may be mitzvos whose performance may be done even by a party who is not serving as an official halachic agent on behalf of the person obligated in the mitzvah. An example is a non-Jew (such as a worker or craftsman) performing an act which is a mitzvah for someone, even though the non-Jew cannot serve as an halachic agent (see Bava Metzia 71b; Shulchan Aruch, Choshen Mishpat 188:1).
This understanding emerges from a ruling of the Machaneh Efraim (Shluchin 11), who writes concerning the mitzvah of building a protective fence around one’s roof (ma’akeh) that the mitzvah can be fulfilled by means of a non-Jewish employee (see also Minchas Chinuch, Mitzvah 546, who disputes this ruling). Although a non-Jew cannot serve as an agent to perform mitzvos, the Machaneh Efraim understands that since the crux of the mitzva of building a ma’akeh is the result—that the roof should be secure and nobody endangered—therefore the mitzvah can be performed even by means of a non-Jew. It is important to note, however, that this will not enable the owner to recite a beracha (see though Machaneh Efraim who for a different reason permits), so it should preferably be avoided.
A similar conclusion can be reached based on the ruling of the Pri Chadash (Yoreh De’ah 120), who rules that one may immerse a new utensil or vessel by means of a non-Jew, and the ruling of the Rashba (Shut Harashba 1:357) who rules that Beis Din can execute their verdicts and rulings (such an punitive measures) by means of non-Jewish agents. These rulings indicate, as the ruling concerning the protective fence, that mitzvos whose entire definition is achieving a certain outcome may be performed even without the special doctrine of agency.
Thus, it seems that there are certain mitzvos, whose essence is reaching a specific result rather than performing a specific action, for which the agency doctrine is not necessary: One simply needs to make sure that the desired result is achieved.
Avodas Hashem Versus Results
Maharach Or Zarua (son of the Or Zarua, Siman 128) takes a similar though slightly different approach (His opinion is cited by the Kovetz Shiurim (Kesubos 253.).
He begins by presenting an apparent contradiction concerning agency for mitzvos. On the one hand, we find that it is possible to perform certain mitzvos via agency. For example, we find in the Gemara that a person may separate challah—a Torah mitzvah—by means of an agent. Likewise, a person may wed a bride by means of an agent, as mentioned above.
On the other hand, it is clear that there are many mitzvos which cannot be performed by means of agency: wearing tefillin and tzitzis, sitting in a Sukkah, eating matzah and taking the Four Species, for example. What is the difference between these mitzvos, which cannot be performed via an agent, and those that may be performed via agency?
Maharach Or Zarua distinguishes between mitzvos defined by their results, as above, and those whose inherent value lies in the action rather than the result. For mitzvos in which the action is key, agency is not possible. However, for mitzvos in which the result is central rather than the action itself, one may perform the mitzvah via agency.
The understanding behind this distinction is that when a mitzvah obligates us to a specific action, the action cannot be performed by somebody else. The action itself, rather than any result thereof, is what Hashem desires and instructs, and each person must serve Hashem with his own mitzvah performance.
When the result is central, however, there is no inherent difference between one’s own performance and causing the result to come about via an agent. Hashem is not interested primarily in the action but in the result.
Unlike the approach noted above, Maharach Or Zarua does not write that for result-based mitzvos there is no need for agency, but rather that these are mitzvos for which agency helps.
Mitzvos Related to One’s Body
Another famous approach to the matter of agency for mitzvos makes a distinction between mitzvos in general, and mitzvos related to one’s body.
This distinction is noted by the Tosafos Rid (Kiddushin 42b), who asks a similar question to that noted above: Why does agency help for purposes of Kiddushin, but not for eating one’s matzah or for sitting in the Sukkah? He replies that for mitzvos which relate to a person’s body (eating, sitting, and so on) agency cannot help. Agency can only help for mitzvos that do not involve the body.
There are different ways to understand this distinction. The Chasam Sofer (Vol. 1, Orach Chaim 201) understands that there is a simple difference between mitzvos performed upon one’s body and those performed by one’s body. The former cannot be done by agency, while the latter may be executed via an agent.
Thus, the mitzvah of tefillin is that the tefillin should rest upon the body, and the mitzvah of Sukkah is that the body should be in the Sukkah—so these mitzvos cannot be performed via agency. The same is true of the mitzvah of taking the Four Species (by contrast with the ruling of the Yad Hamelech, cited by the Chasam Sofer 182, who ruled that for a city with only one Esrog the Chazan can take the Esrog on behalf of the entire congregation). This is different from actions that must be performed outside of the body (to create a certain result), which can be done via agency.
Concerning tefillin, the Chasam Sofer explains that there are actually two parts to the mitzvah: one part is that the tefillin should be tied to the person’s body, while the other is the act of tying itself. The act of tying the tefillin can thus be done via an agent, but the tefillin themselves must be tied upon one’s own body (see also Ketzos Hachoshen 182:1, based on a ruling of the Rosh concerning agency for annulling one’s wife’s nedarim).
A second understanding of the Tosafos Rid is suggested by the Ketzos Hachoshen (382:2), who writes that the difference is between mitzvos for which a person still performs some element of the mitzvah himself, and cases in which performance via an agent will mean that no part of the mitzvah is performed by the person himself. Thus, a man may wed a woman via an agent, because he marries her (and not the agent) and one may likewise separate challah via an agent because his bread (and not the agent’s) is involved. However, he cannot eat matzah via an agent, since this would leave no element of the mitzvah in the hands of the person himself.
Based on this distinction, the Ketzos explains that one may perform the mitzvah of putting up a mezuzah via an agent, since the person himself will be living in a home with a mezuzah. On the other hand, he writes that a person cannot make an agent for performing the mitzvah of Bris Milah, since this will leave no element of the mitzvah in the hands of the father of the child.
At third approach to the distinction made by the Tosafos Rid understands his approach as being similar to the of Maharach Or Zarua, as explained above (see Or Same’ach, Shluchin Ushutfin 1:1).
Bris Milah
One of the greatest controversies concerning agency in mitzvos relates to the mitzvah of Bris Milah. The Or Zarua (Siman 107) writes explicitly that it is forbidden to perform Milah via an agent. This ruling is questioned by the Darchei Moshe (Yoreh De’ah 264:1), for surely the general rule is that a person’s agent functions on behalf of the person himself: Why should this not apply to the mitzvah of Milah?
One possible approach to this is that the Or Zarua never intended to rule that Milah cannot be performed by means of agency. Rather, the intention is that it is forbidden to do so, because of the obligation to perform mitzvos on one’s own rather than via an agent. The Tevu’os Shor (28:14) states this explanation, adducing it to support his position that the instruction to perform mitzvos on one’s own is not just a preference, but a full obligation.
However, the Ketzos Hachoshen (382:2), as noted above, explains that Milah cannot be performed via agency, based on (his understanding of) the distinction made by Tosafos Rid. This opinion is seconded by the Shach (Choshen Mishpat 382:2), who like the Ketzos makes a corresponding inference from the Rosh (Chullin 6:8).
Chanukah
Concerning agency for lighting Chanukah candles, it seems that there should not be a problem to appoint an agent for lighting the candles (other than the principle that one should preferably perform the mitzvah on one’s own).
The mitzvah of lighting the candles involves a positive action, which is performed by the person. Moreover, the obligation seems to relate predominantly to the result: that the Chanukah candles should be lit in a person’s house. It seems that this is a regular mitzvah for which agency helps.
However, the Magen Avraham (676:4) writes (citing the Bach) that because the mitzvah applies to a person’s body, a person can only light on behalf of somebody else and recite the berachos for her (the Magen Avraham refers to a case of a woman who does not know how to say the berachos) if she stands next to him when he recites the blessing.
The Machatzis Hashekel (434:9, relating to a similar statement of the Magen Avraham concerning the mitzvah of searching for chametz) explains that the mitzvah applies to a person’s body, and therefore “it is difficult to perform by means of an agent, unless at the very least she stands by his side.” This seems to be a very strained interpretation: If agency does not help, like the cases of sitting in a Sukkah or putting on tefillin, why will standing next to the agent make any difference?
Other authorities assume that agency helps for Chanukah candles. Rav Baruch Frankel in his annotations to Shulchan Aruch writes this as the simple halacha, and the Yad Efraim (to Magen Avraham 432:6) explains that standing next to the person relates to participation in the beracha, but there is no need to do this for the mitzvah of lighting itself. This is also the understanding of Rav Moshe Feinstein (Shut Iggros Moshe, Orach Chaim 1:190).
In fact, the Yad Efraim (see also Pri Megadim 679, Eshel Avraham 1) states that for the case of Chanukah candles there is no need for agency at all: The mitzvah is defined by the result that Chanukah candles should be lit. If this happens, the mitzvah was performed.
However, the simple understanding, and it seems that of most authorities (see Rosh, Pesachim 1:10; Ran, Pesachim 4a in pages of Rif; Iggros Moshe, Orach Chaim 1:190), is that the regular principles of agency apply even to Chanukah candles.
