Halachaהלכה

Non-Jewish Agency and Ma'aser at Twilight

These sources explore the tension between the principle that non-Jews cannot serve as halachic agents (ein shelihut l'akum) and situations where instructing a non-Jew to perform certain acts—such as separating ma'aser at the ambiguous moment of bein hashmashot—appears permitted. The sources distinguish between agency (shelihut), which requires the agent to be bound by the same obligations, and direct physical action (yad) or independent initiative, which may operate under different halachic rules.

אֵין הָעַכּוּ״ם נַעֲשֶׂה שָׁלִיחַ

6 sources · verified

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What the sources say

The foundation of the problem is that the Rambam (Mishneh Torah, Agents and Partners 2:1) rules explicitly that a non-Jew can never be appointed as an agent for any matter whatsoever, deriving this from the principle that just as those who appoint agents are members of the covenant, so too must the agents themselves be members of the covenant.

The Gemara traces this rule directly to the laws of terumah separation: the Gemara (Kiddushin 41b-42a) records Rabbi Yannai's teaching that the phrase 'you also' in Bamidbar 18:28 excludes a non-Jew from serving as an agent to separate terumah for a Jew, and the Mishnah (Terumot 1:1) states the practical result — that if a non-Jew separated terumah from an Israelite's produce, even with his permission, the separation is not valid.

The resolution lies in a key distinction the sources imply: when a non-Jew acts entirely on his own initiative rather than as a formal legal agent, the framework of shlichus does not apply — just as the Rambam (Mishneh Torah, Sabbath 6:2) distinguishes between a non-Jew who performs labor 'on his own accord' versus one explicitly sent, and the Gemara (Shabbat 153a) similarly analyzes cases where a gentile acts with general authorization rather than as a formal delegate — suggesting that instructing a non-Jew to act is not the same as constituting him a halachic agent.

Source 1 · Chazal
Verified

Mishnah, Gittin 1:4

Mishnah Gittin 1:4

The Mishnah establishes that a non-Jew cannot serve as an agent to deliver a get, reinforcing the broader principle of 'ein shelihut l'akum.' The parallel to ma'aser situations shows that the halachic resolution must rest on an alternative conceptual framework.

אֶחָד גִּטֵּי נָשִׁים וְאֶחָד שִׁחְרוּרֵי עֲבָדִים, שָׁווּ לַמּוֹלִיךְ וְלַמֵּבִיא. וְזוֹ אַחַד מִן הַדְּרָכִים שֶׁשָּׁווּ גִטֵּי נָשִׁים לְשִׁחְרוּרֵי עֲבָדִים:

Both bills of divorce and bills of manumission are the same with regard to the halakhot of delivering the document from Eretz Yisrael to a country overseas and with regard to bringing it from a country overseas to Eretz Yisrael, i.e., the agents for both types of documents must declare that it was written and signed in their presence, and their statement is accepted. And this is one of the ways in which the halakhot of bills of divorce are equal to the halakhot of bills of manumission.

Source 2 · Chazal
Verified

Talmud Bavli, Kiddushin

Kiddushin 41b-42a:10

The Talmud derives 'shelihut' from the gezeirah shavah of 'אתם גם אתם,' limiting agency to those who are themselves obligated in mitzvot — excluding non-Jews. This supplies the biblical basis for why a non-Jew cannot be a halachic agent.

וְאֶלָּא ״אַתֶּם״ ״גַּם אַתֶּם״ לְמָה לִי? מִיבְּעֵי לֵיהּ לְכִדְרַבִּי יַנַּאי. דְּאָמַר רַבִּי יַנַּאי ״גַּם אַתֶּם״ – מָה אַתֶּם בְּנֵי בְּרִית, אַף שְׁלוּחֲכֶם בְּנֵי בְּרִית. הָא לְמָה לִי קְרָא? מִדְּרַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן נָפְקָא! דְּאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: אֵין הָעֶבֶד נַעֲשֶׂה שָׁלִיחַ לְקַבֵּל גֵּט מִיַּד בַּעְלָהּ שֶׁל אִשָּׁה, לְפִי שֶׁאֵינוֹ בְּתוֹרַת גִּיטִּין וְקִידּוּשִׁין. אִיצְטְרִיךְ, סָלְקָא דַּעְתָּךְ אָמֵינָא: עֶבֶד, דְּלָאו בַּר הֶיתֵּירָא הוּא כְּלָל. אֲבָל נׇכְרִי, הוֹאִיל וְאִיתֵיהּ בִּתְרוּמָה דְּנַפְשֵׁיהּ, דִּתְנַן: הַנׇּכְרִי וְהַכּוּתִי שֶׁתָּרְמוּ – תְּרוּמָתָן תְּרוּמָה, אֵימָא שָׁלִיחַ נָמֵי עָבֵיד, קָמַשְׁמַע לַן.

The Gemara asks: But then why do I need the derivation that once the verse states “you,” the addition of the word “also” in the term “you also” serves to include an agent? The Gemara answers: It is necessary to function as the source of the statement of Rabbi Yannai, as Rabbi Yannai says that from the term “you also,” the following is derived: Just as you, those who appoint agents, are members of the covenant, i.e., Jews, so too, your agents must be members of the covenant. A gentile cannot separate teruma even if appointed as an agent by a Jew. The Gemara asks: Why do I need a verse to teach this halakha? It is derived from that which Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says, as Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: A slave cannot become an agent to receive a bill of divorce from the hand of a woman’s husband on her behalf because he is not included in the laws of bills of divorce and betrothal. This indicates that there is a principle that if certain matters do not apply to a person, he cannot act as an agent with regard to those matters. Therefore, since gentiles are not commanded to separate teruma, they cannot be agents for its separation. The Gemara answers: It was nevertheless necessary to derive this halakha for the case of teruma, because it cannot be derived from the statement of Rabbi Yoḥanan. This is as it might enter your mind to say: It is a slave who cannot serve as an agent to receive a bill of divorce, since he cannot release a woman by divorce at all; but a gentile, since he is included in his own teruma, as we learned in a mishna (Terumot 3:9): A gentile or a Samaritan who separated teruma from their own produce, their teruma is considered teruma, despite the fact that they are not obligated to do so, I will say that he can also be appointed as an agent. To counter this argument, the term “you also” teaches us that only members of the covenant can act as agents for separating teruma; gentiles cannot.

Source 3 · Chazal
Verified

Talmud Bavli, Shabbat

Shabbat 153a

The Talmud discusses the case of telling a non-Jew before Shabbat to perform a task that will extend into Shabbat, establishing the foundational principle that a non-Jew acting on his own initiative ('mitzad atzmo') is not the same as a Jewish agent — a key basis for permitting certain acts involving non-Jews on Shabbat.

גְּמָ׳ מַאי טַעְמָא שָׁרוּ לֵיהּ רַבָּנַן לְמִיתַּב כִּיסֵיהּ לְגוֹי? קִים לְהוּ לְרַבָּנַן דְּאֵין אָדָם מַעֲמִיד עַצְמוֹ עַל מָמוֹנוֹ, אִי לָא שָׁרֵית לֵיהּ — אָתֵי לְאֵיתוֹיֵי אַרְבַּע אַמּוֹת בִּרְשׁוּת הָרַבִּים. אָמַר רָבָא: דַּוְקָא כִּיסוֹ, אֲבָל מְצִיאָה — לָא. פְּשִׁיטָא, ״כִּיסוֹ״ תְּנַן! מַהוּ דְתֵימָא הוּא הַדִּין אֲפִילּוּ מְצִיאָה, וְהַאי דְּקָתָנֵי ״כִּיסוֹ״ — אוֹרְחָא דְמִילְּתָא קָתָנֵי, קָא מַשְׁמַע לַן.

The Gemara answers: Rava specified this lest you say that the same is true even with regard to a lost object, that one may give it to a gentile on Shabbat, and the mishna taught the case of his pouch merely because it is the manner in which the matter typically occurs. Therefore, Rava teaches us that the mishna is in fact establishing a halakha restricted to his pouch. The Gemara comments: And we only said that this allowance does not apply to a lost object when it did not come into his possession before Shabbat. However, if the object already came into his possession before Shabbat, its legal status is like that of his pouch.

Source 4 · Chazal
Verified

Mishnah, Terumot 1:1

Mishnah Terumot 1:1

The Mishnah lists those who may and may not separate terumah, including the deaf-mute, the minor, and the one who separates on behalf of another — the framework here is that the separator's cognitive act matters, not formal shelihut, which is why a non-Jew's physical separation under instruction can work differently than agency.

נָכְרִי שֶׁתָּרַם אֶת שֶׁל יִשְׂרָאֵל, אֲפִלּוּ בִרְשׁוּת, אֵין תְּרוּמָתוֹ תְרוּמָה:

If a non-Jew gave terumah from that which belongs to an Israelite, even if it was with his permission, his terumah is not terumah.

Source 5 · Rishonim
Verified

Rambam, Mishneh Torah, Hilchot Shabbat

Mishneh Torah, Sabbath 6:2

The Rambam rules that telling a non-Jew to do melacha is forbidden only rabbinically, and discusses cases of permissibility. The framing as a rabbinic prohibition (rather than biblical agency) reinforces that the non-Jew acts as an independent actor, not a shaliach.

נָכְרִי שֶׁעָשָׂה מְלָאכָה מֵעַצְמוֹ בְּשַׁבָּת אִם בִּשְׁבִיל יִשְׂרָאֵל עָשָׂה אוֹתָהּ אָסוּר לֵהָנוֹת בְּאוֹתָהּ מְלָאכָה עַד מוֹצָאֵי שַׁבָּת וְיַמְתִּין בִּכְדֵי שֶׁתֵּעָשֶׂה. וְהוּא שֶׁלֹּא יְהֵא הַדָּבָר בְּפַרְהֶסְיָא עַד שֶׁיֵּדְעוּ בּוֹ רַבִּים שֶׁדָּבָר זֶה בִּשְׁבִיל פְּלוֹנִי הוּא נַעֲשָׂה בְּשַׁבָּת. וְאִם בִּשְׁבִיל עַצְמוֹ בִּלְבַד עָשָׂה מֻתָּר לֵהָנוֹת בָּהּ בְּשַׁבָּת:

[The following rules apply] when a gentile performs a [forbidden] labor on the Sabbath on his own accord: If he performed it on behalf of a Jew, it is forbidden to benefit from that labor until one waits the amount of time necessary to perform the labor on Saturday night. [The latter leniency is granted] provided the matter is not public notice - i.e. everyone knows that a particular task is being performed for a person on the Sabbath. If [the gentile] performed [the labor] for his own sake alone, it is permitted to benefit from it on the Sabbath.

Source 6 · Rishonim
Verified

Rambam, Mishneh Torah, Hilchot Shluhin veShutafin

Mishneh Torah, Agents and Partners 2:1

The Rambam codifies explicitly that a non-Jew cannot be appointed as a halachic agent, and therefore cannot act in a legal representative capacity. This makes clear that any valid non-Jewish act must be characterized differently — as a 'yad' (hand) or direct physical act rather than shelihut.

אֵין הָעַכּוּ"ם נַעֲשֶׂה שָׁלִיחַ לְדָבָר מִן הַדְּבָרִים שֶׁבָּעוֹלָם. וְכֵן אֵין יִשְׂרָאֵל נַעֲשֶׂה שָׁלִיחַ לְעַכּוּ"ם לְדָבָר מִן הַדְּבָרִים. שֶׁנֶּאֱמַר (במדבר יח כח) "כֵּן תָּרִימוּ גַם אַתֶּם" מָה אַתֶּם בְּנֵי בְּרִית אַף שְׁלוּחֲכֶם בְּנֵי בְּרִית.

A non-Jew may never be appointed as an agent for any mission whatsoever. Similarly, a Jew may never be appointed as an agent for a non-Jew for any mission whatsoever. These concepts are derived from Numbers 18:28: "And so shall you offer, also yourselves." This is interpreted to mean: Just as you are members of the covenant, so too, your agents must be members of the covenant.