Monday, October 29, 2007

תופס לבע"ח במקום שחב לאחריני by a שליח (Bava Metzia 9b)

Rashi (Bava Metzia 10a) states explicitly that there is no problem of תופס לבע"ח במקום שחב לאחריני if the person is a שליח of the one who is owed the money.

Akiva pointed out this morning that this seems to be against the Gemara in כתובות פד where the simple reading of the Gemara is that תופס לבע"ח במקום שחב לאחריני applies even to a שליח.

In fact, Tosafos (both in כתובות and in ב"מ) points this out and holds that there is a problem of תופס לבע"ח במקום שחב לאחריני even by a שליח.

In Shulchan Aruch (ח"מ סימן ק"ה) the Shulchan Aruch paskens like Tosafos (against Rashi) that תופס לבע"ח במקום שחב לאחריני is a problem even if he appoints a שליח. The ש"כ wants to explain that Rashi only said a שליח works where he pays the שליח. Since he is paying him he becomes like a פועל and therefore ידו כיד בעל הבית. See also the נתיבות there who has a long discussion about Rashi.

One suggestion I saw is that Tosafos holds that זכייה is מטעם שליחות and therefore there is no difference between a שליח and anyone else while Rashi may hold that זכייה works מטעם יד and therefore there is room to differentiate between a שליח and someone else.

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