May I Pass Up This Mitzvah?
Question #1: Inexperienced Father
Abba Chodosh asks me the following question: “Before we relocated for a particular job, I had trained as a mohel. Since our children born since that time were daughters, I never ended up performing a bris without the supervision of an experienced mohel. Now that my son was born, am I required to perform the bris myself?”
Question #2 Successful Mezuzos
Baal Eisektov asks: “Thank G-d, we are inaugurating a new branch of our business. Common practice is to give a rav the honor of installing the mezuzos. But shouldn’t I be doing that myself, because of the principle of mitzvah bo yoseir mibishlucho?”
Question #3 Sharing the Challah
Leah asks me: “Recently, I participated in a tour of a large bakery, and the mashgiach offered me to take challah there, which I did. Someone afterwards told me that the mashgiach should not have been so free in giving away his mitzvah. Did he, indeed, do something wrong?”
Answer: May I delegate?
One of the most basic rules of business and life management is to learn how to entrust responsibility and tasks to others. Does this concept extend to the observance of mitzvos? If I have a mitzvah to carry out, am I permitted to assign it to someone else?
All of the questions asked above are contingent on the same basic underlying issue: Under what circumstances may I hand over the performance of a mitzvah that I could do myself?
The Gemara rules that one fulfills a mitzvah when it is performed by an agent, although it is preferable to do it himself (Kiddushin 41a). This is called mitzvah bo yoseir mibishlucho, it is better to perform a mitzvah yourself, rather than have someone else do it for you. This rule is not needed in cases of mitzvah shebegufo, where the mitzvah is incumbent on a person to do with and upon his own body, and a sheliach cannot be made at all. An example of the latter case is the wearing of tefillin: I cannot make someone an agent for me by asking that he don tefillin in my stead, because the mitzvah is that the tefillin be placed on my arm and my head.
Anything done wrong?
Our first consideration is: Granted that, under normal circumstances, a person should perform the mitzvah himself, has he violated anything by requesting that an agent do it for him? The Gemara implies that a person (a meshalei’ach) delegating someone else to perform a mitzvah for him has done nothing wrong; he has, however, forfeited an opportunity to perform a mitzvah.
However, other factors may have an impact on the final ruling. Let us consider, for a moment, the situation above, where the father has been trained as a mohel, but is lacking extensive experience. What if his wife, the baby’s mother, prefers that he not perform the bris, and that they opt to use an experienced mohel instead? Does Abba’s shalom bayis become a factor in whether or not he should perform the bris? If he is not violating anything by appointing an agent, then I would personally rule that his wife’s serenity is the most important factor. However, this may not be true if it is prohibited to assign the mitzvah to someone else.
Are there circumstances in which it is fine to have the agent perform a mitzvah for me? What are the halachic principles upon which I can base my decision?
Kisuy hadam practices
Much of the halachic literature discussing these questions originates with the mitzvah of kisuy hadam. The Gemara teaches that the mitzvah of kisuy hadam, the Torah’s requirement that one cover the blood with earth after shechting poultry or chayos, such as deer and antelope is incumbent upon the shocheit. According to the rule of mitzvah bo yoseir mibishlucho, the shocheit should cover the blood himself. Yet, it was, and is, common practice that shochatim honor someone else with fulfilling the mitzvah. Is this permitted? Let us see if we can find Talmudic precedents for the practice.
The Gemara (Bava Kamma 110a) teaches that an elderly or ill kohen for whom it is difficult to offer a korban himself may bring his korban to the Beis Hamikdash and ask a different kohen to offer it in his stead. Notwithstanding that it is a mitzvah of the elderly kohen, he may delegate the performance of the mitzvah, since it is difficult for him. Thus, we see that, at least under certain circumstances, one does not violate halachah by asking someone else to perform a mitzvah in one’s place. The Tevuos Shor (28:14) notes that we see from this Talmudic passage that there are situations in which a person is able to perform a mitzvah himself, yet he has the option of passing the opportunity to someone else.
Here is another Talmudic precedent that permits someone required to observe a mitzvah to defer it to someone else. One of the Torah’s mitzvos, yibum, is that a man should marry his late brother’s widow, if his brother left no descendents. The Mishnah teaches that the mitzvah devolves specifically upon the oldest surviving brother. If he chooses not to fulfill the mitzvah, then and only then does the mitzvah pass to his younger brother.
The Gemara (Yevamos 44a) discusses a situation in which there are at least seven brothers in a family, of whom five are married without any children. The five married brothers all die, thereby creating five mitzvos of yibum for the oldest brother to perform. The Gemara’s conclusion is that if the oldest brother wants to marry as many as four of the widows, he may, clearly noting that he is not required to do so, even should he have the financial and physical ability to provide the needs of all four widows. The Gemara advises against his marrying more than four, out of concern that he will not be able to provide his new wives with sufficient attention. (We can definitely conclude that marital expectations have changed since the time of the Gemara.)
The Tevuos Shor (28:14) notes that we see from this Talmudic passage that there are situations in which a person could perform a mitzvah himself, yet he has the option of passing the opportunity to someone else. Based on this and other Talmudic sources, the Tevuos Shor justifies the practice of shochatim honoring someone else with the mitzvah of kisuy hadam.
This ruling of the Tevuos Shor can be used to explain the practice that forms the basis of Mr. Eisektov’s question. Why is there a common practice of honoring a respected rav with installing mezuzos at a new business? The answer is that, since the owners are doing it to honor the rav, they view this consideration as a greater mitzvah than performing the mitzvah themselves.
However, other authorities disagree with the Tevuos Shor’s approach, contending that providing someone else with honor is not sufficient reason to justify not fulfilling the mitzvah oneself (Binas Adam #7). Still others are of the opinion that the opposite of the Tevuos Shor‘s approach is true: they posit that asking someone to act as one’s agent is permitted, since one still fulfills the mitzvah, whereas honoring someone with the mitzvah without making him an agent is forbidden (Peleisi 28:3).
Here is another situation in which we see how a respected early authority ruled. “The father of a newborn boy who does not want to be the sandek himself, because he desires to have harmonious family relationships and demonstrate his respect, should give the honor to his own father, the baby’s paternal grandfather. However, if the baby’s paternal grandfather prefers that his own father (the baby’s great-grandfather) be honored, then he may give the honor to the great-grandfather, and this is the prevalent custom.” (Leket Yosher) The time-honored role of the sandek, the one who holds the baby during a bris, is, in itself, a mitzvah. By holding the baby, the sandek assists the mohel doing the mitzvah. Since the mitzvah of bris milah is the father’s, logic suggests that a father who is not a mohel should be the sandek. However, since he does not want anyone to be upset and also wants to fulfill his own mitzvah of respecting his parents, common practice is that the father honors someone else with being sandek.
Those who permit honoring someone else with the mitzvah of kisuy hadam would no doubt rally support to their approach from the ruling of the Leket Yosher. Those who feel that the shocheit should not honor someone else with the mitzvah of kisuy hadam will presumably contend that the sandek is not actually fulfilling a mitzvah that is required of him, and that is why its performance can be transferred to someone else. On the other hand, since kisuy hadam is incumbent on the shocheit, they would contend that he may not honor someone else with this mitzvah.
Passing on a bris
At this point, I would like to discuss how these rules affect the laws of bris milah, which was the first question I mentioned above (and the reason why I chose to discuss the topic the week of Parshas Lech Lecha). The Or Zarua, a rishon, writes that it is forbidden for a father who is a qualified mohel to have someone else perform his son’s bris milah (Hilchos Milah #107). (The Or Zarua, a native of what is today the Czech Republic, traveled to attend the yeshivos of the Baalei Tosafos in Northern France. He subsequently became the rav of Vienna, where he apparently opened a yeshivah. The Maharam of Rothenberg was one of the Or Zarua’s disciples.) According to the obvious reading of the Or Zarua, we already have enough information to answer Abba Chodosh’s question above: Abba had once trained to be a mohel, but never practiced. Now that he has his first son, is he required to perform the bris himself, or may he have a more experienced mohel do it? Assuming that Abba can still perform a bris safely, the Or Zarua would seem to rule that he is required to be the mohel.
However, this answer is not obvious. Firstly, the Rema (Darkei Moshe, Yoreh Deah 264:1) wonders why the Or Zarua rules that it is prohibited for the mohel to have an agent perform the mitzvah for him. We fully understand that it is not preferred – the Gemara says that it is better to perform a mitzvah oneself, rather than have it performed by someone else. However, the Or Zarua does not say simply that it is preferred that the father perform the mitzvah himself – the Or Zarua prohibits having someone else perform the mitzvah!
In his comments on the Shulchan Aruch, the Rema omits mention of the Or Zarua’s ruling, a factor noted by some authorities as proof that the Rema rejected the position of the Or Zarua (Tevuos Shor 28:14). However, the Shach (Choshen Mishpat 382:4) independently reaches the same conclusion as the Or Zarua, based on his analysis of a statement of the Rosh. The Shach’s comments require an introduction.
A mitzvah snatcher
The Gemara rules that someone who performs a mitzvah that another person is required to do and is planning to perform is charged a fine of ten gold coins for stealing someone else’s mitzvah (Bava Kamma 91b; Chullin 87a). One of the Gemara’s cases is as follows: A shocheit slaughtered a bird, and then, before he had a chance to fulfill the mitzvah of covering the blood, someone else covered it, thus snatching the mitzvah. The shocheit brought the offending party to a din Torah before Rabban Gamliel, who fined the mitzvah snatcher ten gold coins. Rashi (Chullin 87a s.v. Litein) explains that the fine is for depriving someone of the reward he should have received for the mitzvah.
When citing this Gemara, the Rosh (Chullin 6:8) recounts the following story: The father of a newborn asked a mohel to perform the bris, but a different mohel performed it without getting permission. Subsequently, the first mohel sued the second mohel in Rabbeinu Tam’s beis din for stealing the mitzvah. Rabbeinu Tam ruled that, although the interloping mohel’s act was despicable, for a variety of technical reasons not germane to our topic, there are no grounds to fine the mohel for stealing the bris.
The Rosh agrees with the ruling, but for a reason that Rabbeinu Tam did not mention: Although the father told the mohel to perform the bris, the mohel does not thereby become the “owner” of the mitzvah, unlike the shocheit in Rabban Gamliel’s case, who was already obligated in the mitzvah.
The Rosh closes his discussion with the following words: “However, if the father does not want to perform the milah, all Jews are obligated to perform the bris. The words that the father spoke to the mohel did not have sufficient weight to transfer ownership of this mitzvah to him, thus making it impossible to fine a second person who performed the mitzvah, albeit without permission.” Based on this Rosh, the Rema (Choshen Mishpat 382:1) concludes that someone who performed the bris on a child whose father was intending to carry it out himself must pay the father ten gold coins, but if the father asked a mohel to perform the bris, then the interloping mohel is absolved of any fine.
Can the father make an agent?
The following question is raised relative to the comments of the Rosh: We see from the Rosh that the interloping mohel who takes the mitzvah away from the father is fined, whereas if he takes the mitzvah from a different mohel, he is not. But why is this so? In the latter instance, he also “stole” the mitzvah from the father, since the first mohel was the father’s agent, and the interloping mohel was not? Thus, the father would have fulfilled the mitzvah through his agent had the first mohel performed the bris, but he was deprived of the mitzvah by the second mohel (Ketzos Hachoshen 382:2).
There are a few ways to resolve this question. The Ketzos Hachoshen concludes that when the Torah gave the father a mitzvah to circumcise his child, the Torah was not simply asking him to make sure that his son has a bris, but was requiring the father to perform the bris himself. The father cannot make a mohel an agent to circumcise his son, just as one cannot make an agent to don tefillin. Neither of these mitzvos can be performed through agency. Therefore, when the father asks a mohel to perform the bris for him, he is demonstrating that he does not intend to perform this mitzvah himself, and the second mohel did not steal it from him. This appears to be the way the Shach (Choshen Mishpat 382:4) understood the Rosh also, and for this reason he writes: “We can demonstrate from the words of this Rosh that a father who is a mohel is not permitted to give the mitzvah to someone else… I saw many men who are capable of performing the bris themselves who honor others with the mitzvah. In my opinion, they thereby are abrogating the important mitzvah of milah. The local beis din should take action to stop this.”
Everyone is an agent
However, there is an alternative way to explain the Rosh, which reaches a different conclusion. The Mishneh Lamelech (Bechoros end of 4:1; see also Terumas Hadeshen #188) contends that once someone revealed that he does not want to do a mitzvah himself, anyone who performs it is his agent. Therefore, when a father appoints someone to perform his son’s bris, any Jew who properly performs the bris milah is now acting as the father’s agent. The second mohel did not deprive the father of any mitzvah.
According to the second approach, no matter who performs the bris, the father has fulfilled the mitzvah, and he is not in violation for appointing an agent. However, if this is true, why does the Or Zarua prohibit a father from appointing someone to circumcise his son? The Tevuos Shor explains that there is a difference between honoring someone else to perform the mitzvah that one would prefer to do, which is permitted, and having someone else perform a mitzvah because one is not interested to perform it. In the latter case, failure to fulfill the mitzvah oneself violates mitzvah bo yoseir mibishlucho. The Tevuos Shor thus concludes that one may appoint someone else to do the milah. He also concludes that it is permitted for a shocheit to honor someone else with performing kisuy hadam. As I mentioned above, there are other authorities who disagree with this conclusion.
The following anecdote about Rav Pam demonstrates his observing the principle of mitzvah bo yoseir mibishlucho. Someone offered to mail a letter for him, but Rav Pam told him that he preferred to mail the letter himself, since it was a donation to tzedakah. Since mailing the letter is part of the mitzvah, one should do it himself, because of mitzvah bo yoseir mibishlucho.