The exception to the exception to the rule TB Baba Kama 78

I learned the following from a lecture given by Dr. Elana Stein Hain. (https://hadran.org.il/author-post/din-daf-getting-someone-else-to-do-your-dirty-work-episode-4/)

There is a general principle “a person’s emissary is as oneself-שְׁלוּחוֹ שֶׁל אָדָם כְּמוֹתוֹ.” When we studied massekhtot Kidushin and Gittin we saw that and emissary can effectuate betrothal and divorce on behalf of another person. There is an exception to this rule, “there’s no agency for a transgression-אֵין שָׁלִיחַ לִדְבַר עֲבֵירָה.” A person can’t say, “I was just following orders.” On daf TB Baba Kama 78 we learn of an exception to this exception.

“What is this baraita teaching us? All of the halakhot it states are obvious. The first clause teaches us, through the case of one who stole an animal and gave it to another and that person slaughtered (or sold it), that in this case there is agency for transgression. Even though in the entire Torah there is a principle that there is no agency for transgression, here there is agency for transgression.” (Sefaria.org translation) The thief and not the butcher is liable for all penalties.

The Gemara provides two different reasons why ““there’s no agency for a transgression-אֵין שָׁלִיחַ לִדְבַר עֲבֵירָה.” The first reason is found on this daf. “What is the reason that this case is an exception to the principle? It is because the verse states: “And slaughters it or sells it” (Exodus 21:37): just as one becomes liable for selling, which by definition is impossible without another party, i.e., the buyer, so too one becomes liable for slaughtering even when it is by means of another party.” It’s just based on interpretation of the verse, gezerat hakatuv (גזירת הכתוב)

Previously we learned another reason. “(Mishnah Bava Kamma 59b): In the case of one who sends an item that causes a fire in the hands of a deaf-mute, one who is mental incoherent, or a minor, the one who sent it is exempt according to human laws but liable according to the laws of Heaven. If one sent it in the hands of a halakhically competent person, only the halakhically competent person is liable.

But why is the halakhically competent person liable? A person’s emissary is as oneself! There it is different, as there is no agency for transgression, as we say: When there is a conflict between the words of the Master, i.e., God, and the words of the student, i.e.,a human being, whose words should be listened to?” (TB Kiddushin 42, Sefaria.org translation) In other words, the agent or emissary knows right from wrong and should choose to do what God demands of him over what the human being asks.

There are couple reasons why there is an exception to the exception and we hold that there is agency for transgression.

The first example is an unwitting accomplice. “…If the thief gave the animal as payment for the redemption of his firstborn son, or as payment to a creditor, or conveyed it for safeguarding to an unpaid bailee, or lent it to a borrower, or conveyed it for safeguarding to a paid bailee, or leased it to a renter, and he was leading out the animal and it died in the owner’s domain, the thief is exempt from payment. If that individual (i.e., the kohen, creditor, etc), following the thief’s instructions, lifted up the animal or led it out of the owner’s domain, and it subsequently died, the thief is liable for the theft. (Mishna Baba Kama 7:1)

 …It is not relevant to say: “the words of the master and the words of the student, whose words should one heed?” because the emissary is acting unwittingly. And so it sounds in Bava Kamma 79a, which says: if one stole a lamb from the flock and told the kohen, “Take this lamb which is mine,” or gave it to the kohen to redeem his firstborn son, but showed the kohen someone else’s lamb (to take); and it concludes that immediately when the kohen takes the lamb out of the domain of its owners, the thief is obligated (in compensation) by the pulling of the animal by the kohen. And Rabbeinu Yitzchak challenged there: But why is the thief obligated? We should say that there is no agent for a sin? And he answered that because the kohen does not know that the animal is stolen, it is not relevant to say “whose words should one heed?” (Tosefot TB Kiddushin 42b ד”ה אמאי)

The second example would be when the guilty party would say something to the effect, “I didn’t believe he would actually listen to me and do it.” “And only in the case where someone hired (false witnesses is that person obligated by the laws of Heaven to compensate), but one who simply told people to bear false witness is exempt even from the laws of Heaven because the person can argue that s/he did not think people would listen to her/him…For in our chapter we learn in a mishnah (BK 59b) “One who send forth fire with a deaf-mute, someone mentally incoherent or a minor is exempt from human law but obligated by Divine law. If one sent it with a mentally cogent adult, that adult is obligated,” suggesting that the one who did the sending is exempt even by Divine law!” (Tosefot TB Baba Kama 56a ד”ה אלא)