AGENCY, legal concept whereby the lawful acts of someone authorized by, and acting on behalf of, another are as effective as if performed by the principal; recognized in Jewish law from ancient times. A basic concept in the Talmud is that "a man's agent is as himself," i.e., that a man is bound by the acts of his duly constituted agent as if he himself had acted. Throughout the ages Jewish law developed a complex and sophisticated civil law of commerce and finance in which the law of agency played an important part, being the subject of many talmudic discussions and halakhic rulings. For example, the contrary principle was enacted that there can be no agency to do a wrongful act; the sender is not held accountable for the deeds of his agents. The law also laid down rules governing the manner of constituting an agency, its limitations, its mode of execution, and its revocation or termination. The appointment, competence, and powers of an agent are also dealt with. Because of their contractual aspects, agency was also recognized in matters of marriage and divorce, whereby an agent could legally acquire a wife for his principal or effectively deliver to her a bill of divorce on his principal's behalf. Generally the Jewish law of agency was developed to meet the social and commercial needs of the community as it constantly changed from age to age; therefore it was inclined to be more flexible and adaptable than some other legal subjects, which, consequently, did not always enjoy the same degree of contemporary relevance. In the State of Israel agency is a matter of civil law and is governed by a principal statute of 1965.
As a result of agency, the possible field of legal activity is extended beyond the normal physical and other limitations.
The concept of agency was not recognized in ancient legal systems. Only in the later stages of Roman law did agency achieve a limited form of recognition – a phenomenon ascribed to the powerful status of the Roman pater-familias ("family head") on whose behalf all acquisitions by his kinsmen or servants were made in any event, thus obviating any urgent need for developing a doctrine of agency. In Jewish law the principle of agency was, however, already recognized in ancient times. While there is no express scriptural provision for it, the tannaim applied the doctrine of agency in various halakhic fields, i.e., to the laws of mamonot ("commercial law"), terumah ("heave offering"), sacrifices, divorce, and betrothal, and established the rule that "a man's agent is as himself " (Sheliḥo shel adam kemoto). According to the Tosefta (Kid. 4:1), Bet Shammai and Bet Hillel agreed that a person appointed to carry out a specific mandate is disqualified from acting as a witness in a case involving such mandate, whereas amoraic sources quote a tannaitic tradition to the opposite effect (Kid. 43a) and the talmudic halakhah was decided accordingly. The agent is not regarded as the principal, in the full sense of the term "as himself," since the agent is competent to testify with regard to the subject matter of his
In this field a contrary rule was laid down, namely, that "there can be no agent to do a wrong" (Ein shali'aḥ li-devar averah; Kid. 42b). The reasoning behind the rule is derived in answer to the hypothetical question: "Whose words does one obey? Those of the master" (i.e., the Almighty) "or of the pupil" (i.e., the mandator)? The legal import of the rule is that the agent himself is the transgressor, and liable, whereas the principal is exempt in respect of any transgression committed by the agent in execution of the former's mandate. There is, on the other hand, a tradition that a person who says to his agent, "Go forth and kill that soul!" (Kid. 43a), is personally liable, but the halakhah was decided to the effect that "in all matters a person's agent is 'as himself ' except with regard to wrongdoing …" (Isserles to Sh. Ar., ḤM 182:1). However, the scholars laid down that in three fields the doctrine of agency applied also to transgression: (1) misappropriation of a deposit (sheliḥut yad); (2) slaughtering and selling (of stolen animals – see *Theft and Robbery); and (3) conversion of consecrated property (see *Hekdesh) to profane use (me'ilah).
In addition to these three specifically excepted cases, there are also a number of general exceptions to the rule that there can be no agent to do a wrongful act. According to the amora Ravina, the rule does not apply if the prohibition does not extend to the agent himself, e.g., where a priest commissions an Israelite to celebrate kiddushin with a divorcee on the priest's behalf (a marriage prohibited to a priest). Similarly, the amora Samma is of the opinion that an agency is constituted when the agent, in committing transgression, fails to act of his own free will; e.g., when he is unaware that his act amounts to a transgression (BM 10b; Isserles to Sh. Ar., ḤM 182:1 and 348:8). Furthermore, an agency to do a wrong is constituted whenever an agent delegated to commit a wrong must be presumed likely to execute his assignment because he is known to commit such wrongs (Sh. Ar., ḤM 388:15, gloss; see also Siftei Kohen, ibid., 67 for a contrary opinion). Whenever the law recognizes agency in the commission of a wrong, the agent himself will be liable (Siftei Kohen sub. sec. 4 to Sh. Ar., ḤM 292; see also Netivot ha-Mishpat to Sh. Ar., ḤM 348:4).
The rabbis of the Talmud, relying on the scriptural text, excluded the operation of the maxim that a person's agent is as himself in certain instances (TJ, Kid. 2:1; Yev. 101b). Some of the posekim exclude agency when the mandate cannot be carried out at the time of the agent's appointment (Darkhei Moshe to Tur, ḤM 182:1, based on Naz. 12b); but others differ (Responsa Maharit 2:23; Arukh ha-Shulḥan to Sh. Ar., ḤM ibid.). On the question of the husband's competence to annul the vows of his wife on the day of hearing them (Num. 30:9), the rabbis decided that it would not be the same if the vows were heard by an agent, and that the latter was not competent to annul them since "the appointment of an agent is not appropriate to a passive act" (be-midi de-mi-meila; Ned. 72b). Similarly, there can be no agency with regard to a precept (mitzvah) which one is personally obliged to perform, such as laying tefillin or sitting in a *sukkah (Tos. to Kid. 42b). So, too, the rabbinical enactment permitting *assignment of debt by way of ma'amad sheloshtan, has been interpreted as requiring the participation of the parties themselves and the assignor could not appoint an agent for this purpose (Sh. Ar., ḤM 126:20). Some scholars hold that an agent can not deliver an oath on behalf of his principal (Responsa, Noda bi-Yhudah, first series, YD 67 and last series YD 147).
It is not a requirement of agency that the manner of carrying out the mandate should be specifically detailed; the principal may grant his agent a degree of discretion, e.g., in celebrating kiddushin on his principal's behalf, an agent may be authorized to treat either with a specific woman or with one of a larger group (Maim., Yad, Ishut 3:14). Or, the principal can instruct his agent, "Go and purchase for me a field which you consider suitable," in which case the choice of the field is left to the full discretion of the agent. To be properly constituted, agency requires that the parties thereto are both legally competent and it was laid down that einam benei da'at ("persons who lack proper understanding," i.e., Ḥeresh, shoteh, ve-katan ("deaf-mutes, idiots, and minors")) were disqualified from acting as either principal or agent (Git. 23a; Sh. Ar., ḤM 188:2).
APPOINTMENT AND POWERS
It appears from tannaitic and amoraic sources, neither of which specifically discuss the manner of appointing an agent, that such appointment may be done orally. The halakhah was so decided, it being held that there was no need for a formal kinyan (see Modes of *Acquisition). In various places it nevertheless became the practice to assign by way of a formal kinyan. This was partly due to the influence of an analogous procedure in certain matters where an act of kinyan was required by law, such as the appointment of an agent in a lawsuit or for the purposes of agency in divorce – although the kinyan is not essential to the underlying agency itself but rather for the purpose of bittul moda'ah (see *Ones). It was also due in part to the desire of the parties to express in a formal act that the decision to conclude an agency was a serious one, and not one undertaken irresponsibly (Maim., Mekhirah 1, 12–12).
The agent is required to act strictly within the scope of his mandate, and if he exceeds his authority, all his actions are rendered null and void. The same result follows if the agent errs in any detail of his mandate, since the latter is appointed "to uphold and not to depart from the mandate" (Maim., Yad, Sheluḥin 1:3, Sh. Ar., ḤM 182:2). The possible consequences of a complete nullification can, however, be averted by especially stipulating for such a contingency (Maim. and Sh. Ar., ibid.). Thus it became the practice for a condition of this kind to be inserted in written instruments (see Hai Gaon, Sefer ha-Shetarot, 65–67).
Some authorities went so far as to hold that even in the absence of such a condition, there was a presumption – if the mandate were carried out – that the principal had authorized the agent to "uphold and to depart from the mandate," unless the contrary could be proved by the principal (Sh. Ar., ḥM 182:4). An agent who departs from the terms of his mandate and deals with a third party without disclosing that he is acting as an agent, will be liable for his actions (Maim., Sheluḥin 2:4; Sh. Ar., 182:2 and 6).
The mandate of the agent may be revoked by the principal. The Talmud records a dispute between the Palestinian amoraim, Johanan and Resh Lakish, as to whether or not revocation can be done orally (TJ, Ter. 3:4, 42a and Git 4:1, 45c; see also Kid. 59a), and the halakhah was decided in favor of such revocation. Where a formal kinyan accompanies the agent's appointment, some take the view that the "act" of kinyan cannot be revoked orally, but the general opinion is in favor of it. In order to prevent the principal from withdrawing his agent's mandate, it became customary to submit the former to an oath to this effect. This procedure normally served as an effective deterrent, but if, despite the oath, the principal revoked it, the revocation is effective. Agency is also terminated upon the death of the principal.
It was recognized that a revocable mandate could prejudice a third party who was unaware of it, e.g., a debtor who paid his debt to the creditor's agent would continue to be indebted to the creditor or his heirs if it subsequently transpired that the agent's mandate had previously been revoked. It was determined, on various grounds, that in such circumstances the debtor would be released from his obligation. Isaac b. Abba Mari expressed the opinion that a defendent who received a deed of authorization from the agent, would suffer no damage even if it later transpired that the mandate had been revoked (Sefer ha-Ittur, harsha'ah). Abraham b. David of Posquières justified the debtors release on the ground that the creditor's revocation of the mandate was tantamount to negligence. Later the above rule was justified on the further ground that, even if by the laws of agency the defendant had dealt with a person who was no agent, the transaction was nevertheless afforded legal validity by virtue of the laws of suretyship (Arukh ha-Shulḥan to Sh. Ar., ḤM 122:2).
On the question of the agent's failure to observe the terms of his mandate, Jewish law distinguishes between an agent who acts in a voluntary capacity (shali'a) and one who does so for payment called a sarsur ("broker" or "factor,") e.g., one who receives property for the purposes of sale, the latter being required to make good any consequent loss to the principal. Maimonides adds that in a case where the broker sells property at less than the authorized price, the purchaser must restore the goods to the owner if he knows that it was being sold by a broker on behalf of the true owner (ibid., 2:6; and see Sh. Ar., ḤM 185:1). Similarly, in case of theft or loss the liability of the broker is equal to that of a bailee for reward (Maim. and Sh. Ar., ibid.). An agent may not purchase for himself the property which he has been authorized to sell, even at the authorized selling price (Sh. Ar., ibid).
NON-PERFORMANCE OR IMPROPER PERFORMANCE BY THE AGENT
The principal has no claim for pecuniary compensation against an agent who relinquishes his appointment without fulfilling his mandate (Sh. Ar., ibid., 183:1). However, one opinion says that the principal has a claim for "loss of profits" against an agent who acts for payment, e.g., for the profits likely to have been earned by the principal had the mandate been properly carried out (Netivot ha-Mishpat to Sh. Ar., ibid., Be'urim, 1).
When the agent is given money by his principal in order to purchase property, and such property is purchased by the agent for himself with his own money the transaction is valid, "although the agent is a rascal," but the transaction will be for the benefit of the principal if the agent purchased for himself with the money of the principal (Sh. Ar., ibid., and Isserles).
AGENCY FOR THE RECOVERY OF DEBTS
(See *Attorney). The appointment of an agent for the recovery at law of a debt owing to a claimant, is the subject of particular problems. The rabbis of *Nehardea decided (BK 70a) that the claimant's representative must be equipped with an "instrument of permission" (ketav harsha'ah, "power of attorney"), bearing the following written instruction by the claimant: "Go and take legal action to acquire title and secure for yourself." Unless this is done the defendant may plead that the representative has no standing in the matter. The possibility of a plea of this nature arises from the talmudic principle that a creditor's representative cannot seize property in settlement of a debt owing to his principal, if there are additional creditors (Ket. 84b). This principle was construed at the commencement of the geonic period as applying whether the action of the agent is likely to prejudice other creditors, or merely the debtor or himself (She'iltot de-Rav Aḥai Ga'on, 150). Another explanation offered for the aforesaid plea is the possible suspicion that the mandate was no longer in force, because of the principal's death or because it had been revoked by him. The aforesaid wording of the authorizing instrument rendered the agent a party to the legal proceedings, which in turn gave rise to the fear that the agent would keep whatever he recovered for himself. It therefore became customary at first to supplement the authorization with a further formality such as the principal's declaration before witnesses that he was appointing the agent as his representative (Hal. Gedolot, BK 88, col. 3), and in other ways. Gradually these additional measures were abandoned, and the instrument of authorization itself was accepted – without further formality – as constituting the agent a party, along with the defendant, to the proceedings and at the same time as safeguarding the rights of the principal (Temim De'im, 61; Or Zaru'a, BK 4:300). Since, according to the abovementioned wording of the authorization, or power of attorney, the principal in effect assigned (hakna'ah) to the agent the subject matter
In the geonic period, when most Jews had ceased to be landowners, it became necessary to find ways of employing the method of kinyan aggav karka, making it applicable to those who possessed no landed property. Thus arose the custom of assignment by way of *arba ammot be-Ereẓ Israel ("four cubits of land" which every Jew was considered to own in Ereẓ Israel; Responsum Nahshon Gaon, Responsa Geonica, ed. 1929, p. 31; see Modes of *Acquisition). In post-geonic times, diminishing reliance was placed on this method, and Maimonides was of the opinion that an assignment (i.e., power of attorney) so effected was not binding on the debtor (Yad, Sheluḥin 3:7). In Germany and France it became customary to rely on hoda'ah (i.e., an admission by the principal that he owned land; see *Admission; Modes of *Acquisition). Naḥmanides suggested kinyan or assignment incidental to a synagogue seat or a place in the cemetery, common to all (Novellae to BB 44b) and further modes of assignment are discussed by other scholars.
ACQUISITION OF PROPERTY THROUGH A THIRD PARTY OTHER THAN AN APPOINTED AGENT
This may arise through an application of the rule that "a benefit may be conferred on a person in his absence" (Eruv. 7:11). Thus A may acquire property from B on behalf of C without the latter's knowledge, if this is to his benefit – for instance, a gift. C becomes the owner of the property as soon as A's acquisition thereof is complete, unless C, upon hearing of the matter, rejects such ownership, in which event the transaction is void ab initio (Maim., Yad, Zekhiyyah, 3:2; Sh. Ar., ḤM 243:1; see also Modes of *Acquisition).
In the State of Israel the laws of agency are governed by the "Agency Law, 5725–1965," which confirms the doctrine that "a man's agent is as himself " and further provides that the actions of the agent, including his knowledge and intention, are binding on and benefit the principal – as the case may be (sec. 2).
Legal Acts that Are Not a Subject for Agency
There are certain acts that by definition cannot be an object of agency and others in which it is the law that proscribes their performance by way of an agent.
AN ACT WHICH BY DEFINITION REQUIRES PERSONAL PERFORMANCE
In principle, any legal or religious act can be performed by way of an agent, provided that performance of the act is not also its purpose. This is the case, for example, with the betrothal of a woman, in which giving the money is not the goal as such, but is rather a means for altering the woman's status from that of an unmarried woman to that of a married woman. However, when the actual performance of the act is also the goal, such as donning tefillin or dwelling in the sukkah, such an act cannot be an object of agency (Responsa, Iggerot Moshe, EH. 1 #156).
AN ACT WHICH BY LAW REQUIRES PERSONAL PERFORMANCE
By way of example, the law does not permit the agent to act on the principal's behalf when his act involves the violation of third party rights (Ket. 84b; Piskei ha-Rosh, Gittin, 1:13). There are certain acts regarding which opinions are divided as to whether the law permits their performance by way of an agent, such as the abandonment of an asset (Bet Yosef, OH. 434:4; cf. Commentary of Gra (Vilna Gaon) ibid); an undertaking (Netivot ha-Mishpat, 45:2. cf. Keẓot ha-Ḥoshen, ibid. 2); admission (Resp. Ribash, 392, cf. Resp. Maharshdam, HM, 439); oath (summary of positions in Resp. Maharsham, 5:26).
"THERE IS NO AGENCY FOR [the commission of] AN OFFENSE."
The codifiers disputed the legal import of this rule. According to some, this rule is exclusively relevant in the criminal realm. In other words: One does not punish a person for an offence committed by another person operating as his agent, despite the fact that in the civil sense the legal consequences of the act are the same as they would have been had the principal performed it himself (Netivot ha-Mishpat 182:1). On the other hand, there is a view that extends this rule to the civil dimension too, arguing that a prohibited action performed by an agent also lacks any legal effect on the civil level too, because by definition the act was not a subject of agency (Resp. Nodah bi-Yehudah, 1st ed., EH, 64, 75).
The halakhic authorities disputed the applicatory scope of the rule "there is no agency for [the commission of] an offence". According to Rabbina, there can be agency for an offence wherever the agent "does not incur liability" ("eino bar hiuva") (BM 10b). In reliance on this view, there are authorities who rule that there can be agency for an offence wherever the agent does not hesitate over whether to obey the teacher (= God) or the student (the principal) and the principal can rely on him to perform the agency, as in the case in which the agent acts on the basis of a mistake (shogeg) (Rema, ḤM, 182:1, and 348; and see Sema, ibid.).
According to R.Sama, the possibility of agency for an offense is restricted to cases in which the agent does not exercise free will or discretion regarding whether or not to commit the act. In reliance on this view, other authorities ruled that can be agency for the commission of an offence in cases in which the agent acted under duress. However, other authorities dispute
Apart from the disqualification of the deaf, the mute, and minor from serving as an agent or a principal, there is also a requirement that the agent and his principal be of the same religious identity, even for the performance of a legal action which is not of a religious character, such as purchasing and selling. As such, one who is not Jewish (ben brit) is disqualified from serving as the agent of another Jewish person, or as his principal (Bavli, Kiddushin 41a). However, these restrictions were only established in relation to agency for the performance of a legal act, but where it concerns the performance of a material act (nuntius), even if that act has legal ramifications, such as the paying of debt, nothing prevents its performance by one who is not Jewish (Resp. Ḥattam Sofer, OḤ 201).
DIGRESSION FROM AUTHORIZATION AND DAMAGE TO THE PRINCIPAL'S INTERESTS
If the agent fundamentally digresses from the terms of his authorization, his action is invalid ab initio (Maim, Yad. Hilkhot Sheluḥin ve-Shutafim, 1:2). If he discharged his agency in a manner that harms the economic interests of the principal, his agency can be annulled by the principal, who may claim "I sent you to repair and not to damage" (Maim, Yad. Hilkhot Sheluḥin ve-Shutafim, 1:2–3; Sh. Ar. ḤM, 182:2–3, 6). As a rule, regardless of whether the agency was invalidated ab initio or annulled by the principal, the third party must restore to the situation to what it was initially.
On the other hand, there are cases in which even if the agent digressed from his authorization, or harmed the principal's interests, it is impossible to invalidate his actions in respect of a third party or to return to the original situation. In these cases the agent must indemnify the principal for the damage he caused. For example: Where the agent did not present himself as an agent in his dealings with a third party, in other words, where the agency was hidden (Maim, Yad. Hilkhot Sheluḥin ve-Shutafim, 2:4; Sh. Ar. ḤM, 182:2); where the principal does not succeed in proving that the agency was only for the purpose of repairing and not to damage (Sh. Ar. ḤM, 182:6, and Sema ibid., s.10); and according to some authorities, where the agent intentionally mislead the third party into thinking that he was acting under authorization (Shitah Mekubeẓet, BM 74b, in the name of the Ra'abad).
In this context, the liability of an unpaid agent does not differ from that of a paid agent (a middelman) (Sema., ḤM 185:1: "For even when not paid, the agent is liable when he digresses"), however, if the agent has possession of the principal's asset, then the liability imposed on him is that of a paid bailee, if he was a paid agent; and of an unpaid *bailee if he was an unpaid agent.
An agent can appoint a secondary agent, whose action will directly credit and obligate the principal (Kid. 41a), provided that the principal himself has no opposition (to the appointment) and the agency itself is not defined as 'words' (mili). There is a dispute regarding the precise definition of the concept 'mili', but all agree that an action defined as mili is one that does not achieve a legally valid result. For example, an agent for the writing of a get (divorce bill) cannot appoint a secondary agent, because the actual writing of a get has no legal consequences (Mordechai, Gittin, 420)
The death of the principle agent does not annul the secondary agency (Git. 29b). From this it may be inferred that the secondary agent operates as the extended arm of the principal. Even so, it is still disputed whether the main principal can annul the agency of the secondary agent (Taz, EH 26, and on the other hand, Keẓot ha-Ḥoshen, 188:2)
The Decisions of the Israel Supreme Court
The provisions of Jewish law regarding agency served as a basis for the decision of the Israel Supreme Court in the case of Moverman (CA 604/77 Moverman v. Segal, PD 32(3) 85). In that case the Court was required to make a determination regarding the validity of an agreement that the executor of an estate made with a woman who was designated as a beneficiary of the estate. The agreement provided for a waiver of the woman's rights under the will in exchange for the receipt of a fixed monthly payment from the executor of the estate. The Court found that the agreement contained a number of legal flaws, such as a suspicion that the executor of the estate exerted undue influence on the woman prior to her signing the agreement. The Court (Justice Menachem Elon) did not rely on that suspicion as the only reason for invalidating the agreement, and ruled that according to Jewish law, a transaction that the executor of an estate carries out regarding the estate for his personal needs, requires prior approval by the court, and if the executor did not take steps to obtain such approval prior to carrying out the transaction, the court must engage in a "thorough examination of the reasonableness and fairness of the transaction, vis-à-vis the estate and the beneficiary (ibid., p. 97). The Court ruled on the question from the perspective of the laws of agency:
According to the view of some of the sages … the reason is one of suspicion, in other words, a conflict of interest between his acting on behalf of the principal and his acting on his own behalf (see, e.g., Beit Yosef on the Tur, ḤM. ibid.; Prisha on the Tur, ḤM 175:30, and Bach. ibid; Sema, Sh. Ar. ḤM 175:26).
'For an agent cannot buy for himself, even at the price that the owner has authorized him to sell it, inasmuch as he was made an agent to sell the land to a client, but he cannot authorize himself to buy it for himself, for a man cannot sell to himself; for the definition of a sale is the transfer of the object from one domain to another, and this hasn't left his domain insofar as he is acting in place of the owner' (Tur, ḤM, 185.3, in the name of Rashba)" (Ibid, p. 98).
In accordance with the above, in addition to a similar conclusion that is arrived at from the perspective of the laws of inheritance and guardianship in Jewish Law (see under Apotropos), Justice Elon rules that the validity of the transaction that the executor has carried out for himself with regard the estate that he is administering is contingent upon the prior approval of the court. Because no such approval was given, the transaction is subject to judicial review and the court must "examine the nature and the essence of the transaction from the perspective of what is in the best interests of the beneficiary" (ibid, p. 101).
[Michael Wygoda (2nd ed.)]
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