THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 90 • Laws of Agency (Part 1)

This lesson deals with the laws relating to the repayment of the debt to the creditor's agent rather than directly to the creditor. There is a general principle of law that the act of the agent is the act of the principal. Thus when the creditor's agent receives the repayment, it is as if the creditor received the repayment, and the liability of the debtor ceases at that moment. It is the creditor's loss if the moneys are lost by the agent, whether through the agent's acts or through an act of God. If the person to whom the debtor gives the moneys is not the agent of the creditor, then he is the agent of the debtor, and the debtor is responsible for the moneys until they reach the hands of the creditor. If the moneys do not reach the creditor, the debtor remains liable no matter what the reason for the moneys not reaching the hands of the creditor. 

There may be times when the debtor makes payment to a person whom he erroneously thinks is the agent of the creditor, or to some other messenger of the creditor who is not actually the agent of the creditor for the receipt of moneys. If the debtor gives the moneys to such a messenger, the debtor is still liable until the moneys reach the creditor. 

The most obvious way for the messenger to become the creditor's agent is for the creditor to appoint him in the presence of two witnesses, or to have a writing of appointment prepared and to have it witnessed by two witnesses. The instruction may be by any mode of communication employed by the parties, including such devices as Fax messages, mail, telegrams, email, or telephone communications, if the debtor recognizes the voice of he creditor. As soon as the debtor gives the repayment to the agent, the debtor is relieved of liability. He is relieved of liability although the instructions did not mention such relief of liability if the debtor follows the creditor’s instructions. If the creditor instructs the debtor to send repayment with a certain person, that person becomes the agent of the creditor. The instruction may be oral or in writing, so long as there is no dispute as to the instruction, either because there is adequate proof or the creditor admits giving the instructions.

There is no further liability on the debtor's part even if the repayment never gets to the creditor, no matter what the reason for the moneys failing to reach the creditor, e.g., whether the agent steals the moneys or loses them through his negligence or through an act of God, or fails to deliver them to the creditor for any other reason. The result is the same even if the agent appointed by the creditor is a Gentile or a deaf-mute, or an idiot, or a minor. Ordinarily the acts of a deaf-mute, a mentally deficient person, or a minor are not legally binding. There are halachik situations where a Gentile may not be an agent of a Jew. In the situation hee, the creditor has accepted these otherwise ineligible persons to be eligible, and he bears the responsibility for their acts.

If the instructions from the creditor to the debtor state that the debtor may send repayment with whomever the debtor selects, the person selected by the debtor becomes the agent of the creditor. The person selected by the debtor in this situation must be a trustworthy person and cannot be a person who has a disability, such as a deaf-mute, an idiot, a minor, or a Gentile. It cannot be said that the creditor’s instructions contemplated such an appointment on the part of the debtor, unless they expressly so state. Also if it is the debtor who selects the route the agent should travel with the moneys, the person must be told to take a safe route to the creditor. The debtor is relieved of further liability to the creditor as soon as he gives the money to the person he selected pursuant to the instructions of the creditor.

If the person denies receiving the moneys from the debtor, if the debtor takes a hesseth oath that he gave the money to that person, the debtor is relieved of liability. If the debtor selects a person who is not trustworthy or others who cannot ordinarily be appointed as an agent,7 or if he was not told to take a safe route, then the debtor is not relieved of liability if the moneys are lost by the messenger by reason of an unsafe route. Under these circumstances the messenger selected by the debtor does not become the agent of the creditor. The debtor is still responsible, even if the moneys are lost by an act of God, since the debtor was negligent at the outset. It cannot be said that the debtor complied with the wishes of the creditor in the type of agent he selected or in the type of travel route the messenger is taking. If it is the creditor who has named the agent, then the debtor has no liability, no matter whom the creditor selected and no matter which route the agent of the creditor takes. 

The creditor sends a writing to the debtor to make repayment to the bearer of the letter. The debtor must make payment only to the bearer of the writing. If the letter states that the debtor should send payment without stating that it should be sent with the bearer, he may not employ the messenger who brought the letter if the messenger does not appear to be trustworthy and reliable. However, the custom of the halachic business world is to accept this practice of sending the moneys with the bearer of the letter, and thus the practice is for the debtor to be relieved of the debt if he sent the repayment with the messenger who brought the letter, provided the messenger appears to be trustworthy and reliable. 

If the debtor sends the money through the post office in conformity with community practices, the post office becomes the agent of the creditor. 
If the creditor does not communicate with the debtor either in writing or by a voice communication. it makes a difference whether the instructions given to the messenger by the creditor are in the presence of witnesses or are given without witnesses being present. The creditor, in the presence of two witnesses, tells the messenger. "Go and tell the debtor that he should send the repayment with you. Then bring the repayment to me." Or else the creditor, in the presence of two witnesses says, 'The debtor owes me money. Go and say to him, 'It is your intent to return to this place where I reside.’" If the debtor gives the money to the messenger, the debtor at that moment is relieved of liability, because when these statements are made in the presence of witnesses, the messenger becomes the agent of the creditor. I have set forth a view that appears to be a popular view among the commentators and codes. 

There are conflicting view regarding whether the statements made by the creditor to the messenger makes him an agent. If these statements of the creditor to the messenger are not made in the presence of witnesses, then the messenger does not become the agent of the creditor.

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.121 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il