Rabbi Meir Orlean
Unfortunately, Jeremy was not a scrupulous fellow. He was involved in various forms of theft, but always tried to evade responsibility.
One day he saw the gabbai of his shul, Mr. Prince, leave an envelope with money in his desk. “I left an envelope with money in shul today,” Jeremy told his friend, Yossi. “Would you be able to stop off this evening and take it? It’s in the gabbai’s desk.”
“No problem,” said Yossi. In the evening, he went to the shul and took the envelope from the gabbai’s desk.
The following day, the gabbai summoned Yossi to his office. “Last night someone stole money from the shul,” he said. “The surveillance camera shows that you took it.”
“Jeremy told me to take it,” replied Yossi. “If anyone is liable, he is!”
Mr. Prince called Jeremy in. “I understand that you sent Yossi to steal money,” he said. “You are responsible.”
“How can you hold me responsible?” argued Jeremy. “I didn’t do anything! Yossi didn’t have to listen to me. He’s responsible for his own actions.”
“I had no idea that the money wasn’t yours,” replied Yossi. “You said that it was.”
“You still can’t call me a thief,” insisted Jeremy. “I didn’t do anything.”
“Where is the money now?” asked Mr. Prince.
“I was mugged on the way to Jeremy,” said Yossi. “The money’s gone but I’m not guilty”
“You never got the money?” Mr. Prince asked Jeremy.
“No,” said Jeremy. “I refuse to accept blame as a thief!”
“I’d like to discuss this with Rabbi Dayan,” said Mr. Prince, “and I would like you both to come with me.”
Mr. Prince took the two of them over to Rabbi Dayan.
“Jeremy told Yossi to take money from the shul,” said Mr. Prince. “Yossi assumed it was Jeremy’s, but it was not. Is Jeremy liable as a thief?”
“The Gemara (Kiddushin 42b; B.M. 10b) teaches that there is no agency for sin (‘ein shaliach lidvar aveirah’),” replied Rabbi Dayan. “Although a person’s agent is like him, and the agent’s actions on his behalf are legally binding, this does not apply to agency for transgressions. Thus, when someone sends an ‘agent’ to steal or damage, the sender is not legally liable; the thief himself is held accountable” (Rema, C.M. 182:1; 348:8).
“Why is that?” asked Jeremy.
“The basic rationale is that each person is responsible to fulfill Hashem’s commands,” explained Rabbi Dayan. “Therefore, the excuse that ‘So-and-so sent me to steal or damage’ does not exempt the thief, since Hashem — Whose commands are superior — instructed him not to steal” (Sma 182:2).
“In this case, though,” pointed out Yossi, “I had no idea that the money was not Jeremy’s.”
“Indeed, according to one opinion in the Gemara, if the agent did not have a choice whether or not to obey, the sender is liable, since the rationale does not apply,” replied Rabbi Dayan.
“Tosafos applies this also to our case in which the agent was unaware that he was instructed to transgress, since he had no reason not to obey. Nimukei Yosef disagrees, though, and exempts the sender” (Shach 348:6).
“Similarly, some maintain that if the agent is known to transgress, the sender is liable, since the rationale does not apply. The sender was aware that the agent would fulfill his instructions and not heed the mitzvah,” added Rabbi Dayan.
“Others do not differentiate, since the agent remains obligated to heed the commandment and can choose whether to obey. Some also maintain that if the sender threatened the agent to force him to obey, the sender is liable for the theft” (Rema, C.M. 388:15; Shach 388:67; Pischei Choshen, Geneivah 4:24).
“Thus there is a dispute whether Jeremy is liable,” concluded Rabbi Dayan. “Nonetheless, he has a moral obligation to repay the theft that he caused, and if the money had reached his hands he would certainly have been liable for it, like any other lost item” (Pischei Choshen, Geneivah 4:23).